Canada: Ontario Court Of Appeal Summaries (August 19 - 23, 2019)

Blaney's Appeals

There was only one substantive civil decision this week, McKay v Park, which deals with liability and insurance coverage in an MVA where the passenger unexpectedly took control of the steering wheel from the driver.

Table of Contents

Civil Decisions

McKay v Park , 2019 ONCA 659

Keywords:Torts, Negligence, MVA, Insurance, Automobile Insurance, Liability of Owner, Vicarious Liability, Civil Procedure, Summary Judgment, Determination of Question of Law, Costs, Insurance Act s. 192, Highway Traffic Act s. 192(2), Rules of Civil Procedure, Rules 20 and 21.01(1)(a)

Short Civil Decisions

2256157 Ontario Ltd. v. Fazl ,2019 ONCA 653

Keywords: Civil Procedure, Orders, Varying or Setting Aside, Accident or Mistake

Paulin v. Pinder ,2019 ONCA 653

Keywords: Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory, Hendrickson v Kallio, [1932] OR 675 (CA), The Catalyst Capital Group Inc. v Moyse, 2015 ONCA 784

Third Eye Capital Corporation v. Ressources Dianor Inc./Dianor Resources Inc., 2019 ONCA 667 (costs)

Keywords: Bankruptcy and Insolvency, Receiverships, Vesting Orders, Civil Procedure, Appeals, Costs

Criminal Decisions

R. v Gracie ,2019 ONCA 658 (Publication Ban)

Keywords:Criminal Law, Aggravated Sexual Assault, Dangerous Offenders, Gladue Report, Criminal Code, s 163.1, s 759(3)(b), s 753(4.1), R. v Boutilier, 2017 SCC 64, R. v Gladue, [1999] 1 SCR 688, R. v Johnson, 2003 SCC 46, R. v Sipos, 2014 SCC 47, Ewert v Canada , 2018 SCC 30

R. v Farouk ,2019 ONCA 662 (publication ban)

Keywords:Criminal Law, Aggravated Sexual Assault, Threatening Bodily Harm, Breach of Recognizance, Jury Charge, Evidence, Admissibility, Propensity Evidence, Canadian Evidence Act, R.S.C. 1985, c. C-5, s. 31.1, R. v Hart, 2014 SCC 52, R. v Chase, [1987] 2 SCR 293, R. v Marshall, 2017 ONCA 801, R. v White, 2011 SCC 13, R. v. Araya, 2015 SCC 11

R. v Gallone ,2019 ONCA 663 (publication ban)

Keywords:Criminal Law, Human Trafficking, Jury Charge, Statutory Interpretation, Criminal Code, s. 279.01(1), s. 286.3(1), s. 286.4, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27, R. v Hutchinson, 2014 SCC 19, R. v Graveline, 2006 SCC 16

CIVIL DECISIONS

McKay v Park, 2019 ONCA 659

[Paciocco, Harvison Young and Zarnett JJ.A.]

Facts:

The plaintiff brought an action for damages for serious personal injuries sustained in a motor vehicle accident against the driver of the other vehicle (the "Respondent"), against the driver's boyfriend ("GH"), who had caused the driver to lose control of her vehicle by grabbing the steering wheel without her consent during an argument, and against her own insurer (the "Appellant") under her policy which provided uninsured and underinsured motorist coverage. The Respondent brought a Rule 20 motion for summary judgment dismissing the action on basis that she was not liable. The Respondent also moved under a Rule 21 motion for a determination before trial that GH was not entitled to indemnity under the Respondent's motor vehicle policy. Both motions were granted.

Issues:

(1) Did the motion judge err in allowing the Rule 20 motion?

(2) Did the motion judge err in allowing the Rule 21 motion?

(3) Should the Appellant be granted leave to appeal the motion judge's cost award?

Holding:

Appeal allowed in part.

Reasoning:

(1) No. The Appellant raised several grounds on appeal. First, the Appellant argued that the motion judge erred by misplacing the onus to show that there was a genuine issue requiring trial based on the facts that: (1) the motion judge did not expressly identify who bore the burden; and (2) she structured her decision by addressing only the plaintiff's arguments as to why there was a genuine issue requiring a trial. The Court found it understandable and appropriate for the motion judge to focus her decision only on the areas of contention when explaining her conclusion. The motion judge was presumed to know the law and the Court found no indication that the motion judge got the onus wrong.

Second, the Appellant argued that the motion judge erred by not applying the law of possession properly, taking the position that the Respondent remained in possession of the automobile and was therefore vicariously liable under s. 192 of the Insurance Act. The Court found no palpable and overriding error in the motion judge's finding of fact that GH "took control of the car" away from the Respondent by seizing the wheel, despite the failure to use the word "possession" when expressing her ruling. The Court agreed with the motion judge that GH's act of taking control of the motor vehicle was without the Respondent's consent, and therefore, the exemption from vicarious liability under s. 192(2) of the Highway Traffic Act applies.

Third, the Appellant claimed that the motion judge erred in finding that Respondent's negligence was a not a genuine issue requiring trial. The Court found that the motion judge was entitled to find on the evidence before her that the Respondent had been driving without incident until GH grabbed the wheel and that it was not foreseeable that GH would grab the wheel.

