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COURT OF APPEAL SUMMARIES (JUNE 20, 2022 – JUNE 24, 2022)

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Good afternoon.

These are our summaries of the civil decisions of the Ontario Court of Appeal for the week of June 20. It was a busy week.

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In Elementary Teachers Federation of Ontario v. York Region District School Board, the Court determined that public school teachers are protected from unreasonable search and seizure by their principal. The principal had accessed communications between teachers that were critical of the principal, who they believed gave preferential treatment to a colleague. The comments were saved in one of the teacher’s private and password-protected Google accounts. The comments formed the basis for the imposition of discipline. The Court allowed the appeal and quashed the award of the arbitrator, who had found no breach of privacy.

In Bowman v Ontario, the Court determined that the certification judge erred in dismissing the appellants’ certification motion in its entirety. The Court found that it was not plain and obvious that the claim that Ontario’s early termination of its basic income program constituted a breach of contract would fail. That claim disclosed a reasonable cause of action pursuant to s. 5(1)(a) of the Class Proceedings Act, and should have been certified. However, the other claims of breach of undertaking, negligence, breach of a public law duty, and breach of s. 7 of the Canadian Charter of Rights and Freedoms were rightly not certified, as they did not disclose a reasonable cause of action.

In Intact Insurance Company v Zurich Insurance Company Ltd, Intact paid for environmental remediation on behalf of its insured beyond the policy limits. It sought to recover the overpayment from others who were subject to a remediation order under section 93 of the Environmental Protection Act, and their insurer, Zurich. The Court dismissed the appeal, finding that Intact did not have a claim under section 99 of the EPA. Moreover, there was no unjust enrichment, as it was Intact’s insured that was enriched, not the respondents.

In Selkirk v Ontario (Health and Long-Term Care), the appellant’s husband died of an alcohol-related liver disease and was not eligible for a transplant under the transplant regime. She unsuccessfully challenged the regime. Her appeal was mostly dismissed, although her standing to represent her husband’s Estate on the application and on the appeal was upheld. The Court did set aside the application judge’s finding that the current transplant regime was not subject to Charter scrutiny, without affirming or reversing the application judge on this issue. In partial dissent, Justice Lauwers would not have granted the appellant standing.

In Kiselman v. Klerer, the Court confirmed that a claim to arrears of rent and damage to the premises by a residential landlord against a former tenant can only be brought in court and not before the Landlord and Tenant Board. The Landlord and Tenant Board, which has exclusive jurisdiction during the currency of the tenancy, loses all jurisdiction once the tenant vacates the premises.

Other topics covered this week included oversight of a claims process in a class proceeding, stay pending leave to appeal in the context of regulated professions (doctors), debtor-creditor and setting aside a dismissal for delay.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Elementary Teachers Federation of Ontario v. York Region District School Board, 2022 ONCA 476

Keywords: Labour Law, Workplace Grievance, Breach of Privacy, Education Law, Administrative Law, Judicial Review, Standard of Review, Constitutional Law, Freedom from Unreasonable Search and Seizure, Canadian Charter of Rights and Freedoms, s. 8, Education Act, R.S.O. 1990, c. E.2, s. 265, Courts of Justice Act,  R.S.O. 1990, c. C.43, s. 109(1), s. 24(1),  R. v. Cole, 2012 SCC 53, Doré v. Barreau du Québec, 2012 SCC 12, Longueépée v. University of Waterloo, 2020 ONCA 830, Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, R. v. Shepherd, 2009 SCC 35, Chamberlain v. Surrey School District No. 36, 2002 SCC 86, R. v. M. (M.R.), [1998] 3 S.C.R. 393, R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627, Comité paritaire de l’industrie de la chemise v. Potash, [1994] 2 S.C.R. 406, R. v. Edwards, [1996] 1 S.C.R. 128, R. v. Tessling, 2004 SCC 67, R. v. Marakah, 2017 SCC 59, R. v. A.M., 2008 SCC 19, R. v. Plant, [1993] 3 S.C.R. 281, R. v. Jarvis, 2019 SCC 10, Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145, Chris Hunt and Micah Rankin, “R. v. Spencer: Anonymity, the Rule of Law, and the Shrivelling of the Biographical Core” (2015) 61 McGill L.J. 193

Akhavan v. Taheri, 2022 ONCA 483

Keywords: Contracts, Debtor-Creditor, Promissory Notes, Civil Procedure, Trials, Evidence, Discovery Evidence, John W. Morden & Paul M. Perell, The Law of Civil Procedure in Ontario, 4th ed., (LexisNexis: Toronto, 2020)

Philbert v. Graham , 2022 ONCA 488

Keywords: Civil Procedure, Appeals, Dismissal for Delay, Setting Aside, Frivolous, Vexatious and Abuse of Process, Rules of Civil Procedure, Rule 2.1.01, Paulsson v University of Illinois, 2010 ONCA 21, Kudrocova v Kronberger, 2021 ONCA 563

Kiselman v. Klerer, 2022 ONCA 489

Keywords: Real Property, Residential Tenancies, Damages, Arrears of Rent, Damage to Premises, Civil Procedure, Small Claims Court, Jurisdiction, Administrative Law, Landlord Tenant and Board, Jurisdiction, Residential Tenancies Act, 2006, SO 2006 c. 17, Courts of Justice Act, RSO 1990, c. C.43, 1162994 Ontario Inc. v. Bakker, 2004 CanLII 59995 (Ont. C.A.), Capreit Limited Partnership v. Griffin, 2016 ONSC 5150 (Div. Ct.), Kissell v. Milosevic, 2008 CanLII 27475 (Ont. Div. Ct.), Finney v. Cepovski, 2015 CanLII 48918 (Ont. S.C.), Fong v. Lemieux, 2016 CanLII 30092 (Ont. S.C.)

Intact Insurance Company v Zurich Insurance Company Ltd., 2022 ONCA 485

Keywords: Environmental Law, Statutory Liability, Duty to Remediate, Remedies, Damages, Section 99 EPA Damages, Remediation Costs, Unjust Enrichment, Insurance Law, Indemnification, Policy Limits, Environmental Protection Act, RSO. 1990, c. E.19, ss 1(1), 3, 93, 99(1)(2)(a)(b)(4)(8), 99(3)(7)(8), 100(4),  Canada Trustco Mortgage Co. v Canada, 2005 SCC 54, Castonguay Blasting Ltd. v Ontario (Environment), 2013 SCC 52, Midwest Properties Ltd. V Thordarson, 2015 ONCA 819, MVL Leasing Ltd. V CCI Group Inc., 2018 ONSC 1800, Moore v Sweet, 2018 SCC 52, Sez-A-Me-Inc. v Drewlo Holdings Inc., 2018 ONSC 7670, Rogers Communications Partnership v. Society of Composers, Authors and Music Publishers of Canada, 2016 FCA 28, Garland v Consumers’ Gas Co., 2004 SCC 25, Peel (Regional Municipality) v Canada; Peel (Regional Municipality) v Ontario, [1992] 3 SCR 762, Grover v Hodgins, 2011 ONCA 72, Birkett v Astris Energi Inc. (2004), 45 BLR (3d) 293 (Ont. CA), Accuworx Inc. v Enroute Imports Inc., 2016 ONCA 161

Bowman v. Ontario, 2022 ONCA 477

Keywords: Crown Liability, Breach of Contract, Breach of Undertaking, Torts, Negligence, Breach of a Public Law Duty, Charter Claims, Civil Procedure, Class Proceedings, Certification, No Reasonable Cause of Action, Appeals, Standard of Review, Class Proceedings Act, 1992, S.O. 1992, c. 6, ss. 5(1), Crown Liability and Proceedings Act, 2019, R.S.C., 1985, c. C-50, ss 11(4), Canadian Charter of Rights and Freedoms, ss 7, 24(1), Bowman et al. v. Her Majesty the Queen, 2019 ONSC 1064, 58 Admin. L.R. (6th) 327 (Div. Ct.)., Hollick v. Toronto (City), 2001 SCC 68, Pioneer Corp. v. Godfrey, 2019 SCC 42, Shah v. LG Chem Ltd., 2018 ONCA 819, Fehr v. Sun Life Assurance Company of Canada, 2018 ONCA 718, The Catalyst Capital Group Inc. v. Dundee Kilmer Developments Limited Partnership, 2020 ONCA 272, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Ontario Public Service Employees Union v. Ontario (2005), 13 C.P.C. (6th) 178 (Ont. S.C.), Nelson (City) v. Marchi, 2021 SCC 41, Francis v. Ontario, 2021 ONCA 197, Wright v. Horizons ETFS Management (Canada) Inc., 2020 ONCA 337, McGee v. Farazli, 2020 ONSC 7066 (Div. Ct.)

