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1. Arnone v. Best Theratronics
Ltd., 2015 ONCA 63 (Strathy C.J.O., Laskin and Brown
JJ.A.), February 2, 2015
2. Ciano Trading & Services C.T. v.
Skylink Aviation Inc., 2015 ONCA 89 (MacFarland, Hourigan
and Benotto JJ.A.), February 9, 2015
3. Iannarella v. Corbett,
2015 ONCA 110 (Laskin, Lauwers and Hourigan JJ.A.), February 17,
2015
4. Hopkins v. Kay, 2015 ONCA 112
(Sharpe, van Rensburg and Pardu JJ.A.), February 18, 2015
5. Kempf v. Nguyen, 2015 ONCA 114
(Laskin, Rouleau and Epstein JJ.A.), February 18, 2015
1. Arnone v. Best
Theratronics Ltd., 2015 ONCA 63 (Strathy C.J.O.,
Laskin and Brown JJ.A.), February 2, 2015
Matthew Arnone had worked with Best Theratronics Ltd. for more
than thirty years when the company terminated his employment
without cause. He sued for wrongful dismissal. On a motion for
summary judgment, the motion judge ordered that Best pay Arnone
damages equal to the gross amount of the salary he would have
earned until he qualified for an unreduced pension as well as value
of the loss of an unreduced pension and a retirement allowance.
On appeal, Best argued that a genuine issue requiring a trial
existed regarding the character of Arnone's employment, one of
the factors guiding the calculation of the period of reasonable
notice under common law pursuant to Bardal v. The Globe and
Mail Ltd. (1960), 24 D.L.R. (2d) 140 (Ont. H.C.). Writing for
the Court, Brown J.A. rejected Best's submission that the
motion judge disregarded conflicting evidence about Arnone's
duties and responsibilities prior to the termination of his
employment. Unlike in Thorne v. Hudson's Bay Co., 2011
ONSC 6010, on which the appellant relied, Arnone had accepted
Best's characterization of his employment as supervisory for
the purposes of the motion. As well, the motion judge had access to
an "extensive and reliable" record, which included the
cross-examinations of the affiants, to assist him in deciding
whether he could make the necessary findings to determine the
issues fairly without a trial.
Brown J.A. noted that recent case law on the Bardal
factors suggests that the character of employment is of
"declining importance" in the determination of the period
of reasonable notice. In any event, the motion judge's findings
about the character of Arnone's employment supported his
conclusion that no genuine issue requiring a trial existed on that
issue. Brown J.A. agreed with the motion judge that cases involving
the determination of a reasonable notice period are generally
amenable to a summary judgment motion.
Best submitted that the motion judge erred in calculating the
common law period of reasonable notice to which Arnone was
entitled. Brown J.A. agreed, observing that while the motion judge
correctly referred to the Bardal factors as the starting
point for his assessment, he then departed from the Bardal
analysis by "bridging" the notice period to the date on
which Arnone would have been entitled to an unreduced pension. The
Bardal analysis, which is the prevailing approach to
determining reasonable notice, does not include a consideration of
the time between the date of termination and the employee's
eligibility for a full pension. The motion judge therefore erred in
setting the notice period at 16.8 months, the time needed to bridge
to his entitlement to an unreduced pension.
Brown J.A. noted that the motion judge went on to make an
alternate finding of a 22 month period of reasonable notice. He
agreed with Arnone that this period fell within "an acceptable
range" established by the case law for supervisors of his age
and length of service. In accordance with the appropriate standard
of appellate review on the issue of the period of reasonable notice
in wrongful dismissal cases, set out in Minott v. O'Shanter
Development Co. (1999), 42 O.R. (3d) 321 (C.A.), the Court
declined to interfere with the motion judge's assessment.
Brown J.A. observed that because the motion judge took a
"bridging" approach to calculating the period of
reasonable notice, he did not deduct from the damage award
Arnone's income from his new employment during the notice
period. Brown J.A. agreed with both parties that the motion judge
erred in this regard.
