Canada: Court Of Appeal Summaries (November 23-27)

Last Updated: December 2 2015
Article by John Polyzogopoulos

The Court of Appeal released a number of civil decisions this week.

Blaney's own Jason Mangano was counsel for the successful respondent insurer in Forsythe v Westfall in which the Ontario Court of Appeal held that that the applicable law of the insurance policy for the defendant driver is not relevant in determining whether there is a real and substantial connection between the MVA claim and the jurisdiction in which that claim was commenced.

Other topics this week included limitation periods for claims of police liability, wrongful dismissal, property line dispute, a private right of action with respect to contamination under the Environmental Protection Act, and various procedural issues.

Civil Cases

Forsythe v Westfall, 2015 ONCA 810

[Gillese, Blair, MacFarland, Pepall and Benotto JJ.A.]

Counsel:

L. Rachlin, for the appellant

L. Brooks and Victor Galleguillos, for the respondent Michael Westfall

Jason P. Mangano of Blaney McMurtry LLP, for the respondent Intact Insurance Company

M. Cameron, for the intervener Ontario Trial Lawyers Association

Keywords: Torts, Motor Vehicle Accident, Insurance Law, Automobile Policy, Coverage Dispute, Jurisdiction, Van Breda, Real and Substantial Connection, Presumptive Connecting Factors, Forum Non Conveniens, Forum of Necessity, Appeal Dismissed

Facts:

The appellant was a passenger on a motorcycle owned and operated by Mr. Westfall when they were involved in a single vehicle accident in British Columbia. Mr. Westfall does not admit negligence and blamed the accident on an unidentified vehicle crossing into his lane of traffic. He was insured under a standard automobile insurance policy in Alberta. The appellant was an Ontario resident with a standard automobile policy issued to her by AXA in Ontario. Her policy requires that she sue in Ontario to determine whether she has coverage or not. She was treated for her injuries in British Columbia, Alberta, and Ontario.

The appellant sought damages for her injuries against Mr. Westfall, his insurer, AXA, and the unidentified driver. Mr. Westfall moved to have the action against him stayed on the basis that the Ontario court lacked jurisdiction over him. The motion judge agreed with Mr. Westfall's position on the basis that there was not a real and substantial connection between the matter, the parties, and Ontario. He held that the appellant's Ontario automobile insurance policy was not a factor that satisfied the real and substantial connection test, and followed the Court of Appeal's previous decision in Tamminga v. Tamminga in that regard.

Issues:

1) Is the appellant's insurance contract a presumptive connecting factor that gives this court jurisdiction over the entire dispute, including her claim against Westfall? Should this court overrule or distinguish its decision in Tamminga?

2) Should this court recognize a new presumptive connecting factor on the facts of this case?

3) Did the motion judge err by failing to extend the forum of necessity doctrine to the circumstances of this case?

Holding: Appeal dismissed by a five-member panel of the court.

Reasoning:

(1) No, the appellant's automobile insurance contract is not a presumptive connecting factor pursuant to the test set out by the Supreme Court in Club Resorts Ltd. v. Van Breda. The appellant only sued Mr. Westfall in tort. There was no nexus between the appellant's insurance contract and the respondents. Further, Tamminga cannot be distinguished. The principles set out in Tamminga are equally applicable to unidentified, uninsured, or underinsured drivers. In addition, the court in Tamminga was aware that the plaintiffs were required to litigate claims against their insurers in Ontario.

(2) No, a new factor based on the appellant's insurance contract, the regulatory requirement, the appellant residing in Ontario, the appellant sustaining damages in Ontario, and the requirement to bring a suit in two jurisdictions would not go to jurisdiction simpliciter. However, they may be appropriate considerations once jurisdiction is established in a forum non conveniens analysis.

(3) No, the forum of necessity doctrine is only available in extraordinary and exceptional circumstances where the need to ensure access to justice justifies the court's assumption of jurisdiction. According to the Ontario Court of Appeal in West Van Inc. v. Daisley, for Ontario to accept jurisdiction, the appellant must establish that there is no other forum in which she can reasonably seek relief. The appellant has not established this as she has pursued a claim against Mr. Westfall in British Columbia, and she may also continue her claim against AXA in Ontario. There is no chance that the appellant will be denied access to justice in this case.

Cassidy v. Belleville (Police Service), 2015 ONCA 794

[Cronk, Epstein and Huscroft JJ.A.]

Counsel:

R. S. Baldwin and J. Sewell, for the appellant

Muszynski and K. Cooke, for the respondents

Keywords: Torts, Negligence, Police Liability, Limitation Period, Limitations Act, 2002, ss. 5(2) Discoverability, Summary Judgment, Appeal Dismissed

Facts:

On August 18, 2009, Officer Groen pulled over the appellant, Paula Cassidy while she was driving and confiscated the car on the basis that it was stolen. This forced Cassidy and her children to find their own way home. Cassidy was pregnant at that time and alleges that she suffered medical complications relating to her pregnancy as a result of Officer Groen's conduct.

Cassidy wrote to a lawyer on August 24, 2009, asking whether she should pursue a civil action, but did not commence her claim at that time. Cassidy instead complained to the Ontario Civilian Police Service and her complaint to that body was upheld on November 29, 2012. Following the release of that decision, Cassidy commenced her action against the respondents, which was more than four years following the incident.