Selkirk v Ontario (Health and Long-Term Care), 2022 ONCA 478

Keywords: Health Law, Constitutional Law, Civil Procedure, Parties, Standing, Self-Represented Litigant, Canadian Charter of Rights and Freedoms, sections 7, 12, & 15, Rules of Civil Procedure, Rules 2.03, 9.01 & 15.01, Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, Thorson v. Canada (Attorney General), [1975] 1 S.C.R. 138, Nova Scotia (Board of Censors) v. McNeil, [1976] 2 S.C.R. 265, Canada (Minister of Justice) v. Borowski, [1981] 2 S.C.R. 575, Ernst v Alberta Energy Regulator, 2017 SC 1, Bogaerts v. Ontario (Attorney General), 2019 ONCA 876, Barendregt v. Grebliunas, 2022 SCC 22, Allen v. Alberta, 2015 ABCA 277, Grant v. Winnipeg Regional Health Authority, 2015 MBCA 44, Canada (Attorney General) v. Bedford, 2013 SCC 72, Carter v. Canada (Attorney General), 2015 SCC 5, R. v. Smith, 2015 SCC 34, New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, R. v. Palmer, [1980] 1 S.C.R. 759, Public School Boards’ Association of Alberta v. Alberta (Attorney General), [2000] 1 S.C.R. 44, R. v. Powley (2001), 53 O.R. (3d) 35 (C.A.), Sengmueller v. Sengmueller (1994), 17 O.R. (3d) 208 (C.A.)

Fanshawe College of Applied Arts and Technology v. Hitachi, Ltd., 2022 ONCA 480

Keywords: Civil Procedure, Class Proceedings, Claims Process, Administration, Review, Class Proceedings Act, 1992, SO 1992, c 6, s 12, Canada (Attorney General) v Fontaine, 2017 SCC 47, BancroftSnell v Visa Canada Corp., 2016 ONCA 896

Thirlwell v. College of Physicians and Surgeons of Ontario, 2022 ONCA 494

Keywords: Administrative Law, Judicial Review, Regulated Professions, Physicians and Surgeons, Competence, Professional Misconduct, Civil Procedure, Leave to Appeal, Stay Pending Leave, Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, SO 1991, c 18, s 25.4, Rules of Civil Procedure, Rule 63.02, Zafar v Saiyid, 2017 ONCA 919, M & M Homes Inc. v. 2088556 Ontario Inc, 2020 ONCA 134, Fontaine v Canada (Attorney General), 2012 ONCA 206, Morguard Residential v Mandel, 2017 ONCA 177, Iness v Canada Mortgage and Housing Corp. (2002), 220 D.L.R. (4th) 682 (Ont. C.A.), J.P.B. v C.B., 2016 ONCA 996, Sazant v The College of Physicians and Surgeons of Ontario, 2011 CarswellOnt 15914 (Ont. C.A.)

Short Civil Decisions

Letwin v. Camp Mart, 2022 ONCA 475

Keywords: Contracts, Torts, Negligence, Civil Procedure, Evidence

Street v. Toronto (Police Services Board), 2022 ONCA 486

Keywords: Torts, Assault, Civil Procedure, Appeals, Evidence, Canadian Charter of Rights and Freedoms, Palmer v. The Queen, [1980] 1 S.C.R. 759

De Havilland Aircraft of Canada Limited v. Dias, 2022 ONCA 491

Keywords: Labour Law, Unions, Civil Procedure, Injunctions

Anthony v. Vinczer, 2022 ONCA 493

Keywords: Real Property, Contracts, Duty of Good Faith, Mortgages, Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25


CIVIL DECISIONS

Elementary Teachers Federation of Ontario v. York Region District School Board, 2022 ONCA 476

[Doherty, Benotto and Huscroft JJ.A.]

Counsel:

H. Goldblatt and D. Sheppard, for the appellant

M. Hines, P. Murray and L. Campbell, for the respondent

Keywords: Labour Law, Workplace Grievance, Breach of Privacy, Education Law, Administrative Law, Judicial Review, Standard of Review, Constitutional Law, Freedom from Unreasonable Search and Seizure, Canadian Charter of Rights and Freedoms, s. 8, Education Act, R.S.O. 1990, c. E.2, s. 265, Courts of Justice Act,  R.S.O. 1990, c. C.43, s. 109(1), s. 24(1),  R. v. Cole, 2012 SCC 53, Doré v. Barreau du Québec, 2012 SCC 12, Longueépée v. University of Waterloo, 2020 ONCA 830, Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, R. v. Shepherd, 2009 SCC 35, Chamberlain v. Surrey School District No. 36, 2002 SCC 86, R. v. M. (M.R.), [1998] 3 S.C.R. 393, R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627, Comité paritaire de l’industrie de la chemise v. Potash, [1994] 2 S.C.R. 406, R. v. Edwards, [1996] 1 S.C.R. 128, R. v. Tessling, 2004 SCC 67, R. v. Marakah, 2017 SCC 59, R. v. A.M., 2008 SCC 19, R. v. Plant, [1993] 3 S.C.R. 281, R. v. Jarvis, 2019 SCC 10, Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145, Chris Hunt and Micah Rankin, “R. v. Spencer: Anonymity, the Rule of Law, and the Shrivelling of the Biographical Core” (2015) 61 McGill L.J. 193

facts:

Ms. R and Ms. S (the “grievors”) were two teachers employed on contracts at Mount Joy Public School in the York Region. They believed one of the other teachers was receiving preferential treatment from the school principal. They kept a log of their concerns on Ms. S’s private Google account. The private communications on their personal, password-protected log were read and captured by screenshots taken by their school principal, and then used by the respondent school board to discipline them.

The union grieved the discipline. It sought to have the reprimands rescinded and sought $15,000 in damages for each of the grievors for breach of their privacy rights. The grievance proceeded to arbitration in accordance with the terms of the collective agreement. The arbitrator found that Ms. S had a diminished expectation of privacy, and the grievors’ reasonable expectation of privacy was not breached. The Divisional Court concluded that the issue was not rendered moot by the removal of the discipline from the grievors’ records and ordered an application for judicial review of the tribunal decision.

issue:

Did the labour relations arbitrator err in interpreting and applying s. 8 of the Canadian Charter of Rights and Freedoms and did the arbitrator reach an unreasonable decision in dismissing the grievance?

holding:

Appeal allowed.

reasoning:

Yes.

The factual findings of the arbitrator were entitled to deference, but whether the grievors had a reasonable expectation of privacy is a question of law that is subject to review for correctness: R. v. Shepherd. The Court determined that s. 8 applied to the actions of the principal and the school board. The protection of s. 8 is not limited to the criminal and quasi-criminal law context: see e.g., R. v. McKinlay Transport Ltd.

Whether a person has a reasonable expectation of privacy is a normative question: it requires the evaluation of a person’s legitimate interests to determine whether they should be given priority over competing interests. The determination is necessarily a value-laden inquiry that is conducted in fact-specific circumstances.

The key question is whether an expectation of privacy is objectively reasonable, and that is informed by several non-exhaustive considerations:

  • the location of the search;
  • whether the subject matter was in public view;
  • whether the subject matter was abandoned;
  • whether the information was already in the hands of third parties, and if so, whether it was subject to an obligation of confidentiality;
  • whether the investigative technique was intrusive in relation to the privacy interest;
  • whether the investigative technique itself was objectively unreasonable; and
  • whether the information exposed any intimate details of the claimant’s lifestyle, or information of a biographical nature.

