Court Of Appeal Summaries (November 4 – November 8 2019) - Professional Negligence

Good morning.

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

Congratulations to our very own Chad Kopach for successfully acting in First National Financial GP Corporation v. Golden Dragon HO 10 Inc. The case involved a motion by a receiver for directions in respect of the debtors' appeal of a sales approval and vesting order. The sale and vesting order were preserved.

Other topics covered this week included limitation periods to claim SABs, Rule 49, survival of judgments in bankruptcy, agreements of purchase of sale of land, and a sad MVA case involving an eighth grader jumping out the back of a schoolbus.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Civil Decisions

Fortress Carlyle Peter St. Inc. v. Ricki’s Construction and Painting, 2019 ONCA 866

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Specific Performance, Civil Procedure, Appeals, Fresh Evidence, Morgan v Lucky Dog Ltd. (1987), 45 RPR 263 (Ont HCJ), Palmer v The Queen, [1980] 1 SCR 759, Sengmueller v Sengmueller (1994), 17 OR (3d) 208 (CA)

Little v. Floyd Sinton Limited, 2019 ONCA 865

Keywords: Torts, Negligence, Contributory Negligence, Causation, Damages, Mitigation, Collateral Benefits, Family Law Act, RSO 1990, c F 3, s 61, Insurance Act, RSO 1990, c I 8, ss 267.8(4) & (8), Courts of Justice Act RSO 1990, c C43 ss 134(1) & (6)

First National Financial GP Corporation v. Golden Dragon HO 10Inc., 2019 ONCA 873

Keywords: Bankruptcy and Insolvency, Receiverships, Vesting Orders, Civil Procedure, Appeals, Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3., s. 193(c) and 195, 2403177 Ontario Inc. v. Bending Lake Iron Group Limited, 2016 ONCA 225, Downing Street Financial Inc. v. Harmony Village-Sheppard Inc., 2017 ONCA 611

CBM Ready Mix Division v. 8377278 Canada Inc., 2019 ONCA 886

Keywords: Bankrupcty and Insolvency, Civil Procedure, Default Judgments, Survival in Bankruptcy, Fraud, Misappropriation and Defalcation While Acting in Fiduciary Capacity, Fresh Evidence, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, ss. 178(1)(d) and 178(1)(h), Rules of Civil Procedure, Rules 19.04 and 19.05, Batista v. Mason's Masonry Supply Ltd., 2014 ONSC 3955, Simone v. Daley (1999), 43 O.R. (3d) 511 (C.A.), R. v. Palmer, [1980] 1 S.C.R. 759

Barresi v. Jones Lang Lasalle Real Estate Services Inc., 2019 ONCA 884

Keywords: Contracts, Repudiation, Anticipatory Breach, Civil Procedure, Costs, Offers to Settle, Rules of Civil Procedure, Rule 49.10, Guarantee Co. of North America v. Gordon Capital, [1999] 3 S.C.R. 423

Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882

Keywords:Contracts, Interpretation, Insurance, MVA, Statutory Accident Benefits, Civil Procedure, Limitation Periods, Discoverability, Standard of Review, Insurance Act, RSO 1990, c I8, s 281.1(1), Statutory Accident Benefits Schedule – Accidents On or After November 1, 1996, O Reg 403/96 (SABS), s 51(1), Pioneer Corporation v Godfrey, 2019 SCC 42

Short Civil Decisions

Paterson Veterinary Professional Corporation v. Stilton Corp. Ltd.., 2019 ONCA 889

Keywords: Civil Procedure, Costs

Criminal Decisions

R. v. K., 2019 ONCA 868

Keywords:Criminal Law, Second Degree Murder, Evidence, Admissibility, Prior Statements, Voluntariness, Jury Instructions

R. v. M.S. (Publication Ban), 2019 ONCA 869

Keywords:Criminal Law, Sexual Interference, Invitation to Sexual Touching, Sexual Assault, Evidence, Cross-Examination, Credibility, R v TM, 2014 ONCA 854, R v L(L), 2009 ONCA 413, R v Bartholomew, 2019 ONCA 377, R v Batte (2000), 49 OR (3d) 321 (CA)

R. v. M.H., 2019 ONCA 870

Keywords:Criminal Law, Second Degree Murder, Manslaughter, Evidence, Credibility, Reliability

R. v. S., 2019 ONCA 872

Keywords:Criminal Law, Dangerous Driving Causing Death, Driving Prohibition, Sentencing, Sufficiency of Reasons

