As everyone will have heard by now, the Court of Appeal stayed Justice Belobaba's decision in Toronto (City) v. Ontario (Attorney General) in which he had determined that the government's plan to reduce the number of wards from 47 to 25 in the middle of the election cycle was unconstitutional.
In very brief reasons, the Court found that Justice Belobaba's decision was likely wrong, and that there was nothing unconstitutional about the government's actions. Accordingly, the lower court decision was stayed and the election can proceed with 25 wards. The government was spared having to invoke the notwithstanding clause.
Other topics this week included notice of termination in the context of a mass termination of employees, municipal liability for non-repair of a highway (two decisions), administrative law in the WSIB context, and causation in the medmal context.
Have a nice weekend.
[Hoy A.C.J.O, Sharpe and Trotter JJ.A.]
R. Basu, Y. Ranganathan and A. Ranalli, for the appellant Attorney General of Ontario
D.W. Dimmer, C. Lynch and P. Chan, for the respondent City of Toronto
R.K. Achampong, G. Magraph and S.A. Pieters, for the respondent Rocco Achampong
P.G. Duffy and E. Romano, for intervener the City Clerk of the City of Toronto
H. Goldblatt, D. Sheppart and L. Century, for the respondents Chris Moise, Ish Aderonmu and Prebha Kjosla, on her own behalf and on behalf of all members of Women Win TO
D.K. Eady, C.V. Jones and J. Martin, for the interveners J. Hollett, L. Cheng, S. Dexter, G. Kettel and D. Youssefi
D.J. Bell and A. Boyes, for the intervener The Canadian Taxpayers' Federation
P. Cotter, for the intervener Toronto District School Board
Keywords: Constitutional Law, Municipal Elections, Stay of Proceedings, Freedom of Expression, Democratic Rights, Effective Representation, Bill 5, Better Local Government Act, 2018, SO 2018, c. 11, Bill 31, Efficient Local Government Act, 2018, Canadian Charter of Rights and Freedoms, ss 1, 2(b), 3, 15(1) and 33, Baier v Alberta, 2007 SCC 31, Delisle v Canada (Deputy Attorney General),  2 SCR 989, Haig v Canada,  2 SCR 995, Harper v Canada (Attorney General), 2000 SCC 57, Libman v Quebec (Attorney General),  2 SCR 569, Reference re Provincial Electoral Boundaries (Saskatchewan),  2 SCR 158, RJR-MacDonald Inc v Canada (Attorney General),  1 SCR 311, Thomson Newspapers Co v Canada (Attorney General),  1 SCR 877
The Royal Assent of Bill 5, Better Local Government Act, 2018, SO 2018, c. 11 ("Bill 5") on August 14, 2018 changed the structure of the upcoming October 22, 2018 municipal elections by replacing the existing 47-ward structure with a 25-ward structure in Toronto.
The Superior Court of Justice held that Bill 5 infringed the freedom of expression rights of both candidates and voters under s 2(b) of the Canadian Charter of Rights and Freedoms (the "Charter"). With respect to candidates, the application judge found that Bill 5 substantially interfered with their ability to effectively communicate political messages to voters, and that it undermined the fair and equitable election process. With respect to voters, the application judge found that Bill 5 infringed s 2(b) by interfering with their right to vote. The application judge characterized the right to vote as "an expressive activity", which includes the right to "effective representation." He found that increasing the population size of the wards interfered with "voters' right to cast a vote that can result in effective representation." The application judge found that these infringements of s 2(b) could not be justified as a reasonable limit under s 1 of the Charter and therefore declared parts of Bill 5 to be of no force and effect.
The Court announced this decision without delay and with briefer reasons than would otherwise be ordinary, because an immediate decision was required to ensure that the Toronto municipal election proceeded in as orderly a manner as possible.
(1) Should the order of the Superior Court of Justice that the relevant provisions of Bill 5 infringe s 2(b) of the Charter be stayed pending an appeal to this Court?
Motion for stay granted.
(1) Yes. The appellants satisfied the test for when an appellate court should grant a stay of a lower court decision pending appeal as per RJR-MacDonald Inc v Canada (Attorney General),  1 SCR 311 (the "RJR Test"). In order to satisfy the RJR Test, the applicant must demonstrate that: (i) there is a serious issue to be tried; (ii) it will suffer irreparable harm if the stay is not granted; and (iii) the balance of convenience favours a stay pending the disposition of the appeal.
(i) The first part of the RJR Test is satisfied because there is a serious issue to be tried. Since the rights of the parties will be determined by this stay motion, it is necessary to consider whether there is a strong likelihood that the appeal will succeed under this part of the test. It is likely that the appeal will succeed because the application judge erred in law when interpreting s 2(b) of the Charter.
First, the application judge erred by conflating the protection of expression in s 2(b) and the guarantee of democratic rights of citizens to vote in s 3 of the Charter. The application judge placed emphasis on "effective representation", a right that is at the core of s 3. Further, s 3 does not apply to municipal elections and does not protect them. The rights of s 2(b) and s 3 are distinct, and while they can overlap, it does not follow that doctrines pertaining to s 3 can expand the scope of s 2(b).
Second, the application judge erred in finding that the decrease in the number of wards interfered with the candidates' freedom of expression by making the conveyance of their messages less effective. This interpretation of s 2(b) is inconsistent with jurisprudence that holds that legislation that diminishes the effectiveness of a message but does not prevent the communication of that message does not violate s 2(b) (Delisle v. Canada (Deputy Attorney General),  2 S.C.R. 989; Baier v. Alberta, 2007 SCC 31). Despite the decrease in number of wards, the candidates are still able to express themselves to voters and their communications are not restricted.
Third, the candidates' expectations that the wards would be a certain size are not constitutionally guaranteed. The right to freedom of expression does not give the candidates a right to insist that the City or the Province maintain a certain platform.
Fourth, the increase in the population of each ward does not substantially interfere with voters' rights under s 2(b) of the Charter. The size of the wards is a debateable matter of policy to be determined by the legislature, and in light of other provisions of the Charter, including s 15(1). Further, as per the application judge, it is not likely that the new ward sizes infringe s 15(1).
(ii) The second part of the RJR Test is satisfied because the appellant will suffer irreparable harm if the stay is not granted. The determination that the appellant is likely to succeed on appeal because the application was wrongly decided is a strong indication that irreparable harm will result if the stay is not granted.
