Canada: Court Of Appeal Summaries (January 16 – 20, 2017

Good evening.

Below are the summaries for this week's civil decisions of the Court of Appeal for Ontario. It was a busy week.

Surujdeo v. Melady is a medical malpractice case that went to a jury. The court dealt with jury charges, the questions for the jury, the number of juror votes needed on each question and jury polling, issues that do not often get discussed in civil decisions.

In 1588444 Ontario Ltd v State Farm Fire and Casualty Company, the court discussed actual and presumed prejudice in the context of substantially amending pleadings to change a defence after many years of litigation.

In Independence Plaza 1 Associates, L.L.C. v. Figliolini, the Court of Appeal confirmed that claims to enforce foreign judgments in Ontario are subject to the basic two-year limitation period, but that the two years does not start to run until an appeal in the foreign jurisdiction has been determined.

Other topics covered this week included a number of other limitation period issues (including one involving a sexual assault claim, where we are reminded that there is no limitation period for such claims), unjust enrichment in the condominium law context and the residential schools class action settlement.

Finally, it was only fitting, given that it was inauguration day today in the U.S., that  our Court of Appeal released this week another decision in Singh v Trump (a costs decision), the lawsuit involving the Trump tower in Toronto.

John Polyzogopoulos

Blaney McMurtry LLP

jpolyzogopoulos@blaney.com

Tel: 416.593.2953

http://www.blaney.com/lawyers/john-polyzogopoulos

Table of Contents:

Civil Decisions (click on case name to read summary):

Singh v. Trump, 2017 ONCA 34

Keywords: Endorsement, Civil Procedure, Summary Judgment, Costs, Rules of Civil Procedure, Rule 49

Dale v. Frank, 2017 ONCA 32

Keywords: Torts, Negligence, Medical Malpractice, Breach of Fiduciary Duty, Summary Judgment, Limitation Periods, Limitations Act, 2002, s. 5, Discoverability, Lawless v. Anderson, 2011 ONCA 102, 276 O.A.C. 75

Filanovsky v. Filanovsky, 2017 ONCA 28

Keywords: Endorsement, Intentional Torts, Assault, Child Abuse, Evidence, Procedural and Natural Justice, Sufficiency of Reasons, Evidence, Findings of Fact, Standard of Review, Palpable and Overriding Error

Middlesex Condominium Corporation 229 v. WMJO Limited,  2017 ONCA 27

Keywords: Endorsement, Contracts, Unjust Enrichment, Real Property, Condominiums, Joint Use and Maintenance Agreements

Fontaine v. Canada (Attorney General), 2017 ONCA 26

Keywords: Class Actions, Indian Residential School Settlement Agreement, Independent Assessment Process, Availability of Recourse to Courts, Jurisdiction, Authority of Courts

1588444 Ontario Ltd v State Farm Fire and Casualty Company, 2017 ONCA 42

Keywords: Civil Procedure, Rules of Civil Procedure, Rule 26.01, Amending Pleadings, Actual Prejudice, Presumed Prejudice, Costs, Substantial Indemnity

Surujdeo v. Melady, 2017 ONCA 41

Keywords: Torts, Negligence, Medical Malpractice, Juries, Charge to Jury, Questions for Jury, Polling of Jury

Independence Plaza 1 Associates, L.L.C. v. Figliolini, 2017 ONCA 44

Keywords: Civil Procedure, Conflict of Laws, Foreign Judgments, Limitation Periods, Limitations Act, 2002, ss 4, 5 and 16(1), Discoverability

Cook v. Joyce, 2017 ONCA 49

Keywords: Summary Judgment, Sexual Assault, Limitation Period, Limitations Act, s. 16(1.2)(b), Settlement, Oral Contract, Objective Evidence, Remedial Powers, Court of Justice Act, Section 134, Slander

For Short Civil Decisions, click here

For Criminal Decisions, click here

Civil Decisions

Singh v. Trump, 2017 ONCA 34

[Rouleau, van Rensburg and Benotto JJ.A.]

Counsel:

M. Wine and K. Sherkin, for the appellants

S. Zucker, M. Solmon and N. Tourgis, for the respondents

Keywords:  Endorsement, Civil Procedure, Summary Judgment, Costs, Rules of Civil Procedure, Rule 49

Facts:

On October 13, 2016, the Court of Appeal allowed the plaintiffs' appeal from the dismissal of their motions for partial summary judgment. Among other relief, the Court awarded the plaintiff (appellant), Sarbjit Singh, rescission of his agreement of purchase and sale and awarded the plaintiff (appellant), Se Na Lee, damages as against Talon International Inc. The two cases on appeal were said to be representative of claims in 20 other outstanding actions against the same defendants. Those 20 other matters, as well as other aspects of the claims brought by the two appellants, remain to be determined. The October 13 decision also confirmed that the partial summary judgment motion brought against the defendants Alex Shnaider, Val Levitan and Donald J. Trump Sr. was properly dismissed.

Regarding costs, the Court awarded costs of the appeal to the appellants and provided that if the parties could not agree on the costs of the original summary judgment motions, brief submissions in writing could be made.

The appellants sought a total of $235,661.69 including fees, disbursements and applicable taxes. They argued that they should be awarded the costs of their actions through to the partial summary judgment motions, with partial indemnity costs up to the date of their offers to settle and substantial indemnity costs thereafter under rule 49 of the Rules of Civil Procedure. They maintained that of the $184,821.50 in fees claimed, fully $154,427 of this amount was incurred for the summary judgment motions themselves. They also claimed that none of the costs related to the other 20 similar claims.

The respondents argued that the offers ought not to be considered because they required acceptance not only of settlement of the appellants' claims but also of the claims in the 20 other similar actions that are outstanding.  The respondents also argued that the offers to settle were not capable of acceptance because they were not for a fixed amount as they provided for the accrual of interest. They also noted that the summary judgment motions against the three individual defendants were dismissed thus entitling those defendants to costs.

Issues:

How should cost be awarded in respect of a partial summary judgment in light of mixed success on appeal and outstanding actions against the same defendants?

Holding:

Costs awarded to the appellants in the amount of $180,000, inclusive of disbursements and applicable taxes. Costs also awarded to the three individual defendants in the amount of $7,000, inclusive of disbursements and applicable taxes.

Reasoning:

The Court held that the offers to settle did not, as the respondents suggested, require that the respondents agree to settle all 22 outstanding actions brought against them. On the contrary, the offers contemplated settlement on a case by case basis, although the proposed terms of settlement were the same for all of the similar claims. Nor did the provision for interest in those offers to settle, which referred to interest to be paid pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43, make them not capable of acceptance and not compliant with rule 49.

There was no dispute that the appellants ought to be awarded their costs of the summary judgment motions, save for the portion of the costs relating to the partial summary judgment motions against the three individual defendants, which constituted only a small fraction of the costs incurred based on the materials filed.

Given the "unusual circumstances", the Court held that it was appropriate to make a significant award of costs for the partial summary judgment motions. However, it did not consider it appropriate to award costs for the entire actions as the claims were still ongoing. As a result, the Court made a significant reduction to the amount claimed to account for the dismissal of the partial summary judgment motions as against the three individual defendants, as well as the fact that a significant portion of the amount claimed did not relate to the summary judgment motions themselves. Ultimately, the Court awarded the appellants their costs of the partial summary judgment motions in the court below, fixed in the amount of $180,000, inclusive of disbursements and applicable taxes.

Regarding the three defendants that had the partial summary judgment motions against them dismissed,those defendants were entitled to their costs of the original motions on a partial indemnity basis.

Their involvement in the partial summary judgment motions was quite limited and the amount of $10,000 proposed by the respondents was held to be too high. The Court awarded $7,000, inclusive of disbursements and applicable taxes.