R. v. R. (Publication Ban) (Appeal Book Endorsement), 2019 ONCA 867

Keywords: Criminal Law, Possession of Child Pornography, Evidence, Search Warrants, R. v. Garofoli, [1990] 2 S.C.R. 1421, R. v. Sadikov, 2014 ONCA 72

R. v. W., 2019 ONCA 878

Keywords: Criminal Law, Robbery, Sentencing

R. v. D. , 2019 ONCA 875

Keywords:Criminal Law, Attempted Murder, Firearms Offences, Sentencing, Parole Eligibility, R. v. Bero (2000), 137 O.A.C. 335 (C.A.), R. v. Brown, 2009 ONCA 563

R. v. L.A., 2019 ONCA 877

Keywords:Criminal Law, Sexual Assault, Defences, Honest but Mistaken Belief, Evidence, Credibility, Criminal Code, R.S.C., 1985, c. C-46, s. 276, R. v. W.(D.), [1991] 1 S.C.R. 742, R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), R. v. Luedecke, 2008 ONCA 716, R. v. Garciacruz, 2015 ONCA 27, R. v. Park, [1995] 2 S.C.R. 836

R. v. A., 2019 ONCA 881

Keywords:Criminal Law, Possession, Evidence, Search Warrants, Confidential Informants, Reasonable and Probably Grounds, Controlled Drugs and Substances Act, S.C. 1996, c. 19, s 5(2), Criminal Code, ss. 487.012(3), 492.1, 492.2, 487.012(3), R. v. Debot, [1989] 2 S.C.R. 1140, R. v. Araujo, 2000 SCC 65, R. v. Nero, 2016 ONCA 160

R. v. S., 2019 ONCA 880

Keywords: Criminal Law, Trafficking, Possession for the Purpose of Trafficking, Sentencing, Aggravating Factors, R. v. Lacasse, 2015 SCC 64

R. v. C., 2019 ONCA 885

Keywords: Criminal Law, Appeal Abandoned

R. v. D., 2019 ONCA 883

Keywords:Criminal Law, Sentencing

R. v. L., 2019 ONCA 879

Keywords: Criminal Law, Appeal Abandoned

R. v. M.S., 2019 ONCA 871

Keywords:Criminal law, Assault, Assault with a Weapon, Sexual Assault, Assault Causing Bodily Harm, Bail, Enforceability and Reviewability Factors, Public Interest, Public Confidence, Similar Fact Evidence, Jury Instructions, Criminal Code, R.S.C. 1985, c. C-46, ss. 515(10)(c), 679(3), R. v. Oland, 2017 SCC 17, R. v. Farinacci (1993), 86 C.C.C. (3d) 32, R. v. M.(B.), 42 O.R. (3d) 1, R. v. B.(F.F.), [1993] 1 S.C.R. 697, R. v. N.P.C., 2007 ONCA 457, R. v. Sandhu, 2009 ONCA 102, R. v. Iraheta, 2018 ONCA 229

R. v. R., 2019 ONCA 874

Keywords:Criminal Law, Evidence, Interpreters

R. v. V., 2019 ONCA 887

Keywords:Criminal Law, Arson, Mischief, Similar Fact Evidence, Sentencing

Ontario Review Board Decisions

T (Re), 2019 ONCA 888

Keywords:Ontario Review Board, Not Criminally Responsible, Criminal Harassment, Breach of Recognizance, Sentencing, Criminal Code, R.S.C., 1985, c. C-46, s. 672.73, 672.78, R. v. Owen, 2003 SCC 33

CIVIL DECISIONS

Fortress Carlyle Peter St. Inc. v. Ricki's Construction and Painting, 2019 ONCA 866

[MacPherson, Pepall and Lauwers JJ.A.]

Counsel:

Daniel Schwartz and Scott McGrath, for the appellant

Maureen L. Whelton and Neil G. Wilson, for the respondent

Keywords:Contracts, Real Property, Agreements of Purchase and Sale of Land, Specific Performance, Civil Procedure, Appeals, Fresh Evidence, Morgan v Lucky Dog Ltd. (1987), 45 RPR 263 (Ont HCJ), Palmer v The Queen, [1980] 1 SCR 759, Sengmueller v Sengmueller (1994), 17 OR (3d) 208 (CA)

facts:

The respondent, Fortress Carlyle Peter St. Inc. ("Fortress"), signed an agreement of purchase and sale ("APS") with the appellant, Ricki's Construction and Painting Inc. ("Ricki's"), to purchase property in Toronto. The transaction did not close and Fortress sued Ricki's for specific performance. The parties brought cross-motions for summary judgment. The motion judge dismissed Ricki's motion for summary judgment, but granted summary judgment in favour of Fortress, and ordered specific performance of the APS. Ricki's appealed that order and sought leave to admit fresh evidence.

issues:

(1) Did the motion judge err in deciding the case on a legal theory that was not pleaded or argued?

