Good evening.  As usual, there were quite a few summary judgment cases dealt with by the Court of Appeal this week, several dealing with limitation periods, including in the areas of medical malpractice, defamation, slip and falls, and negligence.  There was also an interesting franchise law decision discussing the contract law doctrine of severance of void or unenforceable terms from the rest of the contract.  In that case, by overreaching, the franchisor lost other legitimate protections.  Additionally, a decision was released on whether a judge of the Ontario Superior Court of Justice could participate in a joint hearing with other supervisory judges either inside or outside of Ontario.

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John Polyzogopoulos
Blaney McMurtry LLP

jpolyzogopoulos@blaney.com
Tel: 416.593.2953
http://www.blaney.com/lawyers/john-polyzogopoulos

Arnone v. Best Theratronics Ltd., 2015 ONCA 153

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

Counsel: F. Cesario and S. O’Brien, for the appellant C. Rootham, for the respondent

Keywords:  Costs endorsement

Holding:  Costs were payable to the respondent in the amount of $10,000, inclusive of applicable taxes and disbursements.

Ontario (Review Board) v. Petroniuk, 2015 ONCA 156

[Sharpe, Gillese and Benotto JJ.A.]

Counsel: D. Moore, for the appellant J. Gorda and G. MacKenzie, for the respondent

Keywords: Administrative Law, Ontario Review Board, Detention Order

Facts: The appellant appeals the Ontario Review Board’s (“ORB”) decision to maintain her detention order under Part XX.1 of the Criminal Code.

Issue: Did the ORB err in upholding the appellant’s detention order?

Holding: Appeal dismissed.

Reasoning: No. The court found that the appellant lacks insight into her mental illness. The index offence involved a violent assault on the appellant’s mother, which the appellant continues to regard as an act directed by God. There is a long history of non-compliance with medication and the appellant expresses a continuous desire to stop taking it.

There was also ample evidence to support the ORB’s finding that the appellant continues to pose a significant risk, and that the detention order is the least restrictive measure to deal with that risk. Therefore, the conclusion that the appellant and the risk she poses could not be adequately managed in the community was reasonable.

Hodutu v. Bulger, 2015 ONCA 160

[Lauwers, Hourigan and Pardu JJ.A.]

Counsel: M. Djukic, for the appellant E. Nwator, for the respondent

Keywords: Civil Litigation, Medical Malpractice, Professional Negligence, Limitation Period, Limitations Act, 2002, Discoverability, Fraudulent Concealment

Facts: The respondents are dental surgeons who provided services to the appellant from 1998 to June 2006. The appellant claimed the dental implants inserted by the respondents caused pain and infections and that her pain ceased when the implants were removed in June 2006. The appellant commenced an action against the respondents on February 5, 2013, alleging professional negligence and medical malpractice. The respondents brought a motion to strike the appellant’s statement of claim asserting, among other things, that the claim was statute-barred by the Limitations Act, 2002. Mew J. granted the motion. The appellant appealed this decision submitting that the motion judge failed to properly consider the issues of discoverability and fraudulent concealment, and erred in not granting her leave to amend her claim.

Issue: Should the order striking the appellant’s statement of claim on the basis that the applicable limitation period had expired be set aside?

Holding: Appeal dismissed. Costs in the amount of $5,000 all-inclusive to be paid to the respondents.

Reasoning: No.  The Court held that the appellant’s argument that she did not discover her claim in June 2006 was contradicted by her own pleadings and there was no evidence to support the allegation of fraudulent concealment. Additionally, there was no basis to grant leave to amend the statement of claim because it was statute-barred.

Ontario (Review Board) v Merner, 2015 ONCA 157

[Sharpe, Gillese and Benotto JJ.A.]

Counsel: A. Szigeti, for the appellant B. Walker-Renshaw, for the respondent, Ontario Shores Centre for Mental Health J. Stuart, for the respondent, Her Majesty the Queen

Keywords: Ontario Review Board, Conditional Discharge

Holding:  Appeal dismissed.

Reasoning: No issue was taken with the ORB’s finding of significant risk. The Board fully discharged its obligation to ensure that the least onerous and restrictive disposition was imposed. The issue of conditional discharge was expressly considered by the treating physician and the co-author of the hospital’s report.

Ontario (Review Board) v. Caster, 2015 ONCA 155

[Sharpe, Gillese and Benotto JJ.A.]

Counsel: A. Szigeti, for the appellant B. Walker-Renshaw, for the respondent, Ontario Shores Centre for Mental Health J. Gorda, for the respondent, Her Majesty the Queen

Keywords: Appeal Book Endorsement, Ontario Review Board

Holding: The finding of not-criminally responsible was set aside on the previous appeal by the Ontario Review Board. The appeal to the Court of Appeal was dismissed for lack of jurisdiction.

Ashley v. Reinhart, 2015 ONCA 164

[Cronk, Gillese and Brown JJ.A.]

