This week’s decisions from the Court of Appeal covered a broad range of topics, including defamation (the requirements for notice under the Libel and Slander Act), wrongful dismissal, expropriations, several contract interpretation cases, and a family law case, involving whether there was a true loan from a parent to their child.
Table of Contents
Keywords: Employment Law, Wrongful Dismissal, Workplace Harassment, Mental Illness, Jurisdiction, Real and Substantial Connection, Forum of Necessity
Keywords: Torts, Defamation, Libel and Slander, Libel and Slander Act, ss. 5(1), Notice of Libel, Civil Procedure, Determination of Question of Law, Leave to Appeal, Interlocutory Orders, Capacity, Unincorporated Trade Unions, Rules of Civil Procedure, Rules 21.01(1)(a), 62.02
Keywords: Municipal Law, Real Property, Expropriation, Expropriation Act, s. 41(1), Costs
Keywords: Contracts, Construction Law, Extras, Contractual Interpretation, Standard of Review, Questions of Law, Correctness, Sattva Capital Corp. v. Creston Moly Corp., Technicore Underground Inc. v. Toronto (City), Tercon Contractors Ltd. v. British Columbia
Keywords: Family Law, Loans, Mortgages, Non-Arm’s Length, Setting Aside, Fresh Evidence, Real Property Limitations Act, Promissory Estoppel
Keywords: Civil Procedure, Vexatious Litigants, Courts of Justice Act, s. 140, Adjournments, Outstanding Cost Orders
Keywords: Contracts, Intellectual Property, Copyright Infringement, Software, Estoppel, Limitation Periods, Contract Interpretation, Sattva Capital Corp. v. Creston Moly Corp., Standard of Review, Palpable and Overriding Error, Summary Judgment
For a list of Ontario Review Board Decisions, click here
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[LaForme, Pardu and Roberts JJ.A.]
Michael D. Marin and David Quayat, for the appellant
Jock C. Climie, for the respondent
Appellant sued Government of Nunavut for wrongful dismissal. The appellant claims that the alleged harassment by her employer caused her to develop severe mental illness. She filed a report from a psychological associate indicating that a return to Nunavut could trigger her symptoms in legal proceedings. The motion judge ruled the action to be heard in Nunavut. The appellant wants the cause of action to be heard in Ontario, and claims that is the appropriate forum giving her circumstances.
Did the motion judge err in failing to conclude that Ontario was a forum of necessity?
Holding: Appeal Dismissed
No. The Court found no error in the motion judge’s decision. The evidence of the psychological associate was that there was a risk of traumatic activation, that it was not advisable for the appellant to return to Iqaluit, and that it would be “especially challenging” for the appellant to return to Iqaluit for a legal proceeding. She did not say the appellant could not return. The court also said that should the appellant make the case by admissible evidence on a motion before a Nunavut court her condition requires her to give evidence from a remote location, the appellant’s request could be accommodated.
[LaForme, Pardu and Roberts JJ.A.]
David Migicovsky and Karin M. Pagé, for the appellant
Tycho Manson, for the respondents Quebecor Media Inc., Sun Media Corporation, TVA Group Inc., and Jerry Agar
Stephen Cavanagh, for the respondent Avi Benlolo
The motions judge had dismissed the appellant’s action following the respondents’ Rule 21 motion. Specifically, the motions judge held that the appellant’s notices did not comply with the requirements of ss. 5(1) of Ontario’s Libel and Slander Act. While they identified the matters complained of by the appellant, the notices did not sufficiently specify them.
On appeal, the parties agreed that the standard of review of a motion judge’s order pursuant to Rule 21.01(1)(a) of the Rules of Civil Procedure is correctness, as these orders determine questions of law. The appellant submitted that the motions judge erred in holding that its ss. 5(1) notices were deficient.
Issues: Did the motions judge err in holding that the appellant’s ss. 5(1) notices were deficient?
Holding: Appeal Allowed.
Yes. The Court in Grossman v. CFTO-TV Ltd. established that ss. 5(1) notices under the Libel and Slander Act do not have to be in a specific form, while the Court in World Sikh Organization of Canada v. CBC/Radio Canada held that it is not necessary for these notices to contain the same level of particularity as required in a statement of claim. Instead, they need to be sufficiently specified so that the notice reveals the essence of the matter complained of by the plaintiff and concomitantly gives the defendant the opportunity to analyze and assess the allegations.
