Court Of Appeal Summaries (May 4 – 8, 2020) - Professional Negligence

Good afternoon.

Please find our summaries of this past week's civil decisions of the Court of Appeal for Ontario (there were two substantive civil decisions).

In Stirrett v. Cheema, the trial judge had found the head of a hospital's clinical research trial liable for breach of fiduciary duty after a trial participant died as a result of complications that arose during an angiogram. The Court allowed the appeal after a thorough analysis of the role of causation in cases involving a breach of fiduciary duty.

Friends of Toronto Public Cemeteries Inc. v. Public Guardian and Trustee involved the interpretation of historical statutes dating back to the 1800's in respect of the establishment, governance and operation of Mount Pleasant and other cemeteries.

Wishing everyone continued health and an enjoyable weekend.

Civil Decisions

Friends of Toronto Public Cemeteries Inc. v. Public Guardian and Trustee, 2020 ONCA 282

Keywords: Corporations, Cemeteries, Non-Share Capital Corporations, Charities, Governance, Statutory Trusts, Charitable Trusts, Statutory Interpretation, Implied Repeal, Funeral, Burial and Cremation Services Act, 2002, S.O. 2002, c. 33, Cemeteries Act, R.S.O. 1980, c. 59, Corporations Act, 1953, S.O. 1953, c. 19, Charities Accounting Act, R.S.O. 1990, c. C.10, Charitable Uses Act, 1601 (Eng.), 43 Eliz. 1, c.4, Humphrey Funeral Home v. Toronto (City) (2007), 32 M.P.L.R. (4th) 124 (Ont. S.C.), Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, Montreal v. ILGWU Center Inc.(1971), 1974 S.C.R. 59, R. v. Mercure, [1988] 1 S.C.R. 234, Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2013 SCC 42, United States of America v. Jennings and Another (1982), 75 Cr. App. R. 367 (H.L.), Re Oldfield Estate (No. 2), [1949] 2 D.L.R. 175 (Man. K.B.), Scottish Burial Reform and Cremation Society v. Glasgow Corp., [1967] 3 W.L.R. 1132 (H.L. Scotland), A.Y.S.A. Amateur Youth Soccer Assn. v. Canada Revenue Agency, 2007 SCC 42, Guarantee Company of North America v. Royal Bank of Canada, 2019 ONCA 9, British Columbia v. Henfrey Samson Belair Ltd., [1989] 2 S.C.R. 24, XMCO Canada Ltd., Re, 1991 CarswellOnt 161 (C.J.), Asian Outreach Canada v. Hutchinson, 1999 CarswellOnt 1794 (S.C.), Friends of Camp Aneesh v. Girl Guides of Canada, 2012 ONSC 6855, Re Centenary Hospital Association(1989), 59 D.L.R. (4th) 449 (Ont. S.C.), Commissioners for Special Purposes of the Income Tax v. Pemsel, [1891] A.C. 531 (H.L.), Dames du Bon Pasteur v. R., [1952] 2 S.C.R. 76, Towle Estate v. Minister of National Revenue (1966), [1967] S.C.R. 133, Rodaro v. Royal Bank of Canada, 2002 CanLII 41834 (Ont. C.A.), 60635 Ontario Limited v. 1002953 Ontario Inc., 1999 CanLII 789 (Ont. C.A.), Cash v. George Dundas Realty Ltd., 40 D.L.R. (3d) 31 (Ont. C.A.), Hilson v. 1336365 Alberta Ltd., 2019 ONCA 1000, Ackland v. Yonge-Esplanade Enterprises Ltd. (1992), 10 O.R. (3d) 97 (C.A.), Ontario Teachers' Federation v. Ontario Secondary School Teachers' Federation et al., 2002 CanLII 41933 (Ont. C.A.), Berardinelli v. Ontario Housing Corp.(1978), [1979] 1 S.C.R. 275