That the grievors had a subjective expectation of privacy in the contents of their personal conversations is clear. The grievors did all that they could to protect the privacy of their communications. Their log was at all times password protected and reserved to their use. The grievors had every reason to expect that their conversation was, and would remain, private. The grievors’ subjective expectation of privacy was objectively reasonable and deserving of protection. The objective reasonableness of an expectation of privacy is determined having regard to the potential for personal information to be revealed, not whether the information revealed is in fact personal: R. v. Marakah. Whether information is considered part of the “biographical core” of a claimant is not determinative of the objective reasonableness of an expectation of privacy. The arbitrator’s conclusion that the log was left in “plain sight” and that the grievors had only a diminished expectation of privacy as a result skewed her analysis of the reasonableness of the search.

The statutory authority for the search was s. 265 of the Education Act, which prescribes the duties of school principals. These provisions establish authority in principals to make decisions in a wide range of circumstances governing students and staff alike. The rationale in M. (M.R.) supporting the authority of principals to search students suggests that this power may seldom be exercised with teachers, and the nature of the search permitted will be limited. M. (M.R.) counsels flexibility and consideration of all the circumstances in determining whether a search and seizure is reasonable. School authorities such as principals are not responsible for the welfare of teachers and staff in the same way as students, and the need to act quickly concerning teachers and staff is less likely to arise. Concerns arising out of employment relationships in the workplace are unlikely to justify a similarly broad and flexible search and seizure authority.

It is not possible to prescribe the circumstances in which a search and seizure will be reasonable in workplaces governed by the Charter. Workplaces differ dramatically, and whether a reasonable expectation of privacy exists depends on the unique circumstances of each case. The principal failed to respect the grievors’ reasonable expectation of privacy. The grievors were within their rights to be judgmental – to criticize the school, their fellow employees, and the principal in their private communications. Their private thoughts were not to be mined by the school principal to address his employment relations concerns.

In summary, the arbitrator erred in interpreting and applying the law concerning the grievors’ s. 8 rights and reached an unreasonable decision. The majority of the Divisional Court erred in asserting that the grievors did not have the right to the protection of s. 8 in their workplace and erred in asserting that the arbitrator’s decision was subject to two levels of deference. The principal’s actions in reading the log, taking screenshots of it, and sending it to the Board violated the grievors’ reasonable expectation of privacy and constituted an unreasonable search under s. 8.


Akhavan v. Taheri, 2022 ONCA 483

[Brown, Roberts, and Paciocco JJ.A.]

Counsel:

J. Heller, for the appellant

R. Flom, for the respondent

Keywords: Contracts, Debtor-Creditor, Promissory Notes, Civil Procedure, Trials, Evidence, Discovery Evidence,  John W. Morden & Paul M. Perell, The Law of Civil Procedure in Ontario, 4th ed., (LexisNexis: Toronto, 2020)

facts:

The appellant appealed the judgment ordering him to pay the respondent in respect of loans made to the appellant which were evidenced by promissory notes. The trial judge found that the June Note and July Note evidenced two separate loans and rendered judgment accordingly.

issues:

(1) Did the trial judge err in principle in reaching her conclusion that there were two separate loans evidenced by two different promissory notes, instead of one loan?

(2) Should the judgment be set aside on the basis that the poor quality of the trial transcript prevented proper appellate review?

holding:

Appeal dismissed.

reasoning:

(1) No.

The Court concluded that there was no merit to the complaint that the trial judge tainted her credibility findings by not sharing with counsel during trial her interest calculations. The trial judge’s calculations were simple arithmetic, and she fully explained how she performed her calculations. The trial judge was fully alive to: the limits of the documentary record; the issue of the lack of production of certain bank records, the language of replacement on the face of the notes; the difference between the respondent’s evidence on discovery and at trial; and the implications of the difficulties encountered in cross-examining the appellant.

The appellant further submitted that the trial judge erred by failing to use portions of his examination for discovery that were read in at trial by plaintiff’s counsel. The Court concluded that the appellant’s submission ignored the entirety of the passage from the appellant’s discovery read in at trial by the plaintiff’s counsel. A party reading in evidence from the adverse party’s examination for discovery is not precluded from adducing other evidence that may rebut discovery evidence that the party reads in. The evidence read in becomes part of the totality of the evidence available for the trial judge to consider. The Court concluded that the appellant had not pointed to any basis for appellate interference with those findings: that the trial judge’s reasons did not disclose a palpable and overriding error of fact, an error in principle in her credibility-finding process, any misapprehension of the evidence or an unreasonable interpretation of the language of the notes.

(2) No.

The appellant did not attempt to link any alleged errors in the trial judge’s finding of fact or credibility to areas of the transcript where the reporter could not decipher the audio recording. Nor had the appellant demonstrated that the indecipherable portions likely contained evidence that would call into question findings made by the trial judge. The Court determined that this was an argument in the air, made without an adequate foundation. In the specific circumstances of this case, the particular deficiencies that did exist in the transcript did not prevent appellate review of the grounds of appeal advanced by the appellant, nor did they cause a substantial wrong or miscarriage or justice that would require a new trial.


Philbert v Graham, 2022 ONCA 488

[George J.A. (Motion Judge)]

Counsel:

E. P., acting in person

K. Gordon, for the responding party

Keywords: Civil Procedure, Appeals, Dismissal for Delay, Setting Aside, Frivolous, Vexatious and Abuse of Process, Rules of Civil Procedure, Rule 2.1.01, Paulsson v University of Illinois, 2010 ONCA 21, Kudrocova v Kronberger, 2021 ONCA 563

facts:

The appellant and respondent were once neighbours. The respondent is a lawyer employed by the Department of Justice. The appellant alleged, amongst other things, that the respondent has harassed, defamed, surveilled, and attempted to kidnap her.

The appellant commenced four actions against the respondent, three of which were dismissed pursuant to Rule 2.1.01 of the Rules of Civil Procedure as being frivolous, vexatious or an abuse of process.

The appellant brought three motions to the Court. She, first, sought to extend the time to perfect her appeal of Steele J.’s order, which was dismissed by Thorburn J.A. on February 9, 2022. The appellant then brought a motion to have Thorburn J.A.’s decision reviewed by a panel of the Court, which was dismissed by the Registrar for failing to perfect it in time. The appellant then moved to set aside the Registrar’s dismissal, which was the current issue before the Court.

The appellant argued that she did file her motion in time; did so according to the Rules; and that, therefore, the Registrar should not have dismissed it.

issue:

Should the appellant’s request to set aside the Registrar’s dismissal be set aside?

holding:

Motion dismissed.

reasoning:

No.

A judge’s decision to set aside or vary a decision of the Registrar is discretionary. The Court was not confined to determining whether the Registrar’s decision was correctly made or not. When determining whether to set aside a Registrar’s decision to dismiss for delay, the following factors should be considered:

i) whether the appellant had an intention to appeal within the time for bringing an appeal;
ii) the length of the delay and any explanation for the delay;
iii) any prejudice to the respondent caused by the delay; and
iv) the justice of the case.

The overriding consideration on a motion to set aside a dismissal order is the justice of the case, which should involve an assessment of the appeal’s merits.

There was no question that the appellant had an intention to seek a review of Thorburn J.A.’s order before the deadline. The Court suspected that she instantly formed that intention upon receipt of the decision. Further, there was no prejudice to the respondent caused by the delay.

The length of the delay was minimal. The appellant delivered a motion record to the court late in the evening on April 5, 2022, which was the extended deadline to perfect the motion, although this was at best a neutral factor, given that the motion record was not served on the respondent and did not contain an affidavit in support of her motion, as required by Rules 61.16(4)(a) and 37.10(2)(c) of the Rules of Civil Procedure.

The appellant’s explanation appeared to be that the Court and the respondent were causing the delay, including by blocking her emails. The Court was not satisfied with her explanation for failing to perfect, as the Registrar of the Court was communicating with her, and the appellant was aware of alternative means for effecting service on the respondent other than by email, and had before delivered materials to the respondent by registered mail.

Regardless, the Court dismissed the motion because to grant it would not be in the interests of justice, as there was no merit to the appeal. An assessment of the appeal’s merits required consideration of whether it had any real chance of success. In that respect, both Steele J. of the Superior Court, and Thorburn J.A., had determined that the appellant’s claims were frivolous and vexatious.

As the claim was devoid of merit and had no chance of success, the justice of the case required dismissing the motion.