Dale v. Frank, 2017 ONCA 32

Counsel:

J. Dobson and D. Douek, for the appellants

C. Brandow and J. Damstra, for the respondents

Keywords: Torts, Negligence, Medical Malpractice, Breach of Fiduciary Duty, Summary Judgment, Limitation Periods, Limitations Act, 2002, s. 5, Discoverability, Lawless v. Anderson, 2011 ONCA 102, 276 O.A.C. 75

Facts:

The appellants were patients of the respondent Dr. Cathy Frank, a medical doctor. Between September 2012 and August 2013, all of the appellants, in separate actions, brought claims against Dr. Frank and related medical parties, personal and institutional, for negligence and breach of fiduciary duty. The essential claim was that Dr. Frank performed various medical procedures below the standard of care, thus injuring the appellants.

The respondents brought motions for summary judgment on the basis that all of the actions were brought outside the relevant two year limitation period in s. 4 of the Limitations Act, 2002(the "Act"). The appellants conceded that they had not commenced their proceedings before the second anniversary of the medical procedures that had caused their injuries. However, they relied on the principle of discoverability to resist the motions for summary judgment. Counsel for the appellants had issued a press release on November 4, 2011, indicating that the respondents were being sued by other patients for medical negligence and that a complaint against the respondents had been filed with the College of Physicians and Surgeons.

The motion judge granted the motions for summary judgment and in every case concluded that, "[b]ased on the objective standard of assessing due diligence, the Plaintiffs have not demonstrated that they acted with reasonable diligence to discover their claims."

Issue:

Did the motion judge err in holding that ss. 5(1)(a)(ii) and (iii) of the Act do not require a plaintiff to have knowledge that an act or omission causing injury is wrongful for a claim to be discovered?

Holding:

Appeal dismissed.

Reasoning:

No. In the Court of Appeal's view, the motion judge was correct to hold that a plaintiff need not know that a defendant's act or omission was culpable in order for the loss it causes to be discovered. To require a plaintiff to know with certainty that her injuries were caused by the fault of the defendant would require her to have come to a legal conclusion as to the defendant's liability to her. This is too high a bar for a plaintiff to have to meet. The proper test, as applied by the motion judge, is Rouleau J.A.'s formulation in Lawless v. Anderson.

The court was not persuaded by the appellants' submission that the motion judge erred by failing to consider the test for discoverability in s. 5(1)(a)(iv) of the Act. Although the motion judge did not undertake a distinct analysis under this provision, her conclusion that each of the appellants knew or ought to have known of the other elements in s. 5(1)(a) was sufficient to infer that she also concluded that the appellants knew or ought to have known that a proceeding would be an appropriate means to seek a remedy for their losses even before the 2011 press release about Dr. Frank.

The court also disagreed with the appellants' assertion that the motion judge focused exclusively on the respondent's negligence claims against them and ignored their breach of fiduciary duty claims. The essence of the claims against the respondents is negligence. In the various statements of claim, the pleaded particulars grounding the negligence and fiduciary duty claims are explicitly linked and virtually identical. The breach of fiduciary duty claims are not stand alone claims and, therefore, do not introduce a different analysis into the limitation period issue.

The argument that the November 2011 press release by Legate & Associates LLP was influential on the issue of discoverability was rejected. The discovery of a new fact, unrelated to the specific medical procedure provided by a specific doctor to a specific patient, does not restart the limitation period.

Filanovsky v. Filanovsky, 2017 ONCA 28

Counsel:

J. W.L. Griffiths, for the appellant

J. L. L. Mullowney, for the respondents

Keywords: Endorsement, Intentional Torts, Assault, Child Abuse, Evidence, Procedural and Natural Justice, Sufficiency of Reasons, Evidence, Findings of Fact, Standard of Review, Palpable and Overriding Error

Facts:

The appellant, who was 45 years old at the time of trial, sued her parents for alleged physical and emotional abuse while she was a child. Her claim alleged violent and repeated blows to her face and head, resulting in traumatic brain injuries.

The trial judge dismissed her claim, after a 10-day trial, which included evidence from multiple witnesses. The trial judge expressed significant doubt about the veracity of the appellant's allegations and found the evidence of the respondents more credible, considering all the evidence. She concluded that the appellant had failed to establish her claim on a balance of probabilities.

The appellant appealed.

Issues:

1. Did the trial judge err in failing to consider the core issue of whether the appellant was subjected to physical abuse by her father and instead focusing on whether the appellant reported the alleged abuse?

2. Did the trial judge err in failing to prove adequate reasons to explain why the appellant's claim was dismissed and to provide a basis for appellate review?

3. Did the trial judge misapprehend portions of the evidence, fail to appreciate relevant evidence, and make findings of fact that were not based on the evidence?

Holding:

Appeal dismissed.

Reasoning:

1. No. The trial judge rightly focused on the evidence of the parties and the appellant's brother and the expert evidence adduced by both sides. The trial judge also noted that there was nothing in the appellant's medical history to corroborate her claims. Further, the appellant adduced affidavit evidence of third parties to whom she had allegedly reported the abuse when she was a child. None of these witnesses reported that they actually observed violence. Nor did they observe any conflict between the appellant and her parents. These witnesses' evidence was confined to what the appellant reported to them about conflict in the home and their observations of the appellant. Having concluded that the appellant's evidence was unreliable, the trial judge was entitled to discount the third party evidence because it was based on the appellant's self-reporting.

2. No. The trial judge did not err in failing to provide adequate reasons to explain why the appellant's claim was dismissed and to provide a basis for appellate review. The sufficiency of reasons is not a free-standing ground of appeal. If the reasons do not permit meaningful appellate review, appellate intervention may be justified. In this case, the trial judge gave lengthy reasons that analyze the evidence of all witnesses. As such, the reasons permit meaningful appellate review.

3. No. The trial judge did not misapprehend portions of the evidence, fail to appreciate relevant evidence, and make findings of fact that were not based on the evidence. The appellant failed to identify any error that, individually or taken together with the others, would rise to the level of a palpable and overriding error in the trial judge's assessment of the evidence.

Middlesex Condominium Corporation 229 v. WMJO Limited, 2017 ONCA 27

[MacPherson, Hourigan and Miller JJ.A.]

Counsel:

F. S. Turton, for the appellant

M. P. Morrissey, for the respondent

Keywords: Endorsement, Contracts, Unjust Enrichment, Real Property, Condominiums, Joint Use and Maintenance Agreements

Facts:

MCC 229 is a condominium corporation created under the Condominium Act, 1998, located in London (the "City"). MCC 229 is built on the same parcel of land as three condominium projects owned by WMJO. The land on which all four condominium projects are built is lower than the adjacent city street, Hamilton Road. Thus the City requires the sewage from these condominiums be pumped uphill to the city sewer that runs under Hamilton Road.

In 1989, Trenlon Developments Corp ("Trenlon"), the owner of the parcel of land upon which all four condominium projects would eventually be built, entered into a development agreement with the City (the "Development Agreement"), which was registered on title pursuit to the Planning Act. The Development Agreement required Trenlon to construct and maintain at its sole expense a sanitary sewer pumping station. The Development Agreement was binding on Trenlon's successors on title.

Also in 1989, Trenlon conveyed the land to Award Development Ontario Ltd. ("Award"). Prior to this transaction closing, Trenlon constructed the required sanitary sewer pumping station. In March 1990, Award transferred the part of the land upon which MCC 229 would be built and upon which the sanitary sewer pumping station was located to a related company, Double G Contractors Limited ("Double G").

In December 1990, Double G and Award entered into a "Joint Use and Maintenance Agreement" ("the Joint Use Agreement"), which was also registered on title. The Joint Use Agreement contemplated the development of one condominium project by Double G, and that three further condominium projects would be developed in phases by Award on the balance of the land. The Joint Use Agreement provided for the sharing of the sanitary sewer pumping station, and stipulated that the costs of the system would be shared pro rata among the properties built on the land. The Joint Use Agreement contained a provision that it would be binding on successors on title.