The Court held that the appellant’s notices achieved these objectives: the broadcast and article in issue were short and could not reasonably cause confusion. Moreover, they clearly specified the matters complained of and even reproduced actual portions of the allegedly defamatory words.
The respondent Benlolo argued that the notice was invalidated by the inclusion of a retraction notice and draft apology because he could not bring about the retraction as he had no control over the media defendants. The Court rejected this argument and reasoned that the LSA requires only that notice of the matter complained of be given and that there is no requirement that the plaintiff suggest a possible resolution or that the defendant accept any proposal from the plaintiff.
The other respondents’ argument that the appellant failed to include the additional allegations pleaded in the statement of claim about the form and placement of the article was similarly rejected. Instead, the Court found that the notice specified the matter complained of and met the requirements of the LSA.
Benlolo’s argument that the plaintiff unincorporated trade union had no capacity to bring a suit in defamation was not decided either by the motions judge or by the Court of Appeal, as it was the subject of Benlolo’s cross-appeal, which he did not pursue and for which leave was required to the Divisional Court pursuant to Rule 62.02(1) of the Rules of Civil Procedure. That issue is better left to be decided by the trial judge.
[Feldman, Lauwers and Benotto JJ.A.]
Frank Sperduti and Christel Higgs, for the appellant
Paul R. Henry, for the respondent
The School Board operated a secondary school on a property (the “Property”) for 33 years until declining enrolment led it to close the school and to sell the Property to the appellant. The appellant intended to redevelop the old school building as a seniors centre. The School Board then changed its mind and decided to close other secondary schools in the area and build a centrally located school on the Property it had sold to the appellant. When the appellant would not sell the Property to the School Board at what it viewed as a fair price, the School Board expropriated the Property from the appellant.
The School Board subsequently authorized its staff to implement a land swap with the City whereby a large portion of the Property would be exchanged for City lands adjoining the Property in a joint development plan to build a school with accessibility to ancillary facilities. However, the swap had not been executed, only approved. The appellant asserted that the School Board’s actions triggered ss. 41(1) of the Expropriations Act, and the School Board was required to offer to re-convey the Property to it.
The application judge accepted the School Board’s submission that it is essential and fundamental to the creation of shared services that “related amenities” be interpreted broadly enough to include the development of the Property to be completed by the City rather than the School Board. The application judge also accepted the submission that s. 41 was not triggered because the Property had not been found to be no longer required for the School Board’s purposes, which include a pool and recreational facility. Lastly, the application judge did not find that the School Board was obligated to offer the Property back to the appellant, and that the School Board had met its obligations under the Education Act.
(1) Are the appellant’s rights under s. 41 of the Expropriations Act engaged on the facts, and if so, what are the consequences?
2) Is the School Board required to offer the Property back to the appellant under s. 41 of the Actdespite its resolution not to do so under s. 42 of the Act?
3) Did the application judge err in his award of costs to the School Board?
Holding: Appeal dismissed, costs appeal allowed.
(1) No. The School Board’s actions did not trigger the offer-back obligation in ss. 41(1) of theExpropriations Act. There was no merit in the appellant’s argument that the School Board’s expropriation was actually done for the benefit of the City and its purposes.
The court found it must take a purposive approach to the interpretation of the Act, not a “strict construction” approach. While the court agreed that the School Board was not permitted to change the purpose for the expropriation, it found the School Board did not do this, nor did it act as an agent for the City in expropriating the Property. The court found it was not its function, nor that of the Expropriations Act, to micromanage the School Board’s actual use of the Property, so long as it is used as part of a school site or related amenities owned by the School Board.
Further, since the Board had not finally decided to swap lands with the City or permit the construction of a City-owned facility on the Property, the question of the proper application of s. 41 of the Expropriations Act was premature for the court to decide.
(2) The court declined to rule definitively on the relationship between sections 41 and 42 of theExpropriations Act in light of its disposition of the first issue. It found this issue should await to be decided in a situation in which it is directly engaged on the facts.
