Canada: Top 5 Civil Appeals From The Court Of Appeal Last Month (July 2011)

1. A.M.R.I. v. K.E.R., 2011 ONCA 417, (Cronk, Gillese and MacFarland JJ.A.), June 2, 2011

2. Antrim Truck Centre Ltd. v. Ontario (Transportation), 2011 ONCA 419, (Doherty, Watt and Epstein JJ.A.), June 2, 2011

3. Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460, (Goudge, Gillese and Juriansz JJ.A.), June 20, 2011

4. Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONCA 482, (Doherty, Moldaver and Simmons JJ.A.), June 29, 2011

5. Elgner v. Elgner, 2011 ONCA 483, (Cronk, Gillese and MacFarland JJ.A.), June 29, 2011

1. A.M.R.I. v. K.E.R., 2011 ONCA 417, (Cronk, Gillese and MacFarland JJ.A.), June 2, 2011

In a case that received a good deal of media coverage, the court addressed important issues concerning the interplay between Canada's international obligations dealing with the return of children to parents/guardians in other jurisdictions who have legal custody (via the Hague Convention, as incorporated into provisions of Ontario's Children's Law Reform Act) and its international obligations for the protection of children entitled to refugee status (via the Refugee Convention, as implemented by the federal Immigration and Refugee Protection Act).

At the centre of the litigious storm was a young girl whose parents had married, separated and divorced in Mexico, where she had been born. In Mexican court proceedings, the mother had been granted legal custody of the child, and the father had been granted access. The father then moved to Canada. During an agreed visit of the child to Canada (with her maternal grandmother as a travelling companion), the grandmother told the child's father and paternal aunts that the child had been abused by the mother and had problems with her step-father. The child herself later disclosed that she was the victim of regular physical and emotional abuse by her mother.

The child's grandmother returned alone to Mexico, leaving the child with the father and paternal aunts in Ontario, without the mother's consent. The mother contacted the Mexican Central Authority under the Hague Convention, and eventually initiated an application for the child's return to Mexico. In the meantime, the child had commenced an application in Ontario for refugee protection, based on the alleged abuse by her mother, while the aunts commenced an application in Ontario for joint custody of the child.

At the hearing of the child's application for refugee protection (which proceeded in the customary fashion without notice to or participation of the those responsible for creating an alleged situation of danger, in this case the mother), the Immigration and Refugee Board of Canada received testimony from the child (who was represented by counsel and a Designated Representative appointed to act on her behalf), testimony from the father and a formal assessment by a psychologist (who described the child's abuse claims in detail, noted the child's desire to stay in Canada, and opined that the child's symptoms aligned with post-traumatic stress disorder). The Board determined that the child was a Convention refugee by reason of the mother's abuse, that the child had rebutted the presumption that Mexico could provide her with sufficient protection and that removing the child to Mexico would force a return to the child's abuser.

The mother then issued her Hague application in Ontario, requesting a declaration that the child had been wrongfully detained in Ontario, and requiring her immediate return to Mexico. By that time, the child had been in Ontario for more than 1½ years, living with her aunts and attending a local school. The father had since relocated to Norway. The child was not made party to the application, and no notice of the application was served on her, her counsel or her Designated Representative in the refugee proceeding. Her aunts were not named respondents, but were personally served when service on the father proved problematic.

The aunts brought a procedural motion in the Ontario Superior Court of Justice, seeking an order adding them as parties, consolidating the Hague application with their custody application and appointing counsel to represent the child. Their requests were denied by the motions judge, who saw "no pressing need to do so", felt it would "just encumber and delay" what was intended to be a "speedy" Hague Convention process and effectively pre-empted the aunts' application for custody.

As a result, the mother's Hague application essentially proceeded on an ex parte basis (without service on the child, who was then almost 14, or the aunts). Although some evidence of the alleged abuse and refugee proceedings was before the court, the mother contended that the abuse claims were "completely false" and a fabrication designed to "manipulate the immigration system" in order to keep the child in Canada. Without releasing any formal reasons, the presiding judge granted the Hague application, found the child to be wrongfully detained in Ontario and ordered her immediate and summary return to Mexico.

