Canada: Top 5 Civil Appeals From The Court Of Appeal (October 2012)

Last Updated: October 24 2012
Article by Andrew C. Murray

1.  Pastore v. Aviva Canada Inc ., 2012 ONCA 642 (Rosenberg and Feldman, JJ.A and Swinton, J. (ad hoc)), September 27, 2012

2.  Doobay v. Diamond, 2012 ONCA 580 (Lang, Epstein and Hoy, JJ.A.), September 7, 2012

3.  Aragona v. Aragona, 2012 ONCA 639 (Cronk, Epstein and Pepall, JJ.A.), September 26, 2012

4.  Schembri v. Way, 2012 ONCA 620 (Feldman and Hoy, JJ.A and Spence J. (ad hoc)), September 20, 2012

5.  Siena-Foods Limited v. Old Republic Insurance Company of Canada, 2012 ONCA 583 (Laskin, Sharpe and Epstein, JJ.A.), September 10, 2012

 1.  Pastore v. Aviva Canada Inc., 2012 ONCA 642 (Rosenberg and Feldman, JJ.A and Swinton, J. (ad hoc)), September 27, 2012

 This case is an important one to the entire personal injury and insurance law bar, and to every Ontarian; it applies to anyone injured in an automobile accident, whether as a pedestrian, passenger, or driver.

 Ontario motorists carry automobile insurance under a mandatory private auto insurance regime, in which certain no-fault benefits are provided under a standard government pre-approved auto policy.  Automobile accident victims are entitled to certain no-fault benefits, also known as "statutory accident benefits," regardless of fault.  Individuals with the most serious of injuries are eligible to receive an enhanced level of accident benefits. The term used in the Statutory Accident Benefits Schedule ("SABS") to distinguish those who are eligible for the enhanced benefits, from other accident victims, is "catastrophic impairment".  In Pastore, Feldman J.A. clarified one of the several tests that define who suffers a "catastrophic impairment". 

 While there are several different ways that one can be found to suffer from a catastrophic impairment, Pastore deals with the test applicable for "mental or behavioural disorders".  Ms. Pastore was a pedestrian who was hit by a car while crossing the street.  An assessment of her accident-related mental or behavioural disorders was carried out by reference to the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th Edition, as mandated by the SABS.  The Guides direct the assessment of functioning in four categories of functional limitation:

  1. Activities of daily living;
  2. Social functioning;
  3. Concentration, persistence, and pace;  and
  4. Deterioration or decompensation in work or work-like settings.

Ms. Pastore's initial application for a catastrophic impairment designation was denied by Aviva Canada.  The dispute was heard before an arbitrator of the Financial Services Commission of Ontario.  Her application was accepted by the arbitrator.

 One of the issues raised by Aviva Canada at arbitration was whether the test required an overall assessment of "marked impairment" or "extreme impairment" in all four of the categories described above, or whether a marked/extreme impairment in a single category alone was sufficient.  The arbitrator was satisfied that one marked impairment alone was enough to comply with the Guides' approach to catastrophic impairment.

 On appeal, the Court of Appeal addressed the appropriate standard of review.  Following the decision of the Supreme Court in Dunsmuir v. New Brunswick, the court noted that the Financial Services Commission of Ontario, as a specialised tribunal, must be accorded deference.  As such, the correct standard of review was the reasonableness standard.  The Court of Appeal determined that it was a reasonable initial decision to find that a single category of impairment that was either marked or extreme was sufficient to meet the test for catastrophic impairment.  Ms. Pastore was, consequently, found to be catastrophically impaired. 

 The Court of Appeal has affirmed the specialized knowledge of arbitrators at the Financial Services Commission of Ontario, the need for a broad, liberal, and inclusive approach when determining access to the SABS, and clarified the previous test for assessing those suffering from mental and behavioural disorders.  This decision lends clarity to a long-debated area of personal injury law.

