Canada: Ontario Court Of Appeal Summaries (October 29 – November 2, 2018)

Blaney's Appeals
Last Updated: November 9 2018
Article by John Polyzogopoulos

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

There were not many substantive decisions. Perhaps the most interesting was Am-Stat Corporation v Ontario. In that case, the plaintiff sued the Ontario government for negligence or negligent misrepresentation. The plaintiff alleged that it had partly relied on a corporation profile report to approve a mortgage loan made to a corporation. The report indicated that the purported representative of the borrower who was dealing with the lender was indeed an officer and director of the borrower. It turned out to be a fraud, and the representative had no relationship to the borrower. The plaintiff lost its loan proceeds and sought to recover them from the province. The Court of Appeal upheld the lower court's decision striking the action as disclosing no reasonable cause of action. The province is not responsible for ensuring the accuracy of the information filed on behalf of corporations. This is a reminder that corporate searches are useful investigative tools and can assist with due diligence during a transaction, but they are not determinative of anything and should not be relied upon.

Other topics covered this week included costs in the family law and class action contexts, private and public interest standing in the insurance/MVA context, and wrongful dismissal in the doctor's hospital privileges context.

CIVIL DECISIONS

Am-Stat Corporation v Ontario, 2018 ONCA 877

[Doherty, van Rensburg and Hourigan JJ.A.]

Counsel:

R.B. Moldaver Q.C., for the appellant

A. Jin, for the respondent

Keywords: Torts, Negligence, Negligent Misrepresentation, Crown Liability, Duty of Care, Anns/Cooper Test, Corporations, Corporation Profile Reports, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Rules of Civil Procedure, Rule 21, Corporations Information Act, R.S.O. 1990, c. C.39, ss. 8, 10, 19, and 21, R. v. Imperial Tobacco, 2011 SCC 42

Facts:

The appellant is a mortgage broker who was defrauded by GN, who claimed to be the sole owner and officer of Aldrogian Holdings Inc. ("Aldrogian"), and persuaded the appellant to advance $1.8 million in loans secured by mortgages on property owned by Aldrogian. In fact, GN had no affiliation with Aldrogian. The appellant claimed that in advancing the money he relied on a corporation profile report and other documents obtained from the Ministry of Government and Consumer Services that incorrectly identified GN as a director and officer of Aldrogian. The appellant alleged that the Ministry owed a duty of care to the public and in particular to the appellant to reasonably ensure the accuracy and reliability of the information it collected, maintained and disseminated for a fee, and knew or ought to have known the appellant would rely upon.

The motion judge applied the Anns/Cooper test and concluded that there was no duty of care owed by the Ministry to the appellant to ensure the accuracy of the information. She concluded that there was no prima facie duty of care and that such a duty would be against public policy.

Issues:

(1) Did the motion judge err in her application of the Anns/Cooper test?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The Court found that the appellant's claim failed the first stage of the Anns/Cooper test.

As the motion judge noted, when the defendant is a public actor, a relationship of proximity giving rise to a prima facie duty of care may only arise explicitly or by implication from the language of the governing legislation or from the nature of the interactions between the parties (R. v. Imperial Tobacco). The Court rejected the appellant's assertion that because the Corporations Information Act (the "Act") did not expressly exclude a private law duty of care, that it must exist. The Act required all corporations carrying on business in Ontario to file certain prescribed information and changes in information. A corporation profile report reflected information on the public record for the subject corporation as of the date the report was ordered. Nothing in the Act pointed to an intention to create a private law duty of care on the part of the regulator to third parties to ensure the accuracy of information filed, and the language of the statute was inconsistent with the imposition of such a duty. Section 8 of the Act requires the Minister to enter into a record the information received. Section 21 specifically provides that "the Minister may accept the information contained in any return or notice filed under [the] Act without making any inquiry as to its completeness or accuracy". Section 19 described the Minister's certificate as certifying only that the information had been filed, not its accuracy.

The Court rejected the appellant's argument that because Ontario had the discretion not to publish the information, once it did make the information public, it undertook a duty to ensure its accuracy. There was no such discretion, as s. 10 of the Act provided for a right to public access to the information filed and maintained by the Ministry upon payment of the prescribed fee. The Court agreed with the motion judge that reliance by third parties was not contemplated by the Act.

Moreover, the motion judge did not err in finding that the payment of a fee in exchange for access to the public corporate record was insufficient to constitute a direct interaction giving rise to proximity. The appellant had pointed to no legal authority in support of its submission that the payment of the fee, in and of itself, creates a relationship giving rise to a prima facie duty of care.

Mattina v Mattina, 2018 ONCA 867

[Epstein, Lauwers and van Rensburg JJ.A.]

