Hello everyone,

The Ontario Court of Appeal released  a number of civil law decisions this week. Topics covered include two lawyers’ professional negligence decisions in which the lawyers were successful both times; a priority dispute between creditors making constructive trust claims and seeking a tracing remedy; the striking of what was found to be a frivolous defamation and related claims brought by a doctor against former patients who had sued her for malpractice and complained about her to her professional college; a dispute about the internal governance of a private golf course; and a Crown wardship decision under the Child and Family Services Act.

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Enjoy your weekend.

John Polyzogopoulos

Blaney McMurtry LLP

JPolyzogopoulos@blaney.com

Tel: 416.593.2953

http://www.blaney.com/lawyers/john-polyzogopoulos

Tables of Contents

Civil Cases

C.M. v Children’s Aid Society of the Regional Municipality of Waterloo, 2015 ONCA 612 (click on the case name to read the summary)

Keywords: Family Law, Child Custody, Wardship, Child and Family Services Act, ss. 3, ss. 47(2)(c), ss. 59(2.1), ss. 70,  Access, Definition of “Indian” or Native Person, Best Interests of the Child

Pruner v Ottawa Hunt and Golf Club Limited, 2015 ONCA 609 (click on the case name to read the summary)

Keywords: Corporate Law, Corporations Act, 1990, ss. 34(4), 329 and 332, Share Capital Social Clubs, Governance, Board of Directors, Duty to Act in Best Interests of the Corporation, Policy Requiring Cancellation of Shares, Whether Ultra Vires, Appeal Routes, Appeal Lying to Divisional Court, Courts of Justice Act R.S.O. 1990, ss. 18(2), Reconstitution of Court of Appeal as Divisional Court in Order to Determine Appeal

Mitchinson v. Baker, 2015 ONCA 623 (click on the case name to read the summary)

Keywords: Torts, Professional Negligence, Rules of Civil Procedure, Rule 21.01(3)(d), Rule 25.11, Motion to Strike, No Reasonable Cause of Action, Abuse of Process

DBDC Spadina Ltd v. Walton, 2015 ONCA 628; 2015 ONCA 625; 2015 ONCA 624 (click on the case name to read the summary)

Keywords: Bankruptcy and Insolvency, Misappropriation, Constructive Trust, Tracing, Comingling, Inspector, Claims Process, Settlement, Assignments and Preferences Act

Mirkais Investments Inc. v. Klotz, 2015 ONCA 632 (click on the case name to read the summary)

Keywords:  Contracts, Torts, Professional Negligence, Lawyers, Lost Chance, Summary Judgment, Bankruptcy and Insolvency, Security Interests, General Security Agreement, Attachment, Personal Property Security Act

Frank v. Legate, 2015 ONCA 631 (click on the case name to read the summary)

For a list of Short Endorsementsclick here

For a list of Criminal Law decisions, click here

Civil Decisions

C.M. v Children’s Aid Society of the Regional Municipality of Waterloo, 2015 ONCA 612

[Feldman, Simmons and Miller JJ.A.]

Counsel:

E. Ichim, for the appellant

W. Boich, for the respondent

Keywords: Family Law, Child Custody, Wardship, Child and Family Services Act, ss. 3, ss. 47(2)(c), ss. 59(2.1), ss. 70,  Access, Definition of “Indian” or Native Person, Best Interests of the Child

Facts: The appellants have two children that have been in care with their current foster parents since September 2010 when a protection application was filed. When they went into care, one child was less than two years old and the other child was less than four years old.  In November 2013, following a trial that began in August 2012, the appellants’ two children were found in need of protection. The trial judge ordered that the children be designated Crown wards without access. In March 2015, a Superior Court appeal judge dismissed the appellants’ appeal from that order. On appeal to the Court of Appeal, the appellants ask that the Crown wardship order be varied to provide them with access to their children.

Issues:

  1. Did the trial judge err in determining the Indian or native status of the children? In the alternative, did the trial judge err by failing to apply the principles from R v Gladue?
  2. Did the trial judge err by drawing negative inferences based on the appellant mother’s “flat affect”?
  3. Did the trial judge err in failing to consider the best interests of the children in relation to access?

Holding: The Appeal is dismissed with no order as to costs.

