Good day,

Following are this week’s summaries of the Court of Appeal for Ontario.

The Court released two decisions concerning the fight over the proposed destruction and redevelopment of Glen Abbey Golf Club. In 2018, the Town voted unanimously to reject Clublink’s demolition application for planning and heritage reasons. Clublink attempted to appeal the decision to the Local Planning Appeal Tribunal (LPAT), but the Town argued that it could not because the Town had designated the property as a heritage site. Clublink then obtained a decision from the Superior Court of Justice that it had a right to take its demolition application to LPAT. The Town appealed. In Oakville (Town) v Clublink, the Court ruled that the golf course is a “structure” pursuant to s. 34(1) of the Ontario Heritage Act, meaning that Clublink can appeal its rejected demolition permit to LPAT and the Town is bound by LPAT’s decision. The Town unsuccessfully argued that s. 33 of the OHA applies instead of s. 34, requiring the Conservation Review Board to hold a hearing and produce a report as to whether or not the application should be approved, and the Board’s report is not binding on the Town.

In the second decision, Clublink Corporation ULC v. Oakville (Town), the Town appealed from the lower court’s decision quashing 5 municipal by-laws passed to protect the golf course from being repurposed, and a conservation plan requiring Town consent for any changes to the course that affects its heritage attributes. The Court upheld the jurisdiction of the Town to pass the by-laws, but agreed with the lower court’s decision that the conservation plan was void as the Town lacked jurisdiction to make it.

Other topics covered this week included assessing damages for past income loss and prejudgment interest in a sexual abuse case and the legal test for Crown wardship on a summary judgment motion.

Hope everyone is having an enjoyable weekend.

Table of Contents

Civil Decisions

Bernard Property Maintenance v Taylor, 2019 ONCA 830

Keywords: Civil Procedure, Landlord and Tenant Board, Discrimination, Courts of Justice Act, RSO 1990, c C43, s 6(1), s 21(5), s 134(4), Rules of Civil Procedure, Rule 21.01(3)(d), Rule 61.13(1) and (3), Canadian Charter of Rights and Freedoms, Ontario Human Rights Code, RSO 1990, c H19, Overseas Missionary Fellowship v 578369 Ontario Ltd. (1990),73 OR (2d) 73, Alliance to Protect Prince Edward County v Ontario (Environment and Climate Change), 2018 ONCA 576, Coote v Ontario (Human Rights Commission), 2010 ONCA 580, PM v MA, 2017 ONCA 6

Clublink Corporation ULC v. Oakville (Town), 2019 ONCA 827

Keywords: Municipal By-Laws, Conservation Plans, Bad Faith, Ontario Heritage Act, R.S.O. 1990, c. O.18, Municipal Act, 2001, S.O. 2001, c. 25, Equity Waste Management of Canada v. Halton Hills (Town) (1997), 35 O.R. (3d) 321 (C.A.), Toronto Taxi Alliance Inc. v. City of Toronto, 2015 ONSC 685, Ontario Restaurant Hotel & Motel Assn. v. Toronto (City) (2005), 232169 Ontario Inc. (Farouz Sheesha Café) v. Toronto (City), 2017 ONCA 484

Oakville (Town) v. Clublink Corporation ULC, 2019 ONCA 826

Keywords: Statutory Interpretation, Private Property Rights, Ontario Heritage Act, RSO 1990, c O 18 ss. 33 and 34, Planning Act, RSO 1990, c P 13, More Homes, More Choice Act, SO 2019, c 9, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27, Canadian National Railways Co. v Canada (Attorney General), 2014 SCC 40, Pharmascience Inc. v Binet, 2006 SCC 48, MacLean v British Columbia (Securities Commission), 2013 SCC 67, Belwood Lake Cottagers Association Inc. v Ontario (Environment and Climate Change), 2019 ONCA 70, St. Peter’s Evangelical Lutheran Church v Ottawa, [1982] 2 SCR 616, Algonquin Power (Long Sault) Partnership v. Chubb Insurance Co of Canada, 50 CCLI (3d) 107, R v Bedard (1976), 31 CCC (2d) 559, Cardiff Rating Authority and Cardiff Assessment Committee v. Guest Keen Baldwin’s Iron and Steel Co. Ltd., [1949] 1 KB 385

Benson v. Belair Insurance Company Inc. , 2019 ONCA 840

Keywords: Insurance, Contract Interpretation, Standard of Review, Insurance Act, RSO 1990, c I8, Off-Road Vehicles Act, RSO 1990, c O4, Statutory Accident Benefits Schedule–Effective September 1, 2010, O Reg 34/10, Statutory Accident Benefits Schedule –Accidents on or after November 1, 1996, O Reg 403/96, McLean v. British Columbia (Securities Commission), 2013 SCC 67

Donovan v. Waterloo Regional Police Services Board , 2019 ONCA 845

Keywords: Determination of an Issue Before Trial, Absolute Privilege, Self-Represented Litigant, Fleming v. Massey, 2016 ONCA 70, Amato v. Welsh, 2013 ONCA 258, Odhavji Estate v. Woodhouse, 2003 SCC 69, Rules of Civil Procedure, Workplace Safety and Insurance Act, 1997, SO 1997, c. 16, Sched. A

L.M. v. Peel Children’s Aid Society (Publication Ban) , 2019 ONCA 841

Keywords: Family Law, Summary Judgment, Custody, Access, Child Protection, Crown Wardship, Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Child and Family Services Act, R.S.O. 1990, c. C.11, Courts of Justice Act, R.S.O. 1990, c. C.43, s 134, Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, Hryniak v. Mauldin, 2014 SCC 7, New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46, Dakota Ojibway Child and Family Services v. MBH, 2019 MBCA 91, R. v. Find, 2001 SCC 32, R. v. Spence, 2005 SCC 71, Children’s Aid Society of Toronto v. P.M., 2015 ONCA 695, Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), [1994] 2 S.C.R. 165

La Rose Bakery 2000 Inc. v. Intact Insurance Company , 2019 ONCA 850

Keywords: Insurance Law, Coverage, Exclusions, Civil Procedure, Appeals, Summary Judgment, Butera v. Chown, Cairns LLP, 2017 ONCA 783

MacLeod v. Marshall , 2019 ONCA 842

Keywords: Quantum of Damages, Jury Charges. Prejudgment Interest, Athey v Leonati, [1996] 3 SCR 458, Andrews v Grand & Toy Alberta Ltd., [1978] 2 SCR 229, Whiten v Pilot Insurance Co., [2002] 1 SCR 595, Courts of Justice Act, R.S.O. 1990, c. C.43, Insurance Act, RSO 1990, c.I.8, s. 258.3(8.1)

Wright v. Strauss , 2019 ONCA 844

Keywords: Trust, Jurisdiction, Oppression, Business Corporations Act, RSO 1990, Courts of Justice Act, RSO 1990 c C 43 ss 6(2), 13 and 18, Rules of Civil Procedure, RSO 1990, Reg 194, Ontario Securities Commission v McLaughlin, 2009 ONCA 280, Tomec v Economical Mutual Insurance Company, 2019 ONCA 839

