1. Leighton v. Best, 2015 ONCA 180 (Lauwers, Hourigan and Pardu JJ.A.), March 18, 2015
2. Figueiras v. Toronto (Police Services Board), 2015 ONCA 208 (Rouleau, van Rensburg and Pardu JJ.A.), March 30, 2015
3. Mroz v. Mroz, 2015 ONCA 171 (Doherty, Gillese and Lauwers JJ.A.), March 16, 2015
4. Westerhof v. Gee Estate, 2015 ONCA 206 (Laskin, Sharpe and Simmons JJ.A), March 26, 2015
5. Parsons v. Ontario, 2015 ONCA 158 (Juriansz, LaForme and Lauwers JJ.A.), March 13, 2015
1.Leighton v. Best, 2015 ONCA 180 (Lauwers, Hourigan and Pardu JJ.A.), March 18, 2015
The appellant, Randy Leighton, suffered serious injuries when the respondent Matthew Best punched him in the jaw during a recreational hockey game. Following a trial, Best was found liable for battery on the basis that the blow exceeded the scope of Leighton's consent to the application of force.
When Best went bankrupt before satisfying the damage award granted by the trial judge, the appellants moved for a declaration under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 ("BIA") that he was not released from his obligation to pay it. Section 178(1)(a.1)(i) of the BIA stipulates that "[a]n order of discharge does not release the bankrupt from ... any award of damages by a court in civil proceedings in respect of ... bodily harm intentionally inflicted". The motion judge's decision accordingly turned on whether the damage award was for "bodily harm intentionally inflicted".
The motion judge drew parallels between the facts before him and those in Dickerson v. 1610396 Ontario Inc., 2013 ONSC 403: both cases involved single punches which occurred in "the heat of the moment", and both resulted in injuries and a civil damage award. He noted that while both punches were intentional, there was no proven intent to inflict bodily harm in either case. Significantly, the motion judge adopted the view expressed in Dickerson that, in crafting the exceptions outlined in s. 178 of the BIA, Parliament could not have intended to burden the defendant with a "life long penance" for a single punch. The motion judge concluded that the damage award did not survive the respondent's bankruptcy.
In a brief endorsement, the Court of Appeal noted that while recreational hockey players can be presumed to consent to a certain level of contact and attendant risk, the trial judge's factual findings clearly determined that the respondent's punch was intentional and exceeded the scope of the appellant's consent to physical contact.
The Court noted, however, that the fact that the punch was intentional is not sufficient to bring the damage award within s. 178(1)(a.1)(i) of the BIA; in order for the award to survive the respondent's bankruptcy, he must also have intended for the punch to cause bodily harm.
In any event, the Court found that the respondent, like the plaintiff in Dickerson - which it reversed on appeal shortly after the motion judge delivered his decision in this case - indeed intended to cause the appellant bodily harm.
In Dickerson v. 1610396 Ontario Inc. (Carey's Pub & Grill), 2013 ONCA 653, the Court of Appeal held that when one person hits another with a closed fist with such force as to cause the recipient to lose consciousness and fall to the ground, "it cannot be seriously doubted that the person intended to inflict bodily harm." The Court recalled the trial judge's findings that Best pulled off Leighton's helmet and delivered a blow which sent the six foot two inch, two hundred and twenty-five pound appellant to the ice with his jaw broken in three places. The inference that the respondent intended to cause significant bodily harm to the appellant was "inescapable".
As in Dickerson, the Court rejected the motion judge's finding that damages for a single punch delivered in the heat of the moment should not survive bankruptcy, subjecting the respondent to a "life long penance". The circumstances of the assault and the number of blows are irrelevant. What matters is whether the defendant intended to cause bodily harm.
Best clearly intended to cause bodily harm to Leighton. That intention is sufficient to bring the damage award related to that conduct within the exception in s. 178(1)(a.1)(i) of the BIA.
2. Figueiras v. Toronto (Police Services Board), 2015 ONCA 208 (Rouleau, van Rensburg and Pardu JJ.A.), March 30, 2015
In this appeal, which arose from police conduct during the 2010 G20 summit in Toronto, the Court of Appeal considered the proper scope of common law police powers and whether the police acted within those powers when they stopped demonstrators walking in downtown Toronto and required that they submit to a search of their belongings.
On June 27, 2010, the second day of the summit, Paul Figueiras went downtown with some friends to demonstrate in support of animal rights. As they neared the corner of University Avenue and King Street, one block north of the security fence enclosing the summit site, the group was approached by police, who told them that they would have to submit to a search of their belongings if they wished to proceed. Figueiras refused to consent to the search.
