Court Of Appeal Summaries (November 20 – November 24) - Civil Law

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of November 20, 2023.

Brian Huber Holdings Ltd. v. West Perth (Regional Municipality) was a dispute over whether a 50-year old cost sharing agreement was triggered, which would require significant payments by the municipality to the original developer, when a new development was proposed adjacent to the one built 50 years ago. The issue was whether the new development would benefit from the servicing installed by the original developer 50 years ago. The Court agreed with the court below that the cost sharing was not triggered, and dismissed the appeal.

In Benzacar v. Terk, the Court detailed the process for garnishing wages and making a garnishee liable for a portion of the judgment for failing to properly respond to a garnishment.

In SIR Corp v Aviva Insurance Company of Canada, SIR, which owns numerous Jack Astors restaurants, was denied business interruption coverage under its insurance policy for losses incurred due to COVID-19 pandemic restrictions that closed restaurants. The Court upheld the application judge's dismissal of the coverage claim, noting that the policy did not cover losses unless access to premises was impaired due to a 'peril insured or threat thereof', and COVID-19 was not deemed a 'catastrophe' within the meaning of the policy. The Court also denied the insured leave to appeal the $100,000 costs award..

In Wasylyk v. Simcoe (County), the County of Simcoe was held 100% liable at trial for a catastrophic car accident due to the failure to adequately clear ice and snow from the road. The Court dismissed the appeal.

Civil Decisions

Brian Huber Holdings Ltd. v. West Perth (Regional Municipality), 2023 ONCA 775

Keywords: Contracts, Interpretation, Real Property, Land Development, Subdivision Agreements, Cost-Sharing Agreements, Rules of Civil Procedure, r 14.05, Prism Resources Inc. v. Detour Gold Corporation, 2022 ONCA 326, Canadian Pacific Hotels Ltd. v. Bank of Montreal, [1987] 1 S.C.R. 711

Benzacar v. Terk , 2023 ONCA 773

Keywords: Civil Procedure, Orders, Enforcement, Garnishments, Wages Act, R.S.O. 1990, c. W.1, s. 7, Rules of Civil Procedure, r. 60.08, Entes Industrial Plants Construction & Erection Contracting Co. Inc. v. Centerra Gold Inc., 2023 ONCA 294, Turchiaro v. Liorti, [2004] O.J. No., aff'd [2006] O.J. No.1113 (C.A.), Century Services Inc. v. Canada (Attorney General), 2010 SCC 60

SIR Corp. v. Aviva Insurance Company of Canada, 2023 ONCA 778

Keywords: Contracts, Insurance, Coverage, COVID-19, Estoppel by Representation, Civil Procedure, Costs, Insurance Act, R.S.O. 1990, c. I.8, s. 124(1), Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9, Rules of Civil Procedure, r. 54, Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53, Ledcor Construction Ltd v Northbridge Indemnity Insurance Co, 2016 SCC 37, Jesuit Fathers of Upper Canada v Guardian Insurance Co of Canada, 2006 SCC 21, Sky Clean Energy Ltd (Sky Solar (Canada) Ltd) v Economical Mutual Insurance Company, 2020 ONCA 558, Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33, Sabean v Portage La Prairie Mutual Insurance Co, 2017 SCC 7, Carter v Intact Insurance Company, 2016 ONCA 917, MDS Inc v Factory Mutual Insurance Company, 2021 ONCA 594, Pilot Insurance Company v Sutherland, 2007 ONCA 492, Lloyds Syndicate 1221 (Millennium Syndicate) v Coventree Inc, 2012 ONCA 341, Sagl v Chubb Insurance Company of Canada, 2009 ONCA 388, Canadian National Railway Co v Royal and Sun Alliance Insurance Co of Canada, 2008 SCC 66, Le Treport Wedding & Convention Centre Ltd v Co-operators General Insurance Company, 2020 ONCA 487, EPCOR Electricity Distribution Ontario Inc v Municipal Electric Association Reciprocal Insurance Exchange, 2022 ONCA 514, Cabell v The Personal Insurance Company, 2011 ONCA 105, LCA Marrickville Pty Limited v Swiss Re International SE, [2022] FCAFC 17, Star Entertainment Group Limited v Chubb Insurance Australia Ltd, [2022] FCAFC 16, Tomko v Wawanesa Mutual Insurance Co et al, 2007 MBCA 8, National Bank of Greece (Canada) v Katsikonouris, [1990] 2 S.C.R. 1029, Stag Line, Limited v Foscolo, Mango & Co, Ltd, [1932] AC 328 (UK HL), Sher-Bett Construction (Manitoba) Inc v The Co-operators General Insurance Company, 2021 MBCA 10, Ontario v St. Paul Fire and Marine Insurance Company, 2021 ONSC 7786, Ryan v Moore, 2005 SCC 38, Fram Elgin Mills 90 Inc v Romandale Farms Limited, 2021 ONCA 201

