Hello everyone. Thank you for your continuing support of this blog and for your feedback. Based on your suggestions, we have decided to make some improvements to our blog. Firstly, we will no longer be summarizing simple appeal book endorsements less than two pages in length. Instead, we will be listing them with keywords near the end of our posts, with links to the decisions themselves. Secondly, you will have noticed that many of the matters dealt with by the Court of Appeal relate to appeals from Ontario Review Board decisions in the context of detention orders made in the criminal law/mental health law context. As these cases are largely fact-driven, we will no longer be summarizing them unless they deal with new or interesting points of administrative law of broader application. Instead, we will treat these decisions like short endorsements, listing the case names with keywords and links to the cases near the end of our weekly blog. Thirdly, we now intend to summarize any criminal law decisions that deal with legal issues that have application to other areas of law. For example, if a decision covers new or important points of evidence that would apply to civil litigators, we will endeavour to summarize it. Finally, for the benefit of our criminal law colleagues, the rest of the criminal law decisions will be listed near the end of our blog postings with keywords and links to the decisions.

We plan to make further improvements to our blog and weekly emails in the coming weeks, so please stay tuned. As always, we welcome your feedback. If you find this blog useful, please feel free to share it with colleagues.

Enjoy your long weekend,

John Polyzogopoulos
Blaney McMurtry LLP
jpolyzogopoulos@blaney.com
Tel: 416.593.2953
http://www.blaney.com/lawyers/john-polyzogopoulos

P.A.R.C.E.L. Inc. v Acquaviva, 2015 ONCA 331

[Cronk, Gillese and Rouleau JJ.A]

Counsel:

H. Crosner, for the appellant

D. Saverino, for the respondents

Keywords: Mortgages, Interest Act, s. 8, Mortgages Act, s. 17, Promissory Notes, Substantial Indemnity Costs

Facts: On June 6, 2011, the appellants executed a promissory note (the “Note”) and a mortgage (the “Mortgage”) in favour of the respondents, both in the principal amount of $458,488.07. The documents were executed in relation to a single loan, the consideration for the loan being the discharge by the respondents of a mortgage on an unspecified property. Both the Note and Mortgage stipulate the same repayment terms when there is no default. However Clause 2 of the Note provides for the escalation of the applicable interest rate from 0.75% to 10% per annum, “after demand, default, and pre and post judgement” (the “Interest Escalation Provision”). The Mortgage contains no Interest Escalation Provision. Between January 15, 2011 and December 15, 2011, the appellants made payments to the respondents that were credited in full against the Note and the Mortgage. In January 2012, before the maturity date of either instrument, the appellants ceased all payments under the Note and Mortgage.

On March 21, 2012, the respondents sued under the Mortgage and the appellants defended the action. The respondents made no claim under the Note in their original pleadings. The respondents obtained a default judgment in July 2012 which was set aside in December 2012. In January 2013 the respondents amended their pleading to include a claim against the appellants for payment of $469,360.47 under the Note as well as the Mortgage. The respondents also claimed interest at the rate of 10% per annum on the amount owing, in accordance with the Interest Escalation Provision. The respondents brought a motion for summary judgment against the appellants in January 2014. The motion judge concluded the appellants were indebted to the respondents under the Note and Mortgage and accepted the respondents’ calculation of amounts due, and granted summary judgment. He ordered payment plus “additional sums accruing thereunder to the date of this judgement”.

The appellants raise four grounds of appeal. They argue the motion judge erred by awarding interest under the Note, Mortgage, Mortgages Act Interest and post judgment interest at the rate of 10%. The appellants submit the Interest Escalation Provision offends s.8 of the Interest Act and the appropriate rate is 0.75% per annum. Second, they challenge entitlement to the late payment charges and default fees and submit they violate s.8 of the Interest Act. Third they maintain the judgment is inconsistent with the default judgment granted in July 2012 and finally they contend the motion judge erred by awarding the respondents costs on a substantial, rather than a partial indemnity scale.