(2) Did the motion judge fail to address all of the inconsistencies in the parties' evidence?

(3) Did the motion judge fail to consider key evidence, thereby making palpable and overriding errors with respect to the timeline of events?

(4) Did the motion judge err in failing to find that, even if Ricki's acted in bad faith and was deceitful, specific performance was not justified?

(5) Is this a case in which the court should admit fresh evidence on appeal?

holding:

Appeal dismissed.

reasoning:

(1) No. The motion judge found that Ricki's delay, deceit, and breach of contract in providing an altered estoppel certificate at noon, and its late delivery of the correct estoppel certificate on the day of closing meant it could no longer rely on time being of the essence. Its misconduct precluded that reliance.

(2) No. The court found that the motion judge did explain why he accepted the respondent's evidence and rejected that of the appellant.

(3) No. The court found that the errors were minor in nature and had no impact on the outcome.

(4) No. The court agreed with the motion judge's conclusion that Ricki's delay was a deliberate tactical decision to discomfit the purchaser, Fortress. The court also found that in the event that both parties were in breach, Ricki's still did not have a defence to the claim for specific performance, as under those circumstances, the contract was not at an end.

(5) No. The court found that the circumstances of the case did not meet the legal test for the admission of fresh evidence.

Little v. Floyd Sinton Limited, 2019 ONCA 865

[Tulloch, Roberts and Miller J.A.]

Counsel:

David A. Zuber and James B. Tausendfreund, for the appellant

Paul J. Pape, Shantona Chaudhury, and Brodie Noga, for the respondents

facts:

S.L., a grade 8 student, jumped from the back of a moving school bus and suffered a catastrophic head injury as a result. She had been training as a bus patroller and thus, knew how to open the back door. She further understood that it was dangerous to jump from the back of a school bus while it was moving. The back door of the bus was required to remain unlocked in order for the bus to start. S.L. is now incapable with respect to her personal care and property, and will likely be unable to work or live independently in the future as a result of her injuries. S.L. was found to be 25% contributorily negligent, while the appellant bus company was found to be 75% liable because it failed to follow clear expectations set out in their own handbook by its failure to report re-occurring unsafe acts.

issues:

(1) Did the trial judge misstate the law of negligence and causation in her charge to the jury leading to an unclear finding of causation and a higher proportion of liability assessed by the jury such that its decision was unreasonable?

(2) Did the trial judge erroneously instruct the jury that as a matter of law it could not reduce S.L.'s damages for a failure to mitigate by not implementing specific treatment recommendations?

(3) Did the trial judge fail to reduce S.L.'s damages by the amount of statutory accident benefits she received prior to trial as required by ss. 267.8(4) and (8) of the Insurance Act?

holding:

Appeal allowed in part.

reasoning:

(1) No. The question is whether the charge to the jury provided the jury with adequate assistance to determine the questions it had to decide. The Court found that it did. The trial judge had clearly set out the different factors that led to S.L.'s injuries, namely, the appellant's failure to report the incidents and S.L.'s decision to jump from a moving school bus. The trial judge explained how these factors related to the parties' negligence theories. She correctly explained the difference between the issues of causation and apportionment of liability. She properly reviewed the "but for" test for causation. Furthermore, the trial counsel for the parties drafted this portion of the charge and no objection was taken to it. Additionally, the standard of review of a civil jury verdict is exceptionally high, and should only be set aside where it is so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have arrived at that verdict. That standard was not met in this case.

(2) Yes. The appellant submitted that the trial judge erred by stating that, as a matter of law, the jury could not reduce S.L.'s damages for a failure to mitigate. The appellant argued that the question was one for a trier of fact to decide and there was enough evidence, as a threshold matter, for the issue to have gone to the jury. While the Court of Appeal agreed that the judge erred in removing the question of mitigation from the jury, those errors occasioned no miscarriage of justice, since it would not have affected the trial outcome. Subsection 134(6) of the Courts of Justice Act cautions that an appellate court "shall not direct a new trial unless some substantial wrong or miscarriage of justice has occurred." No substantial wrong or miscarriage of justice can have occurred if the error would not have made any difference to the outcome of the trial. The appellant had not met this stringent standard. There was no medical expert evidence that S.L.'s prognosis would have been different and that her damages would have been reduced had she received the recommended treatment. Specifically, there was no evidence that she would have been able to live independently and become financially self-sufficient. The appellant did not meet its onus to prove that S.L. failed to mitigate her damages. The Court concluded that it was satisfied that no miscarriage of justice occurred from the trial judge's error in failing to put the mitigation issue to the jury in light of the fact that there was no medical expect evidence that any delay in obtaining further psychiatric treatment or residence in a group home would have changed S.L.'s prognosis of disability or reduced her damages.