(iii) The third part of the RJR Test is satisfied because the balance of convenience favours granting the stay. Courts should only declare laws enacted for the public inoperable before a complete constitutional review in clear cases (Harper v Canada (Attorney General), 2000 SCC 57). Since it has been determined that a constitutional review of Bill 5 is likely to show that the bill is constitutional, the balance of convenience favours granting a stay. Further, the timeline that the City Clerk faces in making necessary preparations for the election does not tip the balance of convenience against the granting a stay. This is because despite the confusion caused by these proceedings, an election with either 25 or 47 wards is still possible.
[Hoy A.C.J.O, Brown and Trotter JJ.A.]
T. Pinos, K. Taylor and C. Russell, for the appellants
S. Moreau and G. Cantin, for the respondents
Keywords: Employment Law, Class Proceedings, Employment Standards, Mass Terminations, Notice of Termination, Working Notice, Statutory Interpretation, Machtinger v HOJ Industries,  1 SCR 986, R v Ulybel Enterprises Ltd, 2001 SCC 56, Rizzo & Rizzo Shoes Ltd (Re),  1 SCR 27, Evans v Teamsters Local Union No 31, 2008 SCC 20, Employment Standards Act, 2000, SO 2000 c. 41, Termination and Severance of Employment, O Reg 288/01, s. 3(1), Novaquest Finishing Inc. v. Abdoulrab, 2009 ONCA 491, Taylor v Dyer Brown (2004), 73 OR (3d) 358, Di Tomaso v Crown Metal Packaging Canada LP, 2011 ONCA 469, Wood v Fred Deeley Imports Ltd, 2017 ONCA 158
This appeal arose from the closure of a manufacturing plant operated by CTS of Canada Co. The closure resulted in a "mass termination" for the purposes of the Employment Standards Act, 2000, SO 2000 c. 41 ("ESA"). A class action was brought on behalf of former employees (the "respondents") against their common employers, CTS of Canada Co. and its parent corporation CTS Corp (the "appellants"). The class consisted of 74 former active employees who did not sign a release with the appellants and were not dismissed for cause. Both the appellants and respondents agreed to resolve common issues on a motion for summary judgment.
The appellants gave written notice to employees on April 17, 2014, that the plant was closing and that their employment would terminate on March 27, 2015. The termination date was subsequently extended for most employees to June 26, 2015. Under ESA s. 58(1) and its regulation, Termination and Severance of Employment, O Reg 288/01, s. 3(1) (the "Regulation"), an employer must give at least eight weeks' notice of termination when they terminate 50 or more employees in the same four-week period. Under ESA s. 58(2), an employer who is "required to give notice" must serve the ESA director with the prescribed information in Form 1 and post Form 1 in the employer's establishment on "the first day of the notice period" (the service and posting requirements collectively referred to as "Form 1 Notice"), and under ESA s. 58(4), notice is not deemed to have been given until the Form 1 Notice is completed. The appellant did not serve and post the Form 1 information until May 12, 2015, 12 days into the mandatory eight-week notice period.
The motion judge found that ESA s. 58(2) required the appellants to serve and post the Form 1 information when it gave notice to employees on April 17, 2014, as opposed to eight weeks before the date of termination. Due to this failure to complete Form 1 Notice, the appellants' notice was found not to be effective until it did so, invalidating the 13 months of working notice the appellants had provided prior to the Form 1 Notice.
The motion judge decided two other issues. First, the appellants were not entitled to credit for working notice for any week in which an employee worked overtime contrary to the ESA or in which the employee was forced to work overtime that had a significant adverse effect on the ability of the employee to look for new employment. Second, in the case of the five employees who worked more than 13 weeks beyond their original separation date, the appellants were only entitled to credit for common law working notice from the date of the letter providing them with notice of their actual termination date.
(1) Did the motion judge err in finding that ESA s. 58(1) required the appellants to serve and post the Form 1 Notice on April 17, 2014?
(2) Did the motion judge err in finding that the appellants were not entitled to credit for working notice in any week in which an employee worked overtime contrary to the ESA or in which the employee was forced to work overtime that had a significant adverse effect on the ability of the employee to look for new employment?
(3) Did the motion judge err in finding that, in the case of five employees who worked more than 13 weeks beyond their original separation date, the appellants were only entitled to credit for common law working notice from the date of the letter providing them with notice of their actual termination date?
(1) Yes. The appellant was only required to serve and post the Form 1 information at the beginning of the eight-week notice period, and since they were 12 days late, the class members were entitled to a further 12 days' pay in lieu of notice. The Court stated that the purpose of the ESA, per the Supreme Court of Canada in Machtinger v HOJ Industries,  1 SCR 986, is to protect the interests of employees by requiring employers to comply with certain minimum standards, including minimum periods of notice of termination, as opposed to imposing requirements on employers in excess of statutory minimums. Tying the requirement to provide Form 1 Notice when an employer gives what it intends to be common law reasonable notice in excess of the statutorily-required minimum notice period is not consistent with the object of the ESA, which requires compliance with only certain minimum standards.
The Court also found that the appellants were not required to comply with ESA s. 58(1) on April 17, 2014 because, based on a textual reading, the section does not require an employer to give notice to its employees as soon as it decides that it will effect what would be a mass termination. All the appellants were required to do was give notice "for the prescribed period" of eight weeks prior to the date of termination, and were therefore only required to give notice by the first day of this statutory notice period. The motion judge had determined that, in line with Supreme Court of Canada Justice Iacobucci's statement in R. v Ulybel Enterprises Ltd, 2001 SCC 56 ("Ulybel") ("there is a presumption that amendments to the wording of a legislative provision are made for some intelligible purpose, such as to clarify the law"), a legislative change in 2000 to s. 58(2) to reference "the first day of the notice period" as opposed to "the first day of the statutory notice period" in a previous version of the ESA demonstrated legislative intention that Form 1 Notice must be given as soon as notice was provided to the employees.
