Canada: Ontario Court Of Appeal Summaries (September 3 – 6 2019)

Blaney's Appeals

Good afternoon,

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

In Hearn v McLeod Estate, the sale of a forged Norval Morrisseau painting and the expert evidence surrounding its authenticity was at issue. In allowing the appeal, the Court of Appeal held that the trial judge's conclusions about the expert's authentication process, which were informed by the trial judge's own personal research, were flawed and had resulted in a denial of natural justice.

In Donleavy v Ultramar Ltd, the Court dealt with the issues of negligence and apportionment of liability in a case involving a home heating oil spill.

Other topics covered this week included stay pending appeal in a high conflict child relocation/custody dispute, dismissal for delay, a dismissal of a challenge to capacity to execute powers of attorney for care and property, and striking pleadings in a limitation period context.

Have a nice weekend.

Table of Contents

Civil Decisions

Donleavy v. Ultramar Ltd., 2019 ONCA 687

Keywords: Torts, Negligence, Causation, "But For" Test, Material Contribution Test, Apportionment of Fault, Joint and Several Liability, Contributory Negligence, Clements v Clements, 2012 SCC 32, Resurfice Corp v Hanke, 2007 SCC 7, Blackwater v Plint, 2005 SCC 58, Ingles v Tutkaluk Construction Ltd, [2000] 1 SCR 298

Hearn v. McLeod Estate Ltd., 2019 ONCA 682

Keywords: Contracts, Sale of Goods, Implied Conditions and Warranties, Breach of Warranty, Sale by Description, Fraud, Damages, Expectation Damages, Punitive Damages, Expert Evidence, Civil Procedure, Procedural and Natural Justice, Extrinsic Evidence, Sufficiency of Reasons, Reasonable Apprehension of Bias, Pfizer Co v Deputy Minister of National Revenue (Customs & Excise), [1977] 1 SCR 456, R v Sheppard, 2002 SCC 26, Phillips v Ford Motor Co of Canada, [1971] 2 OR 637, Sale of Goods Act, RSO 1990, c S1, s. 51, Langille v Keneric Tractor Sales Limited, [1987] 2 SCR 440, Bruno Appliance and Furniture Inc v Hryniak, 2014 SCC 8

N.S. v. R.M. Ltd., 2019 ONCA 685

Keywords: Family Law, Custody and Access, Joint Custody, Shared Custody, Civil Procedure, Appeals, Stay Pending Appeal, RJR-Macdonald v Canada (AG), [1994] 1 SCR 311, CS v MS, 2010 ONCA 196, Van de Perre v Edwards, 2001 SCC 60

Erland v. Ontario Ltd., 2019 ONCA 689

Keywords: Civil Procedure, Dismissal for Delay, Summary Judgment, Rules of Civil Procedure, Rules 48.14(1), (5), and (7), Kara v Arnold, 2014 ONCA 871, Stokker v Storoschuk, 2018 ONCA 2

Lewis v. Lewis Ltd., 2019 ONCA 690

Keywords: Wills and Estates, Powers of Attorney, Capacity, Undue Influence, Suspicious Circumstances, Fresh Evidence, Substitute Decisions Act, 1992, S.O. 1992, c. 30, Knox v Burton (2004), 6 ETR (3d) 285, Starson v Swayze, 2003 SCC 32, Hall v Bennett Estate (2003), 64 OR (3d) 191 (CA), Vout v Hay, [1995] 2 SCR 876, FH v McDougall, 2008 SCC 53

Davidoff v. Sobeys Ontario Ltd., 2019 ONCA 684

Keywords: Employment Law, Wrongful Dismissal, Civil Procedure, Striking Pleadings, Determination of Question of Law, Limitation Periods, Costs, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 4, Rules of Civil Procedure, Rules 14.03(2) and 21.01(1)(a), Kaynes v. BP, P.L.C., 2018 ONCA 337

Tarantino v. Galvano Ltd., 2019 ONCA 699

Keywords: Wills and Estates, Wills, Interpretation, Compensation, Personal Care, Occupancy Rent