Kiselman v. Klerer, 2022 ONCA 489

[Brown, Roberts and Paciocco JJ.A.]

Counsel:

J. R. Forget, for the appellant

D. Krysik, for the respondent

E. Fellman, for the intervener Landlord and Tenant Board

Keywords: Real Property, Residential Tenancies, Damages, Arrears of Rent, Damage to Premises, Civil Procedure, Small Claims Court, Jurisdiction, Administrative Law, Landlord Tenant and Board, Jurisdiction, Residential Tenancies Act, 2006, SO 2006 c. 17,Courts of Justice Act, RSO 1990, c. C.43, 1162994 Ontario Inc. v. Bakker, 2004 CanLII 59995 (Ont. C.A.), Capreit Limited Partnership v. Griffin, 2016 ONSC 5150 (Div. Ct.), Kissell v. Milosevic, 2008 CanLII 27475 (Ont. Div. Ct.), Finney v. Cepovski, 2015 CanLII 48918 (Ont. S.C.), Fong v. Lemieux, 2016 CanLII 30092 (Ont. S.C.)

facts:

The appellant, U.K., commenced a Small Claims Court claim against the respondents, his former residential tenants. The claim was for $17,166.55 in total damages for the non-payment of rent, and for costs incurred to repair undue damage that the appellant alleged the respondents caused to the rental unit. A deputy Small Claims Court judge dismissed the claim for want of jurisdiction. That decision was upheld on appeal to the Divisional Court. Leave to appeal the Divisional Court decision was granted.

issue:

Did the Division Court appeal judge err in holding that the Landlord and Tenant Board (“LTB”) had exclusive jurisdiction and dismissing the appeal?

holding:

Appeal allowed.

reasoning:

Yes.

In order to have exclusive jurisdiction, a tribunal must first have jurisdiction. The LTB did not have jurisdiction to adjudicate the claims that the appellant was seeking to advance, let alone exclusive jurisdiction. At the relevant time, ss. 87(1) and 89(1) of the Residential Tenancies Act, now repealed and replaced, provided that the LTB only had jurisdiction over a claim for the payment of rent, or for the recovery of the costs of repairing damage, when the tenant is in possession of the rental unit. In 1162994 Ontario Inc. v. Bakker, Doherty J.A. held with respect to the identically worded predecessor provisions to s. 87(1) that the LTB does not have jurisdiction over claims for arrears of rent where the connection between the tenant and the rental unit has been severed. Bakker has not been overturned and has been repeatedly followed, including by the Divisional Court: see Capreit Limited Partnership v. Griffin; Kissell v. Milosevic.

The Court disagreed with the respondents’ argument that Bakker does not apply and their reliance on certain Small Claims Court decisions, including Finney v. Cepovski and Fong v. Lemieux. The line of authority the respondents relied upon was inconsistent with the clear language of former ss. 87(1) and 89(1) and should not be followed. That erroneous line of authority was also inconsistent with the clear language of s. 23 of the Courts of Justice Act, which describes the jurisdiction of the Small Claims Court based not on the exercise of due diligence but on the monetary amount of a claim. Moreover, although Bakker dealt only with claims for rent arrears, its reasoning applies to the former s. 89(1) relating to damage claims for undue damage to the rental unit. Given that the respondents had moved out and severed their connection to the rental unit, the LTB did not have jurisdiction, let alone exclusive jurisdiction over this litigation. Instead, the claims fell within the monetary jurisdiction of the Small Claims Court.


Intact Insurance Company v. Zurich Insurance Company Ltd., 2022 ONCA 485

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

Counsel:

T. Farber and M. Dusseault, for the appellant

F. Csathy and C. Afonso, for the respondents

Keywords: Environmental Law, Statutory Liability, Duty to Remediate, Remedies, Damages, Section 99 EPA Damages, Remediation Costs, Unjust Enrichment, Insurance Law, Indemnification, Policy Limits, Environmental Protection Act, RSO. 1990, c. E.19, ss 1(1), 3, 93, 99(1)(2)(a)(b)(4)(8), 99(3)(7)(8), 100(4),  Canada Trustco Mortgage Co. v Canada, 2005 SCC 54, Castonguay Blasting Ltd. v Ontario (Environment), 2013 SCC 52, Midwest Properties Ltd. V Thordarson, 2015 ONCA 819, MVL Leasing Ltd. V CCI Group Inc., 2018 ONSC 1800, Moore v Sweet, 2018 SCC 52, Sez-A-Me-Inc. v Drewlo Holdings Inc., 2018 ONSC 7670, Rogers Communications Partnership v. Society of Composers, Authors and Music Publishers of Canada, 2016 FCA 28, Garland v Consumers’ Gas Co., 2004 SCC 25, Peel (Regional Municipality) v Canada; Peel (Regional Municipality) v Ontario, [1992] 3 SCR 762, Grover v Hodgins, 2011 ONCA 72, Birkett v Astris Energi Inc. (2004), 45 BLR (3d) 293 (Ont. CA), Accuworx Inc. v Enroute Imports Inc., 2016 ONCA 161

facts:

The appellant, Intact Insurance Company, was the insurer of a transportation company. A truck owned by Intact’s insured, and operated by one of its employees, overturned while carrying a shipment of liquid formaldehyde. The formaldehyde was released onto residential lands and into a municipal water supply. Liquid formaldehyde is a pollutant within the meaning of the Environmental Protection Act, R.S.O. 1990, c. E.19 (“EPA”). Under s. 93 of the EPA, the person with control of the pollutant and the owner of the pollutant at the time of the environmental spill was responsible to eliminate the adverse effects of the spill and restore the environment (the “duty to remediate”). Intact’s insured, was subject to a s. 93 duty to remediate. In fulfillment of its policy obligations to its insured, Intact made payments toward remediation efforts. But Intact claims it went further than its policy obligations. Intact’s payments exceeded the financial limits of its policy by about $2.9 million.

Instead, Intact claimed a right to recover the $2.9 million in excess payments from the respondents, and their insurer, Zurich. The respondents were the company whose liquid formaldehyde was being shipped, the company to whom it was being shipped, and the company that had arranged the shipment – each of whom was also under a s. 93 EPA duty to remediate. Intact asserted that it had its own right of action to recover the payments from the respondents under s. 99(2)(a) of the EPA.

issue:

Can Intact recover, by direct action against persons other than its own insured, amounts it paid in excess of its policy limits for the remediation of an environmental spill in which the insured was involved?

holding:

Appeal dismissed.

reasoning:

No.

Intact did not have a right of action to recover its excess payments from the respondents under s. 99(2)(a) of the EPA. Nor did the doctrine of unjust enrichment permit such recovery. Intact argued that the motion judge erred in law about liability under the EPA and about the application of the doctrine of unjust enrichment. At the heart of Intact’s position was the proposition that Intact should have been viewed separately from its insured because the excess payments were not made to fulfill a policy obligation to its insured, and no other legal obligation required it to make the excess payments. The Court agreed with the respondents that Intact’s excess payments did not qualify for compensation under s. 99(2)(a) of the EPA. Nor was there a basis, in these circumstances, for an unjust enrichment claim.

(A) s 99(2)(a) claim

Although Intact’s payments exceeded its policy limits, the excess payments were not completely unconnected to Intact’s position as TDB’s insurer. The EPA limits and controls the rights as between persons with s. 93 duties to remediate – one way in which it does so is to require a s. 99(2) claim by such a person to be reduced by the extent of that person’s fault. Recognizing Intact’s claim as one that could be brought under s. 99(2)(a), and thus allowing Intact to avoid any deduction for any fault of its insured, would be inconsistent with these important aspects of the statutory scheme.

The EPA is entitled to “a generous interpretation” following “an expansive approach”. Its intended reach is “wide and deep”. The s. 99(2) remedy did not require the plaintiff to prove fault or negligence on the part of the defendant to the claim. Section 99 does provide a defence to compensation claims for persons who establish that they took reasonable care, but only in respect of certain types of claims. Importantly though, it states that any fault or negligence of the s. 99(2) plaintiff is to be taken into account in reduction of their claim.