The Court of Appeal dismissed this argument, reiterating the Supreme Court of Canada's statement in Rizzo & Rizzo Shoes Ltd (Re),  1 SCR 27 ("Rizzo") that words of the statute are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the statute, the object of the statute, and the intention of the legislature. Based on this, the Court found that, due to the references to the "required notice period" used elsewhere in s. 58 meaning only the eight-week notice period, the notice period referred to in s. 58(2) was only the required eight-week notice period as opposed to the entire period where notice was given. Furthermore, an explanatory note to the legislative changes was viewed as evidence that only "language polishing" was intended, rebutting the respondent's argument based on Ulybel, above. The Court of Appeal also noted the Ministry of Labour's Manual stated that the "notice period" in s. 58(2) corresponded to the statutory notice period of eight weeks, and the Ministry of Labour's online "Termination and Severance" document also supported this interpretation.
The Court also found that the wording of ESA ss. 60(1) & (2), which the respondents had argued should be used to interpret s. 58(2) as applying to period of notice actually given, was different from the wording at issue in s. 58(2) and therefore did not alter the conclusion that s. 58(2) only applied to the required notice period. The Court also noted that the respondents provided no judicial authority for their interpretation that ESA s. 60 should be used to interpret s. 58(2), and the case the respondents cited, Wood v Fred Deeley Imports Ltd, 2017 ONCA 158, was not authority for the proposition that the phrase "a notice period under section 57 or 58" included in s. 60 (1) & (2) meant the notice period actually given.
Finally, the Court concluded Rizzo does not direct that any doubt arising from difficulties in language of legislation should be resolved in favour of employees even where to do so would be inconsistent with the scheme of the ESA, its object, and the intention of the legislature. Although in Rizzo the Supreme Court of Canada directed that any doubt arising from difficulties of language should be resolved in favour of the claimant, the Court of Appeal stated that s. 58 was not ambiguous. Furthermore, even if there was difficulties in language, a different result would not be required because, per Novaquest Finishing Inc v Abdoulrab, 2009 ONCA 491 Rizzo does not require an interpretation in favour of employees running counter to the basic principles of statutory interpretation which the Court of Appeal applied, above.
Based on this finding, the Court of Appeal held that, per s. 58(4), the consequence of breaching s. 58(2)(a) was that the notice required is deemed not to have been given until Form 1 Notice is provided, and therefore the employees were each entitled to 12 days of pay for the 12 days for which Form 1 Notice was late.
(2) No. The motion judge did not err in finding that the appellants were not entitled to credit for working notice in any week which an employee worked overtime contrary to the ESA or in which the employee was forced to work overtime that had a significant adverse effect on the ability of the employee to look for new employment. In determining whether the employer is entitled to credit for working notice, it is relevant to consider the quality of the opportunity given to the employee to find new employment because, per Evans v Teamsters Local Union No 31, 2008 SCC 20 the primary objective of reasonable notice is to provide the dismissed employee with an opportunity to obtain alternate employment.
Exceptional workplace demands on an employee during the notice period may warrant disentitling an employer to credit for some or all of the working notice, and the Court found that overtime worked in violation of the ESA is such an exceptional demand that cannot be considered "consensual". Additionally, ESA s. 5(1) makes contracting out of an employment standard void, and therefore, an employee's consent to work overtime in violation of the ESA is not effective. Furthermore, considering the quality of employee's opportunity to find alternate work during the notice period is not contrary to the Ontario Court of Appeal's decision in Taylor v Dyer Brown (2004), 73 OR (3d) 358, nor does allowing employees who worked overtime a windfall if they agreed to overtime and then looked to invalidate their working notice after the fact.
(3) No. The motion judge did not err in finding that, in the case of five employees who worked more than 13 weeks beyond their original separation date, the appellants were only entitled to credit for common law working notice from the date of the letter providing them with notice of their actual termination date. Section 6(1) of the Regulation permits an employer to continue to provide temporary work to employees for up to 13 weeks after the termination date specified in the notice of termination given to an employee without giving a further notice of termination, and if temporary work exceeds that duration fresh notice is required. Notice, per Di Tomaso v Crown Metal Packaging Canada LP, 2011 ONCA 469 must be clear and unambiguous and include the final termination date.
The workers in question received a series of letters asking for their agreement to continue work during, and then subsequently, beyond, the permitted 13-week period, before being given a "final extension" of their termination dates in a letter. Therefore, the appellants were only entitled to credit for providing working notice in the case of the employees who worked more than 13 weeks from the date of this letter which provided them with notice of their actual termination date, and accordingly their April 17, 2014 notice was ineffective.
[Sharpe, van Rensburg and Brown JJ.A.]
S. Clements and J. DiFederico, for the appellants
G. MacKenzie, B. Legate and B. MacKenzie, for the respondents
Keywords: Torts, Negligence, Medical Malpractice, Causation, Sacks v. Ross, 2017 ONCA 773, Snell v. Farrell,  2 SCR 311, Goodwin v. Olupona, 2013 ONCA 259
The plaintiff was born with a condition at birth. At 9:00 PM on December 25, nurse S.O. took the plaintiff's temperature and noted a change in his colour. He was pink and slightly yellow, which indicated slight jaundice. At 7:00 AM on December 26, S.O. reported the change in the plaintiff's colour and jaundice to the incoming shift nurse.
The incoming shift nurse assessed the plaintiff at roughly 8:30 AM. At 8:45 AM, she took a blood sample and sent it to the lab to determine the plaintiff's bilirubin level. Bilirubin is a waste product in the blood that is a toxin in the brain at high enough concentrations. An increased bilirubin concentration is associated with jaundice. The lab report at 10:00 AM indicated severe hyperbilirubinemia: a higher than normal level of bilirubin in the blood.
Phototherapy, the practice of putting an infant under lights to reduce bilirubin concentration, was commenced at 11:00 AM. At this time, the plaintiff was neurologically intact. The plaintiff's bilirubin level dropped slightly but by 3:00 PM he showed signs of neurological damage. Further treatment was unsuccessful and he developed kernicterus. As a result, he suffers from severe deficits, including dyskinetic cerebral palsy, moderate to severe hearing loss, visual impairment, developmental delays and intellectual disability.
The plaintiff's family (the "respondents") commenced this action against the London Health Sciences Centre ("LHSC"), nurse S.O. and seven doctors. Before trial, the parties agreed on damages of $9,500,000.00. At the start of trial, the plaintiffs settled the claims against the seven doctors and the trial proceeded against LHSC and nurse S.O. (the "appellants").