Stirrett v. Cheema, 2020 ONCA 288

Keywords: Torts, Negligence, Professional Liability, Doctors, Breach of Fiduciary Duty, Causation, Evidence, Onus of Proof, Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, Hodgkinson v. Simms, [1994] 3 S.C.R. 377, Standard Trust Company v. Metropolitan Trust Company of Canada, 2007 ONCA 897, Norberg v. Wynrib, [1992] 2 S.C.R. 226

Short Civil Decisions

2484234 Ontario Inc. v. Hanley Park Developments Inc., 2020 ONCA 293

Keywords: Costs Endorsement

Criminal Decisions

R. v. H., 2020 ONCA 284

Keywords: Criminal Law, First-Degree Murder, Evidence, Admissibility, Confessions, Police Trickery, Jury Instructions, Criminal Code, s. 231(2), R. v. Oickle, 2000 SCC 38, R. v. Durham Regional Crime Stoppers Inc., 2017 SCC 45, R. v. W.(D.), [1991] 1 S.C.R. 742, R. v. Robinson, 2017 ONCA 645, R. v. Jackson (2009), 190 C.R.R. (2d) 72 (ONSC)

R. v. M.R., 2020 ONCA 281 (Publication Ban)

Keywords: Criminal Law, Sexual Exploitation, Sentencing, Criminal Code, s. 153

R. v. M., 2020 ONCA 279

Keywords: Criminal Law, Aggravated Assault, Sentencing, COVID-19, R. v. Suter, [2018] 2 S.C.R. 496, R. v. Pham, [2013] 1 S.C.R. 739

R. v. D., 2020 ONCA 283 (Publication Ban)

Keywords: Criminal Law, Sexual Assault, Assault, Jury Instructions, Evidence, Admissibility, Credibility, Conduct During Trial, Prior Inconsistent Statements, R. v. Kiss, 2018 ONCA 184, R. v. M. (T.), 2014 ONCA 854, R. v. D.M., 2019 ONSC 4001

R. v. P., 2020 ONCA 287 (Publication Ban)

Keywords: Criminal Law, Sexual Assault Causing Bodily Harm, Evidence, Fresh Evidence, Exculpatory Evidence, Witnesses, Credibility, Prior Convictions, Crown Disclosure, Criminal Code, s. 683(1), Canada Evidence Act, R.S.C., 1985, c. C-5, s. 12(1), R. v. Stinchcombe, [1991] 3 S.C.R. 326, R. v. Gubbins, 2018 SCC 44, R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, R. v. Dixon, [1998] 1 S.C.R. 244

R. v. H., 2020 ONCA 292 (Publication Ban)

Keywords: Criminal Law, Attempted Child Abduction, Breaching Prohibition Order, Varying Orders, Terms, Sex Offender Registry, Criminal Code, s. 161(1)(d), R. v. Brar, 2016 ONCA 724

R. v. B., 2020 ONCA 295

Keywords: Criminal Law, Aggravated Assault, Fresh Evidence, Self-Defence

CIVIL DECISIONS

Friends of Toronto Public Cemeteries Inc. v. Public Guardian and Trustee, 2020 ONCA 282

[Pepall, Tulloch and Benotto JJ.A.]

Counsel:

Ronald G. Slaght, Q.C. and Margaret Robbins, for the appellant/respondent by
way of cross-appeal, Mount Pleasant Group of Cemeteries

Michael S.F. Watson, Rodney Northey and Michael Finley, for the
respondents/appellants by way of cross-appeal, Friends of Toronto Public
Cemeteries Inc. and K.W.T.

Dana De Sante, for the respondent/respondent by way of cross-appeal, Public
Guardian and Trustee

facts:

The applicants, a not-for-profit corporation, Friends of Toronto Public Cemeteries Inc., and a private individual, KWT (collectively, "FTPC"), commenced an application for declarations relating to the governance of Mount Pleasant Group of Cemeteries ("MPGC"), a non-profit, municipal cemetery corporation that held 10 cemeteries and proceeds in trust. MPGC was created by a Special Act of the Legislature of Upper Canada in the 1800s. A detailed history of MPGC is found in numerous statutes, including various acts in 1826 (the "1826 Act"), 1849 (the "1849 Act"), 1851, 1855, and 1871 (the "1871 Act"). The development of a crematorium and visitation centre at one of MPGC's cemeteries was the catalyst that resulted in proceedings brought by the FTPC.