The incident, which was captured on a now-viral video, showed Figueiras protesting that the proposed search violated his civil rights and one of the officers retorting "there's no civil rights here in this area" and "this ain't Canada right now". Another officer, Sargent Charlebois, wrapped his arm around Figuerias' shoulder, grabbed his shirt and said "you don't get a choice", before pushing him and telling him to move along if he refused to submit to a search. Figueiras abandoned his plans to protest and went home.
Figueiras later applied for a declaration that the police officers had violated his rights to freedom of expression, peaceful assembly and liberty under ss. 2(b), 2(c), and 7 of the Charter of Rights and Freedoms, as well as a declaration that Sgt. Charlebois had committed the tort of battery by grabbing and pushing him.
The parties to the application agreed that the officers did not have statutory authority to demand Figueiras consent to a search in order to walk down a public street. The application therefore turned on whether the officers' actions were authorized under the common law ancillary powers doctrine.
As the Court of Appeal recently explained in R. v. Peterkin, 2015 ONCA 8, where an officer's conduct has led to a prima facie interference with an individual's liberty or property, the court must apply a two-part test to determine whether that conduct falls within the officer's common law ancillary powers. The test was originally set out R. v. Waterfield [1963] 2 All E.R. 659 (C.C.A.):
- Does the impugned police conduct fall within the general scope of any duty imposed on the officer by statute or common law?
- If so, in the circumstances of this case, did the execution of the impugned conduct involve a justifiable use of the powers associated with the engaged statutory or common law duty?
The parties agreed that the officers' conduct met the first part of the Waterfield test: they were acting in furtherance of their duty to preserve the peace. It fell to the application judge, therefore, to determine whether the impugned conduct met the second stage of the test. The application judge concluded that it did, explaining that requiring demonstrators submit to a search was a minimal intrusion on their rights and a justifiable use of the powers associated with the officers' common law duty to preserve the peace. Because he found the impugned police conduct to be lawful, the application judge held that there could be no violation of Figueiras' Charter rights.
The application judge further held that the alleged battery committed by Sgt. Charlebois was de minimis at worst and, in any event, was justified under s. 25 of the Criminal Code, RSC 1985, c. C-46, which permits a peace officer to use "as much force as is necessary" in the course of his law enforcement duties, provided that he acts on reasonable grounds and that the actions taken are authorized by law.
The appeal turned on whether the application judge erred in his treatment of the Waterfield test and in his conclusion that police have the common law power to restrict Figueiras' movements and right to protest. Also at issue was whether the application judge erred in holding that Sgt. Charlebois had not committed battery.
Writing for the Court, Rouleau J.A. explained that the Waterfield test, which was imported into the Canadian jurisprudence and has subsequently been modified by the Supreme Court to emphasize the importance of Charter protected rights, involves a careful balancing of the state's interest in effective policing, including keeping the peace and crime prevention, and the liberty interests of citizens affected by the power that police exercise.
Before undertaking the Waterfield analysis, Rouleau J.A. addressed two preliminary issues: defining the police power that was being exercised and identifying the liberty interests at stake. He defined the power exercised as that "of individual police officers to target demonstrators and, where no crime is being investigated or believed to be in progress, but with the intention of preventing crime, to require that they submit to a search if they wish to proceed on foot down a public street". The liberties at stake were freedom of expression under the Charter and the common law right to travel unimpeded down a public highway.
Rouleau J.A. noted that the parties agreed that the officers' conduct passed the first step of the Waterfield test: their actions fell within the scope of the police duty to preserve the peace and prevent damage to property or persons. He therefore turned to the second stage of the test, where the court must determine whether the impugned police action was "reasonably necessary" to carry out that duty.
In R. v. MacDonald, 2014 SCC 3, the Supreme Court identified factors to be considered at this stage, including the importance of the duty to the public good, the extent to which it is necessary to interfere with liberty to perform the duty and the degree of interference with liberty.
Rouleau J.A. emphasized the importance of the police duty to keep the peace and prevent property damage or personal injury, particularly in light of breaches of the peace which occurred the previous day. However, he disagreed with the application judge's finding that similar unlawful acts were imminent that day and that the police officers' decision to stop individuals who appeared to be demonstrators and demand that they submit to a search constituted the minimum intrusion that was reasonably necessary in the circumstances. In Rouleau J.A.'s view, even if the officers faced an "imminent" risk of a repeat of the lawlessness of the summit's opening day, the power that they exercised with respect to Figueiras was not effective, nor was it rationally connected to the purpose. The actions of the police officers were not reasonably necessary and had little, if any, impact on reducing threats to public safety, imminent or otherwise.