A motion was brought to determine when the limitation period commenced. Cassidy argued that the limitation period began when the Ontario Civilian Police Service released its decision because this is the date that she was informed of the standard of care required of police officers. The motion judge granted a summary judgment on the basis that the claim was barred by operation of the two-year limitation period, holding that the limitation period commenced at the earliest on the date of the incident, and at the latest, the date the appellant wrote to a lawyer.

Issues:

Did the motion judge err in determining when the limitation period commenced?

Holding:

Appeal dismissed.

Reasoning:

No. A claim is discovered on the date the claimant knew, or ought to have known, of the material facts giving rise to the claim. Under ss. 5(2) of the Limitations Act, 2002, Cassidy knew of the matters giving rise to her potential claim on the day the incident took place unless she could prove to the contrary.

Although the administrative proceeding provided additional information to support Cassidy's claim, the discoverability of her claim did not depend on it. The discovery of sufficient material facts to trigger commencement of the limitation period did not require a precise knowledge of the applicable standard of care for a police officer.

Michela v. St. Thomas of Villanova Catholic School, 2015 ONCA 801

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

Counsel:

D. Wright and S. Moreau, for the appellants/respondents by way of cross-appeal

B. St. John and J. Rochwerg, for the respondent/appellant by way of cross-appeal

Keywords: Employment Law, Wrongful Dismissal, Notice Period, Payment in Lieu of Notice, Offers to Settle, Rule 49, Costs

Facts:

The appellants, who were teachers at a private school, were terminated from their employment and sued for wrongful dismissal. Judgment was granted in their favour on a motion for summary judgment, however, the motion judge, who initially found that the proper notice period should be twelve months, reduced that period to six months as a result of the respondent employer's financial difficulties. He also awarded the teachers costs in the amount of $42,000 on a partial indemnity basis, which was an amount that was discount from their actual partial indemnity costs of approximately $68,500 because the appellants were not entirely successful. The teachers appealed and the employer sought leave to cross-appeal on the issue of costs.

Issues:

The appellants raise three issues on appeal:

(1) Did the motion judge err in law in relying on the respondent's alleged financial difficulties to reduce the notice period?

(2) Did the motion judge err in law in presuming that there may be positions the appellants could secure six months following their termination?

(3) Did the motion judge make a palpable and overriding error of fact in finding that enrolment issues constituted a financial problem permitting a reduction in the notice period to six months?

(4) What was the appropriate costs award?

Holding: Appeal allowed, leave to cross-appeal denied.

Reasoning:

(1) The court held that the motion judge erred in considering the employer's financial circumstances as part of the "character of the employment" in deciding to reduce the notice period to six months. A consideration of the character of the employment refers to the nature of the position that had been held by the employee-the level of responsibility, expertise etc., not the circumstances of the employer.

(2) The court held that there was no evidentiary basis for the motion judge's presumption concerning the future availability of teaching positions. It was a matter of speculation and was inconsistent with his conclusion that the appellants took all reasonable steps to mitigate their damages. This finding did not support the decision to reduce the notice period.

(3) Given the conclusion on the first issue, it was not necessary to address the third issue.

(4) Given the appellants' success on the appeal and given that the amount of their entitlement was greater than the amount they had been prepared to accept under a Rule 49 offer, they were entitled to the full amount of their partial indemnity costs of just over $68,500.

Aletkina v. The Hospital for Sick Children, 2015 ONCA 804 (Endorsement)

[ Hoy A.C.J.O., MacFarland and Lauwers JJ.A.]

Counsel:

Aletkina, acting in person

Young, for the respondent

Keywords: Employment Law, Wrongful Dismissal, Legal Disability, Suspension of Limitation Period, Test for Stay, Substitute Decisions Act, ss. 2, ss. 6 & ss. 45, Capacity Assessment, Litigation Guardian, Motion Dismissed

Facts: The plaintiff/moving party sued her employer, the defendant/respondent Hospital for Sick Children, for wrongful dismissal. The moving party seeks from the Court of Appeal a review of the order of Roberts J.A., dismissing her motion for a stay and an order for a capacity assessment. The moving party argued that she was under a legal disability that suspended the running of the limitation period, but there was no medical opinion to support such a finding. The moving party brought numerous motions that were dismissed. Roberts J.A. concluded that she failed to meet the test for a stay and that there was insufficient evidence to rebut the presumption of capacity set out in s. 2 of the Substitute Decisions Act and that her submission that she lacked legal capacity to conduct these proceedings was not demonstrated by the evidence.

Issues:

Did the moving party have sufficient evidence to rebut the presumption of capacity under s.2 of the Substitute Decisions Act, such that an order for a stay ought to have been granted?

Holding: The motion to review was dismissed.

