Canada: Court Of Appeal Summaries (December 8 –12, 2014)

Last Updated: December 30 2014
Article by John Polyzogopoulos

Happy Friday! Below are summaries of this week's Ontario Court of Appeal civil decisions (non-criminal). This week's topics include, a municipality's statutory duty of care; procedural fairness and the complaint process under the Police Services Act (arising from a G20 Summit arrest); pleadings in negligent medical care cases; and the interpretation and application of PIPEDA in a case involving enforcement of a judgment and a debtor's mortgage information.

Please feel free to share this blog with anyone whom you think would be interested. As always, we welcome your comments and feedback.

Have a nice weekend.

Neely v. MacDonald, 2014 ONCA 874

[Blair, Pepall and Lauwers JJ.A.]

Christopher R. Dunn, for the appellant
Mark Elkin, for the respondents

Keywords: Negligence, Fenn v. Peterborough, Appellate review, Sattva Capital Corp. v. Creston Moly Corp.


The appellant, the Canadian Litigation Counsel, hosted a golf tournament at the Bond Head Golf Resort. The appellant signed a "Special Function Contract" with ClubLink Corporation ULC, which owned the golf course. Sandy Neely attended the tournament. She was the passenger in a golf cart driven by the defendant Kelly MacDonald, another guest. Ms. MacDonald lost control of the gold cart while driving down a steep hill, injuring Ms. Neely. Ms. Neely sued Ms. MacDonald for negligence in the operation of a golf cart. She also sued Bond Head and ClubLink. The respondents, Bond Head and ClubLink, brought a third party action against the appellant for indemnity under the Special Function Contract. The motion judge granted summary judgment to the respondents against the appellant, obliging it to indemnify ClubLink for all of Ms. Neely's personal injury claims.

Issue: Did the motion judge err in granting a summary judgment for the respondents?

Appeal allowed.

Reasoning: Yes. The Court referred to Fenn v. Peterborough (City) (1979) and provided that in order for ClubLink to successfully shift the risk of its own negligence to the appellant, the contract must say clearly say so. Based on the indemnity provision and its accompanying heading, the Court agreed with the motion judge that the wording "claims of any nature that may arise from or through the use of a golf cart" was broad enough to oblige the appellant to indemnify ClubLink for damages that arose form the operation of a golf cart by a guest. However, the Court did not agree that the provision clearly extended to ClubLink's own negligence.

The motion failed to give effect to the principle in Fenn. When read in its entirety, the provision was ambiguous and thus, had to be construed against the drafter, ClubLink. Therefore, the contact failed to clearly shift the risk of ClubLink's own negligence to the appellant. The heading of the indemnity provision made it clear that it was only "damage caused by the customer and/or their guest".

The Court invited counsel to make submissions on the application of Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, to the standard of appellate review. The Court found that the motion judge's interpretation of the indemnity provision, and particularly the failure to apply the principle in Fenn were errors that met the standard in Sattva and justified appellate intervention.

Vincorp Financial Ltd. v Oxford (County), 2014 ONCA 876

[Rouleau, van Rensburg and Pardu JJ.A]

Clifford Cole and Nicholas Kluge, for the appellants Vincorp Financial Ltd. and Blandford Square Developments Limited.
Steven Stieber and Murray Stieber, for the respondents

Keywords: Municipal Law, Expropriation, s.106(1) of the Municipal Act, Expropriations Act, Fair Value,

