APPLICATION FOR LEAVE TO APPEAL GRANTED

38187

1688782 Ontario Inc. v. Maple Leaf Foods Inc. and Maple Leaf Consumer Foods Inc. (Ont.)

Torts – Duty of care – Negligence

The case concerns a listeria outbreak in certain meat products supplied by Mr. Submarine Limited (“Mr. Sub”) and produced by the Maple Leaf respondents (collectively, “Maple Leaf”) which led to a national recall in 2008. The applicant, 1688782 Ontario Inc. (“782 Inc.”), is the class representative of Mr. Sub franchisees who were affected by a product shortage for 6-8 weeks as a result of the recall. The franchisees were publicly associated with the contaminated products and claim reputational injury and economic losses as a result of Maple Leaf’s negligence. There was no direct relationship between the franchisees and Maple Leaf, as the franchisees were supplied through a distributor. However, the franchisees were bound by an exclusive supply arrangement to purchase meat products through Maple Leaf, and Maple Leaf took steps during the recall to assist franchisees with product shortages and the recovery of contaminated meats. After certification of the class, Maple Leaf moved for summary judgment seeking dismissal of 782 Inc.’s claims to the effect that Maple Leaf owed the franchisees a duty of care. For its part, 782 Inc. brought a cross-motion to have the duty of care questions decided summarily. The motions judge ruled largely in 782 Inc.’s favour. It concluded that Maple Leaf owed a duty of care to the franchisees on the basis of a previously recognized duty of care category, being that of supplying a product fit for human consumption. It also made findings regarding proximity between the parties and reasonable foreseeability of the harm suffered. The Court of Appeal allowed Maple Leaf’s appeal, having found that the circumstances of the cases relied upon by the motions judge for recognizing the existence of a duty of care were distinguishable from the facts before it. In conducting its own duty of care analysis, the Court of Appeal found that the scope of the duties arising under the relationship between the parties did not require Maple Leaf to take special care regarding 782 Inc.’s reputational interests. In so deciding, the Court of Appeal held that the duty to supply a product fit for human consumption — a duty ultimately aimed at protecting human health — is owed to the franchisees’ customers, and not to the franchisees’ themselves. From a policy perspective, the Court of Appeal determined that extending liability for reputational harm in the circumstances would deter manufacturers of products from recalling potentially defective products in a timely fashion.

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

38246

H.S.S v. S.H.D (B.C.)

Family law – Family assets

Prior to their marriage in 1989, the husband and wife signed a marriage agreement, the primary purpose of which was to protect the wife’s contingent interests in family trusts and her potential inheritance. It established that the parties would be separate as to property unless the property was acquired in joint names. The husband’s primary asset at the time was the small law firm he had started after finishing law school. Their first child was born in 1993 and when it became apparent the child had several serious health issues, the wife abandoned any plans of returning to her career. Their second child was born in 1996. The husband left the matrimonial home in 1999 and thereafter, the parties never resumed cohabitation. The husband paid all of the household expenses for the wife and children. The husband’s law practice became very successful. He was a high income earner and acquired significant assets. The husband commenced a family claim and January 2015 became the triggering date for the purposes of property division. He sought to enforce the terms of the marriage contract. The wife sought a reapportionment of assets and spousal and child support. The trial judge ordered a reapportionment of $1.7 million to be paid by the husband, time-limited spousal support and child support. The wife’s appeal was allowed and the issues of reapportionment and quantum and duration of spousal support were remitted to the trial court.

38125

David Schnarr v. Blue Mountain Resorts Limited - and between - Elizabeth Woodhouse v. Snow Valley Resorts (1987) aka Ski Snow Valley (Barrie), Snow Valley Barrie, Snow Valley Ski Resort, Snow Valley and 717350 Ontario Ltd. (Ont.)

Legislation – Interpretation – Conflict – Consumer Protection

The applicants commenced actions for alleged injuries they suffered in separate skiing accidents while at the respondent ski resorts. In each case, their season pass, lift ticket or equipment rental agreement included a waiver of liability as a condition of using the facilities. The cases proceeded under Rules 21 and 22 for pre-trial determinations of whether ss. 7 and 9 of the CPA vitiate or void an otherwise valid waiver of liability under s. 3 of the OLA in the context of an occupier who is also a “supplier” under the CPA. In 2017 ONSC 1142, the court held that the waiver must be read down under the doctrine of notional severance to exclude from its ambit claims that affect the substantive and procedural rights protected by the CPA, includingthe deemed warranty under s. 9(1). In 2017 ONSC 222, the court held that the waivers were presumptively void, subject to a court’s discretion under s. 93(2) of the CPA. The Court of Appeal allowed both appeals, holding that as the statutes were irreconcilable and in conflict, the more specific provisions of the OLA prevail over the general provisions of the CPA. The matters were remitted to the lower courts for determination on that basis.

38344

Linda Qu v. Statefarm Mutual Automobile Insurance Company and Landmark Vehicle Leasing Corporation - and between - Linda Qu v. Augusto Arana Echeverria and Landmark Vehicle Leasing Corporation (Ont.)

Civil procedure – Appeals – Motion to extend time to file appeal

When the trial judge ruled that Ms. Qu had not shown that she had suffered a serious and permanent impairment in the motor vehicle accidents at issue, Ms. Qu left the courtroom and did not return. The claims were dismissed as abandoned on June 20, 2016.

