Canada: Court Of Appeal Summaries (October 3- 7, 2016)

Last Updated: October 17 2016
Article by John Polyzogopoulos

There were five substantive civil decisions released and summarized this week. The first, J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys so that impaired minors without driver's licenses cannot easily steal the cars and get into serious accidents. The second, Fernandes v. Carleton University, involved an odd claim by a student who appealed a University grade combined with a claim for wrongful termination against his employer. Hoang v. Vicentini was a motor vehicle case that discusses the difference between litigation experts and participant experts (the former needs to prepare a report under the Rules of Civil Procedure, the latter does not) and also conflict of interest issues for defence counsel acting in a reservation of rights situation. Nadeau v Caparelli discusses legal and equitable assignments, when an assignee of a debt can sue in their own name and when they need to name the assignor as a co-plaintiff. Lastly, C-A Burdet Professional Corporation v. Gagnier is an endorsement amending an order requiring counsel asserting a solicitors lien to produce the file to new counsel.

Table of Contents:

Civil Cases:

J.J. v. C.C., 2016 ONCA 718

Keywords: Torts, Negligence, Duty of Care, Reasonable Forseeability, Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), Cooper v. Hobart, 2001 SCC 7

Fernandes v. Carleton University, 2016 ONCA 719

Key Words: Employment Law, Wrongful Dismissal, Administrative Law, Universities, Appeal from Grades, Summary Judgment, No Reasonable Cause of Action, Abuse of Process, Rules of Civil Procedure, Rules 20, 21.01(3)(d) and 25.11(c)

Hoang v. Vicentini, 2016 ONCA 723

Keywords: Torts, MVA, Opinion Evidence, Litigation Experts, Participant Experts, Westerhof v. Gee Estate, Civil Procedure, Rules of Civil Procedure, rule 53.03, Ultimate Issue, Trials, Evidence, Admissibility, Charge to Jury, Failure to Object at Trial, Insurance Law, Reservation of Rights, Defence Counsel, Conflict of Interest, Costs, Sanderson Orders

Nadeau v. Caparelli, 2016 ONCA 730

Keywords:  Contracts, Debtor-Creditor, Legal Assignments, Equitable Assignments, Conveyancing and Law of Property Act, s 53(1), Civil Procedure, Joinder of Parties, Assignors, Rules of Civil Procedure,  Rule 5.03(3), Summary Judgment, Limitation Periods

C-A Burdet Professional Corporation v. Gagnier, 2016 ONCA 735

Keywords: Endorsement, Solicitor and Client, Unpaid Legal Fees, Solicitors Lien, Appeals, Jurisdiction, Final or Interlocutory, Courts of Justice Act, R.S.O. 1990, c. C.43. s. 19(1)(b)

For Civil Endorsements, click here

For Criminal Cases, click here

Civil Cases:

J.J. v. C.C., 2016 ONCA 718

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

Counsel:

D. S. Young and K. R. Bridel, for the appellant, James Chadwick Ranki

M. L. Bent, J.T. Akbarali, and A. E. Campos Reales, for the respondent

J. Chapman, for the respondent, C.C. (Motor Vehicle Accident Claims Fund)

Keywords: Torts, Negligence, Duty of Care, Reasonable Forseeability, Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), Cooper v. Hobart, 2001 SCC 79

Facts:  J.J., a 15 year old boy, met with his friends C.C., age 16, and T.T., age 16. C.C. and T.T. drank numerous beers. All three boys also drank vodka mixed with orange juice and shared a single marijuana cigarette. T.T. went home later that evening and C.C. and J.J. left the house at that time.

C.C. and J.J. walked around with the intention of stealing from unlocked cars. They attempted to break into several cars and found that a few of them were unlocked. They ended up at Rankin's Garage & Sales ("Rankin's Garage"), which services and sells cars and trucks. The garage property was not secured. C.C. testified that he remembered checking two cars on the lot and finding an unlocked Toyota Camry parked in an area behind the garage. The keys to the Camry were in the ashtray. C.C. decided to steal the car even though he did not have a driver's license and had never driven a car.

J.J. got into the car as passenger. C.C. decided to drive to the nearby town of Walkerton to pick up a friend. The car crashed on the way there. J.J. suffered a catastrophic brain injury.

J.J. sued C.C., Rankin's Garage, and C.C.'s mother, D.C., for negligence. J.J. conceded, through his parents, that he was partially responsible for his injuries.

The trial judge instructed the jury that Rankin's Garage owed J.J. a duty of care, among other things "because people who [are] entrusted with the possession of motor vehicles must assure themselves that the youth in their community are not able to take possession of such dangerous objects."

A jury found the Rankin's Garage partly liable for injuries suffered by J.J.. The jury also found C.C. and D.C. liable, and J.J. contributorily negligent. The sole proprietor of Rankin's Garage appeals the jury's decision that he owed a duty of care to J.J..