About one month later, without forewarning and with the aid of police, the child then was dramatically taken from her school despite her "vociferous objections" and placed in the care of her mother and some of her mother's legal counsel. Although the child informed police and others present that she was a Convention refugee, she was denied permission to return home for her refugee papers and not allowed to communicate with anyone in any way. She was flown to Mexico early the next morning. The Court of Appeal emphasized that, "apart entirely from the legality of the girl's removal", the manner in which it was effected offended the girl's right to dignity and respect and potentially undermined public confidence in the administration of justice.

The father then appealed the Hague application judge's decision to the Court of Appeal. Having regard to the public importance of the issues, numerous organizations were allowed to participate as parties or intervenors. By the time of oral argument before the Court of Appeal, the child had run away from her mother in Mexico and was in hiding. By the time the court released its reasons, she had made her way safely back to Ontario.

In the course of setting aside the decision of the Hague application judge and ordering a new hearing, the court decided or emphasized the following points, providing substantive and procedural guidance for the future:

• In terms of constitutionality, there is no inherent operational conflict or incompatibility between the relevant provincial legislation and federal legislation sufficient to render the former invalid via the doctrine of paramountcy. In particular, the Hague Convention implemented by the provincial legislation contemplates respect for and fulfillment of Canada's "non-refoulement" obligations under the Refugee Convention, e.g. by provisions permitting exceptional refusal of a child's automatic return if there is a "grave risk" that doing so would expose the child to physical or psychological harm, place the child in "an intolerable situation" or otherwise conflict with fundamental principles "relating to the protection of human rights and fundamental freedoms".
• As the refugee determination process is inherently one-sided (insofar as an alleged abuser is not given notice or an opportunity to respond to allegations of abuse), and is not bound by any legal or technical rules of evidence, "there is potential for abuse of the IRB refugee determination process by an abducting parent to gain tactical advantage in a looming or pending custody battle". An IRB ruling granting refugee status to a child therefore is not dispositive in subsequent Hague Convention proceedings of whether the Convention's "grave risk of harm" exception to automatic return of a child should apply. However, when a child has been recognized as a Convention refugee, a rebuttable presumption arises that there is indeed a risk of persecution or other serious harm on return of the child to his or her country of habitual residence. In such circumstances, the Hague applications judge must accord "real weight" to the child's refugee status and entitlement to protection from refoulement, and assess the existence and extent of any persisting risk of persecution in determining whether to grant an order of return. In that regard, there is no onus on the child to persuade the Hague application judge that the conditions which led to the conferral of refugee protection remain the same.
• An aggrieved custodial parent nevertheless has no obligation to set aside a finding of refugee status before proceeding with a Hague Convention application. Hague Convention proceedings are intended to be summary in nature and, in any event, such a parent is unable to apply directly to the IRB to vacate an earlier child refugee decision.
• The decision of a Hague application judge normally will attract considerable deference. However, this is displaced where the judge applies the wrong legal principles, makes unreasonable findings of fact or permits a breach of natural justice or hearing unfairness. Such risks are augmented when the hearing effectively is one-sided, proceeds on a less than comprehensive "paper" record and arrangements are not made, on an exceptional basis, for the child to be brought before the court and/or to require live testimony from witnesses.
• Where a child has been given the status of Convention refugee, his or her section 7 Charter rights to life, liberty and security of the person are engaged on any Hague application to compel his or her return. This compels not only a mandatory and proper risk assessment, but the child's right to:

i. receive notice of the application;

ii. receive adequate disclosure of the case for an order of return;

iii. a reasonable opportunity to respond to that case;

iv. a reasonable opportunity to have his or her views on the merits considered in accordance with the child's age and level of maturity (something consistent not only with the Charter, but with provisions in the Hague Convention that create an exception where a child objects to being returned, other provisions of the CLRA mandating consideration of a child's views and preferences, and the Convention of the Rights of the Child);

v. representation; and

vi. reasons for the Hague application judge's decision.

• Although the receipt of viva voce evidence on a Hague application should occur only in exceptional circumstances (given the Convention's strong commitment to expeditious proceedings and prompt return of abducted children), and an oral hearing is not always required even where section 7 of the Charter is in play, fundamental justice and fair hearing considerations require an oral hearing where serious credibility issues require determination. "Expediency will never trump fundamental human rights."
• The failure of a judge to consider or properly consider the possible application of other stated exceptions to Hague Convention return orders (e.g., where a child has settled into a new environment more than one year from the date of his or her removal, and/or where the custodial parent has "acquiesced" to the child's retention abroad) also will merit a rehearing.

