In Atos IT Solutions v Sapient Canada Inc., the Court confirmed that the "minimum performance principle" places a common law limit on expectation damages for breach of contract. In cases where the defaulting party has alternative modes of performing the contract, damages are calculated on the basis of the mode of performance that is least burdensome to the defaulting party and least profitable to the non-breaching party. A termination for convenience clause therefore effectively defines the upper limit of expectation damages, even where the defaulting party did not terminate under that clause, but rather purported to terminate for cause.
In Ojeikere v Ojeikere, a child abduction case, the Court took jurisdiction over custody and access of the children even though their habitual residence was Nigeria and there was an outstanding custody application pending in that country. The court relied on section 23 of the Children's Law Reform Act, which gave jurisdiction because the children were in Ontario and were found to be a risk of serious harm if they were to return to Nigeria. Coincidentally, the Supreme Court released another important child abduction decision today called Office of the Children's Lawyer v Balev.
Other topics covered this week included negligent misrepresentation, negligent police investigation, oppression in the not-for-profit corporation context, sealing orders, commercial mortgage lending, LTD coverage, occupier's liability, defamation and costs.
[Watt, Pepall and Miller JJ.A.]
Jonathan Lisus and James Renihan, for the appellants
Evan Tingley, for the respondent Sparkasse Siegen
P.A. Neena Gupta, for the respondent Thomas Magnete GmbH
Keywords: Torts, Negligent Misrepresentation, Contracts, Guarantees, Civil Procedure, Procedural Fairness
This appeal arises from the ruins of the turbulent economic times that gripped the automotive industry in 2008. Relying on a claim of negligent misrepresentation, the appellant, Rohwedder Canada Inc. ("RCI"), looked to blame the respondents for losses suffered. The trial judge dismissed the action.
As way of background, Chrysler awarded Getrag Transmission Manufacturing LLC ("Getrag"), a subsidiary of Getrag A.G., a German manufacturer and, at the time, the world's largest transmission company, a major contract for more than $500 million to design and manufacture automobile transmissions. Getrag subcontracted with the respondent, Thomas Magnete GmbH ("TM Germany"), to manufacture certain valves. In turn, TM Germany issued a purchase order dated September 7, 2007, to purchase three automated custom-designed assembly lines from the appellant, RCI, a subsidiary of a German public company, for C$6.75 million. RCI accepted the order on September 12, 2007.
Due to NAFTA regulations, the valves had to be manufactured in North America. TM Germany established a wholly-owned subsidiary, Thomas Magnete Canada Inc. ("TM Canada"), to operate the manufacturing facility in Cambridge, Ontario. TM Germany's bank, Sparkasse Siegen ("Sparkasse"), loaned funds and administered a financing facility of EUR10 million, subject to various conditions, to TM Canada to set up the plant. The loan was guaranteed by TM Germany and other related companies. Sparkasse reserved the right to terminate part of the loan facility on the basis of, among other things, "a significant deterioration in the asset situation of the end borrower [TM Canada]".
RCI did not demand any guarantees from TM Germany. TM Germany sought to transfer its purchase order with RCI to TM Canada, which was not viewed as controversial by either TM Germany or RCI.
On December 19, 2007, Silvio Osim, RCI's sales manager, wrote to TM Germany, stating:
Since we are transferring the PO from [TM Germany] to [TM Canada,] we would need a letter from [TM Germany] that, in case of illiquidity of [TM Canada], [TM Germany] would assume the project completion and any outstanding payments to [RCI]. This request came to me from our Controller who was informed about this requirement from our Bank.
At trial, Osim conceded that the last sentence of this email was untrue. RCI's bank had not made such a request.
TM Germany forwarded Osim's email to its bank, Sparkasse. Ms. Mueller, the manager at Sparkasse responsible for the TM Canada file, explained at trial that she was familiar with the type of comfort letter requested by RCI. She crafted a response stating that:
[T]he project of setting up a new production site by our client Thomas Magnete Group in Cambridge / Ontario is financially supported by [Sparkasse].
We hereby confirm, that – in line with the project plan – the necessary funds including expenses for the purchase of production lines and machinery are in place.
[TM Germany] provided a guarantee in our favour regarding the project's financing scheme, thus accepting financial liability for the project.
Osim then responded and offered to send the signed purchase order immediately. RCI rendered its invoices to TM Canada and received payment from that company.
Getrag's relationship with Chrysler then fell apart, and on October 18, 2008, Getrag announced that the deal with Chrysler was dead. On November 17, 2008, Getrag filed for bankruptcy protection. Sparkasse withdrew its financing to TM Canada and TM Canada closed. In total, RCI received approximately 80% of the total contract price from TM Canada.
The appellant, 2249659 Ontario Ltd., an inactive company, purchased RCI including the cause of action against Sparkasse and TM Germany for one Euro on the insolvency of RCI's parent company. RCI is also now an inactive company.
In October 2010, the appellants sued Sparkasse and TM Germany for negligent misrepresentation. They alleged that the Sparkasse letter had been, among other things, untrue, inaccurate, and misleading and had failed to disclose that Sparkasse's financing was contingent on the financial health of TM Canada. It claimed the respondents owed RCI the outstanding amount of $1,489,617. The trial judge dismissed the action.
(1) Did the trial judge make factual errors in dismissing the appellants' claim of negligent misrepresentation?
(2) Did the trial judge deny the appellants procedural fairness?
Holding: Appeal dismissed.
(1) No. Appellate intervention is warranted where an inference of fact is not supported by any evidence and where an improper inference has a material effect on the outcome.
The court stated that while the trial judge's reasons were admittedly long and occasionally strayed into areas that were not demanding of any commentary, he had a firm grasp of the facts and applied the correct law in analysing the negligent misrepresentation claim.
First, the appellant asserted that the trial judge made a palpable and overriding error in finding that Sparkasse and TM Germany sent the December correspondence understanding that it would be relied upon by RCI's bank rather than RCI. The court stated that this was an overstatement of the trial judge's finding. The trial judge described the wording of RCI's email request as odd and then proceeded to describe some of its features. He did so from an objective perspective, stating that, when referring to RCI's bank's "requirement", the clear implication "to an objective reader" was that RCI needed something to show its banker. This was a reasonable conclusion.