Issues:

  1. Did the trial judge err in concluding that Rankin's Garage owed a duty of care to J.J.?
  2. Did the trial judge correctly charge the jury regarding an enhanced duty owed to J.J.?
  3. Did the trial judge err in admitting irrelevant evidence that was highly prejudicial to Rankin's Garage and of little probative value?
  4. Is the verdict of the jury unsustainable given all of the evidence and findings, including that C.C. and J.J. both participated in the theft of the vehicle?

Holding: Appeal dismissed.

Reasoning:

  1. No. The trial judge was correct, though for different reasons, to conclude that Rankin's Garage owed a duty of care to J.J. Courts determine whether a duty of care arises in particular circumstances based on the decision of the House of Lords in Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), as modified by the Supreme Court of Canada in Cooper v. Hobart, 2001 SCC 79.

The Anns-Cooper approach first considers whether this case is governed by a duty of care that has already been recognized in the case law, or falls within an analogous situation. If not, a court must then complete the two-stage Anns-Cooper analysis in order to determine whether a duty should be recognized. The Court followed the approach in Anns-Cooper.

(a) Has a duty already been recognized in prior cases?

No. The trial judge incorrectly concluded that prior cases have already recognized this duty of care. The trial judge relied on cases where a third party who was unconnected to the theft was injured. These cases are not analogous to the circumstances of this case. In fact, the finding that a duty of care is owed to a third party is relatively rare in cases arising out of the theft of a vehicle because the injury to the third party was not a reasonably foreseeable consequence of the theft. Therefore, this is a novel situation and a full Anns-Cooper analysis is required.

(b) The Anns-Cooper Test

The Anns-Cooper Test is satisfied and a duty of care exists. Though the trial judge only dealt with the Anns-Cooper test briefly, her conclusion was correct: the requirements of foreseeability and proximity are established on the facts of this case, and the duty is not negated by residual policy concerns.

(i) Foreseeability

There was ample evidence to support the conclusion of foreseeability in this case. In particular, Rankin's Garage was easily accessible and it had no security measures designed to keep people off the property when the business was not open. Cars were left unlocked with the keys in them. Further, there was a history of theft in the area. Therefore, the risk of theft was clear.

(ii) Proximity

Proximity is established. Proximity does not depend on whether the appellant knew J.J., but on whether the appellant should have had minors like J.J. in mind when he considered security measures at Rankin's Garage. In this case, the appellant had care and control of many vehicles for commercial purposes. With that role comes the responsibility of securing the vehicles against minors, in whose hands the vehicles are potentially dangerous. He should have adverted to the risk that minors would be tempted to take a vehicle if it were made easily available to them. Further, securing the vehicles was not an onerous obligation. It was a simple matter of locking the vehicles and storing the keys.

(iii) Residual Policy concerns

No residual policy concerns exist that negate the prima facie duty of care. The law does not currently provide a remedy in this case. Further, recognition of a duty of care in this case would not create a spectre of unlimited liability to an unlimited class of claimants or result in undue hardship to the appellant. The duty can be complied with simply by locking the vehicles and securing the keys. Lastly, the duty of care operates independently of the illegal or immoral conduct of an injured party. Their wrongdoing is properly taken into account in determining contributory negligence, as occurred in this case.

(2) Yes. The trial judge correctly charged the jury that the appellant owed an enhanced duty to J.J.. Though J.J. was engaging in adult activities – such as drinking alcohol, smoking marijuana, stealing, driving without a license, and driving while impaired – the case is not concerned with the duty of care owed by minors who participate in adult activities. The case is concerned with the duty of care owed by adults to minors

(3) No. The trial judge did not err in admitting evidence from C.C.'s sister, C.L.C., as to a previous theft from Rankin's Garage, and from Officer Pittman concerning the establishment of a theft-prevention program. This evidence spoke to the history of theft in the area. As such, the evidence was clearly relevant to the question of foreseeability and no prejudice was caused by its admission.

(4) No. The jury verdict is sustainable. The court requires an appellant to meet a high threshold to overturn a jury verdict. The decision must be "so plainly unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as a whole and acting judicially could have reached it". A jury's decision concerning the apportionment of liability is entitled to the same deference.The appellant failed to meet this high threshold. Though there is room for reasonable disagreement in the apportionment of liability, it cannot be said that the jury's decision is "so plainly unreasonable and unjust as to satisfy the Court that no jury reviewing the evidence as a whole and acting judicially could have reached it".

Fernandes v. Carleton University, 2016 ONCA 719

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

Counsel:

Myles Fernandes, acting in person

J. Macdonald, for the respondents

Key Words: Employment Law, Wrongful Dismissal, Administrative Law, Universities, Appeal from Grades, Summary Judgment, No Reasonable Cause of Action, Abuse of Process, Rules of Civil Procedure, Rules 20, 21.01(3)(d) and 25.11(c)

Facts:

The appellant was a student enrolled in Aerospace Engineering at Carleton University who received a failing grade in one of his courses. He attempted unsuccessfully to overturn this grade through Carleton's internal appeal process and as a result, claims that he was unable to continue and finish his degree. He holds Carleton responsible for his failure to become an aerospace engineer. The appellant was also employed by The Source as a retail employee, selling various Bell products such as telephone and internet plans. In March 2014, his employment was terminated by The Source, a subsidiary of Bell Canada which is, in turn, a subsidiary of BCE Inc. He sued both Carleton and BCE Inc. claiming damages for conspiracy to terminate his employment in reaction to an email he sent to Carleton threatening legal action. He sued BCE Inc. for wrongful termination of his employment at The Source and Carleton for damages for breach of duty of care, intentional infliction of emotional distress, the tort of inducement and defamation.