Reasoning:

  1. No, neither the mother nor the children fall within the definition of “Indian” or native person under the Child and Family Services Act (CFSA). The Court noted that the relevant inquiry under the CFSA is the children’s status, not the mother’s status. The fact that the mother may self-identify as native does not determine her children’s status. For the Court to make an access order under the CFSA, the court must be satisfied that: (a) the relationship between the person and the child is beneficial and meaningful to the child; and (b) the ordered access will not impair the child’s future opportunities for adoption. The trial judge declined to make an order for access for two reasons. First, she was not satisfied that a relationship existed between the appellants and their children that was beneficial or meaningful to the children. Second, because no adoption plan had by then been put forward, she was unable to determine whether access would impair the children’s future opportunities for adoption. Under these circumstances, an access order was not available under the CFSA. Furthermore, the Court was not persuaded that the Gladue principles affected the determination of whether an access order would be appropriate in this case. Gladue was decided under the Criminal Code and does not alter the statutory definitions set out in the CFSA.N
  2. No, this issue was fully canvassed before the Superior Court appeal judge so there is no basis to interfere with the Superior Court appeal judge’s conclusions. The Superior Court appeal judge placed little weight on fresh evidence the appellants sought to introduce on appeal from “a self-described expert” because no effort had been made to adduce such evidence at trial, or to demonstrate on appeal the witness’ credentials. The issue of the mother’s “flat affect” and her ability to connect with her children had been raised in a Parental Capacity Assessment prior to trial. The only evidence the appellants led at trial in response was a brief statement by the mother that she is part native and that natives tend to speak in a monotone voice. As noted by the Superior Court appeal judge, this evidence was insufficient to allay the trial judge’s concerns arising from the assessor’s evidence that the mother was unable to connect emotionally with her children and gain their attention.
  3. No, the trial judge was aware of the children’s cultural heritage, which she noted in her reasons. The trial judge concluded that, considering all the circumstances of the case, an order for Crown wardship was necessary and in the best interests of the children, which was supported by the evidence.

Pruner v Ottawa Hunt and Golf Club Limited, 2015 ONCA 609

[Simmons, Epstein, and Pardu JJ.A.]

Counsel:

Craig M. Bater, for the appellant

R. Aaron Rubinoff and Emily S.S. Rahn, for the respondent

Keywords: Corporate Law, Corporations Act, 1990, ss. 34(4), 329 and 332, Share Capital Social Clubs, Governance, Board of Directors, Duty to Act in Best Interests of the Corporation, Policy Requiring Cancellation of Shares, Whether Ultra Vires, Appeal Routes, Appeal Lying to Divisional Court, Courts of Justice Act R.S.O. 1990, ss. 18(2), Reconstitution of Court of Appeal as Divisional Court in Order to Determine Appeal

Facts:

Joseph Pruner is a member at the Ottawa Hunt and Golf club.  He wanted to transfer from a “Fully Privileged Golfing” member to “Senior Social” member.  He also requested to keep the Class B voting share the Club allocated to him when he became a Fully Privileged Golfing member 31 years ago.

The Board of directors refused his request, and adopted a policy requiring members who wanted to switch memberships to resign, thereby cancelling their Class B voting share- and re apply for membership in the new category.

Mr. Pruner brought an application in the Superior Court seeking an order requiring the Board to accept his transfer application.  He argued that the new policy amounts to a variation or restriction of the rights attached to his Class B share, and as such the Board cannot impose such a change unilaterally.  The application judge did not accept this argument, and found that the policy was in the Board’s jurisdiction.  The application judge decided that the club’s Board is entitled to make policies respecting the management of the Club so long as these policies are in the best interests of the corporation.  Mr. Pruner renews his position on Appeal.  His argument is that the policy is ultra vires the Board because it amounts to a variation of the rights attaching to his Class B share, thus triggering ss.34 (4) of the Corporations Act.

Issues:

  1. Does the policy change made by the golf club affect Class B rights?
  2. Was the appeal properly before the Court of Appeal?

Holding:

Appeal Dismissed.

Reasoning:

The Court held that, the Board’s policy cannot fairly be described as imposing a variation, condition or restriction on Class B Shares.  The Court concluded that the Board’s policy does not affect Mr. Pruner’s rights as a shareholder, therefore it follows that the policy was indisputably a valid exercise of the Board’s power based on the Corporation’s by-laws.