2. Antrim Truck Centre Ltd. v. Ontario (Transportation), 2011 ONCA 419, (Doherty, Watt and Epstein JJ.A.), June 2, 2011

Although formally focused on the interpretation and application of Ontario's Expropriations Act, this case necessarily involved a significant review and clarification/confirmation of the common law tort of nuisance, a necessary element of "injurious affection" claims for compensation pursuant to the legislation.

The case stemmed from public safety measures taken to relocate and improve a section of "killer highway" that had become dangerous through use in excess of its original design capacity. The owners of a previously busy and profitable truck stop, located immediately along the "old" highway route, claimed that the changes had severely impeded road access to their property, thereby substantially interfering with its use and enjoyment. Pursuant to the Expropriations Act, an application was made to the Ontario Municipal Board (OMB) for compensation based on "injurious affection", i.e. a detrimental impact to a claimant's land arising from expropriation where no land has been expropriated from the claimant.

Pursuant to earlier Supreme Court authority, such claims for compensation require:

i. that the damage in respect of which compensation is claimed must result from an act rendered lawful by statutory powers of the person performing such an act ("the statutory authority rule");

ii. that the damage must be such as would be actionable under the common law, but for the statutory powers ("the actionable rule"); and

iii. that the damage must be occasioned by the construction of the public work and not its use ("the construction not the use rule").

In this case, satisfaction of the second and third requirements were in dispute. Satisfaction of "the actionable rule" turned on whether the interference with access to the claimants' property amounted to actionable nuisance at common law.

The OMB held that the requirements were satisfied and that the owners therefore were entitled to compensation, albeit not nearly to the extent claimed. That ruling was upheld by the Divisional Court. The province appealed to the Court of Appeal, with leave. The owners cross-appealed throughout on the quantification of damages.

The court began with an extended consideration of the standards of review applicable to each issue. In relation to the OMB's definition of and test for nuisance, the court found this to be a question of law in respect of which "correctness" was the relevant standard. It therefore was necessary for the court to examine the law of nuisance in some detail, in order to determine whether the OMB (and the Divisional Court) had got it right.

In the course of its substantive review, the court emphasized and confirmed the following:

• At its core, the test for nuisance commands a two-part analysis. First, there is a "threshold" requirement that the interference with another's property must be substantial, such that claims disclosing no actual interference, or trifling interference, will be excluded. Second, the interference with another's property must be unreasonable, which is a "question of judgment based on all of the circumstances".
• Whether interference with another's property is "unreasonable" should be determined by consideration of four specific factors:

i. the severity of the interference;

ii. the character of the neighbourhood;

iii. the utility of the defendant's conduct; and

iv. the sensitivity of the plaintiff.

• In the context of the unreasonable analysis, the first factor, severity of the interference, goes beyond the "threshold" question to ask whether the interference is sufficiently serious, having regard to its duration and nature, and viewed alongside the other elements of the reasonable analysis, that the plaintiff should not be expected to tolerate it in the circumstances.

• The second factor, character of the neighbourhood, "recognizes that what is reasonable must be viewed with reference to where the interference takes place and what is typical of that location".
• The third factor, utility of the defendant's conduct, "involves an examination of the importance of the defendant's enterprise and its value to the community", as a defendant "may be treated less harshly if ... the activity is of considerable public value in a particular locality". Indeed, this factor takes on a "special significance", and must be given "substantial weight", where the alleged nuisance is the result of an important public work.
• The fourth factor, sensitivity of the plaintiff, recognizes that a property owner "cannot expose a neighbour to greater liability by adopting an unusual and especially sensitive use of his or her land". A nuisance claim will succeed only if the interference "would have amounted to an actionable claim were the plaintiff a person with ordinary sensitivities".
• Expressly parting company with appellate court decisions in British Columbia and Newfoundland, the Court of Appeal emphasized, after a careful review of the authorities, that "balancing the competing interests of landowners" is an element of determining whether nuisance has been established. In the court's opinion, the "important principles of tolerance and accommodation necessary to sustain harmony among neighbours in an increasingly dense and complex society require a balancing of the interests of both parties to determine whether it is appropriate for the court to intervene to preserve the right of either to use their property as they wish."
• The court expressly rejected the suggestion, accepted by the OMB and the Divisional Court, that interference must be "proximate" in order to be significant, substantial and actionable, i.e. that a plaintiff needs to prove that the land allegedly affected is "proximate" to the land from which the interference emanates, and not too "geographically distant". The court found no support for such a proposition in the cited authorities and, as a practical matter, did not see why it should be an element of the test for nuisance. Distance between affected land and the activity causing interference with its use and enjoyment might make it more difficult for a claimant to establish nuisance, but did not represent a bar to such claims.