The respondents moved for summary judgment dismissing the action, pursuant to rule 20 of the Rules of Civil Procedure. Carleton also moved to have the statement of claim struck as against it as an abuse of process pursuant to rules 21.01(3)(d) and 25.11(c). The motion judge granted the relief claimed. He dismissed the claim against BCE Inc. on the ground that the appellant's claim for wrongful termination lay against The Source and not against BCE Inc. because he was employed by The Source, which is a different legal entity than BCE Inc. and because, on the record before him, there was no evidence tying BCE Inc. to The Source's employment decisions or to the appellants' employment. He did not consider it appropriate to "pierce the corporate veil" in the circumstances.

The motion judge dismissed the conspiracy claim because the evidence satisfied him that there had been no contact between the respondents concerning the appellant or his circumstances. He struck the statement of claim against Carleton on the basis that it constituted an abuse of process because it was in substance an indirect attempt to re-litigate the unsuccessful internal grade appeal process, which is an essentially academic matter. The appellant appealed the decision of the motion judge.

In addition, however, he brought a motion within the appeal to strike the affidavits of the Vice-President (Students and Enrolment) and University Registrar at Carleton and the Director – Employee Services with BCE Inc. It was through the Vice-President's affidavit that Carleton placed on the record the evidence relating to the internal appeal process regarding the appeal of the appellant's failing grade. The Director from BCE Inc. provided the evidence on behalf of the company regarding the corporate separation of BCE Inc., Bell Canada, and The Source and the lack of connection between BCE Inc. and any employment decisions of The Source. LaForme J.A. and Hourigan J.A. dismissed those motions. The main appeal and further motions to set aside the orders refusing to strike the affidavits were heard together by the panel.

Issues:

  1. Should the order of Justices LaForme and Hourigan refusing to strike the affidavits be set aside?
  2. Did the motion judge err in granting the summary judgment and dismissing the relevant claims?

Holding: The motions to set aside the orders of LaForme J.A. and Hourigan J.A. are dismissed and the main appeal is also dismissed.

Reasoning:

1. No. The appellants' challenges to these affidavits rely primarily on unfounded allegations of bias arising from the connection of the affiants with the respondents' lawyers. There is no merit in them. Justice LaForme was completely justified in dismissing the motion to strike the affidavits.

Accepting that the appellant is a layperson and not trained in the law, the panel found that he nonetheless misunderstood the basis upon which Hourigan J.A. dismissed his motion. The doctrine of issue estoppel had no application. The motion was dismissed because it constituted a collateral attack on the order of LaForme J.A. and was therefore an abuse of process. The panel found that whatever the appellants' personal views about the use (or abuse) of the abuse of process principles by lawyers and judges against self-represented litigants may be, courts are obliged to apply the law, where applicable, in the circumstances before them. Justice Hourigan did not err in dismissing the motion before him on the basis that he did. The motion to set aside the orders of Justices LaForme and Hourigan was dismissed.

2. No. Under r. 20.04(2.1), the summary judgment motion judge was provided with a number of powers enabling the judge to weigh evidence, evaluate credibility, and draw reasonable inferences. Here, the panel found that the motion judge properly followed that approach. In addition to this, the panel found that while the appellant was somewhat confused, as a lay person, about the need to file evidence, he is nonetheless required to prepare himself and present his case, like any other litigant, and had shown himself capable of navigating the rules of procedure in other ways. As a result, the court could not comment on the fact that the appellant had not put forward evidence directly on the issues.

The panel found that there was ample evidence to support the motion judge's finding that the appellant was not an employee of BCE Inc. and had no contractual relationship with it and as such, his findings are entitled to deference. The evidence was that BCE Inc. played no role in the implementation of The Source's internal policies and operating decisions.

The motion judge addressed the appellants' submission that he should pierce the corporate veil and find BCE Inc. liable for the actions of The Source. He properly applied the law on piercing the corporate veil and concluded that, on the facts before him, it was not appropriate in the circumstances to do so. These findings were also open to him on the evidence and are entitled to deference. The COA further found that the conspiracy claim could not stand as there was no evidence to warrant this claim.

The COA went on to say that the motion judge made no error in principle or in fact in determining that the appellants' complaints in the civil action were in substance an attempt to challenge and re-visit the manner in which the university dealt with the complaints about his treatment in his class and the unsuccessful outcome of the internal academic appeals process. It was open to him to conclude on this record that the appellants' claim against Carleton constituted an abuse of process, and the panel saw no basis for interfering with that determination.

Hoang v. Vicentini, 2016 ONCA 723

[Laskin, Hourigan and Brown JJ.A.]