At trial the appellants claim for damages resulting from the expropriation of their land and subsequent transfer of such lands was dismissed. The matter proceeded on the basis of an Agreed Statement of Facts and Chronology and a series of uncontested documents. There were three questions before the trial judge. First, could Oxford lawfully expropriate the mall lands for the purposes set out in Oxford by-law No. 4545-2005, including in order to transfer the mall lands to Toyota for the proposed development of the Toyota Plant? Second, did the expropriation and later sale of the mall lands by Oxford, or any step in that transaction, confer a "bonus" on Toyota contrary to the provisions of s.106(1) of the Municipal Act? Third, if a bonus was conferred and/or if the expropriation of the mall lands was unlawful, are the plaintiffs entitled to a remedy in damages against Oxford? The trial judge answered questions 1 and 2 in the affirmative and found it unnecessary to answer question 3. The appellants submit the trial judge erred in answering these questions which led to the dismissal of their claim. On appeal the appellants argue that Oxford gave Toyota a bonus in violation of s.106 of the Municipal Act by transferring the mall lands to Toyota at the fair value as defined by the Expropriations Act, which did not reflect any increase in value attributable to the proposed development. They argue that the expropriation was illegal, because it was tainted by the concurrent agreement to sell the lands at the expropriation value. The appellants also argue that Oxford is liable in trespass for damages for the differential, in addition for fair market value, which the expropriation process will provide.

(1) Did the trial judge err in answering the questions put to her resulting in the dismissal of the claim?

Appeal dismissed.

(1) No. The appellants asserted that the trial judge erred in viewing the expropriation of the mall lands as constituting one transaction and the sale to Toyota as a separate transaction. In the appellant's submission, the two should be viewed together as a single transaction, which would violate s. 106 and operate to invalidate the expropriation of the appellants' lands ab initio. The court found problems with this argument and held that although the expropriation decision may have been motivated by a desire to acquire the mall lands for their transfer to Toyota, the expropriation and rights of the appellants to receive compensation for their lands are governed by a specific statutory regime, under which there is a statutory right to receive "fair value". The Expropriations Act s. 14(4)(b) provides that in calculating fair value to be paid, no account shall be taken of "any increase or decrease in the value of the land resulting from development or the imminence of the development in respect of which expropriation is made". The claim by the appellants that they are entitled to damages in an amount that reflects the increase in value attributable to the proposed development cannot be reconciled with the Expropriation Act limiting the compensation payable.

Additionally, it was conceded that the expropriation proceeded on the basis that there was a proper municipal purpose for the expropriation. The court held that even if the sale and transfer to Toyota had breached s.106, the breach would not have invalidated or vitiated the proper purpose for the expropriation and would not render it invalid. The court found that even if the appellants' submissions were accepted, this would not invalidate the transaction or give rise to an entitlement of damages calculated by the excess of fair market value taking into account the proposed development. There is nothing in the legislative purpose underlying s.106 or in the language of s.106 itself to suggest any intention to confer a right to damages. The court held they did not need to try and answer the second question.

Fernandez v. Unique Auto Collision Network Solution Corp., 2014 ONCA 882

[Hoy A.C.J.O., Epstein and Hourigan JJ.A.]

Y. Barre, for the appellants
G. Gryguc, for the respondents

Keywords: Costs Endorsement, Dismissal of Motion as Abandoned.

Facts: The appellants, Unique Auto Collision Network Solution Corp., appeal the decision of Pardu J. who dismissed its motion as abandoned.

(1) Did Pardu J. err in dismissing the motion as abandoned?

The appeal was dismissed and costs of $3,000 were awarded to the respondent.

(1) No. Pardu J. did not err in dismissing the motion as abandoned.

Royal Bank of Canada v Trang, 2014 ONCA 883
[Hoy A.C.J.O., Laskin, Sharpe, Cronk and Blair JJ.A.]

J. Satin and J. Winch, for the appellant
No one appearing for the respondent
M. Brady and K. Wilson, the Privacy Commissioner of Canada, appearing as amicus curiae

Keywords: Privacy Law; Enforcement of Judgments; Mortgage Discharge Statement; Personal Information Protection and Electronic Documents Act; ss. 3, 5(3), 7(3)(c) and 7(3)(i); Clause 4.3.6 of Schedule 1; Implied Consent; Rules of Civil Procedure; s. 60.18(6); Execution Act, s. 28; Citi Cards Canada v Pleasance; Stare Decisis; Per Incuriam Exception