Issues:

  1. Do specific amounts included in the judgement violate s.8 of the Interest Act?
  2. Is the judgment under appeal inconsistent with the prior default judgment?
  3. Did the motion judge err in awarding the respondents their costs on a substantial, rather than a partial, indemnity scale?

Holding: Appeal allowed, in part, by setting aside i) the awards of interest under the Note and the Mortgage, the Mortgages Act Interest and post judgment interest at the rate of 10% per annum, substituting a rate of 0.75% per annum instead; and ii) the awards of late payment charges and default fees. In all other respects, the appeal is dismissed.

Reasoning:

  1. Yes. The court held the Interest Escalation Provision violated s.8 of the Interest Act and was therefore ineffective. The court found that s.8 applied to both debt instruments, the Mortgage and Note, as the arrears of principal and interest in question were “secured by [a] mortgage on real property”.  It followed that, because the Interest Escalation Provision applied to arrears that were secured by a mortgage within the meaning of s.8, and had the effect of increasing the rate of interest charged on the arrears beyond the pre-default interest rate payable on the principle amount of the Note, it violated s.8.

The calculation of the Mortgages Act Interest (three months’ interest payable under section 17 of the Mortgages Act) at 10% was set aside and substituted in its stead an award of three months’ interest calculated at the rate of 0.75%. The appellants argued the motion judge erred by allowing the Mortgages Act Interest calculated at the rate of 10%, rather than 0.75%, and the court agreed. The motion judge’s reasons offered no explanation for the calculation at a rate of 10% or discussion of whether the relevant rate should have been 0.75%. The court held that neither the Mortgage nor the Note provided any tenable basis for the calculation of the Mortgages Act Interest at the rate of 10% per annum.

The court held that the motion judge erred in awarding post-judgment interest at the rate of 10% per annum as against some of the appellants on the outstanding debts owed under the Note. The court held that since the Interest Escalation Provision was unenforceable due to s.8 of the Interest Act, it followed that the 10% per annum post-judgment interest rate based on that provision was also unsustainable.

  1. No. The complaint was based on the fact that, unlike the judgment under appeal, the earlier default judgment contemplated payment of interest at the rate of 0.75% per annum. The court held that any inconsistency grounded no relief for the appellants. The default judgment was set aside and the appellants’ appeal from parts of that order were withdrawn. In any event, the respondents amended their statement of claim to include claims based on the Note. As a result the matters at issue and the record before the motion judge were materially different than those before the judge who granted default judgment.
  2. No, the motion judge’s costs award attracts considerable deference from the court. Unless the award is plainly wrong or based on an error of principle, appellate interference with the award is precluded. The court held there was no basis for interference with the motion judge’s discretionary costs ruling.

BMW Financial Services Canada v McLean, 2015 ONCA 342

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

Counsel:

H.E. Katz, for the appellant

A. Nathanson, for the respondent

Keywords: Contract Law, Summary Judgment, Personal Property Security Act, Conditional Sales Agreement, Notice of Sale, Mitigation

Facts: The appellant purchased a car from a BMW dealership and the respondent financed the purchase in two contracts. The financing agreement assigned the dealership’s rights and title to the car to the respondent, who registered a security interest in the car under the Personal Property Security Act, R.S.O. 1990, c. P. 10 (the “PPSA”). The appellant returned to the dealership for service on several occasions and was ultimately unsatisfied with the car. She failed to keep up with the payment schedule and made a unilateral decision to return the car to the dealership. The respondent sold the car at a public auction for less than the amount outstanding on the loan and brought an action against the appellant for the balance owing under the car lease. Milanetti J. granted summary judgment to the respondent.

Holding: Appeal dismissed. Costs to the respondent of $8,000 inclusive of taxes and disbursements.

Reasoning:

The Court of Appeal rejected the appellant’s argument that the relationship between the dealer and the respondent was close and continuing such that she should be able to raise any defences relevant to the dealership against the respondent. It was open to the motion judge to conclude that they were separate entities. Therefore, any alleged false or misleading representations the dealership may have made to the appellant were not relevant to the respondent’s actions.

