Good afternoon.

Following are this week’s summaries of the Court of Appeal for Ontario for the week of May 3, 2021.

Topics covered this week included leave to issue a writ of seizure and sale outside the six year period from the date of the judgment, assault in the context of use of excessive force by police, the interpretation of a commercial lease (term length and obligation to repair roof) and an appeal from a jury award in an MVA case.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos Blaney McMurtry LLP 416.593.2953 Email


Table of Contents

Civil Decisions

Achtem v. Boese, 2021 ONCA 284

Keywords: Debtor-Creditor, Civil Procedure, Judgments, Enforcement, Writs of Seizure and Sale, Rules of Civil Procedure, Rule 60.07(2), Rule 60.08(2), Royal Bank of Canada v. Correia, 2006 CanLII 26976 (Ont. S.C. (Master), Adelaide Capital Corporation v. 412259 Ontario Ltd., 2006 CanLII 34725 (Ont. S.C.).

Scala v. Toronto (Police Services Board), 2021 ONCA 297

Keywords: Torts, Assault, Negligence, Breach of Fiduciary Duty, Evidence, Credibility, Civil Procedure, Costs, Criminal Code, section 25(1), Wilsdon v. Durham Regional Police, 2011 ONSC 3419, R. v. Nasogaluak,[2010] 1 S.C.R. 206, R. v. Power, 2016 SKCA 29

Orillia (City) v. Metro Ontario Real Estate Limited, 2021 ONCA 291

Keywords: Contracts, Interpretation, Real Property, Commercial Leases, Term, Renewal Options, Repairs, Commercial Reasonableness, Civil Procedure, Standard of Review, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Chilton v. Co-operators General Insurance Co. (1997), 143 DLR (4th) 647 (Ont CA), Amberber v. IBM Canada Ltd., 2018 ONCA 571, Thunder Bay (City) v. Canadian National Railway Company, 2018 ONCA 517, G.M. Pace Enterprises Inc. v. Tsai, 2003 BCSC 1336, Lurcott v. Wakely, [1911] 1 KB 905 (CA (Eng)), Ravenseft Properties Ltd. v. Davstone (Holdings) Ltd., [1980] QB 12 (QBD (Eng)), Morcom v. Campbell-Johnson, [1955] 3 WLR 497 (CA (Eng)), Brew Brothers Ltd. v. Snax (Ross) Ltd., [1970] 1 Q.B. 612 (C.A. (Eng.)), Norbury Sudbury Ltd. v. Noront Steel (1981) Ltd. (1984), 11 DLR (4th) 686 (Ont HC), Hall v. Campbellford Cloth Co. Ltd., [1944] 2 DLR 247 (Ont HC), 708-1111 West Hastings Ltd. v. Coopers & Lybrand Vancouver Ltd., 1990 CanLII 1084 (BC Co Ct), Post Office v. Aquarius Properties Ltd., [1987] 1 All ER 1055 (CA), Haskell v. Marlow, [1928] 2 KB 45 (KBD (Eng)), Stellarbridge Management Inc. v. Magna International (Canada) Inc., 2004 CanLII 9852 (Ont CA), G.H.L. Fridman, The Law of Contract in Canada, 6th ed. (Toronto: Carswell, 2011), Nicholas Dowding et al., eds., Woodfall: Landlord and Tenant, (London: Sweet & Maxwell, 2020) (loose-leaf updated 2021, release 122), vol. 1.