The appellant, Royal Bank of Canada ("RBC"), obtained a judgment against the defendants, Phat and Phuong Trang ("the Trangs"). The Trangs owned a property, which they mortgaged to the respondent, Bank of Nova Scotia ("Scotiabank"). RBC wanted the Sheriff to sell the Trangs' property so it could collect its judgment. The Sheriff, however, refused to sell the property without a mortgage discharge statement from Scotiabank. RBC twice sought to obtain this statement by examining the Trangs as judgment debtors, but they did not appear for either examination. RBC also asked the mortgagee, Scotiabank, to produce a mortgage statement. Scotiabank said the Personal Information Protection and Electronic Documents Act ("PIPEDA") precluded it from doing so. RBC brought a motion for an order that Scotiabank produce a mortgage discharge statement. The motion judge dismissed the motion, relying on Citi Cards Canada Inc. v Pleasance, 2011 ONCA 3, 103 O.R. (3d) 241 ("Citi Cards"). RBC appealed the motion judge's decision, arguing that Citi Cards was wrongly decided or distinguishable and that PIPEDA should not be applied to frustrate or unnecessarily increase the costs of enforcing a judgment lawfully obtained. On the appeal, RBC made five arguments.

1) The mortgage discharge statement RBC sought was not "personal information" of the debtors under PIPEDA.
2) Clause 4.3.6 of Schedule 1 to PIPEDA permitted Scotiabank to produce the mortgage discharge statement because that statement contained "less sensitive" information, which the Trangs impliedly consented to disclose.
3) In the alternative, s. 3 of PIPEDA authorized disclosure of the mortgage discharge statement.
4) Section 28 of the Execution Act, which permits a judgment creditor to sell a mortgagor's equity of redemption, authorized disclosure of the discharge statement.
5) Citi Cards was distinguishable because RBC, unlike the creditor in that case, had exhausted all other means to obtain the statement.

Appeal dismissed.
[Laskin, Cronk and Blair JJ.A.]

The majority of the Court rejected all of RBC's arguments.

(1) It can hardly be denied that a current mortgage balance is, under PIPEDA, personal information of a mortgagor – it is "information about an identifiable individual."

Although certain financial details of the Trangs' mortgage were on the public record in the Ontario Land Registry System, current mortgage balances are not publicly available information in the Ontario Land Registry System or under PIPEDA. Thus, s. 7(3)(h.1) of PIPEDA, which recognizes that consent is not required for the disclosure "of information that is publicly available and is specified by the regulations", was not applicable. Under s. 1(c) of the Regulations Specifying Publicly Available Information, S.O.R./2001-7 the only information that is considered publicly available for the purpose of s. 7(3)(h.1) of the statute is "personal information that appears in a registry collected under a statutory authority and to which a right of public access is authorized by law".

It could not be said that the Trangs had waived any privacy interest in their current mortgage balances simply because the details of their mortgage at the time of registration were on the public record.

(2) Citi Cards was binding law. The conditions to apply the per incuriam exception to stare decisis were not met. Consideration of clause 4.3.6 would not have changed the result in Citi Cards because it does not permit a mortgagee to disclose a discharge statement to a judgment creditor of the mortgagor.

To determine whether an individual impliedly consents to disclosure, as contemplated in clause 4.3.6, two considerations are relevant: (a) the sensitivity of the information in question; and (b) the reasonable expectations of the individual.

On the first consideration, the sensitivity of the information must be assessed in the overall context of the relationship between Scotiabank and the Trangs – not the between the Trangs and RBC. The balance owing on a person's mortgage can be an important piece of private information that opens a window to many aspects of that person's financial profile. It opens a portal to a person's financial stability or instability and disclosure to a third party without consent could affect a person's interests adversely. For this and other reasons, the information in a mortgage discharge statement is sensitive information for which the mortgagee (Scotiabank) would need the mortgagor's (the Trangs') express consent to disclose to a third party, such as a judgment creditor (RBC). The legislature's decision to make the details of a mortgage publicly available at the beginning of the mortgage relationship did not strip a mortgage balance during the course of a mortgage relationship of the sensitivity it would ordinarily have – a sensitivity for which implying consent to disclosure would be inappropriate.

