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

Last Updated: September 24 2014
Article by Kirk F. Stevens

1. Langstaff v. Marson, 2014 ONCA 510 (MacPherson, Watt and Benotto JJ.A.), July 2, 2014

2. Foulidis v. Baker, 2014 ONCA 529 (MacPherson, Watt and Benotto JJ.A.), July 8, 2014 Foulidis v. Ford, 2014 ONCA 530 (MacPherson, Watt and Benotto JJ.A.), July 8, 2014

3. McAteer v. Canada (Attorney General), 2014 ONCA 578 (Weiler, Lauwers and Pardu JJ.A.), August 13, 20014

4. Kaynes v. BP, PLC, 2014 ONCA 580 (Sharpe, Simmons and Benotto JJ.A.), August 14, 2014

5. Baradaran v. Tarion Warranty Corporation, 2014 ONCA 597 (Feldman, Watt and van Rensburg JJ.A.), August 19, 2014

1. Langstaff v. Marson, 2014 ONCA 510 (MacPherson, Watt and Benotto JJ.A.), July 2, 2014

The respondent Langstaff brought an action for damages for sexual abuse committed by his teacher at a Belleville elementary school. The respondent named the teacher, Marson, and the appellant, the Hastings and Prince Edward District School Board, as defendants. Marson, who was convicted of sexual assault, did not defend the action.

The school board agreed that the assault occurred and that the respondent had suffered damages as a result. The only issues at trial were the quantum of damages and whether the school board had been directly negligent or was only vicariously liable for Marson's acts. The jury found that it had been negligent. In a separate ruling, the trial judge found that it was vicariously liable. The jury awarded general, special and punitive damages.

The school board appealed, seeking to admit fresh evidence which it claimed would disclose a reasonable apprehension of bias on the part of the trial judge.

The fresh evidence concerned a near-identical action brought by Mead, another of Marson's former students. During the course of a pre-trial for that action, the judge realized that he knew the plaintiff and his family. As a result, the parties agreed that the pre-trial would not proceed further. The lawyer acting for the school board in both actions then retired, transferring the files to new counsel, Morris. Morris proceeded to defend the lawsuit, but remained unaware that the trial judge was the same judge who presided over the Mead pre-trial and that the pre-trial had been discontinued due to the judge's association with the Mead family. It was only after the verdict had been rendered, when Morris began to prepare for the Mead case, that he learned of these issues and the similarities between the two cases. He testified that had he been aware of these facts prior to the respondent's trial, he would have requested that the trial judge recuse himself.

At issue on appeal was whether the evidence was admissible and whether it disclosed a reasonable apprehension of bias.

Writing for the court, Benotto J.A. noted that the principles governing the admissibility of fresh evidence set out in R. v. Palmer, [1980] 1 S.C.R. 759 do not apply to all cases where new evidence is tendered on appeal. As Doherty J.A. pointed out in R. v. W.W and I.W. (1995), 25 O.R. (3d) 161 (Ont. C.A.), when the proposed evidence raises issues related to the validity of the trial process itself, different considerations apply. Observing that the new evidence sought to be admitted by the appellant dealt with subsequently discovered facts concerning the validity of the trial process, Benotto J.A. held that it ought to be admitted.

On the merits, Benotto J.A. emphasized that the presumption of judicial impartiality, defined by the Supreme Court as "the key to our judicial process", is a strong presumption, grounding public confidence in the integrity of our judicial system. An allegation of bias casts doubt not just on the personal integrity of the judge, but on the administration of justice. The presumption therefore places a heavy burden on anyone who seeks to rebut it.

The threshold for a finding of real or perceived bias is high. As the Supreme Court set out in R. v. S. (R. D.), [1997] 3 S.C.R. 484, the test for rebutting the presumption of impartiality requires not only that the person considering the alleged bias be reasonable but that the apprehension of bias itself must also be reasonable in the circumstances of the case. Benotto J.A. emphasized that the test contemplates a hypothetical observer who is not a party to the litigation.  That person must be informed of all of the facts and must understand all of the relevant circumstances, including the traditions of integrity and impartiality on which the judicial system is based.

Viewing the case through the eyes of this hypothetical reasonable person, Benotto J.A. considered its unique sequence of events. As he succinctly put it, the trial judge gave an opinion on a crucial issue of liability during a pre-trial, but felt sufficiently compromised by his relationship with the plaintiff's family that he recused himself. Shortly thereafter, he rendered a decision in "a mirror-image matter" on the same key issue of liability. That decision, like the earlier one, was favourable to the parties with whom he was associated. A reasonable person considering the circumstances surrounding the case realistically and practically would find that there was an apprehension of bias.

