Canada: Top 5 Civil Appeals From The Court Of Appeal - May 2015

Last Updated: June 10 2015
Article by Jason Squire

1. Keatley Surveying Ltd. v. Teranet Inc., 2015 ONCA 248 (Weiler, Sharpe and Blair JJ.A.), April 14, 2015

2. Prince Edward County Field Naturalists v. Ostrander Point GP Inc., 2015 ONCA 269 (Cronk, Juriansz and Epstein JJ.A.), April 20, 2015

3. Bouzari v. Bahremani, 2015 ONCA 275 (Juriansz, Rouleau and van Rensburg JJ.A.), April 21, 2015

4. Soboczynski v. Beauchamp, 2015 ONCA 282 (Hoy A.C.J.O., Epstein and Hourigan JJ.A.), April 23, 2015

5. Erickson & Partners v. Ontario (Health and Long-Term Care), 2015 ONCA 285 (Feldman, Benotto and Brown JJ.A.), April 27, 2015


1. Keatley Surveying Ltd. v. Teranet Inc., 2015 ONCA 248 (Weiler, Sharpe and Blair JJ.A.), April 14, 2015

This appeal concerned the certification of a class action by land surveyors seeking to assert a copyright claim to plans of survey registered in Ontario's land registry system.

The appellant, Teranet Inc., manages Ontario's electronic land registry system. It provides electronic copies of registered plans of survey - including drawings, maps, charts and plans - to members of the public for a prescribed fee, but pays no fees or royalties to the land surveyors who prepared them. The respondent, Keatley Surveying Ltd., sought certification of a proposed class proceeding on behalf of the more than three hundred land surveyors in private practice in Ontario whose survey documents appear in Teranet's database. Keatley claimed that land surveyors retain copyright in the plans of survey they prepare and register in Teranet and that the provision of copies of surveys to users of the system infringes that copyright.

The class proceedings judge declined to certify the action. She held that while the pleadings disclosed a proper cause of action, Keatley failed to satisfy other criteria for certification. Specifically, she held that Keatley failed to show an identifiable class, that more than one proposed common issue was potentially certifiable, that a class proceeding was the preferable procedure, that Keatley was representative of the proposed class and that the litigation plan was workable.

On appeal to the Divisional Court, the class definition and the common issues were revised and the action was certified as a class proceeding. With leave to appeal the Divisional Court's decision, Teranet challenged the certification of the action.

The appellant argued that the Divisional Court erred in considering revised proposals for certification that differed from those presented to the motion judge. Writing for the Court of Appeal, Sharpe J.A. rejected this submission, finding that the recast definition of the class did not fundamentally change the nature of the case in a way that would prejudice Teranet. There was "substantial similarity" between the two sets of proposed common issues, with the "conceptual core" of the case remaining unchanged. Sharpe J.A. further found that the change did not deprive Teranet of an opportunity to respond, noting that Teranet neither required nor sought an adjournment to do so.

The Court of Appeal also disagreed with Teranet's submission that, in any event, the action failed to meet the test for certification, arguing that the Divisional Court erred in granting certification on the basis of the revised proposals as to identifiable class, common issues, preferable procedure and representative plaintiff. The Court found the Divisional Court was correct to certify the action, even if the representative plaintiff was the only class member who subjectively wanted to assert a claim.

Finally, Sharpe J.A. found that it was reasonable for the Divisional Court to accept the amended litigation plan provided on appeal, and to refer the details to the common issues judge, who would be best able to determine how to resolve complex individual issues. He noted that developing a detailed litigation plan at this early stage in the proceeding would be difficult, if not impossible.

2. Prince Edward County Field Naturalists v. Ostrander Point GP Inc., 2015 ONCA 269 (Cronk, Juriansz and Epstein JJ.A.), April 20, 2015

In this decision, the Court of Appeal considered the means by which the Environmental Review Tribunal applied the "serious and irreversible harm" test under the Environmental Protection Act, R.S.O. 1990, c.E.19 (the "Act") to a proposed wind farm in Prince Edward County.

The Director for the Ministry of the Environment granted the respondent Ostrander Point GP Inc. a Renewable Energy Approval ("REA") permitting it to construct and operate a wind farm consisting of nine wind turbines on a parcel of Crown land in Prince Edward County.

The appellant, Prince Edward County Field Naturalists, filed an appeal of the Director's decision to grant the REA, claiming that the project would cause serious and irreversible harm to a variety of animal and plant species and the natural environment. The Alliance to Protect Prince Edward County also filed an appeal, claiming that the project would cause serious harm to human health.

The Environmental Review Tribunal has jurisdiction to review the Director's decision to grant an REA pursuant to s. 145.2.1(2) of the Act, which provides that it shall consider whether engaging in the renewable energy project in accordance with the renewable energy approval will cause:

(a) serious harm to human health; or
(b) serious and irreversible harm to plant life, animal life or the natural environment.

