Canada: Top 5 Civil Appeals From The Court Of Appeal (February 2014)

Last Updated: March 11 2014
Article by Jason Squire
  1. Benedict v. Ohwistha Capital Corporation, 2014 ONCA 80 (Feldman, MacFarland and Strathy JJ.A.), January 29, 2014

  2. Bombardier Inc. v. AS Estonian Air,2014 ONCA 41 (Weiler, Rouleau and Strathy JJ.A.), January 17, 2014

  3. Ontario (Labour) v. Flex-N-Gate Canada Company, 2014 ONCA 53 (Laskin, Tulloch and Strathy JJ.A.), January 23, 2014

  4. Shoppers Drug Mart Inc. v. 6470360 Canada Inc. (Energyshop Consulting Inc./Powerhouse Energy Management Inc.),2014 ONCA 85 (Goudge, Watt and Pepall JJ.A.), January 31, 2014

  5. TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1 (Cronk, Blair and Strathy JJ.A.), January 2, 2014

1.  Benedict v. Ohwistha Capital Corporation, 2014 ONCA 80 (Feldman, MacFarland and Strathy JJ.A.), January 29, 2014

In this appeal, the Court considered the difficult issue of using personal property on a reserve as security for a loan for an aboriginal business.  Section 89(1) of the Indian Act prohibits an "Indian," as defined in that statute, from granting security on real or personal property on reserve, except to another Indian. Section 89(2) allows a person who has sold personal property to an Indian, but retained the right to possession, to exercise rights against the chattel even if it is located on the reserve. In Benedict, the Court of Appeal considered the intersection of these provisions.

The appellant, Ohwistha Capital Corporation ("OCC"), is an Aboriginal Capital Corporation, which provides development loans to aboriginal-owned businesses. Although its head office is located on the Akwesasne Reserve, the corporation is not an "Indian" as defined in the Indian Act.  The respondent Benedict, an Indian living on Akwesasne Reserve, received funding from OCC of $125,000 for the purpose of his fish hatchery business.

In order to circumvent the restriction in s. 89(1), the parties structured the transaction as a conditional sale of chattels, whereby Benedict sold used farm equipment to OCC through Oakes, an Indian living on the reserve and an employee of OCC, who then sold them back to Benedict by conditional sale. Under the guise of paying for the equipment, OCC loaned Benedict the $125,000.

Benedict went bankrupt and OCC seized the chattels. Benedict claimed that OCC had no right to do so, pursuant to s. 89(1) of the Act. The trial judge agreed, finding OCC liable for conversion.

Writing for the Court, Feldman J.A. identified two issues:

  1. Is it a violation of s. 89(1) of the Indian Act to structure a transaction which effectively grants security over existing chattels that are on the reserve, so that the transaction complies with s. 89(2)?

  2. If not, does this transaction comply with s. 89(2)?

Feldman J.A. noted the purpose of these provisions: to protect aboriginals from losing their land or their chattels on the reserve to non-aboriginals. In McDiarmid Lumber v. God's Lake First Nation, 2006 SCC 58, Chief Justice McLachlin discussed these provisions as well as their consequences. McLachlin C.J. held that they should be interpreted narrowly, referring to the 1996 Royal Commission on Aboriginal Peoples, which noted the difficulty for aboriginal persons to obtain credit because lenders were unable to secure loans using reserve lands or chattels located on reserve lands. This created "a significant deterrent to financing business activity on-reserve."

Feldman J.A. recognized that these provisions are both paternalistic and "potentially beneficial." In this context, she presented two options: the Court could apply the God's Lake approach, interpreting s. 89(2) in such a way that would allow loans to be made using on-reserve chattels as security by way of a conditional sale, or it could ensure that the purpose of s. 89(1) - to protect aboriginals from being exploited by non-aboriginals and losing their on-reserve property - is not undermined.

Feldman J.A. noted that Benedict received a notional payment for his equipment, and then notionally bought it back. Because the payments were notional, the transaction must be as well. She concluded that the trial judge correctly described the sales as "pure fiction."