Short Civil Decisions

Karges v. Karges, 2019 ONCA 833

Keywords: Family Law, Divorce, Support Order

Asghar v. Toronto Police Services Board, 2019 ONCA 837

Keywords: Civil Procedure, Motion to Vary

Arrocha v. Harrison, 2019 ONCA 838

Keywords: Civil Procedure, Family Law, Appeal Book Endorsement

Pichelli v. Adair Barristers LLP, 2019 ONCA 843

Keywords: Civil Procedure, Real Estate, Interest in Property, Mortgage, Land Titles Act, R.S.O. c. L.5, s.62(2), Di Michele v. Di. Michele, 2014 ONCA 261

Fung v. Decca Homes Limited, 2019 ONCA 848

Keywords: Civil Procedure, Construction, Application for Payment, Parole Evidence Rule, Hawrish v. Bank of Montreal, [1969] S.C.R. 515

Criminal Decisions

R. v. B., 2019 ONCA 828

Keywords: Criminal Law, Evidence, MLAT Request, Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 6(1), Criminal Code, ss. 463 and 465, Mutual Legal Assistance in Criminal Matters Act, R.S.C., 1985, c. 30 (4th Supp.), s. 36(1), Charter of Rights and Freedoms, s. 7 and 11(d)

R. v. R.V. (Publication Ban), 2019 ONCA 834

Keywords: Criminal Law, Sentencing, Sexual Interference, Sexual Assault, Criminal Code, s. 718.01

R. v. R.S. (Publication Ban), 2019 ONCA 832

Keywords: Criminal Law, Youth Offender, Manslaughter, Aggravated Assault, Careless Use of a Firearm, Self-Defence, R v Bengy, 2015 ONCA 397, R v Pétel, [1994] 1 SCR 3, R v RP, 2012 SCC 22, R v Pittiman, 2006 SCC 9, Criminal Code, R.S.C. 1985, C-46, s. 34(2), s. 686(2)

R. v. M. (Publication Ban), 2019 ONCA 836

Keywords: Criminal Law, Sexual Assault, R v Forrester, 2019 ONCA 255

Ontario Review Board Decisions

M. (Re), 2019 ONCA 835

Keywords: Ontario Review Board, Significant Risk, Risk of Relapse, Risk of Reoffending, Risk to Public Safety, Abdulle (Re), 2019 ONCA 812, Mental Health Act, R.S.O. 1990, C.M.7

E. (Re), 2019 ONCA 847

Keywords: Ontario Review Board, Not Criminally Responsible, Detention Order, Criminal Code, s. 672.54, Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, Mental Health Act, R.S.O. 1990, c. M.7

CIVIL DECISIONS

Bernard Property Maintenance v Taylor, 2019 ONCA 830

[Juriansz, Benotto and Miller JJ.A.]

Counsel:

P.T., acting in person

D.S. Strashin, for the respondent

Keywords: Civil Procedure, Landlord and Tenant Board, Discrimination, Courts of Justice Act, RSO 1990, c C43, s 6(1), s 21(5), s 134(4), Rules of Civil Procedure, Rule 21.01(3)(d), Rule 61.13(1) and (3), Canadian Charter of Rights and Freedoms, Ontario Human Rights Code, RSO 1990, c H19, Overseas Missionary Fellowship v 578369 Ontario Ltd. (1990),73 OR (2d) 73, Alliance to Protect Prince Edward County v Ontario (Environment and Climate Change), 2018 ONCA 576, Coote v Ontario (Human Rights Commission), 2010 ONCA 580, PM v MA, 2017 ONCA 6

facts:

The appellant, T, is a tenant in a property managed by the respondent landlord. On June 7, 2017, the landlord commenced applications before the Landlord and Tenant Board (the “Board”) to end Mr. T’s tenancy, evict him, and collect unpaid rent. On June 12, 2017, the Board gave notice that the applications would be heard on July 17, 2017. Mr. T did not attend on that day and the Board granted the applications and made an eviction order.

Mr. T sought a reconsideration on the grounds that the Board failed to accommodate his disabilities by not granting an adjournment on July 17, 2017. The Board denied Mr. T’s request and he appealed to the Divisional Court on July 27, 2017.

The landlord brought two unsuccessful motions to dismiss Mr. T’s appeal for delay. The first motion was not filed and served properly and the second motion was dismissed on terms that Mr. T pay rent and take steps to perfect his appeal. Price J., sitting as a single judge of the Divisional Court, granted the third motion on July 16, 2018 and made an order that dismissed Mr. T’s appeal for delay due to his failure to perfect the appeal, pursuant to Rule 61.13(1) and (3) of the Rules of Civil Procedure and that it was devoid of merit, frivolous and/or vexatious pursuant to Rule 21.01(3)(d).

Mr. T then improperly filed appeal proceedings in the Court of Appeal. Section 21(5) of the CJA directs that an appeal from a decision of a single judge of the Divisional Court needs to be heard by a panel of the Divisional Court and not the Court of Appeal. However, the Court of Appeal heard the appeal as if it had reconstituted itself as a Divisional Court to hear a motion brought under s. 21(5).

issues:

(1) Did the motion judge lack jurisdiction to dismiss the appeal?

(2) Did the motion judge err at law in finding that there was no merit to the appellant’s claim of the Board’s failure to accommodate his disabilities, contrary to the Charter and the Ontario Human Rights Code?

holding:

Appeal dismissed.

reasoning:

(1) No. The motion judge had jurisdiction to quash the appeal as devoid of any merit and his order is not rendered a nullity simply because he did not cite s. 134(4) of the CJA. Mr T was put on notice that the appellant was applying for an order dismissing his appeal because it had no merit and the issue was fully argued before the motion judge.

(2) No. The Court held that Mr. T failed to satisfy the burden that the motion judge made an error of law. The motion judge’s decision dismissing Mr. T’s appeal for lack of merit is amply supported by the record. The motion judge could only interfere if the Board’s refusal to grant an adjournment was an unreasonable exercise of the Board’s discretion. The Board’s decision not to grant an adjournment was reasonable based on Mr. T’s decision to call a general tribunal hotline the morning of the hearing instead of following the proper procedure to have a hearing adjourned and re-scheduled due to disability. Furthermore, Mr. T had requested similar adjournments in the past and the Board concluded that he was abusing the procedure for the purpose of delay. There was nothing in the record to support Mr. T’s claim of discrimination, including the hotline phone call that lacked any mention of disability.

Clublink Corporation ULC v. Oakville (Town), 2019 ONCA 827

[Doherty, Nordheimer and Harvison Young JJ.A.]

Counsel:

Thomas Curry, Jessica Starck, Derek Knoke and Rodney Northey, for the appellant

Earl A. Cherniak, Q.C., Cynthia Kuehl, Mark Flowers and Lindsay Woods, for the respondents

Keywords: Municipal By-Laws, Conservation Plans, Bad Faith, Ontario Heritage Act, R.S.O. 1990, c. O.18, Municipal Act, 2001, S.O. 2001, c. 25, Equity Waste Management of Canada v. Halton Hills (Town) (1997), 35 O.R. (3d) 321 (C.A.), Toronto Taxi Alliance Inc. v. City of Toronto, 2015 ONSC 685, Ontario Restaurant Hotel & Motel Assn. v. Toronto (City) (2005), 232169 Ontario Inc. (Farouz Sheesha Café) v. Toronto (City), 2017 ONCA 484

facts:

In January 2014, the Town of Oakville adopted a three-stage strategy to conserve significant cultural heritage landscapes across the Town. A cultural heritage landscape “refers to the recognizable imprint of human settlement and activities on land over time”. It is not a concept found in the Ontario Heritage Act, R.S.O. 1990, c. O.18 ( the “OHA”), but, rather, is derived from the Provincial Planning Policy Statement, municipal by-laws and other planning instruments. As part of the Town’s conservation strategy, heritage landscape experts evaluated over 60 potential landscapes and, as part of their evaluations, they visited Glen Abbey in September 2015.