(3) The court saw no reason to extend the principle of full compensation for the costs of collateral civil litigation that expropriated owners may bring to challenge the legality of the expropriation. Although this was a novel issue, the court found the lack of litigation around the meaning of s. 41 of the Expropriations Act over the years suggested no burning public interest to have the legislation clarified. Also, the court did not find the appellant’s position to be particularly reasonable. It pursued its own interest with knowledge of the risks, but the court saw no reason why costs should not follow the event as in the normal course.
However, on the appellant’s second costs submission, the court agreed that the application judge erred in awarding the School Board costs in the amount of the partial indemnity costs sought by the appellant, as opposed to the amount of substantial indemnity costs sought by the School Board. This effectively awarded the School Board twice the costs it was seeking on the application. The court reduced the School Board’s award of costs for the application and fixed the costs of the appeal.
[Gillese, Epstein and Roberts JJ.A.]
Jacqueline Dais-Visca, for the appellant
Jeffrey A. Armel and Daniel T. Resnick, for the respondent
The respondent, Ross-Clair, entered into a contract (the “Contract”) with Public Works and Government Services Canada (“PWC”). Under the Contract, Ross-Clair agreed to build management offices at the Millhaven Institution (the “Project”).
The Contract contained a detailed procedure under which Ross-Clair could claim additional compensation for changes in soil conditions, PWC’s neglect or delay (the “Extras”). These provisions can be considered as a “Code” that governed the rights and obligations relating to a claim for Extras. General Condition (“GC”) 35.4 was central to this Code and enabled Ross-Clair to submit a claim, in writing, for Extras to the Project Engineer. The claim had to have sufficient information to allow the Engineer to determine whether it was justified. The decision was final and binding, subject only to the dispute resolution conditions found in the Contract (the “DRC”). Under the DRC, Ross-Clair had 15 working days to provide the Engineer with written notice of its dispute. The delivery of this notice would then begin a process that allowed the parties to proceed to binding arbitration.
Ross-Clair advanced a claim for $2,204,676 in Extras (the “Claim”). PWC responded that Ross-Clair had not provided a description of the facts and circumstances giving rise to the Claim sufficient to enable the Engineer to determine whether it was justified. In response, Ross-Clair brought an application under Rule 14.05(3)(d) of the Rules of Civil Procedure for an order requiring PWC to direct the Engineer to consider the Claim and issue a written decision. Once a decision was made, the parties could move on to binding arbitration if necessary.
PWC appealed the application judge’s decision that Ross-Clair’s claim for $1,437,976 of the $2,204,676 requested met the contractual requirements relevant to advancing a claim for Extras and directed the Engineer to make a decision as to whether the $1,437,976 Claim was justified.
(1) What is the standard of review? (2) Did the $1,437,976 portion of the Claim meet the requirements of GC 35.4?
Holding: Appeal allowed.
(1) The decision is reviewable on a standard of correctness. PWC admitted that the Contract was unlike a typical standard form contract in that the parties had to agree on an array of clauses. However, these individual clauses were standard in form and were used in all such contracts with the federal government. GC 35.4 had been raised in prior case law and its interpretation would have precedential value. These factors supported the standard of correctness. As well, PWC argued that the application judge committed an extricable error of law by interpreting GC 35.4 without regard to other relevant provisions in the Contract.
The Court disagreed with Ross-Clair’s argument that because the Contract allowed for some degree of negotiation, the deferential standard of review confirmed by the Supreme Court inSattva Capital Corp. v. Creston Moly Corp applies. Although it may be appropriate to regard the Contract as a standard form agreement, the interpretation of which is subject to review on a correctness standard, there was very little evidence of the circumstances surrounding the formation of the contract and what aspects may have been negotiated.
The Court agreed with PWC that when interpreting the Contract, the application judge erred by failing to construe the Contract as a whole. The Supreme Court found in Tercon Contractors Ltd. v. British Columbia (Transportation and Highways) and again in Sattva, that a fundamental principle of contractual interpretation is that the contract must be construed as a whole. In order to properly interpret GC 35.4, the other provisions of the Contract, and specifically those in the Code relating to the claiming of Extras had to be considered.
The application judge recognized his interpretive task as having to determine whether GC 35.4 required “notice of the claim or proof of it”. He stated that, unlike the agreement in Technicore Underground Inc. v. Toronto (City), 2012 ONCA 597, the Contract did not contain the phrase “detailed claim” or list specific requirements for the contents of a claim for Extras. On this basis, he concluded that more information than what was contained in Ross-Clair’s letters was not required under GC 35.4.
