Canada: Court Of Appeal Summaries (July 18-July 22)

Last Updated: July 27 2016
Article by John Polyzogopoulos

Below are the summaries of this week's civil decisions released by the Court of Appeal for Ontario. Topics covered include contracts (interpretation and application of exclusion clause), summary judgment in the limitation period context, and contempt. The most noteworthy decision of the week was in Mancinelli v. Barrick Gold Corporation, in which the court confirmed the test and factors to be considered in choosing between plaintiff law firms competing for carriage of a class action. Also interesting was the decision in Whitfield v Whitfield, in which a judgment awarding damages for historic sexual assault was overturned because the trial judge broke the credibility tie between the complainant and the defendant by impermissibly relying on expert opinion evidence.

Civil Decisions 

Mancinelli v. Barrick Gold Corporation, 2016 ONCA 571

[Strathy C.J.O., Pepall and Brown JJ.A]

Counsel:
P. Pape, S. Chaudhury and J. Naim, for the appellants
W.A.D. Millar and P. Jervis, for the respondents
K.E. Thomson and S.G. Frankel, for the defendants

Keywords:  Class Action, Carriage Dispute, Securities, Misrepresentations

Facts:

Barrick is a Canadian gold company that obtained approvals from the Chilean government to develop an open-pit mine, subject to conditions regarding the project's environmental impact. Barick first publicly disclosed that its activities complied with Chilean regulatory requirements and that it had comprehensive environmental protection measures in place. Then, on April 10, 2013, Barrick disclosed that a Chilean court had issued an interlocutory order suspending construction of the mine. The following month, Chilean regulators closed the project due to environmental violations. The resulting plunge in Barrick's share price spawned shareholder class actions in the U.S. and Canada alleging violations of the Securities Act by misrepresenting the progress of the mine in public disclosures.

Two law firms in Canada, Rochon Genova LLP and Koskie Minsky LLP, have commenced a class action against Barrick. They each seek a carriage order and stay of the other's action. The motion judge applied the test set out in Vitapharm Canada Ltd. v. F. Hoffman-Laroche Ltd. for carriage of the class action and granted the carriage order in favour of Rochon. The Divisional Court found that the motion judge made no error in law or principle and no palpable and overriding error of fact. Koskie appeals this decision but focusses its submissions on the motion judge's alleged errors in principle.

Issues:

(1) Did the motion judge err in principle in preferring Rochon's broader claim as opposed to the more streamlined theory pleaded by Koskie?

(2) Did the motion judge err by examining the quality of Rochon's preparation as opposed to considering the stage of preparation?

(3) Did the motion judge err in assuming Rochon would be able to find favourable third party funding arrangements?

(4) Did the motion judge err in failing to recognize Koskie's greater expertise in securities class actions?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The court rejects any firm rule that "less is more" or that "more is better". In considering the factor of "nature and scope of cause of action advanced" of Vitapharm, the ultimate question is whether the proposed strategy is reasonable and defensible. Rochon's claim added a further basis of liability and the motion judge was entitled to conclude that this was in the best interest of the class.

(2) No. In general, the focus under "state of preparation" factor of the test is the extent of preparation as opposed to quality. Nevertheless, quality of preparation can be a relevant factor. It is not unreasonable to ask which firm has done the best job in preparing for the litigation and whether its preparation has yielded benefits for the class. Rochon's pleading demonstrated a more informed and sophisticated understanding of the underlying factual issues than the more formalistic Koskie pleading. In producing evidence for support of this factor, counsel is allowed to use their own judgment to choose to produce its work product (ex. expert evidence it has adduced). The court will not assume that in doing so, the law firm has placed its own interests ahead of the class. Counsel is also permitted to draw attention to occurrences of events after the carriage motion date is scheduled. The court would reject a rule that sees carriage motions decided based on a "freeze frame" on the date the motion is filed.

(3) No. In light of the motion judge's experience and familiarity with the claim, he was entitled to find that Rochon would be able to secure funding arrangements.

(4) No. Any one of the "elite class action firms" who were members of the consortia would have more than enough expertise and experience on their own to do an excellent job as carriage counsel.