Specifically, FTPC sought a declaration that MPGC continued to be governed by the 1826 Act, as amended by the 1849 Act, and accordingly, sought a declaration that the current directors of MPGC were not validly appointed. FTPC also sought a declaration that MPGC was incorporated pursuant to the 1871 Actfor the sole purpose of acting as trustee for the statutory trust created in 1826 (the "Burying Grounds Trust") and for the benefit of the public. In addition, FTPC asked that the Burying Grounds Trust be declared a charitable purpose trust and that MPGC be declared a charitable corporation within the meaning of the Charities Accounting Act("CAA"). Finally, FTPC sought an order that the Public Guardian and Trustee ("PGT") investigate MPGC.

The application judge declared that pursuant to s. 7 of the CAA, the corporation was being administered for a charitable purpose because its operation was non-profit, non-denominational and it also was a public cemetery. Therefore, the court found it a trustee within the meaning of s. 1(2) of the CAA. However, the application judge found that the public interest would not be served through an investigation by the PGT. Although the directors had acted in error, they had not acted in bad faith or in breach of trust.

issues:

(1) Did the application judge err in his statutory interpretation of the 1800s legislation, and in particular, the 1871 Act?

(2) Did the application judge err in declaring that the operation of the visitation centres and funeral homes was outside MPGC's legislative objects, which was relief the respondents did not request?

(3) Did the application judge err in concluding that MPGC was a charitable trust?

(4) Did the application judge err in finding no basis to order an investigation?

holding:

Appeal allowed. Cross-appeal dismissed.

reasoning:

(1) Yes. The Court iterated that every enactment shall be deemed to be remedial and receive such fair, large, and liberal construction and interpretation as will best ensure the attainment of the object of the Act. The Court cited Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, where the court observed that "statutory interpretation cannot be founded on the wording of the legislation alone". Rather, the purpose of the Act, along with its consequences or effects should be considered. The Court found that the historical Acts in issue on appeal were not models of legislative clarity; they were products of their times. As historical statutes, the Court acknowledged that they presented real interpretative challenges.

The Court addressed the appellant's argument that it was not relying on implied repeal and that changes to MPGC's governance were effected by the amendment, as reflected in the title of the 1871 Act. The appellant cited Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis Canada Inc., 2014) (QL) for this proposition. Sullivan wrote that in analyzing the temporal operation of amendments, the courts look to substance rather than form and that the part of the amendment that introduces new law is treated as new legislation. Sullivan stated that "the part of existing law that is not substantively reproduced in the new text is treated as a repeal. It ceases to be law and ceases to be in force from the moment the amendment operates". While the Court accepted that the governance of MPGC was altered by the 1871 Act, Sullivan addressed temporal operations of amendments rather than a stand-alone interpretive principle.

In addressing MPGC's reliance on Montreal v. ILGWU Center Inc. (1971), 1974 S.C.R. 59, the Court found that the decision did not stand for the proposition that a substantive change requires that all continuing provisions be reproduced, failing which, those provisions that are not reproduced are considered to be repealed. The Court also found that MPGC's submission was more properly characterized as being based on implied repeal. MPGC's mischaracterization was not determinative, as a standard of correctness applies to statutory interpretation.

A modern statute designed to repeal a prior statute is likely to do so explicitly. Repeal is usually carried out through the enactment of stylized provisions. Moreover, the Court noted that there is a general presumption against implied repeal. Reading the words of the 1871 Actin their entire context, and in their grammatical and ordinary sense harmoniously with the scheme and object of the Act, the Court concluded that the Legislature intended to change the governance of MPGC to a corporation with perpetual succession being achieved through the enactment of by-laws rather than through the vehicle of an election. The 1871Actoccupied the field. Furthermore, a contrary conclusion would produce absurd results. Accordingly, the 1849 trustee selection process was no longer applicable.

