Canada: Court Of Appeal Summaries (March 13 – 17, 2017)

Last Updated: March 29 2017
Article by John Polyzogopoulos

Hello:

There were only three short procedural decisions we summarized this week.

Have a good one.

Civil Decisions:

Castronovo v. Sunnybrook & Women's College Health Sciences, 2017 ONCA 212

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

Counsel:
W. G. Scott, for the appellants
B. Pickard and E. Murtha, for the respondents

Keywords: Endorsement, Civil Procedure, Limitation Periods, Pleadings, Amendments, Extension of Time, Rules of Civil Procedure, r. 3.02

Facts:
In a June 9, 2016 order, Archibald J. directed that, if advised, the appellants were to serve and file a motion to amend their defence to advance a limitation period defence by June 17, 2016. The appellants served their notice of motion, seeking leave to amend their statement of defence to plead a limitations defence on August 17, 2016. Myers J. heard their motion on October 6, 2016. The appellants asserted that the respondents should have discovered their claim against them in 2007 and the claim was accordingly statute-barred.

The motion was dismissed on the grounds that the appellants had failed to show why it was in the interests of justice to grant the requested extension of time under r. 3.02 of the Rules of Civil Procedure. The motion judge held that Archibald J.'s order was a consent order and found the appellants had not explained why they waited seven years from being added as parties or two months after the deadline prescribed in the consent order to file and serve their motion. He noted that Archibald J.'s order specifically contemplated counsel's need for instructions. Moreover, it was common ground that the trial date would be lost if leave to amend were granted. "Delay matters", he wrote. And if the appellants advanced a limitations defence, the respondents' counsel would be a key witness and the respondents would need to find new counsel in a 13-year old case.

Issue:

Did the motion judge err:
(i) in concluding Archibald J.'s order was a consent order;
(ii) in concluding the appellants had not adequately explained the delay; and
(iii) by considering prejudice other than prejudice arising from their two-month delay in complying with Archibald J.'s order?

Holding:

Appeal dismissed.

Reasoning:

The motion judge, Myers J., did not err in concluding that the appellants had failed to show that it was in the interests of justice to grant the requested extension. The un-contradicted evidence before Myers J. was that all counsel had agreed to the timeline ordered by Archibald J. The fact that the parties had consented to the order, the very late stage in this long-outstanding litigation at which the appellants raised the possibility of amending their defence, and the impact on the litigation – what Myers J. characterized as "prejudice" – if the appellant brought the motion to amend, all required that the appellants provide a compelling explanation for their non-compliance with the consent order. Myers J.'s conclusion that the appellants had failed to satisfactorily explain their non-compliance is supported by the record. There is no basis to interfere with the order of Myers J. dismissing the appellants' motion.

Nortel Networks Corporation (Re), 2017 ONCA 210

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

Counsel:
J. Holley and J. Greg McAvoy, the moving parties, acting in person
B. Zarnett, J. A. Kimmel and P. B. Kolla, for the responding party, the Monitor, Ernst & Young Inc.
D. C. A. Tay and J. Stam, for the responding parties, the Canadian Debtors
M. Zigler, S. L. Philpott and B. A. Walancik, for the responding parties, the Canadian Former Employees and Disabled Employees through their court appointed Representatives
J. B. Payne and T. J. McRae, for the responding party, the Nortel Canadian Continuing Employees
P. Mitchell, for the responding party, the EMEA Debtors (other than Nortel Networks S.A.)
S.R. Block, S. A. Bomhof, A. D. Gray, A. M. Slavens and J. R. Opolsky, for the responding parties, Nortel Networks Inc. and the other U.S. Debtors
R. Shayne Kukulowicz, M. J. Wunder, R. C. Jacobs and G. B. Shaw, for the responding party, the Official Committee of Unsecured Creditors of Nortel Networks Inc., et al
S. Richard Orzy, G. H. Finlayson and R. B. Swan, for the responding parties, the Ad Hoc Group of Bondholders