Secondly, the appellants contended that the trial judge erred in finding that RCI deliberately omitted the word "guarantee" in its request. The court stated that it was open to the trial judge to infer that the omission was deliberate.
Third, the appellants submitted that the trial judge erred in finding that RCI was not concerned about transferring the purchase order to TM Canada because it knew that Getrag was contractually obliged to indemnify TM Canada for its payment obligations. The court stated that although the trial judge's reference to an indemnity was not grounded in the evidence, it was not a palpable and overriding error.
(2) No. The appellants complained that the trial judge made an "atmospheric error" by characterizing Osim and his request as dishonest, guileful, and misleading – a narrative that was not advanced by the parties, was untethered from the evidence, and which improperly coloured his treatment of the correspondence and his analysis of the issues.
The court stated that the trial judge's interpretation of the evidence was supported by the pleadings. In any event, RCI clearly did not request a guarantee and Osim admitted that he did not use the word guarantee in the email. As such, the court held that the trial judge fairly concluded that this was a deliberate decision, and there was no denial of procedural fairness.
[MacFarland, LaForme and Epstein JJ.A.]
C Fiske and D Cassin, for the appellants
F Fischer and A Mintoff, for the respondent
Keywords: Torts, Negligent Investigation, Duty of Care, Police, Wellington v. Ontario, 2011 ONCA 274, Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Rules of Civil Procedure, Rule 21
Pursuant to Rule 21, the motion judge struck out the appellants' (Connellys') claim, without leave to amend, on the basis that it did not disclose a reasonable cause of action. The motion judge found it was plain and obvious that the Toronto Police Services Board (TPSB) owed no duty of care to the appellants.
At the outset of the appeal, counsel for the appellants accepted that the Court of Appeal is precluded from reconsidering the decision of Wellington v. Ontario, 2011 ONCA 274. Instead, they argued that Wellington should be distinguished because the facts in the appellants' case are uniquely different. In Wellington, the Court of Appeal held that the Special Investigation Unit ("SIU") of the Ministry of the Attorney General does not owe a private law duty of care to victims and their families in conducting investigations of police officers. Rather, the SIU's duty is to the public at large.
(1) Is this case distinguishable from Wellington on the basis that the appellants do not have rights to certain remedies for victims of crimes identified in paragraph 53 of Wellington?
(2) Is this case distinguishable from Wellington on the basis that the appellants were actively assisting the police in the conduct of the investigation?
Holding: Appeal dismissed.
(1) No. At paragraph 53 in Wellington, the court merely made closing obiter dicta comments to illustrate that concerned family members of victims of crime often have rights to certain remedies.
(2) No. Regarding the appellants' claim in connection with their assistance of the police with their investigation, this consisted of their providing reasons to the police for their desired outcome of the investigation. It did not create any special relationship with the police that converted the duty of care the police owe to the public into a private duty of care to the appellants.
Despite the appellants' attempts to characterize their claim as novel, their claim of negligence against the police is not. The law is clear. The police do not owe them a duty of care as the family members of a victim of a potential crime. As the motion judge correctly concluded, it is a category that has already been considered and rejected: see Hill v. Hamilton-Wentworth (Regional Municipality) Police Services Board, 2007 SCC 41 at paragraphs 27 and 45.
[Laskin, Feldman and Miller JJ.A.]
Atinuke Taibat Ojeikere, acting in person
J Long of the Office of the Children's Lawyer, for the children
S Maiato, for the respondent
Keywords: Family Law, Custody and Access, Child Abduction, Jurisdiction, Children's Law Reform Act, R.S.O. 1990, c. C.12, ss. 22-23, Best Interests of the Child, Habitual Residence, Risk of Serious Harm, H.E. v. M.M., 2015 ONCA 813, Convention on the Civil Aspects of International Child Abduction, Article 13(b), Fresh Evidence, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(b)
The respondent, Mr. Ojeikere, contends – and the motion judge found – that a Nigerian court has jurisdiction to decide who should have custody of, and access to, the Ojeikeres' three adolescent children. The appellant, Mrs. Ojeikere, and the Office of the Children's Lawyer ("OCL") both contend that an Ontario court has jurisdiction. This case is not governed by the Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Can. T.S. 1983 No. 35, 19 I.L.M. 1501 (entered into force December 1, 1983), commonly known as The Hague Convention, because Nigeria is not a signatory to the Convention. Thus, the issues on this appeal must be decided under the provisions of Ontario's Children's Law Reform Act, R.S.O. 1990, c. C.12 ("CLRA").
(1) Did the motion judge err in ruling that under s. 22 of the CLRA an Ontario court does not have jurisdiction?
(2) Despite s. 22 of the CLRA, should an Ontario court exercise jurisdiction under s. 23 of the CLRA because the three children are physically present in Ontario and would suffer serious harm if returned to Nigeria?
Holding: Appeal allowed.
(1) No. The motion judge did not err. Section 22 gives an Ontario court two bases to assume jurisdiction and make a custody order: habitual residence of the child in Ontario; or physical presence of the child in Ontario, as long as the other specified requirements of the section are met.
Under s. 22(1)(a) of the CLRA, "a court shall only exercise its jurisdiction to make an order for custody of or access to a child where the child is habitually resident in Ontario at the commencement of the application for the order". The OCL concedes that the Ojeikeres' three children were habitually resident in Nigeria before Mrs. Ojeikere wrongfully took them to Mississauga in August 2016. The OCL also concedes that Mrs. Ojeikere could not change the children's place of habitual residence by abducting them. The Court of Appeal agreed with the OCL's concessions. The Ojeikeres' three children resided with their parents in Nigeria for the five years preceding the court applications. Thus, the children were habitually resident in Nigeria under s. 22(2)(a) of the CLRA. Because the trial judge found that the three Ojeikere children were habitually resident in Nigeria, despite their time in boarding schools and despite their abduction to Ontario, s. 22(1)(a) of the CLRA provides no basis for an Ontario court to assume jurisdiction over the children.