(2) Yes. The application judge erred in declaring that the operation of the visitation centres and funeral homes was outside MPGC's legislative objects, which was relief the respondents did not request. The Court examined the respondent FTPC's Amended Notice of Application and noted that there was no mention in FTPC's Amended Notice of Application of the declaratory relief the application judge granted with respect to the funeral homes and visitation centres.

The issue of the operation of the visitation centres and funeral home businesses arose in the context of FTPC's request for an investigation by the PGT as to whether the appellant had complied with its legal obligations as a trustee. However, the Court noted there was a material difference between the issue being raised in the context of a request for an order for an investigation by the PGT and a request for a declaration that the operation of the visitation centres and the funeral home business are beyond the scope of the trust. Citing the flexible language of s. 10 of the CAA, the Court found that an investigation must first examine the allegation of illegality. In contrast, a declaration pronounces on the illegality of these operations.

The Court found it was also noteworthy that the application judge acknowledged that he had an inadequate evidentiary foundation to render a decision on the issue of crematoria. Had declaratory relief been sought on the legality of the three impugned business lines of the appellant, presumably the evidentiary record would have been more extensive. The Court allowed the appeal on the second issue on this ground alone. With that said, the Court was also of the view that this ground of appeal should succeed on its merits.

The Court also considered MPGC's objects. Although the parties focused on the elasticity of MPGC's corporate objects, the Court found that the real question was whether the objects of the trust permit the operation of the two of three additional lines of business that the application judge ruled upon and which were in issue. Certainly the power to operate a funeral home or visitation centre was not expressly conferred on MPGC. However, in the Court's view, that power was included within the ambit of cemeteries or places for the burial of the dead.

(3) Yes. The Court rejected the application judge's conclusion. In the Court's view, MPGC was not a charitable purpose trust and was therefore not subject to the CAA. The case law indicated that a statutory trust is a flexible device. As a flexible creature of statute, a statutory trust may be altered by the Legislature. The Court noted that statutory trusts are a difficult fit with charitable purpose trusts. A statutory trust is a creature of statute and clear statutory language reflecting a legislative intention to create a charitable purpose trust would be expected. The Court saw no such language in any of the relevant Acts. The Court found it to be telling that the Legislature did not use the word "charitable" or "charity". If the Legislature had wished to make MPGC a charitable purpose trust, it could have done so. The Court therefore concluded that it was not open to the application judge to treat the statutory trust as a charitable purpose trust under the CAA.

The Court applied the three-part test set out in Amateur Youth Soccer Assn. v. Canada Revenue Agency, 2007 SCC 42 ("A.Y.S.A.") in coming to its decision that it did not consider this to be a charitable purpose trust in any event. The Court found that there was no compelling jurisprudential trend, as the jurisprudence did provide authority for the proposition that a statutory trust created for the operation of a non-denominational cemetery has a charitable purpose under the common law. With regard to the scheme of the statute, the Court observed circumstances surrounding MPGC's establishment. The Court noted that while fees do not preclude charitable status, this was another factor suggesting that MPGC's purpose was not charitable. Finally, the Court stated it is the Legislature who should be left to determine whether an incremental change or a reform is being sought.

(4) No. Since the Court determined that the application judge was incorrect in concluding that MPGC was a charitable trust, the Court found that the cross-appeal was moot. However, the Court noted that it would not have allowed the cross-appeal in any event. The PGT is and was opposed to any such investigation. The application judge saw no basis on which to order an investigation and the Court saw no reason to interfere with the exercise of his discretion.

Stirrett v. Cheema, 2020 ONCA 288

[Hoy A.C.J.O., van Rensburg and Roberts JJ.A.]