The Court of Appeal approved of the test for determining a carriage motion as set out in the seminal carriage decision of Cumming J. of the Superior Court of Justice in Vitapharm. The main criteria for determination of a carriage motion are: (a) the policy objectives of the Class Proceedings Act, namely, access to justice, judicial economy for the parties and the administration of justice, and behaviour modification; (b) the best interests of all putative class members; and, at the same time, (c) fairness to defendants.

The following factors are for consideration on a carriage motion: (i) the nature and scope of the causes of action advanced; (ii) the theories advanced by counsel as being supportive of the claims advanced; (iii) the state of each class action, including preparation; (iv) the number, size and extent of involvement of the proposed representative plaintiffs; (v) the relative priority of commencing the class actions; and (vi) the resources and experience of counsel.

The Court of Appeal listed further factors to be considered on a carriage motion as set out in subsequent case law: In Sharma v. Timminco Inc., an additional factor was identified: (vii) the presence of any conflicts of interest.

In Smith v. Sino-Forest Corporation, Perell J. described the foregoing factors as non-exhaustive. He added six others that he considered relevant to the circumstances of the competing actions before him: (viii) funding; (ix) definition of class membership; (x) definition of class period; (xi) joinder of defendants; (xii) the plaintiff and defendant correlation; and (xiii) prospects of certification. The factors are non-exhaustive and there may be others that arise on the particular facts of each case.

Finally, the Court of Appeal suggested an additional factor to be considered on a carriage motion: the proposed fee arrangement between class counsel and the representative plaintiff. This factor vitally affects the interests of the class. Significant differences between fee arrangements may be considered on a carriage motion.

Gledhill v MikeGold Construction Ltd., 2016 ONCA 570

[Juriansz J.A.]

Counsel:

Mark Gledhill, in person

Judith Parker, for the responding party Her Majesty the Queen in Right of Ontario

Damian Hornich and Natalie Kolos, for the responding party Toronto Police Services Board

Timothy Duggan and Douglas H. Levitt, for the responding parties Better Living Homes Inc., Corsetti Paralegal PC, Cathy Corsetti, Leo Corsettti, MikeGold Construction Ltd., K&G Group, Sam Goldband, Jeffery Goldband, Jeffery Rana and Dwayne Whitford

Keywords: Endorsement, Civil Procedure, Appeals, Extension of Time, Vexatious Litigants

Facts:

There are three separate orders of the Superior Court declaring Gledhill to be a vexatious litigant. He wanted to appeal those orders. Gledhill sought an extension of time to perfect these appeals. The extension was granted. However, Gledhill did not perfect the appeals within the extended time frame and the appeals were dismissed for delay. Gledhill brings a motion to leave to bring motions to reinstate his appeal.

Issues:

  • Should the appeals be reinstated?

Holding: Motion Dismissed

Reasoning:

  • Although Gledhill spent a great deal of time and effort preparing voluminous materials and always maintained an intention to proceed with the appeals, there was no explanation as to why he failed to perfect the appeals. Further, the appeals are entirely void of merit. There is no doubt that they are destined to be dismissed. The overall interests of justice are, therefore, better served by denying this motion.

Galota v. Festival Hall Developments Limited, 2016 ONCA 585

[Laskin, Gillese and Roberts JJ.A.]

Counsel:

Jay Skukowski and Alex Reyes, for the appellant

William G. Scott and Barbara Opalinski, for the respondent

Keywords: Torts, Negligence, Occupier's Liability, Slip and Fall, Limitation Periods, Limitations Act, 2002, s. 5, Discoverability, Civil Procedure, Summary Judgment

Facts

On May 13, 2006, Ms. Galota broke her right arm when she fell off an elevated dance floor at Republik Nightclub. Republik was a tenant in the building; Festival Hall was the landlord and owner. In December 2007, Ms. Galota sued Republik for damages for negligence. She claimed that she was injured by the unsafe condition of the dance floor.

