Canada: Ontario Court Of Appeal Summaries (June 12 – 16, 2017)

Last Updated: June 30 2017
Article by John Polyzogopoulos

Good afternoon,

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

In Hodge v. Neinstein, the Court upheld the Divisional Court's certification of a class proceeding against Neinstein & Associates LLP, in which the plaintiffs claim that the firm's accounts contravened the Solicitors Act.

In Bruff-Murphy v. Gunawardena, the Court of Appeal reviewed the law relating to the admissibility of expert opinion evidence and ordered a new trial after determining that certain expert evidence should not have been admitted.
Other topics covered included municipal law, construction contracts and arbitration agreements.

Have a great weekend.

Civil Decisions:

Allto Construction Services Ltd v. Toronto and Region Conservation Authority, 2017 ONCA 488

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

Counsel:

D. LaFramboise, for the appellant

L. Wang, for the respondent

Keywords: Contracts, Liquidated Claims, Construction Law, Evidence, Burden of Proof, Oral Testimony

Facts:

The appellant Allto Construction Service Ltd. ("Allto") sued the respondent Aplus General Contractor Inc. (Aplus) for $163,202.98, the amount alleged to be owing under a subcontract to install a sewage system during the construction of a pool for the Heart Lake Conservation Area for the Toronto and Region Conservation Authority (the "Owner"). The respondent denied owing the amount claimed, pleaded that during its work Allto damaged an on-site irrigation system for which Aplus incurred repair expenses of $33,611.85, and asserted that Allto had overbilled Aplus $5,135.85 for additional risers which were included within its original scope of work. Aplus asserted a set-off and counterclaim in the amount of $38,747. The trial judge dismissed both the claim and the counterclaim. He stated there was no evidence at trial of invoices for the work performed by Allto and thus Allto had failed to meet its burden to satisfy the court it was owed the amount claimed.

Issues:

Did the trial judge err in dismissing the claim?

Holding: Appeal allowed.

Reasoning:

Yes. The court found the trial judge had erred in principle when he concluded that the appellant had not proved it was owed the amount it claimed. The appellant's witness had identified the purchase order issued by Aplus and had testified the work had been performed. The respondent's witness did not contradict that evidence and confirmed the work had been performed without deficiencies. While Aplus denied the amount owing, it admitted the contract and Allto's performance of the work. A witness had provided oral evidence that the amount claimed had not been paid. The court held this was sufficient to establish Allto's outstanding claim. There was no requirement for any further proof through invoices.

The only material point of dispute was with respect to whether a sprinkler head in the irrigation system had been damaged, and the cost of its repair. The court held the respondent's claim for set-off was not made out on the trial record, because Aplus's documentation was suspect and the amount for the repair of a sprinkler head unreasonable. Moreover, the trial judge was entitled to interpret the admissions as he did – as admitting an entitlement to a back-charge but not a right to the amount the respondent claimed. The court held there was no basis for a set-off to the amount claimed by the appellant.

1220510 Ontario Inc. v. Radium-O Developments. Ltd., 2017 ONCA 490

[MacPherson, Blair and Roberts JJ.A.]

Counsel:

G. Gryguc, for the appellant

L. Mongillo and S. Chahal, for the respondent

Keywords: Contracts, Settlements, Enforceability, Interest Act, R.S.C. 1985, c I-15 s 8

Facts:

The respondent 1220510 Ontario Inc. lent $6,000,000 to the appellant Radium-O Developments Ltd. by way of a vendor take-back mortgage. The mortgage matured with the appellant not having paid the principal owing and was in default as of that date. The respondent started an application for the appointment of a receiver.

After some negotiations, the respondent made a settlement offer for a total amount of $6,162,950.45. This amount included principal, interest, three months' interest compensation, receivership and legal fees, other fees and taxes. The payment had to be made in full by July 8, 2016. The offer contained a condition that the payment would be rejected and returned if there were any reservations, conditions, qualifications, or protests attached.

The appellant paid the full amount and asked for a discharge. The respondent discharged the mortgage. Later, the appellant disputed the amount charged, specifically the legal fees and discharge costs, before delivering a costs assessment notice and commenced a counter-application seeking to be relieved from paying the three months' interest compensation and receivership costs.

The respondent moved to enforce the settlement and had its motion granted. The motion judge stated that the appellant could not keep the benefit of the discharge and protest after the fact how much was paid.

Issues:

(1) Did the motion judge err in enforcing the settlement?

(2) Did the motion judge err in approving the costs and fees relating to the respondent's steps in pursuit of the appointment of a receiver because they were in the nature of a penalty and therefore violated s 8 of the Interest Act?