Feldman J.A. suggested that while it might be appropriate to interpret s. 89(2) so as to minimize its restrictive effect, the Court could not do so when the transaction was nothing more than a sham. To do so would undermine the purpose of the statute.

2.  Bombardier Inc. v. AS Estonian Air, 2014 ONCA 41 (Weiler, Rouleau and Strathy JJ.A.), January 17, 2014

In this brief endorsement, the Court of Appeal addressed the "commercial activity" exception in the State Immunity Act.

The State Immunity Act, R.S.C. 1985, c. S-18, affords a foreign state immunity from the jurisdiction of Canadian courts. Section 5 of the statute, however, provides an exception to that rule, submitting a foreign state to Canadian jurisdiction "in any proceedings that relate to any commercial activity of the foreign state." "Commercial activity" is defined in the Act as "any particular transaction, act or conduct or any regular course of conduct that by reason of its nature is of a commercial character."

The appellant, Bombardier Inc., alleged that the Republic of Estonia induced AS Estonian Air to breach their contract. It argued that the Republic, which owns ninety percent of the shares of the airline, engaged in activity that brought it within the "commercial activity" exception to the Act. Morgan J. of the Superior Court of Justice found that Bombardier failed to demonstrate that the Republic's actions intruded into the management sphere of the operation of the airline. He concluded the Estonia's activities were sovereign in purpose and nature and did not cross the line into management.

The Court of Appeal noted that the party seeking to overcome the presumption of sovereign immunity bears the burden of proof. Moreover, in attempting to invoke the commercial activity exception, it cannot simply plead that facts underlying a cause of action are commercial activity. As the Supreme Court held in Schreiber v. Canada (Attorney General), 2002 SCC 62, [2002] 3 S.C.R. 269, the party seeking to bring a foreign government before a Canadian court must provide sufficient evidence to allow the court to determine if the state engaged in commercial activity and if the proceedings relate to that activity. The court need not evaluate the merits of the cause of action; it will, however, engage in a "merits-based analysis" of the record.

The Court explained that the Republic cannot be deemed to be engaged in commercial activity simply because of its shareholdings in the airline. The appellant must establish something more.

The Court found that the motion judge's conclusions - that the Republic's activities were "sovereign in both purpose and nature" and did not veer into the management sphere - were supported by the evidence, which included affidavits from high level officers of both the airline and the Republic. The motion judge found that the Republic's activities were restricted to shareholder oversight and "the furtherance of governmental objectives", and concluded that there was no interference with airline management or governance, and no involvement in the airline's decision to cease negotiations with the appellant and purchase aircraft from another company.  The Court of Appeal held that those conclusions were entitled to deference.

Moreover, the Court was not satisfied that evidence provided by the appellant was sufficient to refute these findings. While it demonstrated that the Republic may have encouraged the airline to consider and evaluate bids from competing aircraft suppliers, the appellant failed to establish the kind of activity envisioned by the statute.

3.  Ontario (Labour) v. Flex-N-Gate Canada Company, 2014 ONCA 53 (Laskin, Tulloch and Strathy JJ.A.), January 23, 2014

In this case, the Court considered whether "post offence conduct," in this case, taking corrective action to comply with the Occupational Health and Safety Act, should be taken into account when imposing fines.

The respondent, Flex-N-Gate, breached two provisions of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 ("OHSA"), resulting in an accident at its auto parts factory in Tecumseh, Ontario. Following a trial, a Justice of the Peace fined the company $50,000, $25,000 for each offence. On appeal to the Ontario Court of Justice, the judge dismissed the conviction appeal but ordered that the fines be paid concurrently because the company had taken corrective action to comply with the OHSA after it was investigated and issued compliance orders by the Ministry of Labour.

The provincial Crown was granted leave to appeal on two issues: (i) whether an employer's corrective action can be a mitigating factor on sentence and (ii) whether the court has jurisdiction to impose concurrent fines when more than one provision of the OHSA is breached.