In this case, the OMB had considered the nature of changed access to the claimants' property, properly turned its mind to whether the "substantial interference" threshold had been met, and satisfactorily explained the conclusion that it was.

However, the court found that the OMB had focused almost exclusively on the "substantial" interference with access, such that its assessment of "reasonableness" was fundamentally flawed.

The OMB had failed to consider the character of the neighbourhood. This was a highly relevant factor, given the ample evidence that the existing highway was inadequate and posed a significant safety risk to the public. The "interference" created by its relocation was not only "reasonable" but "essential to the safety of the neighbourhood". The claimants also had known, even when they purchased the property, that a new highway eventually would be built.

The OMB also had failed to consider whether the interference was the product of any abnormal sensitivity on the part of the claimants, who arguably had a particular dependence on easy access to the highway because their facility was dedicated predominantly to truck traffic.

The OMB had further failed to adequately take the obvious utility of the relevant work/interference into account. ("Highways are necessary: this one particularly so given the public safety issue.")

While the OMB had acknowledged that nuisance involves a "balancing of interests", it failed to carry out that balancing exercise and instead focused improperly on only "one element of the equation", its conclusion that the interference was "substantial" because access to the highway was not "as before". On that basis alone, "without contrasting the public benefit with the private detriment and without explaining how one outweighed the other", the OMB had incorrectly concluded that there was a common law claim in nuisance.

As the claimants had not made out a case in nuisance, they in turn had not satisfied "the actionable rule" component of the tests for injurious affection compensation claims under the Expropriations Act, and their claims were dismissed in their entirety.

3. Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460, (Goudge, Gillese and Juriansz JJ.A.), June 20, 2011

In a case that provided an opportunity to review and clarify the tort of unlawful conduct conspiracy, the court also provided further guidance on appropriate pre-judgment interest rates and claims for punitive damages for breach of contract.

The underlying facts were not in dispute. Purina, a well known supplier of livestock feed and pet food, discovered that one of its dealers, "Ren's", also was purchasing and reselling feed from a competitor in breach of its dealership agreement with Purina. Purina sanctioned this conduct by terminating Ren's dealership. This left the relevant Purina territory without an assigned dealer. Seeing a legitimate opportunity, a Purina employee and his brother set up a new dealership, "Raywalt", to which Purina assigned exclusive rights in the relevant territory. In particular, Purina expressly agreed not to appoint any other dealer in the territory previously serviced by Ren's.

However, Purina apparently still had concerns that disruptions caused by the change in dealership would lead to a reduction in its market share for the territory in question. To prevent that from happening, and maintain its ability to capitalize on the customer relationships fostered by Ren's, Purina initially continued to supply Ren's with advantageously priced product. When challenged on that by Raywalt, Purina assured Raywalt it would stop supplying Ren's with feed. Purina nevertheless then continued to supply Ren's with such product indirectly through another Purina dealer in a neighbouring territory, "McGrath".

As a result, Raywalt's business was not nearly as profitable as projected, and cash flow problems caused it to cease business. It then sued Purina for breach of contract (the dealership agreement) and Purina, Ren's and McGrath for the tort of unlawful conduct conspiracy.

Raywalt did not rely on the "first category" of the tort of civil conspiracy, requiring demonstration that the defendants' primary purpose was to cause injury to the plaintiff, whether by lawful or unlawful means. Rather, Raywalt relied on the "second category" of the tort, arguing that the defendants' conduct, done in concert, was unlawful and they knew or should have known that injury to Raywalt was likely to result.

At trial, Raywalt succeeded on all its claims, and was awarded millions of dollars in compensatory damages. In doing so, the judge quantified damages on the same basis in contract and tort, and pursuant to his view that the dealership contract would have been renewed indefinitely had it not been breached by Purina. He rejected arguments that damages should be assessed with regard to Purina's ability to terminate the agreement at any time by giving 60 days notice. The trial judge applied a pre-judgment interest rate determined by an average of the prescribed Courts of Justice Act rates for the year in which the cause of action arose. Purina also was ordered to pay $30,000 in punitive damages for its breach of contract.