Reasoning:

The evidence filed demonstrated a history of the moving party attempting to have her treating physicians offer an opinion that she was without legal capacity to conduct legal proceedings, and none offered any such opinion, despite her persistent efforts. This court had previously dismissed the request for a capacity assessment. In these circumstances, this court had limited jurisdiction. It could order a stay pending an application for leave to appeal to the Supreme Court of Canada, however, any request for further relief should be made either to the Supreme Court of Canada or to the Superior Court of Justice in relation to any aspect of the trial. The rules provide that a person under a disability which includes a person who is incapable within the meaning of s. 6 or s. 45 of the Substitute Decisions Act, is to be represented by a litigation guardian who may in appropriate circumstances be the Public Guardian and Trustee. The Substitute Decisions Act requires determination of legal capacity to be made by "assessors" as defined in the regulations to that Act. It was open to the moving party to request an assessment of her own capacity under s. 16 of the Act by following the procedures that are laid out in that Act.

H.E. v. M.M., 2015 ONCA 813

[Hoy A.C.J.O, Weiler and Pardu JJ.A.]

Counsel:

A. A. Green and E. M. Carroll, for the appellant

R. Peticca, for the respondent

Keywords: Child Abduction, Custody, Best Interests of the Child, Test for Jurisdiction, Assumption of Jurisdiction, Attornment, Children's Law Reform Act ss. 22(1)(b), ss.23 & ss.25, Allegations of Abuse, Serious Harm, Fresh Evidence, R. v. Palmer Test

Facts:

The appellant, Ms. H.E., was living in Egypt with her children when she moved to Ontario. She sought custody of the children under the CLRA. The respondent's position was that the court should not assume jurisdiction. The appellant had abducted their children from Egypt, their last habitual residence and the proper jurisdiction in which to resolve the issue of custody.

The trial judge found that the appellant had attorned to the jurisdiction of the Egyptian court. He found there was no basis to assume jurisdiction to decide the issue of custody and dismissed the appellant's application. He found that the appellant's allegations of abuse by the respondent were relevant to the issue of controlled access, but not to the issue of jurisdiction. He concluded that the appellant should not be "rewarded" for wrongfully removing the children and ordered their return to Egypt. The appellant appealed the trial judge's refusal to assume jurisdiction. She also brought a motion to introduce fresh evidence on appeal.

Issues:

(1) Did the trial judge err in declining to assume jurisdiction under the Children's Law Reform Act, R.S.O. 1990, c. C.12 (CLRA), to decide custody of the parties' two children, E.M. and R.M., Canadian citizens?

(a) Did the trial judge err in finding that the appellant attorned to the Egyptian court's jurisdiction?

(b) Did the trial judge err in declining jurisdiction under s. 23 of the CLRA?

(c) Did the trial judge err in declining jurisdiction under s. 22(1)(b) of the CLRA?

(d) Did the trial judge err in holding that the appellant's allegations of abuse were not relevant to the determination of jurisdiction?

(2) Should the appellant's motion to adduce fresh evidence be allowed?

Holding: Appeal allowed.

Reasoning:

(1) (a) Yes. The trial judge erred in finding that attornment was crucial to whether the court had jurisdiction to entertain the custody claim. Standing alone, attornment can be at most, one of the factors to consider in the analysis under s. 22(1)(b) or the decision whether to decline jurisdiction under s. 25. The CLRA mandates a child-centered approach based on the best interests of the child in discouraging child abduction.

(1) (b) Yes. The trial judge erred in basing his decision not to exercise jurisdiction under s. 23 on his finding that the children had been wrongfully removed from Egypt. When there is a risk of serious harm to the child, the aim of discouraging child abduction must yield to another purpose of the CLRA, namely, the best interests of the child. While the trial judge did not have the benefit of the fresh evidence of the children's mental health, this evidence confirmed that on a balance of probabilities, there was a serious risk of psychological harm to the children if they were returned to Egypt.

(1) (c) Yes. Once s. 23 has been satisfied, there is no need to conduct an inquiry into s. 22 of the CLRA. However, the court noted that the trial judge also erred in declining jurisdiction under s.22(1)(b), as all criteria were met. There was no issue that the children were physically present in Ontario when the appellant initiated the application. There was substantial evidence demonstrating that the children's best interests were in Ontario. There was no application for custody or access pending before an extra-provincial tribunal in another place where the children was habitually resident. There was no extra-provincial order in respect of custody or access to the children. Finally, the children had a real and substantial connection to Ontario. Therefore, the balance of convenience favoured Ontario.

(1) (d) Yes. The trial judge erred in not considering the allegations of abuse insofar as they were relevant to the court's potential assumption of jurisdiction under s. 23. The allegations were relevant to the question whether the court should assume jurisdiction on account of "serious harm to the child" under s. 23 of the CLRA.

(2) Yes. Under the test established in R. v. Palmer, [1980] 1 S.C.R. 759, to be admissible, fresh evidence must be credible and reasonably capable of belief. Here, evidence of questionable credibility that could have been adduced at trial was not admissible. However, evidence pertaining to the emotional and psychological well-being of the children was admissible. It was not available at trial, it was highly relevant in that it enabled the court to determine jurisdiction with an accurate view of the situation, and it was uncontroverted. Taken with the evidence at trial, it could reasonably be expected to affect the outcome. Therefore, in light of the CLRA's purpose of ensuring that custody applications are determined based on the best interests of the child, it was in the interests of justice to admit the evidence.

