Canada: Ontario Court Of Appeal Summaries (May 29 – June 2, 2017)

Last Updated: June 16 2017
Article by John Polyzogopoulos and Lea Nebel

Good afternoon,

Following are the summaries for this week's civil decisions of the Court of Appeal for Ontario.

There were a couple of noteworthy cases which may interest those interested in personal injury and class action law.

In Letestu Estate v. Ritlyn Investments Limited, the Court overturned the lower court's decision that the estate of a deceased tenant had 1 year to sue the landlord of the tenant. The estate claimed that the deceased had tripped on a "worn, torn and unsecured carpet" in his living room and fell, resulting in personal injury (prior to his death). The motion judge dismissed the estate's action, after concluding the claim fell within the exclusive jurisdiction of the Landlord and Tenant Board over the subject matter, and was outside the 1 year limitation period prescribed under the Residential Tenancies Act. The Court of Appeal found that the Superior Court had jurisdiction and the 2 year limitation period under the Limitations Act applied.

In Wellman v. TELUS Communications Company, the motions judge certified a class action to include both consumers and non-consumers (business customers) and refused Telus' motion to stay the claims of non-consumers which it argued were claims subject to a mandatory arbitration clause contained in Telus' contracts. The motions judge applied section 7(5) of the Arbitration Act and the decision of the Court of Appeal in Griffin v. Dell Canada Inc., in refusing to grant a partial stay. The issue on appeal was whether the Court's analysis in Griffin had been overtaken by the analysis mandated in the Supreme Court of Canada's decision in Seidel v. TELUS Communications Inc. The Court ultimately affirmed that Griffin remains good law in respect of class proceedings commenced in Ontario.

Other topics covered include competing claims for relief relating to an easement, vicarious liability of a taxi company (employer) for wrongful acts of a taxi driver (employee) and Criminal Code s. 490 applications (return of items seized by the police).

Have a great weekend.

CIVIL DECISIONS

Letestu Estate v. Ritlyn Investments Ltd., 2017 ONCA 442

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

Counsel:

B.A. Percival Q.C., D. Zacks and J.P. McCoy, for the appellant

K.J. Raddatz and K.C. Dickson, for the respondent

Keywords: Torts, Negligence, Slip and Fall, Residential Tenancies, Estates, Residential Tenancies Act, 2006, S.O. 2006, c.17, Limitation Periods, Limitations Act, 2002, S.O. 2002, c. 24, Sch. B., Trustee Act, R.S.O. 1990, c. T.23 Efrach v. Cherishome Living, 2015 ONSC 472

Facts:

In December 2011 the appellant estate commenced an action for damages for injuries the deceased suffered when he allegedly slipped and fell over a damaged carpet in his residential rental unit. The action claimed $500,000 in damages from the respondent, the owner, and manager of the apartment building. The appellant estate commenced the action 23 months after the alleged slip and fall. The respondent, on the eve of trial, moved under Rule 21 of the Rules of Civil Procedure to strike the claim on the basis the Superior Court had no jurisdiction to hear the claim.

The motion judge dismissed the estate's action, after concluding that the claim fell within the exclusive jurisdiction of the Landlord and Tenant Board (the "Board"), and was outside the one-year limitation period prescribed under s. 29(2) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the "Act"). The estate appealed the motion judge's decision.

Issues:

(1) Did the motion judge err in determining that the Superior Court lacks jurisdiction over the action?

(2) Did the motion judge err in determining that the action is statute-barred?

Holding: Appeal allowed.

Reasoning:

(1) The Superior Court Has Jurisdiction over the Claim

Yes. A plain reading of the four relevant provisions of the Act demonstrates the Act does not grant the Board exclusive jurisdiction over all claims of non-repair against a landlord:

Section 29(1) of the Act provides for a tenant or former tenant of a rental unit to apply to the Board for a variety of orders, including that the landlord breached an obligation under s. 20(1) (the landlord's duty to repair).

Section 168(2) provides that the Board "has exclusive jurisdiction to determine all applications under the Act and with respect to all matters in which jurisdiction is conferred on it by this Act."

Section 207(1) provides that the Board may, "where it otherwise has the jurisdiction, order the payment to any given person of an amount of money up to the greater of $10,000 and the monetary jurisdiction of the Small Claims Court ($25,000)."

Section 207(2) of the Act, provides that "a person entitled to apply under the Act but whose claim exceeds the Board's monetary jurisdiction may commence a proceeding in [court] for an order requiring payment of that sum and...the court may exercise any power that the Board could have exercised if the proceeding had been before the Board and within its monetary jurisdiction".