The Court’s leading decision on s. 99(2) was Midwest Properties. Midwest was an illustration of how a s. 99(2)(a) claim could include a claim for expenses of remediation. The Court held that a claim under s. 99(2)(a) by a property owner was not restricted to recovery of diminution in property value caused by an environmental spill; it may include recovery of the costs of remediating the property. The only parties who can be liable under s. 99(2) are the owner of the pollutant and the person who had control of it at the time of the spill. Zurich did not come within that definition. Accordingly, there could be no s. 99(2) claim against Zurich.

When Intact’s payments reached the policy limits, it ceased to be under any obligation to its insured under the policy with respect to remediation costs. It had no other legal duty to remediate. The spill and its effects, and the failure of the respondents to begin to fund remediation, at that point had no direct bearing on Intact’s legal interests. Intact could have chosen to make no further payments.

(B) Unjust Enrichment Claim
As the Supreme Court stated in Moore v Sweet, to succeed in a claim for unjust enrichment, a plaintiff must show that: (a) the defendant was enriched; (b) the plaintiff suffered a corresponding deprivation; and (c) the defendant’s enrichment and the plaintiff’s corresponding deprivation occurred in the absence of a juristic reason. In the motion judge’s view, the enriched party – the true beneficiary of any excess payments – was Intact’s own insured, TDB. Intact argued that its excess payments constituted a “negative” benefit; the respondents were spared an expense they would otherwise have been required to undertake. Intact also argued that the motion judge’s juristic reason analysis was flawed because the EPA did not require a transfer of wealth by it for the benefit of the respondents, and because the motion judge should have found that Intact did not share Zurich’s expectation and that Zurich’s expectation was unreasonable.

The Court did not interfere with the motion judge’s conclusion that an unjust enrichment remedy is not available to Intact in these circumstances. The motion judge’s finding that it was TDB who benefited from Intact’s payments was sufficient to dispose of the unjust enrichment claim. Since a benefit to the defendant had not been established, an unjust enrichment claim failed without the need for a juristic reason analysis. The doctrine of unjust enrichment applies “when a defendant receives a benefit from a plaintiff in circumstances where it would be ‘against all conscience’ for him or her to retain that benefit”. Given the voluntary nature of Intact’s payments, and the reasonable expectations of Intact and Zurich, the doctrine did not assist Intact here.


Bowman v. Ontario, 2022 ONCA 477

[Pepall, Brown and Coroza JJ.A.]

Counsel:

S. Moreau, L. Koerner-Yeo and K. Duff, for the appellant

C.P. Thompson, C. Blom, Z. Green, R. Amarnath and A. Mortimer, for the respondents

Keywords: Crown Liability, Breach of Contract, Breach of Undertaking, Torts, Negligence, Breach of a Public Law Duty, Charter Claims, Civil Procedure, Class Proceedings, Certification, No Reasonable Cause of Action, Appeals, Standard of Review, Class Proceedings Act, 1992, S.O. 1992, c. 6, ss. 5(1), Crown Liability and Proceedings Act, 2019, R.S.C., 1985, c. C-50, ss 11(4), Canadian Charter of Rights and Freedoms, ss 7, 24(1), Bowman et al. v. Her Majesty the Queen, 2019 ONSC 1064, 58 Admin. L.R. (6th) 327 (Div. Ct.)., Hollick v. Toronto (City), 2001 SCC 68, Pioneer Corp. v. Godfrey, 2019 SCC 42, Shah v. LG Chem Ltd., 2018 ONCA 819, Fehr v. Sun Life Assurance Company of Canada, 2018 ONCA 718, The Catalyst Capital Group Inc. v. Dundee Kilmer Developments Limited Partnership, 2020 ONCA 272, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Ontario Public Service Employees Union v. Ontario (2005), 13 C.P.C. (6th) 178 (Ont. S.C.), Nelson (City) v. Marchi, 2021 SCC 41, Francis v. Ontario, 2021 ONCA 197, Wright v. Horizons ETFS Management (Canada) Inc., 2020 ONCA 337, McGee v. Farazli, 2020 ONSC 7066 (Div. Ct.)

facts:

In 2017, the appellants enrolled in Ontario’s basic income (“BI”) program and received BI payments, which was set to expire in 3 years. Following an election and a change in government, in July 2018, Ontario announced that it planned to terminate the BI Program before three years had elapsed. Final payments were made in March 2019 to those who had enrolled in the BI Program. Prior to the final payment date, the appellants initiated in the Divisional Court an application for judicial review to quash the decision to cancel the BI Program. The Court dismissed the application, stating that a government cannot be required by the court to make or continue to fund an expenditure, as the distribution of government funds is a political, not a judicial, function. The appellants subsequently commenced a proceeding against Ontario under the Class Proceedings Act (“CPA”).

The appellants sought damages for the wrongful termination of the BI Program before the expiry of three years. The claims for damages sound in breach of contract, breach of undertaking, negligence, breach of a public law duty,1 and breach of s. 7 of the Canadian Charter of Rights and Freedoms. The damages sought included various financial obligations the appellants had assumed in reliance on the BI Program, including obtaining loans and enrolling in educational programs. The appellants moved under s. 5(1) of the CPA for certification of their action as a class proceeding and related relief, which Ontario opposed.

Regarding breach of contract, the appellants submitted that the certification judge exceeded the proper limits of the inquiry required by CPA s. 5(1)(a) in holding that their breach of contract claim did not disclose a cause of action. The certification judge held that the facts pleaded, as supplemented by the terms of those documents, did not support a contractual relationship. The BI Pilot was a social benefits program with a research component. In these circumstances, the certification judge held that it was plain and obvious that the statement of claim did not disclose a reasonable cause of action for breach of contract.

Regarding the breach of undertaking, the appellants relied on Ontario Public Service Employees Union v. Ontario (2005), where in that case, the plaintiffs’ pension plans were reorganized due to a change in government funding policies. The certification judge concluded the appellants’ reliance upon the OPSEU decision was misplaced and no cause of action for breach of undertaking as pleaded existed.

Regarding the claim in negligence, the appellants pleaded that the respondent foresaw that stopping BI payments would cause the Class members to suffer damage, and that the respondent breached its duty of care. The appellants relied on the two-stage Anns/Cooper test: 1) whether a prima facie duty of care exists between the parties; and 2) whether there are residual policy concerns outside the parties’ relationship that should negate the prima facie duty of care. Ontario argued that no cause of action could be asserted against it for the termination of the BI Program due to the immunity from suit provided by s. 11(4) of the Crown Liability and Proceedings Act, 2019, (“CLPA”), which states that “[n]o cause of action arises against the Crown … in respect of any negligence or failure to take reasonable care in the making of a decision in good faith respecting a policy matter …”. The certification judge was not persuaded by the appellants’ submission that only the government’s decision to initiate the BI Program constituted a policy decision for purposes of the Anns/Cooper test, whereas its decision to cease making the BI Payments was merely an operational one. The certification judge also rejected the appellants’ argument that the immunity from suit afforded by CLPA s. 11(4) did not extend to the cancellation of funding.

Regarding the applicants’ s. 7 Charter claims, the appellants pleaded that the respondent violated the basic human needs of the Class Members because the BI payments were essential to meet their daily needs. Further, the appellants stated that the class was entitled to damages per s 24(1) of the Charter. The certification judge concluded that it was plain and obvious the appellants’ claim under s. 7 of the Charter did not disclose a reasonable cause of action.

On November 30, 2020, the certification judge dismissed the appellants’ certification motion (the “Dismissal Order”). He concluded that the appellants’ Amended Claim did not disclose a reasonable cause of action and therefore failed to satisfy s. 5(1)(a) of the CPA. The appellants appealed.

issue:

Should the Dismissal Order be set aside and the appellants’ action be certified as a class proceeding?

holding:

Appeal allowed in part.

reasoning:

Yes. The Court stated that the principles regarding the certification of a class proceeding are well established. In Ontario, s. 5 of the CPA contains the criteria for certifying class actions. The CPA should be construed generously in a way that gives full effect to the benefits foreseen by the drafters: Hollick at para. 14-15. The onus is on the representative plaintiff to show why the certification criteria have been met. The plaintiff must show “some basis in fact” for each of the certification criteria, other than the requirement that the pleadings disclose a cause of action: Hollick, at paras. 25-26.

