Hello everyone,

Below are the summaries of this week’s civil decisions released by the Court of Appeal for Ontario. Topics covered include summary judgment in the context of medmal, fraud and debtor-creditor claims, the ability (or lack thereof) to appeal from arbitral decisions on issues of jurisdiction, and a family law decision involving a claim to unequal division of family property. As always, we welcome your comments and feedback.

Have a great weekend.

Civil Decisions

Van Halteren v. Deboer Tool Inc., 2016 ONCA 559

[MacPherson, Cronk and Benotto JJ.A.]

Counsel:

John W. Findlay, for the appellant

Tyler H. McLean, for the respondent

Keywords: Contracts, Limitation Periods, Forgery, Summary Judgment

Facts:

In late 2002, the appellant, Van Halteren, loaned $500,000 to the respondent, Deboer Tool. The loan was secured by a promissory note dated November 20, 2003 that the parties “re-signed”, on the same terms, on November 21, 2005 (the “2003/2005 Notes”). These are the “Original Promissory Note” and “Loan” referred to in the motion judge’s order.

The appellant maintained that the respondent signed a new, replacement promissory note, for the same loan, on November 21, 2008 (the “2008 Note”).

The respondent denied signing the 2008 Note and led expert handwriting evidence on the summary judgment motion that the 2008 Note contained a “simulation” or forged version of his signature.

The motion judge held that any claim based on the 2003/2005 Notes was statute-barred by the expiry of the applicable two-year limitation period because demand was made under the 2003/2005 Notes, at the latest, by February 20, 2006. Accordingly, the applicable limitation period expired on February 21, 2008. However, the appellant did not commence his action until October 2012, well after the expiry of the limitation period.

The motion judge, relying on the expert evidence proffered by the respondent, also held that the 2008 Note was a forgery. Consequently, no sustainable claim against the respondent could be advanced on the 2008 Note, in equity or in contract. The motion judge therefore dismissed the appellant’s action. He now appeals to this court.

Issues:
1) Did the motion judge err in law by finding that the 2008 Note was a forgery?

2) Did the motion judge err in determining the availability of equitable relief (was it an issue requiring a trial)?

Holding: Appeal dismissed.

Reasoning:

1) The respondent put the validity of the 2008 Note squarely in issue on the summary judgment motion, both in its counsel’s argument on the motion and by reason of the expert opinion evidence tendered by it concerning the authenticity of the 2008 Note. Further, the appellant also gave evidence on cross-examination regarding the 2008 Note. The appellant was obliged to put all relevant evidence upon which he would rely at trial before the motion judge in support of his claim, including in response to the respondent’s challenge to the validity of the 2008 Note. In turn, it was incumbent on the motion judge to determine whether summary judgment should be granted based on the whole of the record before him. He concluded, as he was entitled to do on the evidence on the motion, that the 2008 Note was a forgery. This finding was firmly rooted in the uncontradicted expert evidence before the motion judge. These findings, collectively, were dispositive of the appellant’s contract-based claim.

2) Firstly, the appellant’s pleading does not advance any claim in equity. Nor did the appellant’s notice of motion on the summary judgment motion. Second, no sustainable claim could be grounded on the 2003/2005 Notes – in contract or in equity – due to the expiry of the applicable limitation period.

6443923 Canada Inc. (Zesty Market) v. Khodabandeh, 2016 ONCA 561

[MacPherson, Cronk and Benotto JJ.A.]

Counsel:

Eric Lay, for the appellant

Ian B. McBride, for the respondent

Keywords: Endorsement, Summary Judgment

Facts:

The action arose from the respondent’s employment relationship with the appellant, which operates convenience stores in the Ottawa area. The appellant contends that the respondent took advantage of his status as a trusted employee and stole money from one of the stores. The respondent successfully moved for summary judgment dismissing the claim against him. The appellant store appealed.

Issues:

(1) Did the motion judge err in his treatment of the inferences that could be drawn to establish the possibility of theft from the appellant’s stores?

(2) Did the motions judge err by finding that the jury rejected the allegation of theft against the respondent in the trial of Ali Karimi, the appellant’s owner, on criminal charges, including a conviction for attempted extortion of the respondent?

Holding: Appeal Dismissed.

Reasoning:

(1) No. The motion judge carefully reviewed the evidence and was entitled to conclude that it did not rise to the level warranting a civil trial anchored in a theft allegation against the respondent.

(2) No. The motion judge’s comment was based on the sentencing reasons of Rathushy J. with respect to Karimi. The motion judge said these reasons were “not binding”. He was entitled, however, to rely on them in forming his own judgment about the evidence before him on the summary judgment motion.