Holding: Appeal dismissed.

Reasoning:

(1) No. The settlement was a contract with an offer and explicit acceptance. The appellant received the consideration it bargained for – a discharge of the mortgage.

(2) No. The steps taken to appoint a receiver were entirely reasonable in light of the appellant's default. Further, the three months' interest compensation did not violate s 8 of the Interest Act, (see Mastercraft Properties Ltd. v. EL EF Investments Inc. (1993), 14 OR (3d) 519 (CA) and Irwin Mintz, In Trust v. Mademont Yonge Inc. and Paul Montgomery, 2010 ONSC 116).

232169 Ontario Inc. (Farouz Sheesha Café) v. Toronto (City), 2017 ONCA 484

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

Counsel:

R.P. Zigler, for the appellants

K. Franz and L. Mendelson, for the respondents

Keywords: Municipal Law. Bylaws, Jurisdiction, Judicial Review, City of Toronto Act, 2006, SO 2006 c 11, Occupational Health and Safety Act, RSO 1990, c O1

Facts:

The appellants operate hookah lounges in Toronto. Hookah lounges offer beverages and food for sale, but are known primarily as places to socialize or relax, and smoke hookahs, a form of water pipe. In 2015, the City of Toronto passed By-Law 1331-2015, which prohibits the use of hookah devices in connection with premises, vehicles, or things required to be licensed by the City for various purposes. The appellants brought an application challenging the validity of the bylaw. The application judge held that the City had the authority to pass the bylaw and that the by-law was valid.

Issues:

(1) Did the application judge err in determining that the purpose of the by-law was the protection of health?

(2) Does the by-law infringe on the appellants' property and civil rights to an extent not permitted by the City of Toronto Act or the common law?

(3) Did the application judge err in concluding that the by-law does not conflict with or frustrate the purpose of the Occupational Health and Safety Act?

Holding: Appeal dismissed.

Reasoning:

(1) No. The court rejected the appellants' contention that the primary effect of the law will be the closing of hookah lounges, which overwhelms the City`s health and safety motive when characterizing the purpose of the by-law. The court found the appellants are licensed by the City to sell food and may continue to do so. They also can continue to sell shisha. What they cannot do is to permit the smoking of hookah pipes on their premises. Although many hookah lounges will suffer economic harm as a result of the by-law, this effect is incidental. The court held there was ample support in the record of the application judge's conclusion that the purpose of the by-law was the protection of public health and safety, which is specifically authorized by s 8(2) of the City of Toronto Act.

(2) No. The court rejected the appellants' description of the legislation as "targeting and destroying their business property without compensation". The court found the City of Toronto Act establishes broad by-law making authority which is not to be given the narrow construction advocated by the appellants. The by-law regulates business establishments licensed by the city and falls within the city's by-law making authority.

(3) No. The court found there was no merit to the appellants' submission that the by-law conflicts with or frustrates the purpose of the Occupational Health and Safety Act. The by-law was enacted to protect the health and safety of patrons as well as employees of businesses.

Finally, the court held it is not the court's role to second-guess policy decisions made by elected municipal officials. The City of Toronto Act immunizes by-laws against judicial review for reasonableness and the application judge was limited to determining the legal validity of the city's by-law. He made no errors in upholding the bylaw.

6524443 Canada Inc. v. Toronto (City), 2017 ONCA 486 [LaForme, van Rensburg and Huscroft JJ.A.]

Counsel:

R.G. Slaught and S. Rollwagen, for the appellant

C.B. Kuehl and C.T. Shorey, for the respondent

Keywords: Contracts, Real Property, Leases, Arbitration Agreements, Standard of Review, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53

Facts: 6524443 Canada Inc. ("Brookfield") and the City of Toronto ("Toronto") are parties to a 99-year ground lease. The lease provided for the annual rent for the first period of 40 years. The rent for the second period was to be agreed between the parties, failing which either party could submit the issue to arbitration. Toronto provided notice of arbitration to Brookfield in 2011. The parties entered into an Arbitration Agreement in 2013. The arbitration Award was rendered in 2015. Brookfield filed a notice of appeal in the Superior Court which was denied, leading to this appeal.

Issues:

(1) Did the motion judge err in refusing to consider the affidavit evidence?

(2) Did the motion judge err in concluding that the only right of appeal from the Award is on a question of law, with leave?

Holding: Appeal dismissed.

Reasoning:

Regarding the standard of review where the interpretation of the Arbitration Agreement involves questions of mixed fact and law, the motion judge's interpretation is reviewable on a standard of reasonableness.