The appellants raised numerous issues on appeal, including:

i. the propriety of the trial judge's approach to the tort of unlawful conduct conspiracy;

ii. the method used by the trial judge to calculate damages;

iii. the rate of pre-judgment interest employed by the judge; and

iv. the award of punitive damages.

In relation to the first issue, the court confirmed the elements of the tort of unlawful conduct conspiracy (action in combination by agreement or with a common design, unlawful conduct, conduct directed towards the claimant and objective knowledge that injury to the claimant was the likely result) and noted that the appellants challenged only the finding that their conduct was "unlawful" in the sense required.

In reviewing and confirming the law relating to this element of the tort, the court emphasized the following points:

• Civil conspiracy for unlawful conduct requires proof of unlawful conduct by each conspirator. "There is no basis for finding an individual liable for unlawful conduct conspiracy if his or her conduct is lawful, or alternatively, if he or she is the only one of those acting in concert to act unlawfully."
• The jurisprudence does not support an expansive interpretation of "unlawful conduct" (used by the trial judge), so as to include any conduct a defendant "is not at liberty or not authorized to engage in, whether as a result of law, a contract, a convention or understanding". Such an interpretation is "simply too broad", and sets the bar for liability too low. More is required.
• Definitions of "unlawful conduct" developed and used in relation to the tort of intentional interference provide guidance, but cannot automatically be adopted in the conspiracy context having regard to the separate evolution of the two torts.
• The "unlawful conduct" element of the conspiracy tort requires that defendants engage, in concert, in "acts that are wrong in law, whether actionable at private law or not". Quasi-criminal conduct undertaken in concert will suffice, as will conduct in breach of the Criminal Code. However, there are also "many examples of conduct found to be unlawful for the purposes of this tort simply because the conduct is actionable as a matter of private law."
• In the commercial world, even highly competitive activity, provided it is otherwise lawful, does not qualify as "unlawful conduct" for the purposes of the tort of conspiracy.

In this case, only Purina had engaged in any "unlawful conduct" by breaching its dealership contract with Raywalt. Neither Ren's nor McGrath did anything that was "unlawful" or "wrong in law". In particular, neither committed a tort or breached a contractual obligation.

As only one of the defendants had engaged in any "unlawful conduct", the finding of unlawful conduct conspiracy and the damages flowing from it was set aside, and the civil conspiracy claim was dismissed.

As for the calculation of breach of contract damages, the trial judge had erred fundamentally by departing from the approach mandated in the Supreme Court in Hamilton v. Open Window Bakery Ltd., and specifically by making that approach dependent on a finding of "good faith conduct" by the breaching party.

Pursuant to the Hamilton decision, where there are several ways in which a contract might have been performed, the mode that is to be adopted, for the purpose of assessing breach of contract damages, is the least profitable to the plaintiff and the least burdensome to the defendant. There are "compelling reasons for this". In particular:

• Voluntarily assumed contractual obligations are conceptually distinct from unpromised negative obligations to not harm another's interests in tort law.
• In tort cases, inquiry into what would have been "but for the tort" is appropriate, since the goal is restoration of the plaintiff to the position he/she otherwise would be in.
• In contract cases, however, it is not necessary to restore the plaintiff to the position it likely would be in as a matter of fact but for the breach; rather, the goal is to restore the plaintiff to the position in which it would have been had the contract been performed.
• Where a contract contemplates and provides for alternative methods of performance, a plaintiff has no compensable interest in advantages it might have expected under any particular performance of the contract. If a plaintiff wants to secure the benefits associated with a given particular method of performance, it should have contracted for only that method of performance, and otherwise cannot expect breach of contract compensation based on the more profitable method after the fact.

The court found no basis to distinguish the Hamilton case as the trial judge had done, applying it only where parties acted honestly and in good faith. The mandated approach to breach of contract damage assessment should have been followed (with damages based on the "least profitable" scenario for the plaintiff, with the contract being terminated on 60 days notice by Purina), even if Purina had not acted in good faith in breaching the dealership agreement. Instead, the trial judge had embarked on the very hypothetical inquiry expressly prohibited by Hamilton, speculating on how the contract likely would have been performed, and the position the plaintiff would have been in, had the agreement not been breached.
Nor was it proper for the trial judge to use the doctrine of unconscionability to prevent Purina's reliance on the provisions permitting termination of the contract on 60 days notice. As the court emphasized: "the doctrine is applicable to determine whether the contract itself is unconscionable", and "not applicable to determine how damages should be assessed in light of the circumstances of a particular breach".

