Following are this week's summaries of the civil decisions of the Court of Appeal for Ontario.
In Darmar Farms Inc. v Syngenta Canada Inc., the Court reinstated a claim for negligence in the premature commercialization of a genetically modified corn product that resulted in the ban of all North American corn in China. This flooded the North American market and reduced the sale price. The Court found that the motion judge should not have struck the claim as disclosing no reasonable cause of action. This was a novel claim and the full proximity analysis, known as the Anns/Cooper test, had not been performed. The Court revived the claim, to allow it to proceed to trial.
In Murphy v Savoie, the Court agreed with the trial judge that a Family Protection Coverage endorsement in a commercial auto policy extends to protect the spouse of the named insured if the accident occurred during a time when the named insured could have been using the vehicle. So long as the named insured had the ability to operate the motor vehicle at the time of the accident, it did not matter that he was not in fact "on duty".
Other topics this week included family law, costs in the wills and estates context, contractual interpretation, assessment of accounts in the condominium law context, and stay pending leave to appeal to the Supreme Court of Canada.
Table of Contents
Keywords: Family Law, Custody and Access, Civil Procedure, Fresh Evidence, Divorce Act, RSC 1985, c 3 (2nd Supp), s16, Children's Law Reform Act, RSO 1990, c C 12, s 24, s28, Health Care Consent Act, 1996, SO 1996, c 2, Sched A, s 10, Palmer v The Queen,  1 SCR 759
Keywords: Civil Procedure, Third Party Claims,
Limitation Periods, Discoverability, Appropriate Means, Res
Judicata, Issue Estoppel, Abuse of Process, Limitations
Act, 2002, SO 2002, c 24, ss 5, 18, Toronto (City) v CUPE,
Local 79, 2003 SCC 63, Danyluk v Ainsworth Technologies
Inc., 2001 SCC 44, Mega International Commercial Bank
(Canada) v Yung, 2018 ONCA 429, 407 ETR Concession Co v
Day, 2016 ONCA 709, Ridel Goldberg, 2019
Keywords: Civil Procedure, Appeals, Stay Pending Appeal, Bankruptcy and Insolvency, Bankruptcy and Insolvency Act, s. 269, Supreme Court Act, s. 65.1(1), Iroquois Falls Power Corporation v Ontario Electricity Financial Corporation, 2016 ONCA 616
Keywords: Real Property, Condominiums, Compliance Proceedings, Civil Procedure, Legal Fees, Assessment, Injunctions, Solicitors Act, s 4(1), 9(2), 11, Condominium Act, s 134(1) and (5), 85(1), (2), and (5), Plazavest Financial Corp. v National Bank of Canada (2000), 47 OR (3d) 641, at p 651 (CA)
Keywords: Family Law, Spousal Support, Child Support, Equalization of Net Family Property, Set-Off, Family Law Rules, O. Reg. 114/99, Hickey v Hickey,  2 SCR 518, Senos v Karcz, 2014 ONCA 459, Pirner v Pirner,  OJ No 5093 (CA), Mason v Mason, 2016 ONCA 725, Ludmer v Ludmer, 2014 ONCA 827
Keywords: Contracts, Interpretation, Insurance,
Automobile, Coverage, Underinsurance, Contra Preferentem,
Royal & Sun Alliance Insurance Company of Canada v Intact
Insurance Company, 2017 ONCA 381, Progressive Homes v
Lombard General Insurance Co of Canada, 2010 SCC 33,
Chilton v. Cooperators General Insurance Co (1997), 32
O.R. (3d) 161 (CA), Pilot Insurance Co v Sutherland, 2007
ONCA 492, Scanlon v Castlepoint Development Corp et al,
 OJ No 2692 (CA)
Keywords: Administrative Law, Alcohol and Gaming Regulation, Cannabis Regulation, Judicial Review, Civil Procedure, Appeals, Stay Pending Appeal, Crown Liability and Proceedings Act, 2019, SO 2019, c 7, Sched 17, s 11(2), Cannabis Licence Act, 2018, SO 2018, c 12, Sched. 2, s 48(1) and (2), General, O Reg 468/18, s 8 3(3)
Keywords: Civil Procedure, Costs, Wills and Estates, Conversion, Capacity, Undue Influence, Suspicious Circumstances, Limitation Periods, Sufficiency of Reasons
Keywords: Contracts, Insurance, Automobile, Coverage, Civil Procedure, Determination of Question of Law, Statutory Accident Benefits – accidents on or after November 1, 1996, s. 66, O.Reg. 403/96, Rules of Civil Procedure, Rule 21.01(1)(a), Intact Insurance Co. v Old Republic Insurance Co., 2016 CarswellOnt 7645 (SCJ), Royal & Sun Alliance Insurance Company of Canada v Intact Insurance Company, 2017 ONCA 381
Keywords: Contracts, Interpretation, Exclusion Clauses