The Court also held that the application judge’s order dismissing Mr. Pruner’s application was an order made under the Corporations Act, and that the appeal should have been brought to the Divisional Court pursuant to section 329 of the Corporations Act. The Court also pointed out that although the parties did not advert to it, s. 332 of the Act provides a remedy for an aggrieved shareholder such as Mr. Pruner.

Mitchinson v. Baker, 2015 ONCA 623

[Gillese, Pepall and Benotto JJ.A.]

Counsel:

Elisabeth Mitchinson and Timothy Mitchinson, acting in person

Adam J. Huff, for the respondent Lawyers’ Professional Indemnity Company

Louis C. Sokolov and Krishana Persaud, for the respondent David Baker

Keywords: Torts, Professional Negligence, Rules of Civil Procedure, Rule 21.01(3)(d), Rule 25.11, Motion to Strike, No Reasonable Cause of Action, Abuse of Process

Facts:

David Baker (the “Respondent”) represented Elisabeth Mitchinson in a human rights complaint related to the termination of her employment. He settled the complaint with terms favourable to Ms. Mitchinson, however, she was unhappy with the Respondent’s fee. She fired the Respondent before the settlement was finalized and proceeded to have his account assessed. In the following two years, Ms. Mitchinson and her husband (the “Appellants”) commenced a number of actions relating to the Respondent’s account.

The basis for the action giving rise to this appeal is the Appellants’ allegation that the Respondent agreed to cap his fee at $30,000 but subsequently charged Ms. Mitchinson more than that amount. The Respondent and the Lawyers’ Professional Indemnity Company (“LPIC”) are defendants in this proceeding.

LPIC brought a motion to strike the statement of claim against it on the basis that it disclosed no reasonable cause of action. The Respondent moved to have the action dismissed as against him on the basis that it was frivolous, vexatious and an abuse of process of the court. The motions judge granted both motions and the Appellants appealed.

Issues:

  1. Did the motions judge err in granting LPIC’s motion to strike the statement of claim against it on the basis that it disclosed no reasonable cause of action?
  2. Did the motions judge err in granting the Respondent’s motion to have the action dismissed as against him on the basis that it was frivolous, vexatious and an abuse of process of the court?

Holding:

Appeal dismissed. The motions judge correctly decided the two motions in the lower court.

Reasoning:

(1) No. The motions judge correctly found that no duty of care exists between an insurer and a party adverse in interest to its insured. The Appellants claimed that the Respondent had committed “fraudulent misrepresentation” by incorrectly estimating his fees and in representing the Respondent, LPIC was an “accessory after the fact” to the alleged fraudulent misrepresentation. The court found that no action lies against the lawyers acting for one’s adversary in litigation.

In addition, the motions judge did not err in his reasons explaining why the allegations in the appellants’ statement of claim did not disclose a reasonable cause of action in respect of conspiracy, intentional infliction of mental distress, abuse of process, or accessory after the fact. The motions judge also correctly noted that conspiracy requires an intention to cause harm to a person and that no such intention was pleaded or could be inferred from the acts pleaded.

(2) No. The Appellants partially base their claim on the fact that the motions judge erred in considering evidence. However, the motions judge was correct to consider evidence when he decided the Respondent’s motion because his determination that the allegation of fraudulent misrepresentation could not succeed was made as part of the Respondent’s abuse of process motion. The motions judge was therefore entitled to consider evidence in making that determination, because the Respondent’s motion was brought under rules 21.01(3)(d) and 25.11 of the Rules of Civil Procedure.

The Appellants also assert that the motions judge used the wrong test in deciding whether their action was an abuse of process, relying on Metrick v Deeb, 2003 CanLII 804 (ONCA). However, the legal test in Metrick is for the tort of abuse of process, whereas the Respondent’s motion is based on the doctrine of abuse of process, which has different legal requirements.

Per the Supreme Court of Canada in Toronto (City) v CUPE, Local 79, 2003 SCC 63, the general purpose of the doctrine is to bar proceedings that are inconsistent with public policy considerations such as finality, judicial economy, consistency of results, and the integrity of the justice system. The motions judge correctly applied these principles when he found that the action as against the Respondent was an abuse of process.

Further, the motions judge was also correct in his finding that the allegation of fraudulent misrepresentation could not succeed because an estimate of fees does not amount to a representation of fact or a promise and no reasonable person could find that the Respondent intended to mislead when he gave an estimate of his fees.