Standard of Review from Certification Decision

The Court stated that the standard of review on appeal for each particular certification question depended on the nature of the question: Pioneer Corp., at para. 28. Whether a plaintiff had a cause of action was a question of law reviewable on a standard of correctness: Pioneer Corp., at para. 57. Whether the certification judge had identified the appropriate standard for certifying loss as a common issue was also a question of law: Pioneer Corp., at para. 94. Otherwise, substantial deference was owed to a certification judge’s application of the test for certification and determination of the common issues. On such questions, appellate court intervention should be restricted to matters of general principle: Fehr, at para. 39.

The Court then noted the context in which a certification judge must conduct any CPA s. 5(1)(a) analysis. The Court stated that the test pursuant to CPA s. 5(1)(a) was merely that the statement of claim discloses a cause of action: Hollick at para 16. This has resulted in the adoption of the “plain and obvious” test. The Court noted that the inquiry under CPA s. 5(1)(a) sought to determine whether the facts pleaded (which are assumed to be true) are capable of supporting a claim at law – that is, whether they can support a cause of action. The Court further stated that this was not an inquiry into the factual merits of the claim but an inquiry into the legal tenability of the claim asserted that forms part of the larger s. 5(1) inquiry into the appropriate form the action should take – specifically, whether the suit was appropriately prosecuted as a class action.

Breach of Contract

Regarding the breach of contract, the Court noted that the task of the certification judge was not to determine whether the contract pleaded by the plaintiff was, in fact, formed and, if it was, the proper interpretation of the contract. Rather, the task of the certification judge was to ascertain whether it was plain and obvious that the facts pleaded by the plaintiff (which must be taken to be true) cannot support, at law, a cause of action for breach of contract. If that was not plain and obvious, then the plaintiff had satisfied the s. 5(1)(a) criterion. The determination of whether a contract was formed was considered a matter for another time. The Court stated that the certification judge lost sight of this distinction, as he examined whether the appellants had established that a contract had been formed between class members and Ontario instead of limiting his analysis to the application of the “plain and obvious” test. The Court concluded the certification judge over-stepped the proper boundaries of a CPA s. 5(1)(a) analysis, and thus, the certification judge erred in holding that the appellants’ Amended Claim did not disclose a cause of action for breach of contract for purposes of CPA s. 5(1)(a).

Breach of Undertaking

Regarding the breach of undertaking claim, the Court stated that in OPSEU, it had clarified a form of breach of contract claim, rather than permitted some sort of free-standing breach of undertaking claim to proceed. Accordingly, the Court concluded that the appellants’ pleaded breach of undertaking claim collapsed into, and was subsumed by, their claim for breach of contract. However, the appellants had not pointed to a body of jurisprudence that confirmed a claim akin to their breach of undertaking pleading. Therefore, the Court concluded that the certification judge did not err in finding that the appellants’ plea of breach of undertaking did not disclose a cause of action for purposes of CPA s. 5(1)(a).

Negligence

Regarding the claim in negligence, the Court stated Canadian jurisprudence had long recognized that a sphere of government decision-making, consisting of core policy decisions, should remain free from judicial supervision based on the standard of care in negligence: Nelson, at para. 2. At common law, core policy decisions were considered immune from negligence liability, as long as they are not irrational or made in bad faith: Nelson, at paras. 3, 41. Further, the Court noted that regardless of whether a plaintiff was asserting that a public authority owed it a duty of care under an established or analogous duty of care or a novel duty of care, it was open to the public authority to prove that the relevant government decision was a core policy decision immune from liability in negligence: Nelson, at paras. 24, 30. The Court noted that a public authority may raise core policy immunity in both existing/analogous or novel duty of care cases. Where the public authority does so, as in the present case, the Court emphasized that the key focus should be on the nature of the government decision in issue: Nelson, at paras. 2, 54. Accordingly, the Court noted the appellants’ suggestion that immunity for core policy decisions does not apply where a duty of care has been recognized in analogous cases was misplaced. The Court concluded that the certification judge properly examined the Amended Claim to ascertain the nature of the government decision in issue in the appellants’ negligence claim. Further, the Court found no error regarding the certification judge’s conclusion that Ontario relied upon Crown common law immunity.

Crown Immunity from Policy Decisions

Regarding the policy matter immunity under the CLPA, the appellants advanced one argument: if the application of the common law had led the Court to conclude that the appellants’ negligence claim was not doomed to fail, then the immunity from suit found in CLPA s. 11(4) was not available to Ontario per Francis v Ontario. The Court stated that the plain language of CLPA s. 11(4) provided clear support for the certification judge’s conclusion that Ontario’s decision to terminate the BI Program and cease making BI Payments constituted a “policy matter” in respect of which no cause of action arose. The Court further noted that the inclusion in CLPA s. 11(5)’s definition of “a policy matter” of “the funding of a program…including…ceasing to provide such funding” (s. 11(5)(b)(i)) and “the termination of a program” (s. 11(5)(d)) fits snugly with the common law’s conception of a pure policy decision.

The Court concluded that was no error in the certification judge’s holding that it was plain and obvious the Amended Claim did not disclose a cause of action in negligence against Ontario and, therefore, did not satisfy the criterion in CPA s. 5(1)(a).

Charter Claims

The Court then addressed the appellants’ Charter claims. The appellants submitted that their s. 7 claim should be allowed to proceed as it was not plain and obvious that the class members’ security of the person interests were not breached by the winding down and cessation of BI Payments in the special circumstances of the BI Program. They argued their Amended Claim pleaded that the cessation of BI Payments subjected class members to severe physical and psychological harms, which met the requisite level of seriousness for a s. 7 claim.

The Court stated the certification judge did not err in concluding that it was plain and obvious the appellants’ claim under s. 7 of the Charter did not disclose a cause of action. The Court noted that the result turned on the failure of the appellants to plead the required elements of a cause of action for breach of a s. 7 Charter right. Ultimately, because the appellants’ claims had not particularized the principle of fundamental justice at play regarding their s. 7 claim, their claim could not succeed.

The Court allowed the appeal in part, and set aside the Dismissal order. The Court further ordered that the Amended Claim disclosed a cause of action for breach of contract that satisfied s. 5(1)(a) of the CPA. Further issues were remitted by the Court to the certification judge.


Selkirk v Ontario (Health and Long-Term Care), 2022 ONCA 478

[Feldman, MacPherson, and Lauwers JJ.A.]

Counsel:

D.S., acting in person and for The Estate of Mark Selkirk

E. Krajewska, L. Crowell, and H. Webster, for the respondents

Keywords: Health Law, Constitutional Law, Civil Procedure, Parties, Standing, Self-Represented Litigant, Canadian Charter of Rights and Freedoms, sections 7, 12, & 15, Rules of Civil Procedure, Rules 2.03, 9.01 & 15.01, Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, Thorson v. Canada (Attorney General), [1975] 1 S.C.R. 138, Nova Scotia (Board of Censors) v. McNeil, [1976] 2 S.C.R. 265, Canada (Minister of Justice) v. Borowski, [1981] 2 S.C.R. 575, Ernst v Alberta Energy Regulator, 2017 SC 1, Bogaerts v. Ontario (Attorney General), 2019 ONCA 876, Barendregt v. Grebliunas, 2022 SCC 22, Allen v. Alberta, 2015 ABCA 277, Grant v. Winnipeg Regional Health Authority, 2015 MBCA 44, Canada (Attorney General) v. Bedford, 2013 SCC 72, Carter v. Canada (Attorney General), 2015 SCC 5, R. v. Smith, 2015 SCC 34, New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, R. v. Palmer, [1980] 1 S.C.R. 759, Public School Boards’ Association of Alberta v. Alberta (Attorney General), [2000] 1 S.C.R. 44, R. v. Powley (2001), 53 O.R. (3d) 35 (C.A.), Sengmueller v. Sengmueller (1994), 17 O.R. (3d) 208 (C.A.)

facts:

The appellant appealed the decision in which the application judge determined: (1) the challenge to the reasonableness of the six-month wait for transplant (the “Wait”) imposed on the appellant’s late husband, and on all patients with liver failure caused by alcohol (“ALD patients”) from 1991-2018 was moot; (2) the current Trillium Gift of Life Network (“TGLN”) liver transplant waitlist criteria (the “Criteria”) for ALD patients does not infringe sections 7, 12 and 15 of the Canadian Charter of Rights and Freedoms; and, (3) the current Living Donor Criteria established by the University Health Network (“UHN”) was not subject to Charter scrutiny.