Zachary Timoon Dentistry Professional Corporation v. Tonino Ciocca Dentistry Professional Corporation, 2015 ONCA 812

[Epstein, van Rensburg and Hourigan JJ.A.]

Counsel:

W. H. Fysh for the appellants

M. Burgar for the respondents

Keywords: Contract Law, Joint Venture, Termination of a Joint Venture, Valuation Date, Buy-Out, Rules of Civil Procedure, Rule 14.05(3)(d)

Facts:

The appellant, Dr. Ciocca, and the respondent, Dr. Timoon are dentists that entered into a joint venture general dentistry agreement (the "JVA") through their professional corporations, the corporate parties. The JVA provided for termination of the joint venture with 90 days' notice, but did not address the effect of termination, such as dissolution or a buy-out.

Ciocca trained in New York to establish himself in a separate location as a prosthodontic specialist. He eventually purchased a building and developed a clinic for his new speciality. During his training, he continued to work one day a week in the parties' general practice. It was the parties' understanding that their joint venture would terminate and that they would finalize their financial dealings. However, Ciocca was hesitant to leave the general practice until his specialty practice had become sufficiently profitable.

Timoon gave notice of termination pursuant to the JVA with June 30, 2014 as the effective date. The parties agreed that Ciocca would leave the practice and be bought out by Timoon, but they disagreed over the financial details of the buy-out. Timoon applied to the court under rule 14.05(3)(d) of the Rules of Civil Procedure for an order terminating the joint venture. Ciocca opposed Timoon's right to assume ownership of the dental practice on the basis that there had been no valuation of the practice.

The application judge declared the joint venture terminated effective June 30, 2014 and Timoon the sole owner. The application judge ordered all financial disputes to proceed by further application or other civil process and a calculation of the buy-out value payable based on the June 30, 2014 valuation date.

Issues:

Did the application judge err in excluding Ciocca from the practice and providing for the sale of his interest to Timoon?

Holding:

Appeal dismissed.

Reasoning:

No. The application judge had the jurisdiction to make this order. The facts with respect to the termination of the joint venture were not in dispute and the parties agreed on the effective date of termination. The question was the relief required to give effect to the contractual rights of termination of the parties'.

The court rejected Ciocca's argument that he had an ongoing ownership interest and that he should be allowed to continue to participate in the practice while the financial issues are being determined because it would nullify the termination provision in the JVA. The application judge determined that once the JVA was terminated, it was the common intention that Ciocca would have no longer been involved in the practice.

Ciocca argued that he should be entitled to profits as an owner after June 30, 2014. The court clarified ambiguity in the terms by the application judges' order. When read in context, the order must be understood as terminating Ciocca's ownership interest effective the same date as the termination of the joint venture, which was June 30, 2014.

The court rejected Ciocca's argument that the application judge erred in directing further proceedings to determine the financial issues rather than directing the trial of an issue in the application. The application judges' order provides more flexibility for the parties' choice of dispute resolution especially now that they have certainty respecting the date the joint venture was terminated and the status of Ciocca's ownership interest.

RWDI Air Inc. v. N-SCI Technologies Inc., 2015 ONCA 817

[Hoy A.C.J.O., MacFarland and Lauwers JJ.A.]

Counsel:

J. Heimpel, for the appellant

J. Necpal and J. Roth, for the defendants (respondents) Oldman Power, LP, Oldman Power Holdings Inc. and Starwood Energy Group Global, LLC

Keywords: Contract Law, Breach of Contract, Unjust Enrichment, Rules of Civil Procedure, R. 21, Valid Juristic Reason, Amending Statement of Claim, Miguna v. Ontario

Facts:

Starwood are the developers of natural gas-fired power generation facility in Alberta. One or more of the Starwood defendants contracted with N-SCI Technologies Inc. for the supply of engineering and project management services necessary for the development of the facility. N-SCI in turn retained the appellant to provide various engineering services. The appellant provided the services and issued invoices, but N-SCI has failed to pay the invoices to date.

The appellant sued N-SCI and the Starwood defendants, claiming they were unjustly enriched by the services the appellant provided. The Starwood defendants moved to have the statement of claim struck under r.21 of the Rules of Civil Procedure.

The motion judge ruled that it was plain and obvious that the appellant's claim for unjust enrichment against the Starwood defendants could not succeed at trial because the existence of the contract between the Starwood defendants and N-SCI was a valid juristic reason for the enrichment.

Motion judge denied appellant's request for leave to amend the pleading that either the Starwood Defendants were in breach of the contract between themselves and N-SCI, or the contract was invalid. He held there was no basis to add an entirely new allegation of contractual invalidity to the statement of claim.

Issue:

(1) Did the motion judge err by considering only allegations in the statement of claim and not taking into account allegations in N-SCI's statement of defence and cross-claim?

(2) Did the motion judge err in concluding that it was plain and obvious that the appellant's unjust enrichment claim as against the Starwood defendants had no reasonable possibility of success at trial on the basis that the existence of a contract between the Starwood defendants and N-SCI constituted a juristic reason for the Starwood defendant's enrichment?

(3) Did the motion judge err by not permitting the appellant to amend its statement of claim to plead that either the Starwood Defendants were in breach of the contract between themselves and N-SCI or that the contract was invalid?