(3) Yes. The appellant submitted that the trial judge erred in failing to deduct S.L.'s past statutory accident benefits from her award of damages in accordance with the mandatory provisions of ss. 267.8(4) and (8) of the Insurance Act. While the reductions are mandatory, it was common ground that the parties may agree that they not be applied. The appellant submitted that through inadvertence, defence trial counsel failed to note this omission in the formal judgment. It was only when appellate counsel reviewed the file that this omission came to light. In support of this position, the appellant sought to file as fresh evidence the affidavit of its trial counsel explaining his inadvertence. In response, the respondents sought to file as fresh evidence an affidavit from the respondents' trial counsel in which he deposed that counsel agreed that past statutory accident benefits would not be deducted because past damages would not be claimed by S.L. The appellant's trial counsel denied that any such agreement was reached. Since the determination of the parties' differing version of the events would require a finding of credibility, this issue was remitted to the Superior Court for determination.

First National Financial GP Corporation v. Golden Dragon HO 10 Inc., 2019 ONCA 873

[Fairburn J.A. (Motion Judge)]

Counsel:

David Preger and David Seifer, for the moving party, the receiver Deloitte Restructuring
lan Matthews, for the Ministry of Municipal Affairs & Housing
Chad Kopach, for First National Financial GP Corporation
Karen Perron, for Royal United Investments
Martin Diegel, for the responding parties

Keywords:Bankruptcy and Insolvency, Receiverships, Vesting Orders, Civil Procedure, Appeals, Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3., s. 193(c) and 195, 2403177 Ontario Inc. v. Bending Lake Iron Group Limited, 2016 ONCA 225, Downing Street Financial Inc. v. Harmony Village-Sheppard Inc., 2017 ONCA 611

facts:

This was a motion by a receiver for directions in respect of the debtors' appeal of a sales approval and vesting order. The property under receivership was a two-building apartment complex with 30 out of the 110 units used for affordable housing. In May 2019, a motion judge issued an order authorizing the receiver to enter into a listing agreement for the property. On August 27, an agreement of purchase and sale ("APS") was entered into conditional on only one matter, which was waived on September 26, 2019. The APS required that an approval and vesting order be granted within 21 days of the purchaser's waiver and that the transaction close within 10 days following the issuance of that order with a receiver option to postpone closing for up to 60 days.

On the underlying motion, the debtors alleged that the purchase price under the APS did not represent fair market value, pointing to another "higher" offer that was delivered to the receiver on September 19, 2019, after the call for offers had closed, the best offer had been identified, and the APS had been signed by the purchaser and receiver. This late offer was amended on October 4, 2019, to reduce the amount of the purchase price. The motion judge granted the approval and vesting order.

The debtors filed a notice of appeal pursuant to the Courts of Justice Act seeking to set aside the approval and vesting order. The receiver filed this motion for directions seeking declarations that (1) the appeal from the approval and vesting order is governed by the BIA; (2) the appellants do not have an automatic right of appeal under any of ss. 193(a) to (d) of the BIA (and as a result were required to seek leave to appeal pursuant to s. 193(e) of the BIA); and (3) the approval and vesting order is not automatically stayed pursuant to s. 195 of the BIA. Further, in the event the court determined that a stay applied pending the appeal, the receiver sought an order cancelling the stay.

issues:

(1) Is the appeal governed by the BIA?

(2) Do the appellants have a right to appeal under ss. 193(c) of the BIA?

(3) Does section 195 of the BIA apply and, if so, should the stay be cancelled?

holding:

Motion granted.

reasoning:

(1) Yes. Prior to the hearing, the appellants agreed that the appeal is governed by the BIA.

(2) No. The appeal is not governed by s. 193(c) of the BIA, and the appellants must seek leave to appeal under s. 193(e) of the BIA.