The appellant’s husband died of an alcohol-related liver disease (“ALD”), and at the time of his death was not eligible for a transplant under UHN’s former transplant regime. The appellant challenged three transplant regimes. The first regime required that for liver transplants, the eligibility included a firm requirement that ALD patients abstain from alcohol use for six months prior to being placed on the waitlist. The second regime involved three general requirements that apply to everyone being considered for a liver transplant: (1) therapeutic options, other than liver transplant, have been exhausted; (2) there is an absence of obvious contraindication for transplant; and (3) the expected five-year survival post-transplant is greater than 60 percent. The third criterion involved the patient being carefully assessed for a higher risk of return to problematic alcohol use.

issues:

1. Did the appellant have standing to represent her spouse’s Estate in these proceedings?
2. Did the application judge err by concluding that the challenge with respect to the Wait imposed on appellant’s husband was moot?
3. Did the application judge err by concluding that the current Criteria for ALD patients do not infringe sections 7 and 15 of the Charter?
4. Did the application judge err by concluding that the current Living Donor Criteria established by UHN are not subject to Charter scrutiny?

holding:

Appeal allowed in part.

reasoning:

MacPherson J.A. (Feldman J.A. concurring):

1. Yes.

The Court concluded that even if it was possible that, technically speaking, the appellant’s representation of her husband’s Estate fell afoul of Rules 9.01 and 15.01 of the Rules of Civil Procedure, it was not regarded as a problem, for three primary reasons:

A) The respondents did not object to the representation in either the Superior Court of Justice or the Ontario Court of Appeal.
B) The principle that a non-lawyer should not act on behalf of beneficiaries when seeking money on their own behalf, was not engaged in this case.
C) The appellant’s representation of the Estate on the appeal, through her factum, supporting materials, and oral argument, was of high quality.

Therefore, the Court applied Rule 2.03 and said it was necessary in the interest of justice to dispense with strict compliance with the rules. In response to the concerns expressed by Lauwers J.A., the Court pointed out that the if the appellant’s competence to present the case was of concern to the application judge, she could have appointed an amicus. She did not because she did not feel this was necessary.

2. No.

The Court found that the application judge’s conclusion on this issue was entirely reasonable. The appellant’s husband, who was subject to the Wait, passed away in November 2010. The Wait was removed from the criteria for the allocation of scarce lives, first as part of a Pilot Program in May 2018 and then permanently in November 2020.

3. No.

The Court held that the application judge’s analysis of the Criteria under section 7, 12, and 15 of the Charter, was exemplary. The Criteria are informed by, and flow from, the current medical evidence. The Criteria, the approaches by the experts, and the approaches seen in the studies reviewed, all consider alcohol use because it is a medically relevant criterion when assessing the likely outcome of a liver transplant in a patient with ALD.

4. Declined to address this issue on appeal.

The Court concluded that it would only be appropriate to consider this issue in a case where there is a living donor and a living recipient, as the relationship between a living donor (usually a close relative or close friend) and a recipient is a very different relationship from the relationship between a deceased donor and a potential recipient. The Court therefore set aside the application judge’s determination of this issue, without either affirming or reversing the application judge’s reasons and conclusion on this issue.

Lauwers J.A. (dissenting):

1. No.

Lauwers J.A. noted that this complex and difficult case required the assistance of competent counsel. Lauwers J.A. held that the appellant was not able to muster sufficient evidence and argument to sustain her case, or to conduct effective cross-examination of the witness arrayed against her by the formidable legal teams representing the respondent.

The Court must consider three factors in exercising the discretion to grant public interest standing: (1) whether there is a serious justiciable issue raised; (2) whether the plaintiff has a real stake or a genuine interest in it; and (3) whether, in all circumstances the proposed suit is a reasonable and effective way to bring the issue before the courts. The application judge granted the appellant public interest standing respecting the preliminary issue of whether a Charter remedy was available to a deceased person or their estate under section 24(1).
Lauwers J.A. felt that the scope of the application judge’s analysis was too limited. Lauwers J.A. concluded that she made an error of law when she did not consider the factors from Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, in evaluating the appellant’s broader request for standing to challenge the Pilot Project and current eligibility criteria.

Lauwers J.A. further noted, that the determination of section 7 and section 15 Charter issues is exceptionally fact specific and nuanced, and would be difficult for a self-represented litigant, however able, to undertake. The appellant is not a lawyer and what she has learned of constitutional law has come from self-study and an unwavering dedication to her cause. The application judge noted that while the appellant’s skills are impressive, it would be unjust to demand procedural perfection from her, resulting in the application judge focusing on the substance of the issues and not their technical presentation.

Granting the appellant public interest standing contravened settled constitutional doctrine and despite the manifest good faith, the appellant lacked the personal capacity to present the case for judicial determination in an appropriate adversarial setting.

2. Yes.

3. Declined to address this issue on appeal.

Lauwers J.A. felt that the application judge’s finding that the current eligibility criteria for liver transplants for individuals who have alcohol-associated liver disease is constitutional under section 7 and section 15 of the Charter was profoundly premature.

4. Declined to address this issue on appeal.

Lauwers J.A. agreed with the majority that the appeal from the application judge’s determination on this issue should be set aside without affirming or reversing the application judge’s conclusion on this issue. Lauwers J.A. concluded that the case’s chronology shows that the issue determined definitely by the application judge was late to this litigation, and without proper adversarial testing. He held that neither the factual record nor the legal argument was adequate to address the complexity and importance of the constitutional issues this application raises. Lauwers J.A. was of the view that the Court must be especially deliberative and careful in deploying its authority to decide constitutional issues.

The appellant’s fresh evidence application arrived well after the application judge’s decision and just before the argument of this appeal. Lauwers J.A. noted that it is highly complex and does not speak for itself. Lauwers J.A. concluded that admitting the Study in this case would not respect the Supreme Court’s instructions in Brendregt v Grebliunas, 2022 SCC 22 (“Brendregt”), that the admission of additional evidence on appeal will be rare. Lauwers J.A. discussed that the concern in this case was different and more prosaic, but that Brendregt still had application because the Court needs expert assistance to fully understand the implications of the complex medical information in the Study as applied to the facts in this case.


Fanshawe College of Applied Arts and Technology v. Hitachi, Ltd., 2022 ONCA 480

[van Rensburg, Harvison Young and Copeland JJ.A.]

Counsel:

B. Harrison and P. Ramirez, for the appellant

B. Moran and L. Visser, for the respondent

Keywords: Civil Procedure, Class Proceedings, Claims Process, Administration, Review, Class Proceedings Act, 1992, SO 1992, c 6, s 12, Canada (Attorney General) v Fontaine, 2017 SCC 47, BancroftSnell v Visa Canada Corp., 2016 ONCA 896

facts:

This appeal arose out of the claims process following the settlement of a class proceeding dealing with price fixing in the cathode ray tube (“CRT”) market, which includes products like televisions and monitors. The appellant was Class Action Capital Recovery LLC (“CAC”), one of several third-party claims filers who had filed claims on behalf of certain class members.

As part of the CRT settlement, the parties, the class and the defendants agreed to a Distribution Protocol, which, together with the rest of the settlement agreement, was incorporated into court orders. The Distribution Protocol set out the procedure for class members to submit claims and for their determination by a Claims Administrator. The Distribution Protocol provided that once a claim is audited, the claimant must provide documentation to substantiate its purchases. Following the audit, the Claims Administrator issued Decision Notices and rejected 123 of the 125 claims filed by CAC on behalf of its clients. The Decision Notices did not explain the grounds for the rejections other than that the claimants “failed to provide adequate proof of purchase”.

CAC and other third-party filers appealed to the supervising judge on behalf of 258 settlement class members whose claims had been rejected. They challenged the Claims Administrator’s decision to reject claims for “[failing] to provide adequate proof of purchase”. Before the supervising judge, CAC argued that it had not received a deficiency notice before the claims were rejected, as required by s. 43 of the Distribution Protocol, and requested that the Claims Administrator “consider this additional material as if it was submitted in response to a deficiency notice”. The supervising judge ordered the Claims Administrator to reconsider any claim that was more than just a declaration. The Claims Administrator approved some of CAC’s claims, and upheld its rejection of other claims.