Counsel: R. Campbell, for the appellant A. Bedard, for the respondent

Keywords: Civil Procedure, Disclosure and Production Obligations, Self-represented

Facts: This was an appeal from a dismissal order resulting from the appellant’s persistent and deliberate failure to comply with court orders requiring him to fulfill his disclosure and production obligations.  The appellant was initially represented by counsel but, at the material times in the proceedings in question, he was self-represented. He was represented by counsel before the Court of Appeal.

The appellant sought reinstatement of the dismissed action.

Issue: Did the motion judge err in dismissing the action?

Holding: Appeal Dismissed

Reasoning: No. The appellant had repeatedly flouted court orders to comply with disclosure and production obligations. On August 7, 2014, the appellant was given a “last chance” order to produce his list of witnesses and a sworn affidavit of documents or else face the dismissal of his action. He was given a choice between this option and proceeding to trial, but only with those documents and witnesses that had been disclosed to the other side. The appellant chose the option that required him to comply with his disclosure and production obligations. He made no attempt to fulfill those obligations in the allotted time.

The Court rejected any suggestion that the appellant, as a self-represented litigant, was not fairly treated. The record made it clear that the orders in question were repeatedly explained to him and he was given considerable assistance by both the courts and opposing counsel. His response was to ignore the judicial advice and threaten opposing counsel with death, for which he was convicted in a criminal court.

Boiko v. Grover, 2015 ONCA 161

[Lauwers, Hourigan and Pardu JJ.A.]

Counsel: R. M. Rowe, for the appellant H. Robertson, for the respondents

Keywords:  Summary Judgment, Defamation, Public Service Staff Relations Act, Qualified Privilege

Facts:  The appellant was hired by the respondent, the National Research Council (the “NCR”) in November 2001. As an employee of the NCR, he was subject to the Public Service Staff Relations Act (“PSSRA”). The other respondents are employees of the NRC. After the appellant received unfavourable performance reviews during the probationary period, his employment with the NRC was terminated. Consistent with NRC’s standard practice, the human resources department prepared a “Release on Probation” document (the “Release”), which summarized the appellant’s performance reviews.

The appellant commenced the underlying action in March 2009, seeking $1 and a letter of apology as damages. The respondents brought a motion for summary judgment arguing that the appellant’s claim (1) was barred by the PSSRA; (2) was out of time; (3) did not correctly plead the elements of defamation; and (4) was subject to the defence of qualified privilege. The motion judge granted the motion for summary judgment on three of the four grounds submitted by the respondents.

First, the motion judge found that the claim was barred by the PSSRA. She found that in reality the claim was a dispute related to the termination of the appellant’s employment. The motion judge considered this to be the type of workplace dispute Parliament determined should be resolved by the PSSRA. The appellant had already availed himself of that system. It was noted that the Release was a summary of the reasons for terminating the appellant’s employment and such a document was routinely used by the NRC. Further, the appellant conceded that the Release was never published outside select NRC employees.

Second, the motion judge found that the appellant did not discharge his burden of demonstrating that any of the statements in the Release were defamatory. Even if the appellant was not required to pursue his complaint through the grievance system, the motion judge found that none of the elements of defamation could be established, and there was no need for a trial on this issue.

Third, the motion judge found that the respondents were protected by qualified privilege because they had prepared the Release in the course of their employment. The appellant did not provide any evidence of malice on the part of the respondents, which was the only basis for depriving them of the defence of qualified privilege.

The motions judge found that on these three separate bases, there was no genuine issue for trial.

Issue: Did the motion judge err by granting summary judgment to the respondents?

Holding:  Appeal dismissed with costs to the respondents, fixed in the amount of $3,000, all-inclusive.

Reasoning: No. The Court found no error in the motion judge’s determination that the defamation characterization did not permit the appellant to circumvent the applicable PSSRA grievance procedure, which he was still pursuing. The Court also found no error in the motion judge’s alternative conclusions, that there was no evidence to support the elements of defamation and that the respondents were protected by a qualified privilege.

Gaur v Datta, 2015 ONCA 151

[Rouleau, van Rensburg and Pardu JJ.A]

Counsel: J.D. Keith and E. Moore, for the appellants C. Olsheski, for the respondents

Keywords: Civil Litigation, Rules of Civil Procedure, Rule 21.01(1)(b), Motion to Strike, No Reasonable Cause of Action, Defamation, Intentional Interference with Economic Relations

Facts:  In 2013 the appellants commenced an action against Dipto Datta and the respondents. The appellants claimed damages for defamation and intentional interference with economic relations. The action was dismissed under rule 21.01(1)(b) of the Rules of Civil Procedure. The appellants appealed this decision, contending that the motion judge erred by dismissing the claim against the respondents after making findings of fact. They asserted that the amended statement of claim, when read with the particulars and the incorporated emails, disclosed proper claims against the respondents in defamation and intentional interference with economic relations.

Issue: Should the appellants be allowed to proceed with their action against the respondents?

Holding:  Appeal allowed. The appellants are allowed to proceed with their action, with leave to amend their pleadings. The motion judge’s order for costs is set aside and the appellants are awarded the costs of the motion in the sum of $10,000, as well as costs of the appeal in the further sum of $10,000, both amounts inclusive of disbursements and taxes.