Wasylyk v. Simcoe (County), 2023 ONCA 781

Keywords: Torts, Negligence, MVA, Rebuttable Presumption, Causation, Defences, Contributory Negligence, Municipal Act, 2001, S.O. c. 25, Fordham v. Dutton-Dunwich (Municipality), 2014 ONCA 891, Housen v. Nikolaisen, [2002] SCC 35, L. (H.) v. Canada (AG), [2005] SCC, Farej v. Fellows, [2022] ONCA 254, R. v. Sheppard, [2002] SCC 26, R. v. G.F., [2021] SCC 20, Lloyd v. Bush, 2017 ONCA 252, Kamin v. Kawartha Dairy Ltd. (2006), 79 O.R. (3d) 284 (C.A.), Giuliani v. Halton (Regional Municipality), 2011 ONCA 812, El Dali v. Panjalingam, 2013 ONCA 24, Giuliani v. Halton (Regional Municipality), 2010 ONSC 4630, Greer (Litigation Guardian of) v. Kurtz, [2008] O.J. No. 2185 (SCJ), Belanger v. Sudbury (Regional Municipality), 2017 ONCA 428

Short Civil Decisions

Voreon Inc. v. Matas Management Services Inc., 2023 ONCA 779

Keywords: Costs

Bell v. Long, 2023 ONCA 785

Keywords: Costs

Chippewas of Nawash Unceded First Nation v. Canada, 2023 ONCA 787

Keywords: Aboriginal Law, Costs, Le Treport Wedding & Convention Centre Ltd. v Co-operators General Insurance Company, 2020 ONCA 556, William v British Columbia, 2013 BCCA 1

CIVIL DECISIONS

Brian Huber Holdings Ltd. v. West Perth (Regional Municipality), 2023 ONCA 775

[Trotter, Sossin and Monahan JJ.A.]

COUNSEL:

J. Damstra, for the appellant

S.J. O'Melia, for the respondent

FACTS:

This appeal arose from the interpretation of a cost-sharing provision in a Subdivision Agreement (the "Agreement") that was entered into almost 50 years ago.

Arris Land Development Corporation ("Arris") entered into the Agreement with the Township of Mitchell. In 1982, Arris sold its assets and assigned its rights and obligations under the subdivision to the appellant, Brian Huber Holdings Ltd. ("Huber"), while the Township of Mitchell, along with the Townships of Logan, Hibbert, and Fullarton, were amalgamated into the Corporation of the Municipality of West Perth ("West Perth").

At the heart of this dispute was a provision entitled "Cost Sharing," found in Schedule B to the Agreement. The effect of the provision is that West Perth is responsible for collecting monies from purchasers if and when the lands adjacent to the subdivision are developed, and then paying them to Huber (less a collection fee). The clear intention of this arrangement was to compensate Huber for the upfront costs expended in building the infrastructure that will benefit abutting lands. The amount of these payments is determined on the basis of the proportions set out in a table, plus interest. Because interest is calculated on a compounded basis from the date of the Agreement, the amounts are significant.

The issue arose when West Perth refused to comply with this provision, arguing it was not legally enforceable and later stating no benefit was derived from Huber's improvements in a new adjacent subdivision. Huber brought an application under Rule 14.05 of the Rules of Civil Procedure seeking various declarations and damages.