Short Civil Decisions

Watto v. Immigration Consultants of Canada Regulatory Council, 2019 ONCA 683

Keywords: Civil Procedure, Appeals, Factum

Sammut v. Doheny, 2019 ONCA 693

Keywords: Real Property, Adverse Possession

Makwana v. Bishnu, 2019 ONCA 695

Keywords: Family Law, Spousal Support, Child Support, Fraudulent Conveyances, Costs

Criminal and Provincial Offenses Decisions

Ontario (Environment, Conservation and Parks) v. Thomas Cavanagh Construction Limited, 2019 ONCA 686

Keywords: Provincial Offences, Appeals, Leave to Appeal, Sentencing, Provincial Offences Act, R.S.O. 1990, c. P.33, s. 131(2)

R. v. S.H. (Publication Ban), 2019 ONCA 669

Keywords: Criminal Law, Evidence, Admissibility, Cell Phones, Opinion Evidence, Rule in Browne v Dunn, Canada Evidence Act, s. 31.1, 31.2, 31.3(a) and 31.3(b), Browne v. Dunn (1893), 6 R. 67 (H.L.)

R. v. E.C. (Publication Ban), 2019 ONCA 688

Keywords: Criminal Law, Sexual Interference, Sentencing, R v Lacasse, 2015 SCC 64, Criminal Code, s. 718.01

R. v. B.J.T. (Publication Ban), 2019 ONCA 694

Keywords: Criminal Law, Sexual Interference, Sexual Assault, Summary Conviction, Sentencing, R. v. Nur, 2015 SCC 15, Criminal Code, s. 151(a), Canadian Charter of Rights and Freedoms, s. 12

R. v. Lisenco, 2019 ONCA 691

Keywords: Criminal Law, Failure to Comply with a Recognizance, Breaking and Entering, Theft, Sentencing, Ineffective Assistance of Counsel

R. v. Melnyk, 2019 ONCA 697

Keywords: Criminal Law, Private Prosecution, Mandamus, Certiorari

Ontario Review Board

Sheikh (Re), 2019 ONCA 692

Keywords: Ontario Review Board, Not Criminally Responsible, Conditional Discharge, R. v. Winko, [1999] 2 S.C.R. 625

CIVIL DECISIONS

Donleavy v Ultramar Ltd, 2019 ONCA 687

[Rouleau, van Rensburg, and Benotto JJ.A.]

Counsel:

David Zuber and James Tausendfreund, for the appellants/respondents by way of cross-appeal, Kilpatrick Fuels Limited and JB
Todd J. Burke and Benoit M. Duchesne for the appellant/respondent by way of cross-appeal, Ultramar Ltd.
S. Daniel Baldwin and R. Steven Baldwin, for the respondents/appellants by way of cross-appeal, SD and KE

FACTS:

The respondents rented their home to another couple in January 2008. In June 2008, a 900-litre fuel tank located outside the home failed and spilled its contents. The tank was manufactured for indoor use only and had been on the property since before the respondents purchased it. The appellant Ultramar Ltd. ("Ultramar") supplied oil during the relevant period, first under a fuel oil delivery contract with the respondents and then, in January 2008, with the tenants of the respondents. The last delivery was one month prior to the spill. Prior to entering into a supply contract, Ultramar was required to inspect the tank to determine if it complied with the regulatory regime then in force. This inspection was subcontracted to the appellant Kilpatrick Fuels Limited ("Kilpatrick"). Kilpatrick's employee, the appellant JB ("JB"), conducted an inspection in 2002 but his report which was submitted to Ultramar failed to indicate the age of the tank or that it was labelled for indoor use only yet installed outdoors.

A follow up inspection was conducted by a different Kilpatrick employee one week later and his report indicated that the tank was more than 20 years old and that he had rectified two separate elements of non-compliance.

Ultramar received the reports, noted no problems, and commenced supplying the fuel oil by a subcontractor on at least 23 occasions prior to the spill. Despite the requirement that a visual inspection of the tank be completed on every delivery, at no time did the subcontractor notify Ultramar that the tank was labelled for indoor use but was located outside. The spill was ultimately caused by corrosion from the inside out because of water that accumulated in the bottom of the tank.

