Hello again.

Welcome to another week of summaries of civil decisions of the Court of Appeal for Ontario. Topics covered include municipal liability, contracts (whether a written clarification of an unclear term of an existing contract is unenforceable for want of fresh consideration – no – the clarification itself was valuable consideration), employment law (two decisions confirming that bonuses are recoverable as damages for wrongful dismissal), stay pending appeal to the Supreme Court of Canada (stay not granted) and class actions (adding representative plaintiffs and whether breach of the price-fixing provisions of the Competition Act can constitute the unlawful act element of the tort of civil conspiracy).

Civil Decisions

Paquette v. TeraGo Networks Inc., 2016 ONCA 618

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

Counsel:
A. H. Monkhouse and S. Lucifora, for the appellant
R. Frank and N. Marcus, for the respondent

Keywords: Employment Law, Wrongful Dismissal, Damages, Payment in Lieu of Reasonable Notice, Bonuses, Taggart v. Canada Life Assurance Co., Summary Judgment

Facts:
The appellant, Trevor Paquette (“Paquette”), worked for the respondent TeraGo Networks Inc. (“TeraGo”) until his employment was terminated without cause. Paquette earned a base salary and bonuses. The parties were unable to agree on a severance package, therefore Paquette sued for wrongful dismissal.

The appellant brought a summary judgment motion to determine the period of reasonable notice and damages, including the issues of compensation for lost bonuses and mitigation of damages. The motion judge fixed the reasonable notice period at 17 months. The motion judge awarded damages based on the salary and benefits that the appellant would have received during the notice period. The motion judge rejected the claim for damages for lost bonus payments. He found that the appellant had made reasonable efforts to mitigate his damages and directed him to account for any mitigation earnings for the balance of the reasonable notice period.

Issue:
Did the motion judge err in denying the appellant’s claim for compensation for lost bonuses as part of his damages for wrongful dismissal, on the basis that the bonus plan required the bonus recipient to be “actively employed” at the time the bonus was paid?

Holding:
Appeal allowed.

Reasoning:
Yes. The motion judge erred in principle by treating the issue of whether bonus amounts would be included in the appellant’s damages for wrongful dismissal as a question of whether the “active employment” term in the bonus plan was ambiguous. The motion judge should have determined whether the appellant’s common law right to damages for compensation and benefits that he would have earned during the reasonable notice period, including the bonus that was part of his compensation package, was effectively limited by the “active employment” condition in the bonus plan. By narrowly focusing the analysis of whether the “active employment” term was ambiguous, the motion judge applied an incorrect principle.

The motion judge’s analysis focused only on the wording of the bonus plan. He stated that there was no ambiguity in its terms, and that, although the appellant might notionally be an employee during the reasonable notice period, he would not be an “active employee” and therefore would not qualify for a bonus.

There are two problems with the motion judge’s approach. First, the appellant’s entitlement to bonus payments in the context of the wrongful dismissal action does not depend on whether he was notionally or in fact “actively employed” after his employment was terminated. The issue before the court was the determination of his damages, comprised of the compensation and benefits to which he would have been entitled but for the wrongful termination of his employment. Had the appellant been terminated within the 17 months’ reasonable notice fixed by the motion judge, he would have been “actively employed” when the bonuses were paid.

Similar to the precedent set in Taggart v. Canada Life Assurance Co., with respect to “active employment”, the appellant’s claim was not for the bonuses themselves, but for common law contract damages as compensation for the income (including bonus payments) he would have received had TeraGo not breached his employment contract by failing to give reasonable notice of termination.

The motion judge’s next error was in looking to the terms of the bonus plan, and its requirement of “active employment”, and then concluding that because that term was unambiguous, and the appellant could not meet the requirement, no amount for bonus would be included in his damages. The motion judge ought to have commenced the analysis from the premise that the appellant’s common law right to damages is based on his complete compensation package, including any bonus he would have received had his employment continued during the reasonable notice period, and then examined whether the bonus plan specifically limited or restricted that right.

Taggart articulates the approach the motion judge ought to have followed in this case. The first step is to consider the appellant’s common law rights. In circumstances where, as here, there was a finding that the bonus was an integral part of the terminated employee’s compensation, Paquette would have been eligible to receive a bonus, had he continued to be employed during the 17 month notice period.