The Act does not grant the Board exclusive jurisdiction over all claims of non-repair against a landlord. Rather, the Board has jurisdiction over a tenant's or former tenant's claim for damages (as well as other claims within the Board's authority) where the "essential character of the claim" is for non-repair and within its monetary jurisdiction.

Per s. 207(2) of the Act, the Court of Appeal held that since the estate claimed damages exceeding the monetary jurisdiction of the Small Claims Court, and therefore exceeded the jurisdiction of the Board, the appellants were entitled to commence their proceeding in the Superior Court. Furthermore, through the operation of section 207(2), the court would be able to make any order the Board could have made in addition to any relief it could grant in a court proceeding.

(2) The Limitation Period for Applications to the Board Does Not Apply

Yes. The motion judge concluded that, although the estate's claim exceeded the monetary jurisdiction of the Board, the action had to be commenced within the one-year limitation period for applications to the Board under the Act (s. 29(2)) before the court could assume jurisdiction. In reaching this conclusion, the motion judge applied the decision in Efrach v. Cherishome Living, 2015 ONSC 472, [2015] O.J. No. 293 (Div. Ct.), where the court reasoned that after the expiry of the one-year limitation period for making a claim to the Board, the claim could not be transferred to the Superior Court since that court can only exercise powers that the Board could have exercised if the proceeding had been before the Board.

The Court of Appeal expressed no opinion on the result in Efrach, but disagreed with the conclusion that the one-year limitation period for applications to the Board applied. The Court of Appeal reasoned that there is no basis for importing the limitation period prescribed by the Act for applications to the Board into an action of this kind. The limitation of actions is governed by the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B. Section 19 of the Limitations Act, 2002 lists the limitation periods, (including section 38(3) of the Trustee Act, R.S.O. 1990, c. T.23), which requires a tort action by an estate to be commenced within two years of the deceased's death. The schedule in section 19 of the Limitations Act was applicable in this case.

Since the appellant commenced the action within two years of the deceased's death (and within two years of the alleged slip and fall), the action is not barred by the limitation period. Accordingly, the appeal was allowed, the Superior Court has jurisdiction over the action.

Wellman v. TELUS Communications Co., 2017 ONCA 433

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

Counsel:

G.L.R. Ranking and A. Borrell, for the appellant

J.P. Rochon, P. Jervis, L. Fenech and E. Karp, for the respondent

Keywords: Class Actions, Consumer Contracts, Arbitration Clauses, Enforceability, Consumer Protection Act, 2002, S.O. 2002, c.30, Sched. A, Arbitration Act, 1991, S.O. 1991, c. 17, Griffin v. Dell Canada Inc., 2010 ONCA 29, 98 O.R. (3d) 481, Seidel v. TELUS Communications Inc., 2011 SCC 15, [2011] 1 S.C.R. 531

Facts:

Consumers and business customers brought claims against TELUS that became the subject of class proceedings. Accordingly, one motion before the judge was to certify class proceedings. Wellman, the representative plaintiff, claimed that TELUS overcharged customers during the class period by rounding up calls to the next minute without disclosing this practice.

TELUS's contracts contained standard terms and conditions, including a mandatory arbitration clause. TELUS conceded that s. 7(2) of the Consumer Protection Act enabled consumer claims to proceed to court notwithstanding any arbitration clause. It submitted, however, that the claims of business customers were governed by the mandatory arbitration clause, in accordance with s. 7(5) of the Arbitration Act, and therefore ought to be stayed. TELUS moved for a partial stay of proceedings with respect to the claims of the business customers.

The motion judge refused to stay the business customer claims, relying on the authority of the Ontario Court of Appeal in Griffin. There, the Court refused to grant a partial stay of non-consumer claims on the basis of s. 7(5) of the Arbitration Act, which gives the court discretion to determine whether it is reasonable to separate the matters dealt with in an arbitration agreement from the other matters in the litigation. The motion judge concluded that it was not reasonable to separate the matters. She accordingly certified the class, including the business customers.

TELUS initially appealed to the Court of Appeal to reconsider the Court's decision in Griffin, which was rejected. TELUS subsequently appealed the motion judge's ruling in this case, arguing that Griffin has been superseded or modified by the Supreme Court's decision in Seidel, and that applying the reasoning in Seidel, a partial stay ought to have been granted. The motion judge's interpretation of the Arbitration Act in light of Griffin and Seidel was therefore at issue in this appeal.

Issues:

(1) Was the motion judge correct in applying Griffin to determine whether a partial stay of proceedings should be granted under s. 7(5) of the Arbitration Act for business customer claims, or should she have applied Seidel?

(2) Does the presence of an arbitration clause oust the Ontario court's jurisdiction over the dispute?

(3) Did the motion judge err in deciding whether a stay should be issued in the context of a class proceedings preferability analysis?