West v. Knowles , 2021 ONCA 296

Keywords: Torts, Negligence, MVA, Causation, “But For” Test, “Material Contribution” Test, Damages, Past and Future Income Loss, Civil Procedure, Jury Charge, Evidence, Admissibility, Public Documents, Experts, Re-examination, Standard of Proof, Past Events, Hypothetical Events, “Real and Substantial Risk or Possibility of Loss”, Evidence Act, R.S.O. 1990, c. E.23, s.32, Pereira v. Hamilton Township Farmers’ Mutual Fire Insurance Co. (2006), 209 O.A.C. 127, Ross v. Bacchus, 2015 ONCA 347, Samms v. Moolla, 2019 ONCA 220, Clements v. Clements, 2012 SCC 32, Donleavy v. Ultramar Ltd., 2019 ONCA 687, Athey v. Leonati, [1996] 3 S.C.R. 458, R. v. Marquard, [1993] 4 S.C.R. 223, R. v. Anderson (1914), 22 C.C.C. 455 (Alta. C.A.), R. v. St. Lawrence Cement Inc. (2002), 60 O.R. (3d) 712 (C.A.), R. v. Spence, 2005 SCC 71, R. v. Perkins, 2007 ONCA 585, MacLeod v. Marshall, 2019 ONCA 842, Gao v. Dietrich, 2018 BCCA 372.

Short Civil Decisions

Hornstein v. Kats, 2021 ONCA 293

Keywords: Business Associations, Partnerships, Real Property, Beneficial Interests, Torts, Slander of Title, Evidence, Credibility, Punitive Damages, Independent Actionable Wrong, Land Titles Act, RSO 1990, c L5, s 132, Whiten v Pilot Insurance Co., 2002 SCC 18.


CIVIL DECISIONS

Achtem v. Boese, 2021 ONCA 284

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

COUNSEL:

D.M. Sinko, for the appellant

M.J. Lambert, for the respondent

Keywords: Debtor-Creditor, Civil Procedure, Judgments, Enforcement, Writs of Seizure and Sale, Rules of Civil Procedure, Rule 60.07(2), Rule 60.08(2), Royal Bank of Canada v. Correia, 2006 CanLII 26976 (Ont. S.C. (Master), Adelaide Capital Corporation v. 412259 Ontario Ltd., 2006 CanLII 34725 (Ont. S.C.).

FACTS:

The appellant obtained an order against the respondent from the Supreme Court of British Columbia in 2009. In 2011, the appellant obtained an order from the Ontario Superior Court of Justice registering the order as an Ontario judgment. While partial payment of the judgment was made by the respondent, there remained more than $330,000 outstanding.

In July 2012, the appellant’s lawyer advised him that any further enforcement measures would likely not result in any benefit, due to the limited amount of the respondent’s assets, and the extent of the encumbrances over those assets. Accordingly, the appellant did not issue a writ of seizure of and sale within six years of obtaining the Ontario order. However, in March 2018, the appellant was advised that the British Columbia order would soon be expiring, and he reassessed his options. In October 2018, the respondent was served with a motion record for an order granting leave to issue a writ of seizure and sale, pursuant to Rule 60.07(2) of the Rules of Civil Procedure.

The motion judge dismissed the appellant’s motion for leave to file a writ. In reaching this finding, the motion judge found that the appellant did not provide evidence to explain his delay, had by inference waived his rights, and that it would be inequitable to enforce the judgment due to the respondent’s detrimental reliance on the inferred waiver.

ISSUE:

Did the motion judge err in dismissing the appellant’s motion for leave to file a writ?

HOLDING:

Appeal allowed.

REASONING:

Yes. First, the Court noted that the motion judge did identify the correct test for leave to file a writ, which is the same test for leave to issue a notice of garnishment under Rule 60.08(2). Specifically, the plaintiff must adduce evidence explaining the delay such that the court may conclude that the plaintiff has not waived its rights under the judgment or otherwise acquiesced in non-payment of the judgment (Royal Bank of Canada v. Correia, 2006 CanLII 26976 (Ont. S.C. (Master)). The applicable evidentiary threshold is very low, and it is a rare case where a judgment creditor cannot satisfy the requirements of the test (Adelaide Capital Corporation v. 412259 Ontario Ltd., 2006 CanLII 34725 (Ont. S.C.)).