The trial judge found that: S.O. fell below the standard of care by failing to report to the resident pediatrician on duty the onset of jaundice when she noted that condition at 9:00 PM; but for S.O.'s negligence, a resident would have ordered a blood test for bilirubin at midnight; and phototherapy to reduce the plaintiff's level of bilirubin would have commenced no later than 2:15 AM, and had that occurred, the plaintiff would not have developed kernicterus. LHSC and S.O. only appealed the findings with respect to causation.
(1) Was the trial judge's finding of causation tainted by her error in relying on what a "reasonable resident" would have done if S.O. had reported jaundice at 9:00 PM on December 25?
(2) Did the trial judge err by inferring causation in the absence of expert evidence that the plaintiff would not have developed kernicterus had phototherapy been commenced at 2:15 AM on December 26?
(3) Did the trial judge err in finding that the conversation between S.O. and the plaintiff's mother took place at 9:00 PM on December 25?
(1) No, the trial judge's finding of causation was not tainted by her alleged error in relying on what a "reasonable resident" would have done if S.O. had reported jaundice at 9:00 PM. The combination of expert evidence provided a reasonable foundation for the trial judge's finding.
The trial judge found that had S.O. reported the jaundice and other risk factors, a reasonably competent resident would have responded promptly and ordered blood to be drawn for a bilirubin test at midnight. The trial judge relied on the opinion of expert Dr. Marrin, who testified that a competent resident would have ordered a blood test at the next handling episode (midnight), and on the opinion of expert Dr. Sangha, who testified that he would have ordered a bilirubin test at the first sign of jaundice.
(2) No, the trial judge did not err by inferring causation in the absence of expert evidence that the plaintiff would not have developed kernicterus had phototherapy been commenced at 2:15 AM. In reaching this conclusion, the trial judge relied on Dr. Marrin's unchallenged evidence that the plaintiff would not have developed kernicterus if phototherapy had been initiated at either 9:00 PM or midnight.
At trial, the appellants' called no expert evidence on causation, choosing to rest on the theory that the respondents had failed to prove causation. Based on the following evidence, it was open to the trial judge to infer that the introduction of phototherapy at 2:15 AM would have prevented the plaintiff from developing kernicterus: Dr. Marrin's foregoing evidence; that phototherapy is effective in blunting the rise and reducing the level of bilirubin; that when phototherapy was introduced the next morning, the plaintiff's bilirubin declined; and that the plaintiff was still neurologically intact at 11:00 AM and did not exhibit signs of neurological damage until 3:00 PM. This was a solid factual foundation to make an inference.
If there was any gap in the evidence about what would have happened had phototherapy been introduced at 2:15 AM, that gap was the product of S.O.'s negligence. Her failure to order the test is the reason there is no data point as to the bilirubin level at 2:15 AM. S.O. should not be permitted to rely on the lack of evidence that her own negligence produced.
(3) No, the trial judge did not err in finding that the conversation between S.O. and the plaintiff's mother took place at 9:00 PM. At some point in the late evening of December 25, the plaintiff's mother had a conversation with S.O. wherein the plaintiff's mother requested a blood test and noted that she had experience with jaundice. Neither the plaintiff's mother nor S.O. could pinpoint a precise time.
The trial judge found as a fact that the conversation took place at 9:00 PM, relying on the notation made by S.O. at that time that "Mom plans to nurse when able." It was open to the trial judge on this record to infer from S.O.'s note that the conversation took place at 9:00 PM.
[Strathy C.J.O., Roberts and Paciocco JJ.A.]
B.A. Percival and G.D. Bodnaryk, for the appellant, Daryl S. McHugh
D.A. Zuber, J.B. Tausenfreund and M. Smit, for the appellant, the City of Hamilton
R.J. Hooper and M. Grosso, for the respondents, Madeline Smith, Laura Smith, Randy Smith, Florence Smith, Thomas Smith, Thomas Smith Jr., Madeline Smith, Edward Smith, Gladys Lianos, and George Lianos (the "Smith respondents")
M.C. Wilkinson, for the respondents, Alexandra Safranyos, Victoria Safranyos, Shelly Lalonde, and Cynthia Green (the "Safranyos respondents")
J.F. Fitch and and R. Khan, for the respondent, Dawn Marie Safranyos
Keywords: Torts, Negligence, Municipal Liability, Motor Vehicle Accident, Non-Repair, Contributory Negligence, Causation, Evidence, Adverse Inferences, Expert Evidence, Municipal Act, 2001, S.O. 2001, c. 25, s. 44, Fordham v Dutton-Dunwich (Municipality), 2014 ONCA 891
The respondents (all minors) were involved in a serious automobile collision between the appellant, DM, and the respondent DS. The collision occurred at a four-way intersection in the appellant City of Hamilton, whereupon the appellant DM's car "T-boned" DMS' car as she was turning left at the intersection.
Lawsuits were brought on behalf of the injured minor respondents and their parents against the appellants, as well as DMS. The claims against DM were related to the alleged negligent manner of driving that had played a role in causing the collision, while the claims against the City were based on the allegation that non-repair of the intersection, given its design and condition, was a cause of the accident.
All of the claims were tried together, but the trial was bifurcated into two separate proceedings: one for liability and one for damages. The liability trial was the only trial at issue in this appeal, as the damages trial had yet to be held.
The trial judge found each of the defendants liable, apportioning 50 percent to DMS, and 25 percent to each of the appellants.
With respect to the City's liability, the trial judge found that there was no stop line at the corner of the intersection where DMS was turning. There was also evidence before the trial judge that the absence of a stop line was contrary to the City's own design for the intersection. The trial judge similarly found that a steel guardrail leading up to the intersection was positioned such that it would prevent DMS from viewing DM's car as it approached the intersection.
The trial judge relied on Ontario Traffic Guidelines to help determine the standard of care, as well as the evidence of three expert witnesses. The trial judge additionally drew an adverse inference from the City's failure to call relevant expert witnesses to interpret municipal documents regarding stop line policy and design, finding that this meant the documents themselves should be understood as supporting the need for a stop line at the intersection.
Taking these findings together, the trial judge concluded that the conditions of the intersection were below the standard for the reasonable state of repair, and the City was therefore liable on that basis.