S. 193(c) allows an appeal as of right when the property involved in the appeal exceeds in value $10,000. However, when determining the amount of loss in a situation like this case, the court looks beyond the simple question of whether a higher price for the subject property could be obtained. The court must instead focus upon the value of the "loss" that results from the impugned order: 2403177 Ontario Inc. v. Bending Lake Iron Group Limited, 2016 ONCA 225. The court will determine loss by way of a "substantive assessment of competing offers" and not a "mere comparison of formal prices": Downing Street Financial Inc. v. Harmony Village-Sheppard Inc., 2017 ONCA 611.

Justice Fairburn agreed with the receiver that the late and amended late offers were not credible and could not be used to set the benchmark for the fair market value of the subject properties. Both the proposed purchaser and the terms of the late offer rendered it "highly suspicious", "full of risk", and "uncertain", and difficult for the vendor to comply with (particularly the insistence upon estoppel certificates from all of the residential tenants at the properties). In Justice Fairburn's view, the granting of the approval and vesting order did not result in a loss of more than $10,000 because there was no credible evidence to support the position that the receiver could have obtained a higher sales price for the property. Nor was there credible evidence that, when looked at on a more substantive and general level, the receiver could have obtained a better offer.

(3) Yes, if a stay applied, the stay should be cancelled so that the transaction can be completed. Section 195 of the BIA allows a stay to be varied or cancelled for such other reason as the Court of Appeal or a judge thereof may deem proper. Justice Fairburn was of the view that the integrity of the sale process, combined with the costs currently being incurred, and the risks associated with this transaction not being completed, pitted against a very weak appeal, all favoured the lifting of any stay that may be operative under s. 195 of the BIA.

The grounds did not raise a serious issue to be appealed. The notice of appeal referred to only very general grounds, which were largely complaints about findings of fact and appeared to be based upon a desire to factually re-litigate the matter that was already determined by the motion judge. Moreover, if this transaction was lost, Justice Fairburn found that there would be "a serious chilling effect on the market" and a risk that another buyer would not assume the affordable housing agreement that was critical to many people residing in the affordable housing component.

Justice Fairburn concluded that this appeal was not brought under s. 193(c) of the BIA and, therefore, leave to appeal must be sought. Leave to appeal was not properly sought. Even if the appeal was properly constituted under s. 193(c) or leave should have been granted under s. 193(e), Justice Fairburn cancelled any stay of the approval and vesting order pursuant to the powers under s. 195 of the BIA.

CBM Ready Mix Division v. 8377278 Canada Inc., 2019 ONCA 886

[Simmons, Pardu and Nordheimer JJ.A.]

Counsel:

Jonathan Frustaglio and Nicole Abergil, for the appellants

Kelli Preston, for the respondent

facts:

The appellants appeal an order dismissing their motion seeking a declaration that a default judgement entered against the respondent, CM, survived his bankruptcy under ss. 178(1)(d) and 178(1)(h) of the Bankruptcy and Insolvency Act ["BIA"].

issues:

(1) Did the motion judge misapply s. 178(1)(d) of the BIA?

(2) Should the appellants be permitted to introduce fresh evidence?

holding:

Appeal dismissed.

reasoning:

(1) No. The appellants could have moved for a default judgement under Rule 19.05 of the Rules of Civil Procedure which provides much broader relief than the default judgment they obtained under Rule 19.04 (Batista v. Mason's Masonry Supply Ltd., 2014 ONSC 3955 at para 10). The result of the process used by the appellants is that there is no finding that the default judgment involves a claim arising out of "fraud, embezzlement, misappropriate or defalcation while acting in a fiduciary capacity" such that it would be covered by s. 178(1)(d). The appellants' assertion that the misapplication of or failure to account for trust funds constitutes a defalcation is directly contrary to the decision in Simone v. Daley (1999), 43 O.R. (3d) 511 (C.A.).

(2) No. The fresh evidence does not satisfy the requirements set out in R. v. Palmer, [1980] 1 S.C.R. 759.

Barresi v. Jones Lang Lasalle Real Estate Services Inc., 2019 ONCA 884

[Feldman, Fairburn and Jamal JJ.A.]

Counsel:

Jock Climie and Larissa Volinets Schieven, for the appellant/respondent by way of cross-appeal
Sean Bawden, for the respondents/appellants by way of cross-appeal

facts:

This is an appeal from the trial judge's decision that the appellant, a real estate investment management company, repudiated its contract (the "Agreement") with the respondents, a real estate broker ("RB") and his operating company. The respondents cross-appealed with respect to costs.

