Before we get to this week’s summaries of the civil decisions of the Court of Appeal for Ontario, I would like to invite all of our readers to attend the CLE that my partner, Lea Nebel and I will be chairing featuring the top Court of Appeal decisions of the year. The CLE has been scheduled as a casual evening/dinner program at the OBA offices on Toronto Street on January 11, 2018. In-person registration will be at 5:30, dinner will be served at 6, and the formal program will run from 6:30 to 8pm. For those who cannot attend in person, you can participate via live webcast. Please see the program agenda and further details here.
There are three decisions being featured. The first is Moore v Sweet, 2017 ONCA 182, which relates to the remedy of constructive trust. That case will be heard by the Supreme Court in the coming months. Counsel on that matter, David M. Smith and Jeremy Opolsky, have agreed to participate in our panel discussion. The second case is Presidential MSH Corporation v. Marr Foster & Co. LLP, 2017 ONCA. That case canvassed, summarized and clarified the law regarding when the “appropriate means” analysis under s. 5(1)(a)(iv) of the Limitation Act, 2002, can be applied to delay the start of the running of the basic two-year limitation period. Counsel for one of the parties on that matter, Allan Sternberg and Daniella Murynka, will be our panelists. The law in this area is continuing to evolve, with another decision released this week (discussed below) that moves the needle even further in the direction of extending the limitation period. The third decision featured is Hodge v Neinstein, 2017 ONCA 494. That case has certainly received the attention of the plaintiffs’ personal injury bar and the media and has, no doubt, been a catalyst behind the Law Society’s efforts to develop a standard form contingency fee agreement and disclosure obligations aimed at providing better information to clients. We hope you can join us.
And now, onto this week’s summaries. In a 2-1 decision in Winmill v. Woodstock (Police Services Board), the court further extended the “appropriate means” aspect of discoverability under the Limitations Act, 2002. The court determined that the two-year limitation period for a claim for the tort of battery against the police was not discoverable until the plaintiff was acquitted of a criminal charge of assault against the officer. In setting aside the lower court’s summary judgment dismissing the claim as out of time, the court reasoned that until the criminal proceeding determined whether the plaintiff had been guilty of assaulting the officer, it was not yet clear that commencing a civil claim against the officer for battery was the legally “appropriate means” for addressing the wrong. This adds to a growing body of case law in which the court has been signalling to the bar that parties should not be too quick to commence claims when there are other proceedings underway that could determine or at least greatly impact a civil proceeding. The problem, however, is that “appropriate means” is an evolving but still ambiguous concept that is open to interpretation. This is evident from the fact that Justice Huscroft dissented and would have dismissed the appeal.
In Chinese Publications for Canadian Libraries Ltd. v. Markham (City), the chambers motion judge applied the recent decision of the court in Yaiguage v. Chevron Corp. to deny security for costs in a case that probably would have resulted in security for costs before Yaiguage was released. The Chinese Publications decision was not public interest litigation and the merits of the appeal were weak. However, the court found that the City had sought security for costs in order to bring an end the case. The difficulty with relying on that ground to deny security for costs is that the possibility of ending the case is always a reason to bring such a motion. The law of security for costs continues to shift in favour of plaintiffs/appellants. I think what the court is signalling with both this decision and the Winmill decision is that the paramount consideration will always be an adjudication of the case on the merits when that is reasonably possible.
Other topics covered this week included the calculation of damages for the breach of an APS for a commercial property, child abduction, a boundary dispute, more limitation period decisions, a jury verdict in the MVA context, employment law and motions to extend the time to appeal.