Counsel:

G Adair and G. McGuire, for the appellants

K. Kamra, for the respondent Can Hoang

D. Zuber and J. Henderson, for the respondent Adriano Vicentini

S. W. Morris and M. Miles, for the respondent The Personal Insurance Company

B. Mitchell, for the respondent Ford Credit Canada Leasing Company

Keywords: Torts, MVA, Opinion Evidence, Litigation Experts, Participant Experts, Westerhof v. Gee Estate, Civil Procedure, Rules of Civil Procedure, rule 53.03, Ultimate Issue, Trials, Evidence, Admissibility, Charge to Jury, Failure to Object at Trial, Insurance Law, Reservation of Rights, Defence Counsel, Conflict of Interest, Costs, Sanderson Orders

Facts:

The respondent, Can Hoang ("Hoang"), drove his six-year old son, Christopher, one of the appellants, and three other children to downtown Toronto for a planned outing. Hoang let the children out of the car at an intersection before parking the car. As Christopher began to walk across the street, a few feet behind the other children, a gust of wind blew his hat off his head into the intersection. Christopher ran after his hat into the intersection where he was struck by a vehicle driven by the respondent, Adriano Vicentini.

Christopher brought an action against his father Hoang and the respondent, Ford Credit Canada Leasing Company, the owner of the Vicentini vehicle. Christopher was joined in his action by his minor sister, Danielle Hoang, and his mother, San Trieu, both of whom asserted claims for loss of care, guidance and companionship pursuant to the provisions of the Family Law Act, R.S.O. 1990, c. F.3 (the "FLA").

Following a lengthy trial, the jury found that Hoang negligently caused the accident and his son's injuries. The trial judge ordered the plaintiffs to pay partial indemnity costs to Vicentini and to Ford Credit. She also ordered Hoang to pay the plaintiffs their partial indemnity costs.

The plaintiffs appealed, asking this court to order a new trial on the issue of the liability of Vicentini and Ford Credit and increase the damages for future care costs.

Issues:

  • Did the trial judge err in holding that the police's automotive service technician was required to comply with r. 53.03 in order to give opinion evidence?
  • Did the trial judge err in admitting opinion evidence from the Police Accident Reconstruction Specialist Detective?
  • Did the trial judge err in her charge by referencing that the brakes operated properly?
  • Did the trial judge err in admitting a human factors expert to give opinion evidence on the "ultimate issue"?
  • Was Hoang's appointed defence counsel in a conflict of interest?
  • Did the trial judge err in awarding costs?

    1. The separate costs awarded to Ford Credit
    2. The denial of a Sanderson Order
    3. The liability of The Personal to pay costs

Holding:

Appeal dismissed regarding liability and damages. Appeal granted regarding the amounts ordered payable to the minor appellant.

Reasoning:

(1) No. The police's automotive service technician, Sergio Grisolia, was a participant expert, as described by the Court of Appeal in Westerhof v. Gee Estate, 2015 ONCA 206 ("Westeroff"). As a general rule, a participant expert with special skill, knowledge, training, or experience may give opinion evidence without complying with r. 53.03 where (i) the opinion to be given is based on the witness's observation of or participation in the events at issue and (ii) the witness formed the opinion as part of the ordinary exercise of his or her skill, knowledge, training, and experience while observing or participating in such events. However, if a participant expert proffers opinion evidence extending beyond those limits, he or she must comply with r. 53.03 with respect to the portion of the opinion extending beyond those limits.

In Westeroff, the court explained at para 85 that one reason r. 53.03 does not apply to participant experts is that disclosure problems generally do not exist in relation to their opinions. However, where disclosure problems do exist, including the disclosure of the proffered opinion of a participant expert only on the eve of trial, the trial judge has the discretion to exclude the last-minute opinion evidence.

In the present case, the appellants sought to adduce at trial an opinion from Grisolia that went beyond his observations and comments recorded on the examination form. As well, the appellants only disclosed the opinion on the eve of trial, notwithstanding that the parties had possessed the examination form for several years. In those circumstances, the trial judge committed no error in refusing to permit Grisolia to give opinion evidence about brake performance that was not contained in his examination form.

(2) No. The Police Accident Reconstruction Specialist Detective De Los Rios, was called by Vicentini at trial, and a Form 53 – Acknowledgement of Expert's Duty – was served in respect of his evidence. De Los Rios offered his opinion that the accident was preventable had Christopher remained in the crosswalk. He stated Vicentini could not have avoided the accident.

The Court rejected the appellants' submissions regarding the expert testimony of De Los Rios for three reasons. First, the evidence De Los Rios gave in-chief did not stray beyond the statements made in his report. Second, appellants' trial counsel did not suggest in his cross-examination of De Los Rios that he was not qualified to give those opinions. Finally, the appellants' trial counsel did not object either to those portions of De Los Rios' evidence-in-chief or to the related portions of his report. It is well-established that if no objection is made to the admissibility of evidence in a civil trial, an objection on appeal will usually be unsuccessful: Marshall v. Watson Wyatt & Co. (2002), 57 O.R. (3d) 813 (C.A.), at para. 15 ("Marshall").