(1) No. The affidavit evidence described the chronology and manner in which the Arbitration Agreement was prepared, and the parties' competing views as to what was intended in relation to appeal rights. The motion judge correctly observed that evidence with respect to the factual matrix includes objective evidence of the background facts known to the parties at the time of execution of the contract, but does not include evidence of negotiations and of a party's subjective intentions. To be sure, the affidavit did not offer evidence of the parties' mutual objectives.

(2) No. First, the motion judge reasonably concluded that the Arbitration Agreement was intended to be a stand-alone agreement governing the arbitration and any rights of appeal from the Award. There was no need to refer back to the lease to interpret any of the terms of the Arbitration Agreement.

Second, both the lease and the Arbitration Agreement provide for the parties' appeal rights to be governed by the Arbitration Act, 1991. If the parties intended to have broader rights of appeal, they would have so provided explicitly in the Arbitration Agreement.

Bajouco v. Green, 2017 ONCA 493

[Strathy CJO, Brown and Huscroft JJ.A.]

Counsel:
F Bajouco, in person

G Pakozdi, for the respondent

Keywords: Torts, Negligence, Fresh Evidence, R. v. Palmer, [1980] 1 S.C.R. 759, Leave to Appeal, Sault Dock Co. Ltd. v. Sault Ste. Marie (City), [1973] 2 OR 479 (CA)

Facts:

The appellant and respondent are neighbours. The respondent alleged that the appellant was responsible for damages with regards to the flooding of her basement bathroom. The trial judge found in favour of the respondent and awarded her damages of $8,800.77 plus costs and disbursements of $1,515.12. On appeal to the Divisional Court, the judge dismissed her appeal and ordered costs against her in the amount of $3,000. The appellant then sought leave to appeal to the Ontario Court of Appeal and was denied.

The appellant now seeks reconsideration of the Ontario Court of Appeal's decision denying leave to appeal based on the addition of new evidence. The new evidence suggests that the flooding of the respondent's bathroom was the fault of back-up water from a sewer, and not from anything to do with the appellant. In addition, the appellant seeks to bring forth documents that suggest the respondent fabricated documents and invoices from contractors.

Issues:

(1) Should the appellant be permitted to introduce new evidence?

(2) Did the Ontario Court of Appeal err in denying the appellant leave to appeal?

Holding: Appeal dismissed.

Reasoning:

(1) The appellant is not permitted to introduce new evidence

The appellant has failed to satisfy the test governing the admissibility of fresh evidence as outlined by the Supreme Court in R. v. Palmer, [1980] 1 S.C.R. 759, at p. 775. The test requires the satisfaction of the following four criteria: (i) the evidence could not have been adduced at trial; (ii) the evidence must be relevant in that it bears on a decisive or potentially decisive issue; (iii) the evidence must be reasonably capable of belief; and (iv) the evidence must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

Most of the fresh evidence that the appellant seeks to introduce has already been dealt with at trial. The possibility of the sewers causing the flooding was rejected by the trial judge. In addition, the appellant had an opportunity to challenge the accuracy of letters and documents and did not. The evidence she seeks to introduce today simply reiterates the allegations but presents nothing new to the argument.

(2) The Ontario Court of Appeal did not err in denying leave to appeal

The test for granting leave to appeal from a final decision of the Divisional Court is laid out in Sault Dock Co. Ltd. v. Sault Ste. Marie (City), [1973] 2 OR 479 (CA). Leave may be granted in cases that present an arguable question of law or mixed fact and law on the interpretation of legislation; the interpretation, clarification or propounding of a general rule or principle of law; the interpretation of a municipal by-law where the point in issue is a question of public importance; or the interpretation of an agreement where the point in issue involves a question of public importance: Sault Dock, at p. 481.

The appellant has failed to pass the test for granting leave to appeal because her appeal is largely fact-based and seeks mostly to impugn the trial judge's assessment of the evidence.

Hodge v. Neinstein, 2017 ONCA 494

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

Counsel:

C. Paliare, O. Soriano and D. Cooney, for the appellant

P. Waldmann and A. Stein, for the respondents

P. Pape, S. Chaudhury and A. Bolieiro for the intervener, the Ontario Trial Lawyer's Association

Keywords: Solicitor and Client, Contingency Fee Agreements, Solicitors Act, Class Actions, Class Proceedings Act, Certification, Common Issues, Preferable Procedure, Pleadings, Amendments

Facts:

The respondent Hodge was injured in a motor vehicle accident in 2002. She retained the appellants, Gary Neinstein and Neinstein & Associates LLP ("Firm") and signed a contingency fee arrangement ("CFA") with the Firm. It provided that the Firm's legal fees would be equal to 25 per cent of the damages recovered on her behalf, plus partial indemnity costs (which would be no more than 40 per cent of the total recovery), plus disbursements.

