Canada: Court Of Appeal Summaries (July 30-August 3)

Last Updated: August 9 2018
Article by John Polyzogopoulos

There were only three substantive civil decisions released by the Ontario Court of Appeal this week.

In Ontario Medical Association v. Ontario (Information and Privacy Commissioner), the Toronto Star requested access to information from the Ministry of Health and Long-Term Care pursuant to the Freedom of Information and Protection of Privacy Act. The newspaper wanted to know the names of the top 100 physician billers to OHIP and their area of specialty. The OMA resisted the request on the basis that the names of the doctors was "personal information". The court upheld the Privacy Commissioner's decision to release the information, finding it not to be "personal information". In doing so, the court confirmed that administrative tribunals are not bound by stare decisis.

In a 2-1 decision in Janicek v Janicek (van Rensburg dissenting), the court upheld the application judge's interpretation of a will that left it to the estate trustees to determine to whom a farm property should be sold.

In 58 Cardill Inc v Rathcliffe Holdings Limited, the court upheld the trial judge's interpretation of a three-month interest prepayment provision in a mortgage that was enforced through a receiver. The mortgagee was not entitled to the three months' interest.

There were also several criminal law decisions.

CIVIL DECISIONS

Ontario Medical Association v. Ontario (Information and Privacy Commissioner), 2018 ONCA 673

[Hoy A.C.J.O., Rouleau and Benotto J.J.A.]

Counsel:

Joseph Colango and Jennifer Gold, for the Ontario Medical Association

Chris Dockrill, for Several Physicians Affected Directly By the Order

Linda Galessiere, for Affected Third Party Doctors

Paul Shabas, Iris Fischer and Skye Sepp, for T. B.

William Challis, for the Information and Privacy Commission of Ontario

Keywords: Administrative Law, Stare Decisis, Privacy Law, Freedom of Information, Personal Information, Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, ss 2, 21, Order PO-2225; Ontario (Rental Housing Tribunal), [2004] O.I.P.C. No. 8

Facts:

A reporter for the Toronto Star requested access to information from the Ministry of Health and Long-Term Care (the "Ministry") pursuant to the Freedom of Information and Protection of Privacy Act (the "Act"). She sought access to the names of the top 100 physician billers to the Ontario Health Insurance Program ("OHIP") for the 2008 to 2012 fiscal years and a breakdown of the physicians' medical specialties and the dollar amounts billed. An adjudicator assigned by the Information and Privacy Commissioner directed the Ministry to disclose the physicians' names, the amounts billed and the physicians' fields of specialization. The Ontario Medical Association and two groups of physicians appealed, arguing that a physician's name is "personal information" and thereby exempt from disclosure by s. 21(1) of the Act.

In analyzing whether the records at issue constituted personal information, the Adjudicator applied the two-step test set out in Order PO-2225; Ontario (Rental Housing Tribunal): (1) In what context do the names of the individuals appear? (2) Is there something about the particular information at issue and, if disclosed, would reveal something of a personal nature about the individual?

At the first step, the Adjudicator determined that the context was the provision of medical services and that this was a professional activity because the submitting of bills to OHIP, and receiving payment, occurred in a context removed from the personal sphere. At the second step, the Adjudicator concluded that the information did not reveal something of a personal nature about the physicians. The payments were received in relation to a business and the amounts billed do not reflect actual personal income.

The appellants submit that the Adjudicator's application of the test was unreasonable because: (i) he departed from long-standing IPCO decisions concluding that physicians' names are personal information and therefore did not apply stare decisis; (ii) he failed to consider a report prepared for the Minister of Health and Long-Term Care (the "Cory Report"), which resulted in amendments to the Health Insurance Act; (iii) he failed to consider Charter values; and (iv) the presumption of prejudice in s. 21(3) of the Act makes it clear that disclosure of a name in conjunction with an individual's finances is prohibited.

Issues:

Did the Adjudicator err in determining that the requested information did not constitute "personal information" within the meaning of s. 2(1) of the Act?

Holding: Appeal dismissed.