On the reasonable expectations of the individual, disclosure of a discharge statement to a judgment creditor was not within the reasonable expectations of a mortgagor. An individual's reasonable expectations must be assessed objectively. The Trangs could reasonably expect the protection of their personal information afforded by the common law, and could reasonably expect that if Scotiabank was going to disclose their personal information for a purpose unrelated to the administration or enforcement of the mortgage, that it would obtain the Trangs' consent.

(3) The language in s. 3 and s. 5 of PIPEDA did not obviate the need to obtain an affected individual's consent for the collection, use or disclosure of personal information, unless an exception to the requirement of consent applied.

(4) No provision of the Execution Act required disclosure of a mortgage statement, and thus no provision of that Act satisfied the "required by law" exception to consent in s. 7(3)(i) of PIPEDA.

(5) An order under rule 60.18(6)(a) of the Rules of Civil Procedure would permit Scotiabank to disclose the mortgage discharge statement to RBC without the Trangs' consent, pursuant to s. 7(3)(c) of PIPEDA. Since RBC could show "difficulty" in enforcing its judgment, both because the Trangs failed to appear for two judgment debtor examinations and because Scotiabank would not produce a discharge statement, RBC could move under rule 60.18(6)(a) of the Rules of Civil Procedure for an order to examine a representative of Scotiabank. However, RBC did not obtain an order on a motion under rule 60.18(6)(a). Instead, it simply brought a motion – not once, but twice – to require Scotiabank to produce the discharge statement. It could succeed on that motion only if the exemption in s. 7(3)(c) authorized disclosure, which it does not. The "order" for the purpose of s. 7(3)(c) must be a court order made on the basis of a separate authority or "rules of court" – our Rules of Civil Procedure. The cost and inconvenience of bringing a motion under rule 60.18(6)(a) are a small price to pay for protecting the Trangs' privacy rights.

[Hoy A.C.J.O, Sharpe JJ.A. (dissenting)]

The dissenting justices agreed that a mortgage discharge statement constitutes "personal information" of the Trangs. They also agreed that neither s. 3 nor s. 5(3) of PIPEDA was an alternative to obtaining consent to disclosure of personal information or an exception to the need for consent. Finally, they agreed that s. 28 of the Execution Act did not satisfy the "required by law" exception in s. 7(3)(i) of PIPEDA. However, the dissenting justices would allow the appeal for two reasons.

First, an order requiring a mortgagee to disclose the discharge statement to a creditor need not have been sought under rule 60.18(6)(a) to constitute "an order made by a court" within the meaning of s. 7(3)(c) of PIPEDA. Citi Cards was wrong to the extent that it held otherwise. Whether RBC purported to move under rule 60.18(6)(a) or simply asked the court for an order requiring the mortgagee to disclose the statement is immaterial. Any distinction was artificial. In either case, the relief sought is substantively identical – an execution creditor is asking a court to exercise its discretion to determine if an order to disclose a statement is justified. Requiring a further motion would not be just, and it certainly would not be expeditious. It would cause RBC to incur further expenses that are unwarranted and disproportionate to the amount at issue.

On the "difficulty" requirement in rule 60.18(6)(a), the dissent was of the view that the requirement should be simple and expeditious. It could be reasonable for a motion judge to order an examination of a mortgagee under rule 60.18(6)(a) if the debtor failed to attend a single judgment debtor examination, or simply did not respond to a written request that he or she sign a form consenting to the provision of a statement to the creditor. Scotiabank was not a "stranger to the litigation" in the sense contemplated by Canadian Imperial Bank of Commerce v Sutton (1981), 34 O.R. (2d) 482 (CA), which was relied upon by the majority. Furthermore, a court order that a mortgagee produce a statement would not "unduly harass" the mortgage – the concern expressed in Sutton. Overall, where an examination of a mortgage is sought under rule 60.18(6)(a) in order to obtain a mortgage discharge statement, less caution need be exercised by a motion judge than in the case of examinations of other persons, for other purposes. In a proper case, a motion judge should be able to order the mortgagee to produce the statement, without the creditor having brought any prior motions, and without having to wait until the judgment debtors have failed to attend at one or more judgment debtor examinations.