Approximately a month after that visit, on October 22, 2015, Clublink advised the Town that they intended to redevelop Glen Abbey into a residential and mixed use community. Clublink proposed to build 3,000 to 3,200 residential units and 140,000 to 170,000 square feet of office and retail space. Glen Abbey would cease to exist.

The Town responded to Clublink’s redevelopment plan on February 1, 2016 by passing an interim control by-law under the Planning Act, R.S.O. 1990, c. P.13, to temporarily restrict redevelopment of Glen Abbey, pending the completion of relevant studies, including the cultural heritage landscape evaluation.

On December 20, 2017, the Town’s council officially passed a s. 29 by-law designating Glen Abbey and the surrounding property as a property of cultural heritage value or interest. Subsequent to the passing of the Designation By-law, the Town passed five further by-laws, stated to be of general application (collectively the “impugned by-laws”).

issues:

(1) Did the application judge err in failing to consider the legality of each impugned by-law and the conservation plan resolution separately?

(2) Did the application judge err in concluding that the impugned by-laws and the conservation plan resolution were outside the Town’s statutory authority?

(3) Did the application judge err in concluding that the impugned by-laws and the conservation plan resolution were passed in bad faith?

(4) Did the application judge err in concluding that the impugned by-laws were void for vagueness?

(5) Did the application judge err in concluding that the Town did not have statutory authority to approve the conservation plan?

holding:

Appeal allowed in part.

reasoning:

(1) Yes. The application judge correctly set out the analytical framework as requiring a consideration of each of the impugned by-laws as separate legal documents, though informed by the broader context of the scheme as a whole. However, he fell into error by allowing his findings regarding some of the impugned documents to draw conclusions about the others without adequate consideration of their respective purposes, content, and effects.

The application judge’s approach is not compatible with the presumption of validity that by-laws enjoy: see Ontario Restaurant Hotel & Motel Assn. v. Toronto (City) (2005), 258 D.L.R. (4th) 447 (Ont. C.A.), at para. 3. A by-law or resolution should not be quashed unless the presumption is overturned based on that instrument and the illegality of related instruments does not logically, in itself, rebut this presumption.

(2) No. The Town had the statutory authority to pass all the impugned by-laws, but it did not have the authority to approve the conservation plan. Viewed as a whole and practically, the conservation plan resolution’s purpose and effect are to require Clublink to provide a service by continuing to operate the property as a golf course, which is contrary to s. 11(8)5 of the Municipal Act. For this reason, it was outside the Town’s jurisdiction and cannot stand.

(3) Yes. The court did not find that the impugned by-laws were enacted in bad faith. The court found that these by-laws are all of general application and they do not unfairly target Clublink. The application judge’s reasons focus primarily on the fact that the Town had disregarded Clublink’s economic interests in favour of that of the neighbouring community by compelling them to run the golf course. This is achieved through the operation of the conservation plan, not the by-laws of general application. When each impugned by-law is given proper consideration and distinguished from the conservation plan, the record is insufficient to overturn the presumption that each by-law was enacted in good faith.

(4) Yes. Similarly, the court did not find that the impugned by-laws are void for vagueness. The court stated that they are of general application and they are sufficiently clear when each by-law is considered on its own and in context. The court agreed with the trial judge’s analysis on this point and the conclusion he reached.

(5) No. The court agreed with the application judge’s conclusion that approving the conservation plan was ultra vires the Town’s jurisdiction, because it concerns the provision of “services or things” in respect of culture, parks, recreation or heritage, contrary to the jurisdiction of the Town stemming from s. 11(8)5 of the Municipal Act.

Given that the cultural heritage attributes of the property are defined as including the ongoing ability to host championship, tournament and recreational golf, the court did not agree that the conservation plan envisions that Clublink could cease the daily and seasonal maintenance associated with operating a golf course. The term “ongoing ability” refers to an actual, present ability, not some future, potential ability.

Nordheimer J.A. (dissenting in part): Nordheimer J.A. agreed with Harvison Yonung J.A. in her conclusion that the application judge erred in quashing the five by-laws at issue. However, the judge did not agree with her analysis in respect of the Cultural Heritage Landscape Conservation Plan for the Glen Abbey Property (the “Conservation Plan”). In his view, the application judge erred in quashing the Conservation Plan on the basis that it was ultra vires.

In order to find the by-laws and the Conservation Plan ultra vires, one must find an exception to, or restriction on, the plain authority that s. 11(3)5 of the Municipal Act provides.

In accordance with the proper interpretative principles, the expression “services or things provided by any person” must be read narrowly and restrictively. Otherwise, s. 11(8) could include almost anything that a municipality would otherwise attempt to govern, especially since there is very little that could not be captured between the terms “services” and “things”. Absent a restrictive interpretation of s. 11(8)5, the result would be that there would be very little room for s. 11(3)5 to operate.

Oakville (Town) v. Clublink Corporation ULC, 2019 ONCA 826

[Doherty, Nordheimer and Harvison Young JJ.A.]

Counsel:

Thomas Curry, Derek Knoke, Jessica Starck and Rodney Northey, for the appellant

Earl A. Cherniak, Q.C., Cynthia Kuehl and Mark Flowers, for the respondent

Keywords: Statutory Interpretation, Private Property Rights, Ontario Heritage Act, RSO 1990, c O 18 ss. 33 and 34, Planning Act, RSO 1990, c P 13, More Homes, More Choice Act, SO 2019, c 9, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27, Canadian National Railways Co. v Canada (Attorney General), 2014 SCC 40, Pharmascience Inc. v Binet, 2006 SCC 48, MacLean v British Columbia (Securities Commission), 2013 SCC 67, Belwood Lake Cottagers Association Inc. v Ontario (Environment and Climate Change), 2019 ONCA 70, St. Peter’s Evangelical Lutheran Church v Ottawa, [1982] 2 SCR 616, Algonquin Power (Long Sault) Partnership v. Chubb Insurance Co of Canada, 50 CCLI (3d) 107, R v Bedard (1976), 31 CCC (2d) 559, Cardiff Rating Authority and Cardiff Assessment Committee v. Guest Keen Baldwin’s Iron and Steel Co. Ltd., [1949] 1 KB 385

facts:

Glen Abbey is the subject property and is one of Canada’s most famous golf courses. It has been identified as an important feature of Oakville for over 40 years. In 1999 the property that housed the golf course was purchased by Clublink. In 2014, Oakville adopted a strategy in an attempt to conserve significant cultural heritage landscapes within the city. As part of this strategy, heritage landscape experts evaluated numerous properties (“Heritage Evaluations”). As part of their evaluations, the experts visited Glen Abbey. One month after the expert visit to Glen Abbey, but before the completion of the Heritage Evaluations, Clublink advised Oakville of its intention to redevelop Glen Abbey into a residential and mixed-use community, effectively erasing Glen Abbey in the process.