Covanta Durham York Renewable Energy Limited Partnership v. Barton-Malow Canada, 2016 ONCA 558

[Strathy C.J.O., Brown and Huscroft JJ.A]

Counsel:
J. K. Parla and A. Kalamut, for the moving party
M. Tamblyn, for the responding party
E. Lynde, for W.S. Nicholls Construction Inc.
D. Block, for Lexsan Electrical Inc.

Keywords: Endorsement, Arbitrations, Arbitration Act, 1991, ss. 17(8), 17(9), UNCITRAL Model Law on International Commercial Arbitration, Article 16(3), Jurisdiction

Facts:

Covanta and CPP had a subcontract which included an arbitration clause. CPP had subcontracts with two other companies. Each of those contracts also had an arbitration clause. CPP commenced arbitration against Covanta and successfully brought a motion to add the other two companies as parties. Covanta brought an application to a judge to review the arbitrator’s ruling to join the two other companies to the arbitration claiming that the two other parties were not parties to the arbitration agreement between Covanta and CPP. The application judge made an order setting aside the arbitrator’s ruling to add the two companies.

CPP appealed the application judge’s order, arguing that the application judge did not have jurisdiction to review Covanta’s application to set aside the arbitrator’s ruling because the arbitrator’s decision was not jurisdictional in nature.

Issues:

(1) Is the question of whether a person is a party to an arbitration agreement a question of jurisdiction and therefore not reviewable by the court?

Holding:

Appeal dismissed.

Reasoning:

(1) Yes. Article 16(3) of the UNCITRAL Model Law on International Commercial Arbitration provides that there shall be no appeal from the decision of a court on a question of an arbitrator’s jurisdiction. The same prohibition is set out in s. 17(9) of the Arbitration Act, 1991. The decision of Ontario Medical Association v. Willis Canada Inc., 2013 ONCA 745, makes it clear that whether a person is a party to an arbitration agreement is a question of jurisdiction. The jurisdiction of an arbitrator flows from the authority granted by the parties to the agreement. Whether a person is a party to an arbitration agreement does not cease to be a jurisdictional question simply because it is addressed by the arbitrator as a preliminary matter. There can therefore be no appeal from the application judge’s order.

Sanzone v. Schechter, 2016 ONCA 566

[Strathy C.J.O., Brown and Huscroft J.J.A.]

Counsel:

Jamie Spotswood, for the appellant

Maria Delgado, for the respondents

Keywords: Civil Procedure, Summary Judgment, Genuine Issue Requiring Trial, Evidentiary Burden, Expert Reports, Rules of Civil Procedure, Rules 20, 53.03, Self-Represented Litigants, Medical Malpractice

Facts: The appellant commenced a malpractice action in 2011 seeking damages against the respondent dentists for dental surgery performed in 2009. The respondents successfully moved for summary judgment dismissing the appellant’s action. The motion judge granted summary judgment on the basis that the appellant had failed to file an expert report to support her allegation that the respondent dental surgeons had not met the standard of care when performing surgery on her. He held that the doctor’s letter produced by the appellant was inadmissible as an expert report because it was not an affidavit upon which the doctor could be cross-examined and did not comply with rule 53.03 governing expert reports.

Issues:

1) Whether the motion judge erred in finding that the doctor’s letter provided by the appellant was not admissible as an expert report on a summary judgment motion.

2) Whether the motion judge failed to accord the appellant, a self-represented litigant, an appropriate amount of leeway on procedural matters, with the result that the dismissal of her action was not a fair and just result.

Holding: Appeal allowed.

Reasoning:

1) No. The principles governing the admissibility of evidence on a summary judgment motion are the same as those that apply at trial. The evidence of the expert must comply with rule 53.03, unless the opinion evidence is based on the witness’ observations during their participation in the events in issue. In this case, the doctor was not a participant expert and his letter did not meet the requirements of rule 53.03. The appellant further did not purport to tender the letter as expert evidence.

2) Yes. Fairness requires a judge to accommodate a self-represented party’s lack of familiarity with the litigation process to enable her to present her case to the best of her ability. Any accommodation made by a judge to a self-represented party must respect the rights of the other party. However, when a represented party invokes the mechanisms available under the Rules of Civil Procedure to seek relief against a self-represented party, the represented party must ensure to comply fully with its own obligations under the rules and not use the rules to take unfair advantage of the self-represented litigant.