Rouleau J.A. held that in balancing the exercise of common law police powers against the interference with individual liberties, the application judge misinterpreted the concept of minimal impairment, equating it with minimizing the number of people affected, in this case demonstrators, without considering whether the impact on those targeted could be minimized. The impairment of Figuerias' rights was not lessened because the officers had decided to interfere with the rights of only people like him. The number of people subject to intrusion may have been reduced, but the intrusion felt by each individual stopped was not minimized or reduced. If anything, it was exacerbated since they alone were targeted. Rouleau J.A. held that the application judge further erred in focusing only on the officers' conduct, giving no weight to their words. Statements such as "this ain't Canada right now" and "there's no civil rights here in this area" further undermined the reasonableness of the officers' conduct and aggravated the harm to Figueiras' liberty.
In the final analysis, Rouleau J.A. held that the police power purportedly exercised on June 27 fell far short of meeting the Waterfield test when weighed against the infringement of Figueiras' liberty interests. As Doherty J.A. held in Brown v. Durham Regional Police Force (1998), 43 O.R. (3d) 223 (C.A.), the balance struck between common law police powers and individual liberties puts a premium on individual freedom: "We want to be safe, but we need to be free."
Rouleau J.A. concluded that the police did not have the power to stop demonstrators and require that they submit to a search in order to proceed down a public street. Accordingly, the respondents' interference with Figueiras' common law liberty and s. 2(b) Charter rights was not prescribed by law and s. 1 of the Charter could not be used to justify these breaches.
Rouleau J.A. also held that Sgt. Charlebois' actions made out the elements of the tort of battery: more than de minimis touching, it was the kind of "unnecessary manhandling" that would "offend the dignity of a person and serve to intimidate" him. Moreover, because he lacked the common law police power to stop Figueiras in order to search him, the officer could not rely on s. 25(1) of the Criminal Code to shield himself from civil liability. Even if Sgt. Charlebois was authorized to stop Figueiras and demand that he submit to a search, grabbing and pushing Figueiras were not necessary to achieve that purpose.
The Court allowed the appeal, granting a declaration that the respondents violated Figueiras's common law right to travel unimpeded on a public highway as well as his Charter right to freedom of expression. The Court also granted a declaration that Sgt. Charlebois committed the tort of battery.
3. Mroz v. Mroz, 2015 ONCA 171 (Doherty, Gillese and Lauwers JJ.A.), March 16, 2015
This appeal arose from a family dispute over the property of a deceased matriarch.
After her husband died, Kazimiera (Kay) Mroz executed a will in which she named her daughter Helen and her nephew Richard as executors. She also executed a direction transferring title in the family home to herself and to Helen as joint tenants. In her will, Kay bequeathed $50,000 to Richard and his family. She also instructed that her share of the family home was to go to Helen, on the condition that within a year of her death Helen pay $70,000 to each of her grandchildren, Helen's nephew and niece Martin and Adrianna.
Helen did not act in accordance with these instructions. Shortly after Kay's death in 2005, she sold the family home for close to a half million dollars and used the proceeds for herself. She failed to notify Richard. Deprived of its most significant asset, the value of Kay's estate was only $3,200.
Through their mother, as litigation guardian, Martin and Adrianna challenged the validity of Kay's will and Helen's sale of the home. They argued at trial that the will was invalid, challenging Kay's testamentary capacity and submitting that Helen had exerted undue influence over their grandmother. They also claimed that the property formed part of Kay's estate and that the will created a trust in their favour in the amount of their legacies.
The trial judge held that the will was valid, finding no evidence that Kay lacked testamentary capacity or that Helen had deceived or exerted undue influence over her mother. She found that Kay's intentions were clear: she wished to gift Helen full title to the house upon her death, with the understanding that it would be sold within a year and that specific bequests, including $70,000 for each of her grandchildren, were to be paid from the proceeds of the sale. Citing Pecore v. Pecore, 2007 SCC 17, the authority on presumptions of resulting trust, the trial judge held that Helen had accordingly rebutted the presumption of resulting trust in respect of the property. On Kay's death, Helen became sole owner of the house by right of survivorship and the house did not become part of the estate.
The trial judge held, however, that Helen's failure to honour her mother's wishes was a breach of trust. She ordered that Helen pay $70,000 to each of Martin and Adrianna in accordance with Kay's will.