Writing for the Court of Appeal, Laskin J.A. noted that, once confronted with the Ministry's compliance and work stop orders, the respondent could only appeal them to the Ontario Labour Relations Board or comply with them. Non-compliance with an order is itself an offence under the statute. When Flex-N-Gate took corrective action to make its workplace safer, it was therefore not "doing the right thing", as suggested by the appeal court judge, but merely doing what it was required to do under the law.

In light of this fact, Laskin J.A. held that affording the court discretion to treat an employer's post-offence compliance as a mitigating factor on sentence - essentially rewarding the employer for compliance - would undermine the purpose and principles of the OHSA.

Citing the decision of the Court in R. v. Ellis-Don Ltd. (1990), 1 O.R. (3d) 193 (C.A.), Laskin J.A. noted that the objective of the statute is the prevention of workplace accidents. The health and safety of workers is protected when employers assume responsibility for their well-being and voluntarily implement procedures designed to prevent accidents from occurring. Rewarding an employer for taking corrective action only in response to an order removes any incentive for an employer to take these actions prior to an accident, undermining the purpose of the legislation. 

Laskin J.A. went on to explain that rewarding an employer for post-offence compliance also interferes with the deterrent aspect of sentences under the OHSA. As the Court held in R. v. Cotton Felts Ltd. (1982), 2 C.C.C. (3d) 287 (Ont. C.A.), deterrence is the most important principle guiding sentencing for offences for breaches of the statute. When statutorily required compliance is rewarded on sentence, this principle is thwarted and employers are actually provided with an incentive to postpone compliance until after an accident occurs.

Laskin J.A. found support for his conclusion in the analogous area of environmental law. He noted that in the case of environmental offences, sentencing courts have rejected the notion that corrective action taken following an offence ought to be a mitigating factor. In fact, the Environmental Protection Act, R.S.O. 1990, c. E.19 ("EPA"), expressly prohibits courts from treating compliance with orders issued under its authority as a mitigating factor on sentencing. Laskin J.A. held that the same principle should apply to sentencing under the OHSA. Regulatory offences, like breaches of the EPA or the OHSA, turn on the result of the conduct, not the intent of the offender. Therefore, while a criminal offender may be rewarded on sentencing for "doing the right thing" following a crime, regulatory offenders ought not to be similarly rewarded for simply complying with their statutory obligations.

Turning to the appeal court judge's imposition of concurrent fines for two separate breaches of the OHSA, Laskin J.A. noted that the statute is silent on the issue and found no guidance in the Provincial Offences Act or the Criminal Code. However, the Court held in R. v. Ward (1980), 56 C.C.C. (2d) 15 (Ont. C.A.) that a court has no authority to impose concurrent fines; it must order a separate fine for each offense, ensuring that the overall fine is appropriate. Laskin J.A. held that this principle ought to apply to OHSA proceedings.

The Court allowed the appeal, set aside the order of the appeal court judge and reinstated the fines ordered by the Justice of the Peace. 

4.  Shoppers Drug Mart Inc. v. 6470360 Canada Inc. (Energyshop Consulting Inc./Powerhouse Energy Management Inc.), 2014 ONCA 85 (Goudge, Watt and Pepall JJ.A.), January 31, 2014

In this decision, the Court of Appeal "pierced the corporate veil" to find personal liability of a sole officer and director, whose corporation had misappropriated funds.

In 2005, Shoppers Drug Mart negotiated and entered into an agreement with a company known as Energyshop, represented by Michael Wayne Beamish, whereby Energyshop would manage and pay utility bills for Shoppers stores. Although Shoppers believed that it had contracted with a corporation, Energyshop was not, in fact, incorporated; nor was Powerhouse, the name which Energyshop adopted in 2007. Beamish was, however, the sole director, officer and shareholder of a numbered company - 6470360 Canada Inc. - which he incorporated shortly after entering into the agreement.