At trial, Justice Aitken found that the appellant had recruited RB from a competitor to be the "Ottawa Practice Lead" but later repudiated the Agreement after the appellant unilaterally imposed limitations on the respondents' commercial activities, which undercut the respondents' basis for entering the Agreement. The trial judge further found that the respondents accepted the appellant's anticipatory repudiation of the Agreement, which resulted in the automatic forgiveness of a $225,000 loan under a promissory note that formed part of the Agreement. However, she dismissed the respondents' claim for damages for negligent misrepresentation in inducing RB to join the appellant because she found that any such representations were true when made.

The trial judge accepted that the respondents' declaratory judgment for the forgiveness of the $225,000 loan was more favourable than the terms of their offer to settle. However, she exercised her discretion to award $40,000 in costs on the basis that success was divided and she found that RB had acted unreasonably during the litigation process.

issues:

Appeal

(1) Did the trial judge err in failing to identify and properly apply the legal test for anticipatory repudiation?

Cross-Appeal

(2) Did the trial judge err in failing to apply Rule 49.10(1)?

holding:

Appeal dismissed. Cross-appeal allowed.

reasoning:

(1) No. The court held that there was no palpable and overriding error in the trial judge's decision. The trial judge correctly identified that contractual repudiation occurs "by words or conduct evincing an intention not to be bound by contract": Guarantee Co. of North America v. Gordon Capital, [1999] 3 S.C.R. 423 at para. 40. Moreover, the trial judge's application of the test was set out in detailed reasons and involved findings of mixed fact and law to which the court owed substantial deference.

In making its determination, the court rejected the appellant's submission that there could be no repudiation in the instant case since the Agreement expressly permitted the appellant to revoke RB's status as the "Ottawa Practice Lead". The respondents did not assert that RB was removed as the Ottawa Practice Lead. Rather, they asserted that the appellant had repudiated the Agreement by unilaterally imposing limitations on the respondents' commercial activities which fundamentally undercut the respondents' basis for entering the Agreement. Accordingly, the issue of whether the Agreement permitted the appellant to revoke RB's status as Ottawa Practice Lead was irrelevant to whether the appellant repudiated the Agreement.

(2) Yes. The trial judge erred in departing from the presumption under Rule 49.10(1). While Rule 49.10 provides a presumption as to costs where an offer to settle is not accepted, "unless the court orders otherwise", the discretion to depart from the presumption is not unfettered and must be exercised in accordance with the purpose of the rule.

In the instant case, none of the trial judge's reasons justified departure from the presumption in Rule 49.10(1). First, it was an error in principle and plainly wrong for the trial judge to depart from the presumption on the basis that success at trial was divided. Relying on divided success to rebut the presumption would mean that successful parties would obtain the higher costs contemplated by Rule 49.10(1) only if they obtained a judgment that was more favourable than their offer to settle by a sufficiently wide margin. This would frustrate the reasonably predictable application of the rule and distort the incentives to induce settlements and avoid trial. Second, the court held that there was no litigation misconduct on the part of RB. It was clear from the trial judge's reasons that RB had a "poor memory" and was "not making a conscious effort to mislead the court." It therefore could not be said that the interests of justice required a departure from the presumption in Rule 49.10(1) on this ground. Finally, the court noted that providing late answers to undertakings during discovery did not in itself justify departure from the presumption in Rule 49.10(1).

Ultimately, the court held that the trial judge's reasons for departing from the presumption under Rule 49.10(1) involved an error in principle and were plainly wrong. The respondents were entitled to partial indemnity costs up to the date of their Rule 49.10(1) offer and substantial indemnity costs thereafter. The court thus granted leave to appeal and allowed the cross-appeal.

Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882

[Hourigan, Benotto and Fairburn JJA]

Counsel:

J Adair, W Keele, M Valentini, and J Cescon, for the appellant

P Samworth, L Armstrong, and S Thomas, for the respondent

S Rastin, A Voudouris, and S Pasternak, for the intervener Ontario Trial Lawyers Assocation

Keywords: Contracts, Interpretation, Insurance, MVA, Statutory Accident Benefits, Civil Procedure, Limitation Periods, Discoverability, Standard of Review, Insurance Act, RSO 1990, c I8, s 281.1(1), Statutory Accident Benefits Schedule – Accidents On or After November 1, 1996, O Reg 403/96 (SABS), s 51(1), Pioneer Corporation v Godfrey, 2019 SCC 42

facts:

The appellant was a pedestrian and was struck by a motor vehicle on September 12, 2008. The appellant applied to her insurer and received statutory accident benefits for: (i) attendant care benefits, pursuant to s 18 of the SABS; and (ii) housekeeping benefits pursuant to s 22 of the SABS. These benefits are payable for 104 weeks following an accident, unless the beneficiary sustains a "Catastrophic Impairment" ("CAT") and is designated as such. In CAT cases, the 104-week time limit "does not apply": SABS, ss. 18(3) and 22(4).