The application judge found that West Perth only had to seek reimbursement from a developer or builder on the lands adjacent to the subdivision if the developer or builder derived a benefit from the improvements installed by Huber. That obligation was not triggered by the proposed subdivision because there was no benefit to be derived. Accordingly, West Perth did not breach the Agreement.

ISSUES:

Did the application judge err by not constructing the cost-sharing provision as a whole?
Did the application judge err in his assessment of the commercial efficacy of his interpretation of the provision?
Did the application judge err by implying a term when it was unnecessary to do so?
Did the application judge err in concluding that there was no evidence that the builders of the new subdivision would benefit from the services installed as part of Arthur Street?

HOLDING:

Appeal dismissed.

REASONING:

The application judge identified the applicable principles of contractual interpretation. In applying these principles, he considered the Agreement as a whole. The Court disagreed with the appellant's submission that, in his interpretation of the cost-sharing provision, the application judge failed to consider the table to which it referred. The table details the proportionate contributions of Huber and whoever acquires and builds on the adjacent lands. However, the actual proportions were not in issue on the application; instead, the question was whether the cost-sharing provision was triggered in the first place. The table provided no assistance on this issue.

Another strand of this same submission was that the application judge failed to give effect to the following clause: "Upon the application of the relevant owner for a sub-divider's agreement or if none, for a building permit, the Town shall collect from such owner the share charged against him for the construction of the aforementioned services". The appellant submitted that West Perth's obligations would be triggered upon the issuance of a building permit, even if the structure to be built did not require connection to the Arthur Street road or sanitary/storm sewers.

The Court agreed that the application judge did not specifically analyze the words of the provision in his written reasons. However, the scenario posed by the appellant was not helpful to its cause. The Court noted that it was inconceivable that, at the time of the Agreement, the parties would have contemplated West Perth extracting payment under the Agreement from a farming family who builds a structure upon their lands, one that does not require any of the Arthur Street servicing. Any other interpretation would be unreasonable.

The appellant submitted that the application judge erred in his conclusion that Huber's interpretation of the Agreement was "divorced from commercial sense" and that it made "no sense in the context of the purpose of the agreement and does not make good business sense". The appellant submitted that the application judge erred in making this assessment from a subjective perspective, rather than looking at the matter objectively. The Court disagreed, finding that the application judge's analysis was sound and fair, and construed the Agreement in a reasonable manner.

The Court held that the appellant was correct that, in the course of his reasons, the application judge referred to the fact that the newly proposed development would not need to connect to the Arthur Street "water lines". This service was beyond the scope of the Agreement between Huber and West Perth. It was the subject of an agreement with a public utility. In the Court's view, this reference was minor and did not detract from the application judge's firm grasp of the focus and operation of the Agreement.

The appellant submitted that the application judge erred in concluding that there was no evidence that the lands adjacent to the subdivision gained any benefit from the services that were part of Arthur Street. In the Court's view, there was an evidentiary basis in the record to ground the application judge's conclusion on this issue. A sworn affidavit was introduced, which placed the issue squarely in play. It was open to the appellant to adduce evidence on this issue, or to request an adjournment of the application to seek a different opinion. Similarly, it could have applied to adduce fresh evidence on appeal. However, none of these options were pursued. In conclusion, the obligations of West Perth under the cost-sharing provision of the Agreement were not triggered in this case. The application judge made no error in so finding.

Benzacar v. Terk, 2023 ONCA 773

[Lauwers, Zarnett and Thorburn JJ.A.]

COUNSEL:

C. MacLeod and N. J. Kasozi, for the appellant

C. A.L. Caruana, for the respondents 6990371 Canada Inc., 6044402 NB Ltd., and 4106971 Canada Inc.

I.T. , acting in person

FACTS:

The appellant, AB, and the respondent, IT, are former spouses. For many years AB had been attempting to collect amounts IT was ordered to pay to her under a 2011 Quebec Superior Court judgment and a 2017 Ontario Superior Court order.

AB attempted to collect the debt owing by way of garnishment pursuant to r. 60.08 of the Rules of Civil Procedure. AB sought to garnish debts owing to IT by the respondents 604402 NB Ltd. ("604") and 4106971 Canada Inc. ("410"). IT is a salaried employee of 604 and, through a corporation that was found by the motion judge to be his alter ego, is a recipient of management fees it pays.