Finally, the court did not accept the Appellants’ claim that the motions judge was biased, nor did the record reflect any basis for a reasonable apprehension of bias. The motions judge’s interventions were aimed at controlling the court process and helping the parties focus on relevant matters to the motion.

DBDC Spadina Ltd v. Walton, 2015 ONCA 628; 2015 ONCA 625; 2015 ONCA 624

[Gillese, Lauwers and Benotto JJ.A.]

Counsel:

Rosemary A. Fisher, for the appellants Christine DeJong, Michael DeJong, Christine DeJong Medical Professional Corporation, C2M2S Holding Corp. and DeJong Homes Inc.

Peter H. Griffin and Danielle Glatt, for the respondents DBDC Spadina Ltd. and those corporations listed on Schedule A hereto

Keywords: Bankruptcy and Insolvency, Misappropriation, Constructive Trust, Tracing, Comingling, Inspector, Claims Process, Settlement, Assignments and Preferences Act

Facts:

This appeal is part of a complex, multi-party insolvency proceeding. DBDC Spadina Ltd. and the Bernstein applicants are in ongoing litigation in which the Waltons are the respondents. Within this litigation, the Bernstein applicants brought a motion seeking an order for a constructive trust over certain properties and the cancellation of the Waltons’ shares in certain corporations. The DeJong appellants brought a cross-motion and alleged that they were similarly situated to the Bernstein applicants – they, too, had invested funds with the Waltons which the Waltons had wrongfully diverted. The DeJong appellants contended that some of their monies had been diverted into properties over which the Bernstein applicants sought constructive trusts. The DeJong appellants sought an order cancelling the Waltons’ shares in United Empire Lands Ltd. (“UEL”). In the alternative, the DeJong appellants sought an order approving a proposed settlement agreement between them and the Waltons, in which the Waltons agreed to transfer a property (“3270 American Drive”) to them. Based on tracing principles, the motions judge ordered constructive trusts over certain properties, including 3270 American Drive, in favour of the Bernstein applicants. The motions judge dismissed the DeJong appellants’ cross-motion. The DeJong appellants appeal.

Issues:

  1. Did the motions judge err by failing to adjudicate on the DeJong appellants’ requested relief that the Waltons’ shares in UEL be cancelled and on their request for directions on their tracing rights?
  2. Did the motions judge err by failing to correctly apply the test for a constructive trust and in finding that the Bernstein applicants were entitled to constructive trusts over certain properties?
  3. Did the motions judge err by failing to apply the correct legal test when finding that the settlement agreement constituted a preference under the Assignments and Preferences Act?

Holding:

Appeal dismissed.

Reasoning:

  1. No. The motions judge dealt with the DeJong appellants’ request that the Waltons’ shares in UEL be cancelled. He was not prepared to grant relief because the proposed settlement would prefer the DeJong appellants’ interests as creditors of the Waltons over other creditors. Instead, the legal entitlement, if any, of the DeJong appellants, as preferred shareholders, to the proceeds from the sale of 3270 American Drive should be dealt with in the claims process for that property. The DeJong appellants’ complaint about the motions judge’s failure to give directions on their tracing rights is related to the work of the Inspector. They contend that the Inspector was obliged to conduct a full tracing of all monies, as opposed to focusing on tracing the Bernstein applicants’ funds. However, the Bernstein applicants are paying for the Inspector and he is tracing their funds. The Inspector’s obligations do not require him to trace the monies of all parties into and out of the various companies and properties. As the motions judge indicated, the DeJong appellants can assert their rights in the claims process.
  2. No. The motions judge applied the correct test and found that the Bernstein applicants and the Waltons agreed that the funds invested by the Bernstein applicants in a given property would be used only for the development of that property. He found that, contrary to their contractual obligations, the Waltons took the Bernstein applicants’ funds and used them in an unauthorized fashion which benefitted the Waltons. Furthermore, the motions judge did not err in his tracing analysis. He was entitled to accept the Inspector’s analysis and prefer it over that of Mr. Froese, the Waltons’ expert.  Moreover, the motions judge made no error in terms of commingling. The motions judge imposed constructive trusts on only those properties in which commingling was not an issue.
  3. No. Although the motions judge did not explicitly refer to the Assignments and Preferences Act, that omission could have had no appreciable influence on the result. The motions judge’s reasons are sufficient to permit the parties to know why he found that the proposed settlement agreement would constitute a preference within the meaning of that Act. It appears incontrovertible that the intent and effect of the proposed settlement agreement was to prefer the interests of the DeJong appellants over other creditors.  When the proposed settlement agreement was reached, the DeJong appellants had notice that the Bernstein applicants were seeking a certificate of pending litigation and a blanket charge over 3270 American Drive; the Bernstein applicants were unquestionably creditors of the Waltons; and, the DeJong appellants knew, or ought to have known, that the Waltons were insolvent or on the eve of insolvency.