Second, the Court of Appeal agreed with the motion judge’s conclusion that a failure to provide notice of the intent to sell the car, as required by the PPSA, would not undermine the respondent’s right to claim for a deficiency under the contract.

Finally, the motion judge was entitled to conclude that the respondent had not failed to properly mitigate its damages. There was no reason to interfere with her conclusion that the sale of the vehicle at a public auction was a commercially reasonable approach for the respondent to have taken.

Allstate Insurance Company of Canada v. Aftab, 2015 ONCA 349

[Strathy C.J.O., LaForme and Tulloch JJ.A.]

Counsel:

S. A. Gilbert, Q.C., for the appellant

L. P. Covens, for the respondents Meng C. Chiu and Honda Canada Finance

D. Oberman, for the respondent Sumaira Aftab

Keywords: Insurance Law, Motor Vehicle Accident, Homeowners’ Policy, Duty to Defend, Quick v. MacKenzie (1997), 33 O.R. (3d) 362, Bawden v. Wawanesa Mutual Insurance Company, 2013 ONCA 717

Facts: The plaintiff/respondent, Aftab’s young son, Sameer, was hit by a car while crossing the road after getting out of her van. Aftab commenced an action on behalf of Sameer against the respondent Chiu, the driver of the car that hit him. Chiu counterclaimed against Aftab for indemnification, alleging she had failed to take reasonable steps to ensure her son’s safety.

Aftab’s auto insurer, Unifund Assurance Company, and her homeowner insurer, Allstate, brought separate proceedings for declarations that they had no duty to defend the counterclaim or to provide coverage for damages. The applications were heard together. Unifund argued that Sameer’s injury did not arise from the use and operation of the van. Allstate argued that it did arise from the use of the van and was therefore excluded from coverage under the homeowner policy. It also argued that, in any event, the homeowner policy excluded coverage for bodily injuries to residents of Aftab’s household.

The application judge held that both insurers had a duty to defend Aftab from the counterclaim against her. Allstate appealed, asserting that coverage for the counterclaim was excluded by its homeowner policy, because it is a claim “arising from” bodily injury to a person residing in Aftab’s household.

Issue: Which Court of Appeal decision is applicable to the circumstances: Quick v. MacKenzie (1997), 33 O.R. (3d) 362 [Quick], interpreting virtually identical contract language or Bawden v. Wawanesa Mutual Insurance Company, 2013 ONCA 717 [Bawden]?

Holding: Appeal allowed. Aftab was not entitled to coverage from the appellant.

Reasoning:

Bawden was distinguishable because the ambiguous language of the exclusion clause there was quite different from the clause in Quick and in this case. Here, as in Quick, both the coverage clause and the exclusion clause use the term “arising from”. In Bawden, the use of the word “for” in the exclusion clause, rather than “arising out of”, was found to limit the scope of the exclusion. Here, in contrast, there was symmetry between the coverage on the one hand and the exclusion from the scope of coverage on the other.

Ross v. Bacchus, 2015 ONCA 347

[Doherty, Pepall and van Rensburg JJ.A. ]

Counsel:

T. J. McCarthy, for the appellant

D.R. Findlay and T.A. Sprung, for the respondent

Keywords: Torts, Motor Vehicle Accident, Judicial Impartiality, Jury Misdirection,  Causation, Failure to Settle or Mediate in Good Faith, Costs

Facts:  Bryan Ross (the respondent) was stopped at a red light on his motorcycle when a vehicle driven by Shaheed Bacchus (the appellant) struck him from behind. Mr. Ross sued, claiming injuries to his back, neck, hip and knees. A jury awarded Mr. Ross damages of $248,000. The trial judge ordered costs and disbursements payable to Mr. Ross in the amount of $217,000 plus HST. The costs order included $60,000 awarded by the trial judge because Mr. Bacchus’s insurer had failed to attempt to settle the claim as expeditiously as possible, and had refused to participate in the mediation of the claim, as required by ss. 258.5 and 258.6 of the Insurance Act, R.S.O. 1990, c. I.8. Those provisions provide that a trial judge can take the insurer’s failure to perform those obligations into consideration when awarding costs. Mr. Bacchus appealed both damages and costs.