Keywords: Contracts, Interpretation, Bankruptcy and Insolvency, Receiverships, Civil Procedure, Applications, Fresh Evidence, Rules of Civil Procedure, Rule 14.06(3), Bankruptcy and Insolvency Act, RSC 1985, c B-3, 671122 Ontario Ltd. v Sagaz Industries Canada Inc., 2001 SCC 59, Western Larch Limited v Di Poce Management Limited, 2013 ONCA 722
Keywords: Contracts, Interpretation, Real Property
Keywords: Torts, Negligence, Duty of Care, Proximity, Anns/Cooper Test, Negligent Misrepresentation, Civil Procedure, Class Proceedings, Striking Pleadings, No Reasonable Cause of Action, Competition Act, RSC 1985, c C-34, s 52, Rules of Civil Procedure, Rule 21.01(1)(b), Nash v. Ontario (1995), 27 OR (3d) 1 (CA), Das v George Weston Ltd., 2018 ONCA 1053, In re Syngenta AG MIR 162 Corn Litigation (2015), 131 F Supp 3d 1177 (D Kan), Kang v Sun Life Assurance Co. of Canada, 2013 ONCA 118, Mortazavi v. University of Toronto, 2013 ONCA 655, Taylor v Canada (Attorney General), 2012 ONCA 479, Pearson v Inco Ltd.,  OTC 919, Gaur v Datta, 2015 ONCA 151, Best v Ranking, 2015 ONSC 6269, Janssen-Ortho Inc. v. Amgen Canada Inc. (2005), 256 DLR (4th) 407, Web Offset Publications Ltd v Vickery (1999), 43 (OR) (3d) 802, R v Imperial Tobacco Canada Ltd., 2011 SCC 42, Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, Design Services Ltd. v. Canada, 2008 SCC 22, Martel Buildings Ltd. v. Canada, 2000 SCC 60, Sauer v Canada (Attorney General), 2007 ONCA 454, Hoffman v Monsanto, 2005 SKQB 225, Donoghue v Stevenson,  AC 562
Short Civil Decisions
Keywords: Contracts, Real Property, Buyer Representation Agreements, Civil Procedure, Summary Judgment, Counterclaims
Keywords: Contracts, Interpretation, Civil Procedure, Settlements, Enforcement, Adjournments
Keywords: Contracts, Civil Procedure, Costs
Keywords: Family Law, Custody and Access, Support, Equalization, Civil Procedure, Orders, Amending, Varying or Setting Aside, Rules of Civil Procedure, Rule 59.06(2)(a)
Keywords: Real Property, Encroachments, Summary Judgment
Keywords: Civil Procedure, Originating Process, Statement of Claim, Service, Extension of Time
Keywords: Civil Procedure, Costs
Keywords: Civil Procedure, Vexatious Litigants, RJR-MacDonald Inc.v Canada (Attorney General),  1 SCR 311
Keywords: Contracts, Interpretation, Real Property
Keywords: Civil Procedure, Oral Discovery, Examination of Non-Parties, R v 1504413 Ontario Limited, 2008 ONCA 253
Keywords: Administrative Law, Regulated Professions, Pharmacists, Judicial Review, Jurisdiction, Civil Procedure, Appeals, Extension of Time, Courts of Justice Act, RSO 1990, c C43, s 21(5), s 6(1)(a), Rules of Civil Procedure, Rule 3.02(1), Keewatin v Ontario (Ministry of Natural Resources) (2003), 66 OR (3d) 370 (Div Ct), Overseas Missionary Fellowship v. 578369 Ontario Ltd. (1990), 73 OR (2d) 73 (CA), Alliance to Protect Prince Edward County v Ontario (Environment and Climate Change), 2018 ONCA 576, 17 C.E.L.R. (4th) 167, and Predie v Ontario (Ministry of the Environment), 2006 CanLII 6450 (Ont CA), Sennek v Carleton Condominium Corporation No. 116, 2017 ONCA 154, Henderson v Henderson, 2014 ONCA 571, 324 OAC 138
Keywords: Civil Procedure, Appeals, Extension of Time, Small Claims Court, Courts of Justice Act, RSO 1990, c C43, s 21(5)
Keywords: Criminal Law, Attempted Murder, Aggravated Assault, Carrying a Concealed Weapon, Breach of Probation, Sentencing, Dangerous Offenders
Keywords: Criminal Law, First Degree Murder, Evidence, Admissibility, Post-Offence Conduct, Jury Instructions, Ineffective Assistance of Counsel
Keywords: Criminal Law, Sexual Offences, Minors
Keywords: Criminal Law, First Degree Murder, Jury Instructions, Sentencing, Youth Criminal Justice Act
Keywords: Criminal Law, Sentencing, Victim Surcharge
Keywords: Criminal Law, Robbery, Jury Instructions
Keywords: Criminal Law, Impaired Driving Causing Death, Criminal Negligence Causing Death, Sentencing, Victim Surchage, Criminal Code, RSC 1985, c C-46, s 220, s 255(3), R v Lacasse, 2015 SCC 64, R v Burke, 2017 BCCA 381
[Pardu, Paciocco and Zarnett JJA]
J Phillips and J Tremain, for the appellant
B Ludmer, for the respondent
C Bellinger and S Stern, for the Office of the Children's Lawyer
B., a 14-year-old boy, had been showing increasing resistance to visits with his father. The trial judge concluded that the mother systematically and successfully poisoned the child's relationship with his father. The mother was clearly uninterested in participating in therapy with a view to encouraging the child to reconcile with his father.