The Court disagreed with the motion judge’s conclusion that waiver of the appellant’s rights could be inferred in this case. The only evidence of “waiver” was the delay itself, which was relatively short. There was no other conduct on the part of the appellant whereby a true waiver or acquiescence of non-payment could be inferred. The parties only ever communicated through counsel, and therefore the respondent could not point to any words or actions on the part of the appellant that would support such an argument.

Further, the appellant provided adequate explanation for this delay, being the belief that enforcement was a futile effort. Again, the Court emphasized the low evidentiary threshold applicable in this analysis. By equating a delay of a mere 13 months from the expiry of the six year period within which a writ could be issued as of right with waiver, the motion judge was in effect imposing a much higher threshold, considering that the outstanding judgment amount was around $330,000.

Last, the Court similarly found that it would not be inequitable to enforce the judgment. Once again, it was unreasonable for the respondent to believe, based solely on the absence of any communication from the appellant, that he had waived his rights to enforce judgment at some point. Again, the fact that a significant sum of money was at stake, and that the parties had never directly communicated with one another, further supported this conclusion. The respondent’s argument that she detrimentally relied on such a belief was similarly dismissed. The suggestion that she would have taken steps, such as declaring bankruptcy, if the appellant indicated he would be proceeding with enforcement were not supported by any evidence.

In light of the above findings, the Court concluded that the motion judge’s dismissal was based on palpable and overriding error that warranted intervention.


Scala v. Toronto (Police Services Board), 2021 ONCA 297

[Feldman, Harvison Young and Thorburn JJ.A.]

COUNSEL:

J. Shulman, for the appellant

D.O. Smith and S. Sweet, for the respondents

Keywords: Torts, Assault, Negligence, Breach of Fiduciary Duty, Evidence, Credibility, Civil Procedure, Costs, Criminal Code, section 25(1), Wilsdon v. Durham Regional Police, 2011 ONSC 3419, R. v. Nasogaluak, [2010] 1 S.C.R. 206, R. v. Power, 2016 SKCA 29.

FACTS:

The appellant appealed the trial judge’s decision that denied him damages resulting from an alleged excessive use of force by the respondent police force and the trial judge’s cost award.

In 2010, the appellant was arrested on breach of a recognizance charges and criminal harassment charges. The appellant later sued the police force, alleging among other things, that he was kicked and beaten for two to three minutes during his arrest despite asking the police to stop, that he was never told he was under arrest, he was driven up and down the street in the cruiser with police announcing he was in custody before taking him to the station, he was denied medication at the station and he was denied access to the bathroom and forced to go to the bathroom in his detention cell and then clean up after himself. The police had a different version of the facts.

At trial, the issue was findings of facts and credibility. The law was clear – in order to obtain protection from civil liability, police must establish that the level of force used to arrest was necessary, meaning that it was objectively reasonable in the circumstances presented to the police at the time of the arrest: Wilsdon v. Durham Regional Police, 2011 ONSC 3419. The trial judge ultimately held that the appellant was not credible or reliable and that many of his claims were not supported by the evidence, or directly contradicted by himself at various stages of the litigation. On the other hand, the police testimony was clear, consistent and much more reliable. The trial judge ultimately held the police had used reasonable force in the circumstances and dismissed the claim.

ISSUES:

(1) Did the trial judge err in dismissing the appellants claim for damages for excessive force?

(2) Did the trial judge err in his costs award?

HOLDING:

Appeal dismissed.

REASONING:

(1) No. The Court of Appeal noted the appeal focused entirely on findings of fact made by the trial judge and so the standard of review was palpable and overriding error. The Court of Appeal proceeded to repeat and review several of the trial judge’s key findings and to highlight the inconsistencies in the appellant’s evidence.

The appellant claimed that most of the important aspects of the story as recounted by police should not have been accepted and that the trial judge erred in rejecting most of his evidence as being neither credible nor reliable. The Court rejected this argument because the trial judge carefully evaluated the evidence led at trial, made determinations as to which witnesses he found credible and which witnesses he did not, properly instructed himself as to the applicable law and then applied that law to the facts as found by him. In so doing, he committed no reviewable error. His findings were amply supported by the evidence and there was no basis to overturn those conclusions.