2.  Doobay v. Diamond, 2012 ONCA 580 (Lang, Epstein and Hoy, JJ.A.), September 7, 2012

 In this appeal, Epstein J.A., for the Court of Appeal, answers the question "how sharp are the teeth in a contempt of court order?"

Anthony Diamond refused to answer any questions at an Examination in Aid of Execution.  A Master's order compelled him to re-attend to answer all proper questions, but he again refused to answer a substantial number of the required questions.  On consent, a further Master's order required Diamond to provide written answers to all but one of the outstanding questions that he had been asked (406 questions in total).  Anthony Diamond failed to provide a response by the deadline imposed in the Master's order, and his creditor was not content with the answers, bringing a contempt motion.

 Following a three-day hearing which concluded that all but 70 answers to questions were largely unresponsive and must be considered to be a deliberate attempt to obfuscate the issue, Mr. Diamond was sentenced to 21 days in prison and had a fine imposed against him of $20,000.00.  He continued to disobey the court orders and a further contempt motion was brought, resulting in an enhanced sentence for contempt of 42 days incarceration, and an additional fine of $40,000.00.

 Some of what was argued before the Court of Appeal was fact-specific, but the decision leaves no doubt about the appropriateness of the order below.  One interesting argument was that of double jeopardy because of the two separate orders of imprisonment each with their own monetary penalty.  In the words of the court, "the coercive tool of civil contempt must have teeth".  The double jeopardy ground of appeal was rejected, along with the other grounds.  The appeal was dismissed.  The teeth were sharp indeed.

 3.  Aragona v. Aragona, 2012 ONCA 639 (Cronk, Epstein and Pepall, JJ.A.), September 26, 2012

 This appeal considered the conduct of a guardian of property, specifically a son looking after the property of his mother who suffered from Alzheimer's disease.

 In the course of dealing with a passing of an account, the application judge found that Beniamino Aragona transferred, without convincing explanation, a significant sum of money from his mother's investment account into his own account.  At that stage, he was ordered to reimburse the Estate a payment of $132,628.00.  There was also a finding that unjustified legal expenses in the management of his mother's property had been incurred, which were also ordered to be reimbursed.  Beniamino Aragona was found to be disentitled to compensation for his work as a guardian of his mother's property given his conduct, and was ordered to personally pay the costs of the application himself.  All aspects of the application order were appealed.

The Court of Appeal rejected an initial argument that Beniamino Aragona did not receive a fair hearing.  This was largely a factual analysis rather than a legal analysis.  The court was mindful that the Substitute Decisions Act, 1992, S.O. 1992, c.30 specifically provides the guardian of property with a fiduciary obligation to carry out his obligations honestly and with due care and attention.  A core feature of this obligation is the duty to be in a position at all times to prove the legitimacy of disbursements made on behalf of an estate.  Beniamino Aragona's history demonstrated mismanagement and a blatant disregard of his obligations as a guardian.

The sufficiency of the application judge's reasons was also attacked, but this argument was found to have no merit given the reasons in support of the decision to order repayment of the $132,628.00 amount to the Estate.  Citing Law Society of Upper Canada v. Neinstein, 2010, 317 D.L.R. (4th) 419, the court concluded that, when the adequacy of reasons is raised as a ground of appeal, the court should focus on whether the reasons explain what was decided and why that decision was made.  Ultimately, the reasons did permit reasonable appellate review; no effect was given to that ground of appeal.

Given the strong language used to describe Beniamino Aragona's conduct, which the application judge found to be "shocking" as "he has literally helped himself to many thousands of dollars from his mother's Estate at a time when his mother had Alzheimer's and was unable to look after her own affairs", the Court of Appeal upheld the order depriving him of compensation for his guardianship responsibilities.

4.  Schembri v. Way, 2012 ONCA 620 (Feldman and Hoy, JJ.A and Spence J. (ad hoc)), September 20, 2012

This decision arises from a pleadings motion and offers yet another look at the circumstances when a motions judge should  permit amendments to a Statement of Claim to add a new remedy and new parties.  At first instance, a new remedy, being an oppression claim, was rejected by the motion judge, and leave to add two new parties was also denied.