In response, Oakville passed an interim control by-law under the Planning Act to temporarily restrict redevelopment of Glen Abbey pending the results of the relevant studies, including the Heritage Evaluations. Clublink subsequently submitted applications to amend Oakville’s Official Plan and zoning by-laws and sought approval of a plan of subdivision to further its redevelopment goals. Oakville then moves to recognize Glen Abbey as a significant cultural heritage landscape, and published and served on Clublink a notice of intention to designate Glen Abbey and surrounding property as a property of cultural heritage value or interest under s. 29 of the Ontario Heritage Act (“OHA”). Clublink had the right, under s. 29(5) of the OHA to formally object to the proposed designation, but they did not do so. Instead, they advised Oakville that they intended to submit an application under s. 34 of the OHA to “demolish” and/or “remove” Glen Abbey. The Town notified Clublink that their s. 34 application was “legally beyond the scope of a section 34 OHA application” but was properly within the scope of s. 33 which permits an owner to “alter” a designated property.

If s. 33 of the OHA applies, the municipal council is afforded the final word with respect to the application. If s. 34 applies, the Local Planning Appeal Tribunal (“LPAT”) gets the final word instead. In other words, if the municipal council refuses Clublink’s application under s. 34, Clublink can still appeal that decision to the LPAT. Oakville commenced this application for a determination of its rights under the OHA and for a declaration that s. 34 did not apply. Clublink formally submitted their s. 34 application to Oakville and commenced its own application for a declaration that they could make an application under s. 34. Following this, Oakville officially passed a s. 29 by-law designating Glen Abbey as a property of cultural heritage value or interest.

At issue before the application judge was whether or not Glen Abbey could be considered a structure so as to bring it within s. 34 of the OHA. The application judge determined that the entirety of Glen Abbey constituted a “structure” for the purposes of s. 34 such that Clublink had properly framed its application under s. 34.

issues:

(1) Did the application judge fail to properly apply the principles of statutory interpretation when concluding that Glen Abbey was a “structure” within the meaning of s. 34 of the OHA and therefore the application to demolish Glen Abbey is properly governed by s. 34?

holding:

Appeal dismissed.

reasoning:

(1) No. Oakville argued that the application judge failed to properly apply the principles of statutory interpretation by failing to have sufficient regard for s. 33 of the OHA, and thus, had failed to interpret the term “structure” in s. 34 in context. Oakville also argued that the judge erred in his textual analysis by rejecting the “ordinary meaning” of the term “structure” as being irrelevant to his analysis, and by relying on non-OHA jurisprudence to conclude that a golf course is a “structure”.

The appeal judge began with the “modern principle” of statutory interpretation, which states that statutory language should always be interpreted purposively and in context. The judge stated that the ordinary meaning of the word “structure”, while one aspect of the modern approach, is not determinative. Words that appear unambiguous on their own may become ambiguous once placed in their context. Even when a statutory provision appears to have a settled meaning, the courts must still look to other indicators of legislative meaning as part of their work of interpretation. For this reason, the judge determined that the words of the statute must be read in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.

The purpose of the OHA is to provide for the conservation, protection and the heritage of Ontario. To this end, the OHA confers broad powers upon municipalities to designate properties as being of cultural heritage value or interest, thereby interfering with private property rights.

The legislative history of the OHA revealed that the genesis of the statutory distinction between s. 33 and s. 34 applications reflects a particular balancing of private property rights and heritage conservation. The assumption underpinning the original legislation and the initial division between ss. 33 and 34 was that s. 34 would be engaged in circumstances where the proposed changes to the designated property would wholly remove the reason for the designation under the Act. The added procedural protections for property owners in s.34 were premised on the understanding that the refusal of an application to permit the owner to demolish a building or structure (rather than to merely make an alteration) was a more profound interference with private property rights.

In analyzing the scheme of the current OHA, the appeal judge also stated that ss. 33 and 34 must be read together. The scheme of the OHA indicates that s. 34 was intended to provide greater procedural protections to property owners with respect to a subset of “alterations” involving a “demolition or removal” of a “building or structure” that would wholly remove the cultural heritage attributes associated with the property. This is consistent with the legislative history. The different procedural protections as between ss. 33 and 34 are an important part of the scheme of the OHA and reflect a particular balancing of private property interests and the public interest in conserving property of cultural heritage value or interest. In light of the purpose of both ss. 33 and 34, and their relationship to the overall objective of the OHA of protecting properties of cultural heritage value, it is not necessary, and would be inappropriate, to interpret s. 33 broadly and s. 34 restrictively.

With the contextual backdrop in mind, the judge then turned to the text of s. 34, and whether Glen Abbey could properly fit within the definition of “structure” in that section. He states that Oakville has itself defined structure in its zoning by-law as “anything that is erected, built or constructed of parts joined together.” Further, the use of the term “structure” elsewhere in the OHA indicates that the Legislature intended to provide the term a broad meaning, and intended the term to capture constructed entities comprised primarily of land. Part VI of the OHA (dealing with the conservation of resources of archaeological value) defines “property”, for the purposes of that part, as “real property, but does not include buildings or structures other than ruins, burial mounts, petroglyphs or earthworks.” The fact that the Legislature felt it necessary to qualify the meaning of “structure” in Part VI to exclude those structures other than those enumerated in that section, indicates that elsewhere in the OHA it intended the term “structure” to capture earthworks and other constructed landscape features.

A purposive and contextual approach to ss. 33 and 34, and in particular an approach that takes into account the legislative history of the two provisions, indicates that Glen Abbey is properly construed as a “structure” for the purpose of s. 34 of the OHA. Therefore, Clublink properly framed its application to demolish and/or remove Glen Abbey under s. 34.

Dissent: The dissenting judge contended that a golf course is not a structure within the meaning of s. 34 of the OHA. His finding was primarily based on the argument that a golf course does not fit within the “ordinary meaning” of the word “structure”. The dissenting judge also contends that it is more appropriate to construe Clublink’s application as falling within s. 33 of the OHA because Glen Abbey’s cultural heritage value is bound up in the land itself, which would remain (at least in part) if Clublink was allowed to demolish the golf course. Additionally, the dissenting judge stated that s. 33 should be broadly construed and s. 34 should be narrowly construed because a successful application will result in the repeal of the designation by-law. A narrow interpretation of s. 34 therefore furthers the purpose of the OHA which is to conserve, protect and preserve Ontario’s heritage.

Benson v. Belair Insurance Company Inc., 2019 ONCA 840

[Feldman, MacPherson and Simmons JJ.A.]

Counsel:

IW Furlong and RM Ben, for the appellant Austin Benson

EK Grossman and PM Baker, for the respondent Belair Insurance Company Inc.