The respondent dentists bore the burden of persuading the court through evidence that no genuine issue requiring a trial existed. They were required to put their best evidentiary foot forward and failed to do so. Instead, they submitted to the motion judge that the decision of Kurdina v. Dief (“Kurdina”) required the dismissal of the appellant’s action because the absence of any expert evidence in support of her claim demonstrated that no genuine issue requiring trial existed. The motion judge erred in accepting this argument. Unlike the evidence on the merits put forward by the moving party psychiatrists in the Kurdina case, the respondent dentists did not file any evidence going to the merits of their defence. Rather they filed affidavits from two associates of the law firm representing the dentists recounting the procedural history of the action and providing information about the qualifications of the doctor in question.

The evidentiary burden on a moving party defendant on a motion for summary judgment is set out in Rule 20.01(3): “a defendant may . . . move with supporting affidavit material or other evidence.” Only after the moving party defendant has discharged its evidentiary burden of proving there is no genuine issue requiring a trial does the burden shift to the responding party to prove that its claim has a real chance of success. An overwhelming amount of case law establishes that when medical practitioners move for summary judgment to dismiss a malpractice action, they file evidence on the merits of their defence, including expert reports. Given the absence of evidence from the moving party dentists in support of their defence, the motion judge should have addressed the threshold question of whether the respondents had discharged their evidentiary obligation as moving parties under rule 20 to put their best foot forward by adducing evidence on the merits.

The respondent dentists attempted to use rule 20 as a means to unfairly accelerate the delivery of an expert’s report by the appellant. Rule 53.03(1) requires a party who intends to call an expert witness at trial to serve a report “not less than 90 days before the pre-trial conference.” No pre-trial conference date had been set; therefore, it is open to a party to accelerate the exchange of expert reports by requesting under rule 50.13(1) a case conference which can be scheduled “at any time”. Although the parties had attended two case conferences prior to the respondents launching their summary judgment motion, no timetable had been set for the exchange of expert reports. Accordingly, the appellant was not in default of her obligations under the rules regarding the delivery of an expert’s report. By resorting to rule 20 to compel the self-represented appellant to deliver an expert report, without meeting their own evidentiary obligations as moving parties under the rule, the defendants used the rules in a procedurally inappropriate manner.

Rosenberg v. Gold, 2016 ONCA 565

[Cronk, Blair and MacFarland JJ.A.]

Counsel:

Smith, for the appellant

S. Joseph and K. A. Maurina, for the respondent

Keywords: Family Law, Family Property, Unequal Division, Post-Separation Expenses, Family Law Act, s. 5(6), Constructive Trust, Retroactive Spousal Support, Retroactive Child Support

Facts:

The appellant, Lorna Gold, and the respondent, David Rosenberg, separated in January 2010 after an approximate 15-year marriage. They have three children: S., who was 15 at the time of trial, and M. and B., who are twins aged 13 at the time of trial. At the time of separation, the family lived in a matrimonial home that had been purchased with funds provided jointly by the appellant and the respondent and maintained primarily through the respondent’s income as a lawyer. The home was registered in the name of the appellant, however. After an eight-day trial, Moore J. granted the respondent’s claim for a 50% beneficial interest in the matrimonial home, on the basis of a resulting trust. He dismissed the appellant’s claim for an unequal division of net family property pursuant to s. 5(6) of the Family Law Act R.S.O. 1990, c. F.3 (“FLA”), and her claims for retroactive child and spousal support. He granted child and spousal support on a going-forward basis.

Issues:

(1) Is the appellant entitled – despite the dismissal of her claim for an unequal division of net family property – to an order:

(a) granting her a 50% interest in the post-separation increase in value of the respondent’s RRSP; and/or

(b) reimbursing her for various post-separation payments she says were made by her on account of:

(i) carrying costs of the matrimonial home, and interest payments on the respondent’s debts and the parties’ joint debts; and

(ii) payment of life insurance premiums on the respondent’s life insurance?

(2) Is the appellant entitled to receive retroactive spousal and/or retroactive child support?

Holding: Appeal Dismissed.

Reasoning:

(1)(a) No. Firstly, the appellant did not plead or claim at trial that she was entitled to any interest in the respondent’s RRSP, either on trust grounds or any other basis. Nor did she make a claim for post-separation adjustments to compensate her for payments made for the respondent’s benefit (with the exception of her claim to be reimbursed for payment of life insurance premiums). At trial, she failed in her s. 5(6) claim, and it would be unfair to permit her to seek essentially the same relief dressed up as a different claim on appeal. Secondly, the additional difficulty with the appellant’s contention is that it constitutes an impermissible attempt to recast her unsuccessful claim for an unequal division of net family property – ostensibly in part to balance out the trial judge’s finding that the respondent is entitled to a 50% beneficial interest in the matrimonial home, based on their joint contributions – in the guise of a different claim for a post-separation proprietary remedy and adjustments for the same kind of contributions and payments that would justify a s. 5(6) order. The claim is impermissible because it is wrong in principle – given the overall scheme for the division of proprietary interests under the Act – to permit the appellant to accomplish indirectly what she failed to accomplish directly under the Act. The FLA contains its own scheme for the division of family property. Having failed under s. 5(6), it is not open to the appellant to attempt to obtain the same kind of benefits and adjustments in the way she now seeks to do.