The trial judge concluded that the child's long-term best interests favoured a reversal of custody and a suspension of access, intended to be time-limited, to the mother and her allies, in the hopes that the father and son could achieve some rapprochement. Accordingly, by judgment dated October 30, 2018, the trial judge ordered an immediate custody reversal and prohibited contact between the child and his mother and siblings for six months, with custody and access to be reviewed at the end of the six-month period, subject to certain conditions. In his reasons on motion dated January 18, 2019, the trial judge further ordered no contact between the child and the mother's extended family.
(1) Did both parties meet the test to admit fresh evidence on appeal?
(2) Did the trial judge improperly apply the best interests of the child test?
(3) Did the judge err in imposing a reversal of custody?
(4) Did the trial judge improperly delegate decision-making power to therapists?
(5) Did the trial judge err in ordering the child to participate in reconciliation therapy without the boy's consent to treatment?
(1) Both parties met the test in Palmer v The Queen to admit fresh evidence on appeal: (1) could the evidence have been adduced by due diligence; (2) is the evidence relevant; (3) is the evidence credible; and (4) could the evidence reasonably be expected to affect the result? The Court admitted fresh evidence arising after the trial tendered by both parties, but was not in a position to weight conflicting evidence.
(2) The trial judge's conclusions were reasonably available on the evidence and were entitled to deference. The mother and OCL do not dispute any of the factual findings that informed the best interests of the child analysis. It was therefore difficult to challenge the trial judge's discretionary weighting of different factors, including the consequences of custody reversal, the mother's abusive parenting, and the child's wishes to stay with his mother despite her overt poisoning of his mind towards his father.
(3) No. The clear evidence about risks to the child if he stayed with his mother justified a change in custody and the no-contact order. The trial judge chose this remedy to promote the child's long-term best interests, not to punish the mother. There is also no legal requirement for therapeutic support when custody reversal is contemplated, though it might be helpful in some cases. Here, it would be of doubtful utility, given the mother's refusal to participate in that process.
(4) The Court saw no error in the trial judge setting a target date of 6 months to assess how the therapeutic process was unfolding. The therapists were to submit their reports by March 1, 2019, at which point the trial judge, not the therapists, retained ultimate authority to set a review date for custody and access.
(5) The order under appeal still left some scope for choice on the mother and son's part as to participation in therapy and so the question of forcing treatment on an unwilling participant did not directly arise. It was true that if the child or the mother refused to participate in the therapeutic process, they would lose the opportunity to have a fixed date review of the change in custody, without the need to show a change of circumstances. However, the parties still had to consent to actual treatment. The court has broad discretion to make any orders related to custody and access, including therapeutic intervention, under both section 16(6) of the Divorce Act and section 28(1)(b) and (c) of the Children's Law Reform Act. Section 10 of the Health Care Consent Act that prohibits a health practitioner from administering treatment to a capable person without that person's consent is not a bar to orders for therapy because a child's refusal to participate in a therapeutic intervention will not necessarily determine whether a court can make such an order. Rather, a court must assess the child's maturity and weigh their wishes accordingly, in relation to the various "best interests" factors listed in section 24(2) of the Children's Law Reform Act.