With respect to DM's liability, the trial judge made several findings that were the subject of the Court of Appeal's scrutiny. For the purposes of this appeal, the Court of Appeal focused on three aspects of the trial judge's findings. First, in determining DMS' liability, the trial judge merely only admitted into evidence "essential facts" derived from DMS' related provincial offence prosecution, including that she was a servient driver, that DM had the right-of-way, and that in entering the intersection, DMS created an immediate hazard. The trial judge made other material findings relating to DMS or her operation of her vehicle.
Second, in making findings regarding the testimony of the only independent witness to the collision, the trial judge summarized his evidence in a mere nine lines and only relied on his evidence for the proposition that the witness saw DM's car come "out of nowhere".
Third, in making findings related to DM's liability, the trial judge made several specific findings relating to his speed, his alcohol consumption that night, his inattention, his last clear chance or opportunity to avoid the collision, and finally, his reaction and perception time.
With respect to speed, the trial judge found that DM's vehicle speed in excess of the limit was a cause of the accident since, had he been driving at the speed limit, no accident would have occurred. With respect to his alcohol consumption, the trial judge found that his likely blood alcohol level at the time of the collision impaired his perception and reaction time, meaning that his alcohol consumption was a factor in causing the collision. With respect to his inattention, the trial judge found very briefly that it was "of note" that DM did not see a vehicle that had pulled into the intersection immediately before DMS' vehicle.
With respect to his opportunity to avoid the collision, the trial judge found that DM could have avoided the collisions had he been driving prudently; in so doing, she rejected DM's evidence with respect to his distance from DMS' vehicle when she entered the intersection. Lastly, the trial judge found that his reaction and perception time were impaired by his alcohol consumption.
The Court of Appeal split the issues into two categories: first, those with respect to the City's appeal; and second, those with respect to DM's appeal.
The City's Appeal
(1) Did the trial judge err in law by misapplying the reasonable driver standard when determining whether the intersection was in non-repair?
(2) Did the trial judge err in law by finding that the absence of a stop line constituted a non-repair by a) treating Ontario Traffic Manual guidelines as legally enforceable standards of civil liability, or b) improperly drawing adverse inferences and using the first appellant's policies in finding non-repair?
(3)Did the trial judge commit a palpable and overriding error in finding that the sightlines constituted a non-repair?
(4) Did the trial judge commit a palpable and overriding error in finding a causal link between the intersection's non-repair and the accident?
(1) Did the trial judge err in finding that DM could have avoided the collision?
(2) Did the trial judge err in finding that the collision would not have occurred if DM had been travelling at the speed limit?
(3) Did the trial judge misuse the evidence about the DM's intoxication?
City's appeal dismissed. DM's appeal allowed.
(1) No. The Court of Appeal noted that there is a four-step test set out under Fordham v Dutton-Dunwich (Municipality), 2014 ONCA 891 in determining whether a municipality is liable under s. 44 of the Municipal Act. The first two steps — proof of non-repair and proof that the non-repair caused the accident — determine whether there is a prima facie case of liability. The second two steps — statutory defences and contributory negligence — determine the extent to which a municipality can be absolved of liability. The City took issue with the trial judge's findings with respect to steps one through three.
With respect to the first step, the Court of Appeal found that notwithstanding that DMS was a negligent driver and contravened sections of the Highway Traffic Act, the trial judge understood and applied the law correctly. In looking at the trial judge's findings, it was clear that she properly stated the law, and did not modify it to accommodate DMS' negligence. The trial judge similarly applied the law correctly, as the Court of Appeal found that drivers' duties under the Highway Traffic Act cannot absolve municipalities of liability even where drivers have been negligent. To the extent that the trial judge did exhibit any confusion about the ordinary standard of care for drivers, it was of no prejudice to the City.
(2) No. First, the trial judge did not rely on the Ontario Traffic Manual guidelines as if they established the City's standard of care; in fact, she expressly stated the contrary, recognizing that the guidelines were simply one item combined with other cogent evidence that guided the court to its conclusion on the standard of care. In addition to the guidelines, the trial judge also heard ample expert evidence to support her conclusion.
Second, the Court of Appeal found that the trial judge's drawing of adverse inferences against the City to support her finding of non-repair was without error. The City took issue not with the adverse inference against the failure to call witnesses, but the adverse inference in relation to the policy documents. The Court of Appeal rejected the City's contention that such an inference should only apply at the third step of the Fordham test (statutory defences), finding that the trial judge's adverse inferences were appropriately done within the context of the Fordham test's first step (non-repair).
(3) No. Although the trial judge should have worded her factual findings regarding the intersection's sightlines more clearly, those findings were nevertheless discernible from the evidence she did accept. Since the findings and the evidence in their support could be fairly extracted from the trial judge's reasons, the Court of Appeal rejected the City's arguments on this point.
With respect to witness testimony, the Court of Appeal was careful to observe that notwithstanding its disagreement with the trial judge that the impaired sightlines could, in and of themselves, amount to a state of non-repair, this error was not overriding because the trial judge also found that the impaired sightlines enhanced the risk already posed by the absent stop line.
(4) No. The trial judge had ample evidence that the intersection was confusing to drivers. She was entitled, in the circumstances, to accept DMS' evidence that had there been a stop line, she would have stopped there.
(1) Yes. The Court of Appeal found that the trial judge committed a palpable and overriding error in finding that DM could have avoided the collision if he had not been negligent. Taking into account all the relevant factors, DM could not have avoided the accident regardless of whether he breached the standard of care of an ordinary driver. Reviewing the evidence, the Court of Appeal found that the trial judge failed to consider relevant evidence and misapprehended the evidence on which she did rely. On the balance of probabilities, it was not open for the trial judge to conclude that DM could have avoided the collision.
(2) Yes. Specifically, one of the trial judge's findings adopted a test for causation more akin to the "butterfly effect", whereby a minute factor can, cumulatively with other circumstances, produce a very large and unforeseeable effect. This is the incorrect test for causation, as the "but for" test remains the correct test. That being said, the Court of Appeal found that this error in and of itself would have not been an overriding error, since the trial judge also found that DM's speed also contributed to his failure to react. This would be a proper speed-based causation finding. As noted in issue (1), however, this causation finding was also erroneous.