Double G developed its property, and in June 1991 registered the declaration creating MCC 229. The sanitary sewer pumping station was included as part of the common elements of MCC 229. In 1991, the balance of the parcel of land (i.e. excluding MCC 229) was lost by Award pursuant to a mortgage default. This land eventually came into the possession of WMJO, who built three condominium projects during the years 1993 to 2002. As each of these projects were constructed, they were connected to the existing sanitary sewer pumping station operated by MCC 229.

Since 1991, MCC 229 has managed and operated the sanitary sewer pumping station. For more than ten years, WMJO contributed its proportionate share for the costs of the sanitary sewer pumping station, in line with the Joint Use Agreement. WMJO stopped making payments after 2006, taking the position that it had no obligation to do so.

Issues:

1. Did the trial judge err in finding WMJO liable on the basis of unjust enrichment?

2. Did the trial judge fail to properly conduct the two-part analysis of the absence of juristic reason?

Holding: Appeal dismissed.

Reasoning:

1. No. There is no basis on which to interfere with the findings of the trial judge in regard to enrichment and corresponding deprivation. There was ample evidence to establish that WMJO receives the benefit of the use of the sanitary sewer pumping station, without having to pay operating or management costs. As a result, MCC 229 suffers the corresponding deprivation of increased costs for electricity, repairs and maintenance. It was also established at trial that the risk of breakdown of the sanitary sewer pumping station increases with the volume of sewage.

2. No. The Development Agreement does obligate MCC 229 as successor to Trenlon to maintain the sanitary sewer pumping station. However, the Development Agreement also provided in clause 9 that the owner of each phase of development would enter into an agreement with the owners of the other phases to "provide for the joint use and maintenance of common internal driveways and services." Thus, the Development Agreement always contemplated the sharing of expenses for the maintenance of the sanitary sewer pumping station.

The fact that the respondent has an obligation to maintain and operate the sanitary sewer pumping station under the Ontario Water Resources Act is not a juristic reason for why WMJO should obtain the benefit of the system             free of charge. The statute does not deal with who should be responsible for the cost of maintaining such a system.

An unenforceable contract is a recognized basis for granting a remedy in unjust enrichment. This court's decision in Amberwood does not impact on that principle. In Amberwood the sole issue was whether the covenant was enforceable against a successor in title. There was no issue of a benefit, and thus a remedy for unjust enrichment was neither sought nor available.

Fontaine v. Canada (Attorney General), 2017 ONCA 26

[Strathy C.J.O., Hoy A.C.J.O and Sharpe J.A.]

C. Coughlan and B. Thompson, for the appellant, the Attorney General of Canada

D. Schulze and M-E. Dumont, for the respondent, M.F.

P. Grant and K. Williams, for the respondent, Independent Counsel

C. Boies Parker, for the intervenor, The Chief Adjudicator

Keywords: Class Actions, Indian Residential School Settlement Agreement, Independent Assessment Process, Availability of Recourse to Courts, Jurisdiction, Authority of Courts

Facts:

The Indian Residential School Settlement Agreement ("IRSSA") is a national settlement resolving various class action proceedings against the Attorney General of Canada ("Canada") and other parties implicated in the history of abuse suffered by aboriginal children at residential schools. IRSSA provides for compensation to the victims of residential schools. A Common Experience Payment is available immediately to all eligible class members who had resided in a residential school. An Independent Assessment Process ("IAP"), a specially designed inquisitorial process involving trained adjudicators, was established to provide compensation to claimants who could show that they suffered serious abuse at a residential school.

The respondent, M.F. made a claim to IAP but was rejected on the ground that he was not an eligible claimant. M.F. brought a Request for Directions ("RFD") before the judge designated under the IRSSA's Court Administration Protocol challenging the rejection.

Before the RFD was heard, Canada discovered and disclosed two documents that arguably demonstrated M.F.'s eligibility. Canada was prepared to consent to an order remitting M.F.'s claim to the Chief Adjudicator for reconsideration, but M.F. refused to consent and the RFD proceeded.

The administrative judge held that M.F. was entitled to compensation, and that he was entitled to award compensation and quantify the award. On appeal, Canada submitted that the administrative judge erred by assuming jurisdiction over M.F.'s claim. M.F. cross-appealed, asking the court to declare the Canada breached its document disclosure obligations under the IAP.

Canada submitted that the administrative judge erred in failing to apply the Court of Appeal's decision in Fontaine v. Duboff Edwards Haight & Schachter, 2012 ONCA 471, which expressly limited judicial recourse to challenge IAP decisions to very exceptional circumstances, by overturning and making findings of fact, and by awarding compensation and costs to M.F. rather than remitting the claim for reconsideration to the Chief Adjudicator.

Issues:

Did the Administrative Judge exceed the limits of his authority?

Holding:

Appeal allowed.

Reasoning:

Yes. The administrative judge failed to respect the strict limits on the scope for judicial intervention imposed by Schachter. The IAP is a "complete code" that limits access to the courts, preserves the finality of the IAP process and respects the expertise of adjudicators. The judge undertook a full-blown appeal of the IAP decisions on both law and fact. He engaged in a detailed review of the factual findings made by the adjudicator, and thereby assumed the role of the adjudicator.

1588444 Ontario Ltd v State Farm Fire and Casualty Company, 2017 ONCA 42

[Laskin, Feldman and Hourigan JJ.A.]

Counsel:

T. J. Donnelly, for the appellant

G. A. Marsden and A. D. Romain, for the respondents

Keywords: Civil Procedure, Rules of Civil Procedure, Rule 26.01, Amending Pleadings, Actual Prejudice, Presumed Prejudice, Costs, Substantial Indemnity

Facts:

On June 4, 2006 a restaurant and banquet facility operated by the corporate respondent was destroyed by fire caused by arson. The premises were insured under a policy issued by the appellant. About a year later, the respondents sued the appellant, seeking indemnification pursuant to the insurance policy it had issued to the corporate respondent. The appellant defended the action on the basis that the respondents failed to cooperate with the investigation of the fire and failed to produce relevant documentation.

In January 2015, the appellant brought a motion to amend its statement of defence. The effect of the proposed amendments was to abandon the defence of non-cooperation and assert a defence that the fire was set by or at the direction of the respondents.

The motion judge dismissed the motion and ordered substantial indemnity costs against the appellant. The motion judge found that the respondents would suffer actual and presumed non-compensable prejudice if leave to amend were granted. With respect to actual prejudice, the motion judge found that the proposed amendments would have the effect of restarting the litigation process. He concluded that the respondents had lost the ability to marshal evidence to counter a claim of arson. With respect to presumed prejudice, the motion judge found, at para 135, that "prejudice is presumed given the failure of the Defendant to demonstrate that there is no prejudice occasioned by the delay." He also concluded that the appellant had failed to provide a reasonable excuse to explain its delay.

The motion judge released a costs endorsement dated April 15, 2016, in which he awarded costs in the total amount of $40,000 to the respondents. In so ruling, the motion judge concluded that "there was unreasonableness exhibited" by the appellant in the manner in which it conducted the litigation. As a consequence of this finding and the motion judge's view that this motion was more complicated than the average motion to amend, the motion judge found that "costs higher than partial indemnity are required".

Both parts of that order were appealed.

Issue:

(1) Whether the motion judge erred in dismissing the motion for leave to amend the statement of defence.

(2) Whether the motion judge erred with respect to the costs award.

Holding:

Appeal allowed, in part.

Reasoning:

(1) No. The motion judge erred with respect to his finding of actual prejudice, but not with respect to his finding of presumed prejudice. He therefore did not err in dismissing the motion to amend the defence.