Best also submitted that the motion judge erred in awarding
Arnone a retirement allowance equal to 30 weeks' pay. Brown
J.A. found that the motion judge demonstrated a misapprehension of
the evidence by approaching Arnone's claim to a retirement
allowance as one involving his pension benefits. Eligibility for
the retirement allowance was not tied to an employee's
entitlement to a pension, but was, in fact, a separate contractual
entitlement based on the employee's length of service.
Nonetheless, Brown J.A. ultimately came to the same conclusion as
the motion judge, observing that there was no dispute that it was a
term of Arnone's contract of employment that he would receive a
retirement allowance of one week for each year of service up to 30
weeks. In Brown J.A.'s view, the retirement allowance, which
benefitted both parties, came with an implied term that if an
employee was terminated without cause, he would be entitled to
payment of the accumulated retirement allowance in consideration
for his service to the company. In the absence of any provision to
the contrary, effect ought to be given to that implied term. Best
opted not to limit its employees' entitlement to the retirement
allowance, therefore, Arnone was entitled to the accumulated
retirement allowance upon his termination.
Best initially challenged the motion judge's decision to
award Arnone damages in the amount of $65,000 to replace the loss
of his pension benefits during the notice period. Although the
appellant did not ultimately pursue this ground of appeal, Brown
J.A. noted that the award – which was based upon a
calculation performed by an actuary – was consistent with the
principle expressed by the Court in Taggart v. Canada Life
Assurance Co. (2006), 50 C.C.P.B. 163 (Ont. C.A.) that a
terminated employee is entitled to claim damages for the loss of
pension benefits that would have accrued had he worked until the
end of the notice period. In the absence of evidence of any
contractual term limiting that entitlement, there was no basis upon
which to interfere with the award.
Arnone submitted on cross-appeal that the motion judge erred in
his assessment of costs by failing to allow him to make submissions
on the effect of his two offers to settle. Brown J.A. agreed,
noting that a motion judge is required to consider the effect of
offers to settle on the award of costs for the motion.
In the result, the Court allowed the appeal in part,
substituting an order that Best pay Arnone damages for wrongful
dismissal calculated on the basis of a reasonable period of notice
of 22 months and requiring that income earned by Arnone during the
notice period be deducted from the award. The issue of costs of the
motion was remitted back to the motion judge.
2. Ciano Trading & Services C.T. v. Skylink
Aviation Inc., 2015 ONCA 89 (MacFarland, Hourigan and
Benotto JJ.A.), February 9, 2015
In this decision, the Court of Appeal considered the court's
role in resolving a challenge to an arbitrator's
jurisdiction.
When Skylink Aviation Inc. terminated its services agreement
with Ciano Trading & Services C.T. & S.R.L., Ciano sued
Skylink for numerous alleged breaches of the agreement as well as
in tort. Ciano also brought an application for a declaration that
the agreement's arbitration clause did not apply, pointing to
the fact that the survival clause failed to reference the
arbitration clause.
On a motion by Skylink to stay the proceedings pending
arbitration, the motion judge granted the motion and dismissed
Ciano's application, finding that it was unclear whether the
arbitration clause survived the termination of the services
agreement. Pursuant to the competence-competence principle, the
motion judge held it was for the arbitrator to determine whether
the arbitrator had jurisdiction. Ciano appealed.
The Court of Appeal rejected Ciano's submission that the
motion judge ought to have found that the arbitration clause did
not survive the termination of the agreement, noting that under the
International Commercial Arbitrator Act, R.S.O. 1990,
chapter I.9 and the UNCITRAL Model Law on International Commercial
Arbitration, the motion judge was required to defer the issue of
applicability of the arbitration clause to the arbitrator,
"unless the agreement is null and void, inoperative or
incapable of being performed". A court has discretion to
decide a challenge to an arbitrator's jurisdiction where the
determination of a question of law or of mixed fact and law
requires only superficial consideration of the evidence. The Court
of Appeal emphasized, however, that where it is unclear if the
arbitrator has jurisdiction, it is best to defer the issue to the
arbitrator pursuant to the competence-competence principle.
The motion judge found that both parties to the dispute
presented arguable positions as to the survival of the arbitration
clause. In light of that finding, he was not obligated to determine
the operability of the arbitration clause, nor did he err in
referring the issue of jurisdiction to the arbitrator.