Holding:

Appeal dismissed.

Reasoning:

(1) Yes. After a thorough review of the jurisprudence and relevant legislation, the Court found that while both Griffin and Seidel involved arbitration clauses in the context of a proposed class proceeding, Seidel was decided under the relevant laws of British Columbia, which differ in material ways from those of Ontario. Seidel emphasized that, in determining whether a court action can proceed in the face of an agreement to arbitrate, it is essential to consider the legislation that applies in the relevant jurisdiction. Griffin remains good law in respect of proceedings commenced in Ontario, and has not been overtaken by Seidel.

(2) No. There is nothing in Ontario's Arbitration Act, which governs domestic arbitrations, to suggest that an arbitration clause removes or ousts the court's jurisdiction over a dispute. Similarly, the substantive right to arbitrate does not supersede the procedural right to a class proceeding, contrary to TELUS's argument. The question of whether the right to arbitrate must be given effect is governed by the domestic legislation of Ontario and cannot be determined in a legislative vacuum. Under the Ontario Arbitration Act, jurisdiction is specifically retained in the situations covered by s. 7(5).

(3) No. Notwithstanding that the motion judge conducted these two analyses under the same heading of "Preferable Procedure", the question of the enforceability of the arbitration agreement was determined without resort to the Class Proceedings Act. She did not refuse a stay of proceedings based on the conclusion that a class action would be a "preferable procedure".

Blair J.A., concurring in the result, additionally raised questions about the correctness of Griffin as it related to a partial stay of the non-consumer claims. While acknowledging the binding effect of Griffin, Blair J.A. posed two questions for consideration:

First, may the words "other matters" in s. 7(5) of the Arbitration Act – when considered in the context of s. 7 as a whole and the purposes of that Act – be read in a way that cross-pollinates the partial-refusal-to-stay power from a single arbitration agreement context to other arbitration agreements involving different parties and containing arbitration clauses that are otherwise valid and enforceable? Or do "other matters" refer to other matters arising between the same contracting parties but that are not covered by the arbitration agreement between them?

Second, Blair J.A. asked whether the Class Proceedings Act, 1992, S.O. 1992, c. 6 (a procedural rights statute) may be used to override the provisions of the Arbitration Act affording contractual parties the right to agree to binding arbitration (a substantive right)?

Without offering answers to these two questions, Blair J.A. sought to flag these two considerations in order to explain his reservations with the correctness of Griffin. Ultimately, however, he concluded that these questions were best answered at a later time.

Remicorp Industries Inc. v. Metrolinx, 2017 ONCA 443

[Sharpe, Pepall and Hourigan JJ.A.]

Counsel:

W.J. Earle, for the appellant

D. Cherepacha and K. Gossen, for the respondent

Keywords: Easements, Declaration, Injunction, Abandonment of Easement, Abandonment by Implied Release, Abandonment by Operation of Law, Remedies

Facts:

Remicorp and Metrolinx had competing claims for relief relating to an easement – specifically one contested easement ("the Access Easement") and one uncontested easement ("the Maintenance Easement"). Together, the easements provide access for maintenance of railway tracks used by GO Trains and the Union Pearson Express.

The appellant, Metrolinx, sought a declaration that the Access Easement was valid and an injunction requiring the respondent, Remicorp Industries Inc., to remove certain encroachments on it. Remicorp, which owns the lands on which the Access Easement was located, sought a declaration that the Access Easement had been abandoned, extinguished or, in the alternative, that it be relocated.

The application judge accepted Remicorp's position, finding that the easement was abandoned. Although Remicorp had sought relocation as alternative relief, the application judge ordered that the easement be relocated. Metrolinx appealed on the basis that the application judge erred in concluding that the easement had been abandoned, and in ordering it to be relocated.

Issues:

(1) Did the application judge err in concluding that the Access Easement had been abandoned by implied release?

(2) Did the application judge err in concluding that the Access Easement was extinguished by operation of law?

(3) Did he also err in concluding that the Access Easement could be moved?

(4) Is Metrolinx entitled to a remedy for Remicorp's encroachments on the Access Easement and Metrolinx's lands?

Holding: Appeal allowed.

Reasoning:

(1) Abandonment by Implied Release

Yes. An easement can be released impliedly. Non-use, coupled with an intention to abandon the easement, may demonstrate implied release, but on its own, non-use is insufficient. Intention to abandon must be proven.

In this case, the application judge erred in this analysis by failing to consider three separate registrations on title that reiterated Metrolinx's ongoing right of easement for the Access Easement. Second, given that easement rights may have value, there was no evidence of any consideration flowing from Remicorp to Metrolinx in exchange for a release of the Access Easement. Third, the application judge's holding that the Access Easement be moved elsewhere was inconsistent with the finding that Metrolinx abandoned it. Lastly, any potential acquiescence by Metrolinx was overtaken by the written agreement that provided an express grant to the easement in clear and unambiguous language, which the application judge failed to meaningfully address.