Motions for leave to amend a pleading are governed by r. 26.01. The law regarding leave to amend motions is well developed and the general principles may be summarized as follows:

The rule requires the court to grant leave to amend unless the responding party would suffer non-compensable prejudice; the amended pleadings are scandalous, frivolous, vexatious or an abuse of the court's process; or the pleading discloses no reasonable cause of action. The amendment may be permitted at any stage of the action. There must be a causal connection between the non-compensable prejudice and the amendment i.e. the prejudice must flow from the amendments and not from some other source. The non-compensable prejudice may be actual prejudice, i.e. evidence that the responding party has lost an opportunity in the litigation that cannot be compensated as a consequence of the amendment. Where such prejudice is alleged, specific details must be provided. Non-compensable prejudice does not include prejudice resulting from the potential success of the plea or the fact that the amended plea may increase the length or complexity of the trial. At some point, the delay in seeking an amendment will be so lengthy and the justification so inadequate, that prejudice to the responding party will be presumed. The onus to prove actual prejudice lies with the responding party. The onus to rebut presumed prejudice lies with the moving party.

Actual Prejudice

With respect to actual prejudice, the respondents had not met their onus of proving actual prejudice, and the Court held that the motion judge made a palpable and overriding error of mixed fact and law in concluding otherwise. To meet the onus, the respondents were obliged to adduce specific evidence of actual prejudice. For example, such evidence could include details of witnesses who were available previously but are no longer available. Noting that witnesses' memories may have faded is just a generalized description of presumed prejudice, lacking the required degree of specificity to qualify as evidence of actual prejudice. When it comes to alleging actual prejudice in response to a motion to amend, the specific allegation of prejudice should be detailed in sufficient particularity in evidence to allow the opposing party to respond to the allegation and to allow the court to take a hard look at the merits of the allegation. To the extent that there was evidence of specific prejudice in the affidavit evidence before the motion judge, e.g. the loss of opportunity to conduct a forensic analysis of the scene, the motion judge made a palpable and overriding error of mixed fact and law in failing to find that prejudice does not flow from the proposed amendments.

Having received a warning that there was a possibility that the appellant would deny coverage, had the respondents wished to protect themselves from an allegation that they were responsible for the fire, they could have taken steps to conduct forensic investigations. To the extent that they chose not to do so, that was a deliberate choice on their part, wholly unconnected to the appellant's delay in moving to amend the statement of defence. Thus the necessary nexus between the delay and the prejudice had not been established.

The Court was not suggesting that an insured in a fire claim is obliged to conduct its own investigation of the cause of the fire. However, where an insured is put on notice that a claim may be denied on the basis that the arson was caused by the insured and chooses not to investigate, the insured cannot later rely on its failure to investigate as an example of actual prejudice. This is because the decision not to investigate is wholly unrelated to the delay by the insurer.

Presumed Prejudice

The court discussed the leading case in Ontario considering the concept of presumed prejudice in the context of a r. 26.01 motion, Family Delicatessen Ltd v London (City), 2006 CanLII 5135 (Ont CA). In that case, the Court of Appeal noted that at a certain point after an exceptional delay, non-compensable prejudice will be presumed absent evidence to the contrary. The presumption of prejudice is rebuttable. Where the moving party provides an adequate explanation for the delay or tenders evidence that there is no non-compensable prejudice, the presumption will be rebutted.

The court in Family Delicatessen did not elaborate on when the shift in onus takes place, i.e. the point at which the delay will be so lengthy that prejudice will be presumed. It also did not explain what evidence would need to be led by the moving party to rebut the onus.

The Divisional Court elaborated on the concept in Ontario (Securities Commission) v McLaughlin, 2009 CarswellOnt 2694 (Div Ct). There the court stated that to rebut the presumption of prejudice, a moving party needs to provide "some explanation of the delay in seeking the amendments and the presence or absence of prejudice to the opposite party and the need to show a nexus between the proposed amendments and the facts or evidence said to be recently discovered."  The Court of Appeal noted that the Divisional Court in OSC did not purport to establish a stringent test for rebutting the presumption. Rather, it was simply referencing the types of evidence that might be adduced by a moving party to rebut the operation of the presumption.

The court was not satisfied that the motion judge erred in finding that there was presumed non-compensable prejudice that had not been rebutted. The motion to amend the defence was brought approximately nine years after the fire and eight years after the commencement of the litigation. While there was no hard and fast rule as to what qualifies as inordinate delay, the Court saw no error in the motion judge's finding that there was sufficient delay in this case to trigger presumptive prejudice.

The appellant did not meet its onus of rebutting the presumption of presumed prejudice.

The appellant did not adduce any evidence to establish that the respondents would not suffer prejudice by reason of the amendment. For example, the appellant did not show that through its own investigation it had retained key pieces of evidence or taken witness statements at a time closer to the fire, before the passage of time is presumed to have caused evidence to disappear and memories to fade. Nor did it explain how information discovered through the litigation process resulted in the proposed amendments.

The parties knew from the beginning that arson was the cause of the fire. The appellant pleaded that the respondents were not cooperating with its investigation of the fire. Given this plea and the fact that it was common ground that the fire was caused by arson, there was nothing stopping the appellant from pleading at the outset, or very early on in the litigation, that the respondents were responsible for the fire. It is perfectly appropriate to allege arson where there is positive evidence of the arson and the insured is not cooperating with the investigation of the fire.

(2) Yes. The motion judge awarded costs on a substantial indemnity basis on the ground that the appellant acted unreasonably in bringing its motion to amend. The Court of Appeal held that there were insufficient grounds to award substantial indemnity costs. The court must find that a party has engaged in egregious misconduct in a proceeding before a substantial indemnity costs award is justified. While the appellant's conduct in delaying bringing its motion was not ideal, the respondents were also responsible for part of the delay in this proceeding. In any event, even an award of costs on a substantial indemnity basis must be consistent with the reasonable expectations of the parties. This was a motion to amend a statement of defence. While there was significant litigation history that had to be canvassed, the matter was not complex. The Court of Appeal set aside the costs award and substituted an award of costs in favour of the respondents in the total amount of $20,000.

Surujdeo v. Melady, 2017 ONCA 41

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

Counsel:

C. Hubbard and M. Novek, for the appellants

T. Pagliaroli, R. Bogoroch and J. Nasseri, for the respondents

Keywords: Torts, Negligence, Medical Malpractice, Juries, Charge to Jury, Questions for Jury, Polling of Jury

Facts:

On February 20, 2005, Rossana Surujdeo, was admitted by ambulance to the William Osler Health Centre, Brampton Memorial Campus (the "Hospital). She died the following morning at 7:20 a.m. An autopsy revealed Rossana died of myocarditis, an inflammation of the heart muscle caused by a viral illness.

Rossana's husband, the respondent Indernil Surujdeo, and her parents brought a negligence action against four of the treating physicians, the Hospital, Dr. J. Doe, and Nurse J. Doe. By the time of trial, the action proceeded only against two of the physicians – the appellants Dr. Donald Louis Melady, an emergency physician, and Dr. Avrum Aron Soicher, a respirologist.

At the end of a 19-day trial, which included three days of deliberation, a jury found Drs. Melady and Soicher liable for damages in the amount of $600,000. The trial judge awarded the respondent costs totaling $450,000.

As described by the appellants, two of the central issues at trial were the Test Results and Causation Issues. The Test Results Issue concerned whether the standard of care required the appellant physicians to actively seek out the results of two laboratory tests – lactate and arterial blood gases ("ABG"). The Causation Issue concerned whether there was anything the appellants reasonably could have done to avoid Rossana's death given the aggressive form of her viral myocarditis, the short amount of time in which to diagnose and treat her condition, and the lack of certain required treatment at the Hospital.

Issues:

(1) Did the trial judge err in respect of the Test Results Issue, both in how evidence was adduced and the charge to the jury?

(2) Did the trial judge err by giving a flawed and imbalanced charge to the jury with respect of the Causation Issue?

(3) Did the trial judge err by providing the jury with verdict questions that incorrectly stated the legal test for causation?