(3) Yes. The trial judge misused expert evidence on alcohol impairment in two respects: first, by concluding without a sufficient evidentiary basis that DM was impaired; and second, by misinterpreting the effect that alcohol impairment would have on a driver's perception to reaction time.
With respect to the first basis, the trial judge erroneously relied on legislated levels of tolerance for blood alcohol to determine that DM was impaired, when she should have relied on the evidence itself. Further, the trial judge's reliance on the legislation was wrong in law, as she misunderstood the relevant provisions. Lastly, she misapprehended the expert evidence before her, ignoring the significant qualifications that the expert witness imposed on his evidence.
With respect to the second basis, the trial judge misapprehended the evidence relating to the possible effects of alcohol impairment on the perception to reaction time of a motorist. The trial judge misstated the expert evidence in paraphrasing it, committing errors that had a significant impact on understanding DM's potential ability to avoid the collision.
[Simmons, Huscroft and Miller JJ.A.]
C.I.R. Morrison and J. Cormier, for the respondents
D. Zuber and J. Tausendfreund, for the appellant
Keywords: Torts, Negligence, Motor Vehicle Accident, Municipal Liability, Duty to Repair, Standard of Care, Municipal Act, S.O. 2001, c. 25 s 44, Highway Traffic Act, R.S.O. 1990, c H.8 s 136(1), Fordham v. Dutton-Dunwich (Municipality), 2014 ONCA 891, Kennerley v. Norfolk (County) (2005), 16 M.P.L.R. (4th) 286 (Ont. S.C.)
The respondent passenger was rendered a quadriplegic following a motor vehicle accident that occurred at the intersection of Brock Road and the 5th Concession West in the City of Hamilton (the "City").
The accident occurred when a westbound Buick sedan driven by the appellant driver accelerated away from a stop sign on the 5th Concession West and T-boned a minivan northbound on Brock Road. The respondent passenger was riding in the minivan. At the time of the accident, the appellant driver was heading across Brock Road. Following the impact, the minivan rolled over and struck a pole. Brock Road and the 5th Concession West are both two-lane roads. There was no stop sign governing the flow of northbound and southbound traffic on Brock Road. It is undisputed that the stop sign governing the flow of westbound traffic at the intersection was between 8.4 and 9.41 metres behind a faded stop line, painted in 2004, which in turn was between 1.936 and 2.936 metres behind the easterly entrance to the intersection. (Put another way, the stop sign was between 10.336 and 12.336 metres from the east edge of Brock Road).
Counsel conceded that the appellant driver of the westbound vehicle was negligent in entering the intersection when it was unsafe to do so. The trial judge found that the appellant driver stopped at the stop sign, but then accelerated into the intersection without seeing the northbound vehicle, thus causing the collision. The appellant driver had no explanation for why he did not see the northbound vehicle. Relying in part on expert testimony from a forensic engineer, the trial judge also found the City breached its duty to keep the roadway in a reasonable state of repair by failing to repaint a faded stop line that was no longer effective in guiding drivers concerning where to stop. He concluded that the appellant City was thus 50% responsible for the accident.
(1) Did the trial judge err in finding that the appellant City failed to keep the roadway in a reasonable state of repair?
(1) Yes. Section 44 of the Municipal Act, S.O. 2001, c. 25, requires a municipality to keep highways under its jurisdiction "in a state of repair that is reasonable in the circumstances, including the character and location of the highway". In Fordham v. Dutton-Dunwich (Municipality), 2014 ONCA 891, at paras. 28-29, Laskin J.A. described the ordinary reasonable driver standard, the standard of care which governs a municipality's duty of highway repair. As described by Laskin J.A., a municipality is required to prevent or remedy conditions on its roads that create an unreasonable risk of harm for ordinary drivers exercising reasonable care. Ordinary reasonable drivers are not perfect; they make mistakes. However, a municipality's duty does not extend to remedying conditions that pose a risk of harm only because of negligent driving.
The obligations of a driver approaching a stop sign are delineated by the Highway Traffic Act, R.S.O. 1990, c H.8 ("HTA"). Under s. 136(1) of the HTA, where there is no stop line or crosswalk, a driver who approaches a stop sign at an intersection is required to stop her vehicle "immediately before entering the intersection". Under s. 136(1)(b) of the HTA, a driver who approaches a stop sign at an intersection "shall yield the right of way to traffic in the intersection or approaching the intersection on another highway so closely that to proceed would constitute an immediate hazard".
The appellant City argued that the trial judge erred in applying the ordinary reasonable driver standard. The City contended that although the trial judge recognized that an ordinary reasonable driver would be aware of s. 136 of the HTA, he proceeded with his analysis on the erroneous premise that an ordinary reasonable driver would not comply with that section. The court rejected the City's argument because, as set out in Fordham, the ordinary reasonable driver standard is that of ordinary drivers exercising reasonable care who nevertheless sometimes make mistakes.
Nonetheless, the court held that the trial judge erred in applying the ordinary reasonable driver standard. The forensic engineer's red zone and green zone evidence were focused on sightlines for the intersection for northbound traffic. However, the question in this case was not whether an ordinary reasonable driver could be expected to know the exact length of the safe stopping distance in relation to northbound traffic (i.e., that if they stopped eight meters back from the intersection they would have adequate sightlines for northbound, traffic but if they stopped 8.5 meters back they would not). Rather, the question was whether, in the absence of a stop line, the intersection posed an unreasonable risk of harm for ordinary drivers exercising reasonable care who sometimes make mistakes.
In the court's view, the trial judge erred by ignoring the fact that although drivers stopped at (or near) the stop sign, would have had a 150-metre view of northbound traffic, their view of southbound traffic would be completely obscured by a house at the northeast corner of the intersection. The only clear evidence concerning southbound traffic was that, at the stop sign (where the trial judge found the appellant driver stopped), the sightline for southbound traffic was totally obscured by a house at the northeast corner of the intersection – whereas, at the faded stop line, the southbound sightline was completely clear. The court stated that ordinary reasonable drivers would not stop their cars in a location where their view of oncoming traffic from one direction would be completely obscured and then proceed into the intersection without stopping again. They would know to come closer to the intersection before stopping initially or before stopping again, in order to have a clear view of traffic from both directions.