Mirkais Investments Inc. v. Klotz, 2015 ONCA 632

[Cronk, Lauwers and van Rensburg JJ.A.]

Counsel:

Solomon and J. Radnoff, for the appellant

R. Kestenberg, for the respondent

Keywords:  Contracts, Torts, Professional Negligence, Lawyers, Lost Chance, Summary Judgment, Bankruptcy and Insolvency, Security Interests, General Security Agreement, Attachment, Personal Property Security Act

Facts:

The trustee in bankruptcy of the bankrupt, Morris Kaiser (“Kaiser”), obtained access to certain funds totalling almost $1 million.

The appellant, Mirkais Investments Inc., is owned by Kaiser’s spouse, Miriam. Mirkais is the assignee of a 1992 General Security Agreement (the “GSA”) signed by Kaiser in favour of Standard Chartered Bank covering his assets. Mirkais claimed to be a secured creditor in Kaiser’s bankruptcy and sought to recover the entire amount of the funds. It instructed the respondent lawyer, Klotz, to file a notice of claim with the trustee in bankruptcy, which was disallowed. The respondent was instructed to appeal the trustee’s disallowance, but did not. Mirkais sued the respondent for professional negligence.

The trustee received the money in three tranches: (1) from a settlement of litigation started by the trustee; (2) $100,000 paid to the trustee as consideration for the trustee’s agreement to not intervene in unidentified litigation; and (3) $50,00 paid to the trustee to facilitate the discharge of the bankrupt. The appellant seeks the first and second payments and abandons any claim for relief for the third payment.

The respondent brought a motion for summary judgment to dismiss the professional negligence action against him. The motion judge granted summary judgment and dismissed the action because there was no genuine issue for trial. The appellant could not prove it was a secured creditor and that it had suffered damages as a result of the respondent’s negligence. The appellant appeals and seeks leave to appeal the costs award made against it by the motion judge.

Issues:

  1. Did the motion judge err in granting summary judgment?
  2. Is the collateral covered by the GSA?
  3. Was the appellant’s security interest perfected as required under the PPSA?
  4. Can the appellant’s claim be saved by a “Lost Chance” submission?

Holding:

The appeal is dismissed, with costs payable to the respondent in the all-inclusive amount of $15,000.

Reasoning:

  1. No. The appellant did not demonstrate that the motion judge made a legal error in his reasoning, nor a palpable and overriding error of fact. There is no fresh evidence to indicate that Kaiser had any interest in any of the funds at issue or any viable claim to any right to those funds.
  2. No. The motion judge found that the appellant’s security interest did not attach as a matter of law because the appellant had not established that Kaiser had any interest in or right to the collateral.  No evidence was advanced to contradict Kaiser’s evidence to raise a triable issue whether Kaiser had any rights in or over the three tranches of funds. Kaiser had no conceivable interest in the money to which the GSA would apply, and did not assert an interest in the bankruptcy. He denied having any assets.
  3. No. The appellant did not have a prior perfected security interest in the funds. The appellant’s security interest did not attach as a matter of law because the appellant had not established that Kaiser had any interest in or right to the collateral. Without the enforceable security interest, the appellant was unable to prove damages, which is required to successfully claim for professional negligence.
  4. No. There is no genuine issue requiring a trial regarding the appellant’s lost chance claim. The appellant did not invoke the last chance principle in its statement of claim, nor did it plead material facts sufficient to make this claim. This appellant seeks on appeal to reposition its case to ground the relief sought on this new basis. It would be fundamentally unfair to permit the appellant to advance this argument now.

There is no evidence before the Court that the appellant lost the chance of an advantage of some real and substantial monetary value. It was maintained throughout that Kaiser had no assets of any kind. The appellant failed to establish the requisite causation requirement for negligence.