The second step is to determine whether there is something in the bonus plan that would specifically remove the appellant’s common law entitlement. The question is not whether the contract or plan is ambiguous, but whether the wording of the plan unambiguously alters or removes the appellant’s common law rights. Therefore, the requirement for active employment does not prevent the appellant from receiving, as part of his wrongful dismissal damages, compensation for the bonuses he would have received had his employment continued during the period of reasonable notice.

The motion judge erred since the question was not whether the bonus plan was ambiguous, but whether the wording of the plan (which in this case formed part of the appellant’s employment contract) was effective to limit his right to receive compensation for lost salary and bonus during the period of reasonable notice.

Finally, the Court of Appeal determined that a term requiring active employment when the bonus is paid, without more, is not sufficient to deprive an employee terminated without reasonable notice of a claim for compensation for the bonus he or she would have received during the notice period, as part of his or her wrongful dismissal damages. In the result, the appellant is entitled to compensation as part of his damages for wrongful dismissal for the loss of his bonus as well as the lost opportunity to earn a bonus.

Lin v Ontario Teachers’ Pension Plan, 2016 ONCA 619

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

Counsel:
P.J. Pape and A.M. Bolieiro, for the appellant
C. Dockrill, for the respondent

Keywords: Employment Law, Wrongful Dismissal, Just Cause, Reasonable Notice, Bardal v Globe & Mail Ltd, Bad Faith, Honda Canada Inc v Keays, Damages, Payment in Lieu of Reasonable Notice, Bonuses, Contracts, Interpretation, Standard of Review, Sattva Capital Corp v Creston Moly Corp, Dumbrell v Regional Group of Companies, Unilateral Change in Employment Contract, Wronko v Western Inventory Service Ltd

Facts:
The respondent, David Lin (“Lin”) was employed by the appellant Ontario Teachers’ Pension Plan Board (“Teachers’”) for almost eight years as a Senior Associate in the investment bank division. In March 2011, Lin’s employment was terminated, allegedly for cause. Teachers’ alleged a breach of its code of business conduct (the “Code”) after Lin emailed a copy of a private placement memorandum (“PPM”), previously received by Teachers’ from a third party on an unsolicited basis, to a personal friend in the investment business. The trial judge concluded that Lin’s employment was terminated without cause, and held that the appropriate notice period was 15 months. Damages in lieu of the reasonable notice period were set to include bonuses Lin would have received under Teachers’ short-term incentive plan (“AIP”), and long-term incentive plan (“LTIP”), programs in which Lin participated during the period of reasonable notice. Teachers appealed.

Issues:
(1) Did the trial judge incorrectly interpret the Code in concluding that Lin did not violate it?

(2) Did the trial judge err in fixing a reasonable notice period of 15 months, without a finding of bad faith?

(3) Did the trial judge err in finding that bonus forfeiture provisions introduced in the AIP and LTIP in 2010 were ineffective, thus resulting in an incorrect calculation of damages?

(4) Did the trial judge err in concluding that Lin was entitled to compensation for lost bonuses despite the limiting terms of the original AIP and LTIP, which purported to disentitle employees from such compensation upon termination?

Holding:
Appeal dismissed.

Reasoning:
(1) No. The trial judge correctly reviewed the Code provisions in the context of the entire policy. The provisions sought to protect confidential information and information that Teachers’ expressly agreed to treat in confidence. The protection did not extend to all information relevant to investments, from any source, regardless of whether the information had been disclosed to the public. The trial judge’s interpretation was based on a consideration of relevant circumstances, including Teachers’ obligations of confidentiality, the wording of the PPM and covering letter, and Teachers’ own conduct, and supported a finding that the PPM was not confidential. Given the deferential standard of review required by Sattva Capital Corp v Creston Moly Corp in contractual interpretation cases, it was not appropriate for the Court to interfere with the trial judge’s findings.