(2) No. The appellant argued that since this was public interest litigation, the quantum of costs ordered against him was unreasonable. He also argued that it was unreasonable to have held his wife jointly and severally liable for costs while also ordering costs against her personally. The Court noted that the trial judge did not hold the appellant’s wife jointly and severally liable and further held that there was no reason to interfere with the trial judge’s cost award or his exercise of discretion.


Orillia (City) v. Metro Ontario Real Estate Limited, 2021 ONCA 291

[Feldman, Simmons and Harvison Young JJ.A.]

COUNSEL:

R. Wood, for the appellant/respondent by way of cross-appeal

K. Chaytor and C. Steven, for the respondent/appellant by way of cross-appeal

Keywords: Contracts, Interpretation, Real Property, Commercial Leases, Term, Renewal Options, Repairs, Commercial Reasonableness, Civil Procedure, Standard of Review, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Chilton v. Co-operators General Insurance Co. (1997), 143 DLR (4th) 647 (Ont CA), Amberber v. IBM Canada Ltd., 2018 ONCA 571, Thunder Bay (City) v. Canadian National Railway Company, 2018 ONCA 517, G.M. Pace Enterprises Inc. v. Tsai, 2003 BCSC 1336, Lurcott v. Wakely, [1911] 1 KB 905 (CA (Eng)), Ravenseft Properties Ltd. v. Davstone (Holdings) Ltd., [1980] QB 12 (QBD (Eng)), Morcom v. Campbell-Johnson, [1955] 3 WLR 497 (CA (Eng)), Brew Brothers Ltd. v. Snax (Ross) Ltd., [1970] 1 Q.B. 612 (C.A. (Eng.)), Norbury Sudbury Ltd. v. Noront Steel (1981) Ltd. (1984), 11 DLR (4th) 686 (Ont HC), Hall v. Campbellford Cloth Co. Ltd., [1944] 2 DLR 247 (Ont HC), 708-1111 West Hastings Ltd. v. Coopers & Lybrand Vancouver Ltd., 1990 CanLII 1084 (BC Co Ct), Post Office v. Aquarius Properties Ltd., [1987] 1 All ER 1055 (CA), Haskell v. Marlow, [1928] 2 KB 45 (KBD (Eng)), Stellarbridge Management Inc. v. Magna International (Canada) Inc., 2004 CanLII 9852 (Ont CA), G.H.L. Fridman, The Law of Contract in Canada, 6th ed. (Toronto: Carswell, 2011), Nicholas Dowding et al., eds., Woodfall: Landlord and Tenant, (London: Sweet & Maxwell, 2020) (loose-leaf updated 2021, release 122), vol. 1.

FACTS:

Metro, a grocery store, leased premises from the City of Orillia (“Orillia”). The original lease commenced in 1979 with an initial term of 25 years and an expiry date in 2004. Metro had a right under the lease to five successive renewal periods of five years each. The ultimate expiry date was to be 2029, or a maximum of 50 years from 1979. In 1999, Metro planned an extensive addition to the premises. At that time, the parties negotiated an amendment to the lease which extended the lease term by 10 years to 2014. The amendment gave Metro the option to extend the lease term for three additional five-year periods, for a total of five options or 25 years. Orillia brought an application for a declaration that the maximum term of the lease was 50 years, expiring in 2029. Metro’s position was that the lease extended until 2039.

The roof of the premises began leaking in 2016. The issue on the cross-appeal was which party had the obligation to repair or replace the roof. Orillia took steps to address the leaks, but asserted it had no obligation to repair the roof. Metro brought an application requesting an order requiring Orillia to replace the roof. At the application hearing, Metro argued that its obligations were only to repair but not replace the roof. Orillia’s position was that whether the roof required repair or replacement, it was Metro’s responsibility.