Second, a court order was unnecessary in any event because the Trangs' consent to the disclosure of the mortgage discharge statement could be implied. The statement constituted "less sensitive" information for the purposes of clause 4.3.6 of Schedule 1 to PIPEDA. The was so for two reasons.

First, given that all the details of the Trangs' mortgage were made publicly available when the mortgage was registered, this made the current balance outstanding on that mortgage "less sensitive" personal information. Even if the outstanding balance on the Trangs' mortgage was "sensitive" personal information, it became "less sensitive" when RBC became a creditor of the Trangs, within the meaning of rule 60.18(1) and first scheduled an examination in aid of execution pursuant to rule 60.18(2). The Trangs were required to bring the statement to their rule 60.18(2) examination and to produce it to RBC.

Second, disclosure accords with the reasonable expectations of an individual in the Trangs' position. A reasonable mortgagor would consider it appropriate that his or her mortgagee be entitled to provide a mortgage discharge statement to affected third parties. Furthermore, a mortgagor would be required to produce the statement at his or her examination in aid of execution. By providing the statement, the mortgagee would simply facilitate the fulfillment of these obligations. Had the court in Citi Cards considered clause 4.3.6, it would have – or at least should have – come to a different result.

Finally, the dissenting justices discussed a number of factors that militated in favour of overruling Citi Cards: unfavourable comments by lower courts; fulfilling the reasonable expectations of borrowers and lenders; the fact that Citi Cards was a relatively recent decision; the fact that the concept of implied consent enshrined in clause 4.3.6 of Schedule 1 of PIPEDA was not argued in Citi Cards; and because Citi Cards created considerable cost, inconvenience and unnecessary litigation for creditors in enforcing judgments.

Baines v. Linett & Timmis , 2014 ONCA 888

[Weiler, Feldman and Benotto JJ.A.]

Eleanor Denise Baines, acting in person
Bruce Hutchison, for the respondent

Keywords: Solicitor Negligence, Summary Judgment, Res judicata, Procedural fairness

Facts: Ms. Baines sued her former solicitors in negligence. The firm brought a summary judgment motion to have her action dismissed. The motion was granted. Ms. Baines appeals and raises three grounds of appeal.

1) Was Ms. Baines denied procedural fairness in the summary judgment hearing?
2) Did the motions judge err in finding that the firm being retained on a contingency basis or a fee basis was res judicata?
3) Did the motions judge err in dismissing her claim for professional negligence against the law firm and that there are credibility issues that raise a genuine issue for trial?

Appeal dismissed.

1) No. Ms. Baines had written out her oral argument and proposed to read it to the motions judge. Instead, he adjourned court, read it, and then proceeded to ask her questions about it. Ms. Baines submits that by proceeding in this fashion the motions judge denied her the opportunity to refer to her references and that the questions asked by the motions judge did not follow the sequence they would have followed had she been permitted to argue orally and she was not able to answer as effectively. The court did not find this to be procedural unfairness. In response to the motions judge's questions she made oral submissions and had the opportunity to build on her written submissions.

2) No. Ms. Baines agreed to settle the firm's claim for fees, subject to a claim for solicitor's negligence. Justice Code's order says, "the herein settlement resolves the fees dispute...and that issue is now res judicata." That order was not appealed. Therefore, Ms. Baines' claim for repayment of legal fees is barred – either by the settlement contract or the doctrine of res judicata.

3) No. One of the requirements of a negligence action is that the plaintiff show that it is foreseeable that she will suffer injury, namely, damages. Ms. Baines alleges negligence by her law firm. After discharging her lawyers, Ms. Baines refused a subsequent offer of $100,000 to settle her tort claim. At trial, the jury awarded $2000 each for her pecuniary and non-pecuniary damages. On the motion, she was unable to put forward evidence that her lawyers' alleged negligence years earlier in prosecuting her claim was the basis for the jury's award. The motions judge did not err in granting summary judgment.