Issues: 

  1. Did interventions by the trial judge throughout the trial destroy the appearance of judicial impartiality, rendering the trial unfair, and resulting in a miscarriage of justice?
  2. Did the trial judge misdirect the jury on the issue of causation?
  3. Did the trial judge err in awarding the respondent $60,000 in costs because of the failure of the appellant’s insurer to attempt to settle the claim as expeditiously as possible and refusal to participate in the mediation of the claim?

Holding: Appeal dismissed with respect to issues 1 and 2 above; appeal allowed with respect to issue 3.

Reasoning:

  1. No. Judicial interventions in the course of a trial can, by their content, nature, number or a combination of the three, result in a miscarriage of justice. However, there was no merit in this case to the argument that the interventions by the trial judge destroyed the appearance of impartiality and resulted in a miscarriage of justice.
  2. No. The instructions to the jury properly captured the causation requirement even if the trial judge did not use the exact words from the most recent jurisprudence.
  3. Yes. The record did not support the trial judge’s findings that the insurer failed to attempt to settle the claim expeditiously and that its participation in the mediation was a “sham”.

Buik v. Canasia Power Corp., 2015 ONCA 352

[Strathy C.J.O., LaForme and Tulloch JJ.A.]

Counsel:

H. Nesathurai and G. M. Perinot, for the appellant

H. M. Rosenberg and C. Wadsworth, for the respondent

Keywords:   Debtor-Creditor Law, Promissory Notes, Limitation Period, Limitations Act, 2002, Trustee Act, s. 38(3), New Issue Raised on Appeal

Facts: Mr. Buik made a number of loans to the appellant, Canasia. A promissory note dated June 5, 2002, stated that the appellant owed $462,500 at 15% interest per annum, falling due on May 31, 2003. An additional unsigned promissory note dated July 10, 2002, reflected a further loan of $4,000, bringing the total to $466,500.  Mr. Buik died in December 2002 leaving his estate to his wife, Ms. Buik. On March 1, 2011, a written demand for payment was made to Canasia. No payments were received, an action was commenced and a trial ensued.

Issues: 

  1. Should the trial judge should have considered and applied s. 38(3) of the Trustee Act, even though it was neither pleaded nor raised at trial?
  2. Did the trial judge err in finding that the communications between Canasia and Ms. Buik restarted the limitation period?

Holding: Appeal dismissed.

Reasoning:

  1. No.  Pursuant to Kaiman v. Graham, 2009 ONCA 77, appellate courts will not entertain an entirely new issue on appeal, because it is unfair to advance a new argument where the other party has not had the opportunity to lead evidence on the issue. The appellant did not discharge the burden of persuading the Court that “all the facts necessary to address the point are before the court as fully as if the issue had been raised at trial”.
  2. No.   The trial judge found the limitation period began to run on May 31, 2003, the date the note became payable. She found that under the transition rules in the Limitations Act, 2002, specifically s. 24(5), the former six-year limitation period applied, because the claim was discovered before January 1, 2004. Also, Canasia both acknowledged the debt, and sufficiently identified it, through written correspondence and partial payment. The record fully supported the trial judge’s conclusions.

Salisbury v. Litman, 2015 ONCA 357

[Weiler, Cronk and Pepall JJ.A.]

Counsel:

J. Poproski, for the appellant

H. M. Mackenzie and K. G. Hashmi, for the respondent

Keywords:   Torts, Motor Vehicle Accident, Evidence, Causation, Deference

Facts: The appellant was injured in a motor scooter accident in Mexico in January 1997 as a result of which she suffered serious brain injuries. She had to have an operation that removed a significant portion of her right temporal lobe. At the trial held in 2013, 16 years after the date of the accident, the appellant provided a different account of events than the ones provided in her statement of claim. The trial judge dismissed the action on the basis that he was not satisfied the appellant had proven that the respondent caused or contributed to the accident.