The underlying subject matter of the claim related to allegations that the defendants fraudulently deprived the plaintiffs of profits under a joint venture agreement.  After the initial action was commenced, the plaintiffs later sought to add a number of additional parties, based on new information gleaned from cross-examinations on affidavit material (relating to the appointment of a receiver and manager).  The allegation was that these new parties improperly received money from the joint venture.  As part of the oppression remedy, the plaintiffs sought to add a claim for a redistribution of certain shares.

The Court of Appeal referred to Anderson Consulting v. Canada (Attorney General), (2001), [2002] 150 O.A.C. 177, noting that the law is clear that, unless the facts alleged are based on assumptive or speculative conclusions that are incapable of proof, they must be accepted as proven, and the Court should not look beyond the pleadings to determine whether the action can proceed.  The Court of Appeal allowed the appeal with respect to the addition of the new defendant on the issues of conspiracy to injure and inducing breach of contract.

Important to the Court of Appeal's analysis was the fact that the new parties which were sought to be added were being brought into the action within the existing limitation period, such that it would have been possible, in any event, to simply institute an entirely new action and then have the two actions joined together.

With respect to the oppression remedy, the Court of Appeal felt it best to leave to the trial judge to determine what was appropriate based on the evidence and the submissions at the time of trial, noting that there was little merit in attempting to fetter the discretion of the trial judge at the pleadings stage, having regard for the broad language of Rule 26 of the Rules of Civil Procedure and the case law interpreting that Rule.

5.  Siena-Foods Limited v. Old Republic Insurance Company of Canada, 2012 ONCA 583 (Laskin, Sharpe and Epstein, JJ.A.), September 10, 2012

This decision illustrates, once again, how complicated and confusing automobile insurance law can be in Ontario.  Siena rented a truck from Ryder Canada to transport a machine.  In transit, there was a head-on collision with another vehicle, which damaged the machine.  Siena sought compensation for the damage from Ryder's insurer, the Old Republic.  Old Republic denied coverage, which denial was upheld by a motion judge.

On appeal, Siena's main contention was that the motion judge failed to give effect to the Direct Compensation-Property Damage provisions in the standard Ontario Automobile Policy, which are provisions authorized by s.263 of the Insurance Act, R.S.O. 1990, c.I-8.  That argument was accepted by Laskin J.A. writing for the court.

Laskin J.A. analyzed the provisions of s. 247 of the Insurance Act located in the part of the statute under the heading of "Motor Vehicle Liability Policies".  It permits an insurer to exclude liability coverage for loss or damage to property carried in the insured vehicle.

Section 3.5.1 of the Ontario Automobile Policy tracks s. 247(b) of the Insurance Act, stating that an insurer will not cover claims for damage to property carried in the insured's vehicle.  What the motion judge did not consider, unlike Laskin J.A., was that this provision did not apply to the Siena claim because s.3.5.1 is found in the section of the Auto Policy dealing with liability coverage, meaning it has nothing to do with Siena's claim for damage to its own property.

Instead, the applicable statutory provision, when dealing with one's own property, is s. 263 of the Insurance Act.  As noted by the Court, this section replaced the tort system and subrogation for property damage claims by imposing a direct compensation regime for property claims through auto insurance, with the desire of reducing transaction costs.  Under s.263 and the companion provisions of the Auto Policy, the insured, Ryder Trucks, would be entitled to coverage from its insurer, Old Republic, for damage to its truck and contents.  The Court was satisfied that the terms of the policy between Ryder and Old Republic also, therefore, extended to a lessee, Siena, who had rented the truck.  Essentially, Siena, as a lessee, must be treated as an insured and Old Republic must be its insurer, for the purposes of Siena's property damage claim. Sienna was entitled to claim its property losses from Old Republic, to the extent that its driver was not at fault for the accident.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Andrew C. Murray
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.