(2) Extinguishment by Operation of Law

Yes. The Court of Appeal, after a substantial review of the authorities, concluded that extinguishment of an easement by operation of law can occur under two circumstances. The first is by statute, which may allow a court to modify or cancel an easement (note that no such legislation exists in Ontario). The second is by operation of common law. Examples of this include unity of ownership or possession of the dominant or servient lands, or the destruction of either. Similarly, the permanent expiry of the purpose for which the easement was granted may extinguish the easement.

Here, the application judge found abandonment based on operation of law by virtue of Metrolinx's lack of use and lack of need for the Access Easement. The Court of Appeal rejected this view, holding that the express grant put no time limits on the easement. Notwithstanding Metrolinx's lack of use or need, the purpose for which the Access Easement had been created – access to the railroad tracks – was still in effect.

(3) Relocation of Access Easement

Yes. In considering whether to relocate the Access Easement, the application judge failed to apply the relevant legal principles. Section 119(5) of the Land Titles Act requires proof that modification to an easement will be "beneficial to the persons principally interested in the enforcement of the condition or covenant", which Ontario case law has held to mean a balancing test between the interests of the applicant and the respondent. In this case, the benefits to Remicorp were difficult to discern, while the detriment to Metrolinx was clear.

(4) Remedy

Yes. The Court held that Metrolinx's right to the Access Easement continued, and that Remicorp was required to remove the encroachments it had built.

McGinn v. Evanshen, 2017 ONCA 431

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

Counsel:

M. Gelowitz and L. Franschman, for the appellant

B. Sachdeva, for the respondent

Keywords: Contracts, Shareholder Agreements, Interpretation, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633

Facts:

The respondent was a senior management figure at Indwisco Limited for over 23 years. The most current shareholders' agreement ("the Agreement") gave the original shareholders, Peter and Al, the right to purchase the other's if the other wished to sell, became incapable, or died. If the other shareholder declined or was unable to purchase the shares, the respondent was given the right to do so.

Peter was diagnosed with a terminal illness, at which time he transferred his shares to himself and his wife (the appellant), jointly, with right of survivorship. The motion judge accepted evidence that this was done to avoid taxes or probate fees upon his death. However, the Agreement contained a provision that limited the appellant's rights in relationship to those shares. For all other purposes, those shares were Peter's alone.

Following Al's death, the respondent argued that on Peter's death, he was entitled to purchase the shares held jointly by Peter and the appellant. Peter and the appellant took a contrary position and sought a declaration that the respondent had no right to purchase the shares on Peter's death. Peter died shortly thereafter.

The motion judge resolved the issue in the respondent's favour, after considering the terms of the Agreement in light of the factual matrix in which it was executed. She rejected the appellant's submission that her ownership of the jointly held shares, by right of survivorship, gave her independent status as a shareholder, holding instead that the respondent could purchase the shares on Peter's death. The wife appealed.

Issues:

(1) Did the motion judge commit an extricable error of law in her interpretation of the shareholders' agreement, or a palpable and overriding error in her assessment of the evidence?

Holding: Appeal dismissed.

Reasoning: (1) No. The Court dismissed the three arguments put forward by the appellant:

(i) The appellant submitted that the motion judge failed to recognize that the Agreement contained protection for the "founders" (Al and Peter), and that the respondent was not entitled to acquire the "founder's shares". The Court dismissed this on the basis that there was nothing in the factual matrix to suggest that the concepts of "founders" or "founder's shares" played a part in the formation of the Agreement. There was nothing to prevent the respondent from increasing his shareholdings if Peter and Al were unwilling or unable (by way of death, for example) to exercise their own options.

(ii) The appellant submitted that the motion judge should have recognized that the appellant was a shareholder, pursuant to her right of survivorship. The Court found the motion judge's interpretation of the evidence to be reasonable; a sole provision designed for Peter's tax and estate planning did not alter the rest of the Agreement's provisions, which did not contemplate what the appellant proposed.

(iii) Lastly, the appellant submitted that the motions judge erred in her interpretation of the option clause of the Agreement. The motion judge ruled that the option clause contemplated a scenario with a sole surviving shareholder, which therefore gave the respondent the right to purchase the shares. The Court held that the motion judge's interpretation, in light of the factual matrix, was reasonable and therefore entitled to deference.

Berman v. Berman, 2017 ONCA 447

[Epstein J.A.]