Hodge signed a settlement, and the Firm, in calculating their legal fees, included the costs obtained as part of the settlement. She argued that this was a violation of s 28.1(8) of the Solicitors Act, RSO 1990, c S 15 (the "Act"), which sets out the circumstances in which a lawyer is permitted to enter into a CFA. She also alleged that the Firm charged interest on unpaid disbursements in violation of s 33(1) of the Act, which provides that a solicitor may only charge interest on the date one month after the bill is delivered.

Hodge brought a motion to certify a class proceeding against the Firm on behalf of all its contingency fee clients since October 2004. In her Amended Notice of Application, she was seeking, among other relief, a declaration that the Firm was in violation of the Act and had both breached its fiduciary duty to and breached its contracts with the class members, and an order that the Firm repay any amounts taken for costs in addition to a percentage of damages. She also alleged that the Firm charged disbursements that were excessive or improper.

The certification judge concluded that Ms. Hodge failed to satisfy the five-part test for certification under s 5(1) of the Class Proceedings Act, 1992, SO 1992, c 6 (the "CPA"). He found a free-standing, strict liability civil wrong for breach of ss. 28.1(8) and 28.1(9) of the Act, and he was satisfied that the Amended Notice of Application disclosed a cause of action under s. 23 and 25 of the Act, and for breach of fiduciary duty and breach of contract. He also concluded that there was an identifiable class, but stated that claims or defences of the class members did not raise common issues and even if they did, a class action was not the preferable procedure because it would inevitably lead to individual assessments of each class member's claim, which could not be done at a common issues trial. The judge noted even if a breach of s. 28.1 could be said to be a free-standing strict liability civil wrong that would not overcome the common issues problem. However, the judge also found that solicitor-client privilege would not be an insurmountable obstacle if the proceeding was otherwise certifiable, citing at least one procedure which he believed could be undertaken to get around it.

On appeal, the Divisional Court allowed Hodge's appeal, agreeing that there was a cause of action and that there was an identifiable class. However, the Divisional Court also found that the common issues requirement was satisfied, and that a class proceeding would be a preferable because judicial economy favoured a class proceeding, taking into account the access to justice barriers present for the class members to have their case heard. The Divisional Court also denied Hodge's motion to amend her Amended Notice of Application to plead the tort of conversion, concluding that it added nothing of substance to the proceeding as currently drafted, meaning it was unnecessary to consider it. Additionally, the Divisional Court also agreed with the certification judge in finding that solicitor-client privilege would not be an insurmountable obstacle to certifying the proceeding. The Divisional Court certified the matter as a class proceeding.

On appeal to the Court of Appeal, the Firm argued that the application brought by Hodge should not have been certified as it failed to disclose a cause of action, fundamentally lacked in commonality and failed the preferable procedure requirement. In particular, the Firm argued that ss. 23-25 of the CPA precluded the possibility of a class proceeding against the Firm because they form a "complete code" and required individual assessments of client accounts. The Firm reiterated its solicitor-client privilege argument as a reason why the matter should not be certified as a class proceeding.

Hodge cross-appealed, arguing that the Divisional Court erred by denying her leave to amend her Amended Notice of Application to plead the tort of conversion and failing to certify further common issues.

Issues:

(1) Issue on appeal: Did the Divisional Court err in certifying the class proceeding?

(a) Did Hodge's claim under s 28(1) of the Act disclose a cause of action satisfying s 5.1(a) of the CPA?

(b) Were there common issues in the action?

(c) Is the class proceeding a preferable procedure?

(2) Issue on cross-appeal: Did the Divisional Court err in:

(a) Denying Hodge leaving to amend her Amended Notice of Application to plead the tort of conversion; and

(b) Failing to certify further common issues?

Holding: Appeal dismissed, and cross-appeal allowed in part.

Reasoning:

(1) No. The Court of Appeal found that the Divisional Court was correct in finding a cause of action, that the common issues requirement was satisfied on the basis of 18 common issues in the class, and that the class proceeding was the preferable procedure.

(a) Yes. The Court stated that the Divisional Court correctly concluded that it was not plain and obvious that a cause of action relying on s 28.1 could not succeed, stating that it was not plain and obvious that an application under ss. 23-25 of the Act is not available to review the CFAs at issue in this application.