(2) No. Even if the trial judge had found bad faith, it would not have been open to him to extend the period of reasonable notice. In Honda Canada Inc v Keays, the Supreme Court held that the correct approach is no longer to extend the notice period, but rather to award actual damages for bad faith conduct causing mental distress. Alternatively, punitive damages would be available for employer misconduct where the employer’s conduct is an actionable wrong, and so malicious and outrageous that it deserves punishment. The trial judge fixed the period of reasonable notice after considering the relevant Bardal factors, including the difficulty Lin would face in securing comparable new employment.

(3) No. The trial judge correctly found that the 2010 forfeiture provisions were ineffective. Teachers’ could not unilaterally impose the terms, as they were highly material to the employment relationship, and were rejected by Teachers’ employees. As held by the Court of Appeal in Wronko v Western Inventory Service, an employee has three options when an employer attempts to unilaterally amend a fundamental term of an employment contract. The options are for the employee to accept the change expressly or implicitly in which case the employment continues under the altered terms; to reject the change and sue for damages if the employer persists in treating the relationship as subject to the varied term; or to make it clear to the employer that the employee is rejecting the new term, in which case the employer may respond by terminating the employee with proper notice and offering re-employment on the new terms. If the employer does not take this course and permits the employee to continue to fulfill his or her job requirements, then the employee is entitled to insist on adherence to the original terms. As such, Lin’s entitlement to damages for lost bonuses depended on the wording of the pre-2010 bonus plans.

(4) No. The trial judge correctly interpreted Lin’s rights under the original plans. Damages in lieu of reasonable notice should place an employee in the same financial position he or she would have been in had such notice been given and the employee had worked to the end of the period. At common law, damages for wrongful dismissal may include an amount for a bonus the employee would have received had he continued in his employment during the notice period, or damages for the lost opportunity to earn a bonus. The employee’s common law right is the correct starting point for the analysis. The second step is to examine whether there is something in the bonus plan that removes the employee’s common law entitlement. The wording of the plans did not unambiguously alter or remove the respondent’s common law right to damages.

Iroquois Falls Power Corporation v. Ontario Electricity Financial Corporation, 2016 ONCA 616

[Gillese J.A.]

Counsel:
J.D.T. Pinos and E. Larose, for the appellant/moving party

J.D.G. Douglas, for the respondents/responding parties Iroquois Falls Power Corporation, Cochrane Power Corporation, N-R Power and Energy Corporation, Algonquin Power (Long Sault) Partnership and N-R Power Partnership and Kirkland Lake Power Corporation

C. Smith and N. Kennedy, for the respondents/responding parties Lake Superior Power Limited Partnership, Beaver Power Corporation, Carmichael Limited Partnership and Algonquin Power (Nagamami) Limited Partnership

G. Zacher, for the respondents/responding parties Cardinal Power of Canada, L.P. and MPT Hydro L.P.

Key Words: Endorsement, Civil Procedure, Stay Pending Appeal

Facts:
Ontario Electricity Financial Corporation (“OEFC”) is a Crown agency that manages the former Ontario Hydro’s non-utility generator contracts. OEFC brings this motion to stay those parts of the judgments of Wilton-Siegel J. dated March 12, 2015 (the “Judgments”) requiring it to pay approximately $160 million to the responding parties, pending the outcome of its application for leave to appeal to the Supreme Court of Canada and, if leave is granted, a determination on the merits.

The responding parties to this motion are privately-owned non-utility generators (“NUGs”) who entered into power purchase agreements with the former Ontario Hydro between 1989 and 1994, amended by term sheets executed by the parties between 2002 and 2008 (“PPAs”). When Ontario Hydro was restructured in 1999, OEFC became Ontario Hydro’s successor under the PPAs.

On January 1, 2011, Ontario Regulation 398/10 (the “Regulation”) came into force and OEFC relied on it to amend the formula it used to calculate the payments it made to the NUGs (the “New Formula”). The New Formula resulted in decreased payments to the NUGs. The NUGs commenced six separate applications, which were heard together, alleging that the New Formula breached the PPAs. In their applications, the NUGs asked for orders requiring OEFC to resume making payments in accordance with the way in which they had been calculated before the Regulation came into force (the “Go-Forward Payments”) and requiring OEFC to pay them the difference between what they had been paid during the relevant period and what they would have been paid had OEFC not paid according to the New Formula (the “Retroactive Payments”).