K. Maurina, for the appellant

D. Frodis, for the respondent

Keywords: Family Law, Civil Procedure, Appeals, Security for Costs

Facts:

The parties were married on July 31, 2011. Their daughter was born in February 2013. The parties separated on December 30, 2013. In July 2014, Rogers J. awarded the mother (the respondent) sole custody of the daughter. However, the trial judge ordered that the daughter remain with the father (the appellant) on some weeknights and some weekends. The trial judge also ordered the father to pay $682 in monthly child support, as well as an additional $5,014 in arrears. The mother was then ordered to make an equalization payment of $44,569.26 to the father. Finally, the trial judge awarded the mother costs of $132,000 plus HST. The father brought a motion for an extension of time in which to perfect the appeal. The mother brought a motion for security of costs.

Issue:

(1) Is an extension of time appropriate?

(2) Should there be an order for security of costs?

Holding: The appellant's motion was granted. The respondent's motion was dismissed.

Reasoning:

(1) Yes. The delay was a modest one, and it was explained by the fact that there was a long delay between the start of trial and the release of the trial judgment. The respondent's counsel agreed that there was no principled basis on which to oppose the motion.

(2) No. To award security costs under r. 61.06(1)(a) of the Rules of Civil Procedure¸ R.R.O. Reg. 194, there must be a good reason to believe both that the appeal is frivolous and vexatious, and that the appellant has insufficient assets in Ontario to pay the costs of the appeal. While the father faces an "uphill battle" in his appeal, the judge did not believe the appeal to be frivolous and vexatious. Similarly, the record showed that the father has the ability to pay the costs of the appeal, as he has an income of $75,000 a year, as well as a reputation as a successful car salesman.

Hercules Moulded Products Inc. v. Foster, 2017 ONCA 445

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

Counsel:

M. Carlson, for the appellant

C. Kuehl, for the respondents

Keywords: Real Estate, Insurance Law, Title Insurance, Failure to Disclose, Actual Loss

Facts:

Hercules had obtained title insurance from Stewart with a "Commercial Lender Endorsement" to protect its security, which was a mortgage granted by the owner of the Windsor properties to secure money lent to it by Hercules. The mortgage transaction closed in February 2006 and the title insurance policy (the "Policy") was issued the same month. Before Hercules's mortgage transaction closed, Hercules was notified of an application brought by the City of Windsor (the "City") for an order allowing the City to fill in the excavation on one of the Windsor properties. The court issued an order allowing the City to fill in the excavation. The City did so and added the cost, over $500,000, to the tax bill for the property.

The mortgage went into default in or around 2007 and Hercules began sale proceedings in 2009. In July 2010, Hercules entered into an agreement of purchase and sale with Farhi Holdings ("Farhi"). One week before closing, Farhi sent a requisition letter indicating that Hercules had not complied with 13 development agreements with the City of Windsor that were registered on title and complained of an encroachment extending from one property onto the other. Farhi refused to close as no satisfactory response was made to these requisitions.

Hercules made claims against Stewart related to: (1) the cost of filling in the excavation, added to the tax bill for the property; (2) the development agreements registered against the title; and (3) the encroachment.

The motion judge rejected all the claims on many different grounds.

Issues:

(1) Did the motion judge err in rejecting the claim for the excavation?

(2) Did the motion judge err in rejecting the claim for the development agreements and the encroachment?

Holding: Appeal dismissed.

Reasoning:

(1) No. The court found coverage was excluded under section 3(b) of the Policy as the application by the City was a matter (a) Not known to Stewart on the date of the Policy; (b) Not registered in the public records that a normal title search would disclose; (c) Known to Hercules before the mortgage transaction closed; and (d) Not disclosed to Stewart prior to the date the insured claimant became insured under the Policy.

(2) No. Actual loss was required to sustain a claim under the language of the Policy. The court held that the motion judge's conclusions that the development agreements and the encroachment did not cause any loss or damage were findings open to him on the evidence. This was sufficient basis to conclude that Stewart was not obliged to indemnify Hercules, and there was no need to explore further the motion judge's other findings pursuant to this issue.

Kondratiev v. Boyko, 2017 ONCA 444

[Hourigan, Benotto and Roberts JJ.A.]

Counsel:

M. Wright and G. Cantin, for the appellants

O. Pasparakis and A. Campbell for the respondents

Keywords: Civil Procedure, Striking Pleadings, Rules of Civil Procedure, Rule 21, Limitation Periods, Abuse of Process, Limitations Act, 2002

Facts:

The appellant plaintiffs, Alexey Kondratiev and Smart Games Canada, Inc., appealed the order of the motion judge striking their statement of claim, without leave to amend, pursuant to r. 21 of the Rules of Civil Procedure. The statement of claim was struck on the grounds that it was time-barred and an abuse of process.