D McPhail and M Aswani, for the respondent Financial Services Commission of Ontario

D Strigberger and CL Meyer, for the appellant Echelon General Insurance Company

RM Durante and B Irantalab, for the respondent CP

Keywords: Insurance, Contract Interpretation, Standard of Review, Insurance Act, RSO 1990, c I8, Off-Road Vehicles Act, RSO 1990, c O4, Statutory Accident Benefits Schedule–Effective September 1, 2010, O Reg 34/10, Statutory Accident Benefits Schedule –Accidents on or after November 1, 1996, O Reg 403/96, McLean v. British Columbia (Securities Commission), 2013 SCC 67

facts:

Two cases were heard together because they raise the same issue. In Perneroski v Echelon, Mr. P sustained a severe traumatic brain injury while riding a dirt bike on a closed track at a sports resort in Union Port, Georgia. Mr. P had a standard Ontario OAP 1 motor vehicle liability policy with Echelon General Insurance Company. Echelon denied Mr. P’s claim for accident benefits on the basis that the dirt bike was not an automobile and therefore the incident was not an “accident” as defined in the SABS Regulation 403/96. The motion judge referred to the definition of automobile in s 224(1) in Part VI of the Insurance Act. Under that definition, “automobile” includes (a) a motor vehicle required under any Act to be insured under a motor vehicle policy.” A dirt bike is an off-road vehicle. The Off-Road Vehicles Act provides in s 15(1) that: “[n]o person shall drive an off-road vehicle unless it is insured under a motor vehicle policy in accordance with the Insurance Act. The motion judge found that she would exercise her discretion to apply the lex fori, the law of Ontario, rather than the lex loci delicti, the law of Georgia. However, in the alternative, recognizing that this was not a tort case but a contractual dispute, she applied the law of the jurisdiction where the contract was formed, again, Ontario law, and found that Mr. P was entitled to receive SABs.

In Benson v Belair, the appellant was a resident of Ontario who was living in British Columbia. While a passenger on an all-terrain vehicle (“ATV”) that was owned and driven by a British Columbia resident driving on a public trail owned by the Northern Rockies Regional Municipality, Mr. B fell off and suffered a severe brain injury. He was the named insured under an Ontario automobile policy issued by the respondent, Belair Insurance Company Inc. That policy did not list an ATV as an insured vehicle. Belair denied coverage for accident benefits, contending that because the accident occurred in British Columbia, the question of whether an ATV constitutes an automobile for Ontario accident benefit purposes was to be determined under the laws of British Columbia which do not require ATVs to be insured as motor vehicles. Mr. B applied for arbitration at the Financial Services Commission of Ontario. The FSCO Arbitrator upheld Belair’s denial of accident benefits on the basis that British Columbia law should apply according to the Supreme Court of Canada. The Director’s Delegate upheld the Arbitrator’s decision. Mr. B’s further application for judicial review to the Divisional Court was dismissed on the basis of reasonableness.

issues:

(1) Do the SABS Regulations and the definition of automobile in Part VI of the Insurance Act apply differently if the accident occurs in Ontario or outside of Ontario?

holding:

Perneroski appeal dismissed; Benson appeal allowed.

reasoning:

(1) No.

In Perneroski, the Court found that when all the relevant provisions are examined, it is clear that Ontario law governs and that the provisions that dictate the result for Ontario incidents dictate the same result for incidents that take place outside Ontario that are covered under the automobile insurance policy. The interpretive stumbling block that has challenged the courts and tribunals is the wording of s 15(1) of the Off-Road Vehicles Act. That is the section that makes an off-road vehicle an automobile within the expanded definition in s 224(1) of the Insurance Act because it requires insurance when such vehicles are driven. However, that requirement is not enforceable outside Ontario. That led the Divisional Court in Perneroski to conclude that an off-road vehicle is only an automobile when it is being driven in Ontario.

That interpretation fails to read the section in the context and for the purpose of s 224(1) of the Insurance Act that contains a direction for the purpose of applying s 3(1) of the SABS Regulation 34/10 (formerly s 2(1) of the SABS Regulation 403/96), to examine other Ontario statutes in order to determine whether a particular motor vehicle comes within the expanded definition of “automobile” by requiring that motor vehicle to be insured. On a plain reading of ss 15(1) and (9) of the Off-Road Vehicles Act, and s 2(1) 5 of the ORVA Regulation, insurance is required to drive an off-road vehicle except on the owner’s own property or where the off-road vehicle is designated by regulation as an exempt class of vehicles. Those sections therefore have the effect of defining an off-road vehicle as an “automobile” for the purpose of s 224(1) and s 3(1) of the SABS Regulation 34/10 (formerly s 2(1) of the SABS Regulation 403/96), except when it is driven on the owner’s own property or in a sponsored closed course competition or rally. There is no language that limits that definition to off-road vehicles driven in Ontario.

This result is consistent with the provisions of the Insurance Act, the SABS Regulations, and the contract language, which all state that the SABs will be provided whether the incident occurs anywhere in Canada, the U.S.A. or the other designated jurisdictions. The effect of the Divisional Court’s interpretation would be to read out the expanded definition of automobile for incidents that occur outside Ontario and limit SABs payments accordingly.

In Benson, the Court found the decision of the Director’s Delegate was unreasonable and must be set aside. This is the type of case recognized by the Supreme Court of Canada in McLean v. British Columbia (Securities Commission) at para. 38, where “the range of reasonable outcomes will necessarily be limited to a single reasonable interpretation”.

There can be only one reasonable interpretation of the statutory language regarding the extended definition of “automobile.” The language is not unclear or ambiguous. With respect, the Arbitrator and the Director’s Delegate proceeded on a legal misapprehension that the lex loci delicti should be applied to a contract and statutory interpretation issue involving an Ontario contract and Ontario legislation where that legislation specifically directs that Ontario law is to apply: Insurance Act at s 123. An interpretation of the statutory language cannot be within a range of reasonable outcomes where it is erroneously based on inapplicable legal principles. Further, the provisions of the statutes in question and the standard form motor vehicle insurance policy must have the same meaning for all claimants. The factual circumstances of the claimants will differ and require adjudication, but the application of the legislative provisions must be uniform.

Donovan v. Waterloo Regional Police Services Board, 2019 ONCA 845

[Hoy A.C.J.O., van Rensburg and Roberts JJ.A.]

Counsel:

KD, acting in person

Donald B. Jarvis and Cassandra Ma, for the respondents

Keywords: Determination of an Issue Before Trial, Absolute Privilege, Self-Represented Litigant, Fleming v. Massey, 2016 ONCA 70, Amato v. Welsh, 2013 ONCA 258, Odhavji Estate v. Woodhouse, 2003 SCC 69, Rules of Civil Procedure, Workplace Safety and Insurance Act, 1997, SO 1997, c. 16, Sched. A

facts:

KD commenced an action alleging that the Waterloo Regional Police Service Board (the “Board”) and the Chief of the Waterloo Regional Police Service (the “Chief”) (collectively the “Respondents”) breached a settlement agreement between the two parties by appealing her claim for benefits to the Workplace Safety and Insurance Board (“WSIB”) and by disclosing the settlement in an affidavit. On a motion, the WSIB claim was struck because an employer cannot contract out of the Workplace Safety and Insurance Act, 1997, SO 1997, c. 16, Sched. A (“WSIA”). The confidentiality claim was struck because the affidavit was used by the Board in defending a class action in court and as such was covered by absolute privilege. Finally, the motion judge concluded that the pleading did not contain sufficient allegations to establish independent claims against the Chief. KD appeals the motion judge’s dispositive order dismissing her action against the Respondents for disclosing no reasonable cause of action without leave to amend.

issues:

(1) Is it plain and obvious that the appellant’s claims about the Board cannot succeed?

(2) Do the pleadings contain a tenable claim against the Chief?

holding:

Appeal allowed.

reasoning:

(1) No.