As for the pre-judgment interest rate, the judge had erred by starting with a view that the applicable rate should be the average of rates for the year in which the cause of action arose, and then finding that the defendants had "done nothing to discharge the onus" of persuading him that a different rate should apply. An opposite approach was mandated by the Courts of Justice Act. In particular, the judge should have applied the specified rate for proceedings commenced in the last quarter of 1992 (when the claim was started) unless the judge found "special circumstances" to depart from it. In this case, the judge had offered no special circumstances for exercising his discretion to deviate from the specified rate.

Finally, the court turned its attention to the judge's award of punitive damages, agreeing with the result but not the reasons.

In that regard, the court expressly disagreed with the judge's statement that punitive damage awards were appropriate to promote "good faith, promises of good faith, and an underlying foundation of business efficacy" as the "cornerstone of upholding and enforcing contractual promises".

In the court's opinion:

• such an approach "sets the bar too low", and "would make every breach of contract that is also a breach of implied duty of good faith a sufficient basis for the award of punitive damages";
• awards of punitive damages must be "confined to exceptional cases", where the misconduct is of a nature "that takes it beyond the usual opprobrium surrounding breaking a contract"; and
• breach of a good faith duty therefore is not per se enough to
• justify punitive damages.

Considering the factors outlined by the Supreme Court in Whiten, the court nevertheless found that Purina's conduct was such a "marked departure from the ordinary standards of decency" that it warranted censure through the imposition of a punitive damages award in the amount set by the judge. Purina had done precisely what it told Raywalt it would not do, in order to further its own financial and business interest, and did so aggressively with complete disregard to Raywalt (whose principals had secured Raywalt's debts against their homes). Such conduct was "deceitful", "reprehensible" and "deserving of sanction", and the compensatory damages award did not otherwise punish the behaviour.

4. Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONCA 482, (Doherty, Moldaver and Simmons JJ.A.), June 29, 2011

A literal "life or death" decision that raised, but did not entirely answer, very serious and profound questions relating to the provision and withdrawal of medical treatment.

A husband underwent surgery to remove a benign brain tumour and unfortunately experienced post-operative complications which in turn left him with severe and diffuse brain damage. He was placed on a mechanical ventilator and given artificial nutrition and hydration. Without such life-sustaining measures, it was expected that he would soon stop breathing and die.

The doctors responsible for the husband's treatment and care concluded that he would never again regain consciousness. In their view, all appropriate treatments had been exhausted, there was no realistic hope of medical recovery and the husband was not receiving any medical benefit from being kept on life support. In the circumstances, the doctors believed it was in the husband's best interests that he be taken off life support and provided with palliative care until his death. The wife and her family disagreed with the doctors' assessment and recommendations, setting the stage for a dispute about what consent was needed, and the procedures to be followed to address the impasse.

In particular:

• While the doctors acknowledged that the positive administration of palliative care required consent from the husband's wife in her capacity as his substitute decision-maker, they also maintained that such consent was not needed for the withdrawal of the life-sustaining measures, as they had "spent their course" and were "no longer medically indicated".
• The wife maintained that her consent was required for both the removal of life-support and the husband's placement on palliative care and, if the doctors were not prepared to abide by her wishes, their proper recourse was not unilateral withdrawal of life support but an application to the Consent and Capacity Board, pursuant to the Health Care Consent Act, for a decision as to whether the proposed course of action was in the husband's best interests.

The parties applied and cross-applied to the Superior Court for various declarations and orders vindicating their respective positions. The application judge found in favour of the wife and against the doctors, ordered the physicians to refer their proposal to the Consent and Capacity Board and, in the meantime, also ordered the physicians not to withdraw life-support and transfer the husband to palliative care.

The doctors appealed to the Court of Appeal, arguing that the orders set a dangerous precedent. In their view, patients manifestly had the right to refuse treatment. However, a right to insist on treatment regarded by doctors as medically ineffective or inappropriate, by requiring doctors to obtain the consent of patients before withholding or withdrawing such treatment, had the effect of "standing the doctor/patient relationship on its head", with serious consequences for the medical profession and health care system.