Holding: Appeal Dismissed

Reasoning:

(1) The court rejected the appellant's first argument. The court held that the motion judge properly considered only the facts pleaded by the appellant. The court held that had the motion judge accepted the facts from both parties, the court would have placed itself in a conflicting position, by accepting conflicting facts.

(2) The court also rejected the second argument. It held that the appellant did not plead any facts that put the validity of the contracts between the Starwood defendants and N-SCI and the appellant in issue. Nor did it assert that the services it provided were outside of the scope of those contracts.

(3) Lastly, the court rejected the appellant's third argument. The court held that the fact that a plaintiff has not previously amended its pleadings is not in itself a basis for interfering with an order denying leave to amend. The court relied on Miguna v. Ontario for the principle that where a plaintiff seeks leave to amend its claim to make new allegations, but it is clear that he does not have knowledge of, and therefore cannot plead, the materials to support the allegation, leave to amend may be refused.

Tags: Contract Law, Breach of Contract, Unjust Enrichment, Rule 21 Rules of Civil Procedure, Valid Juristic Reason, Amending Statement of Claim, Miguna v. Ontario

Martin-Vandenhende v. Myslik, 2015 ONCA 806

[MacPherson, Epstein and Roberts JJ.A.]

Counsel:

N. M. Rouleau, for the appellant

D. M. Miller, for the respondents

Keywords: Civil Law, Negligence, Motor Vehicle Accident, Liability, Apportioning Liability, Contributory Negligence, Finding of Fact, Highway Traffic Act, S. 142(1), Causation, Clements

Facts:

Janice Martin-Vandenhande (the "Appellant") was driving when she turned left into a private laneway to return to work because she forgot something. As she started to turn, Peter Myslik (the "Respondent") hit the Appellant's car on the left side. The Appellant was injured and went to the hospital. No one was charged.

The Appellant maintains that she reduced her speed because of the road conditions and signalled for the turn well in advance. When she was hit, her car did not cross the centre line but was close to it.

Two trials have occurred to determine responsibility for the collision. The first trial judge held that the Respondent was 100% at fault. The Respondent appealed and a new trial was ordered. The second trial judge apportioned 50% liability to both the Appellant and the Respondent. The Appellant appealed. She wants the judge's finding of contributory negligence against her to be overturned because she claims she never breached the standard of care nor caused the accident. Alternatively, she wants to reduce her degree of responsibility to between 5 to 10%.

Issues:

(1) Did the trial judge err in finding the Appellant negligent?

(2) If the Appellant was negligent, did the trial judge err by concluding her negligence was causally connected to the accident?

(3) If the trial judge erred in concluding the Appellant was negligent, what remedy is appropriate?

Holding:

Appeal allowed. The Respondent is 90% responsible and the Appellant is 10% responsible. The Appellant is awarded costs fixed at $20,000 including disbursements and taxes.

Reasoning:

(1) No. The trial judge did not err in finding the Appellant negligent based on her failure to comply with s. 142(1) of the Highway Traffic Act (HTA).

The Respondents argued that by moving into the opposite side of the road, the Appellant made an unsafe lane change. The Court of Appeal agrees with the Appellant that the trial judge did not hold her negligent based on this argument.

The Respondents also argued that the Appellant violated s. 142(1) of the HTA because she did not check her mirrors or blind spot and did not activate her left turn signal. The Appellant argued that the trial judge erred in finding her liable based on breaching s. 142(1) because the section does not apply. The court agreed that she did not safely check to see if she could turn left. Furthermore, s. 142(1) does apply because the provision indicates that before turning, a driver must check to see if it is safe to do so. The record is clear that the Appellant had started to turn left.

(2) Yes. The court agrees with the Appellant that there is no indication that the trial judge considered whether there was any causal connection between her negligence and the collision. It was a demonstrable error to find the Appellant contributorily negligent.

The Respondents have the burden of proving the defence of contributory negligence on a balance of probabilities. The contributory negligence must be causally related to the plaintiff's loss. The Appellant argued that the trial judge erred in failing to evaluate whether her negligence caused or contributed to the loss so the finding should be set aside.

The trial judge's apportionment should not be interfered with unless there is are demonstrable errors in the trial judge's appreciation of the facts or applicable legal principles.

(3) Yes. The Appellant's negligence contributed to the accident. The Respondent is 90% responsible and the Appellant is 10% responsible for the accident.

Another trial should be avoided. Based on the facts, it is clear that the Respondent is primarily responsible for the collision. However, the Appellant was negligent in failing to see if she could turn safely. In determining whether the Appellant's negligence caused the collision, the "but for" test cannot be applied. The court applied the pragmatic and common sense approach from the Supreme Court's decision in Clements v. (Litigation Guardian of) Clements.

The evidence supports the finding that the Appellant's failure to check her mirrors and blind spot, and failure to give adequate warning had a causal connection to the accident. Had the Appellant checked her mirrors, she may not have turned. Similarly, if the Appellant had signalled left, the Respondent may not have misread the Appellant's intention. Apportionment is not based on a precise calculation, it comes from a common sense consideration of the facts.