The Court dismissed the appeal, confirming the referral of the
matter to arbitration.
3.Iannarella v. Corbett, 2015 ONCA 110
(Laskin, Lauwers and Hourigan JJ.A.), February 17, 2015
In this decision, which arose from a motor vehicle accident
claim, the Court of Appeal addressed the onus of proof applicable
to rear-end collisions and the use of surveillance evidence at
trial.
The appellant, Andrea Iannarella, was rear-ended by the
respondent, Stephen Corbett, who was driving a concrete mixer.
Iannarella and his wife sued for damages for his personal injuries,
which Iannarella claimed left him unable to return to work.
At trial, the jury concluded that Corbett had not been driving
negligently and the trial judge accordingly dismissed the action.
On the provisional issue of damages, the trial judge dismissed
Iannarella's claim for non-pecuniary damages on the basis that
he failed to meet the statutory "threshold" under section
267.5 of the Insurance Act, R.S.O. 1990, chapter I.8 costs
of $255,000 were awarded to the defendant. Iannarella appealed.
Iannarella first submitted that the trial judge erred in
instructing the jury on the onus of proof applicable to rear-end
motor vehicle collisions. Lauwers J.A. agreed, noting that the
trial judge departed from the standard liability instruction, which
places the onus on the defendant to prove that he could not have
avoided the accident by exercising reasonable care. Lauwers J.A.
wrote that, since Beaumont v. Ruddy, [1932] O.R. 441
(C.A.), the Court has adhered to the principle that in the case of
rear-end collisions the fault is presumed to be with the driver of
the rear car, and that driver must satisfy the court that the
collision did not occur as a result of his negligence. While Blair
J.A. cautioned in Martin-Vandenhende v. Myslik, 2012 ONCA
53, that the Beaumont principle does not automatically
lead to liability for the rear driver, generally this will be the
case, with the onus shifting onto that driver to demonstrate
otherwise. The trial judge failed to adhere to this principle,
instead emphasizing throughout his charge to the jury that the onus
was on the plaintiff.
Lauwers J.A. held that in light of the facts and the law
applicable to rear-end collisions, a new trial on liability was
unnecessary. Even accepting Corbett's evidence, Lauwers J.A.
held that he had failed to discharge his onus of disproving
negligence such that a substituted finding of liability against
Corbett was appropriate.
Iannarella next challenged the defendant's use of video
surveillance evidence. During Iannarella's cross-examination,
the defence tendered a 27 minute video of surveillance that showed
Iannarella engaged in activities which they claimed were
inconsistent with the alleged injuries and which, they submitted,
demonstrated that Iannarella's evidence was not credible. The
trial judge allowed defence counsel to enter the video as an
exhibit, despite the fact that they had not disclosed its existence
prior to trial.
Iannarella submitted that the trial judge erred in denying his
pre-trial request for production or at least particulars of any
surveillance. He argued that the trial judge further erred in
allowing the defence to use the surveillance evidence despite their
failure to disclose its existence in an affidavit of documents,
contrary to rule 30.08(1)(a) of the Rules of Civil
Procedure, and in refusing to order that they provide access
to the full recordings. Finally, Iannarella submitted that the
trial judge also erred in failing to instruct the jury on the
proper use of the surveillance evidence in their deliberations.
Lauwers J.A. undertook a comprehensive, nearly 100 paragraph
review of the rules governing the disclosure and use of
surveillance evidence in personal injury actions and the use and
judicial treatment of the respondents' surveillance evidence at
trial. He concluded that a "trial by ambush" had occurred
in this case. From the failure to require the respondents to comply
with the Rules of Civil Procedure in disclosing the
surveillance evidence to the failure to provide the jury with
instructions on the permissible use of the evidence, Lauwers J.A.
held that the trial judge's errors "critically impaired
the fairness of the trial". Lauwers J.A. concluded that the
damages verdict must be set aside and a new trial ordered on that
issue.
Lauwers J.A. ordered that the costs disposition also be set
aside on the basis of his decision on the substantive issues, and
observed that the award of $255,000 for a fifteen-day trial was
"distinctly punitive" to the appellants, who risked
losing their home.