Reasoning:

No. Tribunals are not bound by stare decisis. The Adjudicator did not ignore the previous IPCO decisions but observed that there was a split and addressed this dichotomy. With respect to the Cory Report argument, this was put forth for the first time on appeal. It was not provided to the Adjudicator, nor argued before him. Regardless, it did not assist with the determination of the appeal. With respect to the Charter values argument, when it comes to interpreting a statute, Charter values are only considered in circumstances of "genuine ambiguity". The Act is far from ambiguous and builds into it the balancing of access to information against the protection of privacy. The Court of Appeal dismissed the appellants' last argument stating that billing information is not personal information as per s. 2(1) and it does not describe an individual's finances or income.

Janicek v Janicek, 2018 ONCA 679

[Hoy ACJO, van Rensburg and Pardu JJA]

Counsel:

JD Skinner, for the appellant

G Charlton, for the respondents

Keywords: Wills and Estates, Wills, Interpretation

Facts:

The trustees of the estate of the testatrix brought an application for advice and directions with respect to the construction of her will dated August 12, 2011.

In para. 4(d) of her will, the testatrix directed that her Trustee obtain an appraisal as to the fair market value of the farm known as the "Home Farm" as at the date of her death, as soon as possible after the date of her death. The paragraph further provides that:

It is my wish that this home farm be kept within the Janicek family if possible. In accordance with that wish if any of my children, or a combination of the same, shall wish to purchase the said farm, they may do so at 75% of the appraised fair market value provided that they enter into an Agreement of Purchase and Sale with my Trustee within one year from my date of death with a closing date no longer than 60 days from the date of the Agreement of Purchase and Sale. In the event that none of my children, or combination of same, have agreed to purchase the said farm, within the prescribed time, the same shall be sold by my Trustee at a price to be determined by my Trustee in his sole and unfettered discretion.

Paragraph 4(d) further provides that the proceeds are to be distributed to the children in the unequal shares set out in para. 4(d).

As of the first anniversary of the testatrix's death, the trustees had received competing offers from four children to purchase the farm for 75% of its appraised value. The trustees and AJ had been willing to offer the purchase the farm in combination with the appellant, JJ, but the appellant wished to purchase the farm on his own. In the end, each of the four children submitted individual offers. The appellant is the only one of the children who farms full time for a living and had remained farming on the property since the death of the testatrix.

Because they were uncertain as to which offer to accept, the trustees did not conclude an Agreement of Purchase and Sale with any of the children within one year of the testatrix's death and brought an application for advice and directions regarding the sale of the farm and for an order for vacant possession of the portion of the farm previously leased to the appellant.

The application judge found that the testatrix's intention as to what should occur if there were competing offers from the children made within the prescribed time could not be ascertained. He ordered that the trustees are at liberty to sell the farm "to whomever they choose and at a price they determine, in their sole and unfettered discretion". The application judge further ordered that the proceeds should be distributed among the children in unequal shares, as provided for in para. 4(d) of the will. Finally, he ordered that the appellant was required to deliver vacant possession to the trustees.

The appellant appealed on three grounds.

Issues:

(1) Did the application judge err in finding that the trustees, AJ, and the appellant JJ had not concluded an agreement to purchase the farm together at 75 per cent of the appraised price in the form of the "Memorandum of Understanding" ("MOU") signed after the proceedings were commenced?

(2) Did the application judge err in not finding that the trustees had acted unreasonably and therefore the appellant should be allowed to buy the farm?

(3) Did the application judge err in making the order in the face of frustration by the trustees of the sale to the appellant?

Holding: Appeal dismissed.

Reasoning (Majority):

(1) No. It is not clear that the appellant sought an order before the application judge requiring the sale of the farm in accordance with the MOU. In any event, the application judge essentially found that the MOU was an "agreement to agree" and that parties were unable to negotiate the remaining details of the MOU because the appellant reverted to his original position that he alone should be able to purchase and own the farm.

(2) No. The conduct of the appellant, and not that of the trustees, was the reason an agreement was not concluded.

(3) No. The appellant did not assert a claim that the trustees had breached their fiduciary duty for the alleged frustration. In any event, on this record, the majority was not persuaded that the trustees consulted with the other children for the purpose of frustrating the appellant's objective of purchasing the farm. The will expressly contemplates that a combination of children may purchase the farm and does not give preference to the appellant. It was reasonable and appropriate for the trustees to consult with the other children and not simply invite the appellant to submit an offer that complied with the will and conclude an agreement of purchase and sale with him.

Dissent (van Rensburg J):

(1) No. Agreed with majority.

(2) No. Agreed with majority.

(3) Yes. There are two fundamental problems with the application judge's reasoning that van Rensburg J characterized as reversible errors.