Wilton-Siegel J. heard the applications and found that the New Formula did not comply with the PPAs. In the Judgments, he granted the applications and ordered OEFC to make both the Go-Forward Payments and the Retroactive Payments. OEFC appealed to this court. On April 19, 2016, in a unanimous decision, this court dismissed OEFC’s appeal (the “CA Judgment”).

OEFC has made the Go-Forward Payments in accordance with the Judgments since they were rendered. The Retroactive Payments were automatically stayed until the CA Judgment was released. On June 20, 2016, OEFC filed an application for leave to appeal the CA Judgment to the Supreme Court of Canada. In its leave application, OEFC proposes to raise two issues on appeal.

In the motion presently before the court, OEFC seeks an order staying those portions of the Judgments that oblige it to make the Retroactive Payments, pending the determination of its leave application and, if leave is granted, a determination on its appeal. Alternatively, it asks for an order staying those portions of the Judgments that oblige it to make the Retroactive Payments to Cochrane Power Corporation, Lake Superior Power Limited Partnership, and Cardinal Power of Canada L.P. The NUGs oppose the stay motion.

Issue:
(1) Should execution on the Judgments be stayed pending the appeal to the Supreme Court?

Holding:
Motion dismissed.

Reasoning:
(1) No. The stay is not in the interests of justice. The test for a stay pending appeal, including a motion for leave to appeal to the Supreme Court of Canada requires a determination of whether:

a) There is a serious issue to be adjudicated on its proposed appeal;
b) The appellant will suffer irreparable harm if the stay is not granted; and
c) The balance of convenience favours granting the stay.

These three components are interrelated in that the overriding question is whether the moving party has shown that it is in the interests of justice that the court grant a stay (BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust, 2011 ONCA 620).

a) There is no serious issue to be adjudicated on the proposed appeal

For a stay motion pending leave to appeal to the Supreme Court, when considering the serious issue component of the test, the court must take into account the stringent leave requirements imposed by the Supreme Court Act, R.S.C. 1985, c. S-26. Having considered the stringent leave requirements in the Supreme Court Act, there is little likelihood that the Supreme Court will grant OEFC leave to appeal because the judgments have little or no precedential value and the two issues that OEFC raised were hypothetical.

b) OEFC will not suffer irreparable harm if the stay is not granted

The record did not satisfy the court that the full amount of the Retroactive Payments must come from electricity ratepayers in Ontario nor that if the amount of the Retroactive Payments is collected from electricity ratepayers that it must be done in a single month. OEFC’s submission that recovery of the Retroactive Payments should its appeal be successful is uncertain (should that come to pass) also fails. OEFC effectively admited that it could recover, through set-off, from those NUGs with whom it has an ongoing contractual relationship. As for the three NUGs in respect of which the PPAs have already expired, on the record before the court, OEFC’s assertion of repayment risk is nothing more than speculation.

c) The balance of convenience does not favour granting the stay

It is OEFC’s burden to establish that it will suffer greater harm if the stay is not granted and it failed to discharge that burden.

Richcraft Homes Ltd. v. Urbandale Corporation, 2016 ONCA 622

[Laskin, Lauwers and Roberts JJ.A.]

Counsel:
B. Zarnett and P. Kolla, for the appellant
K. Scott McLean and D. Elliot, for the respondent

Key words: Contracts, Interpretation, Consideration, Certainty of Terms

Facts:
This appeal is about a limited partnership agreement (the LPA) entered into by Urbandale Corporation, the appellant, and Richcraft Homes Ltd., the respondent, and the extent of Urbandale’s control of the partnership. Urbandale owns two-thirds of the partnership and Richcraft owns one-third. The principals of Urbandale and Richcraft signed a document related to the LPA on May 9, 2005. Issues arose between the limited partners about the interpretation of the LPA and the legal effect of the 2005 document, and this application was brought on a cooperative basis.

The application judge made two declarations which are under appeal. The first was that he declared the 2005 document to be enforceable and that it affects the way in which the homebuilders, Urbandale Construction and Richcraft, get access to the building lots that become available through the partnership’s land development activities. The second declaration was that the actions taken by the partnership under Article 8.2 of the LPA, which sets out the consequences of a partner failing to advance funds to the partnership, must be approved by the unanimous consent of both Richcraft and Urbandale, as contended by Richcraft, and not merely by an “Ordinary Resolution”, as contended by Urbandale.