CAC asserted that, once it received the Reconsideration Notices, it should have been afforded the opportunity to provide additional documentation to prove the claims of the class members it represents.

issue:

Did the supervising judge err in refusing to give effect to the Deficiency Process set out in s. 43 of the Distribution Protocol?

holding:

Appeal dismissed.

reasoning:

No

A review of the record made the appellant’s argument clear – that the claims should be subject to further consideration, including under s. 43. In setting out the process for the Claims Administrator, the supervising judge did not refer to s. 43, however, resort to s. 43 was unnecessary in the circumstances.

The Distribution Protocol required the Claims Administrator to administer the protocol “under the ongoing authority and supervision of the Ontario Court”. Section 12 of the Class Proceedings Act, 1992 (“CPA”), provided that the court “may make any order it considers appropriate respecting the conduct of a proceeding under [the CPA] to ensure its fair and expeditious determination”, including imposing “such terms on the parties as it considers appropriate”. The supervising judge was equipped with the broad discretionary power of s. 12 during the settlement administration stage of the proceedings. The order he made in respect of the initial appeal was within his authority to resolve the issue before him – to ensure that the Claims Administrator properly considered the documents the third-party filers, including CAC, submitted in support of the claims of class members, including the additional documentation submitted during the appeal process.

The process ordered by the supervising judge was not unfair. CAC had the opportunity to provide supporting documents for the claims it was advancing. It was required to do so as a result of the audit process, and did so again once the appeal of the rejection of some claims was commenced. The supervising judge required the Claims Administrator to consider all of these documents as part of the reconsideration process. This was a reasonable and practical solution. Requiring the Deficiency Process under s. 43 to be followed at this stage would provide CAC with an opportunity that other claimants did not receive, and would further delay the process for distribution of the settlement funds to eligible class members.


Thirlwell v. College of Physicians and Surgeons of Ontario, 2022 ONCA 494

[George J.A. (Motion Judge)]

Counsel:

M. P. Falco and C. Pike, for the moving party

L. Brownstone, for the responding party

Keywords: Administrative Law, Judicial Review, Regulated Professions, Physicians and Surgeons, Competence, Professional Misconduct, Civil Procedure, Leave to Appeal, Stay Pending Leave, Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, SO 1991, c 18, s 25.4, Rules of Civil Procedure, Rule 63.02, Zafar v Saiyid, 2017 ONCA 919, M & M Homes Inc. v. 2088556 Ontario Inc, 2020 ONCA 134, Fontaine v Canada (Attorney General), 2012 ONCA 206, Morguard Residential v Mandel, 2017 ONCA 177, Iness v Canada Mortgage and Housing Corp. (2002), 220 D.L.R. (4th) 682 (Ont. C.A.), J.P.B. v C.B., 2016 ONCA 996, Sazant v The College of Physicians and Surgeons of Ontario, 2011 CarswellOnt 15914 (Ont. C.A.)

facts:

The moving party, Dr. CT, is a psychiatrist and member of the College of Physicians and Surgeons of Ontario (the “College”). In the fall of 2021, the College received reports that CT was providing improper medical exemption letters from COVID-19 vaccinations. On October 7, 2021, the Registrar of the College appointed investigators to look into whether CT had engaged in professional misconduct or was incompetent.

On November 5, 2021, the College’s Inquiries, Complaints and Reports Committee (the “ICRC”) met to consider this matter and ultimately issued an interim order imposing terms on CT’s registration pursuant to s 25.4 of the Health Professions Procedural Code. The ICRC determined that CT’s conduct exposed, or was likely to expose, patients to harm or injury. It found that CT’s special clinic, which sold exemptions for up to $300, suggested a generalized approach to vaccine exemptions for profit, and not an individualized assessment of each patient. The interim order also required CT to provide irrevocable consent “for the College to make appropriate enquiries of the Ontario Health Insurance Plan (“OHIP”), to monitor her compliance with the terms of the Order” (the “OHIP term”). Other terms were imposed including that she provide a log of all patient encounters and submit to unannounced inspections.

On November 8, 2021, CT’s counsel advised that she would accept all of the terms, except the OHIP term and the term which required her to be subject to unannounced inspections, which she requested the ICRC vary. On November 15, 2021, the ICRC reconvened but declined to vary its interim order, noting that while there was no OHIP billing code for vaccine exemptions, the OHIP and unannounced visit terms were necessary in order to monitor compliance. On November 18, 2021, CT commenced an application for judicial review in the Divisional Court and contested only the OHIP term. On May 10, 2022, the Divisional Court released its decision and dismissed CT’s application. The court held that the ICRC’s concerns were not speculative, but based on CT’s past conduct, and the public safety concerns warranted the OHIP term.

On May 25, 2022, CT brought a motion seeking leave to appeal the Divisional Court order. On June 3, 2022, CT brought this motion seeking to stay the order of the Divisional Court, pending the resolution of the motion for leave to appeal.

issue:

Should the Divisional Court order upholding the term requiring CT to consent to the College making inquiries of OHIP be stayed pending her motion for leave to appeal?

holding:

Motion dismissed.

reasoning:

No.

CT had the burden of demonstrating that a stay of the Divisional Court order pending appeal should be granted pursuant to Rule 63.02 of the Rules of Civil Procedure. The test for a stay of an order pending appeal required the court to consider these three factors:

i) a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried;
ii) it must be determined whether the applicant would suffer irreparable harm if the application were refused; and
iii) an assessment of the balance of convenience must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.

These factors are not watertight compartments, and the strength of one may compensate for the weakness of another. The “ultimate test for granting the stay is the interests of justice”.

First, did the appeal raise a serious question to be tried? While the threshold was low, the court must be mindful of the fact that the Divisional Court has already determined that the ICRC’s decision was reasonable, and that the appeal of a Divisional Court order – which is intended to be final – is not as of right. The proposed appeal did not have much merit and stood little chance of succeeding. It was far from certain that leave would even be granted. Given the requirement for leave and in light of the lack merit to the appeal, the Court concluded that there was no serious issue to be tried.

Second, will CT suffer irreparable harm if the stay is not granted? This one factor likely weighed in favour of a stay, as a dismissal of this motion would immediately enable the College to compel CT to consent to a review of her OHIP records, rendering the appeal itself nugatory.

Third, in regard to the balance of convenience, the Court was mindful of the fact that the ICRC’s decision and interim order have already been considered and upheld by the Divisional Court, and that the decision below was presumptively correct. Even though a dismissal of this motion would, in effect, determine the rights of these parties, the balance of convenience favoured not granting the stay.

Even if the court was wrong in the assessment that there was no serious issue to be tried, the Court would have still denied the request for a stay as, in the circumstances of this case, the public interest outweighed CT’s personal interests.


SHORT CIVIL DECISIONS

Letwin v. Camp Mart, 2022 ONCA 475

[Benotto, Zarnett and Sossin JJ.A.]

Counsel:

D. Thompson and A. Vigneault, for the appellant

W. Ngai, for the respondent

Keywords: Contracts, Torts, Negligence, Civil Procedure, Evidence

Street v. Toronto (Police Services Board), 2022 ONCA 486

[Huscroft, Nordheimer and Sossin JJ.A.]

Counsel:

K. S., acting in person

D. Smith, for the respondents

Keywords: Torts, Assault, Civil Procedure, Appeals, Evidence, Canadian Charter of Rights and Freedoms, Palmer v. The Queen, [1980] 1 S.C.R. 759

De Havilland Aircraft of Canada Limited v. Dias, 2022 ONCA 491

[Huscroft, Nordheimer and Copeland JJ.A.]

Counsel:

A. Dale and L. Sullivan, for the appellants

P. Carey and H. Levitt, for the respondent

Keywords: Labour Law, Unions, Civil Procedure, Injunctions

Anthony v. Vinczer, 2022 ONCA 493

[Huscroft, Nordheimer and Copeland JJ.A.]

Counsel:

AV, acting in person

GA, acting in person

Keywords: Real Property, Contracts, Duty of Good Faith, Mortgages, Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25


The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.

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