The Court reviewed the test under s 5(1)(a) of the CPA – finding that it was the same as the test on a motion to strike for no reasonable cause of action per Pro-Sys Consulting Ltd. v. Microsoft Corp., 2013 SCC 57, [2013] 3 S.C.R. 477, at para. 63. The test is whether, assuming the facts pleaded to be true, it is plain and obvious that the claim has no reasonable prospect of success per R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 17. Furthermore, whether the cause of action requirement is met is reviewable on a correctness standard of review per Attis v. Canada (Minister of Health), 2008 ONCA 660, 93 OR (3d) 35, at para. 23.

The Court then applied the test to find that it was not plain and obvious that a cause of action relying section 28.1 of the Act had no reasonable prospect of success. In doing so, the Court distinguished Seneca College v. Bhadauria, [1981] 2 S.C.R. 181; Frame v. Smith, [1987] 2 S.C.R. 99; Canadian Alliance of Pipeline Landowners' Assn. v. Enbridge Pipelines Inc., 2008 ONCA 227, 237 O.A.C. 200, which cites Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205.

In Seneca College, the Supreme Court considered Ontario's Human Rights Code, RSO 1970, c 318, and concluded that it foreclosed any civil action based directly upon a breach of its terms or the invocation of any public policy expressed in the Code. In Frame, the Supreme Court similarly concluded that permitting a father to sue the mother and her present husband for frustrating court-ordered access, either by creating a tort or recognizing a fiduciary duty arising out of a court order, "may well do violence to the comprehensive statutory scheme [of the Children's Law Reform Act] provided by the Legislature" at p. 114.

The Court found that Seneca College, Frame and Canadian Alliance were arguably distinguishable for two reasons. The first was that section 28.1 is unique in one important respect: section 28.1(9) specifically provides that a CFA that is subject to approval under subsection (8) is not enforceable unless it is so approved. Section 28.1(9) provides a consequence for the statutory breach. Much of the relief Ms. Hodge seeks flows from that provision – the statutorily-prescribed consequence of the breach – and not the breach itself.

The Court said that the claimants in Seneca College, Frame and Canadian Alliance did not seek relief based on a statutorily-provided consequence of a breach of statute. Secondly, the declaration that Hodge was seeking was in respect of rights under an agreement, making it arguably different from an action based on breach of a statutory term, as in Seneca College. The Court acknowledged that the Act does not expressly provide that a client may pursue civil remedies where a CFA that is subject to approval under subsection (8) is "not enforceable unless it is so approved", but said that it was arguable whether express language was necessarily required despite comments in Canadian Alliance that might be read as suggesting otherwise.

Finally, the Court stated that it was at least arguable that an assessment under s 24 of the Act was not the only remedy available where a CFA was unenforceable pursuant to s. 28.1(9) of the Act, and that it was also argued that the Court of Appeal's inherent jurisdiction in matters relating to the regulation of lawyer's accounts suggests that ss. 23-25 of the Act may not constitute a complete code.

The Court accepted that Hodge had adequately pleaded a cause of action for a breach of fiduciary duty. The Court also found that the Divisional Court had erred in finding that Hodge had met the test for show a cause of action in breach of contract because her pleading was deficient, but granted her leave to amend her notice of application. The Court also said that while the Firm had a strong argument that a contract claim would be caught by ss. 23-25 of the Act, the argument was not so strong as to be plain and obvious.

(b) Yes. The Court found that there was no basis to interfere with 18 of the 19 common issues found by the Divisional Court, taking exception only with the third common issue. The Court reviewed the test for s 5(c) of the CPA, citing the Supreme Court of Canada in Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534 and in Pro Sys, finding that the underlying commonality question is whether allowing a proceeding to continue as a class proceeding will avoid duplication of fact-finding or legal analysis. The Supreme Court in Pro-Sys listed the balance of the instructions found at paragraphs 39-40 of Dutton as to how to approach the common issues inquiry:

(1) The commonality question should be approached purposively.

(2) An issue will be "common" only where its resolution is necessary to the resolution of each class member's claim.

(3) It is not essential that the class members are identically situated vis-à-vis the opposing party.

(4) It not necessary that common issues predominate over non-common issues. However, the class members' claims must share a substantial common ingredient to justify a class action. The court will examine the significance of the common issues in relation to individual issues.

(5) Success for one class member must mean success for all. All members of the class must benefit from the successful prosecution of the action, although not necessarily to the same extent.

The Court stated that at the certification stage, the factual evidence goes only to establishing whether the questions are common to all the class members and that while there must be "some basis in fact" that the issues are common, the test "does not require that the court resolve conflicting facts and evidence at the certification stage", which the court is ill equipped to do at that stage. Even a significant level of difference among the class members does not preclude a finding of commonality. If material differences do emerge, the court can deal with them at that time.