To fulfill their role in the context of the Code, the Engineer requires highly specific information. It was apparent that the application judge in interpreting the information required by GC 35.4 did not take into account the context of the rest of the Contract and, in particular, the Code. This constitutes an extricable error of law.
(2) No. The application judge erred in determining that the $1,437,976 portion of the Claim met the requirements of GC 35.4. The requirement that a contractor submit a claim in writing sufficient to enable the Engineer to determine whether the claim is justified cannot be interpreted in a manner other than that it must be supported by detailed information. The Engineer could not make a decision as to the validity of a claim in the absence of such detailed information. More information was required even with the application judge’s finding that the Engineer was intimately familiar with the Project. The Additional Costs Summary included with one of Ross-Clair’s letters provided very little information of the amounts attributed to various sub-contractors and no breakdown identifying things like the costs of labour, plant, and material or the amount of the percentage mark-up.
The letters relating to Ross-Clair’s Claim were inconsistent and confusing in terms of the location where the extra work was said to be required. The fact that the Engineer and PWC repeatedly asked Ross-Clair to provide more information further supported the Court’s conclusion that the $1,437,976 Claim did not meet the requirements of GC 35.4.
[Strathy C.J.O., Lauwers and Benotto JJ.A]
James A. Brown, for the appellant
Paul D. Amey, for the respondent
The appellant loaned her son nearly $40,000. The loan was secured by a mortgage on the son’s home. Years later, the son’s former spouse, the respondent, sought to sell the home to satisfy an equalization payment owing from the divorce.
She sought a declaration that the mortgage in favour of the appellant was not binding on her and was not an encumbrance on the property. The application judge held that the mortgage was not an encumbrance or charge on the property and that any claim by the appellant on the mortgage was statute-barred. The appellant appeals this decision.
Issues: Did the application judge err in his decision?
Holding: Appeal Dismissed
No. The appellant sought to rely on fresh evidence to establish acknowledgment of the debt within the limitation period. The fresh evidence consisted of mortgage statements signed by the appellant and further receipts.
The court held that the fresh evidence did not meet the test for admissibility outlined in R. v. Palmer. Firstly, the evidence could have been adduced at trial and secondly, the documents did not satisfy the criteria in s. 23(1) of the Real Property Limitations Act.
The appellant also argued that the application judge erred in not applying the doctrine of promissory estoppel. The appellant submits that he agreed to postpone his son’s obligation to pay the debt if his son helped him on his farm. The application judge rejected this submission because the evidence did not establish that there was a promise intended to affect the relationship and a corresponding reliance on the promise. The court agreed with the application judge’s reasoning.
[LaForme, Pardu and Roberts JJ.A.]
Gary M. Caplan and Justin W. Anisman, for the appellant
David J. Levy, for the respondent, Howie, Sacks and Henry LLP.
Alfred M. Kwinter and Veronica S. Marson, for the respondent, Singer Kwinter
Facts: Mr. Chen was involved in a motor vehicle accident in 2001. After first retaining at least two other law firms, in 2005 Mr. Chen retained the respondent, Howie, Sacks to handle both the accident benefits and tort claims. Howie, Sacks were counsel in 2007 when a settlement was achieved in the benefits claim. In late 2007 Mr. Chen switched counsel, retaining another law firm to represent him in the tort claim, and next retained the respondent, Singer Kwinter in 2010. Singer Kwinter were counsel in 2011, when Mr. Chen’s tort claim was settled. Following the settlement of his tort claim, Mr. Chen began various proceedings against some of his previous lawyers including the respondents regarding how his accident claims were handled. To date, none of these proceedings have resulted in any adverse findings against his former lawyers. In 2015, an application brought by the respondent law firms to have Mr. Chen declared a vexatious litigant was heard. Mr. Chen did not file any responding material and was not present or represented by counsel on this occasion. Rather, he had an acquaintance attend on the application to deliver an envelope requesting an adjournment due to illness. The application judge declined Mr. Chen’s request for an adjournment, the application was granted, and Mr. Chen was declared a vexatious litigant. He appeals that order.
(1) Was Mr. Chen treated unfairly by the court when his adjournment was denied and the application proceeded in his absence?