(4) Did the trial judge err by incorrectly advising the jury about the number of jurors required to agree with each answer to the verdict sheet questions?

(5) Did the trial judge err by refusing to poll the jury at the appellants' request?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The plaintiff's theory at trial was that if the appellants had sought out the results of the lactate and ABG tests, they would have appreciated that their diagnosis – pericarditis – was incorrect. As a result, an urgent echocardiogram should have been performed. Had that occurred, an early diagnosis of acute myocarditis would have been made, and Rossana would have been transferred to a cardiac centre for treatment.

By consent order dated September 23, 2013, the action against the Hospital and all cross-claims as between the defendants were dismissed without costs (the "Consent Dismissal Order"). As the trial approached, however, the practical effect of the Consent Dismissal Order became a matter of dispute between the parties. Consequently, the appellants brought a motion asking the trial judge to determine the effect, if any, of the Consent Dismissal Order on the appellants' ability to lead evidence regarding the laboratory testing results. The appellants indicated they wished to adduce evidence on whether they contemporaneously received the results of certain laboratory testing conducted by the Hospital.

The appellant submitted the trial judge made three errors in dealing with the Test Results Issue:

(i) he required the appellants to submit to further discovery at the start of the trial; (ii) he made repeated evidentiary rulings precluding the appellants from eliciting evidence to explain why they were not aware of the test results; and (iii) in his charge, the trial judge invited the jury to conclude the appellants had not adequately addressed the Test Results Issue and gave an unbalanced and incomplete charge on the issue.

(i) The appellants submitted that the trial judge erred in ordering the further discovery. They asserted the trial judge made the order on his own initiative without any motion by the respondent. The Court of Appeal rejected this argument, noting that the respondent had raised the matter in the context of the appellants' motion concerning the effect of the Consent Dismissal Order. The respondent objected to the appellants' request to adduce evidence regarding contemporaneous communication of test results in part because the respondent had not conducted discovery on the issue. The trial judge dealt with that objection by ordering further discovery. The trial judge possessed the power to permit further discovery pursuant to r. 48.04(1) and his inherent powers to control the trial process. The trial judge considered the litigation history and fairly balanced the interests of both parties, causing no prejudice to the appellants. Thus, the Court held that no error had been made in the trial judge's order.

(ii) The appellants submitted the trial judge improperly prevented them from eliciting or adducing relevant evidence on the Test Results Issue.

First, the trial judge refused to admit supplementary opinion evidence from the appellants' experts. The appellants' expert reports responded to the respondent/plaintiff's expert reports, which opined that it was the physician's responsibility to obtain the results of the lactate and ABG tests as part of their continuing assessment of Rossana.

However, the appellants' experts did not respond to those opinions; they did not opine on whether the failure to seek out those test results constituted a breach of the standard of care. The appellants' experts based their opinions on the assumption that neither appellant had seen the lactate or ABG test results. On Day 3 of the trial, the appellants served short supplementary reports from both their experts. Respondent's counsel objected to either expert proffering new opinions in their testimony before the jury.

The trial judge sustained the objection for two reasons: (i) before trial the respondents' experts had squarely raised the issue in their reports, yet neither appellants' expert had responded to that issue – the supplementary reports were "too little too late"; and (ii) both experts seemed "to point a finger at the nurses," which was not permissible given the Consent Dismissal Order in favour of the Hospital. The Court held that the trial judge committed no error in exercising his discretion and denying leave to permit the supplementary expert reports beyond the timelines stipulates in the Rules of Civil Procedure.

Second, the appellants also submitted that the trial judge erred in ruling that the appellant's were not permitted to ask their expert witness in examination whether Dr. Melady was required to seek out test results in the computer system. That expert had already testified that it was not necessary for Dr. Melady to follow up on the lactate and ABG test results. During cross-examination, he was asked to assume those results were available for Dr. Melady to view on the computer system. The expert replied he was not sure how the Meditech system worked, but repeated his view that Dr. Melady was not under an obligation to seek out those test results. Given that evidence, the re-examination question posed to Dr. Boushy was not a proper one since there was no uncertainty or confusion in his evidence on the point in cross that required clarification.

Finally, the Court held that the trial judge had not made an error in limiting questions on

the policy of the Hospital's Department of Laboratory Medicine on "Communication of Critical Values" (the "Policy"). The Policy required "designated staff" to report critical results "to the physician/patient care area" which, in the case of a patient located in the emergency department, was the "emergency unit RN".

None of the experts' reports contained comments on the Policy. Though the appellants characterized as errors the trial judge's limitations on their cross-examination of the respondent/plaintiff's expert regarding the Policy, it was far from clear they maintained live objections on this issue following counsels' exchange with the trial judge. The record strongly suggests a solution acceptable to both parties had been worked out with the trial judge. Moreover, prior to trial the appellants had made the strategic decision to consent to letting the Hospital out of the action, including dismissing their cross-claim against the Hospital. That decision precluded the appellants from pointing a blaming finger at the Hospital and its nursing staff during the trial.

(iii) With respect to the charge to the Jury on the Test Results Issue, the Court held that the trial judge had not erred in stating "The one piece in this puzzle which you might find has not been appropriately addressed or reconciled by the defendants is the fact, simply put, that neither doctor had the lactate and ABG test results and neither was aware of them..." A trial judge is entitled to express his own views of the facts or on the credibility of witnesses provided (i) he does not use such language as leads the jury to think that they must find the facts in the way he indicates and (ii) the charge does not deprive a party of a fair presentation of his case to the jury: R. v. Ruddick (1980), 57 C.C.C. (2d) 421 at para. 39.

The appellants submitted that the trial judge had erred in his instruction to the jury on the distinction between negligence and an error of professional judgment, specifically the use of the phrase "the erroneous diagnosis might have been otherwise..." instead of "likely should have changed the diagnosis". However, an appellate court must examine any alleged error in a trial judge's jury instructions in the context of the entire charge and the trial as a whole. Appellate courts should not examine minute details of a jury instruction in isolation because it is the overall effect of the charge that matters: R. v. Araya, 2015 SCC 11 at para. 39. Although the language that appellants' counsel proposed might have been preferable in the circumstances, the trial judge's choice of words did not mislead the jury. The trial judge repeatedly instructed the jury the respondent bore the onus of proving a breach of the standard of care and causation on a balance of probabilities. Having regard to the charge in its entirety, the jury would have understood the law concerning the plaintiff's onus

(2) No. The Court rejected both arguments submitted by the appellants regarding the trial judge's charge on the issue of causation: first, that the trial judge devoted little time to the issue of causation; and second that the charge on causation was unbalanced, incomplete, and skewed in the respondent's favour.

Regarding the first alleged error, the adequacy of a jury charge on a particular issue is not assessed by comparing the number of words the trial judge devoted to the issue as compared to others. Point in fact, brevity in a jury charge is desired: R. v. Daley, 2007 SCC 53 at para. 56. The charge will be adequate when the judge puts the evidence to the jury in a manner that will allow it to fully appreciate the issues and the defence presented: R. v. Rodgerson, 2015 SCC 38 at para 30.

Regarding the second alleged error, the fairness of the trial judge's charge on causation also must be assessed against the background of the closing submissions that the appellants' counsel gave the day before the charge. In his closing, appellants' counsel argued the respondent's theory contained "five key steps" that formed a "chain of causation". Appellants' counsel devoted slightly more than half of his closing to exhaustively reviewing for the jury the evidence relating to each of the five key steps.

In his charge on the standard of care, the trial judge referred to the "5-point analysis" appellants' counsel set out in his closing. There was no need for the trial judge to repeat the exhaustive review of the evidence on the "5 key steps" appellants' counsel had given the day before in his closing. Instead, the trial judge properly instructed the jury on the legal principles of causation and provided them with an adequate summary of the evidence and the parties' positions on the issue.