On August 26, 2010, Economical provided a letter to the appellant to advise her that she would no longer qualify for housekeeping or attendant care benefits past September 12, 2010, because the appellant's injuries did not rise to the level of CAT based on the medical evidence available. However, over the next five years the appellant's condition worsened and on May 13, 2015, her doctor opined that she now met the definition of CAT and that her condition was the result of the September 12, 2008 car accident.

On November 4, 2015, Economical accepted that the appellant was CAT and provided various elevated statutory accident benefits on that basis. However, it refused to provide further attendant care and housekeeping benefits, either for the intervening period between September 2010 and November 2015, or at any point going forward. Economical took the position that it had denied the benefits in its August 26, 2010 letter, and the appellant was out of time based on the two-year limitation period in s 281.1(1) of the Insurance Act and s 51(1) of the SABS.

The appellant appealed Economical's decision to the LAT. The LAT dismissed the appeal on the ground that Economical's August 26, 2010 letter triggered the limitation period, and that the doctrine of discoverability does not apply to such "hard" limitation periods.

On further appeal, the Divisional Court held that the LAT's decision was reasonable and that the legislature intended to enact a hard limitation period triggered by a fixed event to give the insurer a reasonable time period before it could determine its obligation was discharged.

issues:

Is the two-year limitation period in both s 281.1(1) of the Insurance Act and s 51(1) of the SABS subject to discoverability?

holding:

Appeal allowed.

reasoning:

Yes. The Court found it unreasonable to construe the relevant limitation period as a hard limitation period. There is a single reasonable interpretation of s 281.1(1) of the Insurance Act and s 51(1) of the SABS: the limitation period contained in those sections is subject to the rule of discoverability because it is directly tied to the cause of action that an insured can assert when denied benefits. A hard limitation period is contrary to the purposes of the SABS and the Supreme Court's guidance in Pioneer Corporation v Godfrey.

The LAT and the Divisional Court did not have the benefit of the recent Supreme Court of Canada decision in Pioneer Corporation v Godfrey at paras 34-35 that held "where the running of a limitation period is contingent upon the accrual of a cause of action or some other event that can occur only when the plaintiff has knowledge of his or her injury, the discoverability principle applies in order to ensure that the plaintiff had knowledge of the existence of his or her legal rights before such rights expire."

The appellant falls within a small category of victims who suffer from lasting and very serious health impacts as result of a motor vehicle accident. The SABS is supposed to maximize benefits for that class of victims. A hard limitation period prevents the appellant from making a claim for the benefits the SABS are intended to provide. The Court did not see how such a result could be consistent with consumer protection legislation designed to provide fair compensation and minimize economic disruption in the lives of accident victims.

SHORT CIVIL DECISIONS

Paterson Veterinary Professional Corporation v. Stilton Corp. Ltd., 2019 ONCA 889

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

Counsel:

Wojtek Jaskiewicz, for the appellant

David Fogel, for the respondent

Keywords:Civil Procedure, Costs

CRIMINAL DECISIONS

R. v. K., 2019 ONCA 868

[Benotto, Brown and Paciocco JJ.A.]

Counsel:

Lance Beechener and Riaz Sayani, for the appellant

John Patton, for the respondent

Keywords: Criminal Law, Second Degree Murder, Evidence, Admissibility, Prior Statements, Voluntariness, Jury Instructions

R. v. M.S., 2019 ONCA 869

[Benotto, Brown and Paciocco JJ.A]

Counsel:

Mark Halfyard, for the appellant

Elena Middelkamp, for the respondent

R. v. M.H., 2019 ONCA 870

[Benotto, Brown and Paciocco JJ.A.]

Counsel:

Amy J. Ohler, for the appellant

Gavin MacDonald, for the respondent

Keywords:Criminal Law, Second Degree Murder, Manslaughter, Evidence, Credibility, Reliability

R. v. S., 2019 ONCA 872

[Benotto, Brown and Paciocco JJ.A.]