The Tribunal found that the Ostrander project would not cause serious harm to human health and dismissed the Alliance's appeal. It also rejected the Field Naturalists' submissions that the project would cause serious and irreversible harm to birds, bats, butterflies, alvar plants and the alvar ecosystem.

The Tribunal agreed with the Field Naturalists, however, that the project would cause serious and irreversible harm to one animal species, the Blanding's turtle, a semi-aquatic freshwater turtle that is designated as a threatened species under the Ontario Endangered Species Act, 2007, S.O. 2007, chapter 6 and the Federal Species at Risk Act, S.C. 2002, chapter 29. The Tribunal allowed the Field Naturalists' appeal with respect to the Blanding's turtle and revoked the REA.

The Field Naturalists appealed to the Divisional Court from the Tribunal's dismissal of their appeal regarding serious and irreversible harm to birds and alvar. Ostrander and the Director appealed from the Tribunal's finding of serious and irreversible harm to the Blanding's turtle and its decision to revoke the REA.

The Divisional Court dismissed the Field Naturalists' appeal and allowed the appeal of Ostrander and the Director, setting aside the Tribunal's finding of serious and irreversible harm to the Blanding's turtle and the revocation of the REA.

With leave, the issue on appeal was whether the Divisional Court applied the appropriate standard of review to the Tribunal's decision. The Divisional Court found that the Tribunal's analysis was faulty in law because its reasons did not reveal "a separate and intelligible analysis on the issue of irreversible harm" that it could review. The Court held that in considering the issue of "serious and irreversible harm" with respect to the Blanding's turtle, the Tribunal failed to separate "serious harm" factor from "irreversible harm", thereby failing to produce reasons which were intelligible and capable of review.

Writing for the Court of Appeal, Juriansz J.A. agreed with the Divisional Court that the serious harm factor and the irreversible harm factor address two very different issues. He found, however, that the Tribunal was clearly aware that the test for serious and irreversible harm involves both factors, noting that when considering potential damage to alvar vegetation and the alvar ecosystem, the Tribunal conducted an analysis in which it kept the two factors separate.

Juriansz J.A. observed that at the hearing before the Tribunal, all of the parties agreed that the project would inevitably result in an increase in the mortality of the Blanding's turtle. The loss of life of a threatened species with a slow reproductive rate can only constitute "serious harm" to that species. The Divisional Court recognized this, holding that it was "unquestionable" that the project posed "a risk of serious harm" to the Blanding's turtle: given the "fragile status" of the Blanding's turtle, "it would be difficult to characterize any increase in mortality arising from the Project as anything other than serious." The Divisional Court therefore characterized "the real issue" as whether the harm was also irreversible.

The Court of Appeal found that, in applying the serious and irreversible harm test in the case of the Blanding's turtle, there was no need for the Tribunal to separately analyze what was evident and undisputed, namely whether the harm was serious. As the Divisional Court itself acknowledged, the only real question for the Tribunal to decide was whether the increase in the Blanding's turtle mortality would be irreversible. The Tribunal's reasons appropriately focused on that issue.

Juriansz J.A. agreed with the Divisional Court, however, that the Tribunal denied the parties procedural fairness when it revoked the REA without hearing their submissions. The Tribunal ought to have allowed the parties to address the appropriate remedy before it rendered its decision.  Juriansz J.A. allowed Ostrander's cross-appeal to admit evidence of steps it has taken to ameliorate the impact of the project on the Blanding's turtle.

The Court allowed the appeal on the merits, restoring the Tribunal's decision that the Ostrander project would cause serious and irreversible harm to the Blanding's turtle. The Court dismissed the appeal from the Divisional Court's finding that the Tribunal erred in dealing with remedy, remitting the matter back to the Tribunal to consider remedy after hearing the parties' submissions.

3. Bouzari v. Bahremani, 2015 ONCA 275 (Juriansz, Rouleau and van Rensburg JJ.A.), April 21, 2015

This appeal concerns whether a claim for abduction, imprisonment and torture in Iran should be litigated in Ontario or England. Bouzari was a former Iranian national who is now a Canadian citizen, residing in Ontario. He claimed that Mehdi Hashemi Bahremani, the son of one of Iran's former presidents, compelled his abduction, imprisonment and torture due to his refusal to pay a bribe in connection with his dealings in Iran's South Pars gas field. Bouzari and his family sued Hashemi in Ontario.

Hashemi did not defend the Ontario action. Several years later, Bouzari obtained default judgment against Hashemi, who was then was living and studying in England on a temporary visa and claimed to have been unaware of the proceedings until the media asked for his comment on the default judgment.