The respondents commenced an action in tort and for breach of contract against Kilpatrick, JB, and Ultramar. The appellants crossclaimed against each other for contribution and indemnity. The trial judge dismissed the breach of contract allegation. She apportioned 60% of the liability for the tort claim to Ultramar and the remaining 40% to the respondents. Ultramar was granted judgement in its crossclaim against Kilpatrick for contribution and indemnity with Kilpatrick being found liable to indemnify Ultramar for one half of the amount Ultramar was found liable to the respondents. Kilpatrick's crossclaim against Ultramar was dismissed. Ultramar appealed the finding of liability against it in tort, and Kilpatrick appealed the finding of liability to Ultramar in the crossclaim. The respondents appealed the finding of contributory negligence, the dismissal of the breach of contract claim, and the quantum of damages.

ISSUES:

(1) Did the trial judge err in applying the "material contribution" instead of the "but for" test?

(2) Did the trial judge err in finding that Ultramar had a duty to inspect the oil tank during delivery and a duty under a Director's Order and that it breached those duties?

(3) Did the trial judge err in allocating fault as between the parties and with respect to contributory negligence?

(4) Did the trial judge err in failing to find Ultramar and Kilpatrick liable for breach of contract?

(5) Did the trial judge err in deciding to order general damages against Kilpatrick or in failing to award damages for loss of rental income?

HOLDING:

Appeals and cross-appeal dismissed.

REASONING:

(1) No. The trial judge misinterpreted the leading case on causation, Clements v Clements, 2012 SCC 32, and what is meant by the "but for" and "material contribution" tests for causation. While she decided to apply the "material contribution" test, she was in fact applying the "but for" test as is evidenced in the findings of fact she made, which are consistent with "but for" causation in this case. The "but for" test is generally applied in establishing causation in the tort of negligence: on a balance of probabilities, without the negligence of one or more of the defendants, the injury would not have occurred. The "but for" test applies even where a defendant's negligence is not the sole cause of the plaintiff's injury.

The "material contribution" test is an alternative and exceptional basis on which legal causation can be established. The test eliminates the need to establish factual causation and is only appropriate in cases where the plaintiff, through no fault of their own, is unable to show that any one of the multiple tortfeasors in fact was the necessary or "but for" cause of the injury, but can show that the defendant's conduct materially contributed to the risk of the injury. The trial judge concluded that the case at bar was an exceptional case which required the use of the "material contribution" test because there were three named defendants and more than three actors whose conduct was considered, including the plaintiffs'. The fact that there are multiple defendants, or more than one potential cause of an injury, is not a reason to depart from the "but for" test for causation (Resurfice Corp v Hanke, 2007 SCC 7). Departing from the "but for" test should only occur where it is impossible to prove which of two or more possible tortious causes is in fact a cause of the injury (Blackwater v Plint, 2005 SCC 58). The trial judge concluded that had Kilpatrick conducted a proper inspection, the fuel oil tank would have been replaced and that if Ultramar had fulfilled its regulatory obligations, the spill could have been avoided. These are "but for" causation findings.

The absence of evidence as to the timing of the corrosive process does not impugn the conclusion that the appellants' other negligent omissions were a cause of the spill. The trial judge made a common sense inference that if the indoor tank had been replaced with a new outdoor tank, it likely wouldn't have corroded and leaked. This was an inference which was open to her to make even in the absence of evidence suggesting a new tank would be less susceptible to corrosion in the absence of evidence to the contrary.

(2) No. The trial judge was entitled to conclude that Ultramar's delivery subcontractor had an ongoing obligation to inspect the tank and to communicate to Ultramar any concern it had with respect to the potential lack of compliance with the regime. The appellants' assertion that the owner had an obligation to inspect under a 2006 Director's Order is inconsistent with the plain language of the Order. The trial judge was also entitled to find that the tank was labelled for indoor use, that the subcontractor failed to identify this, and that Ultramar was liable for the negligence of its subcontractor.

(3) No. While all parties took issue with the apportionment of liability, such decisions are entitled to considerable deference and accordingly, interference requires a demonstrated error (Ingles v Tutkaluk Construction Ltd, [2000] 1 SCR 298). It would have been more appropriate to have allocated liability directly to Kilpatrick or to have found the appellants jointly and severally liable but the end result would have been the same. The trial judge's contributory negligence finding was fair and there was no reason to interfere with it.