Issues: 

  1. Did the trial judge err in failing to exclude the evidence of the defence expert Dr. Duncan and, as a result, erred in his assessment of the reliability of the appellant’s evidence?
  2. Did the trial judge fail to recognize that the respondent failed to meet his onus of proof with respect to his claim that the appellant suffered from retrograde amnesia?
  3. Did the trial judge fail to apply the appropriate standard of proof in a civil case and, in that respect, ignore or fail to appreciate aspects of the evidence?

Holding: Appeal dismissed.

Reasoning:

  1. No.  The fact that Dr. Duncan did not provide an opinion on the validity of recovered memories did not detract from his expertise on the nature and consequences of the appellant’s brain injuries.
  2. No.  It was the appellant’s onus throughout to establish causation and the reliability of her account of events. At the end of the day, the trial judge concluded that the appellant had not met this onus because she failed to establish that the respondent either caused or contributed to the accident. The trial judge expressly applied a balance of probability standard in determining whether the appellant’s account was “more probable than not”. Read as a whole, the trial judge’s reasons reflect no error in the application of the correct standard of proof.
  3. No. The trial judge’s factual findings on the issue of causation were findings of fact that were open to him on the evidentiary record. His assessment of the evidence and the weight to be attached to it are entitled to deference.

Ontario Review Board (Mental Health and Detention Decisions)

Gajewski (Re), 2015 ONCA 332

[Gillese, Tulloch and Lauwers JJ.A.]

Counsel:

B. Gajewski, appearing in person

A. Szigeti, for the appellant

J. Stuart, for the Crown

M. Warner, for the Person in Charge of the Centre for Addiction and Mental Health

Keywords: Endorsement, Administrative Law, Mental Health, Ontario Review Board, Detention Order

Criminal Decisions

R. v. M.D.R., 2015 ONCA 323

[Feldman, Hourigan and Pardu JJ.A.]

Counsel:

R. J. Reynolds, for the appellant

J. McInnes, for the respondent

Keywords: Endorsement, Criminal Law, Credibility, Sexual Assault, Assault, R. v. W.(D.), [1991] 1 S.C.R. 742,  R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 (Ont. C.A.)

R. v. Fiorilli, 2015 ONCA 328

[Feldman, Pardu and Brown JJ.A.]

Counsel:

T. Yuen, for the appellant

H. Freeman, for the respondent

Keywords: Endorsement, Criminal Law, Sentencing, Conditional Sentence

 R. v. Constantine, 2015 ONCA 330

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

Counsel:

R. Posner and G. Gross-Stein, for the appellant

D. Krick, for the respondent;

Keywords: Criminal Law, Self-Defence, Defence of a Third Party, Criminal Code, s. 37, Jury Instructions, R. v. Cinous, 2002 SCC 29, R. v. Gauthier, 2013 SCC 32

R. v. Doolan, 2015 ONCA 340

[Simmons, Tulloch and Huscroft JJ.A.]

Counsel:

B. Simpson, for the appellant

K. Papadopoulos, for the respondent

Keywords: Endorsement, Criminal Law, Guilty Plea, Aggravated Assault, Ineffective Assistance of Counsel

R. v. Hannah, 2015 ONCA 334

[Gillese, Tulloch and Lauwers JJ.A.]

Counsel:

V. Rondinelli, for the appellant

A. Cappell, for the respondent

Keywords: Endorsement, Criminal Law, Sentencing, Summers

 R. v. Hilan, 2015 ONCA 338

[Simmons, Tulloch and Huscroft JJ.A.]

Counsel:

N. D. Boxall and J. Doody, for the appellant

R. Shallow, for the respondent

Keywords: Endorsement, Criminal Law, Sexual Assault, Sentencing, Proportionality

R. v. Mohamed, 2015 ONCA 335

[Watt, Pepall and Benotto JJ.A.]