In the result, the Court allowed the liability appeal,
substituted a finding of liability against the defendant driver,
and ordered a new trial on the issue of damages.
4. Hopkins v. Kay, 2015 ONCA 112
(Sharpe, van Rensburg and Pardu JJ.A.), February 18, 2015
A proposed class action against the Peterborough Regional Health
Centre raised the question of whether the Personal Health
Information Protection Act, 2004 creates an exhaustive code,
precluding courts from hearing civil actions for violations of
privacy rights in relation to patient records.
Erkenraadje Wensvoort, a patient at the Peterborough Regional
Health Centre (the "Hospital"), was notified by the
Hospital pursuant to the Personal Health Information Protection
Act, 2004, S.O. 2004, chapter 3, Schedule A
("PHIPA") that the privacy of her personal health
information had been breached. Along with two other individuals no
longer party to the action, Wensvoort commenced a class proceeding
against the Hospital and a number of its employees, alleging that
the employees improperly accessed and disclosed patient records and
that the Hospital failed to adequately supervise its staff and
implement policies.
Wensvoort initially asserted a cause of action based on breaches
of PHIPA, but later amended the statement of claim to base her
claim only on the common law tort of "intrusion upon
seclusion", the existence of which was confirmed by the Court
of Appeal in Jones v. Tsige, 2012 ONCA 32.
This appeal arose from the Rule 21 motion brought by the
Hospital and its employee to dismiss the action on the basis that
PHIPA is an exhaustive code that precludes common law claims for
breaches of privacy rights relating to personal health information,
ousting the jurisdiction of the Superior Court. The motion judge
refused to strike the claim, finding that it was not plain and
obvious that it would fail.
The Ontario Hospital Association intervened in support of the
Hospital and its employee and supported the appellants'
submission that PHIPA creates an exhaustive code in this context,
such that Wensvoort could not pursue a common law claim for
intrusion upon seclusion. The Information and Privacy Commissioner
of Ontario (the "IPCO"), on the other hand, intervened to
support the position of Wensvoort that the Superior Court has
jurisdiction.
Writing for the Court, Sharpe J.A. noted that an intention to
create an exhaustive code may be explicitly stated in the
legislation or it may be implied. As PHIPA is silent on the issue
of exclusivity, the Court had to determine whether an intent to
exclude judicial jurisdiction could be implied from the language of
the statute.
In Pleau v. Canada (A.G.), 1999 NSCA 159, leave to
appeal refused, [2000] S.C.C.A. No. 83, Cromwell J.A. (as he then
was) identified three factors that the Court should consider when
determining whether the legislature intended to create an
exhaustive code: (i) the process for dispute resolution established
by the legislation; (ii) the nature of the dispute and its relation
to the rights and obligations created by the legislation; and (iii)
the capacity of the legislative scheme to afford effective
redress.
With respect to the first factor, Sharpe J.A. observed that
PHIPA established an "informal and highly discretionary"
process for the resolution of breaches of privacy relating to
personal health information, a process which was designed to deal
with systemic issues rather than individual complaints. The statute
does not imply that this complaint procedure is exhaustive or
exclusive. To the contrary, it explicitly contemplates the
possibility that complaints about the misuse of personal health
information may properly be the subject of a procedure beyond its
scope, both in court and proceedings of other tribunals. PHIPA
explicitly provides in section 65 that a complainant can start a
proceeding in the Superior Court to seek damages arising out of a
breach of the PHIPA and the court can award damages for actual harm
and mental anguish.
Turning to the "essential character" of the claim,
Sharpe J.A. held that an action based on intrusion upon seclusion
would not undermine the legislative scheme set out in PHIPA. As the
Court explained in Jones v. Tsige, above, in order to
establish a claim for intrusion upon seclusion, the claimant must
go well beyond showing a breach of the PHIPA. A claimant must
demonstrate intentional or reckless conduct by the defendant, that
the defendant invaded, without lawful justification, the
plaintiff's private affairs, and that a reasonable person would
regard the infringement as highly offensive, causing distress,
humiliation or anguish. Observing that these elements are far more
difficult to establish than a breach of PHIPA, Sharpe J.A. held
that a plaintiff initiating a common law action could not be said
to be attempting to undermine or circumvent PHIPA.