(4) No. The trial judge noted that no copy of any contract relied on by the respondents was introduced in evidence and she was therefore not prepared to make findings on the terms as a result. The case was more about negligence, and the trial judge reasonably refused to consider breach of contract claims.

(5) No. The respondents had the onus of satisfying the court that they suffered damages in the form of lost rental income. The trial judge was not satisfied on the evidence that the claim was made out. She found a number of factors might have contributed to a decision to cease being landlords, and that the respondents had only rented their home for six months at the time of the spill. There was no evidence of mitigation.

Kilpatrick argued that it was prevented from testing the claims that the respondents were forced to relocate and accordingly, that the trial judge erred in awarding general damages. The general damages were awarded in respect of the disruption to the respondents' lives, something that they testified about at trial, and which reasonably warranted the modest amounts awarded.

Hearn v McLeod Estate, 2019 ONCA 682

[Lauwers, Pardu, and Nordheimer JJ.A.]

Counsel:

Matthew Fleming and Chloe Snider, for the appellant
No one appearing for the respondents
Michael Panacci for the proposed interveners

FACTS:

The appellant claimed that the respondents sold him a fake painting by a renowned Anishinaage artist, Norval Morrisseau, accompanied by a false provenance statement verifying the painting's authenticity. The appellant sought the return of the $20,000 purchase price, $25,000 in loss of return on investment on the painting, and $50,000 in punitive damages. The trial judge dismissed the appellant's action, leading to this appeal.

ISSUES:

(1) Did the trial judge err in not accepting the expert evidence tendered by the appellant based on his own personal research, which was not in evidence?
(2) Did the trial judge misapprehend the evidence regarding the nature and purpose of the contract between the plaintiff and the defendants?

HOLDING:

Appeal allowed.

REASONING:

As a preliminary note, non-party intervenors were denied a request to adjourn the appeal.

(1) Yes. At trial, the appellant led evidence of an expert in Morrisseau's art. The expert is a professor of Indigenous Art History and has authored several books on Morrisseau's art. The expert testified that, in her opinion, the painting was a forgery. She noted with absolute certainty that the painting was a conglomeration of Morrisseau's techniques and painting elements that were not present in the relevant time period of Morrisseau's career, and that the signature on the back of the painting was not representative of the works she had observed in museums and private collections. During the voir dire to qualify the expert as such, she described her analysis as "Morellian," noting on cross-examination that Morellian analysis is no longer considered the focus of art research, but that it is still one of many tools available.

In the trial judge's analysis and deconstruction of the Morellian method, he drew on numerous critical theorists and their works to ultimately find the expert evidence to be of little value. None of these works were in evidence, and the expert had not been provided an opportunity to respond to them. Referring to information not in evidence and without disclosing it to the parties is a denial of procedural and natural justice (Pfizer Co v Deputy Minister of National Revenue (Customs & Excise), [1977] 1 SCR 456). While there is no obligation on a trial judge to accept all or any of an expert witness' evidence, reasons must be given for rejecting the evidence, and these reasons must be rooted in the evidence before the trial judge (R v Sheppard, 2002 SCC 26). Likewise, in rejecting expert evidence in favour of a contrary theory that was not put to the expert, the trial judge stepped out of his position as an impartial decision maker, and into the role of an art expert posed against the qualified expert witness, which was inappropriate (Phillips v Ford Motor Co of Canada, [1971] 2 OR 637).

(2) Yes. The evidence at trial was that the appellant had been provided with two different provenance statements, which reflected two different ownership lineages; that several of the noted previous owners could not be found or would not confirm that they had owned the painting; and that the expert was of the view that the provenance statement was suspect. The trial judge afforded these facts little weight, and thus misapprehended the contract between the appellant and the defendant. The fact that both of the provenance statements were false means that the appellant did not get what he bargained for, and that he was entitled to a remedy under the Sale of Goods Act, RSO 1990, c S1. The transaction was a sale by description within the meaning of the Sale of Goods Act, and the appellant was entitled to damages in the amount of the estimated loss directly and naturally resulting in the ordinary course from the breach of warranty (Sale of Goods Act, s 51). The appellant was also entitled to expectation damages in the amount that the market established would be the value of a similar genuine Morrisseau painting (Langille v Keneric Tractor Sales Limited, [1987] 2 SCR 440).