The applications were heard together. Orillia argued that the amendment extending the lease from 2004 to 2014 reflected that two of the five five-year renewal options under the original lease had been exercised. The amendment stated that Metro had the option to further extend the term for three additional five-year terms, which reflected that three of the original five options remained and meant the lease would expire in 2029 at the latest. Metro’s interpretation was that the amending agreement added on an additional 10 years to the maximum potential length of the lease and that five five-year renewal options remained after 2014, which meant the lease would expire in 2039 at the latest. The application judge found that extrinsic evidence, including the notice of lease registered on title and an estoppel certificate, supported Metro’s position. The application judge dismissed Orillia’s application and declared, in favour of Metro, that the lease would expire in 2039 at the latest because the lease term clauses were ambiguous. Orillia appealed.

On the roof issue, the application judge dismissed Metro’s application and determined that Orillia had no duty to replace the roof. Metro’s obligation to maintain and repair the “Leased Premises” under the lease included the roof. The choice of the word “repair” as opposed to “replace” in the lease made no difference to the application judge. Metro cross-appealed on the roof issue.

ISSUES:

(1) Did the application judge commit an extricable error of law when he found an ambiguity in the contractual wording because he failed to interpret the contract as a whole?

(2) Did the application judge err in stating that nothing turned on the fact that Metro’s only obligation under the lease was to repair rather than replace the roof?

HOLDING:

Appeal allowed. Cross-appeal dismissed.

REASONING:

(1) Yes. A contract must be interpreted as a whole. Contractual interpretation is a question of mixed fact and law that requires consideration of both the words of a contract and its factual matrix. An extricable question of law is subject to a correctness standard of review. The Court held that the application judge’s error was in failing to consider the actual wording within the context of the lease as a whole, which led him to find that the provision was ambiguous. This was an extricable legal error. The Court found that when the 1999 amendment was read in the context of the original lease there was no ambiguity.

First, Metro was unable to explain what else the three additional periods, as set out in the amendment, could refer to apart from the interpretation advanced by Orillia. At the time of the amendment, five years remained in the first 25-year term. In extending the expiry of the original lease term from 2004 to 2014, the parties provided there would have been a “further” three options to renew. The phrase “for a total of five” in the amending agreement could only mean that the 10-year extension comprised an early exercise of two of Metro’s options to extend.

Second, the application judge’s interpretation would have rendered the overall term of the lease to be 60 years rather than 50, which was specifically precluded by the original lease. A basket clause in the amending agreement provided that the original lease would be amended where necessary to give effect to the amendments. However, the parties did not amend the 50-year limit provision. Had the parties intended to vary the maximum lease term they could have done so at the time of the amendment, but they did not.

Third, Orillia’s interpretation was supported by the factual matrix at the time of the amendment. Metro was expanding its store significantly. As part of Metro’s financing, Orillia contributed over $600,000 to the project. In return, Metro agreed to pay an additional $4.50/sq ft in rent in the expanded area of the store. There was no doubt that it was in Orillia’s best interest to secure an early extension of the lease term to 2014. It could be inferred that Metro’s expenditures were a business decision and Metro already had the right to remain on the premises for a further 30 years if it chose to exercise the options.

(2) No. Orillia approved, budgeted for, and entered into a contract to repair the roof leaks identified by Metro. Orillia later took the position that those steps were taken in a mistaken belief that it was obligated to repair the roof, but that it had no such obligation. It was in this context that Metro sought an order requiring Orillia to replace the roof. The Court agreed with the application judge’s conclusion that the roof repair was Metro’s obligation and that it was clear Orillia was not obligated to repair the roof.