On the third factor, redress, Sharpe J.A. noted that the
IPCO's focus is on addressing systemic remediation of
contraventions of PHIPA and that the IPCO has the authority to
decline to conduct a review or make an order where an individual
complaint under PHIPA fails to raise systemic issues. Given the
broad discretion given to the IPCO, complainants would face
"an expensive and uphill fight" on any judicial review
application to challenge a decision not to review or proceed with
an individual complaint. In Sharpe J.A.'s view, the process
established by PHIPA does not provide effective redress to
individual complainants.
Sharpe J.A. concluded that the language of PHIPA does not imply
a legislative intention to confer exclusive jurisdiction on the
IPCO to resolve all disputes about the misuse of personal health
information.
The Hospital and its employee cited a number of cases in support
of their position that PHIPA creates an exhaustive code that
precludes the courts from hearing claims for common law breaches of
privacy. Sharpe J.A. considered, but distinguished, each of the
cases, concluding that none altered his conclusion that the
legislature did not intend for PHIPA to constitute an exhaustive
code.
While the Supreme Court held in Seneca College v.
Bhadauria, [1981] 2 S.C.R. 181 that the Ontario Human
Rights Code, R.S.O. 1970, chapter 318 constituted a
comprehensive statutory scheme precluding a civil action for
discrimination, PHIPA differs from the Code by explicitly
contemplating other proceedings in relation to claims arising from
the improper use of personal health information. While in the
labour relations context the Supreme Court found that the Ontario
Labour Relations Act, R.S.O. 1990, chapter L.2, provided
an accessible mechanism for dispute resolution, PHIPA was not
tailored to deal with individual complaints, and its invocation
depends largely on the discretion of the IPCO. In British Columbia
and Alberta, where the courts have held that privacy statutes
"occupied the field" and precluded civil actions based on
breaches of privacy, there was a general statutory cause of action
for breach of privacy. In Ontario, however, there was no such
statutory cause of action.
Sharpe J.A. therefore concluded that the plaintiff was not
precluded from asserting a common law claim for intrusion upon
seclusion.
5. Kempf v. Nguyen, 2015 ONCA 114
(Laskin, Rouleau and Epstein JJ.A.), February 18, 2015
On a spring day in 2008, Thi Thanh Nguyen and Rolf Kempf took
part in the Ride for Heart bicycle ride to benefit the Heart and
Stroke Foundation. This case arose out of a collision between the
two cyclists.
Kempf, who suffered serious injuries from the collision, sued
Nguyen in negligence. With the issue of damages settled, the issue
at trial was the extent to which, if at all, Nguyen was liable for
Kempf's injuries.
Prior to the start of the trial, Nguyen amended his statement of
defence, pleading that Kempf had voluntarily assumed the risk of
the ride when he executed the "waiver agreement" which
all participants in the event were required to sign. Nguyen also
claimed that Kempf had himself been negligent. At the opening of
trial, Kempf moved to strike the jury notice (which had been served
by Nguyen) on the basis that the defence of volenti non fit
injuria altered the nature of the claim to one for declaratory
relief, precluding it from being determined by a jury. He further
argued that, even if the issue of volenti was reserved to
the trial judge, the jury would be unable to appreciate the limited
role of the waiver in the determination of liability. Nguyen
countered that with appropriate instructions, the jury would be
capable of understanding the manner in which the waiver could be
used in the assessment of liability. Nguyen further argued that the
motion to strike was premature, submitting that it be renewed later
during the trial if necessary.
The trial judge rejected Nguyen's suggestion that she adopt
a wait-and-see approach. She struck the jury notice, holding that
"there is a real danger that the jury, in answering the
liability questions, will be confused by the contents of the waiver
or perhaps use it inappropriately in their deliberations",
particularly in light of Nguyen's plea that Kempf voluntarily
assumed the risks of the ride. At the conclusion of the trial, she
found Nguyen responsible for Kempf's injuries without any
contributory negligence on Kempf's part.
Nguyen did not challenge the trial judge's finding that he
was negligent, but submitted that she erred in failing to apportion
any liability against Kempf and in finding that the applicable
standard of care was negligence as opposed to recklessness. He also
argued that the trial judge erred in striking the jury notice.