Ms. Qu filed a motion in the Court of Appeal. Duty counsel and an interpreter were provided to Ms. Qu. As Ms. Qu had not filed a notice of appeal and as the material filed did not disclose the motion’s purpose, Benotto J.A. treated the material filed as a motion to extend time. The motion was dismissed on December 21, 2016.

On June 29, 2017, Epstein J.A. dismissed Ms. Qu’s request for essentially the same relief based on absence of jurisdiction to review the December 21, 2016, order or to grant any of the other requested relief in the absence of any appeal relating to the parties before her.

38196

Don Harrison v. Afexa Life Sciences Inc. and Valeant Pharmaceuticals International Inc. (now known as Bausch Health Companies Inc.) (B.C.)

Civil procedure – Class actions – Certification

The applicant, Mr. Harrison, brought an action alleging that the respondents, Afexa Life Sciences Inc. and Valeant Pharmaceuticals International Inc., misrepresented their product, Cold-Fx, as being effective at providing short-term relief from a cold or flu. The applicant sought restitution for money spent on the product and sought to certify a class action. In the British Columbia Supreme Court, the chambers judge denied certification of the class action under s. 4 of the Class Proceedings Act, R.S.B.C. 1996, c. 50, as the applicant had not established: (1) that there was an identifiable class of two or more persons; (2) that the claims raised common issues; and (3) that the applicant was an appropriate representative. The Court of Appeal dismissed the applicant’s appeal. It found that the class as defined was overbroad and not sufficiently connected to the common issues in the claims. The applicant’s proposed amendment to the class definition at the Court of Appeal was found to still be overly broad and was not allowed.

38364

Aritho Sylven Amfoubalela v. Elena Alexeevna Udalaya (P.E.I.)

Family law – Support – In loco parentis

The applicant and the respondent mother met in Russia in 1998 and commenced a relationship. The mother had a child from a previous relationship. They subsequently moved to Canada and the relationship ended in 2013. The mother was awarded sole custody and child support. The applicant was found to stand in loco parentis of the child. The mother later determined that the applicant’s income was significantly higher and asked the applicant to correct the amounts but he refused and the matter moved to trial.

The Supreme Court of P.E.I. found the applicant to stand in loco parentis of the child based on Chartier v. Chartier, [1999] 1 S.C.R. 242. The court went on to determine child support amounts. On appeal, the Court of Appeal dismissed the ground of appeal concerning the loco parentis issue. It ordered s. 7 child support contributions.

38333

Mohamed Boima v. Her Majesty the Queen (B.C.)

Criminal law – Evidence – Admissibility

The complainant, A.W., a 14 year-old girl, accepted an invitation from a family friend, Ms. Akumu, to have some drinks in her apartment. Once A.W. was intoxicated, Ms. Akumu engaged in sexual activity with A.W. Afterwards, Mr. Boima came over to the apartment and engaged in sexual activity with A.W. Upon her arrest, Ms. Akumu provided a statement in which she admitted that she had engaged in sexual activity with A.W. Ms. Akumu also provided a statement that Mr. Boima had sexual activity with A.W. The Crown led this statement at trial. Neither Mr. Boima, nor Ms. Akumu testified or called any evidence at trial. After a trial by judge and jury, Mr. Boima was convicted of sexual interference and sexual assault. The appeal was dismissed by a unanimous Court of Appeal.

38240

Valve Elisabeth Aloe-Gunnell v. Lembit Peter Aloe, Alo Lumber and Building Supplies Limited, John Alo Developments Limited, Alo Construction Co. Limited and Tiiu Marie-Ann Aloe (Ont.)

Civil procedure – Whether case management judge remained seized of matter

This leave application involves three rulings that were appealed to the Court of Appeal, and disposed of in one judgment. One proceeding was to set aside paragraph 17 of a consent order relating to the estate of Valdeko Aloe, the father of the applicant and individual respondents. The second was the dismissal of a motion for leave to commence a new action against the respondents. The third motion was to have the motions judge recuse himself and to have proceedings transferred to Toronto.

38407

Branislava Stajduhar and Andreja Stajduhar v. Arlene Wolfe , executrix of the Estate of Jeffrey Kerzner (Ont.)

Wills and estates – Dependants’ relief

Mr. Kerzner died on December 31, 2016. He had a will and left his estate to his two adult children. When he died, he was in a romantic relationship with Ms. Branislava Stajduhar. Ms. Stajduhar and her daughter, Andreja, applied for dependant relief pursuant to s. 57 of the Succession Law Reform Act, which provides that a court can order adequate support to a deceased’s dependants where that has not been done. Dependants include the spouse and children of the deceased and, in either case, the dependant must also be a person to whom the deceased was providing support immediately before his death. A “child” includes “a person whom the deceased has demonstrated a settled intention to treat as a child of his or her family.” Ms. Stajduhar claimed she had been Mr. Kerzner’s dependant spouse of and that Andreja had been a child of Mr. Kerzner’s. The Superior Court held that Ms. Stajduhar and her daughter were not dependants of the deceased. Ms. Stajduhar did not establish any period of co-habitation with Mr. Kerzner. The relationship between Ms. Stajduhar and Mr. Kerzner was more consistent with a long-term dating relationship than with cohabitation. There was no corroborated evidence that Mr. Kerzner demonstrated a settled intention to treat Andreja as a member of his family. The Court of Appeal dismissed the appeal.