Wall v. Office of the Independent Police Review Director, 2014 ONCA 884

[Feldman, Blair and Pepall JJ.A.]

Counsel: H. Mackay, for the appellant
C.C. Ruby and N.R. Hasan, for the respondent

Keywords: Judicial Review, Office of the Independent Police Review Director, Complaint- Alleged Police Misconduct , Police Services Act- s. 60(2), 60(3), Discoverability, Limitations Period, Procedural Fairness, Dunsmuir v. New Brunswick.

Facts: The respondent Jason Wall claimed that he was illegally arrested during the G20 Summit in Toronto by two officers of the Toronto Police Services. Wall was arrested for wearing a bandana, detained in a detention centre for 28 hours, and then released without charges. Wall subsequently filed a complaint with the Office of the Independent Police Review Director ("OIPRD"). The Director of the OIPRD "screened in" the complaint for investigation pursuant to the Police Services Act, R.S.O. 1990 (the "Act"), and after investigation found that the allegation of misconduct was substantiated against the arresting police officers, and that it was of a serious nature. About eight months after Wall filed his initial complaint, the Director sent him a copy of the investigative report. The report included some detail which suggested that the officers who arrested Wall were acting on instructions from the Chief of Police and other higher ranking officers, to arrest anyone wearing a bandana. This report, released more than one year after the arrest, was the first time that it came to Wall's attention that other higher ranking officers may have played a role in his arrest. Since the report did not contain sufficient detail about the involvement of higher ranking officers, Wall filed a second complaint with the OIPRD five months after he received the report, and one and a half years after his alleged illegal arrest.

Eight days after Wall filed the second complaint, the Director advised him by letter that "section 60(2) of the Police Services Act permits the Director not to deal with a complaint if the complaint is made more than six months after the facts on which it is based occurred. Taking all the information into consideration, I have decided not to proceed with the complaint as it was made more than six months after the facts on which it is based occurred." Wall then sought judicial review of that decision. The Divisional Court quashed the Director's decision not to proceed and remitted the matter back to the Director for his reconsideration. The OIPRD appealed that decision, with leave, and claimed that the Divisional Court erred in three ways.

(1) Did the Divisional Court err in applying the concept of "discoverability" to s. 60(2) of the Act?

(2) Did the Divisional Court err in finding that the Director failed to provide reasons for his decision to decline to review the second complaint, and that he was required to provide "detailed reasons" for his screening decision?

(3) Did the Divisional Court err in ordering the Director to pay costs or, in the alternative, excessive costs, to Mr. Wall?

The appeal was dismissed, the decision of the Divisional Court was affirmed, and the matter was remitted to the Director for reconsideration. OIPRD was also granted leave to appeal the costs award, but its costs appeal was dismissed. Wall was awarded $13,500 in costs for the appeal.

(1) No. The Court of Appeal reviewed the Divisional Court's finding on this issue on the standard of correctness, as it raises a question of law. Applying this standard, it was held that sections 59 and 60 of the Act demonstrate that the default scenario under the legislation is that the Director is obligated to screen in a complaint for review and to have it dealt with in accordance with Part V, unless one of the saving factors in s. 60 applies. Furthermore, it was found that the six-month period outlined in section 60(2), which the Director relied upon in its refusal to review the second complaint, is not a strict limitations period. Instead, 60(2) was held to be a guideline the Director could consider together with other mandatory factors in section 60(3), in exercising its discretion to refuse to investigate a complaint by a member of the public.

Under section 60(3), the Director is required to consider the following factors before deciding not to review or investigate a complaint made pursuant to the Act: whether the complainant is a minor or a person with a disability, whether the complainant is or was subject to criminal proceedings relating to the events forming the basis for the complaint, and whether in the circumstances it would not be in the public interest to deal with the complaint. It was held that the Director has a discretion to refuse to review a complaint, but it is not an unfettered discretion, as it must be exercised within the confines of these factors in s. 60(3) as well as the bounds of procedural fairness. Included in this discretion, however, is the obligation of the Director under the "public interest factor" in 60(3) to consider discoverability issues in deciding whether or not to deal with a post-six month complaint under s. 60(2).