Citing the decision of the Court of Appeal in Cowles v.
Balac (2006), 83 O.R. (3d) 660 (C.A.), leave to appeal
refused, [2006] S.C.C.A. No. 496, Epstein J.A. noted that the trial
judge has considerable discretion in deciding whether to strike a
jury notice. She emphasized, however, that the Court will order a
new trial where it finds, as it did in Hunt (Litigation
Guardian of) v. Sutton Group Incentive Realty Inc. (2002), 60
O.R. (3d) 665 (C.A.) and Brady v. Lamb (2005), 78 O.R.
(3d) 680 (C.A.), that the trial judge has exercised her discretion
"arbitrarily or based on improper principles". Epstein
J.A. found that this was such a case. While the trial judge did not
exercise her discretion to strike the jury in an "arbitrary or
capricious" manner, she erred in basing her decision on wrong
or inapplicable principles of law. It was an error for the judge to
hold that the plea of volenti involved a claim for
declaratory relief (a matter precluded from being determined by a
jury) and that the jury, even properly instructed, would be unable
to understand the limited use that they could make of the
waiver.
Epstein J.A. explained that volenti is not a claim for
declaratory relief but is rather "a full defence to a finding
of negligence", a question of fact normally decided by a jury.
The trial judge therefore erred to the extent that she based her
decision to strike the jury on Nguyen's amended plea of
volenti.
Epstein J.A. held that the trial judge also erred in striking
the jury on the basis that even with proper instructions it could
not deal with the issue of the waiver. Recalling the Court's
decision in Hunt, above, she noted that it was the trial
judge's duty to determine the applicable legal principles,
including the ways in which the waiver might be relevant to
liability, and to instruct the jury with respect to these
principles. Discharging the jury because it would be difficult to
explain the law is a reversible error.
The Supreme Court has held that it is wrong to make too much of
the risk that a jury might use evidence for an improper purpose:
R. v. Corbett, [1988] 1 S.C.R. 670 at 692; Hamstra
(Guardian ad litem of) v. British Columbia Rugby Union, [1997]
1 S.C.R. 1092 at paragrah 15. With respect to the specific issues
in this case for the jury, Epstein J.A. observed that the waiver
was neither lengthy nor complicated and that its limited
application was "hardly beyond the ken" of a jury. The
waiver was a straightforward contract between participants in the
ride and its organizers in which the riders agreed that they were
riding at their own risk and that the organizers were absolved of
liability for any injuries or damages suffered. A properly
instructed jury would have no difficulty understanding that the
waiver was not a bar to Kempf's action.
Epstein J.A. added that it would have been preferable for the
trial judge to have adopted Nguyen's suggested wait-and-see
approach, reserving her decision on the motion until after evidence
had been heard or until a specific problem arose. She noted,
however, that such an approach is not a rule of law, and declined
to address the matter further.
Having concluded that the trial judge erred in striking the jury
notice, Epstein J.A. turned to a consideration of the appropriate
remedy. Pursuant to the test outlined by the Supreme Court in
King v. Colonial Homes Ltd., [1956] S.C.R. 528, she
questioned whether a jury, acting reasonably, would inevitably have
reached the same result as the trial judge. Epstein J.A. concluded
that an identical finding by the jury was not inevitable,
identifying evidence upon which a jury properly instructed and
acting reasonably could have come to a different conclusion than
that reached by the trial judge. There was ample evidence to
support a finding of contributory negligence, an issue which the
trial judge failed to address. The jury could reasonably have
assessed credibility differently from the trial judge and taken a
different approach to the standard of care. In light of the
possible different conclusions, Epstein J.A. held that ordering a
new trial, despite being an exceptional remedy, was
appropriate.
Epstein J.A. declined to address Nguyen's substantive
grounds of appeal, noting that a new trial was a complete response
to his concerns. Rouleau J.A. concurred.
Laskin J.A. dissented, finding that the trial judge did not err
in exercising her discretion to discharge the jury and adding that,
even if she did so err, a new trial is not necessary because any
jury acting reasonably would have reached the same result and found
Nguyen liable for Kempf's injuries.
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