On November 11, 2009, a representative of Republik was examined for discovery. Ms. Galota's lawyer then learned for the first time that before opening, Republik had extensively renovated the nightclub, including the dance floor from which Ms. Galota fell, and that Festival Hall may have had some involvement in the renovations. In March 2011, Ms. Galota learned that Republik's insurer became insolvent. On November 10, 2011, five and a half years after her accident, Ms. Galota sued Festival Hall for negligence as an "occupier" of the nightclub. Festival Hall moved for summary judgment to dismiss the action on the ground that it had been started more than two years after Ms. Galota's claim was discoverable, and so was barred by s. 4 of the Limitations Act, 2002.

On appeal, Festival Hall makes two submissions: (1) Ms. Galota "did not show a want of diligence" because she took no steps to investigate a claim against Festival Hall until at least three and a half years after her accident; and (2) the motion judge erred by calling for expert evidence on the standard of care of a solicitor prosecuting an occupier's liability claim.

Issue: Did the motion judge err by finding that the claim of the respondent, Ms. Galota, against the appellant, Festival Hall, was not discoverable until three and a half years after the accident in which she was injured?

Held: Appeal dismissed.

Reasoning

No. The Court of Appeal held that (1) the motion judge's finding is a finding of fact, reasonably supported by the evidence, and thus entitled to deference on appeal; and (2) the expert evidence called was not material. The motion judge did not rely on it, beyond considering the possible investigative steps recommended by Festival Hall's expert.

The motion judge correctly found that Ms. Galota's claim against Festival Hall turned on s. 5(1)(a)(iii) and s. 5(1)(b) of the Limitations Act, 2002: when Ms. Galota first ought to have known that an act or omission by Festival Hall caused her injury.

The Court of Appeal agreed with the motion judge that there were no steps that Ms. Galota reasonably ought to have taken that would have enabled her to discover her claim against Festival Hall before her lawyer examined a representative of Republik in November 2009.

First, Ms. Galota sued the tenant at the premises where she fell and was injured. In this case, the need to pursue another party would not have been reasonable. Ms. Galota could not be expected to foresee the rare occurrence of an insurance company becoming insolvent.

Second, the insurer's adjuster never suggested that Festival Hall or any other party was potentially liable for Ms. Galota's injury. Similarly, in its statement of defence, Republik did not allege that Festival Hall bore any responsibility and Republik did not take third party proceedings against Festival Hall. Before the examinations for discovery, neither the adjuster nor Republik ever suggested that there had been extensive renovations of the nightclub or that Festival Hall was involved in those renovations.

Furthermore, Festival Hall did not become an "occupier" simply because it was the landlord and owner; thus, learning that Festival Hall owned the building would not have alerted Ms. Galota to a potential claim against Festival Hall. Even if Ms. Galota obtained the lease earlier, she could not reasonably have known that she had a claim against Festival Hall until she connected the terms of the lease to the facts that Republik extensively renovated the nightclub and dance floor before opening, that the renovations may not have complied with the Building Code, and that Festival Hall may have had some involvement in the renovations.

Chuang v. Toyota Canada Inc., 2016 ONCA 584

[Doherty, MacPherson and Miller J.J.A.]

Counsel:

John J. Adair and Gord McGuire, for the appellants/respondents by cross-appeal

Timothy Pinos and Colin Pendrith, for the respondent/appellant by cross-appeal

Keywords: Contracts, , Exclusion Clauses, Interpretation, Enforceability, Tercon Contractors Ltd. v. British Columbia (Minister of Transportation and Highways), Sattva Capital Corp. v. Creston Moly Corp

Facts:

The appellants, Dr. Sylvester Chuang and various corporations he controlled (collectively referred to as "Dr. Chuang") and the respondent Toyota Canada Inc. ("Toyota") entered into an agreement to build and operate a Lexus dealership in downtown Toronto. Deals of this nature involve two steps. First, Toyota enters into a Letter of Commitment ("LOC") with the proposed dealer that controls the relationship between the parties from its inception through to completed construction of the dealership. Second, the parties enter into a Dealership Franchise Agreement governing their relationship after the dealership is in operation.