WSIB Claim

The motions judge relied on the ruling in Fleming v. Massey, 2016 ONCA 70 to find that the settlement agreement could not preclude the Board from exercising its rights or discharging its obligations under the WSIA and that as a matter of law, the parties could not contract out of the scheme under the WSIA. The settlement agreement, however, is not contrary to the objectives of the WSIA which, as noted in Fleming, are in part to ensure that injured workers have access to compensation. KD continued to receive benefits after her resignation and it wasn’t until after the parties signed the settlement that the Board initiated the appeal. These facts differ significantly from Fleming and so it is not plain and obvious that Fleming would stand in the way of KD’s claim.

Confidentiality Claim

The motions judge struck the confidentiality claim because he was of the view that it could not be based solely on an affidavit prepared for a court proceeding. It is not, however, plain and obvious that the Chief’s affidavit is subject to absolute privilege. There are competing interests at stake, absolute privilege and confidentiality, and because of this, the matter should be decided with an evidentiary record and not on a pleadings motion (Amato v. Welsh, 2013 ONCA 258).

(2) Even though the appellant only framed her pleadings in contract and did not include tort (Odhavji Estate v. Woodhouse, 2003 SCC 69), she is self-represented and should be granted leave to amend her claim.

L.M. v. Peel Children’s Aid Society (Publication Ban) , 2019 ONCA 841

[Hoy A.C.J.O., Tulloch and Jamal JJ.A.]

Counsel:

Jessica Gagné, for the appellant L.M.

Laura Shaw and Jenna Persaud, for the Children’s Aid Society of Peel Region

Ian Ross and Martha Heder, for the Office of the Children’s Lawyer

Keywords: Family Law, Summary Judgment, Custody, Access, Child Protection, Crown Wardship, Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Child and Family Services Act, R.S.O. 1990, c. C.11, Courts of Justice Act, R.S.O. 1990, c. C.43, s 134, Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316, Hryniak v. Mauldin, 2014 SCC 7, New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46, Dakota Ojibway Child and Family Services v. MBH, 2019 MBCA 91, R. v. Find, 2001 SCC 32, R. v. Spence, 2005 SCC 71, Children’s Aid Society of Toronto v. P.M., 2015 ONCA 695, Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), [1994] 2 S.C.R. 165

facts:

The appellant is the mother of three young children who have been involved with various Children’s Aid Societies for most of their lives. Her first-born child was apprehended by the Toronto Children’s Aid Society (“CAS”). In December 2011, the Ontario Court of Justice found this child to be in need of protection under the CFSA because of a risk of physical harm and sexual molestation.

In December 2015, the Halton CAS obtained a temporary order placing two of the appellant’s children under the Halton CAS’s supervision and requiring the appellant to live with her aunt and to not be alone with the children for more than five hours per week. The Peel CAS became involved in monitoring the children’s placement with her aunt. The aunt ultimately asked the appellant and her children to move out by mid-May 2016. The appellant planned to move in with someone she had begun a relationship with in early 2016. Before she did so, the Peel CAS apprehended the children and placed them in its care, with supervised access to the appellant twice per week. In June 2016, the appellant’s third child was born. The Peel CAS apprehended him and placed him in a foster home.

In May 2017, the Peel CAS served applications to have the three children made Crown wards without access. The Peel CAS’s motion for summary judgment was heard in November 2017. The motion judge granted summary judgment and made the children Crown wards without access. This decision was appealed to the Ontario Superior Court of Justice. The appeal was argued in December 2018 and dismissed in March 2019. The appeal judge held that the motion judge applied the correct test to determine Crown wardship by way of summary judgment.

Since January 2018, when the order for Crown wardship without access was made, the appellant has had weekly access visits with the children at the offices of the Peel CAS with its consent. On April 29, 2019, this court issued a consent order allowing the appellant to continue these weekly access visits pending the disposition of this appeal.

issues:

(1) Did the appeal judge err in upholding the motion judge’s decision to grant summary judgment to make the children Crown wards?

(2) Did the appeal judge err in upholding the decision to deny the appellant access to the children?

(3) Should this Court decide the issue of access?

holding:

Appeal allowed in part.

reasoning:

(1) Yes, the appeal judge erred in upholding the motion judge’s decision to grant summary judgment to make the children Crown wards. First, the appeal court erred by applying the CFSA rather than the CYFSA. The appeal was heard several months after the CYFSA came into force and the CFSA had been repealed. While the proceeding had been commenced under the CFSA, it had not concluded before April 30, 2018, therefore, the CYFSA applied.

Second, the appeal judge erred by applying the Divisional Court’s decision in Kawartha regarding the principles of summary judgment in child protection matters. A highly cautious approach to summary judgment in child protection cases is warranted because of the serious interests at stake. Kawartha clearly recognized that summary judgment may be appropriate in the child protection context. Therefore, the Court did not agree with the Manitoba Court of Appeal’s recent comment in Dakota Ojibway Child and Family Services v. MBH that, “[i]mplicit in Kawartha-Haliburton is the view, expressed as a caution, that even with a proper initial assessment, the summary judgment process cannot ensure a fair and just determination in a prompt and proportionate manner”. Instead, the cautious approach enunciated in Kawartha neither precludes the use of summary judgment in child protection matters, nor suggests a different summary judgment test in this context.

Moreover, the summary judgment test applied in child protection cases remains the same as in other cases. As set out in Hryniak, “[t]here will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment.” But the test must still be applied in context and sensitive to the particularly high stakes and Charter rights of parents and children implicated in child protection cases.

The Court held that the conclusion that the children were in need of protection under the CFSA was owed deference. In any event, the Court found that the motion judge’s factual findings confirm that there is no genuine issue requiring a trial that all three children are likely to suffer physical harm as a result of the appellant’s inability to adequately care for, provide for, supervise, or protect them. The Court therefore concluded that all three children were “in need of protection” within the meaning of s. 74(2) of the CYFSA. The Court agreed with the Office of the Children’s Lawyer and the Peel CAS that the children should be placed in extended society care pursuant to the CYFSA.

(2) Yes, the Court found that the appeal judge erred in upholding the decision to deny the appellant access to the children in the following ways:

(a) The appeal judge applied the wrong legislation

First, the appeal judge applied the wrong legislation. As already noted, he should have applied the CYFSA rather than the CFSA to the access issue.

(b) The appeal judge applied the wrong principles for summary judgment in child protection matters

Second, the appeal judge erred in law by determining the access issue on summary judgment by applying the Divisional Court’s decision in Kawartha, as discussed above.

(c) The appeal judge erred by placing an onus on the appellant to justify an access order

Third, the appeal judge erred in law by placing an onus on the appellant to establish that there was a genuine issue requiring a trial as to whether there should be an access order.

(d) The appeal judge erred by finding that an access order would necessarily impair the children’s future prospects for adoption

Finally, the Court found that the appeal judge erred in finding as a fact that an access order would necessarily impair these children’s future prospects for adoption.

The appeal judge began by correctly noting that the test in R. v. Find for taking judicial notice of this fact was not met. The supposed “fact” that many if not most potential adoptive parents are less inclined to adopt if the birth parents have access to a child in extended society care cannot meet the test for judicial notice. The court found that this “fact” is not notorious or generally accepted, nor capable of immediate demonstration.