Frank v. Legate, 2015 ONCA 631

[MacFarland, Rouleau and Lauwers JJ.A.]

Counsel:

Nathaniel Erskine-Smith, for the appellant

Paul Michell, for the respondents

Keywords: Intentional Torts, Defamation, Intentional Interference with Economic Relations, Intentional Infliction of Mental Distress, Malicious Prosecution, Champerty and Maintenance, Civil Procedure, Rules of Civil Procedure, Rules 21.01(1)(b), 21.01(3)(d) and 25.11, Motion to Strike, No Reasonable Cause of Action, Scandalous, Frivolous, Vexatious, Abuse of Process, Regulated Health Professions Act, Punitive Damages,  Whiten v. Pilot Insurance Co.

Facts:

This appeal arises out of a motion judge’s decision to strike the claim of the appellant (“Frank”) under Rule 21 of the Rules of Civil Procedure on the ground that it did not disclose a reasonable cause of action.

Frank was an obstetrician and gynecologist and the respondents are lawyers that represent Frank’s former patients in professional competence complaints to the College of Physicians and Surgeons of Ontario (the “College”) and medical malpractice actions in court.

Frank sued her former patients for defamation and other claims on the basis of certain statements made by their lawyers on their websites.  In her statement of claim, Frank alleged that statements made by the respondents were defamatory.  Six of these statements were published on the respondents’ law firm’s website and one of these was published in the media. Frank also alleged claims for malicious prosecution, champerty and maintenance, intentional interference with economic relations and intentional infliction of mental distress.

In response, the respondents brought a motion to strike under Rule 21 on the basis the claim failed to disclose a reasonable cause of action and sought to strike the claim under rule 25.11 on the ground it was scandalous, frivolous, vexatious and an abuse of process. The motion judge struck the claim in its entirety.

Issues:

  1. Did the motion judge err in striking the appellant’s claim for defamation?
  2. Did the motion judge err by striking the appellant’s claim for malicious prosecution?
  3. Did the motion judge err by striking the appellant’s claim for champerty and maintenance?
  4. Did the motion judge err by striking the appellant’s claim for intentional interference with economic relations?
  5. Did the motion judge err by striking the appellant’s claim for intentional infliction of mental distress?
  6. Did the motion judge err by striking the appellant’s claim for punitive damages?
  7. Should the claim be dismissed as an abuse of process?

Holding:

Appeal dismissed with costs to the respondent.

Reasoning:

  1. No. Relying on the Court of Appeal’s recent decision in Guergis v. Novak, a court should only grant a motion to strike a pleading in the clearest of cases on the basis that the statement at issue is incapable of a defamatory meaning. If this standard is not met, the determination will be left to the trier of fact.

The court held that the motion judge was correct in finding that the seven statements at issue were clearly incapable of defamatory meaning when read in context. The court stated that Frank was essentially attempting to prohibit law firms from describing allegations that form the basis of potential or ongoing actions and that it would restrict lawyers from providing information to people to assist them in deciding if they should consult a lawyer.

  1. No. The Supreme Court set out the test for the tort of malicious prosecution in Miazga v. Kvello Estate as follows: 1) a proceeding initiated by the defendant; 2) a proceeding terminated in favour of the plaintiff; 3) the defendant had no reasonable and probable cause to initiate the proceeding; and 4) the defendant acted with malice.

On the second element, the court agreed with the trial judge’s that Frank did not properly plead that all or any of the proceedings she is involved in had been terminated in her favour. Also, the fourth element of malice was not properly pleaded and finally, a provision from the Regulated Health Professions Act effectively bars actions for malicious prosecution against the College.

  1. No. The torts of champerty and maintenance continue to be actionable upon proof of special damage. The court disagreed with the motion judge that the pleading was not specific enough because it does not explicitly allege that the respondents “stirred up litigation that would not otherwise have been pursued”. Such precision is not required. However, the court still found that the motion judge did not err for the following reasons.

Champerty requires the maintainer to share profits of the litigation. This is not possible because damages cannot be awarded in the proceedings involving the College. The appellant presented no case law where a maintenance claim has been made regarding complaints to a regulatory body.