The first is the application judge's failure to address the appellant's arguments and to resolve the question of whether the estate trustees attempted to frustrate the appellant's purchase of the farm. The application judge did not give consideration to the appellant's argument that the individual "competing offers" were advanced at the final hour only to frustrate his attempt to purchase the farm, and should not have been considered by the estate trustees, acting in accordance with their fiduciary duties. Instead, the application judge proceeded on the explicit assumption that there were competing offers that were validly made and in accordance with the will.

The second is that the application judge identified, but did not apply, the "armchair rule" (where the court considers indirect evidence relating to the surrounding circumstances at the time of execution of the will) to determine the testatrix's intention if there were competing offers within a year of her death. It was important for the application judge to use the means at his disposal, including the evidence of surrounding circumstances, to attempt to give meaning to the first part of para. 4(d) of the will, before permitting the estate trustees to proceed with a sale in their discretion under the second part. This is especially the case given the wish of the testatrix for the farm to remain in the family.

There were other errors in the application judge's recitation of the facts and analysis that, while not palpable and overriding, cast doubt on his disposition of the application:

– The application judge misidentified the competing offers as an offer by the appellant and an offer by the estate trustees and AJ jointly. There was no joint offer; the competition was between four individual offers.

– The application judge referred to a sale by the estate trustees at "a price to be determined by [them] in their sole and unfettered discretion" as a sale on the open market, and stated that it is only if a sale is "on the open market" that the proceeds would be shared in the percentages set out in para. 4(d). Para. 4(d) simply provides for the proceeds to be distributed to the children in the specified unequal shares; this provision would apply to any sale, whether or not at the discounted amount.

– It was an error for the application judge to decide the application based on an argument not raised by any party, that the first appraisal (for $1.3 million) was "invalid". The estate trustees commissioned the first appraisal which valued the farm in December 2012, and not at the date of the testatrix's death two months earlier. They obtained a second appraisal (for $1.7 million), not because of the incorrect date, but because they thought the first appraisal was too low, and they did not provide the second appraisal to the appellant until the one year had passed. There is nothing to suggest that the different appraisals depended on their effective dates two months apart. The estate trustees did not base their own offers on the second appraisal, and quite properly they did not argue on the application that the first appraisal was invalid.

58 Cardill Inc v Rathcliffe Holdings Limited, 2018 ONCA 672

[Feldman, Hourigan and Brown JJ.A.]

Counsel:

Robert Choi, for the appellant

Richard Worsfold, for the respondent

Keywords: Contracts, Debtor-Creditor, Real Property, Mortgages, Interpretation, Early Repayment, Three Months' Interest, Receiverships, Agency, Peat Marwick Ltd v Consumers' Gas Co (1980), 29 OR (2d) 336, Sperry Inc v Canadian Imperial Bank of Commerce (1985), 50 OR (2d) 267

Facts:

The appellant, Rathcliffe Holdings Limited ("Rathcliffe"), loaned money to the respondent, 58 Cardill Inc. ("Cardill"), secured by a mortgage on a development property (the "Mortgage"). Cardill defaulted on the loan. Rathcliffe appointed a receiver, who sold the property and paid part of the sale proceeds to Rathcliffe in full satisfaction of the debt, and included an extra three months' interest on the outstanding principal due under the Mortgage.

Rathcliffe argued it was entitled to the three months' interest pursuant to the following provision in the Mortgage: "The said Chargor covenants with the Chargee that in the event of non-payment of the principal amount at the time or times above provided in the mortgage then he shall not require the Chargee to accept payment of the said principal amount without first giving three months' previous notice in writing, or paying a bonus equal to three months' interest in advance on the said principal amount". Following the payout of the Mortgage, Cardill was granted a declaration that Rathcliffe was not entitled to the three months' interest and an order requiring Rathcliffe to pay the amount to Cardill. Rathcliffe appealed.

Issues:

Did the application judge err in interpreting the Three-Month Interest Provision?

Holding: Appeal dismissed.