Under r. 60.08 a creditor who holds an order for the payment of money may enforce it by garnishment of debts payable to the debtor, that is, IT, by other persons ("garnishees" − 604 and 410). A garnishee who wishes to dispute the garnishment in whole or in part must serve a garnishee's statement in a prescribed form within 10 days after service of the notice of garnishment. The form requires the garnishee to acknowledge what debts are or will be owing, or to explain why there are and will be none.

After being served with notices of garnishment in 2017, both 604 and 410 filed garnishee statements, prepared and signed on their behalf by IT. The garnishee statements did not acknowledge that there were or would be any debts owing by either company to IT. Only the part of each form applicable to a garnishee who does and will not owe any money to the debtor was filled out. However, between 2019 and 2021, 604 did pay certain amounts to the sheriff, representing 20% of the amounts it actually paid as salary in those years to IT.

On a motion by AB contending that the response of the garnishees was inadequate, the motion judge granted certain relief. AB appealed, arguing that the relief granted did not go far enough.

ISSUES:

Did the motion judge err in failing to find that 604 filed a false garnishee statement and that as a consequence, 604 was liable for the entire judgment debt owed to her?
Did the motion judge err in failing to find that the CBTI payment was subject to the garnishment?
Should the salary for 2018 have been imputed to Mr. T, with 40% of it being garnished?

HOLDING:

Appeal allowed.

REASONING:

Yes.

Subrule 60.08(17) speaks of a creditor's entitlement to an order in the lesser of two specified amounts if a garnishee statement is not served and filed. The first inquiry is whether a garnishee's statement has been served and filed. This includes determining whether a statement that was served and filed is, by reason of material misrepresentations or omissions, in effect no statement at all, a question of mixed fact and law. If no statement has been served and filed, the court's second task is to determine the amount payable by the garnishee to the debtor, another question of mixed fact and law. The court's third task is, as a matter of law, to give effect to the creditor's entitlement to an order in the lesser of the amount payable by the garnishee to the debtor or the amount in the notice. The usual appellate standards of review to each of these inquiries should apply. The court is not granted a discretion to do other than as the subrule dictates.

The proposition that if a garnishee statement proves to be false, the court may treat the garnishee as though it has not filed the required statement at all in Turchiaro is subject to two caveats. First, the statement must be materially false. Second, there must be no reasonable justification for the statement's incorrect content. A garnishee must file a garnishee statement if it wishes to contest the garnishment, in whole or in part: r. 60.08(15).

The statement must acknowledge what is or will be owing or declare that nothing is or will be, with an explanation. An acknowledgment that there is a debt owing by the garnishee to the debtor triggers an obligation on the garnishee to make a payment to the sheriff: r. 60.08(14). A proper denial of any debt, with a proper explanation, provides the creditor with information so that it may consider what other steps might be taken. A garnishee statement that falsely claims no debt is or will be owing when one is or will be, or that provides misleading or incomplete information in support of a false assertion of no indebtedness, is the antithesis of what is required of a garnishee statement.

Whether a garnishee statement is materially false without reasonable justification must be judged by assessing it as a whole, taking into account what it says and what it omits to say on the subjects the statement is required to address.

The motion judge failed to assess 604's statement against the facts that she had found and in light of the clear message it conveyed as a whole. The 604 statement left the first required paragraph totally blank. That paragraph must be filled in when the garnishee has or will owe money to the debtor. The 604 statement did fill in the second paragraph. That paragraph is only applicable when there is or will be no money owing by the garnishee. The clear import of the statement is that there were and would be no debts owing by 604 to IT. 604 was indebted to IT at the time of the garnishee statement, and the first paragraph should have been filled in and so indicated.

Moreover, the required form for a garnishee statement required disclosure not only of what is owed but of what the garnishee will owe because of arrangements existing when the garnishment notice is served. The salary and management fee arrangements existing at the time the garnishment notice was served would result in debts of 604 to IT that would fall due in the period following the service of the garnishment notice. 604's statement failed to make this necessary disclosure.