Issue:

  1. Is the 2005 document enforceable because Richcraft did not give consideration for it?
  2. Is the 2005 document an option agreement?
  3. Are the terms of the 2005 document fatally uncertain?
  4. Do the decisions of the partnership under Article 8.2 of the LPA require unanimous consent?

Held:
Appeal allowed in part.

Reasoning:

  1. The respondent’s argument that this is a new issue is rejected. The Court found that Richcraft was entitled to share equally in the available lots with Urbandale Construction. Clarifying an unclear term in a long-term contract, in order to create certainty and to avoid future costly disputes, enures to the parties’ mutual benefit, and is something of value that flows from and to each contracting party. Such a clarification thus serves as a functional form of consideration, making the 2005 document enforceable.
  2. The appellant’s submission that the 2005 agreement is no more than an option agreement is rejected. The application judge only used the term to point out that Richcraft could decide to take up to half of the lots available on any particular allocation of lots by the partnership. Richcraft could take no lots or as many as half; that is the choice the application judge referred to as an “option” in a non-technical sense. The law relating to “option agreements” does not apply on these facts.
  3. There is no lack of certainty in the 2005 document and there is no difficulty in applying the LPA as clarified by the 2005 document. The appellant’s submission that the 2005 agreement does not specify certain essential terms is rejected.
  4. The application judge erred in interpreting individual provisions in light of the entire contract. It is an error in principle to adopt an interpretation that renders meaningless a provision of an agreement. The judgment was amended accordingly.

Fanshawe College of Applied Arts and Technology v. AU Optronics, 2016 ONCA 621

[Hoy A.C.J.O., Laskin and Hourigan JJ.A.]

The “Fanshawe Appeal” (Docket C60670)
Appellant: The Fanshawe College of Applied Arts and Technology
Respondent: HannStar Display Corporation

The “HannStar Appeal” (Docket C61994)
Appellant: HannStar Display Corporation
Respondent: The Fanshawe College of Applied Arts and Technology

Counsel:
C.Wright, P. Bates, and R. Mogerman, for Fanshawe College of Applied Arts and Technology
J. Callaghan and A. Zavaglia, for HannStar Display Corporation

Keywords: Torts, Civil Conspiracy, Price Fixing, Competition Act, Civil Procedure, Class Actions, Summary Judgment, Limitation Periods, Discoverability Principle, Summary Judgment, Amending Pleadings, Adding Representative Plaintiff, No Reasonable Cause of Action

Facts:
This decision represents the consolidation of two appeals before the court. The procedural history involved is unique and complex. Both appeals arise in the context of a putative class action where the representative plaintiff, Fanshawe College of Applied Arts and Technology (“Fanshawe”), asserted that it and other members of the proposed class were victims of a price-fixing conspiracy in the liquid crystal display (“LCD”) industry. Fanshawe served as the proposed representative plaintiff.

In the first appeal, the defendant HannStar Display Corporation (“HannStar”) appealed the order of the motion judge dismissing its motion for summary judgment to dismiss the action (the “HannStar Appeal”).

In the second appeal, Fanshawe appealed the order of the motion judge dismissing its motion for leave to amend the statement of claim (the “Fanshawe Appeal”).

Fanshawe asserted a claim in civil conspiracy pursuant to s. 36 of the Competition Act, R.S.C. 1985, c. C-34, predicated on a breach of s. 45 of the Act, which makes conspiracies to fix prices illegal. HannStar and AU Optronics Corporation (“AU”), which was also named as a defendant, brought a motion for summary judgment, claiming the action was time-barred by the Limitations Act, 2002 and s. 36(4)(a) of the Competition Act. Fanshawe brought a motion to amend its claim to add MASS Engineered Design Inc. (“Mass”) as another representative plaintiff.

On the summary judgment motion, an affidavit filed on behalf of Fanshawe came under scrutiny. At issue was the timing of Fanshawe seeking legal counsel and its implication on discoverability. Fanshawe brought a motion to file a supplementary affidavit clarifying the timing of its interaction with legal counsel, which was denied by the motion judge.