The Court agreed with Firm that common issue 3, was not a proper common issue, in finding that, whether the Firm actually took amounts arising from costs in an award or settlement contrary to the Act should be characterized as an individual issue. However, the Court stated that did not affect its conclusion that the Divisional Court was correct in certifying this proceeding because the remaining common issues would be sufficient to meet the certification criteria.

(c) Yes. The Court of Appeal found that the Divisional Court was correct in certifying the class proceeding on the basis that it was a preferable procedure. First, the Court went over the test, stating that in the context of the preferability requirement, the representative plaintiff must show some basis in fact (1) that a class proceeding would be a fair, efficient and manageable method of advancing the claim, and (2) that it would be preferable to any other reasonably available means of resolving the class members' claims per AIC v. Fischer, 2013 SCC 69, [2013] 3 S.C.R. 949, at para. 48. They noted that the preferability requirement is to be conducted through the lens of the three principal goals of class actions, namely judicial economy, behavior modification, and access to justice, citing AIC, at para. 22 and Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158, at para. 27, for this proposition. Finally, the Court stated that a certification judge's preferability analysis is entitled to considerable deference on appeal. A reviewing court should intervene only where the certification judge has made a palpable and overriding error of fact or otherwise erred in principle per Pearson v. Inco Ltd. (2005), 205 O.A.C. 30 (CA), at para. 43.

In applying this analysis, the Court stated that the issue raised respecting solicitor-client privilege was not a basis for refusing certification. After reviewing the law on solicitor-client privilege set out by the Supreme Court of Canada in Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319, and Minister of National Revenue v. Thompson, 2016 SCC 21, [2016] 1 S.C.R. 381, said the Court stated that it was not a reversible error for the Divisional Court to identify one way in which solicitor-client privilege could be avoided as a problem and leave it to the case management judge to work out the particulars. The Court of Appeal stated that this should not be a bar because the court retains the power under 10(1) of the CPA to decertify the class proceeding if it appears to the court that the certification criteria are no longer satisfied.

The Court of Appeal also dismissed the Firm's other arguments, finding that the Divisional Court made no error in finding that individual assessments were beyond the reach of the class with a class proceeding being the only realistic opportunity for their claims to be advanced, the Court found that there was no error in behaviour modification towards the Firm and the Bar at large helping to make the proceeding preferable, and that the individual limitation issues in each of the claims would present an obstacle.

(2)

(a) No. It was open for the Divisional Court to decline to consider the proposed amendment to add a cause of action. However, if it declined to consider the proposed amendment on its merits, it should have made clear that its decision that doing so did not bar Ms. Hodge from bringing her motion to amend before the case management judge. The Court stated that the Divisional Court erred in principle by dismissing the motion without focusing on whether the Firm was afforded procedural fairness and whether the proposed amendment would cause prejudice to the Firm.

(b) Yes. The Divisional Court should have certified two additional common issues.

The first was whether the conduct of the Firm – in allegedly failing to disclose information required by the Act and the Regulation in its CFAs and taking as part of their fees amounts arising from awards or settlements for costs – breached fiduciary duties to class members. The Court said that there was some basis in fact for asking whether the taking of costs contrary to the Act constituted a breach of fiduciary duty by the Firm, such that this is a proper common issue. The Court also noted that the record on appeal was replete with examples of final accounts showing party-and-party costs payable to the Firm, in addition to a percentage of the award or settlement, and the only evidence of the Firm not taking such costs was that of someone who it appears will opt out of the class proceeding. However, the Court stated that the issue of whether the Firm actually took to the amounts was an individual issue.
The second was whether there was entitlement to punitive damages. The Court said that entitlement to punitive damages could be certified as a common issue in a proper case, and that whether a defendant has breached a fiduciary duty engages the same kind of fact-finding that will be necessary to determine whether punitive damages are justified per the Supreme Court of Canada's decision in Rumley v. British Columbia, 2001 SCC 69, [2001] 3 S.C.R. 184, at para. 34. The Court said that if it were found that the Firm breached its fiduciary duty to its clients, and disgorgement – in whole or in part – was ordered, it would be open to the trial judge to consider whether he or she was in a position to determine entitlement to and the quantum of punitive damages, consistent with the principles in Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595. If the Firm successfully advanced a quantum meruit claim, the trial judge could determine punitive damages only after individual quantum meruit assessments.

Bruff-Murphy v. Gunawardena, 2017 ONCA 502

[Lauwers, Hourigan and BenottoJJ.A.]