In Dr. Chuang's case, he encountered various problems that delayed construction of the dealership. Dr. Chuang wrote to Toyota in mid-December 2004 explaining the problems and indicating that he could have the dealership substantially completed by May 2006. Toyota indicated to Dr. Chuang that it was willing to extend the terms of the LOC but demanded strict amendments to the LOC. Specifically, it included a timeline identifying several dates by which Dr. Chuang had to have completed various tasks, with rights to terminate the agreement in the event of Dr. Chuang's failure to meet those deadlines, thereby allowing Toyota to act "in its sole opinion acting reasonably" to terminate the agreement. In addition, Toyota included an exclusion clause that voided its liability "for any losses, damages and/or expenses of any kind whatsoever suffered or incurred" by Dr. Chuang in the event of the termination of the agreement. Toyota also requested that Dr. Chuang provide a Certificate of Independent Legal Advice indicating that he had obtained legal advice prior to agreeing to the amended terms of the LOC.

By letter dated April 20, 2005, Toyota advised Dr. Chuang that it was exercising its right to terminate the agreement after Dr. Chuang failed to meet certain deadlines set out in the agreement. Sr. Chuang sued Toyota, initially claiming specific performance of the agreement and damages. However, by the time of the trial, Dr. Chuang had opened a different dealership on the site and limited his claim to damages for wrongful termination of the agreement.

The trial judge held that, under the terms of the agreement, Toyota was required to act reasonably in exercising its rights of termination. He held that Toyota had not acted reasonably in terminating the agreement but that the exclusion clause protected Toyota from any obligation to pay damages or other losses caused to Dr. Chuang by the termination of the agreement. He therefore dismissed the claim and awarded costs of $1,210,000 to Toyota.

Issue:

  1. Did the trial judge err in law by failing to engage in an interpretation of the exclusion clause to determine whether it applied in the circumstances?
  2. Did the trial judge's interpretation of the exclusion clause fail to give adequate effect to the requirement that Toyota act reasonably in exercising its rights of termination under s. 7 of the amended LOC?
  3. Did the trial judge fail to properly consider the nature of the commercial relationship between Dr. Chuang and Toyota or the business efficacy of his interpretation of the exclusion clause?

Holding: Appeal dismissed.

Reasoning:

  1. No. The trial judge's interpretation of the exclusion clause is not unreasonable and was not tainted by palpable and overriding error.

In Tercon Contractors Ltd. v. British Columbia (Minister of Transportation and Highways), Binnie J. described a three-step approach to the interpretation of exclusion clauses:

–  Does the exclusion clause apply on the facts as found?

– If the clause applies, was the clause unconscionable at the time the parties entered into the agreement?

–  If the exclusion clause applies and was not unconscionable, should the court for policy reasons which are sufficiently strong to outweigh the public interest in the enforcement of contracts, decline to enforce the contract?

The arguments in this case focus on the first step, engaging the general principles of contractual interpretation. Absent a clearly identifiable error in law, an appellate court will defer to the trial court's interpretation of the agreement and will only intervene in the case of palpable and overriding factual error or an unreasonable interpretation (Sattva Capital Corp. v. Creston Moly Corp).

While it is true that the trial judge did not expressly refer to the first of the three steps identified in Tercon, he did address the arguments aimed at the interpretation of the exclusion clause. He specifically considered the language of the exclusion cause, the competing interpretations put forward by each party, the commercial efficacy of those interpretations and the impact of the interpretations on the entirety of the agreement.  In the absence of a legal error, the trial judge's interpretation of the exclusion clause stands unless counsel can demonstrate either some palpable and overriding factual error or that the trial judge's interpretation is unreasonable.

  1. No. When parties to an agreement are sophisticated entities operating on a level playing field and engaged in a commercial relationship, they are free to allocate risk as they see fit. Exclusions clauses are a means of allocating risk. The beneficiary of an exclusion clause contracts out of the obligation that would normally follow from the breach of the contract and place the risk of the breach on the other party. The extent to which the risk of breach is reallocated to the non-breaching party will depend on the language of the specific exclusion clause considered in the context of the entire agreement.

