Top 5 Civil Appeals from the Court of Appeal (April 2013)

Cavanaugh v. Grenville Christian College, 2013 ONCA 139 (O'Connor A.C.J.O., Doherty and Blair JJ.A.), March 8, 2013 Sam's Auto Wrecking Co. Ltd. (Wentworth Metal) v. Lombard General Insurance Company of Canada, 2013 ONCA 186 (Laskin, Rosenberg and Tulloch JJ.A.), March 28, 2013 Lipson v. Cassels Brock & Blackwell LLP, 2013 ONCA 165 (Goudge, Simmons and Gillese JJ.A.), March 19, 2013 1654776 Ontario Limited v. Stewart, 2013 ONCA 184 (Laskin, Juriansz and Tulloch JJ.A.), March 27, 2013 Keewatin v. Ontario (Natural Resources), 2013 ONCA 158 (Sharpe, Gillese and Juriansz JJ.A.), March 18, 2013 1. Cavanaugh v. Grenville Christian College, 2013 ONCA 139 (O'Connor A.C.J.O., Doherty and Blair JJ.A.), March 8, 2013

In this decision, the Court of Appeal considered the matter of appellate jurisdiction under the Class Proceedings Act 1992, S.O. 1992, c. 6. It also revisited its recent decision in Taylor v. Canada (Attorney General), 2012 ONCA 479, 111 O.R. (3d) 161 in determining whether the relationship between a defendant and class members was such as to give rise to a duty of care.

The appellants brought a motion to certify their action against the respondents - Grenville Christian College, two former headmasters at the school, and the Synod Diocese of Ontario - as a class proceeding. The proposed actions in negligence, assault, battery, intentional infliction of mental suffering and breach of fiduciary duty arose from alleged abuse suffered while the appellants attended the College.

Justice Perell dismissed the motion, refusing to certify the action against the respondents. However, he made two different orders. He held that the claim did not reveal a cause of action against the Diocese as required under s. 5(1)(a) of the CPA, and ordered the action against the Diocese immediately dismissed. With respect to the other respondents, Perell J. found that the appellants failed to demonstrate that a class proceeding was the "preferable procedure" under s. 5(1)(d) of the CPA. He dismissed the motion to certify against those respondents with leave to apply under s. 7 of the CPA to continue the proceedings in an amended form.

The appellants appealed from both parts of the motion judge's order.

With appellate jurisdiction under the CPA divided between the Court of Appeal and the Divisional Court, the parties agreed that the former had jurisdiction to hear the appeal from the order dismissing the claim against the Diocese while the appeal from the order in respect of the other respondents was properly to the latter. The parties requested that the Court exercise its discretion under s. 6(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 to join the appeals.

Writing for the Court, Doherty J.A. confirmed that the Court of Appeal has jurisdiction to hear the appeal from the order in respect of the claim against the Diocese. Perell J.'s order was not one simply granting or refusing certification, but rather an order that the action be "immediately dismissed". Pursuant to s. 6(1)(b) of the CJA, a final order is appealable to the Court of Appeal unless an appeal lies to the Divisional Court under another Act. Because none of the provisions of s. 30 of the CPA directing appeals to the Divisional Court have any application to an order dismissing an action, the appeal properly lies to the Court of Appeal.

Turning to the merits of the appeal, Doherty J.A. explained that the appellants' claim against the Diocese, founded in negligence and breach of fiduciary duty, rests on the existence of a duty of care owed by the Diocese to the appellants. The duty of care inquiry necessitates a determination of whether the facts of the case disclose a relationship between the parties that is sufficiently close as to establish a prima facie duty of care.

Doherty J.A. agreed with Perell J. that the relationship between the Diocese and the appellants was not such as to impose a duty of care on the former. A diocese does not owe an automatic duty of care to those who engage with priests working under its auspices. Rather, the existence of a duty must be determined by the unique relationship between the diocese, the priests and those affected by their coduct. Moreover, the impact of the relationship on a potential duty of care must be examined in light of the principles of foreseeability of harm and proximity of relationship as outlined by the Supreme Court in R. v. Imperial Tobacco Canada Limited, 2011 SCC 42, [2011] 3 S.C.R. 45.

According to Doherty J.A., the pleadings alleging that the Diocese knew or ought to have known of the ongoing abuse at the school lacked any material facts to substantiate the claim. "A bald assertion of foreseeability cannot suffice to establish foreseeability for the purposes of the duty of care inquiry." Further, the pleadings failed to establish sufficient proximity in the relationship between the Diocese and the students to warrant the imposition of a duty of care. The pleadings did not allege any direct relationship between the Diocese and the appellants or even a direct relationship between the Diocese and the College or the respondent headmasters.

The relationship between the Diocese and the appellants did not give rise to a duty of care. As the Court recently held in Taylor, absent a duty of care, there can be no liability for negligent conduct.

Doherty J.A. continued that having found that the facts as pleaded did not support a finding of sufficient proximity such that the Diocese owed a duty of care to the appellants in negligence, they could not support the finding of a fiduciary relationship. The fiduciary relationship claim must therefore fail as well.

In the result, the Court held that the appeal from the order dismissing the action against the Diocese had no merit.

On the matter of joinder of the appeals, the Court held that it would not exercise its discretion under s. 6(2) of the CJA to hear the appeal from the order in respect of the other respondents. The two appeals raised very different issues. One raised only the adequacy of the pleadings against the Diocese, while the other addressed certification issues. There was no risk of inconsistent results if were heard in separate courts.

Moreover, the nature of the issues raised on the two appeals contraindicated joinder. The issues raised on the appeal concerning the...