Counsel:

G.D.E. Adair, for the appellants

D.I. Reisler and J.L. Kuredjian, for the respondent

Keywords: Torts, Negligence, MVA, Damages, Evidence, Experts, Admissibility, The Rule in Browne v. Dunn (1893), 6 R. 67 (H.L.), R. v. Mohan, [1994] 2 S.C.R. 9, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182

Facts:

The appellant was hit by the respondent while stopped in her motor vehicle. She alleged that she suffered multiple injuries, both physical and psychological. She sued the respondent, who admitted liability. The sole issue in the jury trial was what damages, if any, she suffered. The plaintiff called a number of physicians who had either treated or examined her. The consensus among them was that she suffered in the manner complained of, and that the cause of her suffering was the motor vehicle accident. The defence called two witnesses, one of whom was the expert witness whose testimony was ultimately at issue on this appeal.

The appellant objected to the admission of that expert's testimony on two grounds. First, because his report was an attack on the appellant's credibility. Second, he was biased. On the first ground, the appellant submitted that the expert report's repeated references to inconsistencies in the medical assessment of the plaintiff violated the rule in Browne v. Dunn, given that the plaintiff had no opportunity to explain these inconsistencies.

On this second ground, the appellant submitted that she should be permitted to cross-examine the expert witness on findings made in another court case and two arbitrations that he was not an independent witness. The trial judge ruled against the appellant on both these grounds.

The trial judge then ruled that the expert witness could not testify on certain sections of his report. The relevant sections were primarily where the expert witness was critical of the reliability of the conclusions reached by other doctors examining the appellant. The trial judge also made clear that the expert witness should not testify about the appellant's credibility.

However, the expert witness effectively did exactly that in his testimony, testifying that in his opinion, she did not actually develop any of the health problems she claimed.

After closing submissions, the trial judge gave his charge to the jury. No special instruction regarding the expert witness's testimony was requested, nor did the trial judge instruct the jury regarding the duty of expert witnesses. The trial judge also did not raise any concerns with respect to the substance of the expert witness' testimony or his independence.

The jury returned with a verdict assessing general damages at $23,500 and rejecting all other heads of damages, including special damages, future care costs and past and future income loss.

Issues:

(1) Did the trial judge err in not permitting the appellant to cross-examine the respondent's expert witness on prior court and arbitral findings made against him?

(2) Did the trial judge err in qualifying the respondent's expert witness as an expert and/or in not intervening or taking steps to exclude his testimony?

(3) Did the respondent violate the rule in Browne v. Dunn?

Holding: Appeal allowed.

Reasoning:

(1) No. In the present case, the prior comments would have been of no assistance to the jury without an understanding of their factual foundation. That necessary context would only have served to divert the jury from the task at hand and convert the trial into an inquiry regarding the reliability of the expert witness's testimony in the three other proceedings. Thus, the Court held that the trial judge did not err in prohibiting this line of cross-examination.

(2) Yes. The trial judge was entitled to deference on the first part of the test for admissibility of expert evidence, articulated in R. v. Mohan, which established a low bar for threshold admissibility. While the trial judge's ruling on this point may have been highly debatable, he was within his authority to decide as he did.

On the second part of the test for admissibility, however, the trial judge failed to properly fulfil his gatekeeper function and engage in a cost-benefit analysis of the expert witness's testimony that weighed its probative value against its prejudicial effect. From a review of the record, the Court of Appeal found that it was abundantly clear that the prejudicial effect of the expert witness's testimony far outweighed any probative value. The risk was palpable that the expert witness would fail to remain impartial and would instead act as an advocate for the defence.

(3) In light of the answer to Issue (2), the court deemed an answer to Issue (3) unnecessary.

In the result, the appeal was allowed and a new trial ordered.

Civil Endorsements

Biosweep Canada Corporation v. 2314515 Ontario Inc., 2017 ONCA 508

[MacPherson, Blair and MacFarland JJ.A.]

Counsel:

B.N. Radnoff, for the appellant

No one appearing for the respondent

Keywords: Torts, Conversion, Detinue, Passing Off, Unjust Enrichment, Unlawful Interference with Economic Interests, Damages

Paccar Leasing Company Limited v. Sevco Corporation (Appeal Book Endorsement), 2017 ONCA 503

[Simmons, Lauwers and Hourigan JJ.A.]

Counsel:

G. Bogue, for the appellants

S. Lee, for the respondent

Keywords: Motion to Strike, Failure to Pay Costs

Criminal Decisions

Biosweep Canada Corporation v. 2314515 Ontario Inc., 2017 ONCA 508

[MacPherson, Blair and MacFarland JJ.A.]

Counsel:

B.N. Radnoff, for the appellant

No one appearing for the respondent

Keywords: Torts, Conversion, Detinue, Passing Off, Unjust Enrichment, Unlawful Interference with Economic Interests, Damages

R. v. C.F., 2017 ONCA 480

[Feldman, Watt and Huscroft JJ.A.]