The claim was premature because none of the underlying actions or complaints were concluded at the time the claim was issued. Actual loss is required and it will not have occurred if the maintainer was successful. Public policy for the law of champerty and maintenance is the protection of the administration of justice from abuse. The premature use of this tort is abusive to the administration of justice because it attempts to block legitimate claims and defeat the assertion of valid defences.

  1. No. The claim was correctly struck under Rule 25.11. Frank alleges that the respondents intentionally interfered with her practice so that she could not work as a physician. She also pleaded that through various methods, the respondents solicited third parties to launch unmeritorious complaints and civil actions. Frank argues that the actions by the respondents inflicted economic loss. The court agreed with the motion judge that the claim of intentional interference with economic relations was not pleaded properly.

This tort can only occur where the defendant commits an unlawful act against a third party and intentionally causes economic harm through that act. The court found that Frank’s plea was equivocal because it states the respondents’ intention was to injure or the actions of the respondents were directed at Frank. The respondents were required to have intended to injure her. As well, the unlawful means were not made clear in the pleadings. Finally, Frank would have to lead evidence of privileged communications between the respondents and their clients to better understand if the respondents’ clients actually relied on the alleged misrepresentations allegedly forming part of the intentional interference with economic relations.

  1. No. The allegations of intentional infliction of mental distress were so vague that a defendant would not understand what was being alleged of them.
  2. No. The Supreme Court in Whitten v. Pilot Insurance Co. found that claims for punitive damages must not use conclusory boilerplate language and must be pleaded with sufficient particularity which Frank failed to do in her pleadings.
  3. No. The court held that regardless of whether the statement of claim had pleaded tenable causes of action; it still should be struck down because it was an abuse of process. The statement of claim was a collateral attack on the College complaints and civil lawsuits in an attempt to disrupt those processes. A number of the causes of action were premature. The malicious prosecution claim against the College was clearly barred by legislation. The intentional interference with economic interference required disclosure of privileged communications to substantiate. The court concluded that the poor pleading of numerous causes of action was an obvious attempt to cover-up a libel claim that was unlikely to succeed.

Short Endorsements

SCP Métrasse c. Tran, 2015 ONCA 614 (click on the case to read the summary)

[Weiler, van Rensburg, Roberts JJ.A.]

Counsel:

Bui Dui Thinh, en personne

Chad A. Yehia, avocat pour les l’intimés

Keywords: Refusal to Pay, Appeal Rejected

Sandu v. Fairmont Hotels Inc, 2015 ONCA 611 (click on the case to read the summary)

[Weiler, van Rensburg and Roberts JJ.A.]

Counsel:

David Elmaleh, for the moving parties

Andrew J. MacDonald, for the responding party

Keywords: Motion to Quash, Jurisdictional Grounds, ss. 19(1.2)(d) Courts of Justice Act, Assessment of Damages

Vermette v. Nassr, 2015 ONCA 610 (click on the case to read the summary)

[Weiler, van Rensburg and Roberts JJ.A.]

Counsel:

Jason Donald Nassr, acting in person

Allan Dare Pearce, for the respondent

Keywords: Motion to Set Aside Order, Payment for Transcripts, Stay of Child Support

Banque de Commerce et de Placements, S.A. v. Bissma Pacific Inc, 2015 ONCA 618 (click on the case to read the summary)

[Weiler, van Rensburg and Roberts JJ.A.]

Counsel:

Kevin McElcheran, for the applicant Grant Thornton Limited, receiver of the Bissma Pacific Inc.

John Nicholl and Katarina Germani, for the respondent Export Development Canada

Keywords: Refusal to pay Invoices, Insurance Policy, Contra Proferentem, 2964-32377 Québec Inc. v. EDC-Export Development Canada

Taragar Holdings Limited v. Zaidman, 2015 ONCA 630 (click on the case to read the summary)

[Laskin, MacPherson and MacFarland JJ.A.]

Counsel:

Jeruham Zaidman, acting in person

John S. Contini, for the respondent

Keywords: Tenant Lease, Failure to Pay Rent

Lochner v. Toronto (Police Services), 2015 ONCA 626 (click on the case to read the summary)

[Gillese, Pepall and Lauwers JJ.A]

Counsel:

Silvano Lochner, acting in person

Robert L. Love and Damian Hornich, for the respondents

Keywords: Disclosure of Criminal Record, Termination of Employment, ss. 5(1)(a) Limitations Act, 2002

Graham v. Ontario, 2015 ONCA 627 (click on the case to read the summary)

[Laskin, MacPherson and MacFarland JJ.A.]