604's garnishee statement was materially false. No reasonable justification for the inaccurate statement was suggested. Neither 604's payment to the sheriff of a portion of the salary payments it actually made to IT after the notice of garnishment was served, nor the motion judge's order requiring payment to the sheriff in respect of payments by 604 to Ego Capital, cured the falsity of the statement itself.

The motion judge erred in refusing to make an order under r. 60.08(17). The garnishee statement should have been treated as no statement at all. Pursuant to the rule, AB was entitled to an order for payment by 604 of the amount in the notice of garnishment served on 604 ($256,143.49), unless the amount payable by 604 to IT was less than that amount. The phrase "amount ... payable to the debtor by the garnishee" in r. 60.08(17) would appear to refer to the amount payable at the time the court makes (or should have made) a finding, which would be the date of the motion judge's decision. The motion judge did not make a specific finding of what amount was payable to the debtor, IT, by the garnishee, 604.

What was payable by 604 to IT exceeded what was paid and exceeded the amount in the notice of garnishment. The motion judge found that the salary arrangements in place for IT prior to service of the notice of garnishment called for payments of $220,000 per year plus car allowance. IT's legal entitlement to salary was, in the relevant time frame, always for these amounts, which clearly exceeds what he was paid.

2 and 3.

The Court held that it was unnecessary to address these issues due to the disposition of the first issue.

SIR Corp. v. Aviva Insurance Company of Canada, 2023 ONCA 778

[Hoy, Benotto and Favreau JJ.A.]

COUNSEL:

R. Barnable and M. Sharp, for the appellants

E. Snow and M. C. Mandelker, for the respondent

FACTS:

Facts:

The appellants, SIR Corp. and related entities (collectively "SIR"), owned and operated approximately 60 restaurants. During the COVID-19 pandemic, an emergency order under the Emergency Management and Civil Protection Act, and similar orders in other provinces of Canada and in the State of New York (collectively, the "Orders") prevented SIR from offering in-person dining at its restaurants.

SIR applied for a declaration that it was entitled to coverage under an insurance policy, covering the period September 30, 2019 to September 30, 2020, issued by the respondent (the "Policy"), Aviva Insurance Company of Canada ("Aviva"), for damage to its food and beer stock and for business losses allegedly suffered as a result of the Orders. If successful, SIR sought an order directing a reference under r. 54 of the Rules of Civil Procedure, to determine the quantum of its losses.

The application judge determined that the Policy did not cover SIR's losses and dismissed SIR's application, awarding costs to Aviva. She also rejected SIR's alternative argument that Aviva was estopped from denying coverage because it had covered a similar claim in January 2020 at a SIR restaurant in St. John's, Newfoundland and Labrador, which occurred when a government-declared state of emergency was in effect. SIR appealed the dismissal of its application and sought leave to appeal the costs award.

ISSUES:

Did the application judge err in determining that the Policy did not cover SIR's losses?
Did the application judge err in rejecting SIR's estoppel argument?
Did the application judge err in awarding costs to Aviva?

HOLDING:

Appeal dismissed.

REASONING:

Contractual interpretation is a question of mixed fact and law subject to deferential review on appeal. The Court would not intervene unless the application judge made a palpable and overriding error in her interpretation of the Policy or an extricable error of law, in which case the standard of review was correctness.

The Court agreed with SIR that the application judge committed an extricable legal error by treating the Binder as forming part of the Policy. This error influenced her determination that the Orders were not a 'peril insured' under Clause 16 and subsequently impacted her interpretation of Clause 14.

Insurance policies form a special category of contracts and are subject to a unique three-step interpretative approach. The Court stated that it was crucial to examine the terms of the policy in light of the surrounding circumstances, as this formed an essential part of the interpretive process.

The Court determined that there was no coverage under Clause 16 for the losses SIR sustained during the period it was prevented from offering in-person dining unless access to its premises was impaired as a result of a 'peril insured or threat thereof'. SIR's interpretation that the Orders were a 'peril insured' was countered by Aviva's view, which the Court agreed with, that 'peril insured' means "all risks of direct physical loss or damage, except as excluded." Therefore, the Orders did not fit this definition, and as a result, coverage was not available under Clause 16.