The doctors emphasized they were not suggesting a unilateral ability to withhold or withdraw treatment as they saw fit without risk of legal consequences. On the contrary, they readily acknowledged an obligation to act in their patients' best interests, and accountability with risk of legal consequences for decisions to withhold or withdraw treatment considered medically ineffective or inappropriate if such decisions were later found to have fallen below the requisite standard of care.

However, that was a "far cry" from being unable to make such decisions and having to provide such treatment unless and until the doctors obtained a patient's consent to its withholding or withdrawal.

In its decision, the court acknowledged and addressed these admittedly "serious" concerns by way of comments suggesting strong obiter support for the doctors' position that medically valueless measures should not be regarded as "treatment" at all and/or that the proposed withdrawal of life support, at least considered in isolation, should not constitute "treatment" or a "plan of treatment" within the meaning of the legislation.

However, in its determinative analysis, the Court of Appeal found it unnecessary to address and resolve such questions. Nor did the court feel required to:

• comment on arguments about whether personal autonomy considerations under s.7 of the Charter confer a right to demand the continuation of medically ineffective or inappropriate treatment; or
• resolve the "metaphysical debate" over whether life-saving measures in such cases are of no medical value because they are futile, or of high medical value because they sustain life while relatives held out hope for recovery.

Instead, the court found that the Act provided a "complete answer" to the dispute before the court, having regard to the particular facts and provisions of the Act applicable to the provision of palliative care.

In that regard, the court essentially reasoned as follows:

• "Palliative care" is clearly included within the definition of "treatment" under the Act, and doctors therefore must obtain consent to its administration.
• While not defined in the legislation, "palliative care" manifestly encompasses end-of-life care provided to a patient.
• Where circumstances are such that removal of life-support is a necessary precondition to the administration of end-of-life palliative care, and end-of-life palliative care is a necessary response to the removal of life-support, "the two go hand in hand", "cannot be separated" and instead form an entire "treatment package" for purposes of the Act.
• As consent was required in relation to one aspect of such a "treatment package", the doctors effectively required consent in relation to the whole, and were obliged to refer the matter to the Consent and Capacity Board if they desired a review of the wife's refusal to give the requested consent.

The court narrowed the import of its ruling by expressly and logically distinguishing:

• situations where further care is considered medically unnecessary or inappropriate but death is not imminent, such that the termination of treatment does not trigger a requirement for a particular form of palliative care; and
• situations where life support measures are withheld from the outset because they are considered to be of no medical value, in which case the commencement of palliative care does not require a "first step" of ending life support, and there accordingly is nothing to constitute an integral between the two.

The court acknowledged that recourse to the Consent and Capacity Board was not a perfect solution in cases like this, where the substitute decision-maker was abiding by previous instructions given by the incapable person, thereby tying the Board's hands and effectively ending the matter. However, that "was the legislature's will". Moreover, the system generally had worked well, and such cases were uncommon.

The court doubted that its interpretation would "open the floodgates" and deluge intensive care units with patients without hope of improvement who nevertheless required life-sustaining measures to survive. If and when that happened, it trusted that the legislature would review the situation.

5. Elgner v. Elgner, 2011 ONCA 483, (Cronk, Gillese and MacFarland JJ.A.), June 29, 2011

In a case involving "a significant constitutional challenge based on the doctrine of paramountcy", the Court of Appeal decided to part company with lower Ontario court decisions and the appellate courts in British Columbia, Saskatchewan and Quebec and hold that interim spousal orders under the Divorce Act can be appealed only with leave, and not as of right.

The underlying facts were straightforward and not unusual. A couple separated after many years of marriage, divorce proceedings were commenced, and the husband was ordered to pay interim spousal support. The husband wanted to appeal that interim order. Given the legal uncertainties described below, he moved to file a notice of appeal as of right or, if leave to appeal was required, that leave be granted.

The husband's motion was dismissed at first instance. He then moved in the Divisional Court only for review of that part of the dismissal relating to his request for an order permitting him to file his appeal as of right. A majority of the Divisional Court dismissed the motion, holding that leave to appeal the interim order was required, based on its interpretation of the relevant legislation. A minority of the Divisional Court concurred in the result but not the reasons. The husband pursued a further appeal to the Court of Appeal, with leave granted by the court. In response to the required notice of constitutional question, the Attorney General for Ontario intervened as of right.