(2) No. The Court of Appeal upheld the finding of the Divisional Court that the Director's letter to Wall failed to give "reasons" for the refusal to review his second complaint, as required by s. 60(7). Furthermore, the Director's letter failed to provide Wall with reasons that complied with the principles of procedural fairness. In terms of the Director's statutory duty to provide reasons, the letter failed to provide any indication of whether or not the mandatory factors under section 60(3) were even considered in its decision to refuse to review the complaint. In sum, the letter does not answer the question of "why" the Director refused to review Wall's complaint. It was also found that the letter failed to comply with the principles of procedural fairness outlined in Dunsmuir v. New Brunswick, 2008 SCC 9, as it did not provide any "justification, transparency and intelligibility within the decision-making process." Specifically, the Director's "reasons" do not provide any "justification" for the decision, the reasoning is not transparent, and the basis of the decision is unknown.

(3) No. The Divisional Court's cost award was upheld, as there was no error in principle or law with its reasons on this matter. Specifically, the Court of Appeal upheld the finding that even though Wall's lawyer took on the case on a pro bono basis, it assisted with an issue of public importance that was quite complex, thereby promoting access to justice. Furthermore, Wall's lawyer should be entitled to recover its costs if successful, in the same manner as cases in other areas of law. In terms of quantum , the Divisional Court had already reduced the cost award from $28,000 as outlined in Wall's cost outline to $20,000. It was held on appeal that $20,000 represented "a fair and reasonable award for costs given the public nature of the respondent, the time spent by counsel, the nature of the case, the complexity of the issues and the public interest in encouraging experienced and competent counsel to take on these kinds of cases."

Khan v. Lee, 2014 ONCA 889

[Laskin, Gillese and Pardu JJ.A.]

Gavin MacKenzie and Jennifer A. Whincup, for the appellants
Kirk F. Stevens and Jennifer Z Hunter, for the respondent

Keywords: Negligence, Rule 25.06(1) of the Rules of Civil Procedure, Chenier v. Hôpital Général de Hawkesbury

Facts: The appeal involved an assessment of the level of detail required by rule 25.06(1) of the Rules of Civil Procedure in a pleading alleging negligent medical care. According to the appellants' statement of claim, Dr. Lee, the respondent, cared for Bibi Khan during her pregnancy. Following an emergency caesarean section, Bibi Khan's son suffered permanent brain damage, resulting in serious mental and physical impairments. After service of the statement of claim, the respondent served a demand for particulars as to exactly how it was alleged that he failed to meet the standard of care. The appellants undertook to provide him with the relevant records, but indicated that they did not have any further particulars to provide. The motion judge found that the respondent "must be in a position to know what alleged wrong doing he is required to defend" and struck the statement of claim.

Issue: Did the motion judge err in striking the statement of claim?

Appeal allowed.


Yes. The Court referred to Chenier v. Hôpital Général de Hawkesbury, [2006] O.J. No. 1679 (S.C.), at para. 21 "[a]t this early stage in the litigation process, it would be placing an unduly onerous burden on the Plaintiffs to describe in detail what transpired or did not transpire at all of these points in time". The effect of the motion judge's order was to require the appellant to obtain an expert witness before pleading, in the absence of full information about the case. While getting an early opinion might be useful and prudent, it should not be required as a condition of starting an action.

The Court held that striking a statement of claim in the circumstances of this case would significantly impede rather than facilitate access to justice, an important value emphasized in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. It should be noted that the Rules do differentiate between causes of action in respect of the requirements for pleadings. Rule 25.06(8) provides: "Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars ...."

Danos v. BMW Group Financial Services Canada, 2014 ONCA 887
[Laskin, Cronk and Pepall JJ.A.]

Wayne S. Laski, for the appellants
Ron Aisenberg, for the respondents

Keywords: Summary Judgment, Costs

Facts: This was an appeal from the order of Justice Goldstein of the Superior Court of Justice, dated April 7, 2014.
Issues: Whether the motion judge erred in granting summary judgment or in his costs award.