The Court addressed the argument whether the COVID-19 pandemic was an "other catastrophe" within the meaning of Clause 14. The application judge had found that it was not an "other catastrophe" for the purposes of Clause 14. The Court agreed that, in the context of the policy, COVID-19 was not a "catastrophe", because the policy's foundation required a risk of direct physical loss or damage to property. Additionally, the Orders were not the direct cause of the damage sustained, thus Clause 14 did not provide coverage for SIR's losses.

2. No.

On January 17, 2020, St. John's, Newfoundland and Labrador, declared a state of emergency, due to hurricane-force winds and extreme snowfalls, and ordered all businesses to close. The state of emergency remained in effect for approximately nine days. SIR's Jack Astor's restaurant in St. John's suffered some food spoilage and business losses, and SIR made a claim under Clause 15. Aviva paid SIR's claim. SIR argued that Aviva was estopped from now denying coverage, given that it had paid the St. John's claim. The application judge was not satisfied that SIR made out its claim for estoppel by representation. The Court found it was clear from the application judge's reasons that she was not satisfied that Aviva impliedly represented that it would cover SIR for food spoilage and business losses any time closure of its business was mandated by an order of a civil authority concerned about public safety. The Court concluded that the estoppel argument failed.

3. No.

Before the application was heard, SIR and Aviva agreed that costs of the application would be $100,000, all inclusive. The application judge rejected SIR's argument that the costs agreement should not be enforced and awarded Aviva costs in the all-inclusive amount of $100,000, as stipulated in the costs agreement, as well as full indemnity costs for the preparation of Aviva's costs submissions in the all-inclusive amount of $8,136. A judge's discretion in determining the entitlement, scale, and quantum of a costs order was entitled to considerable deference. Leave to appeal a costs decision was granted sparingly. The application judge did not err in exercising her discretion to award costs in accordance with the costs agreement. Leave to appeal the costs award was not warranted.

Wasylyk v. Simcoe (County), 2023 ONCA 781

[Doherty, Nordheimer and George JJ.A.]

COUNSEL:

A. A. Evangelista and Avi Cole, for the appellants

J. T. Curry and D. Knoke, for the respondents

FACTS:

The respondent was driving her vehicle toward Bradford, Ontario when she collided with a vehicle being driven westbound. The respondent claimed that the County of Simcoe ("Simcoe") was liable for her damages under s. 44 of the Municipal Act, 2001 (the "Act"). She claimed that Simcoe had failed to keep the relevant portion of the road, CR 88, in a reasonable state of repair by failing to take reasonable steps to remove the ice and snow accumulated on the roadway. This caused her to lose control of her vehicle and spin into the oncoming lane where she collided with the westbound vehicle.

The trial judge found Simcoe 100 percent liable. The trial judge concluded that the statutory defence in s. 44(3)(c) was not available. Simcoe could not establish that it had treated the hazardous conditions at the relevant part of CR 88 within three hours of learning of those conditions.

The trial judge accepted that, as the respondent was on the wrong side of the road when the accident occurred, there was a rebuttable presumption she was negligent. In her view, there was no evidence that the respondent was distracted when she lost control of her vehicle and no evidence that her all season tires caused or contributed to the accident.

ISSUES:

Did the trial judge fail to apply the proper legal test in determining whether the relevant part of CR 88 was in a state of non-repair at the relevant time?
Did the trial judge fail to give adequate reasons for her causation finding?
Did the trial judge misapprehend the evidence from the respondent's expert?
Did the trial judge err in finding that the respondent was not contributorily negligent?

HOLDING:

Appeal dismissed.

REASONING:

Simcoe's submission does not actually take issue with the legal test to be applied in determining whether a road was in a state of disrepair. Instead, Simcoe attacked the trial judge's factual finding that the respondent lost control of her vehicle on account of the condition of the road. Simcoe submitted that, in the face of the evidence that the respondent lost control twice in less than 10 seconds, and in the absence of evidence that anyone else lost control, the finding that the respondent lost control because of the road condition was an unreasonable finding of fact. This submission raised a question of fact and was subject to the palpable and overriding standard of review.