Issues:

(1) Was the motion judge correct in striking the appellants' entire statement of claim without leave to amend?

Holding: Appeal allowed, in part.

Reasoning:

(1) No. The unanimous Court of Appeal stated that paragraph 39 of the statement of claim should not have been struck because it was not "doomed to fail" as the motion judge found with respect to the other pleaded causes of action, nor in those circumstances would it constitute an abuse of process. The motion judge did not consider whether the new claim against the respondent defendant, Oleg Boyko, arising out of the dissolution of one of the corporate defendants in 2013, as set out in paragraph 39 of the statement of claim, was also statute-barred or an abuse of process. The claim in paragraph 39, which, for the purpose of a motion under rule 21, the motion judge had to take as true, was not statute-barred by s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B because the claim was not discovered by the appellants until October 2013. The respondent, in their notice of motion, only sought to strike paragraphs 26 to 38 of the statement of claim as statute-barred and similarly focused their abuse of process grounds on the argument that the claims were out of time.

The Court found that the other factual allegations in paragraphs 26 to 38 of the statement of claim made against the respondent with respect to events arising before 2013 were identical to the allegations made against him in a proceeding against related parties in 2009, in which he was not named as a party. The Court stated that was clear on the face of the pleadings that, as the motion judge determined, those pre-2013 claims against the respondent were discovered more than two years before the commencement of this action. The Court found that the motion judge was open to reject, as not credible, the appellants' evidence that the 2013 claims were not discovered until 2015.

Ivic v. Lakovic, 2017 ONCA 446

[Hoy A.C.J.O., Blair and Hourigan JJ.A]

Counsel:

B.T. Verbanac and M. Machado, for the appellant

S. Winny, for the respondent

Keywords: Sexual Assault, Vicarious Liability, Employer Liability, Bazley v. Curry

Facts:

The appellant attended a party. She was intoxicated and felt unwell. The appellant's friend called her a taxi, which subsequently picked the appellant up from the party. The appellant alleges that the taxi driver sexually abused her inside the taxi.

The appellant sued the taxi driver and the taxi company itself, claiming that the latter was vicariously liable for the acts of the driver. The motion judge dismissed the appellant's claim against the taxi company.

Issue:

(1) Should the taxi company be vicariously liable for the taxi driver's actions?

Holding: Appeal dismissed.

Reasoning:

(1) No. When assessing vicarious liability for an unauthorized, intentional wrongdoing, courts must look to the factors listed in Bazley v. Curry [1999] 2 S.C.R. 534. Those include:

(i) The opportunity that the enterprise afforded the employee to abuse his or her power;

(ii) The extent to which the wrongful act may have furthered the employer's aims;

(iii) The extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer's enterprise;

(iv) The extent of power conferred on the employee in relation to the victim; and

(v) The vulnerability of potential victims to wrongful exercise of the employee's power.

In order for there to be a finding of vicarious liability, there must be a strong connection between what the employer was asking the employee to do and the wrongful act. There was no such connection in this case.

The first factor is the opportunity the taxi company afforded the driver to abuse his power. Such opportunity was negligible – While drivers have an opportunity for misconduct, such opportunity is not intimately connected to their functions.

As to the second and third factors, the alleged sexual assault did not further the taxi company's aims in any respect and was not related to friction, confrontation or intimacy inherent in the employer's aims.

With respect to the fourth factor, the taxi company did not confer any power onto the driver in relation to the appellant.

Finally, while the appellant was vulnerable to the driver, the power the driver allegedly wrongfully exercised was not predicated on his employment.

Floward Enterprises Ltd. (H. Williams and Co.) v. Winberg Estate, 2017 ONCA 448

[Gillese, Huscroft and Trotter JJ.A.]

Counsel:

P. Adam, for the appellant

J. Green for the respondent, Floward Enterprises Ltd.

M. Fawcett, for the respondent, Her Majesty the Queen

Keywords: Civil Litigation, Police Seizure, Ex parte, Criminal Code ss. 490(7) and 490(9)(c), R. v. Canada (Solicitor General) 2002 SCC 75, R. v. Backhouse (2005), 194 C.C.C. (3d) 1

Facts:

Martin Winberg ("Winberg") bought a diamond and, at his request, the acquaintance agreed to store the diamond at his home. Later, the acquaintance told Winberg that his friend, Brian Colyer ("Colyer"), had stolen the diamond, and the thefts were promptly reported to the Toronto Police Service. During the police investigation, the police located the diamond at the respondent, Floward Enterprises Ltd., operating as H. Williams & Company (the "Pawnbroker"). The police believed that Colyer had stolen the diamond and then pawned it to the Pawnbroker, and they took possession of the diamond.