The Court allowed the appeal and ordered a new trial.

2. Foulidis v. Baker, 2014 ONCA 529 (MacPherson, Watt and Benotto JJ.A.), July 8, 2014

Foulidis v. Ford, 2014 ONCA 530 (MacPherson, Watt and Benotto JJ.A.), July 8, 2014

These decisions - arising from two actions for libel relating to statements made by candidates in the 2010 Toronto municipal election - were released concurrently. Both actions failed at trial. George Foulidis, the unsuccessful plaintiff, appealed both judgments.

Foulidis was involved in the management of a family business, the Boardwalk Café, in the Beaches area of Toronto. The restaurant was operated by Tuggs Inc., the Foulidis family company, under a long-term lease with the city. In 2006, Foulidis, on behalf of Tuggs, submitted a proposal for a new and exclusive long-term lease for the business. Some councillors opposed the application because it did not involve an RFP process. Nonetheless, City Council voted to approve the Tuggs proposal. A long period of negotiations followed.

City Council's decision to proceed with the untendered proposal was controversial and attracted media attention. Some suggested that there was a connection between contributions to Ward 32 councillor Sandra Bussin's 2006 election campaign and her support of the Tuggs proposal. In fact, neither Foulidis nor Tuggs made any contributions to Bussin's campaign.

The controversy over the Tuggs proposal continued into the 2010 election year. Bruce Baker, a Beaches resident, ran for council in Ward 32. The Tuggs deal became a focus of his campaign. Rob Ford, as most of the world now knows, ran for Mayor.  

Baker came into possession of a letter written by a William Malamas to a reporter for the Toronto Star. Malamas, who claimed to know George Foulidis personally, alleged that Foulidis had influenced City Hall in exchange for favours in connection with the Boardwalk Café. Under the mistaken belief that the Malamas letter had been delivered to then-Mayor David Miller and several City Councillors, Baker submitted his own letter to the City Clerk, addressed to Miller and certain Councillors, referencing the Malamas allegations.  That letter formed the basis of Foulidis' libel action against Baker.  

At the conclusion of the trial, the judge found that: Baker wrote and published the letter; it referred to Foulidis by name; and, it was defamatory of him. He rejected the defence of responsible communication, and found that portions of the letter were not protected by fair comment. He did find, however, that the letter had been delivered to City Council on an occasion of qualified privilege.  Given the seriousness of the allegations, Baker had a legitimate interest in delivering his letter, and the City Councillors to whom it was addressed had a duty to receive it. Critically, Foulidis failed to prove that Baker had acted with "malice", which would have removed the letter from the protection of qualified privilege. The trial judge found that Baker's dominant motive was not personal gain as a candidate, but rather serving the interests of the public.

Foulidis submitted on appeal that the statements contained in the letter did not give rise to qualified privilege and that Baker's dominant motive was malice, removing the protections of that defence.

Writing for the Court, Watt J.A. agreed with the trial judge that the Baker letter was appropriate to the occasion of qualified privilege. Noting that the privilege attaches to the occasion on which a communication was made as opposed to the communication itself, he observed that the trial judge's finding, that the letter was reasonably appropriate in the context of the circumstances of the occasion when the information was given, was a finding of fact and subject to deference. Moreover, the timing and manner of the communication were reasonably appropriate in the context of the circumstances that existed on the occasion when the information was provided. The letter was not distributed to the media, but was delivered solely to the parties voting on the Tuggs lease, on the day of the vote, and it was kept in confidence.

Watt J.A. also agreed with the trial judge that Foulidis failed to discharge the onus of proving that Baker's dominant motive was malice. There was no record of any ill-will of Baker toward Foulidis; in fact, there was no evidence of any relationship between them at all. Watt J.A. sustained the trial judge's finding that any incidental personal gain Baker might have derived from the letter did not negate qualified privilege. Further, while Baker did not verify the accuracy of Malamas' allegations, he did not assert that they were true, but merely sought an investigation into them, from a small number of decision-makers, and in confidence. Therefore, "the manner in which he communicated his letter, as well as its contents, belied any assertion of malice".

Ford's allegedly libellous statements were made during an interview with the Toronto Sun. Two days following the interview, the Sun published a story about the Tuggs deal entitled "Contract for Beaches eatery 'stinks to high heaven'". The article quoted Ford as saying:

"I can't accuse anyone or I can't pinpoint it, but why do we have to go in camera on the Tuggs deal?" and

"These in-camera meetings, there's more corruption and skullduggery going on in there than I've ever seen in my life."

Foulidis commenced a libel action against Ford, claiming that his words were false and defamatory.