The Court held that there was ample evidence, all reviewed by the trial judge in her reasons, from emergency responders, other drivers using the road, and Simcoe employees, that the relevant part of CR 88 was slippery and icy.

The Court noted that it did not follow, from the absence of evidence that other drivers had difficulty maintaining control of their vehicle on the relevant part of CR 88, that in fact other drivers did not have difficulty maintaining control of their vehicles on that part of the road. Furthermore, evidence that another driver or drivers were able to safely manoeuvre along the roadway was, at best, a piece of the evidentiary picture to be considered with the rest of the evidence relevant to the condition of the roadway. The totality of the evidence in this case would not have justified a finding of fact that no other driver had difficulty maintaining control of their vehicle on the relevant part of CR 88.

The respondent had to establish that "but for" the "defects" in the repair of the road, in this case the icy and snowy conditions of the roadway, the respondent would not have lost control and collided with the vehicle. To meet that burden, the respondent was not obliged to point to the specific ice patch or accumulation of snow on the road that caused the respondent's vehicle to lose control. The respondent was, however, required to prove that the hazardous conditions brought about by the ice and snow on the road caused the accident.

The trial judge turned to causation after a detailed review of the evidence and a finding that at the scene of the accident the conditions of CR 88 were slippery and hazardous. In addition to the trial judge's factual findings about the condition of the roadway and the connection between that condition and the respondent's loss of control of her vehicle, the trial judge made a series of other factual findings relevant to the respondent's manner of driving. She concluded that the respondent was travelling well under the speed limit, was not impaired, and was not distracted in any way. She was also travelling on a straight section of the roadway. The findings of fact made by the trial judge reasonably led to the inference that the hazardous conditions of the CR 88 caused the respondent to lose control of her vehicle.

The Court held that there was no inconsistency between the trial judge's finding that the accident was caused by the slippery and hazardous conditions on the road, and the finding that the respondent lost control of her vehicle twice in less than 10 seconds. The loss of control twice in a short timespan could reasonably be viewed as evidence of just how slippery and hazardous the road was at the relevant time and place. Trial judges are not required to expressly refer to all of the evidence advanced for or against a finding of fact.

The Court held that the trial judge's failure to specifically allude to the evidence that the respondent lost control of her vehicle twice in less than 10 seconds did not inhibit meaningful appellate review of the causation finding.

A trial, the respondent's expert, in his reports and in his evidence, referred to two explanations for the icy and hazardous conditions of CR 88. According to one explanation, the slippery and icy conditions developed because the salt placed on the roadway by Simcoe acted as a "magnet" attracting blowing snow. That snow melted upon contact with the salt, but later refroze on the roadway as the temperature dropped. The second explanation offered was based on the heavy traffic along CR 88. The expert opined that the heat generated by the tires of the vehicles would melt the snow which had blown on the road. The melted snow would then refreeze, creating ice when the temperatures dropped as the day went on. This explanation was put forward by the expert at trial and appears to have developed, at least in part, because the expert saw no evidence of salt or sand on the relevant part of CR 88 in the photographs provided to him. Simcoe contended that, at trial, the expert effectively abandoned the first of the two explanations set out above and that the trial judge misapprehended his evidence and relied on the abandoned explanation in her reasons.

The Court held that the two explanations for the icing of the road were not mutually exclusive, or even inconsistent with each other. The respondent was obligated to prove that the icy and snowy conditions rendered the road in a state of disrepair for the purposes of the Act. It was not necessary in establishing that the road was in a state of disrepair to demonstrate how the road became icy.

In finding that Simcoe did not take reasonable steps to address the hazardous conditions on CR 88, the trial judge focused on Simcoe's failure to perform the necessary ongoing active maintenance called for by Simcoe's own procedures. Neither the trial judge's finding that CR 88 was in a state of disrepair, nor her finding that Simcoe did not take reasonable steps to prevent that default, turned on a determination of the exact physical cause of the icy conditions. Even if the trial judge's reasons confused, to some extent, the contents of the expert's pretrial report, and his testimony, that confusion was not material to either of the essential factual findings to which the expert's testimony was relevant.

The appellant submitted that as the respondent was on the wrong side of the road when the collision occurred, she had the onus to demonstrate she was not negligent.