Finally, the Court disagreed with the Appellant's contention that the motion judge did not give adequate reasons relating to the Rule 20 decision. The Court held that the motion judge was not obliged to refer to all the evidence that she considered in order to show her path to the decision, and her Rule 20 decision was explained adequately to enable appellate review. The Rule 20 appeal was therefore dismissed.

(2) Yes. The Court set aside the motion judge's Rule 21 determination for two reasons. First, the motion judge gave no meaningful explanation for the reasoning path she took in coming to her decision. The decision did not refer to any statutory or Policy provisions and did not identify the law or any provisions of the applicable Policy that she relied upon. The Court found that the motion judge's explanation did not provide a path to her reasoning sufficient to enable appellate review. Second, the Court was not persuaded that this was a proper Rule 21.01(1)(a) motion. Such motions are to resolve questions of law raised by pleadings, and the Court held that the motion judge did not make her decision based on a question of law raised by the pleadings, but rather on evidence from the Rule 20 motion. In allowing the appeal, the court noted that the parties were at liberty to bring such further proceedings as appropriate to have the issue determined.

(3) No. The Court did not grant leave to appeal the motion judge's costs award. However, the Court reduced the award to the all-inclusive sum of $40,000 because the Rule 21 motion should not have been granted and the respondent should not have received costs for that motion.

SHORT CIVIL DECISIONS

2256157 Ontario Ltd. v. Fazl, 2019 ONCA 666

[Paciocco, Harvison Young and Zarnett JJ.A.]]

Counsel:

Hafeez Fazl, in person
Dina Peat, for the respondent

Keywords:Civil Procedure, Orders, Varying or Setting Aside, Accident or Mistake

Paulin v. Pinder, 2019 ONCA 661

[Paciocco, Harvison Young and Zarnett JJ.A.]]

Counsel:

Douglas J. Spiller, for the appellants
Stephen Barbier, for the respondents

Keywords:Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory, Hendrickson v Kallio, [1932] OR 675 (CA), The Catalyst Capital Group Inc. v Moyse, 2015 ONCA 784

Third Eye Capital Corporation v. Ressources Dianor Inc./Dianor Resources Inc., 2019 ONCA 667 (costs)

[Pepall, Lauwers and Huscroft JJ.A.]]

Counsel:

Peter L. Roy and Sean M. Grayson, for the appellant 2350614 Ontario Inc.
Stuart Brotman and Dylan Chochla, for the receiver of the respondent Ressources Dianor Inc./Dianor Resources Inc., Richter Advisory Group Inc

Keywords:Bankruptcy and Insolvency, Receiverships, Vesting Orders, Civil Procedure, Appeals, Costs

CRIMINAL DECISIONS

R. v. Gracie, 2019 ONCA 658 (Publication Ban)

[Rouleau, Miller and Fairburn JJ.A.]

Counsel:

Andrew Furgiuele and Angela Ruffo, for the appellant
Gregory J. Tweney, for the respondent

Keywords:Criminal Law, Aggravated Sexual Assault, Dangerous Offenders, Gladue Report, Criminal Code, s 163.1, s 759(3)(b), s 753(4.1), R. v Boutilier, 2017 SCC 64, R. v Gladue, [1999] 1 SCR 688, R. v Johnson, 2003 SCC 46, R. v Sipos, 2014 SCC 47, Ewert v Canada , 2018 SCC 30

R. v Farouk, 2019 ONCA 662 (publication ban)

[Pardu, Nordheimer and Harvison Young JJ.A.]

Counsel:

Mark Halfyard and Colleen McKeown, for the appellant
Luke Schwalm, for the respondent

Keywords:Criminal Law, Aggravated Sexual Assault, Threatening Bodily Harm, Breach of Recognizance, Jury Charge, Evidence, Admissibility, Propensity Evidence, Canadian Evidence Act, R.S.C. 1985, c. C-5, s. 31.1, R. v Hart, 2014 SCC 52, R. v Chase, [1987] 2 SCR 293, R. v Marshall, 2017 ONCA 801, R. v White, 2011 SCC 13, R. v. Araya, 2015 SCC 11

R. v Gallone, 2019 ONCA 663 (publication ban)

[Hoy A.C.J.O., Hourigan and Paciocco JJ.A]

Counsel:

Vallery Bayly and Christine Bartlett-Hughes, for the appellant
Breana Vandebeek, for the respondent

Keywords:Criminal Law, Human Trafficking, Jury Charge, Statutory Interpretation, Criminal Code, s. 279.01(1), s. 286.3(1), s. 286.4, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27, R. v Hutchinson, 2014 SCC 19, R. v Graveline, 2006 SCC 16

R. v Dudhi, 2019 ONCA 665

[Hoy A.C.J.O., Hourigan and Paciocco JJ.A]

Counsel:

Mark Halfyard, for the appellant
Aaron Shachter, for the respondent

Keywords:Criminal Law, Narcotics Offences, Arbitrary Detention, Racial Profiling, Criminal Code, s. 279.01(1), s. 286.3(1), s. 286.4, R. v Jabarianha, 2001 SCC 7516, R. v Le, 2019 SCC 34, Peart v Peel Regional Police Services Board (2006), 43 CR (6th) 175 (Ont. CA)

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