Helen appealed, arguing that once the trial judge found that the presumption of resulting trust had been rebutted, the property passed to her by right of survivorship and she had no legal obligation to pay the legacies to Martin and Adrianna. Meanwhile, her nephew and niece cross-appealed, submitting that the trial judge erred in finding that the will was valid and that the presumption of resulting trust had been rebutted. They also asked that the Court award punitive damages against Helen.
Writing for the Court, Gillese J.A. declined to interfere with the trial judge's conclusion that Kay's will was valid. The trial judge found that Kay was a strong, intelligent and financially astute woman who was represented by a competent lawyer, and that she was neither deceived nor unduly influenced by her daughter. These findings were fully supported by the record.
Gillese J.A. held that the trial judge ultimately arrived at the correct conclusion that Helen was liable to pay a legacy of $70,000 to each of Martin and Adrianna and that her failure to make those payments from Kay's estate was a breach of trust. Unlike the trial judge, however, she found that Helen held the property on resulting trust.
Gillese J.A. explained that the trial judge's finding that Helen had rebutted the presumption of resulting trust was an error in principle. In Pecore, the Supreme Court established that the presumption of resulting trust applies to gifts of property from a parent to an adult child. This kind of gratuitous transfer is not testamentary: the gift vests immediately, and nothing more need be done to complete it. The trial judge must begin her inquiry from that presumption before determining, on a balance of probabilities, the transferor's actual intention at the time of the transfer. Justice Gillese held that once the trial judge found that Kay intended for Helen to sell the property after her death and use the sale proceeds to fund the bequests in her will - clearly a testamentary disposition - she could not find that the presumption had been rebutted and that Helen had taken the property as a gift.
Applying the relevant legal principles outlined in Pecore and Sawdon Estate v. Sawdon, 2014 ONCA 101, to the trial judge's findings with respect to Kay's intention at the time of the transfer, Gillese J.A. found that Helen did not, in fact, rebut the presumption of resulting trust. As Gillese J.A. explained, if the presumption was rebutted, the transfer of the property to Helen was an inter vivos gift and Helen became solely entitled to it on Kay's death by virtue of the right of survivorship. The property would not have formed part of Kay's estate and Helen would have no legal obligations in relation to the property or the proceeds of its sale. These consequences were wholly inconsistent with the trial judge's finding that Kay's actual intention at the time of the transfer was that Helen use the proceeds of the sale to make the bequests in her will, including those to her grandchildren.
Gillese J.A. concluded that the presumption of resulting trust was not rebutted. Accordingly, when Kay died, the family home formed part of her estate and its disposition was governed by the terms of her will, under which Helen was obligated to sell the property and pay $70,000 to each of Martin and Adrianna from the proceeds. As the trial judge correctly concluded, Helen's failure to do so was a breach of trust.
Gillese J.A. declined, however, to award punitive damages, noting that although Martin and Adrianna sought punitive damages in their statement of claim, they did not pursue them at trial. Therefore, their claim for punitive damages was effectively raised for the first time on appeal. In Perez (Litigation Guardian of) v. Salvation Army in Canada (1998), 42 O.R. (3d) 229 (C.A.), the Court held that appeals are not the proper forum in which to raise new issues "which significantly expand or alter the landscape of the litigation".
4. Westerhof v. Gee Estate, 2015 ONCA 206 (Laskin, Sharpe and Simmons JJ.A), March 26, 2015
Who is an expert for the purpose of Rule 53.03 of the Rules of Civil Procedure? In this decision, the Court of Appeal considered the requirements for introducing the evidence of expert witnesses and, specifically, to whom Rule 53.03 applies.
This decision arose from two cases involving claims for injuries suffered in motor vehicle accidents: Westerhof v. Gee Estate and McCallum v. Baker. In each of these cases, the defendant admitted liability for causing the accident and the issues at trial related to whether the accidents caused the plaintiff's injuries and the quantum of damages.
Both cases were tried following the 2010 amendments to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which were implemented in response to the recommendations of Coulter Osborne in his 2007 review of the civil justice system. The amendments, which were designed to ensure the neutrality and expertise of expert witnesses, adopted two significant recommendations of the Osborne Report. Rule 4.1.01 was added, defining the overriding duty of an expert "engaged by or on behalf of a party" to provide opinion evidence that is fair, neutral and non-partisan and within his area of expertise. Rule 53.03(2.1) was also added, specifying certain information relating to an expert's opinion and expertise that must be included in an expert's report and requiring that the expert sign an acknowledgement of his duty, set out in Form 53, which identifies the party by or on behalf of whom he was engaged.