[Feldman, Roberts and Fairburn JJA]
SL Secord, for the appellants
KK Digambar and A Piotrowski, for the respondent
Lilydale suffered a fire in its poultry processing plant in 2004. It sued, inter alia, Meyn in both Alberta and Ontario. Meyn issued third party claims against Allied and Weishaupt. In 2010, Allied was successful in having the third party claim made against it by Meyn in Ontario struck on the ground that it was barred by the Limitations Act, 2002. Meyn took no position and did not attend the motion. In 2017, Weishaupt brought a motion to dismiss the third party claim against it on the same basis. The motion judge granted summary judgement in favour of Weishaupt but on the basis of issue estoppel, finding that the issues in Meyn's third party claim against Weishaupt had already been litigated in the Allied motion. The motion judge declined to address the limitations period argument. Meyn appealed the decision.
(1) Did the motion judge err by applying the doctrine of issue estoppel?
(2) Did the motion judge err by applying the doctrine of abuse of process?
(3) If yes, is Meyn's third party claim against Weishaupt statute-barred?
(a) Does the risk of attornment and prejudice to the forum motion postpone the commencement of the limitation period
(b) Was it legally inappropriate to bring third party proceedings before the forum issue had been determined?
(1) Yes. Issue estoppel is a branch of res judicata which requires three preconditions: the issue must be the same as one decided prior; the prior judicial decision must have been final, and the parties to both proceedings must be the same (Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44). The motion judge concluded that even though Weishaupt was not a party to the Allied motion, the third issue estoppel precondition of mutuality was still met because Weishaupt was a party to the underlying proceeding commenced by Lilydale. It is unfair to bind Weishaupt to a decision that it had no right to participate in and to bind Meyn to a decision that it chose not to dispute. The mutuality precondition is not met because Weishaupt was not a party to the Allied motion.
(2) Yes. The abuse of process doctrine can be applied where the requirements of issue estoppel may not be met to prevent what is essentially the re-litigation of an issue. The motion judge found, in the alternative, that Meyn was precluded from bringing its third party claim against Weishaupt on the ground of abuse of process. The motion judge should have rejected this because by the time the Weishaupt motion was argued, the law with respect to sections 5 and 18 of the Limitations Act had changed by Mega International Commercial Bank (Canada) v. Yung, 2018 ONCA 429 and because it was unfair to penalize Meyn for not participating in the Allied motion.
(3) Yes. Meyn relied under the fourth criterion that governs the discovery date for a claim under s. 5(1)(a) of the Limitations Act. Its position was that it was not legally appropriate to bring third party proceedings until the forum issue was decided in 2008 at which point, the limitation period began to run (407 ETR Concession Co v. Day, 2016 ONCA 709).
(a) No. Meyn argued that its position on the forum motion could have been prejudiced by filing the third party claim in Ontario. Tactical choices that arise during litigation do not delay the commencement of the limitation period (Federation Insurance Co of Canada v. Markel Insurance Co of Canada, 2012 ONCA 218). Meyn could have taken several avenues to avoid the consequences of a limitation period expiring and did not.
(b) No. A forum challenge does not resolve the dispute between the parties but merely moves the dispute to a court in another jurisdiction. It is thus not an alternative process (Ridel v. Goldberg, 2019 ONCA 636). In this case, there was no alternative resolution process to which Weishaupt was a party that could have resolved the issue between it and Meyn. Allowing parties to wait, at their own discretion, for other court or arbitral proceedings to conclude where the result could obviate the need to bring a claim that they know exists is inconsistent with the Limitations Act, 2002. Meyn discovered its third party claims in March 2006, did not bring them until November 2008, and was statute-barred as a result
R Rastorp and A Jazayeri, for the moving party A.H.T.
I Ishai, for the responding party C.B. and J.W., the Foreign Representatives and trustees in bankruptcy of J.H.T.
The moving party A.H.T. is the son of J.H.T., who has been adjudged bankrupt by a Hong Kong court. A judge of the Commercial List enforced letters of request from the Hong Kong court and ordered A.H.T. to produce documents relating to his father's bankrupt estate and attend for examinations. The Court of Appeal quashed an appeal from that order. A.H.T. has applied for leave to appeal to the Supreme Court of Canada from that order. He then moved for a stay of the production and examination order pending the determination of his leave application
Has the appellant met the test for granting a stay pending an application for leave to appeal to the Supreme Court?
Motion granted, but on specific terms.
Yes. The judge applied the well-established test, which stipulates that the moving party must demonstrate: (i) there is a serious issue to be adjudicated on its proposed appeal, including that the appeal raises an issue of public or national importance; (ii) it will suffer irreparable harm if the stay is not granted; and (iii) the balance of convenience favours granting the stay.