Keywords: Endorsement, Bankruptcy and Insolvency, Civil Procedure, Leave to Appeal, Companies' Creditors Arrangement Act

Facts:
Joseph McAvoy and Jennifer Holley (the "Leave Applicants"), seek leave to appeal the Sanction Order of Newbould J. dated January 24, 2017. The Monitor, the Canadian and US Debtors, Nortel Networks Inc., the Official Committee of Unsecured Creditors, the Ad Hoc Committee of Bondholders, the Nortel Continuing Employees, and the Court Appointed Representatives of the Former and Disabled Employees of Nortel all oppose the motion.

Issue:
Should leave be granted to appeal the Sanction Order of Newbould J. dated January 24, 2017?

Holding:
Motion denied.

Reasoning:
No. Leave should not be granted. Leave to appeal is granted sparingly in Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36 ("CCAA") proceedings and only where there are serious and arguable grounds that are of real and significant interest to the parties. The stringent test for leave is not met in this case. The proposed appeal is not meritorious. As the supervising judge explained in his reasons, the Leave Applicants did not opt-out of the 2009 Representation Order for Disabled Employees ("LTD Rep Order") and they are bound by the 2010 Employee Settlement Agreement. The supervising judge correctly concluded the Leave Applicants have no right to opt out of the LTD Rep Order at this late stage. Further, the Court has already emphasized that further delays in this very protracted litigation are to be avoided.

Mihaylov v. 1165996 Ontario Inc., 2017 ONCA 218

[Gillese, Benotto and Roberts JJ.A.]

Counsel:

S. R. Jackson, for the appellants
R. O'Neill, for the respondents

Keywords: Appeals, Costs, Partial Indemnity, Substantial Indemnity

Facts:

The Court of Appeal allowed a prior appeal affirming the validity of the easement granted in the 1979 Agreement that is registered against the parties' respective properties. However, in all other regards, the appellants were successful. Costs of the appeal were ordered in favour of the appellants in the amount of $3,000, all inclusive.

In the written decision by the Court, the court indicated that if the parties were unable to resolve the matter of costs of the Application and Counter-Application below (the "Proceedings Below"), they could make written submissions on that matter. The parties have been unable to resolve that matter and the court has now received and reviewed their costs submissions in relation to it.

The appellants seek costs of the Proceedings Below on a substantial indemnity basis in the amount of $14,440. They say that, bearing in mind the result on appeal, they were substantially successful in the Proceedings Below because their position on the scope of the easement and the rights that flow therefrom was upheld. The appellants then point to the general principle this court follows when an appeal is allowed: the order for costs below is set aside and costs are awarded to the successful party: Hunt v. TD Securities Inc. (2003), 43 C.P.C. (5th) 211 (Ont. C.A.)

The appellants acknowledge that the costs of the Proceedings Below would normally be on a partial indemnity basis which, in this case, would be just over $12,000. However, they ask this court to express its disapproval of the respondents' actions by making the costs award on a substantial indemnity basis. In support of this argument, the appellants have attached to their costs submissions copies of correspondence between counsel since the Decision was released. They say that this correspondence shows that there never was a leak in the pipeline so the respondents never had an immediate need to repair it and, in turn, that means that the Proceedings Below were unnecessary.

The respondents submit that the parties should bear their own costs of the Proceedings Below. They dispute the suggestion that there was no leak in the pipeline. They say that success below was divided, noting that their contention that a valid easement had been created and continued to exist was upheld on appeal. Consequently, their right to draw water from Sturgeon Lake by means of the pipeline that runs below the appellants' land was affirmed.

The respondents acknowledge that the appeal resulted in them losing on the issue of the scope of the easement, including their right to enter on the appellants' land to effect repairs without the appellants' prior permission and to lay a new pipeline. They also acknowledge that when an appeal is allowed, the general principle is that the order for costs below is set aside and costs are awarded to the successful party on a partial indemnity basis. However, they point to the court's discretion to depart from this approach "in unusual circumstances": Kopij v. Metropolitan Toronto (Municipality) (1999), 85 A.C.W.S. (3d) 763 (Ont. C.A.), at para. 2. They say that the facts of this case are unusual circumstances warranting a departure from the usual approach.