Reasoning:

No, the application judge did not err in interpreting the Three-Month Interest Provision as one that is mortgagor-centric. The Court agreed with the application judge that the language of the Three-Month Interest Provision indicated that it is only when the Chargor seeks to require the Chargee to accept payment of the principal amount that the Chargor agrees either to pay the three months' interest or give the three months' notice. The application judge did not misunderstand the jurisprudence when he concluded that the receiver did not act as Cardill's agent in paying out the Mortgage on the receiver's sale. The general principle in similar situations is discussed in Peat Marwick Ltd v Consumers' Gas Co (1980), 29 OR (2d) 336 at 344:

"[T]he receiver and manager [...] is wearing two hats. When wearing one hat, he is the agent of the debtor company; when wearing the other, the agent of the debenture holder. In occupying the premises of the debtor and in carrying on the business, the receiver and manager acts as the agent of the debtor company. In realizing the security of the debenture holder [...] he acts as the agent of the debenture holder, and thus is able to confer title on a purchaser free of encumbrance."

The Court additionally upheld Sperry Inc v Canadian Imperial Bank of Commerce (1985) 50 OR (2d) 277: "It is only 'in realizing' that the receiver acts as the creditor's agent – to give commercial efficacy to the security agreement [...] so that title may be conferred on the purchaser free of encumbrance." The receiver's sale agreement with the third party purchaser required the conveyance of title to the purchaser free and clear of all encumbrances. To convert the charged asset, the receiver was required to discharge the Mortgage and had to pay Rathcliffe to complete the sale. The process of "realization" during which the receiver acted as Rathcliffe's agent necessarily encompassed the discharge of the Mortgage by payment to the mortgagee.

The application judge did not err in his finding that the general principle set out in Peat Marwick was not displaced by the specific language of the Mortgage. He considered s. 5(1)(g) of the Mortgage, which described one of the powers of the receiver: "To execute and deliver to the purchaser of any part or parts of the charged lands, good and sufficient deeds for the same, the Receiver hereby being constituted the irrevocable attorney of the Chargor for the purpose of making such sale and executing such deed, and any such sale made as aforesaid shall be a perpetual bar both in law and equity against the Chargor, and all other persons claiming the said property [...]"

The Court agreed with the application judge's interpretation of that provision as one that "limits the appointment of the receiver as agent for the borrower to the specified purpose of 'making such sale [of the Property] and executing such Deed [in relation thereto]'. This would not support the characterization of [the receiver] as agent for Cardill for the purpose of requesting pay-out of the Mortgage."

CRIMINAL DECISIONS

R v A.H., 2018 ONCA 677

[Feldman, Paciocco and Fairburn JJ.A]

Counsel:

Andrew Bigioni, for the appellant

Rebecca DeFilippis, for the respondent

Keywords: Criminal Law, Child Luring, Sentencing, Standard of Review, R. v Biniaris, R. v Feeney, [1997] 2 SCR 13, Criminal Code, ss 8, 172.1(1)(b)

R v Adamson, 2018 ONCA 678

[Watt, Brown & Huscroft JJ.A.]

Counsel:

Lance C. Beechener, for the appellant

John Patton, for the respondent

Keywords: Criminal Law, Attempted Murder, Jury Charges, Post-offence Conduct, R. v White, 2011 SCC 13, R. v Czibulka, 2011 ONCA 82

R v Lawrence, 2018 ONCA 676

[Benotto, Trotter and Paciocco JJ.A.]

Counsel:

Leston Everest Lawrence, acting in person

Erin Dann, appearing as duty counsel

Deborah Calderwood, for the respondent

Keywords: Criminal Law, Theft, Money Laundering, Breach of Trust by a Public Official, Restitution, Criminal Code, s 738(1)(a), R. v Castro, 2010 ONCA 718, R. v Wa, 2015 ONCA 117

R v Dell, 2018 ONCA 674

[Doherty, LaForme and Paciocco JJ.A.]

Counsel:

Brian A. Callender, for the appellant

John A. Neander, for the respondent

Keywords: Criminal Law, Child Pornography, Sentencing, Standard of Review, R. v Saikaley, 2017 ONCA 374, R. v M. (C.A.), [1996] 1 SCR 500

R v J.S., 2018 ONCA 675

[Doherty, LaForme and Paciocco JJ.A.]

Counsel:

Howard L. Krongold, for the appellant

Roger A. Pinnock, for the respondent

Keywords: Criminal Law, Murder, Sentencing, Parole, Faint Hope Clause, Canadian Charter of Rights and Freedoms, ss 11(h) and 11(i), R. v Vaillancourt (1989), 49 CCC (3d) 544 (Ont. CA)

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