Simcoe's argument on the contributory negligence claim came down to two submissions. First, Simcoe submitted that the trial judge failed to consider the evidence that the respondent took no steps to adjust her driving after the first loss of control. Simcoe submitted that this evidence was crucial to Simcoe's argument on the contributory negligence issue and the trial judge's failure to consider the evidence amounts to a palpable and overriding error. Second, Simcoe submitted that on a totality of the material evidence, including the respondent's failure to adjust her driving after the first loss of control, and bearing in mind the presumption operating against the respondent, the finding that the respondent was not contributorily negligent was an unreasonable finding, constituting a palpable and overriding error.

The Court held that findings of negligence or contributory negligence turned on the evidence of the particular case and the assessment of that evidence by the trier of fact who heard the evidence. Factual findings made by other trial judges in other cases may assist a trial judge in her evaluation of similar evidence that has been placed before her. The extent to which the prior findings by other judges may assist a subsequent trial judge, is entirely for that judge to determine.

The evidence relevant to the respondent's manner of driving immediately before the accident came from DS, who was driving in front of the respondent and watching the respondent's vehicle through the rear-view mirror. The trial judge also expressed significant concerns about the credibility and reliability of other parts of DS's evidence. Her testimony provided little assistance on either the time the respondent had to react after the first loss of control, or what steps, if any, the respondent took in response to the first loss of control. The Court held that it was not unreasonable for the trial judge to decline to draw inference about the respondent's driving from DS's evidence and found no error in the trial judge's conclusion that the respondent was not contributorily negligent in the accident.

SHORT CIVIL DECISIONS

Voreon Inc. v. Matas Management Services Inc., 2023 ONCA 779

[Roberts, Favreau and Copeland JJ.A.]

COUNSEL:

B. van Niejenhuis, R. Atkins, and S. Ahmad, for the appellant

R. Allan, for the respondents

Keywords: Costs

Bell v. Long, 2023 ONCA 785

[Lauwers, Zarnett and Thorburn JJ.A.]

COUNSEL:

M.B. , acting in person

J. E. Sirdevan, for the respondent

Keywords: Costs

Chippewas of Nawash Unceded First Nation v. Canada, 2023 ONCA 787

[Lauwers, Pardu and George JJ.A.]

COUNSEL:

R. Townshend, C. Guirguis, R. Pelletier, J. McNamara, K. Nerland and B. Brookwell, for the appellants (C69830) and the appellants/ respondents by way of cross-appeal (C69831), Chippewas of Nawash Unceded First Nation and Saugeen First Nation

M. Beggs, M. McCulloch, B. Ennis, C. Tsang and S. Voleti, for the respondent (C69830 & C69831), the Attorney General of Canada

D. J. Feliciant, R. Ogden, J. McRandall and J. Lepan, for the respondent (C69830) and the respondent/appellant by way of cross-appeal (C69831), His Majesty the King in Right of Ontario

M. J. Dougherty and D. McKenna, for the respondent/appellant by way of cross-appeal (C69831), the Corporation of the Township of Georgian Bluffs

G. F. Stewart, for the respondents/appellants by way of cross-appeal (C69831), the Corporation of the Municipality of Northern Bruce Peninsula and the Corporation of the Town of South Bruce Peninsula

M. Jackson, T. Williams-Davidson, E. Bulbrook and N. Baker-Grenier for the intervener the Council of the Haida Nation (C69830)

R. Tillman and R. Ariss, for the intervener Heiltsuk Nation (C69830)

K. Rose, for the intervener Songhees Nation and Esquimalt Nation (C69830)

T. Slade and C. Giordano, for the intervener Walpole Island First Nation (C69830)

Keywords: Aboriginal Law, Costs, Le Treport Wedding & Convention Centre Ltd. v Co-operators General Insurance Company, 2020 ONCA 556, William v British Columbia, 2013 BCCA 1

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 20 – November 24) Blaney's Appeals

Table of Contents

CIVIL DECISIONS

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HOLDING:

REASONING:

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SHORT CIVIL DECISIONS

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Canada: Court Of Appeal Summaries (November 20 – November 24)
Blaney's Appeals