In Kennerley v. Norfolk (County) (2005), 16 M.P.L.R. (4th) 286 (Ont. S.C.), Killeen J. held, at para. 14, that it was an "act of folly" for a driver to stop 11.4 meters before an intersection without a stop line and proceed into that intersection without looking again. Similarly, there can be no doubt that drivers who stop in a position where their view of one line of oncoming traffic is completely obscured – and do not stop again before entering the intersection – fall well below the standard of an ordinary reasonable driver and are negligent. They are not simply drivers exercising reasonable care who have made a mistake.
Contrary to the reasoning of the trial judge, the obligation of reasonable drivers was not to determine whether they should stop 8 or 8.5 meters back from the intersection, so they would have an adequate sightline of northbound traffic. Rather – and particularly considered in the context of the obligation under s. 136 of the HTA, to stop immediately before entering the intersection – it was to stop at a point close enough to the intersection so they would at least have sightlines in both directions.
Drivers who fail to comply with the rules of the road established under the HTA and who also act in a manner that is contrary to common sense cannot meet the ordinary reasonable driver standard. The court held that the trial judge erred in failing to recognize that, and in failing to recognize that, the evidence in this case did not fully address the sightlines for southbound traffic – a necessary component to applying the ordinary reasonable driver standard on the facts of this case. The appeal was allowed, and the trial judge's finding that the appellant City failed to keep the roadway in a reasonable state of repair was set aside and the action as against the City was dismissed.
[Simmons, Roberts and Nordheimer JJ.A.]
F. Cesario, for the appellant
M. A. Hoy, for the respondent
Keywords: Civil Procedure, Costs, Divided Success, Simplified Procedure, Rules of Civil Procedure, Rules 76.02 and 76.13
On July 10, 2018, the Court allowed the appeal in this case and awarded costs of the appeal to the respondent in the amount of $10,000. The parties were invited to make submissions on the issue of the appropriate disposition of the costs of the trial. The appellant submitted that each side should bear their own costs at trial because of the limited success enjoyed by the respondent and because of the operation of r. 76.13 of the Rules of Civil Procedure. Alternatively, the respondent should be awarded costs at trial but reduced in amount to $20,000. The respondent submitted that he should be entitled to the costs award made by the trial judge, fixed at $82,600. The trial lasted seven days. A successful summary motion had reduced the scope of the claim, leaving only a constructive dismissal claim and a claim for punitive damages. The respondent called seven witnesses, in addition to himself, and the appellant called one witness. Most of the evidence tendered by the respondent was in support of his claim for punitive damages.
(1) Is the respondent precluded from recovering costs at trial under r. 76.02?
(2) If no, what amount for the costs of the trial is the respondent entitled to?
Trial costs of $40,000 granted.
(1) The Court found that after the summary judgment motion, the respondent could have proceeded under the simplified procedure as permitted by r. 76.02, and did not. Under r 76.13, a plaintiff "shall not recover any costs" if a claim that properly falls within the simplified procedure is not pursued under Rule 76. The consequence is mandatory but the court has discretion to depart from it if the court considers it reasonable to do so. The Court found that this was such a case. This was an unusual employment law situation including an issue of frustration of the contract of employment. Moreover, it was not clear whether by the time the other claims had been struck out, the action had progressed to a point where proceeding under the simplified procedure would have made any practical difference. There was also no indication that the appellant had objected to the matter proceeding under the ordinary procedure.
(2) The Court granted the respondent his costs of the trial, but stated the award had to be reduced to reflect the fact that the trial had been considerably lengthened by the respondent's claim for punitive damages, which had been unsuccessful. The costs were reduced to $40,000 inclusive of disbursements and HST.
[Rouleau, Benotto and Miller JJ.A]
P. Taylor, acting in person
J-D. Belec, for the Workplace Safety and Insurance Board
M. Fenrick, for the Workplace Safety and Insurance Appeals Tribunal
Keywords: Administrative Law, Judicial Review, Workplace Safety and Insurance, Prematurity, Mandamus, Judicial Review Procedure Act, RSO 1990, c J1
The Workplace Safety and Insurance Board ("WSIB") denied the appellant's claim for 1) reimbursement for non-prescription pain medication and 2) benefits for certain dates in 1998, and ceased the appellant's coverage for reimbursement of prescription medication. The appellant commenced an internal appeal to the Workplace Safety and Insurance Appeals Tribunal ("WSIAT"). The appellant concurrently applied to the Superior Court of Justice for urgent relief under the Judicial Review Procedure Act, RSO 1990, c J1, seeking an order of mandamus compelling the WSIB and WSIAT to hold oral appeal hearings within a specific time frame.
The application judge determined that there was no urgency and dismissed the application. She further determined that the application was in any event premature, as the appellant had not exhausted the administrative appeal process within the WSIB or commenced an appeal to the WSIAT.
(1) Did the application judge err in relying on the WSIB's policy that it is incumbent on the claimant to provide medical reports, and in concluding that the WSIB acted reasonably in requesting updated medical information?
(1) No. The Court of Appeal found no basis to interfere with the application judge's finding that, by giving three months' notice to the appellant of the need for updated information, WSIB acted reasonably to ensure that the requested information is submitted. Additionally, the appellant failed to identify any legal error that would permit appellate intervention.
The Court of Appeal similarly dismissed a motion at the outset of the hearing for this case by the appellant, in which he requested that the hearing of the appeal be live-streamed via a Facebook page. The Court found that it would have been inappropriate to depart from, or supplement, the existing practice directives that govern the recording of proceedings in the courtroom.
SHORT CIVIL DECISIONS
[Rouleau, Pardu and Benotto JJ.A.]
O. Bisumbule, for herself
E. Conway, for himself
Keywords: Procédure Civile, Jugement sommaire, Négligence, Délai de prescriptionDépens
[Juriansz, Brown and Huscroft JJ.A.]
D. Zacks and J. Vizzaccaro, for the appellant
D. Spiller and J. Hemmings, for the respondent, 2286120 Ontario Inc., carrying on business as Kells Garden City Landscape Construction and for the proposed defendant, Kell's Garden City o/o Garden City Inc.
Keywords: Civil Procedure, Amending Pleadings, Adding Parties, Misnomer, Lloyd v. Clark, 2008 ONCA 343
[Rouleau, Benotto and Miller JJ.A.]