In Westerhof, the trial judge ruled inadmissible opinion evidence from various medical practitioners who were either participant experts (witnesses such as treating physicians who form opinions based on their participation in the underlying events) or non-party experts (those retained by a non-party to the litigation, who form opinions based on personal observations or examinations relating to the subject-matter of the litigation for a purpose other than the litigation). The trial judge found that these witnesses were required to comply with Rule 53.03 and had failed to do so. He further held that a witness who had complied with Rule 53.03 could not refer to diagnoses made by those who had not.
On appeal to the Divisional Court, the plaintiff argued that the trial judge erred in his evidentiary rulings by failing to distinguish between opinion evidence given by litigation experts (those engaged by or on behalf of a party to provide opinion evidence in relation to a proceeding) and that provided by participant and non-party experts. He argued that the latter two classes of witnesses are not caught by Rule 53.03.
The Divisional Court disagreed, holding that the "important distinction is not in the role or involvement of the witness, but in the type of evidence sought to be admitted". The Court distinguished between opinion evidence and factual evidence: the former requires compliance with Rule 53.03, while the latter does not.
At the McCallum trial, which took place prior to the Divisional Court's decision in Westerhof, the trial judge permitted several medical practitioners who had treated McCallum to give opinion evidence concerning his future employment prospects and treatment needs without complying with Rule 53.03. The trial judge held that because these witnesses were treating medical practitioners, they need not comply with the rule.
The Court of Appeal heard appeals in both cases together.
Writing for the Court, Simmons J.A. disagreed with the Divisional Court's decision in Westerhof that the type of evidence is the key factor in determining to whom Rule 53.03 applies. She instead held that a witness with special skill, knowledge, training or experience, who has not been engaged by or on behalf of a party to the litigation, may give opinion evidence for the truth of its contents without complying with Rule 53.03 where the opinion to be given is based on the witness' observation of or participation in the events at issue, and where the witness formed the opinion to be given as part of the ordinary exercise of his skill, knowledge, training and experience while observing or participating in such events. Rule 53.03 similarly does not apply to the opinion evidence of a non-party expert where the non-party expert has formed a relevant opinion based on personal observations or examinations relating to the subject-matter of the litigation for a purpose other than the litigation.
Simmons J.A. effectively created two categories of experts: litigation experts retained by counsel, and participant or non-party experts. Rule 53.03 applies only to the former. On this basis, Justice Simmons concluded that the trial judge in Westerhof erred in excluding the evidence of several witnesses.
Simmons J.A. cautioned, however, that if participant experts or non-party experts give opinion evidence extending beyond these limits, they must comply with Rule 53.03 with respect to that portion of their opinions. She also emphasized that, as with all evidence, the court retains its gatekeeper function with respect to opinion evidence from participant experts and non-party experts. The court could exclude all or part of the opinion evidence of a participant expert or non-party expert if the evidence failed to meet the test for admissibility. The court could also require that the participant expert or non-party expert comply with Rule 53.03 if his opinion went beyond the scope of an opinion formed in the course of treatment or observation for purposes other than the litigation.
While Baker conceded before the Court of Appeal that treating physicians may give opinion evidence directly related to their treatment of a patient, such as a working diagnosis and prognosis, he submitted that the trial judge erred by allowing treating medical practitioners who had not complied with Rule 53.03 to give "an avalanche" of opinion evidence going beyond the scope of their expertise and that did not arise directly from treatment of their patient.
Simmons J.A. disagreed, finding that the opinions related to the practitioners' treatment of McCallum and fell within their respective areas of expertise. While it may have been open to the trial judge, in the exercise of his gatekeeper function, to exclude at least some of the impugned evidence, he did not err in failing to do so. The opinions concerning McCallum's ability to return to work were not complex vocational opinions of the kind one would expect from a Rule 53.03 expert, but rather were opinions formed by treating practitioners in the course of their treatment.
The Westerhof appeal was allowed and a new trial ordered. The McCallum appeal was dismissed.
5. Parsons v. Ontario, 2015 ONCA 158 (Juriansz, LaForme and Lauwers JJ.A.), March 13, 2015
In this decision, the Court of Appeal addressed the procedure surrounding multijurisdictional class actions and, in particular, whether a sitting of the Ontario Superior Court may be held outside of Ontario in the absence of a video link to a courtroom in Ontario.