Hashemi retained counsel in Ontario and moved to set aside the default judgment, denying any involvement in the events forming the basis of the claim and asserting his intention to defend himself in the appropriate jurisdiction. His motion was granted on consent, with terms permitting him to move to challenge the forum.

The parties agreed that it was impossible to litigate the dispute in Iran, the natural forum for the litigation of the dispute. Hashemi, a citizen of Iran with no connection to Canada, asserted that the Ontario action should be stayed in favour of Bouzari and his family commencing proceedings in England. Hashemi had attempted to secure a visa to enter Canada, including for the purpose of defending against the action. By the time the forum non conveniens motion was heard, Hashemi had voluntarily returned to Iran to face prosecution, and was prohibited from leaving that country.

Referring to Club Resorts Limited v. Van Breda, 2012 SCC 17, the motion judge found that Hashemi had not met his burden of proving that England was clearly a more appropriate forum than Ontario. She dismissed the motion to stay the Ontario proceedings. Hashemi successfully appealed.

The Court of Appeal noted that the motion judge's conclusion was discretionary and entitled to deference, but found that two significant errors of fact informed the exercise of that discretion. The Court took issue with the motion judge's determination that there was "no evidence" that Hashemi would be denied entry into Canada to defend the litigation, finding that this conclusion was unreasonable when all of the appellant's prior efforts had been unsuccessful. The fact that Hashemi was twice denied a visa to enter Canada for the very purpose of participating in these proceedings amply supported the inference that he would be denied entry in the future.

The Court found that the motion judge also erred when, in considering the procedural advantages of each jurisdiction, she concluded that deferring to an English court might deprive the respondents of certain rights. The Court noted that it was not incumbent on Hashemi to prove that English law is the same as, or would afford the same benefits as, Canadian law. While the loss of a juridical advantage to a party can be a relevant consideration in the forum conveniens analysis, it is a concept that "should be applied with some caution, having regard to the principle of comity and 'an attitude of respect for the courts and legal systems of other countries, many of which have the same basic values as us'".

Conducting a fresh forum non conveniens analysis, the Court of Appeal found that the twin objectives guiding the determination of the appropriate forum, ensuring fairness to the parties and providing an efficient process for resolving their dispute, would both be better met through litigation in England.

The Court noted that while Bouzari lived in Ontario and preferred to litigate there, his residence was the sole factor connecting Ontario to the proceeding. Meanwhile, Hashemi had no connection to Ontario or to Canada and the evidence demonstrated that he would not be able to enter Canada to attend trial or participate in the proceedings. Both parties, however, had some connection to England. Bouzari had real property in the country and operated a business there that was his source of income. He often travelled to England. While Hashemi was currently in Iran under "unclear circumstances", he tendered evidence that he was resident in England and had only returned to Iran temporarily in order to participate in legal proceedings there. Moreover, he held a series of visas permitting him to enter England for several years. The Court further noted that all of the witnesses except for Bouzari and one other party resided outside of Canada, in Iran or in Europe. A trial in England would accordingly require much less travel when all of the participants were considered.

Bouzari submitted that Hashemi's location and status were unpredictable and subject to change, arguing that he should not have to pursue him across the globe. He also pointed out that as long as Hashemi is unable to leave Iran, he will be compelled to participate in the action remotely, regardless whether it proceeds in Ontario or in England. The Court acknowledged both of these points, but noted that Hashemi had already consented to the action proceeding in England. Further, while Hashemi could not presently leave Iran, the trial might not take place for several years. Either way, he would be unable to enter Canada. While it was possible that Hashemi would not be able to attend trial in England, it was certain that he would not be able to attend in Ontario.

The Court concluded that the appellant satisfied the burden of establishing that England was a more appropriate forum for the litigation and that the Ontario proceedings must be stayed in favour of litigation in England.

4. Soboczynski v. Beauchamp, 2015 ONCA 282 (Hoy A.C.J.O., Epstein and Hourigan JJ.A.), April 23, 2015

This appeal raised the question of whether a purchaser could sue a vendor for representations made after entering into an agreement of purchase and sale ("APS") of a house, but before closing.

The Beauchamps sold their home to the Soboczynskis. Following the execution of an agreement of purchase and sale but prior to the closing of the transaction, the Beauchamps completed a Seller Property Information Statement ("SPIS") at the request of the Soboczynskis, in which they stated that the property was not subject to flooding. They also undertook to inform the Soboczynskis of any "important changes" to the information contained in the SPIS based on events, if any, that occurred prior to closing.

Prior to closing, the basement of the house flooded, causing minor damage. The Beauchamps fixed the damage but did not disclose the incident to the Soboczynskis.

The transaction closed as scheduled. Shortly thereafter, the basement flooded again.