In this case, the clause is broadly written. The exclusion of liability for "damages . . . of any kind whatsoever, suffered or incurred" in addition to the exclusion of liability for "losses", or "expenses" indicates that the exclusion clause reaches beyond terminations that complied with the terms of s. 7.

  1. The Court of Appeal rejects Dr. Chuang's argument that the trial judge's interpretation of the exclusion clause leads to a commercial absurdity. The exclusion clause does not allow Toyota to "escape all liability" for improperly terminating the agreement. The exclusion clause did not affect Dr. Chuang's right to seek other remedies for improper termination, including specific performance. Furthermore, the argument overstates the negative effect on Dr. Chuang of the trial judge's interpretation of the exclusion clause. Dr. Chuang still owns the land and could take advantage of the improvements made to the land. Indeed, he was able to use the investments he had made in regard to the property and use them to make a deal with a different manufacturer of luxury cars. The submission about commercial efficacy further ignores the immediate commercial dynamic at play when the exclusion clause was inserted into the contractual relationship. Dr. Chuang had failed to even commence construction on the dealership by the time he had agreed he would have the dealership open for business.

The Court refused leave to appeal from the costs order made by the trial judge. It further dismissed Toyota's cross-appeal that the trial judge erred in holding that it did not act reasonably when it terminated the agreement as moot in light of the Court's finding.

Chirico v. Szalas, 2016 ONCA 586

[Doherty, Epstein and Miller JJ.A.]

Counsel:

Christian Tremblay, for the appellant/responding party

Jonathane Ricci, for the respondent/moving party

Keywords: Civil Procedure, Contempt, Appellate Jurisdiction, Final Orders

Facts:

The respondent, Rob Szalas, owns a Doberman Pinscher. The dog bit people on a number of occasions. After the fourth bite incident, Dr. Jim Chirico, Medical Health Officer, North Bay Parry Sound District Health Unit, ordered Mr. Szalas to relinquish the dog to the North Bay Humane Society (the "Humane Society") to be euthanized (the "Euthanasia Order"). Mr. Szalas appealed the order and sought a stay. On consent, an interim order was made (the "Consent Interim Order") allowing Mr. Szalas to keep the dog with him pending the appeal. The order was subject to certain conditions designed to keep the public safe from the dog's aggression. Mr. Szalas was alleged to have breached the more serious of these conditions and, pursuant to the provisions of the Consent Interim Order, was required to turn the dog over to the Humane Society. Mr. Szalas refused to do so. A further interim order (the "Interim Order") was made, giving Mr. Szalas a deadline for the return of the dog and providing that failure to comply with the deadline would result in the dismissal of his appeal. Mr. Szalas failed to comply with the deadline. His appeal of the Euthanasia Order was dismissed. Mr. Szalas again refused to relinquish the dog. The appellant brought a motion for contempt of the Euthanasia Order. The motion judge held that the evidence did not support a finding that Mr. Szalas failed to comply with the specific term relating to his obligation to relinquish the dog to the Humane Society, and dismissed the motion.

Issues:

(1) Does the Court of Appeal for Ontario have jurisdiction over the appeal?

(2) If so, did the motion judge err in dismissing the contempt motion?

Holding: Appeal allowed.

Reasoning:

(1) Yes. The order under appeal is a final order. This court's decisions establish that whether an order disposing of a motion for contempt, either by dismissing the motion or finding contempt, is final or interlocutory depends on the circumstances surrounding the order. In cases where there are no ongoing proceedings and therefore the party seeking a contempt order has no other means of obtaining relief arising out of a failure to abide by the terms of an order, then an order disposing of a motion for contempt – either a dismissal or a finding of contempt – is a final order. In this case, there are no longer any ongoing proceedings. The only outstanding issue is Dr. Chirico's right to enforce the Euthanasia Order. As such, in the circumstances of this case, the order under appeal, disposing of the motion for contempt, is final. Therefore, this court has jurisdiction to hear the appeal.