Around the time that the criminal proceedings against Colyer were concluded, the Pawnbroker learned from the police that Winberg, who had by that point passed away, had a potential interest in the diamond because he was the person from whom the police believed the diamond had been stolen. The police, in a letter addressed to both the lawyers for the deceased and the Pawnbroker, explained that the prosecution against Colyer was complete, the police no longer needed the diamond, and there were "at least two adverse claims" to it. The Pawnbroker wrote letters to the police demanding the immediate release of the diamond to it, asserting its entitlement to the diamond. The police did not comply.

The Pawnbroker brought an application under ss. 490(7) and (9)(c) of the Criminal Code, R.S.C. 1985, c. C-46 (the "Application"), seeking a court order requiring the police to return the diamond to it. The Pawnbroker did not give the appellant, the Estate of Martin Winberg, notice of its Application. The written material filed on the Application was brief and did not mention the Estate or the fact that the Estate was laying claim to the diamond.

When the application was heard, the Pawnbroker did not tell the court that there was another interested party who might challenge the return of the diamond to it. The application was granted, and by order ("the Order"), the police were required to release the diamond to the Pawnbroker. The police forwarded a copy of the Order to the Estate.

The Estate moved quickly to appeal, arguing that the application judge erred in law in deciding the Application without requiring that notice be given to it. The Crown took a limited role in the appeal, claiming its sole interest was to protect the integrity of the s.490 process and submitting that the Pawnbroker failed to make full and frank disclosure.

Issues:

(1) Should the Order be set aside as a result of the Application being decided in the absence of full and frank disclosure by the Pawnbroker?

(2) If so, should the Court accede to the Estate's request for an order than the diamond be returned to it?

Holding: Appeal allowed.

Reasoning:

(1) Yes. Justice Gillese, writing for the unanimous Court of Appeal, stated that the Pawnbroker met the notice requirements in s. 490(7) but did not make full and frank disclosure of material facts including the Estate's claim of interest in the diamond. S. 490(7) allows for a person who has had an item seized by the police to apply to the Court for an order to have it returned, and on a plain reading, only requires the Attorney General to be notified. The Court stated that s. 490(7) needed to be interpreted within the overall purpose of s.490 as a whole. The Court cited the Court of Appeal's decision in R. v. Backhouse (2005), 194 C.C.C. (3d) 1, at paras. 98-114 where it was found that the overall purpose of s.490 is to ensure that, subject to judicial supervision, police return a seized item to the lawful owner or person lawfully entitled to its possession when its continued detention is not required for the purposes of an investigation or court proceeding.

The Court stated that although the Pawnbroker met the notice requirements in s. 490(7), the Application was made on an ex parte basis. The Court cited the Supreme Court of Canada's decision in Ruby v. Canada (Solicitor General), 2002 SCC 75, [2002] 4 S.C.R. 3, at para. 25, where it was stated that:

"Ex parte, in a legal sense, means a proceeding, or a procedural step, that is taken or granted at the instance of and for the benefit of one party only, without notice to or argument by any adverse party."

The Court found that the Application was taken at the instance of the Pawnbroker and for its benefit only. The Attorney General was not an adverse party – it was a neutral third party, meaning no adverse party had notice and none was present to argue at the Application. Therefore, the Application was brought and decided on an ex parte basis.

The Pawnbroker failed to make full and frank disclosure. In Ruby, the SCC stated at para. 27 that:

"In all cases where a party is before the court on an ex parte basis, the party is under a duty of utmost good faith in the representations that it makes to the court. The evidence presented must be complete and thorough and no relevant information adverse to the interest of that party may be withheld. Virtually all codes of professional conduct impose such an ethical obligation on lawyers."

The Court stated that in order for the court to properly fulfill its supervisory role and achieve the purpose of s. 490 – to see that seized things are returned to their lawful owners or those lawfully entitled to their possession once they no longer are required for any criminal investigation or proceeding – judges hearing applications under s. 490(7) must be able to rely on applicants to have made full and frank disclosure. The Court said that only through such disclosure can the court make informed decisions about, among other things, whether other interested parties must be given notice of the proceeding. The Pawnbroker did not fulfill this requirement in failing to provide disclosure of the interest of the Estate in the diamond.

(2) No. The Court stated that there were serious, complicated factual and legal disputes between the Estate and the Pawnbroker that must be resolved to determine entitlement to the diamond, and that the record before the Court was wholly inadequate to make such a determination.

SHORT CIVIL ENDORSEMENTS

Sutherland Lofts Inc. v. Peck, 2017 ONCA 439

[Weiler, Pardu and Roberts JJ.A.]