A secondary issue was whether civil fraud or misconduct on the part of the defendant occurred to warrant a punitive damages award. The appellant approached the defendant after the Art Gallery of Ontario asserted that the painting was a forgery, and asked for his money back. The defendant refused. The appellant suggested the two work together to investigate the forgery allegation, which the defendant also refused. The defendant was deliberately elusive in demonstrating that the painting was genuine. The elements of civil fraud, namely a knowingly or recklessly false representation was made with the intention that it be relied upon to the receiver's detriment, were fully made out (Bruno Appliance and Furniture Inc v Hryniak, 2014 SCC 8) and modest punitive damages were warranted. The appellant was therefore awarded damages for $50,000 for breach of contract and an additional $10,000 in punitive damages.

N.S. v. R.M., 2019 ONCA 685

[Pardu JA (In Chambers)]

Counsel:

Gordon S. Campbell, for the respondent (Moving Party)
Christian Pilon, for the Applicant (Respondent)

FACTS:

The moving party, the father, moves for a stay pending appeal of the judgment of Doyle, J. of the Superior Court permitting the respondent mother to move the residence of their two children from Orleans, Ontario to Montreal, Quebec.

This was a high conflict custody dispute. The parties had difficulty managing the exchanges of the children to the point that the exchange had to be supervised. Each party blamed the other for this tension, and the children were adversely affected by the hostility between the parents.

In his Notice of Appeal, the father requested an order for joint or shared custody, and an order prohibiting the mother from moving the residence of the children.

ISSUES:

(1) Did the trial judge err by permitting the respondent to move the residence of the children?

HOLDING:

Motion dismissed.

REASONING:

(1) No. An appeal court must not retry a custody case. Instead, the court "must approach the appeal with considerable respect for the task facing a trial judge in difficult family law cases, especially those involving custody and access issues": CS v MS, 2010 ONCA 196; Van de Perre v Edwards, 2001 SCC 60. After a 20-day trial, the trial judgment likely gave effect to the children's best interests.

The father will not suffer irreparable harm if the move is not enjoined before the appeal can be heard. The father can have as much, if not more, time with the children than he had before trial. The mother agreed to transport the children to Ottawa to facilitate the father's access. Travel from Ottawa to Montreal takes two hours by train, which is not a particular hardship for either the parents or the children. Importantly, the frequency of exchanges marked by high levels of tension—which has been hard on the children—will be reduced.

The balance of convenience favours allowing the move to take place. The mother had the substantial responsibility for caring for the children and managing their activities and education. This continues with the trial judgment. The mother has enrolled the children in a new school, while the former school is no longer available. The mother has moved into an apartment in the same building as occupied by her mother. She also has the certain prospect of employment as a property manager if she resides in Montreal.

Having regard to the strength of the grounds of appeal, the absence of irreparable harm, the balance of convenience, and the best interests of the children, the Court was not persuaded that the change of the children's residence to Montreal should be enjoined pending hearing of the appeal.

Erland v Ontario, 2019 ONCA 689

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

Counsel:

T Gleason, for the appellant
DV Abreu and TJ Buckley, for the respondent

FACTS:

In July 2013, the appellant sued R.W. Tomlinson Ltd., the respondent, for damages relating to the flooding of his property. He also sued the Crown in Right of Ontario, the City of Ottawa, and the Rideau Valley Conservation Authority in the same action for contributing to the flooding. In June 2018, the appellant brought a motion for a status hearing under Rule 48.14(5) of the Rules of Civil Procedure. He sought to extend the time to set the matter down for trial beyond its fifth anniversary, at which point the registrar would generally be required to dismiss the action for delay pursuant to Rule 48.14(1). On January 17, 2019, after the status hearing, the motion judge dismissed the action pursuant to Rule 48.14(7)(a), as he found that the appellant had not reasonably explained the delay.