(2) Did the application judge fail to consider certain factors in applying the test of what constitutes a vexatious litigant under s. 140 of the Courts of Justice Act?
Holding: Appeal dismissed.
(1) No. The application judge properly exercised his discretion in denying the adjournment. He was presented with documents from Mr. Chen’s associate that Mr. Chen could not attend the application because he was too ill. This included emails Mr. Chen sent to counsel advising he was sick, and a prescription for medications. After reviewing the material provided by the associate, the application judge denied the adjournment. None of the material submitted stated that Mr. Chen was ill on the actual hearing date or that he was physically unable to attend the hearing. Mr. Chen is no stranger to court process and procedure and the necessity of placing before the court a proper record for the relief being sought. Further, at the time of the application there were outstanding cost orders totaling $17,769.50 which Mr. Chen had not paid. Moreover, a period of adjournment would have allowed Mr. Chen to continue his other upcoming proceedings and driven up the costs of the litigation against the respondents even further, with little to no hope of them ever being able to recover costs against Mr. Chen.
(2) No. The application judge applied the correct law under section 140 of the Courts of Justice Act in deciding whether to declare Mr. Chen a vexatious litigant. He was aware of the purpose of this legislative provision as well as its limitations and the test to be applied when deciding its application. He was satisfied that Mr. Chen had become a “vexatious litigant” particularly with regard to his pursuit of both applicant law firms including the members, associates and employees in those law firms. He was particularly persuaded by his failure to pay the legal costs awarded against him, which showed a particular lack of respect or regard for the Court and the administration of justice.
[Gillese, van Rensburg and Miller JJ.A.]
Matthew P. Gottlieb, Daniel A. Schwartz and Laura M. Wagner, for the appellants
Daniel S. Murdoch, Patrick G. Duffy and Sean E. Gibson, for the respondent
Xenos’ interest in the litigation – its copyright in software referred to as “d2e Software” (“Software”) – was transferred to the appellant Actuate Corporation (together “Xenos”). Xenos and Actuate sued licensee Symcor for breach of contract and copyright infringement of the Software. The software was licensed to Symcor in 2001 pursuant to a Licence, Services and Support Agreement (the “LSSA”). Xenos in 2012 asserted that Symcor violated the LSSA in three ways. Symcor admitted to two of Xenos’ assertions, but claimed that the LSSA did not restrict these activities. Symcor also raised estoppel and limitation period defences and argued that Xenos consented to Symcor’s activities.
Xenos moved for summary judgment on the liability issues and sought an order directing a reference or trial on damages. The motion judge granted this request in part. Specifically, he rejected Xenos’s argument that Symcor had breached the LSSA and concluded that the parties’ agreement did not restrict Symcor’s use to one server per licence. He also concluded, however, that Symcor had breached the licence agreement by using the Software on operating systems other than AIX and with database systems other than CMOD. These were breaches of contract and constituted copyright infringement. Moreover, the motion judge rejected Symcor’s defence of estoppel and directed that the limitation period defence proceed as a part of the trial on damages.
Xenos appealed on the basis that the motion judge erred in concluding that the LSSA permitted Symcor to use the Software on more than one server per licence, sought leave to appeal the costs order and argued that the payment of its costs from the summary judgment motion should not await the disposition of the damages trial. Symcor cross-appealed, contending that the motion judge erred in concluding that the LSSA restricted its use of the Software to AIX operating systems and that the motion judge erred in dismissing its estoppel defence. Symcor did not appeal the summary judgment with respect to its use of the Software with database systems other than CMOD.
1) Did the motion judge err in interpreting the LSSA as not restricting Symcor’s use of the Software to one server per licence?
2) Did the motion judge err in interpreting the LSSA as restricting Symcor’s use of the Software to the AIX operating system?
3) Did the motion judge err in rejecting Symcor’s estoppel defence and not referring this issue to trial with the limitation period and damages issues?
4) Did the motion judge err in declining to award Xenos its costs of the completed liability phase of the action and in deferring the award of costs of the motion until after the damages trial?
5) Did the motion judge err in fixing costs in favour of Xenos without regard to the divided success on the motion?
Holding: Appeal dismissed; Cross-Appeal Allowed in Part.