(3) No. The appellants argued that the trial judge erred in emphasizing and repeating in her charge the evidence of De Los Rios, specifically: "[De Los Rios] noted Vicentini was travelling 32 kilometres an hour and his brakes operated properly because he left skid marks on the road which indicates that the wheels locked."

In rejecting this claim, the Court again relied on Marshall: "appellants' trial counsel did not object to this portion of the charge. An objection to the charge to the jury in a civil case will generally be unsuccessful if raised for the first time on appeal, and this court will relieve against the failure to object only if the interests of justice require it.

The appellants also submitted the trial judge erred in instructing the jury to disregard the brakes issue because: (i) common sense suggests that brake linings might create an issue with brake function and (ii) such an instruction ignored the reverse onus placed on Vicentini and Ford Credit by s. 193(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8.

The court held that the trial judge's direction to the jury was consistent with the ultimate submission made by appellants' trial counsel – there was no evidence the brakes played any role in the collision with Christopher. The trial judge's direction accurately and fairly summarized the evidence admitted on the brakes issue.

The trial judge's direction was not inconsistent with the reverse onus placed on the respondents, Vicentini and Ford Credit, by s. 193(1) of the HTA. Given that, it was open to the trial judge to instruct the jury on what admissible evidence was before them that they could take into account when considering whether the respondents, Vicentini and Ford Credit, had discharged the reverse onus they bore.

(4) No. At trial, Vicentini called Dr. Marc Green as a human factors expert who gave opinion evidence on Vicentini's perception-reaction time – i.e., how long it would take Vicentini to perceive Christopher as a hazard and react to the hazard by braking or steering. On appeal, the appellants submitted the trial judge erred by permitting Vicentini to lead evidence from Green that (i) the cause of the accident was Christopher darting out into traffic, and (ii) Vicentini had no chance to avoid the collision. The appellants argue such opinion evidence went beyond the area in which Green was qualified to testify and, as well, amounted to impermissible opinions on the ultimate issue the jury was required to decide.

The Court rejected these arguments for two reasons. First, there is no longer a general rule barring opinion evidence on the ultimate issue. Instead, a court should apply the criteria of necessity and the cost-benefit-analysis more strictly on evidence dealing with the ultimate issue. Second, an appellant cannot ask for a new civil trial as of right on the ground of the inadmissibility of evidence when no objection was made in respect of the matter at trial and no substantial wrong or miscarriage was occasioned: G.K. v. D.K. (1999), 122 O.A.C. 36 (C.A.), at para. 17. In the present case, the appellants did not object at trial to the evidence from Green.

(5) No. The appellants sought a new trial on liability as against Vicentini and Ford Credit on the ground that counsel for Hoang's insurer, The Personal, appointed to defend the action was in a conflict of interest position. The appellants argue that a conflict arose because the insurer had reserved its rights regarding coverage under the policy.

The Insurance Act states that every motor vehicle liability policy issued in Ontario shall provide that the insured appoints the insurer as its attorney to defend any action against the insured arising out of the ownership, use or operation of the automobile: Insurance Act, R.S.O. 1990, c. I.8, s. 252(1)(c). However, the right of an insurer to control the defence of any claim is not absolute: Brockton (Municipality) v. Frank Cowan Co. (2002), 57 O.R. (3d) 447 (C.A.), at para. 32 ("Brockton"). If a sufficient degree of divergence exists between the interests of the insurer and the insured, the insurer can be required to surrender control of the defence and pay for counsel retained by the insured.

In Brockton, the Court rejected the concept of "appearance of impropriety" as a basis for depriving an insurer of its contractual right to control the defence; instead, it adopted the concept of conflict of interest.

The potential tension between insurer and insured which is manifested by a reservation of rights by the insurer is not, in itself, sufficient to require the insurer to surrender control of the defence. Whether a conflict exists turns, in part, on the reason why an insurer reserves its rights. If the reservation of rights arises because of coverage questions which depend upon an aspect of the insured's own conduct that is in issue in the underlying litigation, a conflict exists. On the other hand, where the reservation of rights is based on coverage disputes which have nothing to do with the issues being litigated in the underlying action, there is no conflict of interest requiring independent counsel paid for by the insurer.

In the present case, the Court held, "where a party forms the view that the divergence of interests between the insurer and its insured is such that the insured's representation by counsel appointed by the insurer might prejudice the fairness of a trial, the party is obliged to seek appropriate relief promptly from the court, certainly well before trial." Therefore, the appellants' lengthy delay in raising the issue weighed heavily against their submission. The trial record also disclosed that Hoang's appointed trial counsel advanced a full defence on his behalf on all issues pleaded against Hoang.

The Court also rejected the argument that Hoang's position with respect to Vicentini ― that he was not liable for the accident ― brought the administration of justice into disrepute. Both Hoang and Vicentini adopted a trial strategy in which they did not blame the other for the accident. Instead, they took the position that the accident was unavoidable because Christopher unexpectedly darted into the traffic to retrieve his hat. The Court concluded that in appropriate circumstances, not blaming the other defendant can operate as a sound litigation strategy.