When the Soboczynskis learned of the pre-closing flood, they sued the Beauchamps for damages based on negligent misrepresentation, claiming that Beauchamps were required to disclose the pre-closing flood to them pursuant to the SPIS.

The trial judge found that the entire agreement clause in the APS acted as a bar to the Soboczynskis' action. He proceeded to assess damages in any event, concluding that if the Soboczynskis had been successful, they would have been entitled to $25,000 in damages for negligent misrepresentation. The Divisional Court disagreed, noting that the SPIS required the Beauchamps to tell the Soboczynskis about the pre-closing flood and that they had failed to do so. The Court awarded damages to the Soboczynskis in the amount assessed by the trial judge. The Beauchamps successfully appealed.

Writing for the Court of Appeal, Epstein J.A. agreed with the Divisional Court that the representations the Beauchamps made in the SPIS were actionable notwithstanding the entire agreement clause in the APS. The entire agreement clause operated retrospectively, not prospectively: the clause applied to representations, warranties, collateral agreements and conditions made prior to or during the negotiations leading to the signing of the agreement of purchase and sale, not after. When the Beauchamps made the representations in the SPIS, a document completed after the execution of the APS, the entire agreement clause was spent. Accordingly, any consequences flowing from representations made in the SPIS were beyond the reach of the entire agreement clause.

Despite finding that the Soboczynskis were entitled to advance a claim in negligent misrepresentation based on information contained in the SPIS, Epstein J.A. held that the Soboczynskis failed to establish that claim because they did not establish the fourth element for negligent misrepresentation: that they relied on the appellants' misrepresentation to their detriment. In the absence of reasonable reliance, the Soboczynskis' claim must fail.

Actions for negligent misrepresentation are guided by the principle that the plaintiff is entitled to be put in the position he would have been in had the misrepresentation not been made. However, had the Beachamps advised the Soboczynskis of the pre-closing flood, the Soboczynskis' position in relation to their obligations under the APS would not have changed: they would still have been required to complete the transaction. Epstein J.A. concluded that the Divisional Court erred in finding that the Soboczynskis had successfully established a claim for damages based on negligent misrepresentation.

5. Erickson & Partners v. Ontario (Health and Long-Term Care), 2015 ONCA 285 (Feldman, Benotto and Brown JJ.A.), April 27, 2015

This appeal clarifies how costs are to be apportioned between a personal injury plaintiff and Ontario Health Insurance Plan's ("OHIP") subrogated claim.

Under the Ontario Health Insurance Act, R.S.O. 1990, chapter H-6 (the "Act"), when an insured person commences an action to recover damages for personal injuries arising out of the negligence or other wrongful act or omission of a third party, he or she must include a claim on behalf of OHIP for the cost of any insured medical services provided in respect of the injury suffered.

Section 39(6) of the General Regulation made under the Act outlines the portion of the costs of the action for which OHIP is responsible:

39.(6) Subject to subsection (8), where an insured person obtains a final judgment in an action in which he or she includes a claim on behalf of [OHIP], [OHIP] shall bear the same proportion of the taxable costs otherwise payable by the insured person, whether on a party and party basis or on a solicitor and client basis, as the recovery made on behalf of [OHIP] bears to the total recovery of the insured person in the action or, where no recovery is made, as the assessed claim of [OHIP] bears to the total damages of the insured person assessed by the court.

Erickson & Partners, a Thunder Bay law firm, commenced an application seeking a declaration regarding how OHIP's share of costs should be calculated, specifically the meaning of the phrase "the total recovery of the insured person" found in section 39(6).

The law firm asserted that the phrase "the total recovery of the insured person in the action" is limited to the amount of the personal damages recovered by the insured person, such as general damages and loss of income, and should not include the amount recovered under OHIP's subrogated claim. Brown J.A. rejected that submission. Since the cause of action for the recovery of the costs of medical services incurred as a result of the injury remains that of the injured person, "the total recovery of the insured person in the action" necessarily includes amounts recovered in respect of the subrogated claim advanced on behalf of OHIP for the cost of insured medical services. Brown J.A. concluded that the application judge correctly interpreted section 39(6) of the Regulation to include the "recovery made on behalf of [OHIP]" in "the total recovery of the insured person in the action".

Brown J.A. found, however, that the application judge's four-step approach to the calculation of OHIP's share of costs unduly complicated the treatment of costs recovered by an insured person through a judgment or settlement. Brown J.A. clarified that where an insured person recovers costs as part of a judgment or settlement, those costs should be deducted from the total costs in order to determine "the taxable costs otherwise payable by the insured person" to their lawyer. Once the net costs due to the lawyer are calculated, one can calculate OHIP's proportionate share of those net costs by using the formula found in section 39(6).

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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