(2) Yes. The motion judge erred in approaching the motion for contempt in the narrow fashion that he did. This court has rejected such a formalistic approach. Simply put, the days are long gone when someone subject to a court order can get away with circumventing it by relying on a benign technicality. To allow that to happen would be disrespectful of the order and of the administration of justice. The Euthanasia Order was clear. Mr. Szalas had to give up his dog to be put down.  The precise modality – either by the Humane Society or the Society for the Prevention of Cruelty to Animals – was unimportant. The motion judge erred by not finding contempt despite concluding that Mr. Szalas' intent was to frustrate the intent of the Euthanasia Order, which was to arrange for the dog to be destroyed in order to protect the public.

Whitfield v. Whitfield, 2016 ONCA 581

[Weiler, van Rensburg and Roberts JJ.A.]

Counsel:
Marie Henein, Matthew R. Gourlay and Christine Mainville, for the appellant

Dr. Agnes Whitfield, acting in person

Keywords: Intentional Torts, Assault and Battery, Credibility, Expert Evidence, Use of in Credibility Findings, Rule Against Oath Helping

Facts:

The appellant and the respondent are brother and sister. The respondent is now 65 years old. The appellant is in his seventies. The appellant appeals from the May 1, 2014 judgment that found him civilly liable to his sister for historic sexual and physical assaults that the respondent says started about 60 years ago and were repeated until over 40 years ago. The appellant also appeals the dismissal of his counterclaim against his sister for defamation. The appellant's counterclaim is founded on the publication and content of a series of the respondent's emails, letters and postcard communications sent to family members, lawyers, and a friend, which contained allegations of sexual and physical abuse, and formed the basis for her successful claim.

The respondent testified that about 15 years ago when she turned 50 years of age, she recovered memories of horrific and repeated sexual and physical abuse at the hands of her brother that the respondent says occurred when she was 4 or 5 and continued until she was 20 years old.

The main support for the respondent's evidence came from her expert witness, Dr. Sarah Maddocks.

Dr. Maddocks is a psychologist who was retained by the respondent's prior lawyer to provide an opinion concerning an assessment of the respondent's alleged recovered traumatic memory, her mental status, diagnoses and prognosis, along with the impact of the alleged sexual assaults on the respondent, and her recommended treatment plan. She was qualified at trial "to give expert evidence generally in the area of psychology, and in particular in relation to sexual victimization". She opined that, while she could not know for sure if all of the memories were depictions of actual events, there was a strong indication that the respondent had been sexually and physically abused by the appellant on a regular basis over a long period of time.

The appellant denied that he had ever sexually or physically abused his sister. His denials of mistreatment were supported by his two older sisters and a woman who had worked for their family as a mother's helper.

The trial turned on the credibility and reliability of the respective accounts of the appellant and the respondent. The trial judge found that the appellant and the respondent were equally credible as witnesses and that their respective versions of events were also equally compelling.

As a result of this assessment, the trial judge determined that he needed to turn to the expert evidence of Dr. Maddocks "to resolve the litigation" with respect to the conflict between the different accounts given by the appellant and the respondent. Consequently, the appellant was held to be civilly liable by the trial judge. He appeals that judgment.

Issues:

(1)  Did the trial judge err in law through his reliance on and use of Dr. Maddocks' opinion evidence?

(2)  Did the trial judge misapprehend the "recovered memory" theory in finding that "repression" by adults is a recognized phenomenon, when there was no evidence to support this conclusion?

(3)  Was the trial judge's handling of the respondent's refusal to participate in a defence psychological assessment unfair?

(4) Did the trial judge err in law in his approach to corroboration of the respondent's alleged recovered memories?

(5) Did the trial judge err in the manner in which he handled the respondent's alleged "consistency" in her allegations?

(6)  Was the trial judge's approach to the evidence marred by palpable and overriding errors, including his flawed analysis of the credibility and reliability of the respondent's allegations?

(7) Are the reasons for the judgment legally insufficient?

(8) Did the trial judge err in holding that even if successful; the appellant's counterclaim (defamation) would have been barred on the basis of qualified privilege.

Holding:

Appeal allowed. The respondent's claim is dismissed and the court allows the appellant's counterclaim in the amount of $5,000. Appellant is awarded costs for this proceeding on a partial indemnity basis.