Counsel: S. Whitzman, for the appellant

M.E. Hurman, for the respondent

Keywords: Endorsement, Criminal Law, Impaired Driving, Leave to Appeal, Criminal Code, ss. 839(1)(a), R. v. R.(R.) (2008), 234 C.C.C. (3d) 463

R. v. Palmer, 2015 ONCA 329

[Feldman, Simmons and Pepall JJ.A.]

Counsel:

D. Doucette, for the appellant

J. Patton, for the respondent

Keywords: Criminal Law, Second Degree Murder, Fresh Evidence, Mental Disorder, Not Criminally Responsible, R. v. Palmer, [1980] 1 S.C.R. 759, R. v. I.E.M. (2003), 173 C.C.C. (3d) 515 (Ont. C.A.)

 R. v. D.J.L., 2015 ONCA 333

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

Counsel:

J. D. Makepeace, for the appellant 

A. Derwa, for the respondent

Keywords: Criminal Law, Sexual Assault, Sexual Interference, Acceptance of Complainant’s Evidence

R. v. Sahota, 2015 ONCA 336

[Watt, Pepall and Benotto JJ.A.]

Counsel:

A. Chiodo, for the appellant

J. Stuart, for the respondent

Keywords: Endorsement, Criminal Law, Sentencing, Aggravated Assault, Included Offence, Attempted Murder, Criminal Code, s. 718.2(b)

 R. v. Wood, 2015 ONCA 337

[Simmons, Tulloch and Huscroft JJ.A.]

Counsel:

B. R. Burgess, for the appellant

J. S. Tse, for the respondent

Keywords: Endorsement, Criminal Law, Sexual Assault, Sentencing, Change of Venue, Jury Charge

R. v. Buoc, 2015 ONCA 341

[Juriansz, Rouleau and Hourigan JJ.A.]

Counsel:

D. Condo, for the appellant

D. Lepofsky, for the respondent

Keywords: Endorsement, Criminal Law, Failing to Stop, Driving Under Suspension, Canadian Charter of Rights and Freedoms, s. 8, Unreasonable Search and Seizure

R. v. Laponsee, 2015 ONCA 344

[Juriansz, Rouleau and Hourigan JJ.A.]

Counsel:

D. Condo, for the appellant

M. Asma, for the respondent

Keywords: Endorsement, Criminal Law, Sentencing, Credibility of Witness, Conditional Discharge

R. v. Persaud, 2015 ONCA 343

[Juriansz, Rouleau and Hourigan JJ.A.]

Counsel:

S. Goldstein, for the appellant

G. MacDonald, for the respondent

Keywords: Endorsement, Criminal Law, Sentencing, Pre-sentence Bail, Firearm Offences, R. v. Dragos, [2012] O.J. No. 3790, R v. E.B., [2013] O.J. No. 2936

R. v. Sergeant, 2015 ONCA 345

[Juriansz, Rouleau and Hourigan JJ.A.]

Counsel:

S. Goldstein, for the appellant

G. MacDonald, for the respondent

Keywords: Endorsement, Criminal Law, Extortion, Inferences, R v W.D

R. v. Aujla, 2015 ONCA 350

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

Counsel:

B. Callender, for the appellant

Jaswinder Singh Aujla J. Lockyer, for the appellant

Gurminder Singh Riar H. Piafsky, for the respondent

Keywords: Criminal Law, Importing Narcotics for the Purpose of Trafficking, Sentencing, Credibility

R. v. Campbell, 2015 ONCA 346

[Watt, Pepall and Benotto JJ.A.]

Counsel:

J. Bliss, for the appellant

M. Adams, for the respondent

Keywords: Endorsement, Criminal Law, Violation of Term of Long Term Supervision Order, Definition of Pornography, Sentencing

R. v. Richards, 2015 ONCA 348

[Gillese, Tulloch and Lauwers JJ.A.]

Counsel:

D. Robitaille and K. Heap, for the appellant

J. North, for the respondent

Keywords: Criminal Law, Possession of Narcotic for the Purpose of Trafficking, Sentencing, Canadian Charter of Rights and Freedoms, ss. 8 and 9