Reasoning: Yes, the Court found that the motion judge erred in dismissing the action against the respondents. The motion judge correctly identified the legal principles applicable to a motion to strike under rule 21.01(1)(b). No evidence is admissible, and the facts pleaded are assumed to be true unless patently ridiculous or incapable of proof. In determining whether a cause of action is disclosed, particulars can be considered as part of the pleading. In assessing the substantive adequacy of the claims, the court is entitled to review the documents referred to in the pleadings.

Regarding the defamation claim, the motion judge was entitled to review the referenced emails to determine whether what was pleaded was “patently ridiculous or incapable of proof”, but instead he examined the emails as evidence, weighing the inference that could be drawn and making the conclusion that there was no allegation or fact to support the pleadings. The court held that the facts pleaded were not patently ridiculous nor incapable of proof, similarly sufficient material facts had been pleaded to support an action in defamation.

In striking the appellants’ claim for intentional interference with economic relations, the motion judge found the amended statement of claim failed to disclose material facts addressing the tort’s requisite elements and the pleading disclosed insufficient material fact to assert a claim premised on concerted action. On appeal, the court found that the allegations were neither incapable of proof nor patently ridiculous. Taking them as true and adopting a broad and generous reading of the pleadings, the particulars and emails, it was not “plain and obvious” that the pleading disclosed no reasonable cause of action for intentional interference with economic relations.

Nicoletti v Nicoletti, 2015 ONCA 163

[Lauwers, Hourigan and Pardu JJ.A.]

Counsel: No one present for the appellant T.N. Nguyen, for Giovanna Nicoletti D. Kim, for the Public Guardian and Vittoria Nicoletti

Keywords: Appeals, Adjournment

Facts: The appeal was originally scheduled for February 26, 2015. Laskin J.A. granted the appellant’s request for an adjournment – the third request – and adjourned the matter to March 5, 2015, “peremptory to the appellant,” with costs payable to the respondents. On February 27, 2015, the appellant requested another adjournment. At the president’s request, the appellant provided a dental note, but it provided no information on the appellant’s current pain levels and when she might be able to argue the appeal. The appellant also did not provide requested information on the relationship between the dentist and herself. The respondents opposed the adjournment on the basis of Laskin J.A.’s endorsement and that there was prejudice. The president denied the appellant’s request for an adjournment, but invited her to review her request before the full panel.

Holding:  The appellant did not appear for the argument of the appeal. Appeal dismissed as abandoned. Adjournment refused.

Reasoning: The record was replete with the appellant’s desire to delay the final disposition of the matter. The litigation had dragged on unnecessarily. The respondent had been obliged to absorb the costs of caring for her mother. The appeal itself was nothing more than an effort to re-litigate the issues heard by Penny J., and no error was evident from the written material filed by the appellant.

Costs fixed in the amount of $15,000 all-inclusive payable to the respondents, and $1,250 payable to the Public Guardian and Trustee.

Thompson v. Sun Life Assurance Company of Canada, 2015 ONCA 162

[Cronk, Gillese and Brown JJ.A.]

Counsel: A. R. Kerr, for the appellant

D. Kondurus, for the respondent

Keywords: Civil Procedure, Limitation Periods, Insurance Policy, Summary Judgment

Facts: Ms. Thompson was employed by Casino Rama Services Inc. (“Casino Rama”) from June, 1996 until September 19, 2008. Sun Life had issued a group policy of insurance to Casino Rama (the “Policy”) which was in force during that period of time, and Ms. Thompson was an eligible employee of Casino Rama for the purposes of long-term disability benefits under the Policy. Casino Rama terminated Ms. Thompson’s employment on September 19, 2008. Ms. Thompson commenced her action on September 17, 2010, claiming payment of long-term disability benefits from September 20, 2008, for the duration of her disability. The primary ground of appeal advanced by Ms. Thompson was that the motion judge erred in concluding that her action was barred by reason of a contractual one-year limitation provision contained in the Policy.

Issue: Did the motion judge err in dismissing Ms. Thompson’s action on the basis of the contractual limitation period?

Holding: Appeal dismissed.

Reasoning: Yes, but this did not affect the result. Section 22 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, permits the variation of the general two-year limitation period set out in s. 4 in two circumstances. First, s. 22(2) provides that a limitation period under the Act may be varied or excluded by an agreement made before January 1, 2004. Second, s. 22(5) provides that the s. 4 limitation period may be varied or excluded by a business agreement made on or after October 19, 2006. The motion judge made no finding whether the Policy was made before January 1, 2004. Nor did the motion judge make any finding as to whether the Policy was a “business agreement” within the meaning of s. 22(5) of the Act. In the absence of such findings, the conclusion by the motion judge that Ms. Thompson’s action was barred by the contractual one-year limitation provision of the Policy was not supportable.