Schwilgin v. Szivy, 2015 ONCA 816

[Brown JJ.A. (In Chambers)]

Counsel:

Laszlo Schwilgin, acting in person

F. Schumann, appearing as duty counsel

Keywords: Notice of Appeal, Extension of Time, Family Law, Varying Child Support Obligations, Factors Considered

Facts:

Mr. Schwilgin separated from Ms. Szivy in 2002. Their two children lived with their mother until 2013, when they began to live with Mr. Schwilgin. After the children began living with Mr. Schwilgin, he brought a motion to vary his child support obligations. Mr. Schwilgin contends that the motion judge made several errors; however, he did not file an appeal at the proper court within the relevant timeframe. He moved for an extension of time to file a notice of appeal.

Issues:

Should a motion for extension of time to file a notice of appeal be granted?

Holding: Motion dismissed.

Reasoning:

No, an extension of time to file a notice of appeal should not be granted. The factors a court must take into account in considering this type of motion are set out in Kefeli v. Centennial College of Applied Arts and Technology. Mr. Schwilgin did not provide an adequate explanation for his lengthy delay in seeking to appeal to the Court of Appeal. He persisted in first appealing to the Divisional Court, even after opposing counsel informed him that it did not have jurisdiction.

The court was also not persuaded that there was merit in the appeal. Mr. Schwilgin did not identify the errors that he contends the motion judge made as he did not file a draft notice of appeal with his motion. Finally, granting the motion would cause further prejudice to Ms. Szivy as Mr. Schwilgin already owes costs from previous proceedings, and a further cost award would not compensate her as Mr. Schwilgin contends he lacks the resources to pay.

Wabafiyebazu v. Farley Smith & Murray Surveyors Ltd., 2015 ONCA 809

[Cronk, Epstein and Huscroft JJ.A.]

Counsel:

G. N. Wabafiyebazu, appearing in person

C. L. Hluchan, for the respondent

Keywords: Real Property, Encroachments, Summary Judgment, Limitation Periods, Limitations Act, 2002, Jurisdiction, Rules of Civil Procedure, Rule 20, Appeal Dismissed

Facts:

The appellant purchased a lot and planted a hedge along what he understood to be the boundary between his lot and that of his adjoining neighbour, based on information provided by his real estate agent. Several years later, a new owner of the adjoining lot sought to develop his property, and a survey revealed that the appellant's hedge encroached on his property. The neighbour reclaimed the affected land by having the hedge relocated.

The appellant investigated the boundary issue, asserted that the survey was incorrect and did not accept the respondent's explanation regarding the boundary line. The appellant sued the respondent and the Association of Ontario Land Surveyors, seeking various forms of relief.

The Association of Ontario Land Surveyors obtained summary judgment, which was not at issue on this appeal. The respondent also moved for summary judgment. The motion judge found that there was no genuine issue requiring a trial and that the claim was outside the two-year limitation period.

Issues:

(1) Did the motion judge err in granting summary judgment in favour of the respondent?

(2) Did the motion judge lack jurisdiction to proceed with summary judgment?

Holding: No to both – Appeal Dismissed

Reasoning:

(1) The appellant was aware by the summer of 2006 of the encroachment of his hedge on his neighbour's property and of the boundary dispute. He clearly had sufficient information by September 2008 to conclude that he had a cause of action against the respondent. The limitation period commenced to run by no later than September 2008 and thus expired by no later than September 2010.

(2) The appellant also argued that the motion judge had no jurisdiction to proceed with the summary judgment motion because his action had already been set down for trial. He also claimed that he did not consent to the scheduling of a long motion.

The court was satisfied that the respondent was entitled to bring a summary judgment motion under Rule 20 of the Rules of Civil Procedure. Any procedural irregularity in the scheduling of a long motion does not displace the reality that the limitation period had expired by the time the appellant started his action.

Midwest Properties Ltd. v Thordarson, 2015 ONCA 819

[Feldman, Hourigan and Benotto JJ.A.]

Counsel:

E. Van Woudenberg, for the appellant

F. Zechner and C. Du Vernet, for the respondents

S. Nishikawa and I. O'Connor, for the intervener Minister of the Environment and Climate Change

Keywords: Environmental Law, Negligence, Nuisance, Damages, Pollution, Contamination, Punitive Damages, Deference, Environmental Protection Act, s.99(2), Whiten v. Pilot, Appeal Allowed

Facts:

The appellant, Midwest Properties Ltd. ("Midwest"), and the respondent, Thorco Contracting Limited ("Thorco"), own adjoining properties in Toronto. Thorco stored large volumes of waste petroleum hydrocarbons ("PHC") on its property for decades. As a result, PHC contaminated the soil and groundwater on its property. Thus, between the years 1988 to 2011, Thorco was in almost constant breach of its license and/or compliance orders issued by the province.

Groundwater flows from Thorco's property into Midwest's property and contaminated the latter. Midwest discovered the contamination only after it acquired its property in December 2007. Midwest sued Thorco and its owner, Mr. Thoradson, on the basis of (1) breach of s.99(2) of the Environmental Protection Act ("EPA"), (2) nuisance and (3) negligence.