Shoppers was unaware of the existence of the numbered company, but it was this company that collected and organized the utility bills and sent a remittance summary to Shoppers, outlining the amounts it owed for utilities, along with a processing fee for its services. Shoppers then transferred the funds to a clearing account held jointly by the company and Beamish, from which the bills were paid, subject to Beamish's sign-off.

In 2009, after being alerted by an anonymous source that funds it paid into the clearing account were being used for purposes other than the payment of its utility bills, Shoppers terminated the agreement. Pursuant to a transition agreement, the parties attempted to reconcile their accounts and agreed that the numbered company would cease paying any utility bills on Shoppers' behalf. When it began receiving default notices from utility providers in respect of outstanding invoices, Shoppers commenced an action to recover its funds. The company and Beamish consented to an order that all funds remaining in its clearing account and jointly held operating account be paid to Shoppers.

Shoppers then brought a motion for summary judgment against Energyshop and Beamish, seeking payment of the remaining funds. Beamish brought motions under Rules 20 and 21 to dismiss the action against him personally.

The motions judge awarded Shoppers summary judgment in the amount of $2,236,585.14 against Energyshop but dismissed its claim against Beamish. He granted Beamish's request for summary judgment and dismissed Shoppers' claim against him, but awarded costs to Shoppers against the company and Beamish on a joint and several basis. He also dismissed Beamish's Rule 21 motion which claimed that Shoppers' action against him disclosed no reasonable cause of action.

Shoppers appealed the dismissal of its summary judgment motion and action against Beamish in his personal capacity. Energyshop and Beamish requested that the order granting summary judgment against the company be set aside along with the costs order against Beamish and the dismissal of Beamish's Rule 21 motion.

Writing for the Court of Appeal, Pepall J.A. rejected Shoppers' claim that the motions judge erred in finding that Beamish was not personally liable pursuant to s. 14 of the Canada Business Corporations Act, R.S.C., 1985, c. C-44. That provision stipulates that a person who enters into a contract on behalf of a non-existent corporation is personally bound by the contract, but that if a corporation adopts the contract within a reasonable time, the individual is released from liability and the corporation is bound. Pepall J.A. explained that formal adoption is not required; it is enough for the corporation to demonstrate its intent to be bound through its conduct. The motion judge found that the numbered company carried out the agreement by collecting utility bills, sending remittance summaries to Shoppers and then paying the bills; through its conduct, it adopted the contract and signified its intention to be bound. 

Pepall J.A. did, however, agree with Shoppers that the motions judge erred in finding that Beamish had not been unjustly enriched by the misappropriation and that the corporate veil should not be pierced. The motions judge ought to have referred to 642947 Ontario Ltd. v. Fleischer (2001), 56 O.R. (3d) 417 (C.A), which is the proper test to apply to piercing the corporate veil. Fleischer stands for the principle that the corporate veil can be pierced if those in control of the corporation "expressly direct a wrongful act to be done." She noted the motions judge's findings: Beamish was the sole director, officer and shareholder of the numbered company which misappropriated funds that belonged to Shoppers, and the numbered company benefitted from this misappropriation as it transferred these funds to its operating account. In Pepall J.A.'s view, it was clear that Beamish was the directing mind of the company and caused the misappropriation and the ensuing unjust enrichment. He had sole signing authority over the accounts and authorized the transfer of the funds to the operating account, which he held jointly with a company of which he was the sole shareholder.

Pepall J.A. concluded that Beamish "expressly directed and caused the wrongful act" and that, applying the correct test, the corporate veil should be pierced. The main appeal was allowed, the order dismissing the action against Beamish set aside, and an order substituted, granting Shoppers judgment against Beamish personally.

5. TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1 (Cronk, Blair and Strathy JJ.A.), January 2, 2014

In its first decision of 2014, the Court of Appeal weighed in on a case between a Brampton lighting manufacturer and a nearby trucking business, confirming liability for nuisance, but ordering a new assessment of damages.

TMS Lighting sued the respondents, KJS Transport and its manager, Kulwant Singh, in nuisance and trespass. TMS alleged that dust generated by KJS's trucking operations disrupted its lighting manufacturing business, and sought compensation for various losses, including for an alleged loss of productivity caused by the dust.