Counsel:

W. D. Black and C. Wadsworth, for the appellant

G. MacKenzie, B. MacKenzie, R. Bogoroch and T. Samson, for the respondent

B. Legate, for the intervener, the Ontario Trial Lawyers Association

J. Opolsky and A. Shelley, for the intervener, the Canadian Cancer Trials Group

J.Adair and J. V. Katz, for the intervener, the Canadian Cardiovascular Research Collaboratory

facts:

DS died on February 12, 2005, as a result of complications that arose during an angiogram he underwent as part of his participation in a clinical research trial. KS, the respondent, sued the two doctors who performed the angiogram on her husband. The action against them was dismissed in its entirety. However, she successfully sued the appellant, Dr. BS, the medical researcher who headed up the clinical research trial at the hospital where the angiogram was performed. While the jury dismissed the negligence claim against Dr. BS, the trial judge found the doctor liable for breach of fiduciary duty on the basis that causation need not be considered.

issues:

(1) Did the trial judge err in finding that the appellant owed and breached an ad hoc fiduciary duty to DS as a participant in a clinical research trial?

(2) If so, did the trial judge err in accepting that causation was removed from the analysis in determining the respondent's entitlement to compensation for breach of fiduciary duty?

holding:

Appeal allowed.

reasoning:

(1) The Court declined to decide this issue. The test a claimant must meet for a court to impose a fiduciary duty outside of the traditionally recognized categories of per se fiduciary relationships was set out in Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24. For such a duty to arise, the claimant must show, in addition to the vulnerability arising from the relationship, (1) an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiary or beneficiaries; (2) a defined person or class of persons vulnerable to a fiduciary's control (the beneficiary or beneficiaries); and (3) a legal or substantial practical interest of the beneficiary or beneficiaries that stands to be adversely affected by the alleged fiduciary's exercise of discretion or control.

In the case at bar, the Court noted that the elements of vulnerability and discretion were fully supported by the evidence: the appellant, who was an accomplished researcher, had all the information about the clinical research trial that might have influenced DS's willingness to participate, and could control the disclosure of that information; the information was complex and extremely important; and DS, who had no expertise and relied on the appellant to provide that information, could not make an informed decision without that information. The Court ultimately declined to rule on the issue because neither party raised Elder Advocates at trial and doing so would require a determination of mixed fact and law on an issue not argued at trial.

(2) Yes. The Court found that the trial judge misstated the law regarding the role of causation in cases involving a breach of fiduciary duty. For compensation to be awarded for breach of fiduciary duty, the plaintiff must establish that the defendant's breach caused the plaintiff's loss. Compensation for breach of fiduciary duty is typically determined according to restitutionary principles, where the plaintiff is entitled to be put in as good a position as he or she would have been in had the breach not occurred (Hodgkinson v. Simms, [1994] 3 S.C.R. 377). The fiduciary breach must have been the cause in fact – the effective cause – of the loss in respect of which compensation is sought (Standard Trust Company v. Metropolitan Trust Company of Canada, 2007 ONCA 897). The trial judge improperly relied on McLachlin J.'s comments in Norberg v. Wynrib, [1992] 2 S.C.R. 226 in determining that the finding of a breach of fiduciary duty removes causation from the analysis on whether there will be recovery. The Court noted that McLachlin J.'s comments did not support the proposition that causation is removed from the analysis in the fiduciary context but rather, were observations she made when discussing whether there was a breach of fiduciary duty. The respondent argued that the appellant was under a reverse onus to disprove causation at trial. The Court found that the reverse onus applicable in some cases did not apply to the present case because the respondent did not first establish that the appellant's breach caused DS to undergo the angiogram which led to his death.

The trial judge erred in failing to consider and determine the issue of causation. There could be no finding of causation as a result of the breach of fiduciary duty, as that would be inconsistent with the jury's finding that there was no causation as a result of negligence. Therefore the appeal was allowed and the action against Dr. BS was dismissed.

SHORT CIVIL DECISIONS

2484234 Ontario Inc. v. Hanley Park Developments Inc., 2020 ONCA 293

[Tulloch, van Rensburg and Zarnett JJ.A.]

Counsel:

Richard P. Quance, for the appellant

Howard J. Alpert and Vivian Xu, for the respondent

Keywords: Costs Endorsement

CRIMINAL DECISIONS

R. v. H., 2020 ONCA 284

[Feldman, Tulloch and Jamal JJ.A.]