(3) Yes. The trial judge approved two jury questions for each appellant. The first asked whether the appellant had breached the standard of care. If the jury concluded the appellant had, the second question went on to ask: "[H]as the plaintiff established on a balance of probabilities that [the doctor's] breach of the standard of care was a cause of Rossana Surujdeo's death?"

The Court held that the trial judge erred in law by approving jury questions that did not reflect the applicable "but for" causation test. The proper approach to formulating such causation questions in a negligence case can be found in the reasons of D. Wilson J. in Sacks v. Ross, 2015 ONSC 7238, which focused on the language of causation from Clements v. Clements, 2012 SCC 3.

The Court held that the causation questions for each appellant the trial judge approved were legally flawed; however, not all errors necessitate a new trial. The appellants must establish the error produced "some substantial wrong or miscarriage of justice": Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(6); Goodwin (Litigation guardian of) v. Olupona, 2013 ONCA 259 at para 80. In the circumstances of the present case, the trial judge's error did not produce a substantial wrong or miscarriage of justice.

First, his charge thoroughly, accurately and repeatedly instructed the jury on the "but for" causation test. Second, in the portion of his charge reviewing the jury questions, the trial judge reminded the jury that causation involved establishing "that it is more ... likely [than] not that Rossana Surujdeo would not have died but for the negligent conduct or breach of the standard of care by [the appellant]." Finally, two days following the charge the jury asked for clarification on how to answer the questions seeking particulars of how the breach of the standard of care caused Rossana's death. The trial judge gave clear instructions on the "but for" causation test before the jury retired to deliberate and then two days later. Hence, the Court was satisfied the jury would have clearly understood they were required to apply the "but for" causation test and the incorrect language in the jury questions would not have misled them.

(4) No. Unanimity is not required of the six members of an Ontario civil jury, per section 108(6) of the Courts of Justice Act. Shortly after the jury retired to begin their deliberations, they sent a question to the trial judge. Essentially, the jury asked if they needed to each provide reasons for the questions put to them regarding causation. Given that there were different theories of causation, jurors may agree on an outcome but not on the actual mechanism of causation. The trial judge ruled he would instruct the jury to list, in the particulars part of each question, all reasons provided by all jurors. The trial judge acknowledged the appellants' concern about the possible lack of internal coherence.

The appellants submit the trial judge's direction was in error because the jury may have granted judgment based on answers to questions regarding breaches of the standard of care and modes of causation to which fewer than five jurors agreed.

In Ontario, the standard practice in negligence cases is to require the jury to answer specific questions, not deliver a general verdict: Courts of Justice Act, s. 108(5). Section 108(6) of the Courts of Justice Act "It is sufficient if five of the jurors agree on ... the answer to a question, and where more than one question is submitted, it is not necessary that the same five jurors agree to every answer." The trial judge correctly interpreted s. 108(6) as requiring the five jurors who agreed on an answer to the "bottom line" – Part (a) of a question – to list in the "particulars" – Part (b) of the question – all of the reasons that led those five to reach that conclusion. He instructed the jury accordingly. A jury is entitled to arrive at a verdict by different evidentiary routes and need not rely on the same facts: R. v. Morin, [1988] 2 S.C.R. 345.

Further, the trial judge's ruling also correctly interpreted the part of s. 108(6) that provides where more than one question is submitted, it is not necessary that the same five jurors agree to every answer. If five jurors agreed one appellant breached the standard of care, it was open to a different configuration of five jurors to find that the breach caused the injury or death.

The appellants contended such an approach risks inconsistencies between jury responses to questions about the breach of the standard of care and questions regarding causation. The trial judge was alive to that risk, advising counsel they could "revisit this issue if it becomes apparent from those things that are listed by the jury that there is an absence of evidence in respect to any of the matters that they specify." The trial judge's approach correctly recognized the difference between crafting jury questions in order to focus the jury on the issues they must decide and assessing the sufficiency or reasonableness of the jury's resulting answers.

(5) No. In the circumstances of the present case, the trial judge did not commit an error of principle in exercising his discretion to refuse to poll the jury. Although neither the Courts of Justice Act nor the Rules of Civil Procedure expressly authorize judges to poll civil juries on their answers or verdicts, juries often are polled in criminal trials notwithstanding the absence of any provision in the Criminal Code dealing with the practice.

So too, where concern exists in a civil trial as to whether five of the jurors have agreed on the answer to a "bottom line" question, it would be open to the trial judge to poll the jury to ensure the requirements of s. 108(6) of the Courts of Justice Act have been met. The trial judge's power to do so rests in the inherent jurisdiction of a superior court judge "to do justice between the parties and to secure a fair trial between them": Endean v. British Columbia, 2016 SCC 42

To the extent the trial judge in the present case thought s. 108(6) prevented the polling of the jury, he was mistaken. However, his refusal to poll the jury for the reason proposed by the appellants was correct because the appellants sought to poll the jury for an impermissible purpose. Specifically, they sought to poll the jury to ensure that five of the jurors agreed on each of the particulars of the breach of the standard of care or causation found by the jury. As explained above, a jury is entitled to arrive at an answer to a "bottom line" question or verdict by different evidentiary routes. Consequently, polling jurors on their responses to the "particulars" portion of any question would be an exercise without legal relevance.

Independence Plaza 1 Associates, L.L.C. v. Figliolini, 2017 ONCA 44

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

Counsel:

L. M. Belowus, for the appellant

D. M. McNevin, for the respondent

Keywords: Civil Procedure, Conflict of Laws, Foreign Judgments, Limitation Periods, Limitations Act, 2002, ss 4, 5 and 16(1), Discoverability

Facts:

On January 24, 2013, the respondent obtained a judgment against the appellant in the New Jersey Superior Court for the payment of US$115,248. An appeal to the Appellate Division was dismissed on July 17, 2014.

On May 1, 2015, the respondent brought an application in the Ontario Superior Court of Justice to recover damages based on the New Jersey judgment, in an equivalent amount expressed in Canadian dollars. The application was commenced more than two years after the New Jersey judgment was rendered, but less than two years after the dismissal of the appeal. The appellant pleaded that the proceeding was time-barred. He argued that the limitation period was two years under s. 4 of the Limitations Act, 2002, and that time ran from the date of the first-instance New Jersey judgment. The result, he said, was that the limitation period expired before the application was commenced in Ontario. The application judge rejected this defence and granted judgment in favour of the respondent.

The application judge held that the proceeding on the New Jersey judgment was in time because it was commenced within two years of the dismissal of the New Jersey appeal. In the application judge's view, it would be inefficient and promote a multiplicity of proceedings to require a foreign judgment creditor to commence an Ontario proceeding pending an appeal of the underlying judgment.

Issue:

1. What limitation period applies to a proceeding on a foreign judgment in Ontario?

2. When does that limitation period begin to run?

Holding:

Appeal dismissed.

Reasoning:

1. The basic two-year limitation period in section 4 of the Limitations Act, 2002 applies to claims on foreign judgments. Section 16(1) of the Limitations Act, 2002, which had no counterpart in the former statute, created a class of claims that are subject to no limitation period, rather than the "basic" two-year limitation period or the "ultimate" fifteen-year limitation period. The interpretation of s. 16(1)(b) has been the subject of conflicting decisions of the Ontario Superior Court of Justice. In Commission de la Construction du Quebec v. Access Rigging Services Inc., McLean J. dealt with an application to enforce a 2005 Quebec judgment in Ontario. The application was brought in 2010. Quebec is not a reciprocating party to the Reciprocal Enforcement of Judgments Act ("REJA"). Hence, the basic two-year limitation period applied unless the claim fell within s. 16(1)(b) of the Limitations Act, 2002. The judgment debtor sought to dismiss the application as time-barred. McLean J., however, found that the two-year limitation period applied. He further held that held that to interpret s. 16(1)(b) as applicable to proceedings on foreign judgments would be inconsistent with REJA, which contains a six-year limitation period for the registration of judgments of the courts of other provinces and territories, except Quebec. He found that the judgment creditor's argument would lead to the incongruous result that there was no limitation period applicable to proceedings on Quebec judgments in Ontario, but proceedings on the judgments of other provinces would have a six-year limitation period.