ISSUES:

(1) Did the motion judge err by applying an incorrect test for dismissal for delay?

(2) Did the motion judge err in law by suggesting that the appellant move ahead with scheduling discoveries in light of the pending summary judgment motion?

(3) Did the motion judge err in setting the date at which he required explanation for delay?

(4) Did the motion judge err in dismissing the action when all parties but the appellant consented to a timetable that allowed for an extension?

HOLDING:

Appeal dismissed.

REASONING:

(1) No. The motion judge correctly applied the applicable test from Kara v Arnold that requires the moving party to show cause why the action should not be dismissed for delay by (i) providing an acceptable explanation for delay; and (ii) demonstrating that allowing the action to proceed would not cause the defendant(s) to suffer non-compensable prejudice.

The appellant's first explanation for delay was that his original lawyer had become ill, which necessitated him changing counsel. The motion judge rejected this explanation, stating that he did not "regard the bald assertion that previous counsel was ill as an explanation when that counsel was bringing motions and appearing at case conferences." The motion judge noted that "[i]n any event, the plaintiff has been represented since December of 2015 by highly competent counsel who is well aware of the steps needed to bring an action to conclusion."

Second, the appellant claimed that the respondent's outstanding summary judgment motion had caused the delay in setting the matter down. The motion judge found that the summary judgment motion was not an adequate explanation for the delay because the appellant could still have set the action down for trial.

(2) No. First, the motion judge considered the slow pace of the summary judgment motion and declined to give the factor much weight. Second, this was not a determination of law but a fact-specific determination of whether the appellant had met his onus of explaining the delay. The motion judge's conclusion that the delays related to the summary judgment motion did not adequately explain the delay in setting the matter down for trial was open to him on the record.

(3) No. The Court did not accept the appellant's submission that the motion judge should have confined his inquiry to explanations for delay since September 19, 2016, when Master Champagne made an endorsement adjourning the summary judgment motion. In Stokker v Storoschuk, the Court held that "[w]here delay has been addressed in a prior court order, or consented to, it is any subsequent delay that requires explanation": at para. 5. However, unlike Stokker, and the decisions it cites, the order made on September 19, 2016 neither addressed the overall delay in the action, nor was it a consent order from which it can be inferred that the parties were content with the pace of the litigation. The motion judge was therefore not required to focus only on delay that occurred after this order was made.

(4) No. While a timetable that implicitly allows for an extension signed by all parties can provide relief from dismissal for delay when the requirements of Rule 48.14(4) are satisfied, this does not mean that a timetable unopposed by some of the parties in any way binds the motion judge. The motion judge had clear discretion to dismiss the action for delay even in light of the defendants' consent to the extension.

Lewis v. Lewis, 2019 ONCA 690

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

Counsel:

Patrick J. Kraemer and Brandon Carter, for the appellants
Carol Craig, for the respondents

FACTS:

The appellants appealed from the dismissal of their application in a contested estate proceeding between the children of the late ML. The appellants took issue with the application judge's assessment of the evidence and exercise of his case management discretion. The determinative issue before the application judge was whether ML had the requisite capacity to execute new powers of attorney for care and property.

ISSUES:

(1) Did the application judge err in rejecting the appellants' evidence on the capacity issue?

(2) Did the application judge err in rejecting the appellants' evidence on the suspicious circumstances and undue influence issue?

(3) Did the application judge err in rejecting the appellants' fresh evidence?

(4) Were the application judge's reasons for his decision inadequate?

HOLDING:

Appeal dismissed.

REASONING:

(1) No. The application judge appropriately gave the evidence in question, Dr. D's letter, "basically no weight". The court found that Dr. D did not submit a proper capacity assessment of ML for the time in question, or any other period of time.

(2) No. It was open to the application judge to reject the appellants' submitted evidence as insufficient to establish suspicious circumstances and undue influence. Citing Vout v Hay, the court stated that it was the appellants' burden to establish these allegations on a balance of probabilities.

(3) No. In respect of ML's death certificate, the court found that it would not have changed the outcome if it had been before the application judge, as it had no bearing on ML's capacity.