Having accepted judicial notice could not be taken of this fact, the appeal judge found that this factual finding was still justified because: (1) there was evidence before the motion judge that access would undermine the prospects for adoption; and (2) courts have set out several reasons based on “common sense” and “informed experience” as to why adoptive parents would be less likely to adopt if birth parents have access. The Court found the appeal judge erred on both points.

First, the evidence on the motion did not suggest that access would undermine the prospects for the adoption of these particular children. It merely suggested that one of the key factors in determining whether post-adoption face-to-face contact is appropriate is whether the birth parent will undermine the adoptive placement.

Second, given that the appeal judge acknowledged that the test for judicial notice could not be met, it was an error for him to rely solely on “common sense” and “informed experience” to effectively hold that granting a parent access to a child in extended society care would impair the child’s adoption prospects. Facts that are not subject to judicial notice should generally be established by direct evidence or admissions. The appeal judge was also not entitled to rely on findings made in other cases, such as the potential for having to deal with difficult birth parents and the deterrent effect an access order might have on some adoptive parents. The Court stated that each case must be decided on its own facts, not based on findings made in other cases. Thus, in the Court’s view, the appeal judge erred in finding that an access order was inappropriate in this case.

(3) No, the Court found that the record was insufficient to address the nature or extent of access. The Court remanded these issues to the Ontario Court of Justice to be determined on an expedited basis. The Court strongly encouraged the parties to agree to the terms of the appellant’s access without further litigation.

La Rose Bakery 2000 Inc. v. Intact Insurance Company , 2019 ONCA 850

[MacPherson, Pepall and Lauwers JJ.A.]

Counsel:

Mauro Marchioni, for the appellant

Jeffrey R. Goit, for the respondent Intact Insurance Company

Lesley E. Albert, for the respondent Unity Realty & Insurance Inc.

Keywords: Insurance Law, Coverage, Exclusions, Civil Procedure, Appeals, Summary Judgment, Butera v. Chown, Cairns LLP, 2017 ONCA 783

facts:

This is an appeal from the order of the motion judge, dismissing the appellant’s action against the respondent, Intact Insurance Company (“Intact”), seeking coverage for losses resulting from an ice storm in December 2013.

Following the ice storm and resulting power loss, the appellant made a claim under its policy of insurance with Intact (the “Policy”). Intact denied coverage under the Policy on the basis that there was no physical damage to the appellant bakery or to the plaza in which the bakery was located, no repairs to any buildings or structures were required, and the power was restored without any intervention on the part of the appellant or the owner of the plaza.

The appellant subsequently commenced an action against Intact for payment of losses relating to stock spoilage and business interruption. The appellant also sued Unity Realty & Insurance Inc. (“Unity”) for damages in negligence for failing to ensure that the appellant was properly insured. Intact defended the action, relying on the exclusions in the Policy. Unity defended the action and cross-claimed against Intact for contribution and indemnity.

Intact successfully moved for summary judgment dismissing the appellant’s claims against it. Ultimately, the motion judge held that the exclusionary clauses in the Policy governing stock spoilage and business interruption precluded coverage for the losses claimed.

issues:

(1) Did the motion judge err by disregarding the principles relating to partial summary judgment as described in Butera v. Chown, Cairns LLP, 2017 ONCA 783 (“Butera”), and its progeny?

(2) Did the motion judge err in interpreting the insurance policy and/or in deciding the motion in the absence of expert evidence?

holding:

Appeal dismissed.

reasoning:

(1) No. The court held that the motion judge’s decision to grant summary judgment in favour of Intact was appropriate in the circumstances. As was considered in Butera, the motion disposed of the entire action between the appellant and Intact. Furthermore, Unity, as a party to the litigation, had been served with the summary judgment motion material and was bound by the outcome. Accordingly, there was no real risk of duplicative proceedings or inconsistent factual findings. Rather the action was readily bifurcated, and the cost of the litigation would be reduced as a result. In making its determination, the court noted that, while the issue was not before the motion judge, Unity had agreed to consent to a dismissal of its cross-claim against Intact based on the outcome of the summary judgment motion.

(2) No. The court held that it was open to the motion judge to find that the exclusion clauses in the Policy precluded coverage. In making its determination, the court noted that the exclusion for the stock spoilage claim provided that coverage did not extend to loss or damage resulting from partial or total interruption to the supply of electricity, arising from loss or damage to any electrical transmission lines or distribution lines or their supporting structures, except for those located on the “premises”. The court found that while Intact filed evidence that supported its position that the loss or damage was to lines or structures not located on the premises, the appellant failed to file evidence to the contrary. In this regard, the court held that it was incumbent on the appellant to put its best foot forward.

The court further held that the motion judge did not err in deciding the motion without the benefit of expert evidence. The motion judge’s conclusion that the exclusion provision precluded coverage for business interruption losses was unassailable.

As agreed by the parties on appeal, the appellant was ordered to pay costs fixed in the amount of $5,000, inclusive of disbursements and applicable tax. The court made no order with respect to costs relating to Unity.

MacLeod v. Marshall, 2019 ONCA 842

[Sharpe, van Rensburg and Thorburn JJ.A.]

Counsel:

Chris T. Blom and Susan Metzler for the appellant, The Basilian Fathers of Toronto

Paul Pape, Shantona Chaudhury, and Cristina Senese for the respondent, R.M

Keywords: Quantum of Damages, Jury Charges. Prejudgment Interest, Athey v Leonati, [1996] 3 SCR 458, Andrews v Grand & Toy Alberta Ltd., [1978] 2 SCR 229, Whiten v Pilot Insurance Co., [2002] 1 SCR 595, Courts of Justice Act, R.S.O. 1990, c. C.43, Insurance Act, RSO 1990, c.I.8, s. 258.3(8.1)

facts:

Appeal by The Basilian Fathers of Toronto (“the Basilians”) of a jury verdict and an order for prejudgment interest. The Basilians claim the jury instruction on how to assess damages for past income loss was wrong, the punitive damages award was excessive, and prejudgment interest ought not to have been awarded at the rate of 5%.

issues:

(1) Did the trial judge err by failing to properly instruct the jury on the burden of proof for claims for past loss of income for sexual abuse?

(2) Was the trial judge’s award of punitive damages excessive?

(3) Did the trial judge err in setting the rate of prejudgment interest at 5% for non-pecuniary damages?

holding:

Appeal allowed in part.

reasoning:

1) No. While the charge might have been put more clearly in respect of the fact that damages for income loss must be commensurate with the percentage chance that the opportunity would have materialized, the trial judge made no reversible error in articulating the legal principles. The Basilians’ counsel did not object to the charge and made no submissions to the trial judge or in his closing to the jury on this issue.

(2) No. The question on an appeal of punitive damages is whether the quantum of damages is so plainly unreasonable and unjust as to satisfy the court that no jury reviewing the evidence as a whole and acting judicially could have arrived at it. While the award is high, the jury took into account the general objective of punitive damages as punishment, deterrence, and denunciation.

(3) Yes. In this case, the trial judge considered the Basilians’ request that he exercise his discretion to impose prejudgment interest at 1.3% for non-pecuniary damages. In awarding R.M 5% prejudgment interest, the trial judge understood that there was a general right to exercise discretion but did not articulate any of the factors listed in s. 130 of the CJA, and more importantly, he concluded that the prejudgment rate should be 5% because s. 258.3(8.1) did not apply. The trial judge was correct that s. 258.3(8.1) does not apply, but should have taken into account the factors in s. 130(2) of the CJA, including the changes in market interest rates. Appeal allowed on this issue and judgment varied to prejudgment interest at 1.3%.