Paragraph 22(1)(b) of the CLRA provides that an Ontario court may assume jurisdiction if six criteria are met. An Ontario court can only exercise jurisdiction under this provision if all six of the enumerated criteria are met. When Mrs. Ojeikere brought her application in Ontario in November 2016, the three children were physically present in Ontario, thus satisfying the first criterion under s. 22(1)(b). The fourth criterion is also satisfied as an Ontario court has not recognized any extra-provincial custody order; indeed none has been made. The OCL put forward evidence to try to satisfy the second, fifth, and sixth criteria: best interests, real and substantial connection, and balance of convenience. Even accepting that the evidence satisfies these three criteria, s. 22(1)(b) affords no basis for an Ontario court to assume jurisdiction because the third criterion cannot be satisfied. An Ontario court cannot assume jurisdiction to make a custody order if at the time of the application in Ontario, an application for custody was pending in another place where the child is habitually resident. In other words, a party cannot ask an Ontario court to assume jurisdiction to avoid proceedings already started elsewhere. Mr. Ojeikere filed a petition for custody of the three children in Abuja, Nigeria three months before Mrs. Ojeikere brought her application in Ontario. At the time Mr. Ojeikere filed his petition, the three children were habitually resident in Abuja. Thus, s. 22(1)(b)(iii) stands as a bar to an Ontario court's jurisdiction.
(2) Yes. Section 23 allows for an Ontario court to assume jurisdiction even if the requirements of section 22 are not met, and it is under that provision that the appeal should be allowed. Despite the motion judge's conclusion on s. 22, an Ontario court should exercise jurisdiction because the children, who are physically present in Ontario, would suffer serious harm if returned to Nigeria. The question whether Mr. and Mrs. Ojeikere's three children would suffer serious harm if they were ordered to return to Nigeria turned almost entirely on the fresh evidence filed on the appeal by the OCL. This evidence was filed in accordance with the order of Miller J.A. The evidence consists of the affidavit of Andrea Jones, an in-house clinician at the OCL, and numerous school records for each of the three children. Under s. 134(4)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, in a civil (or family law) appeal, this court "may, in a proper case ... receive further evidence". The fresh evidence was permitted to allow the court to have up-to-date information about the child and the child's best interests.
Justice Weiler commented on s. 23 in her reasons in H.E. v. M.M., 2015 ONCA 813, 393 DLR (4th) 267. Because the provision is triggered when a child is physically present in Ontario even if the child has been wrongfully brought to this province, s. 23 can override s. 22. Section 22's aim of discouraging child abduction becomes secondary to s. 23's aim of preventing serious harm to the child. As Weiler J.A. wrote at para. 87: "[W]hen there is a risk of serious harm to the child, the aim of discouraging child abduction must yield to another purpose of the CLRA, namely, the best interests of the child." Courts appear largely to have equated the standard of "serious harm" in s. 23 of the CLRA with the standard of "grave risk [of] expos[ing] the child to physical or psychological harm or otherwise plac[ing] the child in an intolerable situation" in art. 13(b) of The Hague Convention. However, the Court of Appeal in this case concluded that the standard of "serious harm" required by s. 23 of the CLRA is less stringent than the standard under art. 13(b) of the Convention.
As important as the meaning of "serious harm" are the factors relevant to its application. Under s. 23, an Ontario court has discretion to refuse to order a child's return to the child's place of habitual residence. That discretion should be structured by a list of relevant factors. The relevant factors will vary from case to case. In some cases, one factor may decisively show "serious harm"; in other cases a combination of relevant factors may do so. In this case, a combination of factors, taken together, give rise to a risk that the three children would suffer serious harm if they are required to return to Nigeria. The factors relied on in this case are particular to its facts, and should not be taken as a list of factors relevant to every s. 23 case. For determining "serious harm" for the Ojeikeres' three children, the potentially relevant factors include:
(i) The risk of physical harm
(ii) The risk of psychological harm
(iii) The views of the children
(iv) Mrs. Ojeikere's claim she will not return to Nigeria even if the children are required to do so
With respect to the first factor, since Mrs. Ojeikere might not return with the children to Nigeria, or at least not full-time, an order returning them to Nigeria must contemplate a return to their father's care. The likelihood that the children would be physically disciplined with objects by their father if returned to his care in Nigeria is high. The likely severity of the harm is at least moderately high. This factor alone weighs heavily in support of a finding of serious harm.
With respect to the second and third factors, the children would likely suffer serious psychological and emotional harm if now forced to return to Nigeria against their will. Overall, the fresh evidence shows that there is a real risk the children would experience a serious letdown in their hopes and aspirations for their futures if, over their objections, they were ordered to return to Nigeria. They would feel angry, sad, and resentful at once again having their lives disrupted.
With respect to the fourth factor, the Court of Appeal gave it no weight. There may be cases where a parent's refusal to accompany the children back to the country of habitual residence could give rise to a serious risk of harm to the children. This case is not one of them. Mrs. Ojeikere lived in Nigeria for five years before abducting the children. Her vague assertion that there is nothing for her in Nigeria does not establish a substantial reason for refusing to return there.
On the basis of the fresh evidence, the Court of Appeal found that on a balance of probabilities, the three children would suffer serious harm if now ordered to return to Nigeria to await a custody and access determination in the Nigerian courts. This conclusion rests principally on the risk of physical harm in the form of physical discipline with objects compounded by the risk of psychological harm arising from these adolescent children's mature views and objections to returning to Nigeria.
B.W. Miller J.A. (Concurring):
Justice Laskin considered the risks of both physical and psychological harm to the Ojeikere children. He concluded that the risk of physical harm in this case "alone weighs heavily in support of a finding of serious harm." Justice Miller agreed. But while Justice Laskin rested his conclusion "principally on the risk of physical harm in the form of physical discipline with objects", he added that the serious harm in this case is "compounded by the risk of psychological harm arising from these adolescent children's mature views and objections to returning to Nigeria". Justice Miller did not agree with this secondary argument. What Laskin J.A. characterized as psychological harm is mere disappointment. Disappointment is not harm, let alone serious harm.