The trial judge explained that in order to establish libel, Foulidis needed to prove that Ford spoke the words at issue and published them to one or more third parties, that they referred to him and that they were defamatory. The first two issues were conceded by Ford, but the trial judge held that Foulidis failed to prove the third and fourth. On the issue of whether Ford's words referred to Foulidis, the trial judge found that they were capable of referring to him but would not lead a reasonable reader to conclude that they did, in fact, refer to him. He further held that Ford's words were not defamatory, finding that the candidate "voiced only a suspicion of corruption which he, immediately and in clear terms, admitted was without factual foundation or insufficient for him to be able to say that anyone had done anything wrong." The reasonable reader would have concluded that the statements did not defame Foulidis, even if he assumed that they referred to him.

Foulidis argued before the Court of Appeal that even though the article did not refer to him by name, the reasonable reader of the Toronto Sun would have known that corruption behind the Tuggs deal meant corruption by him.

MacPherson J.A. rejected this submission, noting that in the brief portion of the interview in which the Tuggs lease was mentioned, Ford referred only to Tuggs or "the Tuggs deal", never to Foulidis. Moreover, the link between the two was tenuous. The interviewer asked:

"The Foulidis deal?", to which Ford replied

"Wha... On the Tuggs?"

That exchange is the full extent of the link between Foulidis and Tuggs, and it was made explicitly by the interviewer. MacPherson J.A. concluded that the target of Ford's criticism was not Foulidis but Tuggs. MacPherson J.A. also noted the trial judge's finding that Foulidis himself failed to prove that he is "either the face of Tuggs, or its alter ego" or that he was the person with management control of the company, or viewed in that way.

MacPherson J.A. further noted that although Ford used strong language, the words "corruption" and "skullduggery" were in reference to in camera meetings at City Council and the role of Council in approving the deal. He also emphasized that he could not accuse anyone.

MacPherson J.A. also rejected Foulidis' claim that the trial judge unduly focused on the words "I can't accuse anyone", and erred in concluding that the statement neutralized the defamatory impact of the words as a whole.  MacPherson J.A. noted that the trial judge thoroughly examined Ford's words in their ordinary meaning and in the context in which they were delivered, before concluding that Ford expressed only a suspicion of corruption, and in reference to the decision-making process at City Council and specifically in camera meetings. Ford's clarification that he could not accuse anyone of corruption explicitly prevented any defamatory meaning. MacPherson J.A. held that these conclusions were open to the trial judge.

Both appeals were dismissed. The Court also dismissed Foulidis' appeal on costs in both cases.

3. McAteer v. Canada (Attorney General), 2014 ONCA 578 (Weiler, Lauwers and Pardu JJ.A.), August 13, 20014

In order to become Canadian citizens, permanent residents of Canada must swear an oath or make an affirmation of allegiance to the Queen. The appellants in this action argued that this requirement violated their rights under the Charter.

Section 24 of the Citizenship Act, R.S.C. 1985, c. C-29 requires a person to swear or affirm that:

[...] I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfill my duties as a Canadian citizen.

The appellants objected specifically to the portion of the oath swearing or affirming allegiance to the Queen. They submitted that it is a violation of their rights under s. 2(a), 2(b) and 15(1) of the Charter, and that the infringement of these rights could not be justified under s.1 of the Charter as a reasonable limit in a free and democratic society.

The application judge found that the oath did not violate the appellants' freedom of religion or equality rights. He did find that there was a violation of the right to freedom of expression but held that it was justified under s. 1.

The appellants appealed the dismissal of their application. The Attorney General of Canada cross-appealed on the finding that the oath violated the appellants' right to freedom of expression.

Weiler J.A. found that the appellants' submissions were wrongly based on a literal "plain meaning" interpretation of the oath which is inconsistent with its history, purpose and intention and is "divorced from Canada's history and evolution as a nation". The meaning of "the Queen" in the oath has changed as Canada has evolved. Applying a purposive approach to the language of the oath, with consideration to Canada's history, it is clear that it is not an oath to the Queen in her personal capacity, but to the Canadian government, of which the Queen is a symbol. The oath demonstrates prospective citizens' willingness to accept the rights and responsibilities of Canadian citizenship and loyalty to our form of government. Viewing it otherwise is, in the words of the application judge, "disconnected from the reality of the Queen's role in Canada today".

Weiler J.A. noted that she could not determine whether the oath was a violation of the appellants' Charter rights based on their misconception of its meaning. As the Supreme Court held in R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555, a "patently incorrect understanding of a provision cannot ground a finding of unconstitutionality."