Counsel:

M. McCarthy, M. Edwards and L. Hanna, for the appellant

S. Garcea and G. Nardi-Bell, for the respondent

Keywords: Family Law, Appeals, Costs, Courts of Justice Act, RSO 1990, c C.43, s. 131(1), Family Law Rules, Selznick v Selznick, 2013 ONCA 35, Serra v Serra, 2009 ONCA 395, E.H. v O.K., 2018 ONCJ 578, Sambasivan v Pulendrarajan, 2012 ONCJ 711, Cobb v Long Estate, 2017 ONCA 717, Frick v Frick, 2016 ONCA 799, Berta v Berta, 2015 ONCA 918, Britt v Britt, [2000] OJ No 5981, Berta v Berta, Christodoulou v Christodoulou, 2010 ONCA 93, Priest v Reilly, 2018 ONCA 389

Facts:

The appellant father commenced an application against the respondent mother for custody of their three children, and then brought a motion seeking sole interim custody of the children for 90 days with no access to the mother. In response, the mother brought a motion for summary judgment seeking sole custody of the children, but allowing for access to the father at the children's discretion. The mother's summary judgment motion was successful. The motion judge awarded the mother costs fixed in the amount of $80,636 plus HST.

The father appealed to the Divisional Court, which held that it did not have jurisdiction over the matter. The Divisional Court transferred the appeal to the Ontario Court of Appeal on an expedited basis. The appeal before the Ontario Court of Appeal was dismissed.

At issue are the costs of the appeal and the costs of the previous attempt to appeal to the Divisional Court.

Issue:

(1) How should costs be determined?

Holding:

Costs awarded to respondent.

Reasoning:

(1) Costs fixed at $25,000 should be awarded to the respondent mother.

The Family Law Rules have been used to guide the Ontario Court of Appeal's analysis on costs in family law disputes. Family law costs rules are designed to further four fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants; and (4) to ensure cases are dealt with justly. Further, reasonableness and proportionality are emphasized in any costs award.

There is a presumption of costs in favour of the successful party of a motion, case, or appeal, and this applies equally to family law custody and access cases. However, costs awards are subject to: factors listed in Family Law Rules rule 24(12); the unreasonable conduct of a successful party; bad faith; offers to settle; and the reasonableness of costs sought by the successful party. Full recovery costs are only available in specific circumstances, such as where a party has behaved unreasonably, in bad faith, or has beat an offer to settle under Rule 18(14) of the Family Law Rules.

The respondent mother is presumptively entitled to her Court of Appeal costs because she was successful on appeal. After considering the following three factors, the presumption in favour of the mother has not been rebutted, and she should receive 60-70% of her costs of the appeal before the Court of Appeal. First, both the mother and father acted in unreasonable ways that increased costs and impeded resolution. Second, the mother's counsel spent a significant amount of time preparing to respond to the father's motion to file an amended notice of appeal. The mother lost on this issue, but the costs should still be included because the father brought the motion with little notice, and the mother had previously made a reasonable proposal that would have avoided the motion entirely. Third, the father's costs were almost twice the mother's costs, so the father should have foreseen having to pay a significant amount for the mother's costs.

The respondent mother is not entitled to her Divisional Court costs because it would be unjust for the father to pay them. Ontario's family law appeal routes are confusing for the public, counsel, and institutional litigants. As a result of this confusion, litigants bear unnecessary costs. This is a legislative deficiency that the father should not have to bear. Further, his behaviour throughout the case is sufficiently addressed by the other costs awarded to the mother.

Campisi v Ontario (Attorney General), 2018 ONCA 869

[Rouleau, Watt and Brown JJ.A.]

Counsel:

R. Galati and P. Murray, for the appellant

D. Guttman and P. Ryan, for the Attorney General of Ontario

J. Galway, for the Insurance Bureau of Canada

Keywords: Insurance Law, MVA, Constitutional Law, Civil Procedure, Standing, Private Interest Standing, Public Interest Standing, Insurance Act, RSO 1990, c 1.8, ss 267.5 and 280, Canadian Charter of Rights and Freedoms, ss 7 and 15, Constitution Act, 1867, s 96, Canada (AG) v Downtown Eastside Sex Workers, 2012 SCC 45

Facts:

The appellant filed an application for a declaration that two provisions of the Insurance Act relating to automobile accident claims – ss 267.5(1) and 280 – violated ss 7 and 15 of the Charter and that s 280 contravened s 96 of the Constitution Act, 1867.

The application judge found that the appellant, a lawyer, lacked private and public interest standing to bring the application. The fact that his practice involved representing clients who were affected by these provisions did not give him standing to mount a challenge to the sections.

Issues:

(1) Did the application judge err in denying both private and public interest standing?