However, the Court nevertheless found that notwithstanding that the motion judge erred in dismissing Ms. Thompson’s action on the basis of the contractual limitation period, other findings he made supported the action’s dismissal. First, the motion judge held that Ms. Thompson had not met qualifying conditions of the Policy, and second, Ms. Thompson’s action was barred by the statutory two-year limitation period in s. 4 of the Limitations Act, 2002.

Nandlal v. Toronto Transit Commission, 2015 ONCA 166

[Cronk, Gillese and Brown JJ.A.]

Counsel:

A.L. Rachlin and J.P. McCoy, for the appellants S. Sargent, for the respondent

Keywords: Civil Litigation, Endorsement, Slip and Fall, Summary Judgment, Rules of Civil Procedure, Rule 20.04, Hryniak v Mauldin

Facts: The appellants appeal from the judgment of Perell J., in which he granted the respondent’s motion for summary judgment. Specifically, he dismissed the appellants’ claims for damages arising from personal injuries sustained by Mrs. Nandlal during a slip and fall on the stairwell of the respondent’s Kennedy subway station.

Issues:

  1. Did Perell J. err in finding that there was no objective evidence of a slippery steps hazard at the location of the fall?
  2. Did Perell J. err in refusing to apply his fact-finding powers under rule 20.04 of the Rules of Civil Procedure, to draw an inference that the top of the stairwell where Mrs. Nandlal fell was in a state of non-repair?
  3. Did Perell J. err in his application of the summary judgment test or the substantive law on occupier’s liability?

Holding: The appeal was dismissed, and costs fixed at $5,000 were payable to the respondent.

Reasoning:

  1. No. Perell J. made no reversible error in his finding that there was no hazard at the location of the fall. There was undisputed affirmative evidence before him that the tiles on which Mrs. Nandlal fell were non-slip tiles and were not defective or in need of repair.
  2. No. Perell J. correctly applied the test for summary judgment set out in Hryniak v Mauldin. He primarily relied on Mrs. Nandlal’s own uncontradicted evidence and concluded that no genuine issue requiring a trial had been demonstrated. His conclusion is entitled to significant deference.
  3. No. There was uncontradicted evidence before Perell J., from a caretaker assigned to Kennedy station, who swore that he discharged his duties to keep the premises in a reasonably sage condition for passengers. This evidence was unchallenged by the appellants, and was fatal to any suggestion of a genuine issue requiring a trial in respect of the respondent’s alleged negligence.

2176693 Ontario Ltd. v. Cora Franchise Group Inc., 2015 ONCA 152

[Epstein, van Rensburg and Benotto JJ.A.]

Counsel: G. B. Shaw and D. Ronde, for the appellant D. Smith, for the respondents

Keywords:  Franchise Law, Contract Law, Unenforceable Term, Severance, Partial Enforcement

Facts: The appellant is the franchisor of Cora restaurants. The respondents are two corporate franchisees that operate Cora restaurants.

Both respondents commenced separate legal actions against the appellant, asserting a number of claims under the Arthur Wishart Act (Franchise Disclosure), 2000 (“AWA”), including breaches of the duty of fair dealing in the performance and enforcement of their franchise agreements under section 3 of the AWA, as well as common law claims of breaches of contract, negligence and misrepresentation.

In an effort to mitigate their damages, the respondents subsequently decided to sell their franchise businesses and assign their rights under the franchise agreements to third parties. Each agreement required the franchisor’s consent prior to any assignment of rights. The agreements spelled out conditions precedent to the franchisor’s consent to assignment, one of which was the requirement that the franchisee execute a release of claims against the franchisor.

The franchisees sought a declaration that the release provisions were void, unconscionable and unenforceable under section 11 of the AWA. The application judge found that the provision at issue attempted to release all claims, including those under the AWA. The application judge rejected the franchisor’s argument that its offer to the franchisee to agree to a narrower release of only the common law claims took the provision outside of section 11.

In the result, the application judge issued a declaration that the release provision was void and unenforceable.

Issue:   The main issue on this appeal was whether the impugned clause in the franchise agreements, while unenforceable with respect to AWA claims, should nonetheless be enforced in part with respect to the requirement to provide the franchisor with a release from other claims.

Holding: Appeal dismissed.

Reasoning:  The standard of appellate review here is one of palpable and overriding error due to questions of mixed fact and law. The application judge’s decision was both correct and devoid of any palpable and overriding error.  The entire obligation to provide a release in exchange for the consent to the assignment of the franchises was unenforceable.  The court could not and should not sever the requirement to provide a release of AWA claims only but to uphold the requirement to release other claims.

Section 11 is Engaged

Section 11 of the AWA is clearly engaged. The impugned clause requires the franchisee, as a condition of transfer, to provide a general release, which would include AWA claims.

The Release Provision is Unenforceable, but not Void

Section 11 of the AWA merely voids the release or waiver itself, and not the provisions of a contract requiring such a release to be provided. The release provision is not itself a release of a right under the AWA – it simply requires that such a release be provided in the event of an assignment of the franchise by the franchisee.