Moreover, Laskin J.A. suggested that the threshold for "serious harm" under the CLRA is lower than for the harm override contained in the Hague Convention. This is a novel argument, and was not advanced by either party or the OCL. Accordingly, the court did not have the benefit of any submissions on the point. Indeed, the OCL took the position that the serious harm standard in the CLRA is equivalent to the standard in the Hague Convention. It would be inappropriate to adopt a new interpretation of the CLRA in these circumstances.
Nevertheless, there is the risk of serious harm from physical mistreatment from their father. The father is not accustomed to living with the children, is easily angered by them, and has a history of striking them with objects when angry. This establishes a serious risk of harm should the children be returned. On this basis alone, the jurisdictional override is engaged and Ontario should exercise jurisdiction to determine custody of and access to the Ojeikere children.
[Simmons, Brown and Fairburn JJ.A.]
Mark Gelowitz, Alexander Cobb and Evan Thomas, for the appellant
Peter H. Griffin, Paul-Erik Veel and Laurel D. Hogg, for the respondents
Keywords: Contracts, Breach of Contract, Damages, Minimum Performance Principle, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, Duty of Good Faith and Honest Performance, Bhasin v. Hrynew, 2014 SCC 71, Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460, Contract Interpretation, Standard of Review, Palpable and Overriding Error, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Commercial Absurdity, Exclusion Clauses, Tercon Contractors Ltd. v. British Columbia (Ministry of Transportation and Highways), 2010 SCC 4
The appellant was awarded a contract with Enbridge Gas Distribution Inc. to set up a new IT platform. The appellant subcontracted with the predecessor of the respondent to provide two services for the project. The installation of the software began on June 2007 but was not completed until September 2009; that is, five months behind schedule. On June 29, 2009, the appellant terminated the subcontract with the respondent for cause. The respondent sued claiming damages for wrongful termination of the subcontract. At trial, the respondent was awarded $6,291,680 plus $3.1 million in costs. The appellant appeals aspects of the damages awarded to the respondent.
(1) Did the trial judge err by failing to apply the minimum performance principle set out in Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, in respect of the data conversion services portion of the parties' contract?
(2) Did the trial judge err in not properly interpreting a formula in the data conversion services portion of the contract?
(3) Did the trial judge err in misinterpreting a limitation of damages clause as it applied to application management support services?
Holding: Appeal allowed, in part.
(1) Yes. Under the subcontract, the appellant was allowed to terminate the contract either "for cause" or "for convenience". Although the appellant had invoked the termination "for cause" provision of the subcontract, pursuant to Open Window Bakery, it was entitled to the benefit of the less burdensome mode of performance of the subcontract offered by the termination "for convenience" clause.
Although the expectancy principle governs the calculation of compensatory damages which are the usual measure of damages for breach of contract, the "minimum performance principle" places a common law limit on the expectancy principle. In cases where the defaulting party has alternative modes of performing the contract, damages are calculated on the basis of the mode of performance that is least burdensome to the defaulting party and least profitable to the non-breaching party. The termination for convenience clause effectively defined the upper limit of the respondent's liability for damages. The damages were therefore reduced from $6,291,680 to $4,947,405.
The application of the minimum performance principle does not depend upon good faith conduct by the breaching party as set out in Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460. Bhasin v. Hrynew, 2014 SCC 71 did not change this law as it did not purport to alter the existing principles concerning the proper measure of expectation damages in the event of a breach of contract.
(2) No. The interpretation of the phrase "for the last milestone preceding the termination" in clause 17.4 of the subcontract raises a question of mixed fact and law and the trial judge's interpretation is entitled to deference. The interpretive principle of commercial efficacy and its corollary, avoiding interpretations that result in a commercial absurdity, are tools used by courts to give accurate meaning to the parties' intentions as stated in a contract. In this case, the trial judge's reasons disclose that he was attentive to the plain language of the clause, the provisions of the subcontract as a whole and the factual matrix from which the subcontract emerged. Given those circumstances, little ground remained on which the appellant can erect an argument based on the trial judge's interpretation given rise to commercial absurdity.
(3) No. The trial judge followed the test set out in Tercon Contractors Ltd. v. British Columbia (Ministry of Transportation and Highways), 2010 SCC 4, and first considered whether the exclusion clause would even apply to the circumstances. The trial judge concluded that the limitation of liability clause did not apply to the damages for loss of profit on this subcontract. The limitation of liability clause only excluded indirect loss of profits (ie. on other work or contracts). The trial judge gave a considered, detailed and context-sensitive explanation about how he arrived at his interpretation of this clause and his analysis is not marked by a rare extricable error of law or palpable and overriding errors of facts. For this reason, his decision should on this issue should stand.
[MacFarland, LaForme and Epstein JJ.A.]
W J Macintosh, for the appellant
N M Leon, for the respondent
Keywords: Corporations, Not-for-Profit Corporations, Oppression, Canada Not-ForProfit Corporation Act, SC 2009, C. 23, Limitation Periods, Limitations Act, 2002, S.O. 2002, C. 24
The appellant is a member of the respondent not-for-profit corporation. In 2013, the appellant unsuccessfully campaigned to be elected to the Board of Directors of the respondent. Statements the appellant made during his campaign have spawned a number of legal proceedings between the appellant and respondent. Effective May 22, 2014, the respondent amended bylaw 2016-1 (the "Bylaw") to provide that no member involved in litigation with the Board would be eligible for nomination, election or appointment to the Board.
The appellant has challenged the Bylaw in a number of ways, the most recent being this application under s. 253 of the Canada Not-For-Profit Corporations Act, S.C. 2009 C. 23, for a declaration that the Bylaw is oppressive, unfairly prejudicial, and unfairly disregards his interests as a member of the respondent. The applications judge dismissed the application as out of time pursuant to the Limitations Act, 2002, S.O. 2002, C. 24.
(1) Did the applications judge err in dismissing the claim as being out of time?
(1) On appeal, the appellant argued that the application judge erred in concluding that he did not have the power to postpone the upcoming election for the respondent's Board of Directors. The appellant claimed that this order would have given him time to adduce further evidence on the application. The appellant did not file transcripts of the proceeding and instead relied on an affidavit he swore in January. The affidavit is not evidence that the application judge refused to make such an order. Moreover, the application judge noted in his reasons that the appellant was content to proceed with his argument on the record before the court. There was no error or unfairness in the application judge's decision to proceed with the application and determine the limitations issue on the basis of the record before him. The appeal was therefore dismissed.