Orillia’s obligation to make repairs and replacements was subject to Metro’s obligations under the lease. A tenant that covenants to repair the premises is not obligated to fix defects in the premises that go beyond a repair. After reviewing English and Canadian authorities on the topic, the Court set out the following considerations to be used when interpreting a covenant of repair in a lease:

(i) whether the repair gives the landlord back something entirely different than was demised;

(ii) the circumstances surrounding the obligation to repair including the specific wording of the covenant, the terms of the lease, the premises rented, and the condition of the premises at the start of the lease; and

(iii) whether the replacement or renewal is of subsidiary parts of the whole or of the entire thing.

In this case, the lease length was a maximum of 50 years, which was longer than the typical life-span of most roofs. The building was new when the lease commenced. The covenant to repair in the impugned lease imposed a general obligation upon Metro, subject to certain narrow exceptions. Metro did not argue that the roof repairs fell within one of the exceptions, but argued it was a “replacement” not a “repair” and therefore did not fall within the scope of the covenant to repair. The Court rejected Metro’s submissions. It could not be said that the roof overlay would have given Orillia something entirely different or better than what was originally demised or that it replaced substantially the entire premises. As it appeared likely that Metro would receive the bulk of the benefit of the roof overlay, any concerns regarding betterment were moot.


West v. Knowles, 2021 ONCA 296

[Feldman, Paciocco and Coroza JJ.A.]

COUNSEL:

T.J. McCarthy, for the appellant R.W.

C.A. Richard and K. A. Book, for the respondent J.W.

Keywords: Torts, Negligence, MVA, Causation, “But For” Test, “Material Contribution” Test, Damages, Past and Future Income Loss, Civil Procedure, Jury Charge, Evidence, Admissibility, Public Documents, Experts, Re-examination, Standard of Proof, Past Events, Hypothetical Events, “Real and Substantial Risk or Possibility of Loss”, Evidence Act, R.S.O. 1990, c. E.23, s.32, Pereira v. Hamilton Township Farmers’ Mutual Fire Insurance Co. (2006), 209 O.A.C. 127, Ross v. Bacchus, 2015 ONCA 347, Samms v. Moolla, 2019 ONCA 220, Clements v. Clements, 2012 SCC 32, Donleavy v. Ultramar Ltd., 2019 ONCA 687, Athey v. Leonati, [1996] 3 S.C.R. 458, R. v. Marquard, [1993] 4 S.C.R. 223, R. v. Anderson (1914), 22 C.C.C. 455 (Alta. C.A.), R. v. St. Lawrence Cement Inc. (2002), 60 O.R. (3d) 712 (C.A.), R. v. Spence, 2005 SCC 71, R. v. Perkins, 2007 ONCA 585, MacLeod v. Marshall, 2019 ONCA 842, Gao v. Dietrich, 2018 BCCA 372.

FACTS:

This case arose out of a single vehicle accident in 2010, where the respondent was a passenger in the vehicle and sustained injuries. The respondent brought an action against the operator of the vehicle and its owner where he sought compensation for injuries he allegedly suffered in the accident, including a head injury which left him with a permanent serious impairment of certain cognitive functions. The owner of the vehicle was the appellant in this appeal.

At trial, the respondent argued he was entitled to compensation for past and future income loss based on the premise that “but for” the accident he would have completed his post-secondary education and secured employment at an elevated earning capacity. A jury ultimately awarded the respondent over $1 million, inclusive of interest and costs, where much of the award was for past and future income loss.

The appellant sought to set aside the jury award and have a new trial on damages ordered. The appellant submitted that the trial judge misdirected the jury on the test for causation and improperly excluded relevant evidence in relation to two expert opinions. The appellant argued that together, these errors resulted in an excessive damages award that constituted a miscarriage of justice.

ISSUES:

(1) Did the trial judge err in instructing the jury with respect to the causation test they were to apply?

(2) Did the trial judge err by curtailing cross-examination of the respondent’s expert witness and denying the request by appellant’s trial counsel to have the Statistics Canada Report filed as an exhibit?

(3) Did the trial judge err in refusing to allow the appellant’s trial counsel to direct the appellant’s expert witness to specific parts of her expert report during re-examination?