(4) No. The court found that the application judge's reasons fulfilled the substantive purpose of reasons as set out by the Supreme Court of Canada in F.H. v McDougall.

Davidoff v Sobeys Ontario, 2019 ONCA 684

[Tulloch, Benotto and Huscroft JJ.A.]

Counsel:

AD, acting in person
Zohaib I. Maladwala and Rachel Laurion, for the respondent

Facts:

This is an appeal from the order of the motion judge striking the appellant's Statement of Claim for wrongful dismissal under Rule 21.01(1)(a) of the Rules of Civil Procedure.

The appellant, AD, issued a Statement of Claim on November 1, 2017, wherein he claimed that he was wrongfully dismissed after he discovered fraud on the part of two Sobeys managers. Both parties agreed that the date of the appellant's termination was October 6, 2015. They also agreed that the applicable limitation period for a claim for wrongful dismissal is two years. Accordingly, AD would have needed to issue a Statement of Claim or Notice of Action on or before October 6, 2017.

On September 29, 2017, the appellant mailed a letter to Sobeys' Director of Human Resources entitled "Notice of Action for Wrongful Dismissal and Defamation of [AD]" (the "Letter"). The appellant also emailed the Letter to Sobeys' lawyer. However, the Letter was not in the prescribed form required by Rule 14.03(2) of the Rules, nor signed by the local registrar or stamped with the court's seal. Moreover, the Letter stated that a legal action would be commenced and not that it had been commenced.

The motion judge found that the Letter was not a proper Notice of Action and granted Sobeys' motion to strike the appellant's claim under Rule 21.01 on the basis that it was plain and obvious that the claim was statute-barred. The motion judge awarded costs of $5,000 to Sobeys, although its actual costs were $11,221.13 and its partial indemnity costs were $7,178.44.

Issues:

(1) Did the motion judge err in striking the appellant's Statement of Claim?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The court held that a Notice of Action must meet the requirements in Rule 14.03(2), and the motion judge did not err in finding that the Letter did not meet those requirements. In making its determination, the court noted that the motion judge's finding was one of mixed fact and law and as such, attracted deference absent palpable and overriding error or an extricable error in principle in her analysis of law. This was one of the rare cases in which it was appropriate for the limitation issue to be decided on a Rule 21.01 motion before a statement of defence was filed (see Kaynes v. BP, P.L.C., 2018 ONCA 337). The parties agreed that there were no material facts in dispute.

The motion judge's order of costs was appropriate. Costs awards are discretionary and entitled to deference. The motion judge acknowledged the difficulties of the appellant as a self-represented party, and her award was well within the range of what was fair and reasonable in the circumstances.

Tarantino v. Galvano, 2019 ONCA 699

[Strathy C.J.O., MacPherson and Tulloch JJ.A.]

Counsel:

Nicholas C. Tibollo, for the appellants
Cameron R.B. Fiske, for the respondent

FACTS:

This case involved a dispute regarding the interpretation of the provisions of the Will of the deceased, R. R's granddaughters disputed the amount that N should receive for the personal care that she provided to R for approximately a five-year period.

ISSUES:

(1) Did the trial judge err by failing to decide that N should have paid occupation rent once she had moved into R's home, and failing to set-off the occupation rent against the amount awarded?

(2) Did the trial judge err in her calculation of the occupancy costs owed by N by concluding that the entire utility costs be borne by R?

(3) Did the trial judge err by failing to award R's estate income that had not been accounted for against expenses in the amount of either $5,041 or $4,818?

HOLDING:

Appeal dismissed.

REASONING:

(1) No. While N did remain in the house for 7 years despite the Will stipulating that she may only live there for 6 months, following which she must sell the house, N was specifically prevented from selling the house by the granddaughters until this estate litigation had been resolved.

(2) No. The trial judge determined that despite the mutual agreement of occupancy cost distribution between R and N, in the final five years that N and R lived together, the occupancy costs should be properly attributed to R due to her desperate health situation requiring higher than average occupancy costs.

(3) No. The trial judge stated that the parties could request a case conference to clarify the amounts in her findings, and the granddaughters failed to avail themselves of this opportunity.