McLean J. observed that the purpose of the Limitations Act, 2002 was to simplify the previously complex scheme of limitations and said it would have been simple enough to include foreign judgments in s. 16(1)(b), had that been the legislature's intention. It was not the court's responsibility to make a change that the legislature had not.

While a domestic judgment can be enforced as of right in Ontario, it is necessary to bring a proceeding on a foreign judgment. If that proceeding is successful, it will give rise to an Ontario judgment which can be directly enforced in the province. Furthermore, a judgment creditor who brings an Ontario proceeding on a foreign judgment must show that the foreign court had jurisdiction and that the judgment is final and for the payment of money (or that it would be appropriate for the Ontario court to recognize it as enforceable within the province even if it is interlocutory or non-monetary).

The term "order of a court" in s. 16(1)(b) should be interpreted as referring to an order of a domestic court only. A proceeding on a foreign judgment has not passed any Ontario limitations hurdle. If the action on the foreign judgment is successful, it results in an Ontario judgment, which is subject to no limitation period. But that can only be justified if the underlying cause of action based on the foreign judgment has already passed a limitations hurdle in Ontario.

It would be contrary to the purposes of limitations statutes to interpret s. 16(1)(b) as exempting foreign judgments from any limitation period. If it were always possible to bring a proceeding on a foreign judgment in Ontario without time limitation, no matter when and where it was obtained, the debtor would be indefinitely exposed to the prospect of defending such proceedings in Ontario. As well, exempting such proceedings from a limitation period would not encourage diligence or reasonable dispatch on the part of the foreign judgment creditor, who, unlike domestic judgment creditors, has not already surmounted an Ontario limitations hurdle.

S. 16(1)(b) of the Limitations Act, 2002 does not apply to proceedings on foreign judgments, and the applicable limitation period for the respondent's proceeding on the New Jersey judgment at issue in this appeal is the basic two-year period in s. 4. The result is that time begins to run when the claim is "discovered" within the meaning of s. 5.

2. The limitation period to sue on the New Jersey judgment began to run when the appeal in New Jersey was determined. The question of a judgment's finality is relevant not to statutory limitation periods to commence a proceeding on a foreign judgment, but to the conditions that a foreign judgment creditor must satisfy to succeed on the proceeding: see Cavell, at paras. 41-43. The test under the Limitations Act, 2002 is not whether the judgment is "final"; it is when the claim is discovered, a fact that is ascertained through the application of s. 5(1), aided by the presumption in s. 5(2).

The statute was meant to be comprehensive and exhaustive. Section 2(1) provides that it applies to "claims pursued in court proceedings," and s. 4 provides that the basic two-year limitation period applies "unless this Act provides otherwise." The words "injury, loss or damage" in s. 5(1) can reasonably refer to the debt obligation created by a foreign judgment and owed by the foreign judgment debtor to the creditor. The "act or omission" can reasonably refer to the debtor's failure to discharge the obligation once it became final. Viewed in this light, s. 5(1) can reasonably be viewed as applying to a proceeding on a foreign judgment.

Section 5(1) provides that a claim is discovered on the earlier of: (a) the day on which the claimant first knew, among other things, "that having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it"; and (b) the day on which "a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a)". The test in s. 5(1)(a) has been referred to as a "subjective test" because it looks to the claimant's actual knowledge, and the test in s.5(1)(b) as a "modified objective" test because it looks to what a reasonable person with the abilities and in the circumstances of the claimant ought to have known.

In the usual case, it will not be legally appropriate to commence a legal proceeding on a foreign judgment in Ontario until the time to appeal the judgment in the foreign jurisdiction has expired or all appeal remedies have been exhausted. The foreign appeal process has the potential to resolve the dispute between the parties. If the judgment is overturned, the debt obligation underlying the judgment creditor's proceeding on the foreign judgment disappears.

The respondent's claim based on the New Jersey judgment was discoverable on July 17, 2014, the date the appeal was dismissed in New Jersey. The respondent would not have reasonably known that a proceeding in Ontario would be an appropriate means to seek to remedy its loss until that date. Thus, the limitation period for the respondent to commence its proceeding on the New Jersey judgment began on that date. The respondent brought the proceeding on May 1, 2015, within the applicable two year limitation period. Hence, the proceeding was not time-barred.

Cook v. Joyce, 2017 ONCA 49

[Juriansz, Benotto and Brown JJ.A.]

Counsel:

P. J. Osborne and C. Kostopoulos, for the appellant

A. Cook, acting in person

Keywords: Summary Judgment, Sexual Assault, Limitation Period, Limitations Act, s. 16(1.2)(b), Settlement, Oral Contract, Objective Evidence, Remedial Powers, Court of Justice Act, Section 134, Slander

Facts:

Avie Cook, sues the appellant, Ronald Joyce, seeking damages for an alleged sexual assault. Ms. Cook alleges Mr. Joyce touched her in a sexual manner without her consent on the morning of May 19, 2011, at his home. As well, Ms. Cook alleges Mr. Joyce slandered her by telling others her complaints of a sexual assault were false.

Mr. Joyce moved for summary judgment dismissing Ms. Cook's action. The motion judge granted the motion in part, dismissing Ms. Cook's action for slander. However, the motion judge refused to dismiss the sexual assault claim, for three reasons: (1) the motion judge held Mr. Joyce had not proved the parties settled Ms. Cook's sexual assault claim in late 2011 and early 2012; (2) the motion judge concluded the claim was not statute-barred because the discoverability date for Ms. Cook's claim under the limitation statute was June 21, 2011, when she first met a lawyer to discuss her claim; and (3) the motion judge concluded the enactment of the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment) (the "Amending Act") following the hearing of the summary judgment motion had the effect of removing any limitation period for Ms. Cook's sexual assault claim unless hers was a proceeding that "was settled by the parties and the settlement is legally binding."

Mr. Joyce appealed the finding of the motion judge. Ms. Cook cross-appealed the dismissal of her slander claims.

Issues:

1. Did the motion judge err when reviewing the limitation period issue?

2. Did the motion judge err in his analysis of whether the parties had reached a settlement?

3. What are the remedial options available to the Court?

4. Did the motion judge correctly dismiss Ms. Cook's slander claim?

Holding:

Appeal allowed.

Reasoning:

1. Yes, in part. The motion judge erred in considering discoverability at all, but was correct in identifying that the new limitation-free regime for sexual assault under s. 16(1.2)(b) of the Limitations Act, 2002 applied. The new limitation-free regime for sexual assault gives retroactive effect to the removal of any limitation period for "a proceeding arising from a sexual assault". This regime clearly applied in this case and the discoverability analysis was unwarranted. Accordingly, the new limitation-free regime for sexual assault cases applies to the present proceeding unless it "was settled by the parties and the settlement is legally binding". Therefore, the enactment of the Amending Act effectively reduced Mr. Joyce's limitation period and settlement defences to a single issue – whether there was a genuine issue requiring a trial that the parties settled Ms. Cook's allegations of sexual assault before March 8, 2016.

2. Yes. The motion judge's decision that the parties did not reach a settlement cannot stand and must be set aside. The motion judge recognized the challenges posed by allegations the parties had formed an oral contract and demonstrated he was alive to the need to consider evidence about the overt acts of the parties in ascertaining whether they had formed an oral contract. Indeed, the motion judge considered the evidence of several overt acts.