Counsel:

James Harbic and Robert Harbic, for the appellant

Sean Horgan and Craig Harper, for the respondent

Keywords: Criminal Law, First-Degree Murder, Evidence, Admissibility, Confessions, Police Trickery, Jury Instructions, Criminal Code, s. 231(2), R. v. Oickle, 2000 SCC 38, R. v. Durham Regional Crime Stoppers Inc., 2017 SCC 45, R. v. W.(D.), [1991] 1 S.C.R. 742, R. v. Robinson, 2017 ONCA 645, R. v. Jackson (2009), 190 C.R.R. (2d) 72 (ONSC)

R. v. M.R., 2020 ONCA 281 (Publication Ban)

[MacPherson, Benotto and Nordheimer JJ.A.]

Counsel:

Amy Ohler, as duty counsel

Michael Fawcett, for the respondent

Keywords: Criminal Law, Sexual Exploitation, Sentencing, Criminal Code, s. 153

R. v. M., 2020 ONCA 279

[MacPherson, Benotto and Nordheimer JJ.A.]

Counsel:

B.M., acting in person

Matthew Gourlay, appearing as duty counsel

Michael Fawcett, for the respondent

Keywords: Criminal Law, Aggravated Assault, Sentencing, COVID-19, R. v. Suter, [2018] 2 S.C.R. 496, R. v. Pham, [2013] 1 S.C.R. 739

R. v. D., 2020 ONCA 283 (Publication Ban)

[Doherty, Simmons and Pardu JJ.A.]

Counsel:

Stephen Whitzman, for the appellant

Molly Flanagan, for the respondent

Keywords: Criminal Law, Sexual Assault, Assault, Jury Instructions, Evidence, Admissibility, Credibility, Conduct During Trial, Prior Inconsistent Statements, R. v. Kiss, 2018 ONCA 184, R. v. M. (T.), 2014 ONCA 854, R. v. D.M., 2019 ONSC 4001

R. v. P., 2020 ONCA 287 (Publication Ban)

[Watt, Miller and Fairburn JJ.A.]

Counsel:

S.P., appearing via videoconference

James Lockyer and Catriona Verner, for the appellant

Craig Harper, for the respondent

Keywords: Criminal Law, Sexual Assault Causing Bodily Harm, Evidence, Fresh Evidence, Exculpatory Evidence, Witnesses, Credibility, Prior Convictions, Crown Disclosure, Criminal Code, s. 683(1), Canada Evidence Act, R.S.C., 1985, c. C-5, s. 12(1), R. v. Stinchcombe, [1991] 3 S.C.R. 326, R. v. Gubbins, 2018 SCC 44, R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, R. v. Dixon, [1998] 1 S.C.R. 244

R. v. H., 2020 ONCA 292 (Publication Ban)

[Rouleau, Zarnett and Jamal JJ.A.]

Counsel:

W.T.H., acting in person

Nader R. Hasan, appearing as duty counsel

Andrew Hotke, for the respondent

Keywords: Criminal Law, Attempted Child Abduction, Breaching Prohibition Order, Varying Orders, Terms, Sex Offender Registry, Criminal Code, s. 161(1)(d), R. v. Brar, 2016 ONCA 724

R. v. B., 2020 ONCA 295

[Rouleau, Zarnett and Jamal JJ.A.]

Counsel:

B.B., acting in person

Nader R. Hasan, appearing as duty counsel

Andrew Hotke, for the respondent

Keywords: Criminal Law, Aggravated Assault, Fresh Evidence, Self-Defence

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

Canada: Court Of Appeal Summaries (May 4 – 8, 2020) Blaney's Appeals

Table of Contents

CIVIL DECISIONS

Counsel:

facts:

issues:

holding:

reasoning:

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facts:

issues:

holding:

reasoning:

SHORT CIVIL DECISIONS

Counsel:

CRIMINAL DECISIONS

Counsel:

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Counsel:

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Canada: Court Of Appeal Summaries (May 4 – 8, 2020)
Blaney's Appeals