A motion for summary judgment was heard and dismissed by the motion judge. In an endorsement dated November 24, 2015, the court quashed AU and HannStar’s appeal on the basis that the motion judge’s order below was interlocutory; therefore, the appropriate appeal route was to the Divisional Court.

Adding yet more procedural complexity, each party brought a motion before the Court of Appeal. AU and HannStar brought a motion to consolidate the HannStar Appeal with the Fanshawe Appeal, which was granted. Fanshawe brought a motion to strike paragraphs in AU and HannStar’s factums in the Fanshawe Appeal on the basis that the factums raised issues that went beyond the scope of the motion judge’s reasons. That motion was dismissed.

However, Fanshawe was granted leave to file a reply factum on the additional issue raised by the respondents in the Fanshawe Appeal: whether a breach of s. 45 of the Competition Act can serve as the unlawful means in a civil conspiracy claim.

Prior to the hearing of the appeals, AU entered into a settlement agreement with Fanshawe.

Issues:

(i) Does this court have the jurisdiction to consider the appeal of the motion judge’s ruling that there is a genuine issue for trial regarding whether the limitation period has expired for the civil conspiracy claim?

(ii) Did the motion judge err in finding that the discoverability principle applies to the limitation period found in s. 36(4)(a)(i) of the Competition Act?

(iii) Did the trial judge err in refusing to grant leave to amend the statement of claim?

(iv) Is it plain and obvious that a breach of s. 45 of the Competition Act cannot serve as the unlawful means for a civil conspiracy claim?

Holding:
Hannstar appeal dismissed. Fanshaw appeal granted.

Reasoning:

(i) Does this court have the jurisdiction to consider the appeal of the motion judge’s ruling that there is a genuine issue for trial regarding whether the limitation period has expired for the civil conspiracy claim?

No. The motion judge’s order was interlocutory, therefore, an appeal lies to the Divisional Court with leave. On the motion for leave, the motion judge granted leave on the discrete issue of whether the discoverability principle applied to s. 36(4)(a)(i) of the Competition Act. “On an appeal of an interlocutory order in the Divisional Court, an appellant is restricted to arguing the issues on which it was granted leave to appeal. It may not raise additional issues on which it was not granted leave: see Locking v. Armtec Infrastructure Inc., 2012 ONSC 7274 (Div. Ct.), at paras. 16-18.”

The court subsequently made an order consolidating the Fanshawe Appeal and the HannStar Appeal, however, “that order was necessarily restricted to the proceedings that were pending at the time… This court has no jurisdiction to hear any issue that was not before the Divisional Court.”

(ii) Did the motion judge err in finding that the discoverability principle applies to the limitation period found in s. 36(4)(a)(i) of the Competition Act?

No. Subsection 36(4)(a)(i) is subject to the discoverability principle. The court stated that a “statutory limitation period will generally be subject to the discoverability principle when the running of the limitation period is linked either to the plaintiff’s knowledge about an event or to an event related to the plaintiff’s cause of action.”

The court ruled that the limitation period in s. 36(4)(a)(i) of the Competition Act is triggered by an event related to the underlying cause of action. In other words, conduct that is contrary to Part VI of the Act. Therefore, it is subject to discoverability.

In its reasoning, the court relied on Peixeiro v. Haberman, [1997] 3 S.C.R. 549 (“Peixeiro”). There, the Supreme Court of Canada (”SCC”) considered what was s. 206(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, which provided that any action for damages caused by a motor vehicle accident had to be brought within “two years from the time when the damages were sustained.” The SCC concluded that the discoverability principle applied, stating: “It is unlikely that by using the words ‘damages were sustained’, the legislature intended that the determination of the starting point of the limitation period should take place without regard to the injured party’s knowledge. It would require clearer language to displace the general rule of discoverability.”

Furthermore, in Peixeiro, Major J. stated that “in balancing the defendant’s legitimate interest in respecting limitations periods and the interest of the plaintiffs, the fundamental unfairness of requiring a plaintiff to bring a cause of action before he could reasonably have discovered that he had a cause of action is a compelling consideration.” The court applied Major J.’s reasoning in Peixeiro to the present case, noting that “secrecy and deception are invariably elements of anti-competition agreements.”