Counsel:

Alan D. Gold and Alex Palamarek, for the appellant

Mabel Lai, for the respondent

Keywords:Criminal Law, Dangerous Driving Causing Death, Driving Prohibition, Sentencing, Sufficiency of Reasons

R v. R., 2019 ONCA 867

[Fairburn, Harvison Young and Thorburn JJ.A.]

Counsel:

Robert Sheppard, for the appellant

Sean Horgan, for the respondent

Keywords:Criminal Law, Possession of Child Pornography, Evidence, Search Warrants, R. v. Garofoli, [1990] 2 S.C.R. 1421, R. v. Sadikov, 2014 ONCA 72

R. v. W., 2019 ONCA 878

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

Counsel:

RSW, appearing in person

Philip Norton, duty counsel

Luke Schwalm, for the respondent

Keywords: Criminal Law, Robbery, Sentencing

R. v. D., 2019 ONCA 875

[Feldman, Trotter and Zarnett JJ.A]

Counsel:

James Lockyer and Jack Gemmell, for the appellant

Robin Flumerfelt, for the respondent

Keywords:Criminal Law, Attempted Murder, Firearms Offences, Sentencing, Parole Eligibility, R. v. Bero (2000), 137 O.A.C. 335 (C.A.), R. v. Brown, 2009 ONCA 563

R. v. L.A., 2019 ONCA 877

[Fairburn, Harvison Young and Thorburn JJ.A.]

Counsel:

Jill Presser and Shakir Rahim, for the appellant

Lisa Joyal, for the respondent

Keywords: Criminal Law, Sexual Assault, Defences, Honest but Mistaken Belief, Evidence, Credibility, Criminal Code, R.S.C., 1985, c. C-46, s. 276, R. v. W.(D.), [1991] 1 S.C.R. 742, R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), R. v. Luedecke, 2008 ONCA 716, R. v. Garciacruz, 2015 ONCA 27, R. v. Park, [1995] 2 S.C.R. 836

R. v. A., 2019 ONCA 881

[Watt, Huscroft and Trotter JJ.A.]

Counsel:

Mark Halfyard, for the appellant
Jennifer Conroy and Geoffrey Roy, for the respondent

R. v. S., 2019 ONCA 880

[Watt, Huscroft and Trotter JJ.A.]

Counsel:

Erec Rolfe, for the appellant
Diana Lumba, for the respondent

Keywords: Criminal Law, Trafficking, Possession for the Purpose of Trafficking, Sentencing, Aggravating Factors, R. v. Lacasse, 2015 SCC 64

R. v. C., 2019 ONCA 885

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

Counsel:

Philip Norton, for the appellant
Luke Schwalm, for the respondent

Keywords: Criminal Law, Appeal Abandoned

R. v. D., 2019 ONCA 883

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

Counsel:

Jeffrey Langevin, for the appellant
Michael Fawcett, for the respondent

Keywords: Criminal Law, Sentencing

R. v. L., 2019 ONCA 879

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

Counsel:

No one appearing for the appellant
Michael Fawcett, for the respondent

Keywords: Criminal Law, Appeal Abandoned

R. v. M.S., 2019 ONCA 871

[Lauwers J.A. (Motion Judge)]

Counsel:

James Lockyer, for the applicant
Kevin Rawluk, for the respondent

R. v. R., 2019 ONCA 874

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

Counsel:

LR, acting in person
Jason A. Morische, for the respondent
Jill Presser, amicus curiae

Keywords:Criminal Law, Evidence, Interpreters

R. v. V., 2019 ONCA 887

[Watt, Huscroft and Trotter JJ.A.]

Counsel:

William Gilmour, for the appellant
Charmaine Wong, for the respondent

Keywords:Criminal Law, Arson, Mischief, Similar Fact Evidence, Sentencing

ONTARIO REVIEW BOARD DECISIONS

T (Re), 2019 ONCA 888

[Fairburn, Harvison Young and Thorburn JJ.A.]

Counsel:

HT, acting in person
Jeff Marshman, appearing as amicus curiae
Nicole Rivers, for the respondent, the Attorney General of Ontario

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be ought about your specific circumstances.

Canada: Court Of Appeal Summaries (November 4 – November 8 2019) Blaney's Appeals

John Polyzogopoulos Blaney McMurtry LLP 416.593.2953 Email

Table of Contents

CIVIL DECISIONS

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facts:

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SHORT CIVIL DECISIONS

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CRIMINAL DECISIONS

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ONTARIO REVIEW BOARD DECISIONS

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Canada: Court Of Appeal Summaries (November 4 – November 8 2019)
Blaney's Appeals

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email