Bradley Teplitsky, for the moving parties
Katherine L. Kay, for the responding parties
Kevin Donovan, in person for the intervener Toronto Star Newspapers Ltd.
Keywords: Civil Procedure, Sealing Orders, Solicitor-Client Privilege, Personal Health Information, Sierra Club v. Canada (Minister of Finance), 2002 SCC 41, Litigation Guardians
The moving parties, who are two of the appellants in this appeal, have brought a motion for:
(i) an order appointing the Office of the Public Guardian and Trustee (the "OPGT") as litigation guardian for the third appellant, KW;
(ii) if necessary, an order requiring KW to attend for a mental examination by a health practitioner;
(iii) in the alternative, an order removing Bradley Teplitsky as counsel of record for KW;
(iv) an order extending the time to perfect the appeal; and
(v) an order that the evidence filed on the motion concerning KW's mental health be treated as confidential, sealed, and not form part of the public record.
On the return date, the moving parties sought to protect the confidentiality of certain information contained in the affidavits and Exhibit A to the March Affidavit. KW and the OPGT did not attend. Mr. Teplitsky advised the court that KW supported the motion, and that the OPGT was taking no position.
Issues: The moving parties raise two confidentiality concerns in respect of the affidavits of KW:
(1) Should passages that disclose solicitor-client communications between KW and Mr. Teplitsky be removed or redacted?
(2) Should passages of the affidavits that disclose personal information about KW's mental health, confided for the purpose of seeking the appointment of a litigation guardian, be removed or redacted?
(3) Should a confidentiality order be issued?
Holding: Motion granted, in part.
A sealing or confidentiality order should only be granted when the following test has been met (Sierra Club v. Canada (Minister of Finance), 2002 SCC 41):
(a) such an order is necessary in order to prevent a serious risk to an important interest, in the context of litigation, because reasonable alternative measures will not prevent the risk (the "necessity" branch); and
(b) the salutary effects of the order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression which includes the public interest in open and accessible court proceedings (the "proportionality" branch).
The court must consider whether something less than a sealing or confidentiality order would be sufficient in the circumstances and, if such an order is made, must ensure that it is not overly broad.
(1) Solicitor-Client Communications: Yes. Mr. Teplitsky identified certain passages that he asked the court to redact for all purposes. He advises that the moving parties will not be relying on such evidence in support of the motion to appoint a litigation guardian for KW. The respondents and the intervener agreed to the redactions of solicitor-client communications on this basis. They asked the court, however, to exercise appropriate caution in redacting only narrowly-defined, actual solicitor-client communications.
Solicitor-client communications are routinely protected from disclosure in litigation, including in particular solicitors' affidavits for removal from the record and in support of an order to appoint a litigation guardian. Redaction or expungement of confidential information from the court record for all purposes can be a reasonable alternative. That is what Mr. Teplitsky was requesting in connection with the passages in the affidavits covered by solicitor-client privilege.
(2) Personal Health Information: Yes. The request being made was not to expunge the information from the court record, but to protect it from disclosure. The moving parties sought to rely on this information in support of the motion for a litigation guardian, but they did not want any of it disclosed to the public, or even to the respondents or the respondents' counsel.
The first branch of the test, referred to as the "necessity" branch, requires the risk to the interest sought to be protected by the confidentiality order to be real and substantial. The risk must be "well-grounded in the evidence" and pose a serious threat to the interest in question. The interest cannot be merely specific to the party requesting the confidentiality order, but "one which can be expressed in terms of a public interest in confidentiality".
The issue to be determined is the person's capacity at the time the order is considered. In this case, KW has consented to an assessment to determine whether he "is unable to understand information relevant to making a decision in respect to an issue or issues in the appeal or is unable to appreciate the reasonably foreseeable consequences of a decision or lack of decision". The focus of the assessment is on whether KW currently has capacity to participate in the appeal and to instruct counsel. As such, the court need not rely on what JW states in her February Affidavit about her knowledge of KW's medical history and past diagnosis. This information can be redacted or expunged for all purposes, as a reasonable alternative to a confidentiality order.
(3) Confidentiality Order: No. It is relevant as observational evidence from someone who knows the litigant well, and the court was not satisfied on the evidence in this case that the moving parties have discharged their burden in respect of the "necessity" part of the test for the protection of such evidence. The passages in question consist of JW's personal observations of her brother-in-law and inform her opinion as a layperson that he is under a disability and requires a litigation guardian. They do not contain any diagnosis or any other opinion of a medical practitioner, nor do they refer to communications between KW and a medical practitioner, which might give rise to more specific confidentiality concerns.
The references to the appellant, JB's health and KB's affidavit are unnecessary and irrelevant to the motion for the appointment of a litigation guardian for KW.
The court directed that certain portions of certain affidavits be redacted and no longer form part of the court record in the litigation, on the motion or for any other purpose.
[Pepall, Roberts and Miller JJ.A.]
Vito Auciello, acting in person
Onofrio Ferlisi, for the respondent CIBC Mortgages Inc. previously carrying on business as 3877337 Canada Inc.
Amanda Jackson, for the respondent Home Trust Company
Keywords: Real Property, Commercial Lending, Mortgages, Commitment Letters, Conditions, Appraisals, Breach of Contract, Negligence, Bad Faith, Civil Procedure, Summary Judgment, Adjournments
The appellant appeals from the order of C. Brown J., granting summary judgment to the respondents and dismissing the appellant's action against them. The respondent, CIBC Mortgages Inc., previously carrying on business as 3877337 Canada Inc. ("387"), is a mortgage broker that arranges mortgages for clients with financial institutions. The appellant advised 387's representative that he wished to refinance adjoining commercial properties, which he believed to be worth $1.2 million, with a new first mortgage of $600,000. 387's representative suggested Home Trust Company ("Home Trust") as a potentially suitable lender but indicated that a property appraisal would be required. Subsequently, the appellant advised 387's representative that the properties were owned by Network Cash Mart Ltd. ("Network"). Ultimately, the appellant executed a Home Trust mortgage commitment letter in Network's name as mortgagor and his name as guarantor. The commitment was subject to certain conditions, including an appraisal reflecting a minimum property value of $1.2 million.