Section 11, therefore, does not operate so as to void the impugned clause from the outset. Rather, the clause is unenforceable vis-à-vis the requirement to release AWA claims, as it requires the performance of something that would contravene section 11 of the AWA.

Availability of Partial Enforcement and the Doctrine of Severance

The application judge did not err when she held that the clause could not be severed and enforced only to the extent it was not in conflict with s. 11 of the AWA.

Severance lies along a spectrum of remedies available when a provision of a contract is illegal, including voiding the contract in whole or in part. There are two kinds of severance:  “blue pencil” and notional.  The appropriate remedy will depend on the particular context. Courts will consider the context of the contract at issue and any relevant policy considerations when assessing whether and how to sever provisions.

Courts are generally reluctant to sever contractual provisions because severance alters the terms of the original agreement between the parties. Severance engages policy concerns to a certain degree beyond protecting the parties’ intentions, because the court is being asked to assist one party to enforce an otherwise unenforceable provision.

In this context, franchise agreements are contracts of adhesion and often give the franchisor a significant degree of control over the franchisee’s business. Courts have expressed concern over the inequality of bargaining power in the franchise context, and franchise agreements have been interpreted by our courts with this policy consideration in mind.

Applying notional severance to the provision so that it can be saved is contrary to the purpose of the AWA, which is to protect franchisees. It would give no incentive to franchisors to ensure their agreements are compliant with the AWA. It would also increase the risk that a franchisee, having signed a release of all claims, would erroneously believe it is not entitled to pursue any claims against the franchisor, including its AWA claims.

The potential for windfall to the respondents in this particular case does not outweigh the potential for abuse and subversion of the purposes of section 11 of the AWA if the remedy of severance were applied.

Kiden Used Furniture v. Pearson, 2015 ONCA 170

[Lauwers, Hourigan and Pardu JJ.A.]

Counsel: D. Bagambiire, for the appellant C. R. Dunn and J. T. MacQuarrie, for the respondent

Keywords: Summary Judgment, Negligence, Causation, Landlord & Tenant, Fire, Expert Evidence, Spoliation

Facts: The appellant tenant alleged a fire in its premises was caused by the respondent’s negligence. The respondent landlord brought a motion for summary judgment. Matheson J. dismissed the appellant’s claim on the ground that there was no evidence indicating the fire was caused by the respondent’s negligence. The appellant appealed this ruling.

The appellant, which operated a used goods store, leased the basement of a building owned by the respondent.

In February 2011, the fire department responded to a call that there was smoke coming from an electrical panel in the basement. The fire department’s report identified the cause as an overheated electrical panel. The respondent subsequently had the panel replaced.

The appellant heated the basement using a portable electric heater provided by the respondent in 2012.

On January 8, 2013, a fire occurred on the premises. The fire department’s report did not identify the cause of the fire but noted that it began in the basement. A fire investigator’s report classified the fire as accidental. It identified “electrical arcing” from the electric heater’s damaged power cord as the most likely cause of the fire. The report noted that the cord was located in a high-traffic area of the basement and would have been subject to wear and tear through foot traffic and having items placed on top of it. Because the investigator incorrectly believed the heater belonged to the appellant, he did not remove or preserve it after his inspection. It was eventually removed in the landlord’s clean-up process and was likely destroyed. The fire investigator ruled out the possibility that the fire had been caused by the building’s electrical infrastructure.

The appellant claimed the fire could not have been caused by the electric heater because it did not use this device. It also disputed the findings in the fire investigator’s report that the heater was located in a high-traffic area. The appellant’s theory was that a history of a previous problem with the electrical panel, which had been repaired, and the fact that fuses blew when circuits were overloaded was sufficient evidence of negligence.

The motion judge rejected the appellant’s argument that it did not need to provide expert evidence regarding the cause of the fire. She noted that even after accepting “a series of assumptions that are favourable” to the appellant and overlooking “problems” in the appellant’s materials, an expert report on causation remained necessary in order for its negligence claim to have any potential for success.

Issues:

  1. Did the motion judge err in concluding that expert evidence was necessary for the appellant to prove that the respondent was negligent?
  2. Did the motion judge err by failing to appreciate that the appellant could not provide expert evidence as to the cause of the fire because the respondent destroyed the physical evidence that would have identified the cause?

Holding: Appeal Dismissed.

Reasoning:

  1. No. The Court found that issues here — the cause of the fire and whether the respondent was negligent — were not appropriately the subject of common sense inferences and that expert evidence was required for the appellant to prove that the respondent was negligent and caused the fire.
  2. No. The motion judge proceeded on assumptions favourable to the appellant, that the heater did not cause the fire and that the respondent intentionally destroyed it. The usual remedy for spoliation is a presumption that the destroyed evidence would have been unfavourable to the party who destroyed it. But this adverse inference was not capable of being positive proof of the landlord’s negligence. The appellant had the obligation of establishing that negligence and causation could be proven at trial and failed to do so on the motion.

Blake v. Dominion of Canada General Insurance Company, 2015 ONCA 165

[Weiler, Epstein and Brown JJ.A.]