1) No. The motion judge’s decision interpreting the contract was entitled to deference. Xenos sought to characterize the motion judge’s interpretation as containing extricable errors in principle and palpable and overriding errors of fact, while Symcor contended that the motion judge’s interpretation should be subject to a standard of review of palpable and overriding error. The Court found that there was no error in principle and any error of fact did not materially inform the motion judge’s decision regarding the scope of and restrictions to Symcor’s licences.
2) No. The motion judge considered the broad terms of the LSSA, which contained no restriction on locations from which, or clients for whom, Symcor could use the Software. He noted that the Product Schedules did not speak to the servers, save for a reference in Product Schedule No. 2. He also found Xenos’s argument that the Product Schedules refer to one production licence and two non-production licences was not supported by the evidence. Xenos’ argument that the motion judge’s interpretation contained reviewable errors and palpable and overriding errors of fact was unpersuasive.
3) Yes. The motion judge declined to dismiss Xenos’ motion for summary judgment on the basis of the estoppel defence and ordered the limitation defence to proceed as part of the damages trial. Symcor asserted that (1) the motion judge made a palpable and overriding error in stating that there was no evidence that anyone at Xenos with knowledge, responsibility or authority over licensing matters knew of the breaches before 2011 and (2) that it was illogical for the motion judge to dismiss the estoppel defence while allowing the limitation defence. The Court accepted these arguments, finding that there was evidence in the record of communications within Xenos that included the responsible account managers in 2005 and 2007, where it was apparent that Symcor was using the Software on Windows. The motion judge’s rejection of the estoppel defence was heavily reliant on the finding that there was no evidence as discussed above, and thus his decision concerning the estoppel defence was a palpable and overriding error.
4) No. There was no error and the motion judge’s approach here was sensible. The motion judge exercised his discretion in making his order but left the determination of whether Xenos should be awarded its costs to the trial judge. This order permitted the necessary flexibility in the event that Xenos was eventually awarded lesser damages than provided for in Symcor’s outstanding offer.
5) Yes. The Court did not interfere with the motion judge’s assessment that Xenos was substantially successful on the motion and was thus entitled to its costs, subject to the outcome of the trial. However, while the Court did not give effect to either side’s argument with respect to the motion judge’s disposition of costs of the summary judgment motion, it set aside the costs order in light of Symcor’s partial success on its cross-appeal.
[Feldman, Gillese and Huscroft JJ.A.]
Counsel: Meaghan McMahon, for James Shipman Rochelle Direnfeld, for the Attorney General Michelle O’Bonsawin, for the Royal Ottawa Health Care Group
Keywords: Review Board, Status Report, Absolute Discharge, Public Safety, Supervised Community Care
[La juge en chef adjointe Hoy et les juges Pardu et Roberts]
Counsel : Yves Jubinville, pour l’appelant Philippe Cowle, pour l’intimée
Keywords: Criminal Law, Sexual Assault, Witness Testimony, Credibility, Child Testimony
[Feldman, Gillese and Huscroft JJ.A.]
Counsel: Benjamin Goldman, for the appellant Shawn Porter, for the respondent
Keywords: Criminal Law, Functus Officio, Fresh Evidence
[Doherty, Simmons and van Rensburg JJ.A.]
Counsel: Paul Calarco, for the appellant Jessica Smithjoy, for the respondent
Keywords: Criminal Law, Sentencing, Demonstrably Unfit
[Feldman, Gillese and Huscroft JJ.A.]
Counsel: Michael Fawcett, for the appellant Adam Little, for the respondent
Keywords: Criminal Law, Right to Counsel, Charter, Section 10(b)
[Doherty, Simmons and van Rensburg JJ.A.]
Counsel: Peter Copeland, for the appellant Jessica Smith Joy, for the respondent
Keywords: Criminal Law, Firearms, Sentencing
[Doherty, Simmons and van Rensburg JJ.A.]
Counsel: John Hale, for the appellant Michael Fawcett, for the respondent
Keywords: Criminal Law, Sexual Assault, Fair Trial, Ineffective Counsel
[Doherty, Simmons and van Rensburg JJ.A.]
Counsel: Laurence Cohen, for the appellant Nancy Dennison, for the respondent
Keywords: Immigration Law, Judicial Review, Extradition, Extradition Act, Section 57, Disclosure,Cotroni Assessment