Counsel:

David Kirwin and Kenneth Peacocke, for the appellants

Lise Favreau and Judith Parker, for the respondent

Keywords: Taxation Policy Change, ss.4(2)-(3) Municipal Tax Assistance Act

Free v. Magnetawan (Municipality), 2015 ONCA 629 (click on the case to read the summary)

[Laskin, MacPherson and MacFarland JJ.A.]

Counsel:

Marc A. Munro, for the appellant

Ian St. John and Jeffrey Rochwerg, for the respondent

Keywords: Municipal Employment, Recruitment Process, Fixed-Term Contract

Gidzinski v. Lake Simcoe Aeropark Inc., 2015 ONCA 633 (click on the case to read the summary)

Counsel:

Stan Gidzinski, acting in person

Peter I. Waltmann, for the respondents

Keywords: Business Law, Land Development, Hold Back Funds

Criminal Law Decisions

R v. Mok, 2015 ONCA 608 (click on the case to read the summary)

[Feldman, MacPherson and Miller JJ.A.]

Counsel:

Lori Anne Thomas, for the appellant

Frank Au, for the respondent

Keywords: Charter s.8 Breach, Appropriate Remedy, Stay of Proceedings, R. v. Babos

R v. Zettler, 2015 ONCA 613 (click on the case to read the summary)

[Feldman, MacPherson and Miller JJ.A.]

Counsel:

James H. Silver, for the appellant

Jeanette Gevikoglu, for the respondent

Keywords: ss. 5(2) Controlled Drugs and Substances Act, Search Incident to Arrest, Exclusion of Evidence, Charter s. 8 Application, R. v. Whyte, R. v. Debot

R v. Hill, 2015 ONCA 616 (click on the case to read the summary)

[Doherty, Gillese and Brown JJ.A.]

Counsel:

Timothy E. Breen, for the appellant

Tracy Kozlowski, for the respondent

Keywords:  Murder, s. 229(a) Criminal Code, Manslaughter, Provocation Defence, s. 232(1) Criminal Code, Provocation Instruction Errors

R v. J.W.H., 2015 ONCA 617 (click on the case to read the summary)

[Feldman, MacPherson and Miller JJ.A.]

Counsel:

David E. Harris, for the appellant

Tracy Kozlowski, for the respondent

Keywords: Dangerous Offender Designation, Indeterminate Sentence, Gladue Report, Gladue and Ipeelee Principles

R v. Baks, 2015 ONCA 615 (click on the case to read the summary)

[Doherty, Gillese and Brown JJ.A.]

Counsel:

Candice Suter, for the appellant

Faiyaz Amir Alibhai, for the respondent

Keywords: Sentencing, Trafficking

R v. Crevier, 2015 ONCA 619 (click on the case to read the summary)

[Hoy A.C.J.O., Feldman and Rouleau JJ.A.]

Counsel:

Nathan Gorham and Breana Vandebeek, for the appellant

Susan Magotiaux, for the respondent

Keywords: Search Warrant, Confidential Informer, R. v. Garofoli, Charter s.8, Corbett Application, R. v. Kienapple

R v. Kirpichova, 2015 ONCA 621 (click on the case to read the summary)

[Doherty, Tulloch and Huscroft JJ.A.]

Counsel:

Marta Kirpichova, appearing in person

Tracy Kozlowski, for the respondent

Keywords: Fraud, Forgery, Plea Inquiry

Luangchaleun (Re), 2015 ONCA 622 (click on the case to read the summary)

[Laskin, Gillese and van Rensburg JJ.A.]

Counsel:

Anita Szigeti, for the appellant

Kevin Rawluk, for the respondent, Attorney General for Ontario

Ewa Krajewska, for the respondent, Person in Charge of Ontario Shores Centre for Mental Health Sciences

Keywords: Assault with a Weapon, Criminal Harassment, NCRMD, Significant Threat to Public Safety

R v. Didone, 2015 ONCA 636 (click on the case to read the summary)

Counsel:

Lawrence Greenspon, for the appellant

Brock Jones, for the respondent

Keywords: Impaired Driving, Breath Sample, R. v. W.(D.), R. v. Weare