(6)(a) No. The trial judge ordered separate costs in favour of Vicentini and Ford Credit, which the Court held was appropriate. Appropriateness turns on the reasonableness of separate representation for parties with the same or similar interests: r. 57.01(1)(h)(ii).

In light of the amount of the appellants' claims and the different policy limits available to the successful respondents, the Court accepted the submission of Ford Credit that its interests in the action were distinct from those of Vicentini, making it reasonable for Ford Credit to have separate representation.

(6)(b) No. The trial judge correctly identified the principles governing the making of a Sanderson order. She expressly considered the "ability to pay" factor described by this court in Moore v. Wienecke, 2008 ONCA 162, 90 O.R. (3d) 463 ("Moore"). The trial judge also correctly rejected the argument that because Mr. Hoang had "a real prospect of success in his pending insurance coverage action" he should pay the judgment and costs. The trial judge accurately described the risks assumed by appellants' counsel in proceeding with the trial in the face of an unresolved coverage issue.

(6)(c) The appellants argued that The Personal had acted improperly by appointing conflicted defence counsel for Hoang and, as a result, it would be in the public interest to order The Personal to pay all costs awarded. Having already held that no such conflict of interest existed, the Court rejected the alleged conflict as a basis for awarding costs.

The appellants also submitted the terms of the policy of automobile insurance issued by The Personal required it to pay any costs awarded against its insured irrespective of the issue of coverage. The Court held that the trial judge correctly declined to consider the argument in light of the on-going coverage litigation between Hoang and The Personal before the courts.

Nadeau v. Caparelli, 2016 ONCA 730

[Hoy ACJO, Brown and Huscroft JJ.A.]

Counsel:

T. W. Curran, for the appellants

H. Witteveen, for the respondent

Keywords: Contracts, Debtor-Creditor, Legal Assignments, Equitable Assignments, Conveyancing and Law of Property Act, s 53(1), Civil Procedure, Joinder of Parties, Assignors, Rules of Civil Procedure, Rule 5.03(3), Summary Judgment, Limitation Periods

Facts:

The appellants, Angelo Caparelli and 2292819 Ontario Inc ("229), appealed a summary judgment against them in favour of Nadeau and 1117251 Ontario Inc ("111"), a corporation controlled by Nadeau. The appellants contended that the motion judge erred in failing to find that a genuine issue requiring a trial existed as to whether 111 had made a valid equitable assignment to Nadeau of an October 19, 2011 promissory note executed by Caparelli and another in favour of 111 (the "Note") and guaranteed by 229. The appellants also submitted that the motion judge erred in adding 111 as a party nunc pro tunc.

As part of the 2011 sale of a nursing home business by 111 to 229, Caparelli and another executed the Note. 229 gave 111 a guarantee of the obligations under the Note. Following the sale, shareholder loans remained due and owing from 111 to Nadeau. On November 1, 2011, 111 assigned to Nadeau all its rights to "a possible claim in respect to deposit monies paid under terms of the subject agreement" for the sale of the nursing home. The assignment provided that proceeds of such claim were to be applied and credited to Nadeau's shareholder loan to 111.

No payment was made on the Note when it became due. On March 31, 2015, counsel for Nadeau wrote to the appellants advising that Nadeau was the assignee of the Note and demanded payment of the Note by April 15, 2015 on behalf of Nadeau. No payment was made in response to the demand. Nadeau commenced the action on May 7, 2015, seeking payment on the Note and Guarantee. He did not name 111 as a co-plaintiff in the action. The Statement of Claim pleaded that following the sale of the nursing home business, 111 ceased operations and "assigned the promissory note . . . to the plaintiff Nadeau." No particulars of the assignment were pleaded. The appellants defended the action, arguing that 111 was insolvent and indebted to third parties at the time it allegedly assigned the Note, rendering the assignment legally invalid as an attempt to defraud creditors of 111.

On September 1st, 2015, Nadeau as an officer and director of 111, executed a further assignment from the company to himself ("the 2015 Assignment"). The recitals stated the 2015 Assignment purported to assign the remaining assets of 111 to Nadeau, but had failed to specifically mention the Note. The recitals continued by stating 111 "wishes to further evidence its intention to assign all of its assets to Nadeau in consideration of his shareholder loans to the Corporation including the [Note]." 111 assigned to Nadeau all its rights in any remaining assets including, without limitation, the Note.

Nadeau brought a summary judgment motion. The motion judge rejected the appellants' argument that 111 could not make the 2015 Assignment because it was insolvent. The motion judge found that a valid equitable assignment took effect. The action was not statute-barred. Further, there would be no prejudice to the appellants by joining 111.

Issue:

  1. Whether there was a genuine issue requiring a trial on the issue of whether 111 has assigned the Note to Nadeau.
  2. Whether by adding 111 as a co-plaintiff nunc pro tunc more than two years after the due date of the Note, the motion judge deprived the appellants of a limitation defence.

Holding: Appeal dismissed.