The trial judge held that the respondents were not liable under any of the causes of action. Midwest failed to prove that it had suffered damages and, because the Ministry of the Environment (the "MOE") had already ordered the respondents to remediate Midwest's property, a remedy under s. 99(2) was not available. The trial judge thus found that the EPA should not be interpreted in an "expansive manner" that might permit double recovery.

Midwest appealed and sought judgment for the cost to remediate its property. The Ministry of the Environment intervened in the appeal to contest the trial judge's finding that its order to remediate precluded recovery under s.99(2) of the EPA.

Issues:

(1) Did the trial judge err in finding that recovery under s.99(2) of the EPA is precluded where the MOE has ordered a defendant to remediate a plaintiff's land?

(2) Did the trial judge err in finding that no compensable "loss or damage" under s.99(2) of the EPA was established in the circumstances of this case?

(3) Is Mr. Thordarson personally liable under the EPA?

(4) Did the trial judge err in dismissing the nuisance and negligence claims?

(5) Did the trial judge err in dismissing the claim for punitive damages?

Holding: Yes, appeal allowed.

Reasoning:

(1) The court found that the trial judge erred in her interpretation and application of the private right of action contained in s.99(2) of the EPA, which is designed to provide an effective process for restitution to parties whose property has been contaminated. The trial judge's interpretation of the section was inconsistent with the plain language and context of this provision and it undermined the legislative objective of establishing a distinct ground of liability for polluters. This remedial legislation should be construed purposively and the courts are not to thwart the will of the Legislature by imposing additional requirements for compensation that are not contained in the statute.

(2) The trial judge also dismissed Midwest's s.99(2) claim on the ground that it did not introduce evidence of damage or loss pursuant to s.99 of the EPA. The court found that restricting damages to the diminution of property value is contrary to the wording of the EPA and that the respondents should not be able to use their lengthy history of pollution and non-compliance as a shield to limit the amount of damages owed. Midwest led expert evidence that the reasonable costs of remediating its property, while the respondents did not lead any positive evidence on the costs of remediating Midwest's property. Further, a plain reading of s.99(2) of the EPA suggests that parties are entitled to recover the full cost of remediation from polluters.

(3) s.99(2) of the EPA establishes a right to compensation from "the owner of the pollutant and the person having control of the pollutant." A finding that a corporate principal, director, or officer is a "person having control of a pollutant" is dependent on the factual circumstances of each case. Mr. Thordarson had control of the PHC for the purpose of s.99(2).

(4) The trial judge erred in dismissing these claims on the basis that damage had not been established. There was un-contradicted evidence at trial that established a diminution in the value of the appellant's property and a human health risk. The trial judge made findings that damage had not been established without reference to or consideration of the evidence at trial.

(5) The trial judge also erred in her assessment of punitive damages, as the conduct of the respondents in the circumstances clearly merited a punitive award. Thorco's history of non-compliance and indifference to the environmental condition of its property and surrounding areas demonstrated a wanton disregard for its environmental obligations. This conduct also continued for decades and was clearly driven by profit.

Eco-Tec Inc. v. Lu, 2015 ONCA 818

[Hoy A.C.J.O., Gillese and Lauwers JJ.A.]

Counsel:

R. Huang, for the plaintiff (respondent)

D. Lynne Watt, for the defendants (appellants)

Keywords: Contract Law, Breach of Contract, Jurisdiction, Forum Non Conveniens, Van Breda, Place of Contract

Facts:

Eco-Tec Inc. (the "Respondent") is an Ontario company that researched, developed and manufactured proprietary technology and products. The appellants, Dr. Lu, three Chinese corporations and a corporation incorporated in the British Virgin Islands (the "Appellants") were the Respondent's consultant, agent or distributor in China. They signed a series of confidentiality agreements and business agreements. Some of the confidentiality agreements contained provisions binding the agreement for ten years after their termination.

The Respondent terminated its relationship with the Appellants when they discovered "clones" of its products made by the Chinese companies and a website promoting the products.

The Respondent brought this action against the Appellants in Ontario alleging they unlawfully misappropriated its confidential and proprietary information for their own benefit. The respondents are sued for breach of confidence, breach of contract, breach of fiduciary duty, conspiracy, unjust enrichment and/or unlawful interference with its economic interests. The Appellants tried to stay the action by arguing that Ontario is not the right jurisdiction. They were unsuccessful.

Issues:

(1) Did the motion judge err by finding that Ontario was the correct jurisdiction?

(2) Did the motion judge err by placing the onus on the Appellants to establish an alternative jurisdiction?

Holding: Appeal dismissed.

Reasoning:

(1) No. The motion judge was correct in determining that Ontario was the right jurisdiction because the "place of contract" is in Ontario.

The "real and substantial connection" test from Van Breda should be used. The test has four presumptive connecting factors, including the "place of contract." A contract transmitted instantaneously is made in the jurisdiction where the acceptance is received. It was not necessary to consider the other arguments. The court is not scrutinizing the interrelationship between the various contracts.

(2) No. The motion judge did not err in proceeding on the basis that the onus was on the appellants and her decision is entitled to deference. However, even if the burden were on the respondent, the court is satisfied that order and fairness favour trying this action in Ontario.