This case arose from multijurisdictional class actions brought against the Canadian Red Cross Society, the government of Canada and provincial and territorial governments by individuals who were infected with the Hepatitis C virus by Canada's tainted blood supply. Courts in Ontario, British Columbia and Quebec certified parallel class proceedings, which were settled pursuant to a pan-Canadian settlement which assigned a supervisory role to the superior courts of the three provinces.
In 2012, class counsel suggested that the three supervisory judges sit together in Edmonton to hear parallel motions arising under the settlement agreement, a proposition to which the Attorneys General of Ontario, British Columbia and Quebec all objected. Class counsel brought motions for directions in all three provinces.
Sitting as a judge of the Ontario Superior Court, former Chief Justice Winkler held that an Ontario Superior Court judge has the discretionary authority to conduct a hearing outside of the boundaries of the province. He also held that it was appropriate to exercise that authority in this case.
Chief Justice Winkler held that Ontario's supervisory judge could sit outside of Ontario with his colleagues from British Columbia and Quebec to hear an issue arising from previous motions filed by class counsel in all three provinces to permit the late filing of claims to the settlement fund. He explained that where the Superior Court of Justice has subject matter and personal jurisdiction over a proceeding, the court could conduct a hearing outside the province as a function of its inherent jurisdiction to fully control its own process. Moreover, in the case of a national class action that would greatly benefit from inter-provincial judicial cooperation, it was in the interests of justice for the three supervisory judges to sit together to hear the claims extension motions. The alternative of each judge sitting in his home province linked to the others by video would be "disruptive and inadequate".
The Attorney General of Ontario appealed.
The central issue on appeal was whether the motion judge erred in concluding that a judge of Ontario's Superior Court of Justice, acting as a supervisory judge under the settlement agreement, could conduct a hearing outside of Ontario. Specifically, the Court considered whether there were any constitutional, common law or statutory barriers to employing the inherent powers of the court to conduct an out-of-province hearing, whether the open court principle prevented an Ontario judge from conducting a hearing outside Ontario and whether the motion judge properly exercised his discretionary authority.
With each of the three members of the panel writing a separate opinion, the Court of Appeal was divided not only on these questions, but also on the preliminary matter of jurisdiction.
While Juriansz J.A. found that Chief Justice Winkler made an interlocutory order, with appeal properly to the Divisional Court, a majority of the Court held that the order was final and that it had jurisdiction to hear the appeal.
Noting that the underlying class actions had been resolved by the settlement agreement, Justice LaForme held that class counsel's request was not unlike an application under Rule 14.05(3)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to determine legal rights. Lauwers J.A. agreed with LaForme J.A. that Chief Justice Winkler disposed of the motion on the merits by granting declaratory relief in a form that was consistent with the moving party's position. Accordingly, the order was final for the same reasons that an order resolving a Rule 14 application is final, despite the fact that another issue between the parties remained to be determined.
Justice Juriansz differed, holding that the motion for directions was not akin to a freestanding application but rather was connected to a specific and pending dispute. The "real matter in dispute between the parties" under the Hendrickson v. Kallio, [1932] O.R. 675 (C.A.), test was whether the court should extend the deadline for filing first claims. He held that Chief Justice Winkler's decision merely determined the issue of where the court could sit to hear the real matter in dispute; the merits of that matter were left to be determined.
Because the majority of the Court held that it had jurisdiction to hear the appeal, Justice Juriansz proceeded to consider the appeal on its merits. On this issue, he formed part of the majority, concurring with Lauwers J.A. that the "open court principle" and s. 135(1) of the Courts of Justice Act R.S.O. 1990, c. C.43 require a video link to an Ontario courtroom if the Superior Court is to sit outside of the province to ensure that the Ontario public has access to the proceedings. The open court principle and s. 135(1) of the CJA are express limitations on the court's inherent jurisdiction to hold a hearing outside Ontario.
LaForme J.A. differed, finding no constitutional, common law or statutory barriers preventing the motion judge from holding a joint hearing outside of Ontario. He also held that the open court principle does not preclude an Ontario judge from holding a hearing outside the province. Citing the Court's decision in 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2013 ONCA 279, Justice LaForme further held that the motion judge properly exercised his discretionary authority. He noted that the motion judge's decision was based on the record and that no one had indicated any palpable and overriding error of fact or demonstrated that his decision was unreasonable.
In one respect, the panel was unanimous. Although the appeal was technically moot, with the underlying motions all decided, the Court agreed that it was appropriate to decide the appeal due to its national importance and the social cost of leaving it unsettled. As LaForme J.A. explained,
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