Reasoning:

The answer to issue one is "yes", the trial judge erred; and that means that all of the subsequent issues tabled by the appellant (all other than number eight – the counterclaim) are ultimately irrelevant (because there is no finding of liability). Consequently, the court only provides reasons with respect to issues one and eight.

(1) Yes. The trial judge erred in law by relying on Dr. Maddocks' evidence for the purpose of determining liability. It is therefore not necessary to deal with the other grounds of appeal relating to the respondent's action. The trial judge's reliance on the decision of S.R.S. v. H.P.S. (1999), 122 O.A.C. 351 (C.A.), at paras. 4-8, to corroborate the respondent's claim on liability was misplaced. This decision does not stand for the general proposition that expert evidence can be admitted as corroboration of a claimant's allegations of sexual abuse for the purpose of establishing liability. Rather, this court simply noted in S.R.S., at para. 6, that expert opinion evidence about the impact of sexual abuse was widely accepted and that the evidence in that case was filed on consent, without any limitation as to its use by the trial judge, and without cross-examination. As a result, this court found no basis for the complaint by the respondent. Although the trial judge indicated in his reasons that he would not allow Dr. Maddocks' evidence "to disproportionately influence [his] analysis", it is clear that this is exactly what occurred in this case. The trial judge did not simply use Dr. Maddocks' evidence to explain the memory process in human beings and delayed recall in victims of historical sexual abuse or for the purpose of assessing the respondent's damages. There is no question that those uses would have been permissible. Rather, the trial judge expressly relied on Dr. Maddocks' evidence to resolve the litigation by tipping his otherwise evenly balanced assessment of the credibility and reliability of the appellant and the respondent. The trial judge erred by relying on Dr. Maddocks' evidence to corroborate the truth of the respondent's fragmented recovered memories. In doing this, he erroneously allowed the expert to usurp his role as trier of fact. As a result, the judgment must be set aside.

(8) Yes. There is no dispute that the appellant met the burden of proving that the respondent's allegations were defamatory and that they were published. The onus then shifted to the respondent to prove on a balance of probabilities that her allegations were justified because they were true or that the defence of qualified privilege applied in the circumstances of this case. Given the court's conclusion above, the statements cannot be justified as having been true. The question is therefore whether the trial judge was correct to conclude that the respondent's statements were protected by qualified privilege.

The court agreed with the appellant's submission that the trial judge's finding of qualified privilege was irreparably tainted by his erroneous findings that the respondent's allegations were true, as supported by Dr. Maddocks' opinion. In the court's view, even if the defence of qualified privilege can be said to apply to the communications to the respondent's family and the two lawyers, it cannot apply to the communications to the respondent's former high school friend. As such, the appeal with respect to the dismissal of the counterclaim was allowed.

There was no duty or interest on the part of the respondent's former high school friend to receive the respondent's communications. The respondent admitted that their friendship did not last after high school had ended and that they only briefly reconnected after the death of the respondent's mother.

The respondent did not testify as to her reason for copying the friend on the defamatory emails. There was no evidence that she asked her friend for assistance or advice, or that the friend ever responded to her communications. In these circumstances, there was no legitimate interest to be protected by the statements; as a result, they did not merit protection under the auspices of qualified privilege: R.T.C. Engineering, at para. 15; Milgaard v. Mitchell (1996), 151 Sask. R. 100 (Q.B.), at para. 36.

Short Civil Endorsements

Tran v. Chung, 2016 ONCA 587

[Simmons, LaForme and Huscroft JJ.A.]

Counsel:

James H. Chow, for the appellant

Allyson Fox, for the respondent

Keywords: Costs Endorsement

Criminal Decisions

R. v. Li, 2016 ONCA 573

[Strathy C.J.O., Pepall and Hourigan JJ.A.]