(4) Did the trial judge err in the jury direction of standard of proof for loss of past income?

HOLDING:

Appeal dismissed.

REASONING:

(1) Did the trial judge err in instructing the jury with respect to the causation test they were to apply?

No. The Court held that no reversible error occurred in the jury direction on causation.

The appellant argued that the trial judge erred by directing the jury to apply the “material contribution” test when evaluating causation related to damages for past and future income loss. Instead, the appellant argued that the trial judge should have directed the jury to apply the “but for” test.

When dealing with a challenge to the sufficiency of the jury direction, the question the Court must answer is “whether the jury would have properly understood the law at the end of the charge”. The issue in question was whether the respondent had met his burden of establishing that “but for” the accident he would have finished post-secondary education, thereby elevating his earning power. When instructing the jury, the trial judge made it clear that in order for the respondent to benefit from such a finding of causation when damages were calculated, the jury had to be satisfied that he would have completed his post-secondary education if he had not been injured in the accident.

Regarding past income loss, the trial judge directed the jury that they must assess the amount the respondent might reasonably have earned from the date of the accident to the trial, had the accident not occurred and compare it to his actual earnings to determine whether the respondent suffered a loss of income to date. The trial judge expressly told the jury that this question required them “to predict, to some extent, what would have happened but for the accident”. The trial judge subsequently instructed the jury on how to proceed if they were to conclude that because of the injuries the respondent suffered from the accident, he did not complete his post-secondary education. Regarding future income loss, the trial judge directed the jury that they must assess “the difference, if any, between [the respondent’s] potential earning capacity if he had not suffered the injury and his actual earnings capacity”

Based on this, the Court found that each of these directions required the jury to find the “but for” test to be satisfied. Therefore, the Court held that even if the trial judge was wrong to use “material contribution” language, the jury would have properly understood that they were to apply a “but for” analysis in assessing causation for the respondent’s past and future income loss.

Further, the Court did not accept the appellant’s submission that her trial counsel objected to the trial judge’s “material contribution” instruction. Rather, the Court found that the appellant’s trial counsel raised concerns only about comments the trial judge had made in his draft charge relating to the applicable onus of proof. Therefore, the Court stated that this was a case where the appellant challenged a jury charge in the absence of an objection at trial, which in turn, further supported its conclusion that no reversible error occurred.

 

(2) Did the trial judge err by curtailing cross-examination of the respondent’s expert witness and denying the request by appellant’s trial counsel to have the Statistics Canada Report filed as an exhibit?

No. The Court held that the trial judge did not unfairly curtail the cross-examination the respondent’s expert witness, nor did the trial judge err by denying the appellant’s request to admit the Report into evidence as an exhibit.

At trial, the respondent called an accountant to give expert evidence relating to the respondent’s economic loss. During cross-examination of the respondent’s expert witness, appellant’s trial counsel produced a report published by Statistics Canada (the “Report”) containing data and conclusions linking post-secondary educational attainment to income levels. After asking the respondent’s expert witness a series of questions about the Report, appellant’s trial counsel asked the trial judge to have it filed as an exhibit. The trial judge declined to do so, noting that the Report had “not been proven” and that “the witness [had] not relied upon [the Report]”. The appellant argued that the trial judge erred by “unfairly” limiting the cross-examination on an “authoritative and public report”, and by not making the Report an exhibit, which she argued was admissible under s. 32 of the Ontario Evidence Act, R.S.O. 1990, c. E.23. The Court did not accept the appellant’s submissions for the following reasons.

First, the Court found that the trial judge did nothing to curtail the cross-examination. The trial judge permitted the questions the appellant’s trial counsel attempted to ask using the Report and the cross-examination only ended only when appellant’s counsel indicated that he had finished his questions.