Appeal dismissed. Leave to appeal costs granted, but costs appeal dismissed.

The Court agreed with the reasons of the motion judge, both in his granting of summary judgment and in his costs award. On the issue of costs, the Court found no error in principle, nor was the award unreasonable.

Fordham v. Dutton-Dunwich (Municipality), 2014 ONCA 891

[Laskin, Rouleau and Lauwers JJ.A.]

T.R. Shillington and Jonathan de Vries, for the appellant
Jim Virtue and Jim Mays, for the respondent

Keywords: Motor Vehicle Accident, Statutory Duty of Repair, Standard of Reasonable Driving

In 2007, the plaintiff drove from one friend's house to another. He took a route through Dutton-Dunwich on rural roads that were unfamiliar to him. He came to an intersection with a stop sign. As he saw no approaching cars, he ignored the stop sign and drove through the intersection at or near the speed limit of 80 km per hour.

The road curved to his right just after the intersection. In trying to navigate the curve, he lost control of his car and crashed into a concrete bridge abutting the road. He suffered brain damage and has no memory of the crash.

The plaintiff sued the municipality of Dutton-Dunwich for non-repair of the road. He claimed Dutton-Dunwich had breached its statutory duty because it had failed to post a checkerboard sign warning of the change in the road's alignment.

The trial judge agreed. She held that "[c]learly, it is a local practice in this rural area for drivers to go through stop signs if they consider it safe", and "[o]rdinary rural drivers do not always stop at stop signs and the defendant knew that." In her opinion, the change in the road's alignment was a "hidden hazard". She found "that the circumstances of this intersection require more than a stop sign to give ordinary 'rural' motorists reasonable notice of [a] potentially catastrophic hazard ahead." The trial judge also found the plaintiff negligent because he had failed to stop at the stop sign. She concluded that both the plaintiff's failure to stop and the defendant's failure to install a warning sign had caused the crash. She apportioned liability for the plaintiff's damages equally: 50 per cent to the plaintiff and 50 per cent to the defendant. Dutton-Dunwich appealed.

Issue: Did the trial judge misapply the test for assessing a municipality's statutory duty of repair?

Appeal granted.


Yes. A municipality's duty of repair is limited to ensuring that its roads can be driven safely by ordinary drivers exercising reasonable care. A municipality has no duty to keep its roads safe for those who drive negligently. Running a stop sign at 80 km per hour is negligent driving. The undisputed evidence is that the road the respondent was driving on posed no hazard to a driver who stopped at the stop sign, or even to one who slowed to 50 km per hour at the intersection.

The trial judge's finding that "[o]rdinary rural drivers do not always stop at stop signs" has some modest support in the evidence, in that some rural drivers will not always come to a full stop at a stop sign. But there was no credible evidence that ordinary rural drivers go through stop signs at or near the speed limit. Importantly, this finding was legally irrelevant. There cannot be one standard of reasonable driving for "rural drivers" and another for "city drivers". There is but one standard of reasonable driving. That standard requires drivers to obey traffic signs. Thus Dutton-Dunwich had no duty to install an additional sign on its road.

Phylum Corporation v The Dominion of Canada General Insurance Company, 2014 ONCA 886

[Laskin, Cronk and Pepall JJ.A]

Dik Lee, for the appellant
Jesse R. Boyd, for the respondent

Keywords: Discretion, Bad Faith

Appeal from the judgment of Justice O'Marra of the Superior Court of Justice made June 24, 2014.

Did the motions judge err in exercising his discretion?

Appeal dismissed, with costs of $1,500.

No, the motion judge's decision is discretionary and the court found no reason to interfere with that exercise of discretion. The court was satisfied that Mr. Gilbertson was appropriately qualified to act as an umpire for the appraisal and there was no evidence of bad faith.

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John Polyzogopoulos
Events from this Firm
8 Nov 2018, Conference, Toronto, Canada

This year’s program is entitled “An Analysis of Fidelity Claims for the Modern World.” The program will address important substantive and practical issues germane to today’s fidelity claims handling.

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