Counsel:

T. Halinski and D. Neligan, for the appellants

V. M'Garry, for the respondent

Keywords: Costs Endorsement

Fierro v. Fierro Estate (Appeal Book Endorsement), 2017 ONCA 438

[Lauwers, Hourigan and Benotto JJ.A.]

Counsel:

G. Gryguc, for the appellant

G.G. Walsh, for the respondent, Canada Lend Inc.

R. Migicovsky, for the respondent, Rose and Rose

Keywords: Appeal Book Endorsement

Lin v. Hayes (Appeal Book Endorsement), 2017 ONCA 437

[Lauwers, Hourigan and Benotto JJ.A.]

Counsel:

A. Rachlin, for the appellant

R.S. Baldwin, for the respondent, Kristie King

S. Pitano, for the respondents, Qing Bin Lin and Ying Ling Yan

Keywords: Appeal Book Endorsement

Cowan v. General Filters Inc., 2017 ONCA 456

[Lauwers, Hourigan and Benotto JJ.A.]

Counsel:

C.A. Chekan, for the appellant

E. Key and R.K. MacGregor, for the plaintiffs/respondents

Keywords: Interlocutory versus Final Order, Subpoena

CRIMINAL DECISIONS

R. v. Dunstan, 2017 ONCA 432

[Doherty, Blair and Lauwers JJ.A.]

Counsel:

F. Addario and A. Burgess, for the appellant

N. Devlin, for the respondent

Keywords: Criminal Law, Trafficking, Proceeds of Crime, Expert Spectrographic Voice Identification Analysis, Canadian Charter of Rights and Freedoms, Section 8, Courts of Justice Act, Section 136(3), Endean v. British Columbia, 2016 SCC 42

R. v. Reid, 2017 ONCA 430

[Watt, van Rensburg and Pardu JJ.A]

Counsel:

I.R. Smith and A.J. Ohler, for the appellant

T. Gilliam, for the respondent

Keywords: Criminal Law, Trafficking, Proceeds of Crime, Confidential Informant, Tele-warrant, Information to Obtain, Cross-Examination, Garofoli Application, R. v. Garofoli, [1990] 2 S.C.R. 1421, R. v. Pires; R. v. Lising, 2005 SCC 66, Criminal Code, Section 487.1, R. v. Clark, 2017 SCC 3, R. v. Debot, [1989] 2 S.C.R. 1140

R. v. Srikanthan, 2017 ONCA 435

[Rouleau, Trotter and Paciocco JJ.A.]

Counsel:

B. Vandebeek, for the appellant

A. Alyea, for the respondent

Keywords: Criminal Law, Jury Instructions

R. v. Arnaud, 2017 ONCA 440

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

Counsel:

R.C. Bottomley and M. Quenneville, for the appellant

M. Potrebic, for the respondent

Keywords: Criminal Law, Importing Narcotics, R. v. W.(D.), [1991] 1 S.C.R. 742

R. v. Gordon, 2017 ONCA 436

[Doherty, Miller and Paciocco JJ.A.]

Counsel:

P. Calarco, for the appellant

M. Fawcett, for the respondent

Keywords: Criminal Law, Right to Trial, Delay, Canadian Charter of Rights and Freedoms, Section 11(b), R. v. Jordan, 2016 SCC 27, R. v. Morin, [1992] 1 S.C.R. 771

R. v. M.N. (Publication Ban), 2017 ONCA 434

[Weiler, Feldman and Huscroft JJ.A.]

Counsel:

H. Pringle, for the appellant

M. Campbell, for the respondent

Keywords: Criminal Law, Child Pornography, R. v. Morelli, 2010 SCC 8

R. v. Heron, 2017 ONCA 441

[MacPherson, Blair and Epstein JJ.A.]

Counsel:

A. Furgiuele, for the appellant

D. Quayat, for the respondent

Keywords: Criminal Law, Smuggling, Duties, Breach of Trust, CPIC Check

R. v. Monckton, 2017 ONCA 450

[MacFarland, Pardu and Trotter JJ.A.]

Counsel:

R. Boggs, for the appellant

C. Harper, for the respondent

Keywords: Criminal Law, Second-Degree Murder, Child Abuse, Jury Instruction, Expert Evidence, Mens Rea, Inconsistent Verdicts, Parole Sentence, Aboriginal Status

R. v. Pasian, 2017 ONCA 451

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

Counsel:

J. Dawe, for the appellant

A. Weiler and C. Otter, for the respondent

Keywords: Criminal Law, Trafficking, Firearm Possession, Information to Obtain (ITO), R. v. Grant, 2009 SCC 32

R. v. Tmenov, 2017 ONCA 454

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

Counsel:

J. Stilman, for the appellant

N. Thomas, for the respondent

Keywords: Criminal Law, Sentencing

R. v. Mannette, 2017 ONCA 449

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