Holding:

Appeal dismissed.

Reasoning:

(1) No, the application judge did not err in denying both private and public interest standing.

First, the application judge correctly determined that private interest standing was not made out. The appellant failed to demonstrate that the impugned provisions affected him personally and directly. The appellant's experience litigating insurance claims and his concern for properly advising his clients and for adequately settling their claims did not establish that the provisions had a direct impact on him.

Second, the application judge correctly listed the three factors from Downtown Eastside Sex Workers and considered the three factors in combination and with the flexibility required. The appellant's scholarly contributions regarding the Insurance Act did not exemplify a genuine interest in the outcome of the application. The appellant also failed to establish that the application was a reasonable and effective way of bringing the case to court.

Beattie v Women's College Hospital, 2018 ONCA 872

[Hoy A.C.J.O., Sharpe and Fairburn JJ.A.]

Counsel:

N.C. MacDonald and K. Marshall, for the appellants

J.J. Morris and K. Deakon, for the respondent

Keywords: Employment Law, Wrongful Dismissal, Hospitals, Doctors, Hospital Privileges, Public Hospitals Act, ss 32(1)(v), 44(1.2)(a), 44(2), 44(2).4, 44(3), 44(4) and 44(5), Ordon Estate v. Grail, [1998] 3 S.C.R. 437

Facts:

The appellants are both doctors who practiced for many years in the respondent hospital's urgent care centre. The respondent closed the urgent care centre and, therefore, terminated the appellants' privileges. The trial judge dismissed the appellants' action for damages for wrongful dismissal on the ground that it was barred by s. 44(5) of the Public Hospitals Act (the "Act"). That provision provides that if the board of a hospital decides to cease to provide a service:

No action or other proceeding for damages or otherwise shall be instituted against [the hospital] for any act done in good faith in the execution or intended execution by a board of its authority [to cease to provide the service] or for any alleged neglect or default in the execution in good faith by a board of such authority.

Section 44(5) of the Act is one component of the integrated scheme the Act provides to govern a hospital's cessation to operate or provide services. If a hospital board decides to cease to provide a "service" under s. 44(1.2)(a) of the Act, then the hospital board may decide to "cancel or substantially alter" the privileges of any physician relating to the provision of that service under s. 44(2).4 of the Act. Sections 44(3) and 44(4) of the Act establish that the hospital board is not required to hold a hearing when it makes such a decision and the normal procedural and appeal rights provided for in the Act do not apply. Section 44(5) of the Act immunizes a hospital from liability for acts done by its board in good faith under s. 44(2) of the Act.

Here, it was not in dispute that the urgent care centre was a "service" and that the respondent's board decided to cease providing that service. The trial judge found that by closing the urgent care centre, the respondent's board also decided to cancel or substantially alter the privileges of the appellants. Accordingly, she concluded that s. 44(5) of the Act applied to immunize the respondent from liability for the appellants' wrongful dismissal claims. She dismissed the claim.

The appellants submitted that s. 44(5) of the Act did not bar their claim for two reasons. First, they argued that the legislative history indicates that at the time s. 44(5) of the Act was enacted, the Legislature expected it to have limited duration and that the Minister would be able to make exceptions to it by regulation. Second, the appellants argued that the trial judge conferred upon them the status of "dependent contractors", a legal category they say did not exist at the time s. 44(5) of the Act was enacted. They submitted that their claim was therefore exempt from its application because the Legislature could not have intended to deprive of rights, the members of a legal category that did not exist at the time of the provision's enactment.

Issue:

(1) Did the trial judge err in concluding that s. 44(5) of the Act applied to immunize the respondent from liability for the appellants' wrongful dismissal claim?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The intention of s. 44(5) of the Act is clear. It precludes all proceedings for damages for acts done in good faith under ss. 44(1) and 44(2) of the Act by hospitals which close or cease to provide a service. The court is required to apply the legislation as it was enacted, not as it could have been drafted or might have been amended. Legislative history can be used to interpret legislation, but not to create exceptions to legislation that may have been contemplated but were never enacted. The statements by Members of the Legislative Assembly that the appellants pointed to were at best equivocal. The court could not use them to contradict the meaning and purpose that arose from reading the words of the provision in the context of the statute as a whole.

Additionally, the court did not accept the contention that because the trial judge characterized the legal status of the appellants as "dependent contractors", their claims were exempt from the reach of s. 44(5) of the Act. Doctors in the situation of the appellants whose privileges are terminated by the good faith decision of a hospital board to cease to provide a service have been precluded from suing for damages since 1996 despite the characterization of the legal nature of their relationship to the hospital. The language of s. 44(5) of the Act is all-embracing, and it would be inappropriate to read-in an exception that the Legislature did not provide: see Ordon Estate v. Grail, [1998] 3 S.C.R. 437, at para. 134. Section 44(5) of the Act bars any and all proceedings for claims arising from a hospital's decision to cease to provide a service and the specific legal characterization of the terminated doctor's status has no impact on its application.