Argument in support of interim support orders being appealable as of right included the following:

• Subsection 21(1) of the Divorce Act provides, with two exceptions not applicable to the case, that "an appeal lies to the appellate court from any judgment or order, whether final or interim, rendered or made by a court under this Act". The language of the subsection is clear and unambiguous.
• Although s.21(6) of the same legislation indicated that such appeals were to be "asserted, heard and decided according to the ordinary procedure governing appeals to the appellate court from the court rendering the judgment or making the order being appealed", this was prefaced by the words "Except as otherwise provided by this Act", so as to include the provisions of s.21(1) suggesting an appeal as of right for final and interim orders. Moreover, a right of appeal is substantive, and not a matter of procedure.

• A right to apply for a right to appeal is not a right of appeal.
• As the Divorce Act is federal legislation, that right is paramount over s.19(1)(b) of the province's Courts of Justice Act, which requires leave to appeal from interlocutory orders made by judges of the Superior Court of Justice;
• Admittedly sound policy considerations (e.g., discouraging additional expense, emotional anguish and delay in family law matters) should not affect the court's interpretation of s.21 of the Divorce Act, if Parliament nevertheless granted an absolute right of appeal.
• Ontario lower court decisions and the courts of appeal from several other provinces (listed above) all have held that leave is not required to appeal interim orders made under the Divorce Act.
• A decision of the Supreme Court of Canada (Kelvin Energy) had held that wording similar to that in s.21(1) of the Divorce Act gave an absolute right of appeal.

Argument in support of appeals from interim support orders being permitted only with leave included the following:

• Subsection 21(1) of the Divorce Act had to be read in context with s.21(6) of the same legislation and, as noted above, this was a direction by Parliament that appeal rights extended by the Divorce Act be processed by way of each province's "ordinary procedure governing appeals".
• When read in context, s.19(1) of the Courts of Justice Act is not inconsistent with s.21 of the Divorce Act. The former does not take away a substantive right of appeal, but merely sets out the procedure for asserting and enforcing that right.
• There accordingly is no conflict between the provisions of the federal Divorce Act and the province's Courts of Justice Act requiring resolution by application of the doctrine of federal paramountcy.
• Sound policy objectives favour application of a leave requirement in such matters, in order to discourage appeals from interim orders in family law matters. A court "gatekeeper" function in this context is increasingly necessary and acceptable to prevent those with deeper pockets or the inclination and ability to argue motions and appeals from wearing down opponents.

Acknowledging that there was "no easy answer" to the dispute, the Court of Appeal sided with the latter arguments and held that, in Ontario at least, appeals from interim orders made pursuant to the Divorce Act require leave to appeal.

In doing so, the Court placed particular emphasis on the need to read s.21(1) in context; a context which included the provisions of s.21(6), which in turn eliminated any inconsistency between the federal and provincial legislation and thereby any room/need for application of the doctrine of paramountcy.

Moreover, since Ontario's leave requirement for appeals from interlocutory orders was the "ordinary procedure" in place when the relevant Divorce Act provisions were enacted, one could assume Parliament was aware of the situation but chose not to insert a provision expressly excluding the leave requirement. To the contrary, other provisions of the Divorce Act (in s.25) reinforced the view that Parliament intended to subject any Divorce Act rights of appeal to the procedural rules enacted by the provinces.

Pursuant to the modern approach to statutory interpretation, it also was entirely appropriate to consider whether an interpretation would further the legislative objects of the Divorce Act, the legislative history of which confirmed its design as remedial legislation to simplify divorce proceedings by making them less expensive and more timely.

The Supreme Court's decision in Kelvin Energy was distinguishable because the underlying appeal right in that case had no provisions comparable to s.21(6) of the Divorce Act.

The appellate decisions from other provinces also were found to have "limited value", as they apparently had not considered the relationship between ss. 21(1), 21(6) and 25 of the Divorce Act, or the requisite constitutional analysis.

Whether this decision will receive consideration at a higher level, or whether other provinces will adopt or be made to adopt the approach in Ontario, remains to be seen. Cross-country variation may simply be a result of s.21(6) of the Divorce Act. For the time being, the practical effect is that need for leave to appeal interim orders under the federal Divorce Act depends on where one lives in the country.

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