The trial judge held the corporate appellants liable to the respondents in both nuisance and trespass and awarded damages to the respondents for loss of productivity and certain costs associated with the repair of lighting fixtures damaged by the dust. He held Singh liable for the trespass damages.

The appellants argued before the Court of Appeal that the trial judge erred in his nuisance analysis by finding that their interference with the respondents' use and enjoyment of their lands was unreasonable. They also claimed that the trial judge erred in his assessment of damages.

Writing for the Court, Cronk J.A. noted that the trial judge correctly identified the two-part test for establishing private nuisance and assessing the reasonableness of unauthorized interference, as set out in Antim Truck Centre Ltd. v. Ontario (Transportation), 2011 ONCA 419, aff'd 2013 SCC 13. Antim stands for the principle that private nuisance involves the interference of a party's use or enjoyment of land that is both "substantial" and "unreasonable." The Supreme Court further clarified that in assessing the reasonableness of the interference, the court must consider all the relevant circumstances, balancing "the gravity of the harm against of the utility of the defendant's conduct."

The appellants accepted the trial judge's finding that their interference was substantial, but took issue with his conclusion that is was unreasonable. Cronk J.A., however, found no error in the application of the Antim test and the finding that the interference was unreasonable. Cronk J.A. noted that the trial judge's finding was based on several factors, in accordance with Antim: the incompatibility of the dust generated on the appellants' property with the character of the neighbourhood in which the parties' businesses are located, the nature of the appellants' conduct and the sensitivity of TMS's business to damage from dust. The appellants' challenge turned on the last factor. They argued that the trial judge ought to have given greater consideration to the respondents' "abnormal sensitivity" to dust. Cronk J.A. rejected this claim, finding that the trial judge's reasons demonstrated his appreciation of this issue. 

On the matter of the trial judge's award of damages for lost productivity, the appellants claimed that he made a number of errors. They argued that he erred by failing to consider whether the respondents established lost productivity damages at trial, either in nuisance or trespass, as distinct from proving how such damages could be quantified, and by failing to properly assess these damages. The appellants submitted that only nominal damages, if any, should be awarded to TMS for lost productivity due to their nuisance and trespass.

After a thorough consideration of the respondents' theory of lost productivity, the trial judge's findings concerning that theory, and his ultimate approach to the quantification of lost productivity damages, Cronk J.A. found that, having correctly rejected the respondents' theory for the calculation of lost productivity damages, the trial judge failed to find a "reasonable and reliable basis" for quantifying them. The trial judge's formula for the calculation of lost productivity damages, based on his estimate of time spent by TMS staff to address the dust problems caused by the appellants, was flawed in several respects. There was no evidentiary support for key aspects of his calculations, nor were the appellants given an opportunity to challenge the quantification approach. These difficulties compromised the fairness of the trial. 

Cronk J.A. concluded that on the record and in light of the manner in which the trial judge quantified lost productivity damages, the awards were unsustainable. Nonetheless, she dismissed the appellants' argument that because the respondents' theory of damages was rejected at trial and because the trial judge's approach for quantification of lost productivity damages was flawed, any award of damages for lost productivity should be nominal at most. Although Martin v. Goldfarb, [1998] O.J. No. 3403, 112 O.A.C. 138, stands for the principle that, where an absence of evidence makes it impossible to assess damages, a plaintiff may be entitled to only nominal damages, it is also the case that where the plaintiff has proven a significant loss and the trial judge errs in the assessment of damages, the interests of justice may necessitate a new trial on damages. The trial judge found that the respondents suffered a sustained substantial and unreasonable interference with the use and enjoyment of their lands. This was, in Cronk J.A.'s view, "a real wrong, which caused real loss", and they were entitled to compensation.

The Court allowed the appeal in part, setting aside the judgment relating to lost productivity damages and ordering a new trial limited to the assessment of those damages both in nuisance and trespass.

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.

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