Counsel:

J. Lockyer and P. Campbell, for the appellant

P. Cowle, for the respondent

Keywords: Criminal Law, Sexual Assault, Sexual Exploitation, Admission of Fresh Evidence, Palmer v. The Queen, [1980] 1 S.C.R. 759, Criminal Code, s 486.4

R. v. Pastore, 2017 ONCA 487

[Juriansz, Pepall and Tratter JJ.A.]

Counsel:

A. Schorr, for the appellant

R. Morin, for the respondent

Keywords: Criminal Law, Fraud, Criminal Code, s 380(1)(a), Sentencing, General Deterrence, Denunciation

R. v. Pyrek, 2017 ONCA 476

[Laskin, Watt and Hourigan JJ.A.]

Counsel:

M. Peck, for the appellant

K. Rawluk, for the respondent

Keywords: Criminal Law, Dangerous Driving Causing Bodily Harm, Impaired Driving Causing Bodily Harm, Canadian Charter of Rights and Freedoms, s 11(b), R. v. Jordan, 2016 SCC 27

R. v. Tran, 2017 ONCA 482

[Tulloch, Lauwers and Brown JJ.A.]

Counsel:

J Tran, acting in person

H Loubert, for the respondent

Keywords: Criminal Law, Bail

R. v. Punia, 2017 ONCA 489

[Juriansz JA (In Chambers)]

Counsel:

R. Silverstein, for the appellant

J. Barrett, for the respondent

Keywords: Criminal Law, Criminal Code, s 684

R. v. TH (Publication Ban), 2017 ONCA 485

[MacPherson, Blair and Epstein JJ.A.]

Counsel:

D. Doucette and J. Belton, for the appellant

D. Finley, for the respondent

Keywords: Criminal Law, Sexual Assault, Criminal Code, s 486.4, s 486.6, R. v. Hart, (1999), 135 C.C.C. (3d) 377 (N.S.C.A.), leave to appeal refused, [2000] S.C.C.A. No. 109

R. v. Newton, 2017 ONCA 496

[Laskin, Watt and Hourigan JJ.A.]

Counsel:

D. Doucette and L. Wilhelm, for the appellant

N. Thomas and F. Au, for the respondent

Keywords: Criminal Law, Murder, Attempted Murder, R. v. Jack (1993), 88 Man. R. (2d) 93 (C.A.), aff'd [1994] 2 S.C.R. 310, R. v. Maciel (2007), 219 C.C.C. (3d) 516, leave to appeal refused [2007] 3 S.C.R.

R. v. Denouden (Appeal Book Endorsement), 2017 ONCA 497

[Doherty, Rouleau and Hourigan JJ.A.]

Counsel:

V. Giourgas, for the appellants

K. Farrell, for the respondent

Keywords: Criminal Law, Sentencing

R. v. M.A. (Appeal Book Endorsement), 2017 ONCA 504

[Laskin, Simmons and Pardu JJ.A.]

Counsel:

J. Presser and A. Menchynski, for the appellants

M. Stephen, for the respondent

Keywords: Criminal Law, Collusion, Sentencing

R. v. Munro (Appeal Book Endorsement), 2017 ONCA 498

[Doherty, Rouleau and Hourigan JJ.A.]

Counsel:

D. Lumba, for the appellants

A. Cappell, for the respondent

Keywords: Criminal Law, Evidence, Burden of Proof

R. v. Norvill (Appeal Book Endorsement), 2017 ONCA 501

[Doherty, Rouleau and Hourigan JJ.A.]

Counsel:

M. Salih, for the appellants

K. Papadopoulos, for the respondent

Keywords: Criminal Law, Informants

R. v. Ngoddy (Appeal Book Endorsement), 2017 ONCA 499

[Laskin, Simmons and Pardu JJ.A.]

Counsel:

M. Peterson, for the appellants

J. Morische, for the respondent

Keywords: Criminal Law, Summary Conviction

R. v. D.C., 2017 ONCA 483

[Feldman, Pardu and Benotto JJ.A.]

Counsel:

P. Alexander, for the appellants

M. Stephens, for the respondent

Keywords: Criminal Law, Sexual Assault, R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, Criminal Code, s 486.4, s 486.6

R. v. M.T., 2017 ONCA 505

[Laskin, Simmons and Pardu JJ.A.]

Counsel:

M. Halfyard, for the appellants

L. Schwalm, for the respondent

Keywords: Criminal Law, Sexual Assault, Criminal Code, s 486.4, s 486.6

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