Counsel: R. Zigler, for the appellant L. C. Pool, for the respondent

Keywords:   Civil Litigation, Motor Vehicle Litigation, Accident Benefits, Limitation Period

Facts: Following a motor vehicle accident, the appellant received caregiver benefits from the respondent accident benefits provider. The respondent advised her on January 16, 2005 that, based on independent medical evaluations, it determined her eligibility to receive caregiver benefits ceased on January 31, 2004.

The parties proceeded to mediation in March 10, 2005, when the respondent agreed to honour the reasonable caregiving expenses she incurred from November 18, 2002, and January 31 2004. The respondent also agreed to pay an amount for caregiving expenses incurred between November 12, 2004 and January 11, 2015. On March 12, 2005, the respondent advised the appellant that they had approved the post-January 31, 2004 expenses in error.

On August 10, 2006, the respondent received 19 separate applications, dated August 1, 2006, for caregiving expenses incurred from January 2005 to July 2006.

The appellant’s Statement of Claim against the respondent, seeking to recover the denied caregiver benefits, was issued on May 30, 2007. The appellant also claimed damages for breach of the contractual duty of good faith, aggravated damages and mental distress.

The trial judge dismissed the appellant’s claim as being statute-barred, and went on to conclude that she had not established entitlement to caregiver benefits beyond the initial 104-week eligibility period.

Issues:   Did the trial judge err in:

  1. finding that the appellant’s claim was statute-barred?
  2. refusing to read all the evidence the appellant proffered at trial?
  3. holding that the appellant failed to meet her evidentiary burden in relation to    entitlement to the caregiver benefit and by applying the wrong causation test?
  4. dismissing her claim for extra-contractual damages?

Holding: Appeal dismissed.

Reasoning:

  1. No. The court saw no error in the trial judge’s conclusion that Ms. Blake’s action was statute-barred. For the purposes of calculating the limitation period, the clock begins to run when the insurer refuses to pay the benefits at issue. The trial judge found that the respondent’s January 16, 2005 refusal governed.

The appellant argued that the respondent did not make a clear and unequivocal refusal to pay caregiver benefits until August 2006, with the result that she had commenced this action within the two year limitation period. The court did not accept this argument for two reasons:

Firstly, the submission of new applications for benefits by the claimant following a clear refusal by the insurer to pay benefits does not re-start the limitation clock.

Secondly, even if the respondent’s mistaken agreement at the March 10, 2005 mediation re-set the limitation clock, that agreement was followed immediately by a clear and equivocal repetition by the respondent on March 12, 2005 that caregiver benefits had ended on January 31, 2004.  The appellant issued her statement of claim more than two years after the respondent’s March 12, 2005 communication of its refusal to pay benefits.  As a result, her action would remain statute-barred.

  1. No. The trial judge clearly indicated at the commencement of the trial that that he would not treat a document contained in the document brief as admitted evidence for his consideration unless a witness had referred to it or the document was admitted on consent. In our view, that was adequate notice to counsel that absent an agreement about a document, it would have to be proved in the ordinary course through a witness. Further, the trial judge gave counsel fair notice that if they intended to rely on the opinions expressed by any medical practitioner, they would have to meet the ordinary rules governing the admission of such expert reports.
  2. No. The appellant did not point to any evidence the trial judge may have misapprehended, nor did she identify any palpable or overriding errors of fact made by him. A request to re-weigh the evidence is not an appropriate basis for appellate intervention.

Further, the appellant did not ask the trial judge to depart from the general “but-for” test, and raised that issue for the first time on the appeal.

The court also observed that, when read as a whole, the trial judge’s reasons disclose he was not satisfied the appellant had established she was suffering from the degree of injury needed to qualify for caregiver benefits after 104 weeks – i.e. that she was suffering from a complete inability to carry on a normal life.

  1. No. With regards to the bad faith claim, the court saw no error in the trial judge’s application of the Whiten principles to the evidence which would justify appellate intervention. Further, the appellant did not provide sufficient particulars to support the assertion that the trial judge unduly interfered with the cross-examinations when attempting to establish the bad faith claim. An appellant cannot reasonably expect that an allegation of misconduct by the trial judge, unsupported by any particulars, will carry any weight on an appeal.

Turning finally to the appellant’s claim for aggravated damages, the court accepted the appellant’s submission that the trial judge erred in treating her claim for aggravated damages as synonymous with her claim for mental distress damages for breach of contract. However, given the court’s conclusion that the trial judge did not err in dismissing the appellant’s claim for damages for breach of the duty of good faith, it follows that he did not err in dismissing her related claim for aggravated damages, which required a finding of breach of that duty.

Parsons v. Ontario, 2015 ONCA 158

[Juriansz, LaForme and Lauwers JJ.A.]