Applying a purposive approach to her constitutional analysis of the oath, Weiler J.A. held that in referring to the Queen not as an individual, but as a symbol of our form of government, the oath in fact exemplifies the principles of freedom of conscience and religion inscribed in s. 2(a) of the Charter. Weiler J.A. agreed with the application judge that "the purpose of the oath in Canada is the strictly secular one of articulating a commitment to the identity and values of the country." Those values are precisely the ones enshrined in the Charter and represented by our society and head of state. The appellants' claim that the oath violated their equality rights under s. 15 was similarly based on their misconception of its meaning. Under a purposive interpretation of the oath, this claim must also fail.

Weiler J.A. agreed with the application judge's conclusion that the oath violated neither s. 2(a) nor s. 15 of the Charter.

Turning to the cross-appeal, Weiler J.A. recalled the decision in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, in which the Supreme Court held that in considering claims under s. 2(b) of the Charter, the court must determine whether what is at issue is expression, whether its purpose is to compel expression, and whether there is an effect on expression that warrants "constitutional disapprobation". Applying this approach, Weiler J.A. held that the oath was clearly expression, but that its purpose was not to compel expression but rather to obtain a commitment to our form of government. The oath therefore promotes Canadian principles and values, among them freedom of expression. Rather than undermining freedom of expression, the oath in facts amounts to "an affirmation of the societal values and constitutional architecture of this country, which promote and protect expression." Moreover, while the oath has an incidental effect on freedom of expression, constitutional disapprobation was not warranted.

Weiler J.A. concluded that the oath does not infringe on the appellants' right to freedom of expression but that, in any event, such violation was justified under s. 1, in accordance with the application judge's analysis. 

4. Kaynes v. BP, PLC, 2014 ONCA 580 (Sharpe, Simmons and Benotto JJ.A.), August 14, 2014

This jurisdictional dispute arose in connection with a proposed class action against BP, a UK corporation. The plaintiff claimed that before and after its 2010 Deep Water Horizon oil spill in the Gulf of Mexico, the company made misrepresentations in its public disclosures related to the accident and its operations and safety programs, which impacted the price of its shares.

At issue was whether Ontario has or should assert jurisdiction over plaintiff's claim and those of the proposed class members, which included all Canadian residents who acquired BP securities between May 2007 and May 2010, wherever they were purchased. BP conceded that Ontario had jurisdiction over the claims of those class members who purchased their shares on the Toronto Stock Exchange but submitted that there was no real and substantial connection between Ontario and the claims of Canadian residents who, like the plaintiff, purchased their shares on foreign exchanges.

The motion judge dismissed BP's jurisdictional challenge, finding that Ontario has jurisdiction over the claims and declining to stay them on the basis of forum non conveniens.

Writing for the Court of Appeal, Sharpe J.A. agreed with the motion judge that Ontario did have jurisdiction simplicter. He found that the claim was for a tort committed in Ontario, establishing the third presumptive connecting factor set out in Club Resorts Ltd. v. Van Breda, 2012 SCC 17. By releasing a document outside Ontario that it knew it was required to send to Ontario shareholders, BP committed an act with sufficient connection to Ontario to qualify as the commission of a tort in Ontario. This presumptive connecting factor established a real and substantial connection between BP and Ontario, giving Ontario jurisdiction, even though BP lacked a sufficient presence in Ontario to establish either of the first two "presumptive connecting factors".  These first two connecting factors were inapplicable because BP did not own any real or personal property in Canada or carry on business in Canada. Moreover, the plaintiff did not contend that the securities he purchased on the New York Stock Exchange arose from a contract connected with the dispute that was made in Ontario.

Sharpe J.A. disagreed with the motion judge on the issue of forum non conveniens, finding that she failed to consider the principle of comity in assessing the effect of exercising jurisdiction over claims arising from foreign traded securities. Van Breda emphasized the significance of comity in jurisdictional disputes and the goal of facilitating "exchanges and communications between people in different jurisdictions that have different legal systems." Sharpe J.A. held that the motion judge erred in principle in failing to consider the plaintiff's claim in the complete international context of the securities law regimes of Ontario, the United States and the United Kingdom and the trading of BP securities in those jurisdictions. Asserting Ontario jurisdiction over the plaintiff's claim would be inconsistent with the approach taken under both US and UK law with respect to jurisdiction over claims for secondary market misrepresentation. Sharpe J.A. concluded that the principle of comity required the Court to consider to implications of undermining international practices, "particularly in an area such as the securities market where cross-border transactions are routine and the maintenance of an orderly and predictable regime for the resolution of claims is imperative." The principle of comity therefore favoured declining jurisdiction.