K. MacLaren and B. Dillon, for the appellants
J. G. Richards and N. Johnston, for the respondents
Keywords: Property Law, Rights of Way, Easements by Grant, Ambiguity, Post-Grant Evidence
[Rouleau, Benotto and Miller JJ.A.]
B. Pickard and W. Cline, for the appellant
S. Shantz, for the respondents
Keywords: Insurance Law, Long Term Disability, Limitation Periods, Relief from Forfeiture
[Pepall, Lauwers & Fairburn JJ.A.]
M. Halfyard, for the appellant
I. Bell, for the respondent
Keywords: Criminal Law, Possession of Heroin for Purpose of Trafficking, Informations, Search Warrants, Reasonable and Probable Grounds, Canadian Charter of Rights and Freedoms, ss. 8 & 24(2)
[Strathy C.J.O, Doherty and Roberts JJ.A.]
G. Henderson, for the appellant
J. Reid, for the respondent
Keywords: Criminal Law, Impaired Driving, Dangerous Driving, Evidence, Eyewitness Testimony, Identification Evidence, R. v. Boucher,  O.J. No. 2373 (CA)
[Hoy A.C.J.O and Watt J.A. and Then J. (ad hoc)]
A. Ruffo and D. Santoro, for the appellant
J. Sutton, for the respondent
Keywords: Criminal Law, Procedural and Natural Justice, Fair Trials, Self-Represented Defendants, Failure to Provide Sufficient Assistance, Criminal Code s. 650(1), Canadian Charter of Rights and Freedoms, s. 10(b), Miscarriage of Justice, R. v. Jordan, 2016 SCC 27, R. v. Cody, 2017 SCC 31, R. v. Richards, 2017 ONCA 424, R. v Tran, (2001), 156 C.C.C. (3d) 1, R. v. Arbour (1990), 4 C.R.R. (2d) 369
[Watt J.A. (In Chambers)]
H. Krongold for the appellant C.G.
R. Litkowski, for the appellant Robert Roszmann
B. Wassenaar, for the respondent
C. Lax for the interveners Diane Johnson, Lynne Johnson, Shelley Smith and Judith Smith
J. S. Jenkins, for the intervener Legal Aid Ontario
R. Li, for the intervener Court Services Division
M. Halfyard, for the intervener Criminal Lawyers Association of Ontario
Keywords: Criminal Law, Appeals, Procedural and Natural Justice, Access to Justice, Transcripts, Criminal Code ss. 482(1), 482(3)(d)(ii), 540(1), 557, 572, 646, 682(2) & 682(4), Ontario Court of Appeal Criminal Appeal Rules, SI 93-169 r. 8(16), Fees for Court Transcripts, O. Reg. 94/14, R. v. Jordan, 2016 SCC 27
[Strathy C.J.O., Doherty and Roberts JJ.A.]
G. Dorsz, for the appellant
C. Elmasry, for the respondent
Keywords: Criminal Law, Endorsement
[Pepall, Lauwers and Fairburn JJ.A.]
S. Wickramasinghe and Z. Kerbel, for the appellant
A. Hotke, for the respondent
Keywords: Criminal Law, Sexual Assault, Evidence, Post-Occurrence Demeanour, Sufficiency of Reasons, R. v. Sheppard, 2002 SCC 26, R. v. R.E.M.,  3 S.C.R. 3, R v. Dinardo, 2008 SCC 24, R. v. H.S.B., 3 S.C.R. 32, R. v. Dobson, 2009 ONCA 714, R. v. Mah, 2002 NSCA 99
href="http://www.ontariocourts.ca/decisions/2018/2018ONCA0757.pdf"> R. v. Korof, 2018 ONCA 757
[Hoy A.C.J.O., Watt J.A. and Then J. (ad hoc)]
R. Pillay, for the appellant
E. Middelkamp, for the respondent
Keywords: Criminal Law, Procuring Prostitution, Sentencing, Criminal Code ss. 212(1)(d), 212(1)(h) & 686
[Strathy C.J.O, Doherty and Roberts JJ.A.]
R. Litkowski, for the appellant
M. Petrie, for the respondent
Keywords: Criminal Law, Robbery, Use of an Imitation Firearm, Wearing a Disguise with Intent to Commit an Indictable Offence, Directed Verdict, United States of America v. Shephard,  2 S.C.R. 1067, Criminal Code ss. 85, 344 & 351(2)
[Paciocco J.A. (Motion Judge)]
F. Addario and J. Foy, for the applicant
H. Loubert, for the responding party
Keywords: Criminal Law, Bail Pending Appeal, Criminal Code s. 679(3), Interests of Justice, Public Confidence in the Administration of Justice
href="http://www.ontariocourts.ca/decisions/2018/2018ONCA0755.pdf"> R. v. Sauve, 2018 ONCA 754
[Trotter J.A. (Motions Judge)]
C. Sauve, acting in person
L. Bolton, for the respondent
Keywords: Criminal Law, Second Degree Murder, Appeals, Appointment of Counsel, Sufficient Means, Criminal Code s. 684, R. v. Bernardo (1997), 121 C.C.C. (3d) 123 (Ont. C.A.), R v. Mahmood, 2015 ONCA 442, R. v. Adams, 2016 ONCA 413
ONTARIO REVIEW BOARD APPEALS
[MacPherson, Huscroft and Nordheimer JJ.A.]
A. Szigeti, for the appellant
R. Schwartz, for the respondent Attorney General of Ontario
J. Zamprogna Balles for the respondent Southwest Centre for Forensic Mental Health Care, St. Joseph's Health Care London
Keywords: Ontario Review Board, Not Criminally Responsible on Account of Mental Disorder, Discharge, Winko v. British Columbia (Forensic Psychiatric Institute),  2 S.C.R. 625, Significant Threat to Public Safety, Criminal Code s. 672.54, Mental Health Act, R.S.O. 1990, c. M.7, Re Medcof, 2018 ONCA 29
[Pepall, Lauwers & Fairburn JJ.A.]
P. Calarco, for the appellant
J. Hanna, for the respondent
M. Warner, for the Centre for Addition and Mental Health
Keywords: Ontario Review Board, Conditional Discharge, Schizophrenia, Significant Risk of Threat to Public Safety, Criminal Code, s. 672.54
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