Counsel: M. Wilson, M. Smith and J. Hunter, for the appellant, Attorney General of Ontario P. Vickery and M. Sullivan, for the respondent, Attorney General of Canada J. E. Callaghan and A. Zavaglia, for the respondent, Fund Counsel for Ontario P. J. Pape and S. Chaudhury, for the respondent, David Tull C. Zayid and H. M. Rosenberg, for the Interveners

Keywords: Class Action, Jurisdiction, Joint Hearing, Open Court Principle, Rule 14.05(3)(d) of the Rules of Civil Procedure, Hendrickson v. Kallio, Section 135 of the Courts of Justice Act, Discretionary Authority

Facts:  The class actions brought against the Canadian Red Cross Society and the federal, provincial and territorial governments arose out of the tragedy caused by the distribution of tainted blood. The motion judge concluded that Ontario’s supervisory judge had the discretionary authority to conduct a hearing under the pan-Canadian settlement with the plaintiffs (the “Settlement Agreement”) outside the boundaries of Ontario.  He also concluded it was appropriate to exercise that discretionary authority in the circumstances of the case before him.

On the jurisdictional issue, the motion judge concluded that Ontario’s supervisory judge could sit outside Ontario with his supervisory colleagues to hear an issue issue stemming from previous motions filed by class counsel in Ontario, British Columbia and Québec to permit the late filing of claims to the settlement fund (the “claims extension motions”). The motion judge held that where the Superior Court of Justice had subject matter and personal jurisdiction over a proceeding, the court could conduct a hearing outside the province as a function of its inherent jurisdiction to fully control its own process.

The motion judge found that common law authority supported a conclusion that provincial superior courts had discretion to sit outside their home province as a function of their inherent jurisdiction to control their own process. In the circumstances of this case – involving a national class action that would greatly benefit from inter-provincial judicial cooperation – the motion judge held it was in the interests of justice for the supervisory judges to sit together to hear the claims extension motions inside or outside of Ontario. The alternative of each supervisory judge sitting in his home province linked to the others by video, would, in his view, be disruptive and inadequate.

The Attorney General of Ontario (“AG Ontario”) appealed the decision. On appeal, it also raised a new objection, arguing that the other two supervisory judges from British Columbia and Québec could not sit in Ontario. It did not dispute that the supervisory judges had personal jurisdiction over the parties to the Settlement Agreement and subject matter jurisdiction over matters arising under the Settlement Agreement. AG Ontario only objected to the physical location of the hearing.

AG Ontario’s principal submission was that the motion judge erred in holding that the superior court’s inherent jurisdiction to control its own process enabled him, as Ontario’s supervisory judge, to participate in concurrent hearings with the other supervisory judges inside or outside Ontario to resolve issues under the Settlement Agreement. AG Ontario contended that the Constitution, the common law and legislation prevented the exercise of inherent jurisdiction to conduct a hearing outside the judge’s home province.

Issues:

Were there any constitutional, common law or statutory barriers to employing the inherent powers of the court to conduct an out-of-province hearing? Does the open court principle prevent an Ontario judge from conducting a hearing outside Ontario? Did the motion judge properly exercise his discretionary authority?

Holding:  Appeal dismissed.

Reasoning:  As a preliminary issue, the Court dealt with whether it had jurisdiction to hear the appeal. If the motion judge’s order was final, then there was a right of appeal to this court, but if his order was interlocutory, then the appeal would be directed to the Divisional Court with leave, pursuant to s. 19(1)(b) of the Courts of Justice Act. The Court provided that the underlying class actions had been resolved by the Settlement Agreement. No claims or defences remained to be tried. The Court took a modified approach to the classic Hendrickson v. Kallio test for distinguishing between a final or interlocutory order.

The Court found that the motion judge’s task on the motion for directions fell within the r. 14.05(3)(d) of the Rules of Civil Procedure mould and this motion  required a determination as to whether the supervisory judges could sit together to hear concurrent motions arising under the Settlement Agreement. The Court held that the order was final for the same reason that an order resolving a Rule 14 application was final even though another, quite possibly larger, issue between the parties remained to be determined.

Jurisdictional Issue 1.  No. There are no constitutional, common law or statutory barriers to employing the inherent powers of the court to conduct an out-of-province hearing.

Did the Motion Judge Have the Discretionary Authority to Order an Out-of-Province Hearing? (a) Doctrine of Inherent Jurisdiction

Inherent jurisdiction provides the superior court with a “reserve or fund of powers, a residual source of powers” that may be used to serve four functions: (i) to ensure convenience and fairness in legal proceedings; (ii) to thwart actions that would render judicial proceedings ineffective; (iii) to prevent abuse of process; and (iv) to act in aid of superior courts and in aid or control of inferior courts and tribunals.

It should be noted that a superior court’s inherent powers may be limited by statute and the institutional roles and capacities that emerge out of our constitutional framework and values. Thus, a superior court may exercise its inherent jurisdiction on matters regulated by statute but may not contravene any statutory provision. A court’s exercise of inherent jurisdiction must also respect Canada’s constitutional framework.