The first appraiser advised that a $1.2 million was unrealistic but did not compile an appraisal report. The motion judge found that this was a courtesy to the prospective mortgagor so that it would not be charged for an appraisal report that did not meet the commitment requirement. A second appraiser also declined to complete an appraisal because the valuation was unrealistic.
To assist the appellant, Home Trust asked the first appraiser to complete an appraisal report. The appraisal confirmed an as-is value of $600,000 and a value if complete of $665,000. Based on this appraisal, Home Trust provided a new commitment for mortgage financing of $390,000, subject to certain conditions. The appellant did not accept the new commitment. The first commitment's $1.2 million appraisal condition remained unfulfilled, and the financing did not proceed.
The appellant then commenced proceedings against 387 and Home Trust for breach of contract and various other causes of action. Among other things, he alleged that they mishandled the appraisal process, caused undue delay, and failed to act in good faith. The motion judge concluded that the appellant had no cause of action as the property was owned by a corporation and not by the appellant, and in any event, no damages were caused by the respondents.
(1) Did the motion judge err in not granting the self-represented party an adjournment?
(2) Did the motion judge err in her finding relating to the value of the property, and determining the appellant failed to prove any damages?
Held: Appeal dismissed.
(1) No. An adjournment would have made no difference to the outcome, and in any event, none was requested of the motion judge.
(2) No. There was no reliable evidence that the property had a value of $1.2 million or that the appraised value of $600,000 was wrong. In this regard, it was open to the motion judge to discount the MLS posting prepared and posted by the appellant as being self-serving. Fundamentally, the property did not have an appraised value of $1.2 million, and as such, no mortgage financing was available.
As the motion judge concluded, there was no obligation on the part of either respondent to secure the amount of the loan sought by the appellant. The evidence revealed no act or omission by the respondents that caused any loss or damages. The motion judge properly concluded that there was no genuine issue requiring a trial.
[MacFarland, Huscroft and Nordheimer JJ.A.]
Jeffrey Strype and Mark De Sanctis, for the appellant
Gordon Jermane and Veronica Mohan, for the respondent
Keywords: Contracts, Policies of Insurance, Interpretation, Coverage, Long Term Disability, Standard of Review, Correctness, Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, Timely Notice of Claim, Relief from Forfeiture, Insurance Act, R.S.O. 1990, c. I.8, Courts of Justice Act, R.S.O. 1990, c. C.43
This is an appeal from a trial judgment holding that the appellant, Lenard MacIvor, as a former employee of Pitney Bowes, had no coverage for his claim under the long term disability policy of the Manufacturers Life Insurance Company (the "Manulife Policy").
The appellant suffered a traumatic brain injury and a severe back injury during a company sponsored event in Costa Rica on April 16, 2005. He was unaware of the permanent and disabling nature of his brain injury until after he had resigned his employment with Pitney Bowes on August 11, 2008. Within days he took up employment with Samsung to perform a role similar to the one he held at Pitney Bowes before his accident. However, the difficulties he had experienced in job performance before leaving Pitney Bowes soon became apparent and he was fired from Samsung in August 2009.
It is apparent from the medical evidence that the appellant was, for a long time, unaware of the seriousness of his brain injury and in particular the permanent nature of that disability.
The parties agree the appellant meets the qualification for disability benefits as set out in the Manulife Policy. The respondent agrees that it received sufficient notice of the claim in April 2005.
The respondent argues however, that: "[h]e had access to [Long Term Disability] benefits if he applied while he was employed and, therefore, covered. Once he was outside of this coverage and/or failed to meet the Policy's terms, he no longer had entitlement to claim"; and that "[t]he policy indicates that coverage ends when employment ends."
The trial judge accepted this argument and dismissed the claim for coverage for LTD benefits.
(1) Is the appellant, as a former employee of Pitney Bowes, entitled to coverage under the Manulife Policy?
(2) Did the appellant submit timely proof of his claim?
(3) Does the one-year contractual limitation period in the policy bar the appellant's claim?
Holding: Appeal allowed.
As a preliminary note, the standard of review of a standard form insurance policy is correctness: Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37.
(1) Yes. The respondent's position was that the Manulife Policy provides for coverage only during employment and that coverage ended when the appellant resigned from his position on August 11, 2008.
The Court held that the language of the Manulife Policy when considered as a whole is clear; it means only that coverage does not continue when an employee begins working for another employer or after the employee has retired. The "Termination of Coverage" language relates to future claims, not claims that may have arisen during the course of the employee's employment. In other words, if an employee's claim arises as the result of an occurrence that takes place during their employment, the policy provides coverage. The additional words "unless continuation of coverage is provided under the Extension of Coverage provision" supported this conclusion.
(2) Yes. The policy required that proof of claim be filed "within 90 days of the date benefits would begin". Benefits would begin only when an employee was no longer receiving employment income. The appellant's proof of claim was filed September 9, 2010. Based on the date of termination and the package that the appellant received from Samsung, the proof of claim was provided some 10 days after the required 90-day contractual period.
The Court held that it would be unfair to permit the imperfect compliance with the 90-day contractual period to defeat the appellant's claim in the particular circumstances of this case. The appellant was injured during his employment when he was covered by a Long Term Disability policy, but did not appreciate the significance of his injury during his employment. His employer and the insurer were aware that he had suffered a serious injury that included a brain injury at the outset. Therefore, the court held that it was in the interests of justice to grant relief from forfeiture in this case under the Insurance Act, R.S.O. 1990, c. I.8 or the Courts of Justice Act, R.S.O. 1990, c. C.43, even though such relief was not specifically requested.
(3) No. The respondent alternatively relied on the one-year limitation period set out in the Manulife Policy to say that, in any event, the claim was out of time. Even on the appellant's evidence, he became aware of his ability to claim in August 2009. Accordingly, if the one-year contractual limitation period began tolling on that date, the claim issued in April 2011 is out of time. The court rejected this argument. It is arguably unclear whether the policy language required the appellant to commence his action within one year of November 1, 2010, the date that Manulife denied the claim, or whether the one-year period ran from September 9, 2010, the actual date the proof of claim was submitted. Because the statement of claim was issued on April 11, 2011, the court held that it was not necessary to resolve that question because regardless of how the one-year contractual period was to be calculated, it was in time on the facts of this case.