(iii) Did the trial judge err in refusing to grant leave to amend the statement of claim?

Yes. The motion judge erroneously concluded that the proposed amendments to the statement of claim had the effect of broadening the subject matter of the claim.

Fanshawe sought to amend its statement of claim for two reasons. First, there was concern that only direct purchasers, as opposed to indirect purchasers, could assert price-fixing claims. As an indirect purchaser, Fanshawe was concerned that the class action would have no representative plaintiff. Accordingly, it sought to add Mass, which was a direct purchaser.

Second, Fanshawe wanted to consolidate its action with another class action (the “First Ontario Action”). It proposed a series of amendments to ensure that the terminology in its statement of claim would match the terminology in the statement of claim in the First Ontario Action.

The motion judge found that the proposed amendments went beyond mere cosmetic refinements of the existing language and expanded the scope of the action. However, the court ruled that the motion judge had erred in concluding that Mass was not a member of the class described in the existing statement of claim. “Mass was part of the class from the outset as an indirect purchaser. Accordingly, it had the benefit of s. 28(1) of the Class Proceedings Act. The limitation period for its claim was tolled and there was no basis for the motion judge to deny the motion for leave to amend the statement of claim.”

(iv) Is it plain and obvious that a breach of s. 45 of the Competition Act cannot serve as the unlawful means for a civil conspiracy claim?

No. Prior to the enactment of what is now s. 36 of the Competition Act, a breach of Part VI of the Act could serve as the unlawful means in a civil conspiracy. “If Parliament intended to take away this existing common law right it would have to have done so in the clearest of terms. It did not.”

Fanshawe asserted a claim in civil conspiracy, alleging that the defendants’ breach of s. 45 of the Competition Act, regarding price fixing, constituted an unlawful act. On the Fanshawe Appeal, HannStar argued against granting the amendment because such a breach could not serve as the unlawful means in a civil conspiracy claim.

The court cited Canada Cement LaFarge Ltd. v. B.C. Lightweight Aggregate, [1983] 1 S.C.R. (“Canada Cement”) as the seminal case in the tort of civil conspiracy. The court paraphrased the constituent elements of civil conspiracy, per Canada Cement:

(1) the predominant purpose of the defendants’ conduct is to cause plaintiff injury, whether or not the defendants’ means were lawful; or (2) the defendants’ conduct is unlawful and directed towards the plaintiff (alone or with others) and, in the circumstances, the defendants should know that injury to the plaintiff is likely to, and does, result, notwithstanding that the predominant purpose of the defendants’ conduct was not to cause injury to the plaintiff.

The court also cited SCC’s decision in Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298, for the proposition that “if Parliament desires to replace an existing common law right it must express its intention with ‘irresistible clearness’.”

Not only is such “irresistible clearness” absent in s. 36 of the Competition Act, “[t]o the contrary, it would appear to be incongruous with the purpose of the Act, being the elimination of anti-competitive behaviour, that Parliament would eliminate a common law cause of action that serves to punish such behaviour.”

The court held that the weight of appellate authority does not support the conclusion that the unlawful means conspiracy claim asserted in the present case has no chance of success.

118143 Ontario Inc. (Canamex Promotions) v. Mississauga (City), 2016 ONCA 620

[Doherty, Tulloch and Benotto JJ.A.]

Counsel:
E.M. Green and C. Salazar, for the appellants
T. Frankel and C. Pendrith, for the respondents

Key Words: Torts, Negligence, Municipal Liability, Negligent Enforcement of Bylaw, Standard of Care, Burden of Proof

Facts:
The appellants operated businesses that leased mobile signs for advertisement purposes. They claimed that the respondent, the City of Mississauga, destroyed their businesses by removing or forcing the appellants to remove numerous mobile signs that were in place between May and August 2002. The appellant’s signs were in fact exempt from the bylaw. The appellants alleged that Mississauga acted negligently in wrongfully enforcing the bylaw against them and, in doing so, caused them millions of dollars in damages.

Issue:
Did the trial judge err in failing to identify the applicable standard of care in deciding that Mississauga did not breach that standard of care?

Holding:
Appeal dismissed.