While the judge struggled to find that A.H.T.'s issue was of public importance, his submission that he would suffer irreparable harm was accepted on the basis that to refuse a stay would render A.H.T.'s appeal moot. With respect to the third consideration, the judge found that while a further four or five months in addition to the nearly two years since the Order does not constitute an unduly long delay, A.H.T.'s delays in bringing this motion weakened A.H.T.'s argument. For this reason, the judge concluded that the stay will be granted, but on terms that give some effect to the request for assistance by the Hong Kong court.
[Paciocco, Harvison Young and Zarnett JJA]
BJ Rutherford, for the appellant in appeal and respondent in cross appeal
E Savas, for the respondents in appeal and appellants in cross appeal
The appellant ("Ms. Temedio") purchased a residential unit in Niagara North Condominium No. 6 (the "Corporation") for her grandson and his mother, Ms. Watson. Disputes arose between Ms. Watson and the tenant of another unit in the building and the Corporation retained lawyers, giving rise to one set of legal bills (the "pre-litigation bills"). Proceedings were brought by the Corporation against Ms. Temedio and Ms. Watson seeking an order that Ms. Watson and her son permanently vacate the unit, or that she comply with the rules of the Condominium and refrain from causing undue noise (the "compliance proceeding"), giving rise to a second set of legal bills from the lawyers to the Corporation (the "compliance proceeding bills").
Taylor J. heard the compliance proceeding and refused to order the eviction of Ms. Watson from the unit, instead ordering that Ms. Watson comply with the rules of the Condominium and that Ms. Temedio take reasonable steps to ensure that occurred. Taylor J. also dismissed Ms. Temedio's request to remove the lien the Corporation had registered against her unit on January 20, 2015 to secure the pre-litigation bills of $1,714.20. Ms. Temedio sought to appeal the decision of Taylor J. but did so beyond the applicable time limit. Her motion to extend the time to appeal was opposed by the Corporation, and this generated a third set of legal bills from the lawyers (the "appeal bills").
Ms. Temedio commenced an application for the assessment of legal bills rendered by the lawyers to the Corporation, on the basis that she was liable to pay the proper amount of those legal bills. She also sought an injunction restraining the Corporation from enforcing the lien it had registered against her condominium unit to secure payment of those legal bills, until after any assessment was concluded. The application judge referred the appeal bills to assessment in St. Catharines, but otherwise denied the relief Ms. Temedio had sought because she had not established special circumstances with respect to the pre-litigation bills or the compliance proceeding bills. Ms. Temedio appealed seeking the balance of the relief she sought, including that any assessment be in Toronto. The lawyers and the Corporation cross-appealed, arguing that no assessment at all should have been ordered.
(1) Did the application judge err in not finding special circumstances for both the pre-litigation and compliance proceeding bills?
(2) Did the application judge err in exercising her discretion to order that the assessment take place in St. Catharines?
(3) Did the application judge err in dismissing the request for an injunction?
(1) Yes. The court held that the application judge made an error in principle. The application judge failed to advert to and apply the principle that a third party should be given more favorable consideration than the client who received and paid the account: Plazavest Financial Corp. v. National Bank of Canada (2000) at p 651.
The application judge also failed to take into account the questions raised about the fees charged in Taylor J.'s finding about why the Corporation's legal bills may have risen to what they were. Taylor J. voiced his disapproval of the conduct of the Corporation in seeking the extreme remedy of eviction and limited the Corporation to an award of $2,500 in costs for the compliance proceeding. This raised questions about the extent to which the fees charged may include amounts for pursuing the failed eviction strategy and the heavy-handed approach and the total fees of $52,000 charged for that proceeding. Taken together and viewed in light of the correct principle that a request of a third party like Ms. Temedio is entitled in law to favorable consideration, the Court found that sufficient special circumstances existed to warrant a review of the compliance proceeding bills at an assessment.
The Court also included the pre-litigation bills in the assessment because it did not view Taylor J.'s ruling about the ability of the Corporation to register a lien for those bills to be a ruling on their quantum or to preclude assessment to determine their appropriate amount. Based on the determination that the pre-litigation and compliance proceeding bills should proceed to assessment, the Court held that the cross appeal of the Corporation must fail.
(2) No. The Court declined to interfere with the order of the application judge as to the place of assessment because the application judge did not err in exercising her discretion to order that the assessment take place in St. Catharines.
(3) Yes. The application judge erred in finding that there was no irreparable harm due to an absence of evidence about Ms. Temedio's grandson's condition. Also, the application judge's finding that the balance of convenience favoured the Corporation was premised on the limited assessment she ordered. Since all of the bills are to be assessed, and since according to the Corporation's counsel an assessment in St. Catharines will not involve significant delay, the Court held that the balance of convenience favoured the granting of an injunction.
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