However, the motion judge held the evidence did not establish the formation of an oral settlement contract. Key to that conclusion was the motion judge's finding about the parties' subjective intentions – that is, both Mr. Joyce and Ms. Cook "were attempting to play tricks on one another by the manner in which they were orchestrating the payment of $50,000." There were two problems with this finding.  First, there was no evidence to support it. The motion judge drew inferences beyond those available on the written record before him and engaged in unsupported speculation. Second, although the motion judge recognized the need to apply an objective analysis to the issue of whether the parties had reached a settlement agreement, he ended up focusing and relying on the parties' subjective intention, thereby misapplying the law to the facts. By focusing on whether the parties intended to trick each other, the motion judge lost sight of the need to assess their conduct through the lens of a reasonable person, taking into account all relevant evidence. Therefore, the motion judge's decision that the parties did not reach a settlement had to be set aside because he misapplied the law to the facts and made palpable and overriding errors of fact.

3. The appropriate remedy in this case is to have the claims proceed to trial but not to be decided on a summary judgment motion. Section 134 of the Courts of Justice Act gives the Court of Appeal broad powers to remedy errors; however, the state of the appellate evidentiary record and the nature of the issue in dispute influence the degree to which an appellate court can and should exercise those powers. In civil appeals, where credibility is not involved or where the evidence is predominantly documentary, as a general principle an appellate court may make whatever findings are necessary in the interests of expediency and finality. By contrast, the existence of credibility issues or the thinness of the documentary record usually prompts a more cautious approach to fact-finding by civil appellate courts. The record on whether the parties entered into an oral settlement contract in November, 2011 contains conflicting and disputed material facts.

Further, not all civil disputes are amenable to a final adjudication on the merits by summary judgment. The present summary judgment motion proceeded on an entirely written record, with the motion judge declining to hear oral evidence under r. 20.04(2.2). As the court has observed, in certain cases adjudication exclusively on a written record poses a risk of substantive unfairness. The more important credibility disputes are to determining key issues, the harder it will be to fairly adjudicate those issues solely on a paper record. In the present case, the issue of whether the parties concluded an oral settlement contract can be fairly adjudicated without a trier of fact hearing viva voce evidence from Mr. Joyce and Ms. Cook. Further, granting partial summary judgment on the settlement issue would risk an unfair result by placing in watertight compartments the assessment of the parties' credibility on the two key issues – whether an assault occurred and whether they settled their dispute.

For these reasons, the court determined it was not a proper case to exercise its appellate fact-finding powers on the issue of whether the parties reached an oral settlement agreement of Ms. Cook's claim in November, 2011. Accordingly, the Court of Appeal decided the appropriate remedy was to set aside the entirety of the motion judge's Order dealing with Ms. Cook's sexual assault claim and directed that all issues concerning Ms. Cook's sexual assault claim proceed to trial.

4. Yes. The motion judge erred in setting aside Ms. Cook's slander claims. In light of the procedural history of Mr. Joyce's summary judgment motion, the absence of evidence from Ms. Cook about special damages caused by the alleged slanders was not a sufficient basis to grant summary judgment dismissing that part of her claim, as the motion judge did. Mr. Joyce's June 18, 2015 notice of motion focused exclusively on Ms. Cook's sexual assault claim. The record for the motion was completed by December, 2015. According to Ms. Cook, Mr. Joyce first raised the issue of summary judgment in respect of her slander claim in his January 2016 factum. Although Ms. Cook is a very sophisticated self-represented litigant, it was unfair for the motion judge to dismiss her slander claim given the state of Mr. Joyce's pleading and the focus of his motion on the sexual assault claim.

Short Civil Decisions

Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2017 ONCA 43

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

Counsel:

T. J. Dunne, Q.C., J. E. Callaghan and B. Na, for the appellants, High River Limited Partnership and Canadian Imperial Bank of Commerce

R. C. Heintzman, M.l D. Schafler and M. G. Evans, for the respondents, Deloitte & Touche LLP, Deloitte Touche Tohmatsu LLP and Deloitte Touch Tohmatsu f/k/a Deloitte Touche Tohmatsu International

Keywords: Costs Endorsement, Interlocutory Motions

Greenberg v. Nowack, 2017 ONCA 54

[Strathy C.J.O., LaForme and van Rensburg JJ.A.]

Counsel:

M. Greenglass, for the appellants

S. J. Nowack, acting in person

Keywords: Cost Endorsement, Partial Indemnity Costs

Criminal Decisions

York (Regional Municipality) v. Wadood, 2017 ONCA 45

[Laskin, Sharpe and Miller JJ.A.]

Counsel:

C. G. Bendick, for the appellant

A. Ross, appearing as amicus curiae

Keywords: Criminal Law, Provincial Offences, Provincial Offences Act, s. 90, Highway Traffice Act, s. 128Speeding

R. v. Barkhouse, 2017 ONCA 29

[Feldman, Rouleau and van Rensburg JJ.A.]

R. Barkhouse, acting in person

D. Stein, duty counsel

G. Roy, for the respondent

Keywords: Endorsement, Criminal Law, Trafficking, Possession, Sentencing, Aggravating and Mitigating Factors

R. v. L.M., 2017 ONCA 33

[Sharpe, van Rensburg and Pardu JJ.A]

J. A. Shime and W. A. Cunningham, for the appellant

L. Joyal, for the respondent

Keywords: Publication Ban, Criminal Law, Sexual Assault, Sexual Touching, Witness Credibility

R. v. Middleton, 2017 ONCA 31

[Weiler, Pepall and Trotter JJ.A.]

A. Ostroff, for the appellant

A. Baiasu, for the respondent

Keywords: Endorsement, Criminal Law, Assault with a Weapon, Burden of Proof

R. v. Roy, 2017 ONCA 30

[Simmons, Pardu and Miller JJ.A.]

M. A. Crystal, for the appellant

P. Scrutton, for the respondent

Keywords: Publication Ban, Criminal Law, Sexual Assault, Sexual Touching

R. v. Shivrattan, 2017 ONCA 23

[Doherty, Hourigan and Roberts JJ.A.]

F. Mirza, for the appellant Jermin Shivrattan

E. Taché-Green, for the appellant Stanley Silvera

J. Neander, for the respondent

Keywords: Criminal Law, Possession of Firearms, Possession of Narcotics, Canadian Charter of Rights and Freedoms s. 8, Search Warrants

R. v. Allen, 2017 ONCA 40

[Feldman, Rouleau and van Rensburg JJ.A.]

Counsel:

K. Allen, acting in person

L. K. Wildman, duty counsel

K. Beaudoin, for the respondent

Keywords: Endorsement, Criminal Law, Sentencing, Criminal Code, s. 730, Public Interest

R. v. Sinclair, 2017 ONCA 38

[Watt, Lauwers and Miller JJ.A]

Counsel:

T. E. Breen, for the appellant

A. Baiasu, for the respondent

Keywords: Criminal Law, Second Degree Murder, Self Defence, Criminal Code, s. 34

R. v. Walker, 2017 ONCA 39

[Sharpe, van Rensburg and Pardu JJ.A.]

Counsel:

E. Taché-Green, for the appellant

R. Direnfeld, for the respondent

Keywords: Criminal Law, Sentencing, Pre-Sentence Custody, Fresh Evidence

R. v. Adomako, 2017 ONCA 51

[Feldman, Rouleau and van Rensburg JJ.A.]

Counsel:

J. Dawe, for the appellant

C. DeSa, for the respondent

Keywords: Endorsement, Criminal Law, Possession of Narcotics, Trafficking, Canadian Charter of Rights and Freedoms, s. 8

R. v. Marini, 2017 ONCA 46

[Weiler, Pepall and Trotter JJ.A.]

Counsel:

M. J. Webb, for the appellant

L. Schwalm, for the respondent

Keywords: Criminal Law, Break and Enter, Theft, Similar Fact Evidence

R. v. Pomanti, 2017 ONCA 48

[Sharpe, van Rensburg and Pardu JJ.A.]

Counsel:

D. Stein and J. Shanmuganathan, for the appellant

M. Fawcett, for the respondent

Keywords: Criminal Law, Aggravated Assault, Robbery, Self-Defence

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