The Appellants tried to re-argue forum non conveniens. The Appellants had not discharged their onus of establishing that China was a more appropriate forum for the resolution of this dispute. The motion judge applied the correct test and considered the relevant factors. She did not err in law or principle and the appellants identify no clear and serious factual error. Her allocation of weight among the relevant factors cannot be said to be unreasonable. Her decision is entitled to deference.

Civil Endorsements

Fanshawe College of Applied Arts and Technology v. AU Optronics Corporation, 2015 ONCA 808

[Cronk, Hourigan and Benotto JJ.A.]

Counsel:

Bates and K. McGladdery Dent, for the moving party

Callaghan and A. Zavaglia, for the responding party

Keywords: Civil Procedure, Motion to Quash Pending Appeal, Interlocutory Motion, Res Judicata¸ Appeal Quashed

French v. McColeman, 2015 ONCA 807 (Appeal Book Endorsement)

[Cronk, Epstein and Huscroft JJ.A.]

Counsel:

Julie French, in person

R. Bickle, for the respondent

I. Rinne, for the Office of the Children's Lawyer

Keywords: Civil Procedure, Service, Disclosure, Unfairness to Self-Represented Litigant, Costs Appeal Adjourned

Carter v. 1657593 Ontario Inc. (The Olde Angel Inn), 2015 ONCA 823 (Endorsement)

[Laskin, Pardu and Roberts JJ.A]

Counsel:

D. House, for the appellant

A. Stewart, for the appellant

B. Troup, for the respondent

C. Dilts, for the respondent

Keywords: Employment Law, Wrongful Dismissal, Damages, Duty to Mitigate Damages, Expert Evidence, Appeal Dismissed

D.D. v. Children's Aid Society of Toronto, 2015 ONCA 820

[Laskin, Pardu and Roberts JJ.A]

Counsel:

N. Razack, for the appellant

A. Macri, for the Children's Aid Society of Toronto

E. McCarty, for the Office of the Children's Lawyer

Keywords: Family Law, Custody, Crown Wardship, Adoption, Appeal Dismissed in Part

Santos v. Sangwan, 2015 ONCA 822

[Laskin, Pardu and Roberts JJ.A]

Counsel:

E. Moore, for the appellant

H. Dhaliwal and H. Makkar, for the respondents

Keywords: Civil Procedure, Application, Contract Law, Promissory Note, Fraudulent Misrepresentation, Palpable and Overriding Errors, Rules of Civil Procedure, Rule 38.10, Trial Ordered, Appeal Allowed in Part

Criminal Decisions

R v. A.B., 2015 ONCA 803

[Feldman, Pardu and Brown JJ.A.]

Counsel:

Savard and R. McConchie, for the appellant

D. Lepofsky, for the respondent

Dennison and M. Rahman, for the intervener, Attorney General of Canada

Keywords: Criminal Law, Summary Conviction, Sexual Offences, Sexual Exploitation, Sexual Assault, Criminal Code, s.151, s.271, Canadian Charter of Rights and Freedoms, s.7, s.24(1), Remedies, Principles of Fundamental Justice, Overbreadth, Leave to Appeal Granted, Appeal Dismissed

R. v. D'Souza, 2015 ONCA 803 (Endorsement)

[MacPherson, Tulloch and Pardu JJ.A.]

Counsel:

Halfyard, for the appellant

Wiese, for the respondent

Keywords: Criminal Law, Trafficking Narcotics, Marijuana, Sentencing, Conditional Discharge, Appeal Allowed

R. v. Thompson, 2015 ONCA 800

[Hoy A.C.J.O., Weiler and Huscroft JJ.A.]

Counsel:

Halfyard, for the appellant

Goela, for the respondent

Keywords: Criminal Law, Possession of Narcotics, Trafficking, Possession of Crime Proceeds, Evidence, Misapprehension of Evidence, Canadian Charter of Rights and Freedoms, s.8, s.24(1), s.24(2), Appeal Dismissed

R. v. Wu, 2015 ONCA 792 (Endorsement)

[Doherty, Laskin and Tulloch JJ.A.]

Counsel:

Doucette and D. C. Santoro, for the appellant

Lemon, for the respondent

Keywords: Criminal Law, Evidence, Burden of Proof, Beyond a Reasonable Doubt, Appeal Allowed

R. v. Cain, 2015 ONCA 815

[Gillese, Watt and Pardu JJ.A.]

Counsel:

J. Gemmell, for the appellant Jason Cain

J. Lockyer, for the appellant Mark Cain

A. Alvaro and K. Papadopoulos, for the respondent

Keywords: Criminal Law, Conviction Appeal, First Degree Murder, Alibi, Jury Instruction, R v Parrington, Vetrovec Warning, Evidence, Discreditable Conduct Evidence, Appeal Dismissed

R. v. R.O., 2015 ONCA 814

[Gillese, Tulloch and Lauwers JJ.A.]

Counsel:

E. Chozik, for the appellant

L. Cecchetto, for the respondent

Keywords: Criminal Law, Conviction Appeal, Sexual Assault, Sexual Interference, Jury Instruction, Evidence, Discreditable Conduct Evidence, Sentencing, Appeal Dismissed

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