Canada: Ontario Court Of Appeal Summaries (February 19 – February 23)

Last Updated: February 28 2018
Article by John Polyzogopoulos

Good evening.

Below are this week's Court of Appeal summaries.

In Isaac Estate v. Matuszynska, a majority of the court upheld the motion judge's application of the doctrine of "emergency" when determining the defendants' standard of care in a wrongful death case. The motion judge had dismissed the action by way of summary judgment. In dissent, Justice Pepall was of the view that the motion judge's application of the "emergency" doctrine was incorrect, and that the case raised triable issues that should be determined on a full record at trial. Justice Pepall praised the Superior Court for taking Hryniak v. Mauldin to heart by trying to decide cases by way of summary judgment when possible. However, she cautioned that the goal should not be summary judgment at all costs. Some cases should still go to trial, and therefore some caution must still be exercised before a judge grants summary judgment.

In D'Addario v. Smith, a malicious prosecution case that also involved a defamation claim, the court discussed the defence of qualified privilege. It concluded that defamatory statements made to a priest about one of his parishioners were not protected by the defence of qualified privilege. The court also upheld the trial judgment which made the defendants jointly liable for the defamation because they were acting in furtherance of a common plan.

Other topics covered this week included a fee dispute between solicitor and client that also involved a claim of solicitor negligence (motion for summary judgment dismissing the solicitor's negligence action set aside); a claim that a judgment was for misappropriation while acting in a fiduciary capacity, and therefore survived bankruptcy (the court held it did not survive); a relief from forfeiture case where the court determined that the proceeds of the court's award belonged to the plaintiff's trustee in bankruptcy, and not the plaintiff; a priority dispute between insurers in the MVA context; an administrative law decision in the union grievance context; and several decisions of a more procedural nature (summary judgment, dismissal for delay, amending pleadings, limitation periods).

Finally, I would like to extend one final invitation to all our readers to the Top Appeals of 2017 CLE that my partner, Lea Nebel and I will be co-chairing with Justice Epstein of the Court of Appeal. We now have over 50 people who will be attending in person and another roughly 20 people online! The deadline for registration is noon this coming Monday, so there is still time to join us.

The CLE has been scheduled as a casual evening/dinner program at the OBA offices on Toronto Street to take place this Monday, February 26, 2018. In-person registration will be at 5:30, dinner will be served at 6, and the formal program will run from 6:30 to 8pm. For those who cannot attend in person, you can participate via live webcast. Please see the program agenda for further details and to register.

There are three decisions being featured. The first is Moore v Sweet, 2017 ONCA 182, which relates to the remedy of constructive trust. That case was recently heard by the Supreme Court (decision under reserve). Counsel on that matter, David M. Smith and Jeremy Opolsky, will be our panelists, with Justice Epstein acting as moderator.

The second case is Presidential MSH Corporation v. Marr Foster & Co. LLP, 2017 ONCA. That case canvassed, summarized and clarified the law regarding when the "appropriate means" analysis under s. 5(1)(a)(iv) of the Limitation Act, 2002, can be applied to delay the start of the running of the basic two-year limitation period. Counsel for the parties on that matter, Allan Sternberg, Daniella Murynka and Michael Girard, will be our panelists.

The third decision featured is Hodge v Neinstein, 2017 ONCA 494. That case has been a catalyst behind the Law Society's efforts to develop a standard form contingency fee agreement and disclosure obligations aimed at providing better information to clients. Counsel for the class plaintiffs, Peter Waldmann, will be joined on our panel by Bevin Shores and Audrey P. Ramsay, who are involved with the OBA and the Law Society working groups looking at this issue.

Wishing everyone a great weekend and looking forward to a great CLE on Monday.

Download >> Ontario Court Of Appeal Summaries (February 19 – February 23)

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John Polyzogopoulos
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This year’s program is entitled “An Analysis of Fidelity Claims for the Modern World.” The program will address important substantive and practical issues germane to today’s fidelity claims handling.

 
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