Accordingly, the appeal was dismissed.

SHORT CIVIL DECISIONS

Mihaylov v Long Beach Residents' Association, 2018 ONCA 871

[Rouleau, Watt and Paciocco JJ.A.]

Counsel:

S. Jackson, for the appellants

L. Tinker, for the respondent Attorney General of Canada

G. Frelick, for the respondent Her Majesty the Queen in Right of Ontario

R. O'Neill, for the respondent Long Beach Residents' Association

Keywords: Real Property, Riparian Rights, Limitation Periods, Real Property Limitations Act, R.S.O. 1990, c. L. 15., ss. 14 and 15

Copperfin Credit Union Limited v Cupello, 2018 ONCA 873

[Lauwers, Huscroft and Trotter JJ.A.]

Counsel:

M. Cupello, for the appellant

J. Lester, for the respondent

Keywords: Contracts, Loans, Guarantees, Security

Fehr v Sun Life Assurance Company of Canada (Costs), 2018 ONCA 874

[Strathy C.J.O., Hourigan and Miller JJ.A.]

Counsel:

W. J. Kim, M. C. Spencer, M. B. McPhee, and A. Gyamfi, for the appellants/respondents by way of cross-appeal

F. P. Morrison, D. M. Peebles, G. P. Burt, H. Afarian, and J. L. Cole, for the respondent/appellant by way of cross-appeal

Keywords: Civil Procedure, Costs, Class Proceedings, Certification, Summary Judgment

CRIMINAL DECISIONS

R v Cote, 2018 ONCA 870

[Benotto, Roberts and Paciocco JJ.A.]

Counsel:

P. Calarco, for the appellant

L. Joyal, for the respondent

Keywords: Criminal Law, Second-Degree Murder, Ante-Mortem Statement, Hearsay Evidence, R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, Probative Value, Prejudicial Effect, R. v. Krasniqi, 2012 ONCA 561, 291 C.C.C. (3d) 236, Self-Defence, Criminal Code, R.S.C. 1985, c. C-46, s. 34(1) and 34(2)

R. v. Griffith, 2018 ONCA 875

[MacPherson, Miller and Paciocco JJ.A.]

Counsel:

P. Calarco, for the appellant

J. Sone, for the respondent

Keywords: Criminal Law, Robbery, Intimidation Handgun, Evidence, Admissibility, Dog-Tracking Evidence, R. v. Holmes (2002), 62 O.R. (3d) 146 (C.A.), Post-Offence Conduct

R v J.P. (Publication Ban), 2018 ONCA 878

[MacPherson, Miller and Paciocco JJ.A.]

Counsel:

J. Belton, for the appellant

R. Schwartz, for the respondent

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

R. v. Thibeault, 2018 ONCA 876

[Simmons, Juriansz and Benotto JJ.A.]

Counsel:

D. Derstine and D. Parry, for the appellant

R. Schwartz, for the respondent

Keywords: Criminal Law, Second Degree Murder, Manslaughter, Evidence, Admissibility, Hearsay, Prior Inconsistent Statements

R v Gregoire, 2018 ONCA 880

[MacPherson, Miller and Paciocco JJ.A.]

Counsel:

B. Vandebeek, for the appellant

J. Cameron, for the respondent

Keywords: Criminal Law, Manslaughter, Sentencing, R. v. Duncan, 2016 ONCA 754

R v H.E. (Publication Ban), 2018 ONCA 879

[MacPherson, Miller and Paciocco JJ.A.]

Counsel:

C. Bartlett-Hughes, for the appellant

A. McElroy, for the respondent

Keywords: Criminal Law, Sexual Assault, Mens Rea, Consent, Criminal Code, ss. 273.1(1), Pappajohn v. The Queen, [1980] 2 S.C.R. 120, Mistaken Consent, R. v. Davis, [1999] 3 S.C.R. 759

ONTARIO REVIEW BOARD

Ginn (Re), 2018 ONCA 868

[Doherty, Trotter and Paciocco JJ.A.]

Counsel:

S. F. Gehl, for the appellant
J. Patton, for the respondent Her Majesty the Queen
J. A. Z. Ballès, for the Person in Charge of the Southwest Centre for Forensic Mental Health Care, St. Joseph's Health Care London

Keywords: Ontario Review Board, Criminal Law, Threat to Safety of the Public, Carrick (Re), 2015 ONCA 866, Criminal Code, ss. 672.54(c)

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