(1)(b)(i) No. In these circumstances, there were no grounds for awarding an unequal division of net family property based on considerations relating to the payments made by the appellant for carrying costs of the matrimonial home or – to the extent any such payments were– for interest payments made on the various outstanding indebtedness. The same procedural and substantive concerns about maintaining the integrity of the Family Law Act mechanism for the division of family property, that are outlined above with respect to the RRSP claim, apply to these claims for post-separation reimbursement. The claims are defeated for those reasons as well.

(1)(b)(ii) No. The trial judge did not err in his treatment of life insurance coverage and the prior payment of premiums.

(2) No. Although the appellant views the case from the perspective of her own testimony and what she sees as the respondent’s blameworthy conduct, the trial judge did not accept much of her testimony or that the respondent’s conduct was blameworthy. His findings were all open to him on the record. They applied equally to his assessment of both retroactive child support and retroactive spousal support. The trial judge dealt with each claim for retroactive support separately. His reasons demonstrate that he considered and applied the relevant law and factors as set out in Kerr and D.B.S. He had all the information and applied the proper legal principles. There is no basis for interfering with the trial judge’s determination that the appellant was not entitled to receive either retroactive spousal support or retroactive child support.

Short Civil Endorsements

Goldbrite Trading Co. Ltd. v. Goeyecare Inc., 2016 ONCA 563

[Sharpe, Juriansz and Roberts JJ.A.]

Counsel:

Marvin J. Huberman, for the appellant

Roger A. Gosbee, for the respondent

Keywords: Endorsement, Small Claims Court Jurisdiction, Abuse of Process

Consent and Capacity Board/Ontario Review Board Decisions

Ferencz v. Vissers, 2016 ONCA 552

[Rouleau, Hourigan and Pardu JJ.A.]

Counsel:

Janice Blackburn, for the appellant

Russell W. Browne for the respondent

Keywords: Consent and Capacity Board, Health Care Consent Act, Mental Health Act

Shahinjou (Re)

[Rouleau, Hourigan and Pardu JJ.A.]

Counsel:

Erin Dann, for the appellant

Luke Schwalm, for the Attorney General of Ontario

Janice E. Blackburn, for the Waypoint Centre for Mental Health Care

Keywords: Endorsement, Ontario Review Board, Public Threat, Psychological Treatment, Appeal Dismissed

Criminal Law Decisions

R. v. Thornton, 2016 ONCA 562

[Rouleau, Hourigan and Pardu JJ.A.]

Counsel:

Paul Vincent Thornton, acting in person

Louis P. Strezos and Peter Hamm, amicus curaie

Eric Siebenmorgen, for the respondent

Keywords: Endorsement, Criminal Law, Fraud

R. v. Daley, 2016 ONCA 564

[Rouleau, Hourigan and Pardu JJ.A.]

Counsel:

Erin Dann, for the appellant

Jeanette Gevikoglu, for the respondent

Keywords: Endorsement, Criminal Law, Trafficking

R. v. Funes, 2016 ONCA 567

[MacFarland, van Rensburg and Huscroft JJ.A.]

Counsel:

Joseph Di Luca and Dan Stein, for the appellant

Davin Michael Garg, for the respondent

Keywords: Endorsement, Criminal Law, Possession of a Firearm, Mistrial

R. v. D.H., 2016 ONCA 569

[Feldman, Cronk and Roberts JJ.A.]

Counsel:

Jason Rabinovitch, for the appellant

Jessica Joy Smith, for the respondent

Keywords: Criminal Law, Sexual Assault, Youth Criminal Justice Act

R. v. Ward, 2016 ONCA 568

[Rouleau, Hourigan and Pardu JJ.A.]

Counsel:

Brian Gover and Pam Hrick, for the moving party, Donald H. Crawford, Q.C.

Timothy Breen, for the appellant/responding party, Ronald Ward

Howard Leibovich, for the respondent, Her Majesty the Queen

Keywords: Criminal Law, Solicitor-Client Privilege