Wright v. Strauss, 2019 ONCA 844

[Hoy A.C.J.O., van Rensberg and Roberts JJ.A.]

Counsel:

Gregory M. Sidlofsky and Matthew M.A. Stroh, for the appellant

Andrew Finkelstein, for the respondents

Keywords: Trust, Jurisdiction, Oppression, Business Corporations Act, RSO 1990, Courts of Justice Act, RSO 1990 c C 43 ss 6(2), 13 and 18, Rules of Civil Procedure, RSO 1990, Reg 194, Ontario Securities Commission v McLaughlin, 2009 ONCA 280, Tomec v Economical Mutual Insurance Company, 2019 ONCA 839

facts:

The appellant appealed from the order of the motion judge dismissing the application he commenced against his daughters, on their own behalf and as trustees of the Wright Family Trust. The appellant also appealed from a second order of the motion judge made at the same time, involving the same parties, and the court dismissed that appeal.

issues:

(1) Does the court have jurisdiction to hear this appeal?

holding:

Appeal transferred to Divisional Court.

reasoning:

(1) No. While s. 6(2) of the Courts of Justice Act permits the court to hear and determine an appeal that lies to the Divisional Court, this is only if the appeal in the same proceeding lies to and is taken to this court. The two appeals in this case were not in the same proceeding. The motion judge may have released only one set of reasons, but he issued two orders for two factually related but legally distinct proceedings, each with their own originating process: the first order, striking a notice of application regarding the transfer of a mortgage from a family company to the Trust; and the second order, striking a claim of challenging the validity of the trust.

Furthermore, rule 6.01(1) of the Rules of Civil Procedure provides that “where two or more proceedings are pending in the court” the court may, in the circumstances set out in that rule, order that the same proceedings be heard together. However, this rule applies to proceedings in the same court, not proceedings in different court.

The judge stated that while the combined effect of ss. 13 and 18 of the Courts of Justice Act enables three judges of the Court of Appeal to sit as a panel of the Divisional Court with the consent of the Chief Justice of the Superior Court of Justice and the Chief Justice of Ontario, it is rarely done. He was not persuaded that the facts of the case before him warranted one of the rare instances where the court would reconstitute itself as the Divisional Court.

SHORT CIVIL DECISIONS

Karges v. Karges, 2019 ONCA 833

[Rouleau, Huscroft and Nordheimer JJ.A.]

Counsel:

Aaron Franks and Stephanie Romano, for the appellant

Robert Bickle, for the respondent

Keywords: Family Law, Divorce, Support Order

Asghar v. Toronto Police Services Board, 2019 ONCA 837

[Hoy A.C.J.O., Lauwers and Zarnett JJ.A.]

Counsel:

S.A., acting in-person

Natalie Salafia, for the respondents Toronto Police Services Board, Toronto Police Chief, Constable Brad Verspeeten #9278 41 Division

John Rosolak, for the respondents Toronto Transit Commission (TTC), Edwin Collins (TTC Driver)

Keywords: Civil Procedure, Motion to Vary

Arrocha v. Harrison, 2019 ONCA 838

[MacPherson, Pepall and Lauwers JJ.A.]

Counsel:

P.H., appearing in person

Irving I. Frisch, for the respondent

Liz Michelle Arrocha Carol J. Smith, for the respondent, City of Toronto

Keywords: Civil Procedure, Family Law, Appeal Book Endorsement

Pichelli v. Adair Barristers LLP, 2019 ONCA 843

[Tulloch, Hourigan and Benotto JJ.A.]

Counsel:

Douglas Cunningham, for the appellants

David Steinberg, for the respondent T.A.

Keywords: Civil Procedure, Real Estate, Interest in Property, Mortgage, Land Titles Act, R.S.O. c. L.5, s.62(2), Di Michele v. Di. Michele, 2014 ONCA 261

Fung v. Decca Homes Limited, 2019 ONCA 848

[Feldman, Fairburn and Jamal JJ.A.]

Counsel:

Tariq Muinuddin, for the appellants

David Schatzker, for the respondent

Keywords: Civil Procedure, Construction, Application for Payment, Parole Evidence Rule, Hawrish v. Bank of Montreal, [1969] S.C.R. 515

CRIMINAL DECISIONS

R. v. Boyce, 2019 ONCA 828

[Strathy C.J.O., Rouleau and Miller JJ.A.]

Counsel:

Dean F. Embry and Eric S. Neubauer, for the appellant

David Quayat, for the respondent

Keywords: Criminal Law, Evidence, MLAT Request, Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 6(1), Criminal Code, ss. 463 and 465, Mutual Legal Assistance in Criminal Matters Act, R.S.C., 1985, c. 30 (4th Supp.), s. 36(1), Charter of Rights and Freedoms, s. 7 and 11(d)

R. v. R.V. (Publication Ban), 2019 ONCA 834

[Watt, Lauwers and Paciocco JJ.A.]

Counsel:

Michael Dineen, for the appellant

Katie Doherty, for the respondent

Keywords: Criminal Law, Sentencing, Sexual Interference, Sexual Assault, Criminal Code, s. 718.01

R. v. R.S. (Publication Ban), 2019 ONCA 832

[Huscroft, Paciocco and Nordheimer JJ.A.]

Counsel:

Gary Grill and Leo Salloum, for the appellant

Christopher Webb, for the respondent

Keywords: Criminal Law, Youth Offender, Manslaughter, Aggravated Assault, Careless Use of a Firearm, Self-Defence, R v Bengy, 2015 ONCA 397, R v Pétel, [1994] 1 SCR 3, R v RP, 2012 SCC 22, R v Pittiman, 2006 SCC 9, Criminal Code, R.S.C. 1985, C-46, s. 34(2), s. 686(2).

R. v. McNeice (Publication Ban), 2019 ONCA 836

[Feldman, Trotter and Zarnett JJ.A.]

Counsel:

Gavin Johnston, for the appellant

Christine Bartlett-Hughes, for the respondent

Keywords: Criminal Law, Sexual Assault, R v Forrester, 2019 ONCA 255

ONTARIO REVIEW BOARD DECISIONS

McGregor (Re), 2019 ONCA 835

[Feldman, Trotter and Zarnett JJ.A.]

Counsel:

Anita Szigeti, for the appellant R.M.

Erica Whitford, for the respondent Crown

Janice Blackburn, for the Person in Charge of St. Joseph’s Healthcare Hamilton

Keywords: Ontario Review Board, Significant Risk, Risk of Relapse, Risk of Reoffending, Risk to Public Safety, Abdulle (Re), 2019 ONCA 812, Mental Health Act, R.S.O. 1990, C.M.7

Esposito (Re), 2019 ONCA 847

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

Counsel:

Anita Szigeti and Maya Kotob, for the appellant E.E.

Gavin MacDonald, for the respondent Her Majesty the Queen

Kathryn Hunt, for the respondent Centre for Addiction and Mental Health

Keywords: Ontario Review Board, Not Criminally Responsible, Detention Order, Criminal Code, s. 672.54, Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, Mental Health Act, R.S.O. 1990, c. M.7