Counsel:

Timothy E. Breen, for the appellant

Carolyn Otter, for the respondent

Keywords: Criminal Law, Marihuana Production, Duress, Battered Spouse Syndrome, Expert Evidence, Appeal Allowed

R. v. Chanmany, 2016 ONCA 576

[Doherty, Watt and Miller JJ.A]

Counsel:

Andrew Menchynski and Candice Suter, for the appellant

Kevin Wilson and Sobia Virk, for the respondent

Keywords: Criminal Law, Possession of the Purpose of Trafficking, Police Testimony, Scrutiny of Evidence, Speculative Reasoning, Leave to Appeal Sentence Granted, Appeal Dismissed

R. v. Guenter, 2016 ONCA 572

[Weiler, Tulloch and Brown JJ.A.]

Counsel:

Solomon Friedman, for the appellant

Sandy Tse, for the respondent

Keywords: Criminal Law, Impaired Driving Causing Bodily Harm, Evidence, Highway Traffic Act, Canadian Charter of Rights and Freedoms, Section 10(b), Right to Counsel, Voluntary Statements, Breathalyzer Test, Appeal Dismissed

R. v. McGown, 2016 ONCA 575

[Laskin, Cronk and Miller JJ.A.]

Counsel:

Brian Eberdt and Eva Taché-Green, for the appellant

Craig Harper, for the respondent

Keywords: Criminal Law, Armed Robbery, Evidence, Witness Credibility, Uneven Scrutiny, Fresh Evidence, Confirmatory Evidence, Appeal Dismissed

R. v. R.D. (Publication Ban), 2016 ONCA 574

[Laskin, Cronk and Miller JJ.A.]

Counsel:

Brad Greenshields, for the appellant

Katherine Beaudoin, for the respondent

Keywords: Criminal Law, Sexual Abuse, Evidence, Out-of-Court Statements, R. v. J.J.R.D., Burden of Proof, Appeal Dismissed

R. v. Poirier, 2016 ONCA 582

[Weiler, Simmons and Epstein JJ.A.]

Counsel:

Matthew Gourlay and Christine Mainville, for the appellant

Croft Michaelson, Q.C., for the respondent

Keywords: Criminal Law, Evidence, Search Warrant, Body Searches, Criminal Code, Section 503, Charter of Rights and Freedoms, Section 8, Section 10, Section 24(2), Appeal Allowed

 R.  v. Rocchetta, 2016 ONCA 577

[Doherty, Feldman and Brown JJ.A.]

Counsel:

Michael Lacy, for the appellant Jordan Rocchetta

Donald R. Orazietti, Q.C., for the appellant

Ryan Joseph Rocchetta Karen Papadopoulos, for the respondent

Keywords: Criminal Law, Aggravated Assault, Causation, Self-Defence, Appeal Dismissed

 R.  v. Vincent, 2016 ONCA 580

[Watt, Pepall and Tulloch JJ.A.]

Counsel:

Kenneth Vincent, acting in person

Emily Morton, duty counsel

Lisa Csele, for the respondent

Keywords: Criminal Law, Possession for the Purpose of Trafficking, Appeal Dismissed

R. v. Guindon, 2016 ONCA 583

[Watt, Pepall and Tulloch JJ.A.]

Counsel:

Harley Davidson Guindon, acting in person

Michael Dineen, duty counsel

Lisa Csele, for the respondent

Keywords: Criminal Law, Fraud, Deprivation, Causation

R. v. Chemama, 2016 ONCA 579

[Feldman, Brown and Huscroft JJ.A.]

Counsel:

Erich Chemama, in person by videolink

Daniel Santoro and Joshua Tong, appearing as amicus curiae

Greg Skerkowski, for the respondent

Keywords: Criminal Law, Perjury, Counselling, Obstruction of Justice, Self-Representation, Canadian Charter of Rights and Freedoms, Section 10(a), Section 10(b), Section 11(b), Right to Discharge Counsel, Appeal Allowed

R. v. Perkins (Publication Ban), 2016 ONCA 588

[Cronk, Juriansz and Roberts JJ.A]

Counsel:

Jennifer Penman, for the appellant

Brock Jones, for the respondent

Keywords: Criminal Law, Assault, Criminal Code, Section 686(1)(b)(iii), Evidence, Exculpatory Statements, Appeal Allowed, Dissent

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