Issues:

1. Does this matter amount to "unusual circumstances" such that the court should exercise its discretion and depart from its usual approach when deciding on costs of the Proceedings Below?

2. Should the court depart from the general principle that costs are to be awarded on a partial indemnity basis?

Holding: Costs of the Proceedings Below in favour of the appellants fixed at $8,000, all inclusive.

Reasoning:

1. No. This matter did not amount to "unusual circumstances" such that the court should exercise its discretion and depart from its usual approach when deciding on costs of the Proceedings Below. This was a civil dispute which required the court to rule on legal questions so that the parties could clearly know what their respective rights and obligations were and, with that clarity, govern themselves accordingly.

However, it is important to note that the appeal in this matter was allowed only in part. Accordingly, while the order for costs below must be set aside, it does not automatically follow that the appellants are entitled to their full costs of the Proceedings Below. The quantum of costs must reflect the fact that there was divided success in those proceedings. The appellants enjoyed greater success. While the respondents succeeded on the question of whether a valid easement had been created and continued to attach to each of the parties' lands, the appellants succeeded on the issues that drove the Proceedings Below – namely, whether the respondents could enter onto the appellants' lands without their prior permission to repair the pipeline and whether the respondents had the right to replace the existing pipeline.

2. No. As for the scale of costs, the court should not depart from the general principle that costs are to be awarded on a partial indemnity basis. The finding of reprehensible behaviour warranting the sanction of costs on a substantial indemnity basis is not to be made lightly. The suggestion made about the respondents' conduct is based on correspondence that arose after the conclusion of these proceedings and which has not been tested in the crucible of litigation. The meaning to be taken from that correspondence is disputed. To resolve that dispute would require the court to make credibility findings. Those types of findings cannot be made on the basis of the record before the court.

Civil Endorsements:

Construction Distribution & Supply Co. Inc. v. King Packaged Materials Company, 2017 ONCA 200

[Hoy A.C.J.O., Gillese and Brown JJ.A.]
A. B. Dryer, for the appellant
T. Frankel, for the respondent
Keywords: Endorsement, Settlement

HJLJ Investments Limited v. 2305106 Ontario Inc., 2017 ONCA 213

[Hoy A.C.J.O, Gillese and Brown JJ.A.]
D. A. Brooker, for the appellant
S. Schwartz, for the respondent
Keywords: Endorsement, Appeal Dismissed

 

Criminal Decisions:

R. v. Brown, 2017 ONCA 211

[Feldman, Rouleau and Roberts JJ.A.]
M. Chernovsky, for the appellant
B. Cohen, for the respondent
Keywords: Endorsement, Criminal Law, Sentencing, Credit for Pre-Trial Custody

R. v. Lira, 2017 ONCA 214

[Rouleau, Pepall, Roberts JJ.A.]
Ivan David Lira, acting in person
A. Ohler, appearing as duty cousel
M. Asma, for the respondent
Keywords: Endorsement, Criminal Law, Jury Trial

R. v. Moore, 2017 ONCA 217

[Rouleau, Pepall and Roberts JJ.A.]
M. Moore, by videoconference
A. Ohler, duty counsel
M. Fawcett, for the respondent
Keywords: Endorsement, Criminal Law, Robbery, Sentencing, Vetrovec Witness

R. v. Lewis, 2017 ONCA 216

[MacFarland, Pardu and Trotter JJ.A.]
J. Lockyer and L. C. Beechener, for the appellant
M. Bernstein, for the respondent
Keywords: Criminal Law, Second Degree Murder, Juries, Bullying of Juror, Secrecy of Jury Deliberations

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
John Polyzogopoulos
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.