Second, the Court found that the Report was not admissible in the circumstances and that the trial judge was correct in excluding the Report on the basis that the witness had not relied on it. The law permits expert witnesses to be cross-examined using a published document, but the document itself does not become evidence unless the expert effectively incorporates it into their evidence by recognizing it as authoritative (R. v. Marquard, [1993] 4 S.C.R. 223, R. v. Anderson (1914), 22 C.C.C. 455 (Alta. C.A.)). The Court found that the respondent’s expert witness had never seen the Report prior to trial and that she did not rely on the Report at trial. Although she had expressed agreement with specific propositions put to her from the Report, at no time did she affirm the general accuracy of the Report or recognize the Report itself to be authoritative. Therefore, the appellant did not establish a proper basis for the admission of the Report.

Regarding s. 32 of the Evidence Act, the Court stated that this provision was not cited before the trial judge and even if it was now open to the appellant to rely on s. 32 on appeal, the provision did not support the admission of the Report. The Court held that assuming the Report was a public document within the meaning of s. 32, it would only be admissible under s. 32(1) if it was produced “from the proper custody” and the appellant led no such evidence.

 

(3) Did the trial judge err in refusing to allow the appellant’s trial counsel to direct the appellant’s expert witness to specific parts of her expert report during re-examination?

No. The Court held that the trial judge did not err in his decision and that the appellant had failed to establish that this ruling caused a miscarriage of justice.

At trial, the appellant had called a neurologist as an expert witness. The issue occurred regarding testimony that the appellant’s expert witness gave in cross-examination about the length of time the respondent had been unconscious as a result of the accident. During her re-examination, the respondent’s trial counsel objected to the attempt by the appellant’s trial counsel to direct her to a specific page of her report. The trial judge held that the appellant’s trial counsel was permitted to ask her to look in her report, but he could not direct her to a specific page.

The Court stated that the trial judge was entitled to permit the appellant’s expert witness to consult her report to refresh her memory and that the trial judge had invited appellant’s trial counsel to have her review her report for this purpose. Therefore, the Court found no error in what transpired. Further, the Court found that on its own examination of the page of the report to which appellant’s trial counsel attempted to direct her, there was nothing that would have supported the belief of the appellant’s expert witness that the respondent was unconscious for only a few minutes or less. The Court also found that the appellant had not produced any other evidence to support this contention.

 

(4) Did the trial judge err in the jury direction of standard of proof for loss of past income?

No. On appeal, the appellant advanced the additional argument that the jury charge contained an error in the description of the respondent’s onus of proof to establish past income loss. The appellant argued that past income loss is a past event, rather than a hypothetical event. Therefore, the trial judge erred by instructing the jury that the respondent was entitled to compensation for past income loss if he established “a real and substantial risk or possibility of loss of past income”. Instead, the appellant argued that the jury should have been told that the onus on the respondent to establish past income loss was on a balance of probabilities.

The Court did not accept the appellant’s conception of the law and noted that the same argument had previously been rejected in MacLeod v. Marshall, 2019 ONCA 842. Instead, the Court stated the relevant general rule from Gao v. Dietrich, 2018 BCCA 372 is as follows: With respect to past facts, the standard of proof is the balance of probabilities. With respect to hypothetical events, both past and future, the standard of proof is a “real and substantial possibility”.

The Court stated that the income the respondent would have earned between the accident and trial, but for his injury, was hypothetical. Therefore, the trial judge was correct to instruct the jury to use the “real and substantial risk or possibility” standard of proof.


SHORT CIVIL DECISIONS

Hornstein v. Kats, 2021 ONCA 293

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

COUNSEL:

S.R. Dyment, for the appellant

M.A. Ross and S.A. Sam, for the respondent, A.K.

R.H. in person

Keywords: Business Associations, Partnerships, Real Property, Beneficial Interests, Torts, Slander of Title, Evidence, Credibility, Punitive Damages, Independent Actionable Wrong, Land Titles Act, RSO 1990, c L5, s 132, Whiten v Pilot Insurance Co., 2002 SCC 18.