Sharpe J.A. held that the motion judge further erred in law with respect to avoiding a multiplicity of proceedings. The US and UK rules governing jurisdiction over claims for secondary market misrepresentation make litigation in multiple jurisdictions over the same claims "inevitable". When one considered the desirability of avoiding a multiplicity of proceedings together with international jurisdictional standards, the principle of avoiding heavily favoured declining jurisdiction. Sharpe J.A. concluded that "[o]rder and fairness will be achieved by adhering to the prevailing international standard tying jurisdiction to the place where the securities were traded and a multiplicity of proceedings involving the same claims or class of claims will be avoided."

Sharpe J.A. concluded that Ontario was clearly not the appropriate forum for hearing the claims of those class members who purchased BP shares on foreign exchanges.

5. Baradaran v. Tarion Warranty Corporation, 2014 ONCA 597 (Feldman, Watt and van Rensburg JJ.A.), August 19, 2014

This appeal is significant because it illustrates the problems that can arise when the justice system encounters unrepresented litigants. The case arose from a protracted dispute over alleged construction defects in a new home.

The unrepresented appellant, Baradaran, purchased a home from Master Custom Homes, a corporation of which Nasseri is a principal. The appellant alleged that there were numerous defects in the home and pursued his complaints through the warranty and claims process under the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31, the mandatory warranty and compensation process administered by Tarion Warranty Corporation.

The appellant later commenced an action against Master, Nasseri and Tarion, seeking general and special damages. His statement of claim referred to Tarion's handling of his complaints and Nasseri's refusal to fix the alleged defects.

On a motion brought by Master, Nasseri and Tarion under Rules 20 and 21 of the Rules of Civil Procedure, the motion judge dismissed the action, finding that it was an attempt to relitigate matters already determined by the Licence Appeal Tribunal and was therefore a collateral attack on the Tribunal's decision and an abuse of process. He held that the decisions of the Tribunal gave rise to issue estoppel and that the action was barred by the doctrine of res judicata. In a second order, resulting from an application by Master and Nasseri under s. 140 of the Courts of Justice Act, R.S.O. 1990, c. C.43, he declared the appellant a vexatious litigant and prohibited him from continuing or commencing any action without leave against Master and Nasseri and from any further action against Tarion and its representatives with respect to the matters determined by the Tribunal. The motion judge also considered and refused a motion by the appellant to amend his statement of claim to add his family members as plaintiffs and expand his claim for damages, but held that if he was wrong in dismissing the action, he would have permitted the amendments to the appellant's own claims.

The appellant successfully appealed both orders, as well as the motion judge's refusal to grant his motion for leave to amend his statement of claim.

Writing for the Court of Appeal, van Rensburg J.A. noted that both orders arose from the motion judge's conclusion that the action was an attempt to relitigate issues that were decided against him by the Tribunal.

Van Rensburg J.A. explained that even if that were the case, proceedings under the Ontario New Home Warranties Plan Act do not necessarily preclude a civil action based on the same facts. Pursuant to Metropolitan Toronto Condominium Corp. No. 1352 v. Newport Beach Development Inc., 2012 ONCA 850, 113 O.R. (3d) 673, the fact that the appellant pursued his claims under the Act and received certain unfavourable decisions - and acknowledged that the defects he complained of in his action were the same ones he addressed through the warranty and compensation scheme - was irrelevant. He was entitled to address his complaints both in the statutory claims process and through a legal action. Van Rensburg J.A. noted that, in any event, the construction defects referred to in the appellant's statement of claim were those which Tarion had deemed warranted. Van Rensburg J.A. noted that Newport Beach was not cited to the motion judge, although it is the leading case on the Act, and that it was the Court of Appeal itself that asked the respondents to address it.

Van Rensburg J. A. concluded that the motion judge erred both in his characterization of the appellant's claims and in interpreting the statutory regime. He wrongly applied the principles of issue estoppel, res judicata and abuse of process, and in dismissing the action on those bases.

Turning to the vexatious litigant order, van Rensburg J.A. noted that the respondents produced evidence to show that the appellant had initiated a plethora of proceedings against other parties. The motion judge, however, acknowledged that this material was not the basis of his order because the context of that material was difficult to grasp. The motion judge's reasons indicated that, like the dismissal of the action, the vexatious litigant order was grounded on the finding that the appellant's claim against the respondents was an attempt to relitigate issues already decided against him. The motion judge erred in reaching that conclusion; without it, the order could not stand even though there was evidence to show that the appellant's conduct was obstreperous and vexatious.

The Court also granted the appellant leave to amend his statement of claim to the extent that the motion judge would have permitted.

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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No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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