Constitutional Limitations AG Ontario argued that the motion judge’s order was constitutionally problematic. Section 92(14) provides the provinces exclusive jurisdiction over “the administration of justice in the province”, including the constituting, maintenance, and organization of provincial courts in each province. The motion judge’s order contemplated that the three supervisory judges act in parallel and cooperatively to decide the three claims extension motions. Each supervisory judge would conduct a separate hearing to decide the claims extension motion brought in the judge’s home jurisdiction. However, the parallel motions would be conducted in a single location to enhance cooperation between the three judges and thus facilitate implementation and enforcement of the Settlement Agreement under which the supervisory judges would have personal and subject matter jurisdiction – an agreement to which the federal and all provincial and territorial governments in Canada are party. The Court found that this process respected the distinct nature of the courts of each province while stimulating the cooperation required to effectively administer the Settlement Agreement.

The Respective Roles of the Legislatures and Courts AG Ontario argued that the motion judge’s decision did not respect the institutional roles of the legislature and the courts. The Court referred to Western Canadian Shopping Centres v. Dutton, 2001 SCC 46 and provided that “[a]bsent comprehensive legislation, the courts must fill the void under their inherent power to settle the rules of practice and procedure as to disputes brought before them”.

Sovereignty and Coercive Powers AG Ontario argued that holding a hearing is a fundamental exercise of a province’s sovereignty, and so an Ontario superior court hearing a matter in another province infringed that other province’s sovereignty. The motion that was to have been heard in Alberta would not have infringed Alberta’s sovereignty. It is common ground that the supervisory judges had personal and subject matter jurisdiction in this case. The parallel motions were paper motions; no witnesses were to be called. The exercise of coercive powers was not contemplated. It should be noted that the motions were to be heard in the context of a pan-Canadian Settlement Agreement approved by each and every jurisdiction in Canada, including Alberta. In these circumstances, the Court found no infringement of Alberta’s sovereignty.

Common Law Limits Ontario argued that the common law prohibits a superior court judge from sitting outside the physical boundaries of the judge’s province of appointment. The Court adopted the motion judge’s reasoning and provided that there is a need to shape common law rules in a way that accommodate modern commercial and societal realities.

Statutory Limits AG Ontario further argued that the history of Ontario’s court legislation made it clear that Ontario’s Superior Court of Justice could not hold a hearing outside of Ontario. The Court found that although inherent jurisdiction may be limited by statutory enactment, the limits must be explicit. The reasoning in Glover v. Minister of National Revenue was referred to where it was provided that “the court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of court, so long as it can do so without contravening any statutory provision”.

Open Court Principle 2.  No. As per Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, open courts allow Canadians to observe “that justice is administered in a non-arbitrary manner, according to the rule of law”. But the principle of open courts is not absolute. The principle does not guarantee a right to be physically present in the courtroom.

Out-of-province hearings would presumably take place in a courtroom open to the public, thereby preserving the cleansing effect public scrutiny has on the legitimacy of legal proceedings. A core tenet of the open court principle would remain unaffected. Also, the media would still be free to report on what occurred at the hearing. The proliferation of online news media has helped Canadians stay informed about matters taking place across the nation. The Court held that the open court principle, properly understood, does not preclude an Ontario judge from conducting a hearing outside Ontario.

Motion Judge’s Discretionary Authority 3.  Yes. A discretionary decision of a motion judge in a class proceeding is entitled to significant deference from this court. As per 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2013 ONCA 279, 115 O.R. (3d) 653, a discretionary decision in a class proceeding may only be set aside if it is based on an error of law, a palpable and overriding error of fact, the consideration of irrelevant factors or the omission of factors that ought to have been considered, or if the decision was unreasonable.

The Court did not second guess the finding made by the motion judge as his decision was based upon the record before him and no one pointed any palpable and overriding error of fact made by him. Nor did anyone satisfy the Court that the motion judge’s decision, in all the circumstances, was unreasonable. However, it was noted that the motion judge focused exclusively on the interests of the class members. He should have considered the statutory right of the public (all Ontarians, not just those of a limited subset) to attend the hearing of the claims extension motion. The Court still found no reason to interfere with his decision.

Juriansz J.A. (dissenting in part) Juriansz J.A. found that the order under appeal was an interlocutory order and therefore, the Court lacked jurisdiction to hear the appeal. He further opined that when considering the motion for directions, it was not akin to a freestanding application. Rather, it was an interlocutory motion and the claims extension motion was the underlying proceeding. The “real matter in dispute between the parties” under the Hendrickson v. Kallio test was whether the court should extend the deadline for filing first claims. The decision on the motion for directions left the merits of that matter to be determined. The decision simply determined the issue of where the court could sit to hear the real matter in dispute.

Lauwers J.A. Lauwers J.A. discussed the open court principle and referred to s. 135 of the Courts of Justice Act where he provided it requires a “video pipe” between the room or rooms outside Ontario in which the hearing is held and a reasonably accessible Ontario courtroom. Only then can the hearing be said to be open to members of the Ontario public who wish to attend. Therefore, in my view, s. 135 is an express statutory limitation on the court’s inherent jurisdiction to hold a hearing outside Ontario.