[Benotto, Brown and Miller JJ.A.]
D D'Urzo, for the appellant
D Zulianello, for the respondents
Keywords: Torts, Negligence, Occupier's Liability, Occupiers' Liability Act, R.S.O. 1990, c. O.2, s. 3(1), Mahe v. Boulianne, 2010 ABCA 32, Summary Judgment
The respondents, Christopher and Jasmine Watkins, hired the appellant, Tony Osmond, to complete the construction of a two-story front porch at their residence. The appellant fell from the roof of the porch while performing the work and was seriously injured. The appellant sued the respondents alleging negligence, breach of duty of care, and breach of their duty under s. 3(1) of the Occupiers' Liability Act, R.S.O. 1990, c. O.2, to "take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises." His primary allegation was that the respondent homeowners, as the occupier of the premises on which the construction work was performed, were negligent in failing to provide him with safety equipment. The respondents moved for and obtained summary judgment dismissing the appellant's action. The appellant appeals.
(1) Did the motion judge err in concluding that there were no genuine issues requiring a trial?
Holding: Appeal dismissed.
(1) No. The motion judge adopted, as the applicable standard of care in the circumstances, that stated by the Alberta Court of Appeal in Mahe v. Boulianne, 2010 ABCA 32, at paras. 11, 12 and 15. The appellant does not submit the motion judge erred in adopting those principles, nor does he point to any other case that sets a different standard of care for such circumstances. Rather, the appellant contends the motion judge made two fact-related errors: (i) he determined the case in the face of contested material facts; and (ii) he made palpable and overriding errors of fact. The errors, according to the appellant, relate to the issue of whether the appellant or the respondents controlled and directed the renovation work.
The Court of Appeal was not persuaded by the appellant's submissions. The motion judge made several key findings of fact: (i) there was no evidence the appellant's fall was caused by any defect in or lack of repair affecting the premises or any hazardous conditions associated with the premises themselves; (ii) there was no dispute the appellant was performing the renovation work for valuable consideration; (iii) there was no basis for a contractual claim that the respondents had failed to furnish the appellant with safety equipment; (iv) there was no evidence the appellant was inexperienced in performing roofing work or working at heights; and (v) the evidence did not support a finding that the respondents were aware the appellant lacked the necessary experience to carry out the project. The appellant did not persuade the Court that any of those key findings amounted to a palpable and overriding error of fact or required a full trial before they could be made. Accordingly, the motion judge did not err in deciding the case by way of a summary judgment motion.
[Hoy A.C.J.O., Huscroft and Paciocco JJ.A.]
David Sherriff-Scott and Karen Perron, for the appellants
John H. Yach, for the respondent
Keywords: Torts, Defamation, Libel, Defences, Fair Comment, Costs, Reasonableness
The respondent companies, Walsh Energy Inc. ("Walsh") and Waltek Energy Services Inc. ("Waltek"), both controlled by the same person, brought an action against the Better Business Bureau (BBB) in defamation. In 2007, the BBB changed Walsh's website rating from "satisfactory" to "unsatisfactory". In January 2009 the BBB adopted a new rating system which generated a grade of "B" for Waltek and "D-" for Walsh and posted these grades on the BBB website. Walsh and Waltek sued the BBB claiming that the grades posted on the BBB website caused substantial damages. At trial, the judge found that the postings were not defamatory.
The companies appealed to the Divisional Court. Waltek abandoned its appeal prior to the hearing. The Divisional court allowed Walsh's appeal concluding that the "D-" grade was defamatory and ordered a new trial on the issues of fair comment, malice and damages. BBB appealed. Walsh cross-appealed, arguing that a new trial was not necessary and the factual record allowed an appellate court to decide all the issues.
(1) Did the Divisional Court err in determining that the impugned publication was defamatory?
(2) Did the Divisional Court err in ordering a new trial on the issue of fair comment?
(3) Should the trial judge's award of partial indemnity costs in the amount of $348,135.96 be set aside?
Appeal allowed. Cross-appeal allowed, in part.
(1) No. The Divisional Court properly concluded that the trial judge erred in principle by failing to make a finding as to the plain and ordinary meaning of the grade. The focus of the trial judge's analysis was on the context in which the grade was assigned and its connection to the prior "unsatisfactory" rating Walsh received. The context in which words are used is relevant to determining meaning. But it need not be established that an impugned statement is worse than prior statements made by a defendant in order for that statement to be defamatory. The plain and ordinary meaning must also be considered. It was open to the Divisional Court to find that the plain and ordinary meaning of the "D-" grade the BBB assigned to Walsh was defamatory.
(2) Yes. As per WIC Radio v. Simpson, 2008 SCC 40, a defendant claiming fair comment must satisfy the following test: the comment must be on a matter of public interest; the comment must be based on fact; the comment, though it can include inferences of fact, must be recognisable as comment; the comment must satisfy the objective test that any person could honestly express that opinion on the proved facts. The plaintiff can defeat this defence if it proves that the defendant was actuated by express malice. It was open to the Divisional Court to determine whether the fair comment defence was satisfied on the record before it and the court ought to have done so rather than remit the matter for new trial.
The issue of determining whether there was a factual basis for the BBB's opinion is not so complex that it requires a new trial. The factual basis for the opinion is clearly set out in the record: that Walsh refused to address a customer's complaint through BBB mediation.
The issue of whether a person could honestly express the opinion can also be resolved without a trial. The requirement that the opinion could be honestly held does not require to assess whether the comment is a reasonable and proportional response to the stated or understood facts. It cannot be said that no one could honestly hold the opinion that a grade of "D-" is not appropriate based on the proved facts.
The D- grade was an opinion that could honestly have been expressed on the proved facts. Put another way, it cannot be said that no one could honestly hold that opinion. This was sufficient to satisfy, in the general terms required, the fourth branch of the fair comment test. Accordingly, there was no reason to remit the matter for new trial. The fair comment defence was established.