Reasoning:
No. The appellants did not allege in their pleadings, and the evidence did not substantiate, any basis upon which a trial judge could have found that Mississauga acted unreasonably in the manner in which it enforced the 2002 bylaw.

The invalidity of a bylaw cannot be equated with liability in negligence for enforcing the bylaw. To make a negligence claim, there are three separate parts to be established: first, that the defendant owed a duty of care to the plaintiff, second, that the defendant’s conduct fell below what could be expected of the ordinary, reasonable person in the circumstances, and third, that the plaintiff suffered damages as a consequence of the defendant’s breach of the standard of care.

The appellants failed to establish the second part of the three-part test. In their factum, they included only one paragraph on the duty of care owed by the defendants to the plaintiffs, arguing that the defendant owed them a duty of care to ensure that it had proper legislative authority to remove the signs. The appellants then argued that in the absence of that authority, the defendants breached their duty of care and the appellants suffered damages as a result. Under Welbridge Holdings Ltd., the absence of an authority alone is insufficient to support a finding that a defendant breached its duty of care to the appellants. The appellants submitted that Mississauga had the onus to demonstrate that it had acted reasonably in the circumstances. Additionally, counsel argued that it was for the appellants to establish that the defendant owed the appellants a duty of care, but that once the duty was established, the onus fell on Mississauga to demonstrate that it met the requisite standard of care imposed by that duty.

The court found that there is no statutory provision shifting the burden of proof as it applies to the standard of care from the appellants to Mississauga. The court also found that the appellants failed to lead evidence as to what steps a reasonable municipality should have taken before enforcing its bylaw in the circumstances that existed prior to the 2002 bylaw coming into existence.

The court found that even if it were to accept the appellants’ articulation of the applicable standard of care, there was no evidence from which it could be inferred that Mississauga acted unreasonably in the enforcement of the 2002 bylaw.

Criminal Decisions

R. v. Al-Shammari (Publication Ban), 2016 ONCA 614

[Cronk, Juriansz and Watt JJ.A.]

Counsel:
R. Posner and L. Beechener, for the appellant
A. Wheeler and A. Alvaro, for the respondent

Keywords: Criminal Law, First Degree Murder, Propriety of Crown Counsel’s Cross-Examination of the Appellant, Permissible Use of Police Statements, Jury Instructions, Post-Offence Conduct,R. v. Stiers, 2010 ONCA 382, 255 C.C.C. (3d) 99, Ineffective Representation, R. v. Joanisse (1995), 102 C.C.C. (3d) 35 (Ont CA)

R. v. John, 2016 ONCA 615

[Sharpe, Watt and Brown JJ.A.]

Counsel:
J. Lockyer, for the appellant Jimmy John
B. Snell, for the appellant Curt John
A. Alvaro, for the respondent

Keywords: Criminal Law, Reasonable Verdict Threshold, R. v. Biniaris, 2000 SCC 15, Admissibility of Third Party Suspect Evidence, R. v. Grant, 2015 SCC 9, Jury Instructions, Eyewitness Evidence, Improper and Unfair Conduct by Crown Counsel, Application for Mistrial, Deference

R. v. Prosser, 2016 ONCA 617

[Weiler J.A. (In Chambers)]

Counsel:
D. Butt, for the applicant
J. Neander, for the respondent

Keywords: Endorsement, Criminal Law, Judicial Interim Release Application, Public Interest

R. v. Hope, 2016 ONCA 623

[Watt, Epstein and Tulloch JJ.A.]

Counsel:
M. Webb, for the appellant
L. Cecchetto, for the respondent

Keywords: Criminal Law, Second-Degree Murder, Intent, Self-Defence, Provocation, Burden of Proof, Jury Questions, Jury Instructions, Baxter Instruction, Opinion Evidence

United States v. Whyte, 2016 ONCA 624

[Cronk, Juriansz & Watt JJ.A.]

Counsel:
B. H. Greenspan and R. K. McKechney, for the appellant
J. G. Johnston and R. Lee, for the respondents

Keywords: Criminal Law, Extradition, Administrative Law, Judicial Review, Standard of ReviewFresh Evidence, Abuse of Process, Principles of Fundamental Justice, Canadian Charter of Rights and Freedoms, s. 7, Issue Estoppel