SHORT CIVIL DECISIONS

Watto v. Immigration Consultants of Canada Regulatory Council, 2019 ONCA 683

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

Counsel:

MW, in person
Glynnis Hawe, for the respondent

Keywords: Civil Procedure, Appeals, Factum

Sammut v. Doheny, 2019 ONCA 693

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

Counsel:

Gregory Sidlofsky and Peter Askew, for LS
Gosia Bawolska and Kara Denny, for AJD

Keywords: Real Property, Adverse Possession

Makwana v. Bishnu, 2019 ONCA 695

[Sharpe, Trotter and Harvison Young JJ.A.]

Counsel:

G.S. Joseph and M. Newman, for the appellant
Abba Chima, for the respondent, SB
Jameel Madhany, for the respondent, SB
HMW, in person

Keywords: Family Law, Spousal Support, Child Support, Fraudulent Conveyances, Costs

CRIMINAL AND PROVINCIAL OFFENSES DECISIONS

Ontario (Environment, Conservation and Parks) v. Thomas Cavanagh Construction Limited, 2019 ONCA 686

[Pardu J.A. (In Chambers)]

Counsel:

Don Sullivan, for the applicant
Paul McCulloch, for the respondent

Keywords: Provincial Offences, Appeals, Leave to Appeal, Sentencing, Provincial Offences Act, R.S.O. 1990, c. P.33, s. 131(2)

R. v. S.H. (Publication Ban), 2019 ONCA 669

[Simmons, Tulloch and Brown JJ.A.]

Counsel:

Michael Dineen, for the appellant
Dale E. Ives, for the respondent

Keywords: Criminal Law, Evidence, Admissibility, Cell Phones, Opinion Evidence, Rule in Browne v Dunn, Canada Evidence Act, s. 31.1, 31.2, 31.3(a) and 31.3(b), Browne v. Dunn (1893), 6 R. 67 (H.L.)

R. v. E.C. (Publication Ban), 2019 ONCA 688

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

Counsel:

Mabel Lai, for the appellant
Ariel Herscovitch, for the respondent

Keywords: Criminal Law, Sexual Interference, Sentencing, R v Lacasse, 2015 SCC 64, Criminal Code, s. 718.01

R. v. B.J.T. (Publication Ban), 2019 ONCA 694

[Feldman, Paciocco and Zarnett JJ.A.]

Counsel:

Janani Shanmuganathan and Geocelyne Meyers, for B.J.T.
Craig Harper, for the Crown

Keywords: Criminal Law, Sexual Interference, Sexual Assault, Summary Conviction, Sentencing, R. v. Nur, 2015 SCC 15, Criminal Code, s. 151(a), Canadian Charter of Rights and Freedoms, s. 12

R. v. Lisenco, 2019 ONCA 691

[Pardu, Brown and Trotter JJ.A.]

Counsel:

LV, self-represented
Michael Fawcett, for the respondent

Keywords: Criminal Law, Failure to Comply with a Recognizance, Breaking and Entering, Theft, Sentencing, Ineffective Assistance of Counsel

R. v. Melnyk, 2019 ONCA 697

[Pardu, Brown and Trotter JJ.A.]

Counsel:

WM, self-represented
Michael Fawcett, for the respondent

Keywords: Criminal Law, Private Prosecution, Mandamus, Certiorari

ONTARIO REVIEW BOARD

Sheikh (Re), 2019 ONCA 692

[Sharpe, van Rensburg and Thorburn JJ.A.]

Counsel:

Anita Szigeti for the Appellant
Andrew Cappell for the Respondent, Her Majesty the Queen
Janice Blackburn for the Respondent, St. Joseph's Healthcare Hamilton

Keywords: Ontario Review Board, Not Criminally Responsible, Conditional Discharge, R. v. Winko, [1999] 2 S.C.R. 625

The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.

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Events from this Firm
17 Dec 2019, Speaking Engagement, Toronto, Canada

On December 17, Patrick Cummins will be speaking at "The new Cannabis Regulations & how they will impact your practice. Edibles, extracts & topicals, oh my!", a CPD conference presented by the Toronto Lawyers Association.

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