The finding of the trial judge that there was no malice must be upheld because the trial judge correctly stated the applicable test and considered arguments of the parties. The trial judge reached a conclusion that was open to him on the record.
The main appeal by BBB was therefore allowed, the main cross-appeal by Walsh was dismissed, and the trial judge's order dismissing the action was restored.
(3) Yes. The court should set aside a costs award on appeal only if the trial judge has made an error in principle or if the costs award is plainly wrong: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9,  1 S.C.R. 303, at para. 27. As the court held in Boucher v. Public Accountants Council for the Province of Ontario (2004) 71 O.R. (3d) 291 at para. 37, the overriding principle in assessing costs is the reasonableness of the costs award: "[t]he failure to refer, in assessing costs, to the overriding principle of reasonableness, can produce a result that is contrary to the fundamental objective of access to justice." The assessment of costs is not purely mathematical exercise, but should reflect what is fair and reasonable in all of the circumstances: Clarington (Municipality) v. Blue Circle Canada Inc., 2009 ONCA 722 at para. 52
The costs awarded by the trial judge are considerable in the context of a defamation action. They are also grossly disproportionate to the costs incurred by the appellant in bringing this action. Counsel for the BBB billed over three times as many hours in defending this action as the appellant's counsel billed in bringing it. Walsh could not reasonably have expected that it would be faced with costs award of this magnitude. The trial judge failed to consider the fairness and reasonableness of the costs awarded and did not provide an adequate justification for the striking disparity in the costs incurred by the parties. The result is a costs award that is contrary to the fundamental objective of access to justice. The cross-appeal on costs was allowed and the costs were reduced by roughly half, from $348,135.96 to $175,000.
[Pepall, Roberts and Miller JJ.A.]
Joanna Weiss, for the appellant
David Litwin and Nada Nicola-Howorth, for the respondent
Keywords: Endorsement, Adjournment
[Benotto, Brown and Miller JJ.A.]
Darrell George Hails, acting in person
Cristina Internicola, for the respondent
Keywords: Real Property, Mortgages, Summary Judgment, Fresh Evidence
[Pepall, Pardu and Miller JJ.A.]
Joseph J. Neal, for the appellant
Catherine Francis, for the respondent DUCA Financial Services Credit Union Ltd.
Sean Dewart and Brett Hughes, for Martin Rumack
Keywords: Civil Procedure, Limitation Periods
[Laskin, Sharpe and Fairburn JJ.A.]
Shaun Laubman and Laura M. Wagner, for the appellants
Peter Mantas and Tala Khoury, for the respondent
[MacFarland, LaForme and Epstein JJ.A.]
Paul Duncan Reilly, acting in person
Kathryn A. Junger, for the respondent
Keywords: Family Law, Spousal Support, Child Support, Jurisdiction, Family Law Act, R.S.O. 1990, c. F.3, Courts of Justice Act, R.S.O. 1990, c. C.43, Christodoulou v. Christodoulou, 2010 ONCA 93
[Doherty, LaForme and Paciocco JJ.A.]
Erin Dann and Dan Stein, for the appellant
Amy Alyea, for the respondent
Keywords: Criminal Law, Sexual Assault, Unlawful Confinement, Uttering a Death Threat, Sentencing, Dangerous Offender, Canadian Charter of Rights and Freedoms, ss. 7 and 11(d), Criminal Code, ss. 650(1), 686, 758(1), R. v. Caine, 2003 SCC 74, Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, Baker v. Canada (Minister of Citizenship & Immigration),  2 S.C.R. 817, R. v. Boutilier, 2017 SCC 64, R. v. Kankis, 2012 ONSC 378, R. v. Johnson, 2003 SCC 46
[Hoy A.C.J.O., MacPherson and Juriansz JJ.A.]
Robert Sheppard, for the appellant
Peter M. Campbell, for the respondent
Keywords: Criminal Law, Drug Trafficking, Unlicensed Possession of a Firearm, Sentencing
[Feldman, Roberts and Trotter JJ.A.]
Mark Halfyard, for the appellant
Matthew Asma, for the respondent
Keywords: Criminal Law, Aggravated Assault, Assault with a Weapon, Sentencing
[Doherty, Rouleau and Miller JJ.A.]
Scott C. Hutchison and Ben Rogers, for the appellant
R.W. Hubbard, for the respondent
Keywords: Criminal Law, Robbery, Evidence, Admissibility, Text Messages, Canadian Charter of Rights and Freedoms, ss. 10 & 24, Criminal Code, s. 487, Telus Communications Company v. The Queen, 2013 SCC 16, R. v. Jones, 2017 SCC 60, R. v. Spencer, 2014 SCC 43, R. v. Pino, 2016 ONCA 389, R. v. Wittwer, 2008 SCC 33, R. v. Harris, 2007 ONCA 574, R. v. Grant, 2009 SCC 32
[Benotto, Roberts and Trotter JJ.A.]
Gerri Wiebe, for the appellant
Kevin Rawluk, for the respondent
Keywords: Criminal Law, Sexual Assault
[Laskin, Trotter and Fairburn JJ.A.]
Lance C. Beechener and Alexander M. Ostroff, for the appellant
Shawn Porter, for the respondent
Keywords: Criminal Law, Murder, Jury Charge, Criminal Code, ss. 21, 229, & 686, R. v. Moo, 2009 ONCA 645, R. v. Martineau,  2 S.C.R. 633, R. v. Cooper,  1 S.C.R. 146, R. v. McIntyre, 2012 ONCA 356, R. v. Daley, 2007 SCC 53, R. v. S.(W.D.),  3 S.C.R. 521, R. v. Jaw, 2009 SCC 42
[Watt, Brown and Huscroft JJ.A.]
Anita Szigeti, for the appellant Ali Amini
Susan Magotiaux, for the respondent the Attorney General of Ontario
Gavin S. MacKenzie, for the respondent Person-in-Charge, Centre for Addiction and Mental Health
Keywords: Criminal Law, Mental Disorder, CAMH, Threat to Public Safety, Winko v. British Columbia (Forensic Psychiatric Institute),  2 S.C.R. 625
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