Reasoning:

  1. No. Equity does not require a particular form to effect a valid assignment (and does not need to use the language of an assignment), but whatever form is used must clearly show an intention that the assignee is to have the benefit of the debt or chose in action assigned. The motion judge relied on two facts to find that 111 had made an equitable assignment of the Note: (i) the sending of the March 31, 2015 written demand for payment to the appellants; and (ii) the commencement of the action on May 7, 2015. Although both acts were undertaken by Nadeau, not by 111, the owner of the Note, Nadeau was the sole director, officer and shareholder of 111, within whose control lay the formalities of any assignment of the Note from 111 to himself. In those circumstances, instructing counsel to send a letter informing the appellants of the assignment of the Note by 111 before commencing the action operated as sufficient evidence of a clear intention by 111 to assign the Note to Nadeau. The motions judge did not err in concluding that by the time the action was commenced, 111 had made an equitable assignment of the Note to Nadeau.
  2. No. The Limitations Act was not engaged. 111 was not a necessary party to the action, so no limitation period issue arose. Also, although Nadeau did not request the joinder of 111 in his notice of motion, counsel requested such relief at the continuation of the hearing. It was within the discretion of the motion judge to consider Nadeau's request to add the assignor as a party as long as he considered any potential prejudice to the appellants, which he did.

The Court also commented on the ability of an assignee to sue in his own name. The Court referenced the principles surrounding assignment discussed in DiGuilo v Boland, [1958] OR 384 (CA), which clarified that there are four kinds of assignments: legal assignments of legal and of equitable choses in action, and equitable assignments of legal and of equitable choses. According to DiGuilo, the following principles determine whether an assignee must join an assignor as a party to an action to enforce an assignment:

  • In the case of a legal assignment of either a legal or equitable chose i.e. an assignment that complies with s 53(1) of the Conveyancing and Law of Property Act, the assignee can sue alone.
  • An assignee can also sue alone where there is an equitable assignment of an equitable chose in action.
  • In the case of an equitable assignment of a legal chose in action, the assignee must join the assignor as a necessary party.

The Rules of Civil Procedure address this issue in Rule 5.03(3), which modifies DiGuilo to the extent that as long as the assignment was absolute and notice in writing was given to the appellants of the assignment, Nadeau was not required to join 111 as a party. In this case, the assignment was absolute. The March 31 2015 letter also gave written notice that Nadeau was the "Assignee of a promissory note given by the appellants". The requirements of r. 5.03(3) were thereby met, permitting Nadeau to bring a proceeding on the assigned Note in his own name without joining 111 as a party. That being the case, no limitation period issue arose because Nadeau, as the sole necessary party, commenced the action on the Note within two years of its due date.

Even if the assignment did not meet the requirements of r 5.03(3), there was no basis to interfere with the motion judge's conclusion that the appellants did not suffer any prejudice from the joinder of 111. The assignor had no interest, and therefore the limitation period did not apply and did not prevent the addition of an assignor as a party.

C-A Burdet Professional Corporation v. Gagnier, 2016 ONCA 735

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

Counsel:

C. A. Burdet, acting in person

Y. Guilbault, for the respondent

Keywords: Endorsement, Solicitor and Client, Unpaid Legal Fees, Solicitors Lien, Appeals, Jurisdiction, Final or Interlocutory, Courts of Justice Act, R.S.O. 1990, c. C.43. s. 19(1)(b)

Facts:

The respondent brought a motion in his family law proceedings for an order compelling his former solicitor to deliver a copy of his file to his new lawyer. The former solicitor (the "appellants") resisted the motion on the basis of their claim to a solicitors' lien over the file. There are significant unpaid fees and disbursements.

In response to the motion for production of the file, the appellants also asserted that there was no need for the respondent's new counsel to have the entire file, including parts reflecting the financial dealings between the appellants and the respondent. The appellants argued that only parts relating to the remaining issue in the family law proceedings, equalization of net family property ought to be produced.

A December 18, 2015 order required the appellants to turn over possession of their complete file to the respondent for copies to be made of any of the file contents at the respondent's expense and for the return of the file to the law firm two weeks later. The appellants appealed.

Issues:

  1. Is the appeal properly before the Court?
  2. Is physical possession of the entire file necessary and will it interfere with the solicitor's lien and the action commenced against the respondent?
  3. Did the motion judge fail to impose appropriate terms and conditions on the respondent to protect the appellants' claim and lien?

Holding:  Appeal allowed in part. December 18, 2015 order varied.

Reasoning:

  1. Yes. As a preliminary matter, there is the question of whether the appeal was properly before the Court of Appeal. The respondent contends that the order appealed from was interlocutory and therefore that any appeal was with leave to the Divisional Court pursuant to s. 19(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43. The Court of Appeal disagreed.

The appellants were third parties or "strangers" to the matrimonial litigation in which the motion was brought. While the order was interlocutory as between the parties to that litigation, because it did not finally dispose of any issue between them, the current jurisprudence indicates that it was final as between the respondent and the appellants, for the purpose of an appeal of the order by the appellants.

  1. No. As for the substance of the appeal, the appellants changed their position during the course of the hearing of the appeal. They abandoned their argument that they should not be forced to turn over the entire file. Ultimately, they agreed to hand over everything that was in the file (whether or not related to the family law proceedings, and including "financing documents"), but in some cases they proposed to produce copies rather than originals. Accordingly the order of December 18, 2015 is varied as follows:
  • The appellants are not required to transfer possession of any original documents signed by the respondent or share certificates that are in the file, but shall permit inspection of the originals and shall provide photocopies of such documents to the respondent at the appellants' own expense.
  • Any records, documents or communications stored in the file in electronic form may be provided to the respondent in such form. In other words, emails and other documents stored electronically need not be printed out.
  • For greater certainty, any pleadings, affidavits or other documents that would be found in a continuing record shall be produced in the form in which they have been retained in the file.

These variations are consistent with the spirit of the order of the motion judge, and protective of the legitimate interests of the parties. The appeal is therefore allowed to this extent only.

  1. After hearing from both parties, it was the Court of Appeal's view that it was unnecessary to determine whether the motion judge erred in making the order in question. The variation of the order will meet the appellants' remaining concerns without causing prejudice to the respondent.

Civil Endorsements:

P.M. Snelgrove General Contractors & Engineers Ltd. v. Jensen Building Limited, 2016 ONCA 728

[Feldman, Epstein and Miller JJ.A.]

Counsel:

R. S. Baldwin, for the appellant

J. R. Crouchman and K. Muszynski, for the respondents

Keywords: Endorsement, Construction Law, Evidence, Expert Opinion Evidence, Voir Dire

Prelorentzos v. Havaris, 2016 ONCA 727

[Feldman, Epstein and Miller JJ.A.]

Counsel:

J. K. Bastien, for the appellant

N. Pizzale, for the respondent

Keywords: Endorsement, Wills and Estates, Succession Law Reform Act, Discretion

D.L.G. & Associates Ltd. v. Minto Properties Inc., 2015 ONCA 721

[Doherty, Lauwers and Huscroft JJ.A]

Counsel:

S. Laubman and C.Muir, for the plaintiff (appellant)

A. Grant and A. Caverson, for the defendant (respondent)

Keywords: Costs Endorsement, Partial Indemnity Basis

Khosroabadi v. TD Canada Trust Branch 241, 2016 ONCA 733

[Feldman, Epstein and Miller JJ.A.]

Counsel:

R. Y. Khosroabadi, acting in person

S.C. D'Souza, for the respondents

Keywords: Endorsement, Negotiable Instruments, Duty of Bank

A.A. v. Z.G., 2016 ONCA 737

[Feldman, Simmons and Lauwers JJ.A.]

Counsel:

M. A. Russell and J.Hamilton, for the appellants A.A. and S.A.

H. Niman and D. MacKenzie, for the respondent Z.G.

Keywords: Endorsement, Family Law, Family Responsibility and Support Arrears Enforcement Act, 2005, S.O. 2005, c. 16, s. 1(1)(g), Support, Costs

Criminal Cases:

R. v. Bent, 2016 ONCA 722

[Strathy C.J.O., Gillese and Pardu JJ.A.]

Counsel:

C. Harper, for the appellant

P. Calarco, for the respondent

Keywords: Publication Ban, Criminal Law, Incorrect Record, Similar Fact Evidence, Sufficiency of Reasons, Instruction on Consent

R. v. Brar, 2016 ONCA 724

[Rouleau, Hourigan and Pardu JJ.A.]

Counsel:

A. Cooper and Erin Dann, for the appellant

L. Henderson, for the respondent

Keywords: Publication Ban, Criminal Law, Criminal Code, ss. 161(1)(c) and (d), Retrospectivity, R. v. K.R.J., 2016 SCC 31, Internet Prohibition Order, Sentencing

R. v. McLennan, 2016 ONCA 732

[MacFarland, van Rensburg and Huscroft JJ.A.]

Counsel:

M. H. Gordner, for the appellant

P. Perlmutter, for the respondent

Keywords: Criminal Law, Dangerous Driving Causing Death, Alcohol, Speed, Unreasonable Verdict, Prior Incidents, Crown Misconduct, Jury Misdirection

R. v. Rhooms, 2016 ONCA 738

[Laskin, Gillese and Watt JJ.A.]

Counsel:

B. Vandebeek and M. C. Halfyard, for the appellant

J. Clark, for the respondent

Keywords: Endorsement, Criminal Law, Possession of Cocaine for the Purpose of Trafficking, Expert Evidence, Discretion, Mistral, Adjournment

R. v. Santhosh, 2016 ONCA 731

[Cronk, Juriansz and Watt JJ.A.]

Counsel:

A. Moustacalis, for the appellant

R. Direnfeld, for the respondent

Keywords: Publication Ban, Criminal Law, Summary Conviction, Evidence, Credibility, Manner of Dress and Religious Beliefs, Rule Against Oath-Helping

R. v. Srbinovski, 2016 ONCA 729 

[Laskin, Gillese and Watt JJ.A.]

Counsel:

G. Dorsz, for the appellant

R. De Filippis, for the respondent

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