Top 5 Civil Appeals From The Court Of Appeal (September 2014)

1. Langstaff v. Marson, 2014 ONCA 510 (MacPherson, Watt and Benotto JJ.A.), July 2, 2014 2. Foulidis v. Baker, 2014 ONCA 529 (MacPherson, Watt and Benotto JJ.A.), July 8, 2014 Foulidis v. Ford, 2014 ONCA 530 (MacPherson, Watt and Benotto JJ.A.), July 8, 2014 3. McAteer v. Canada (Attorney General), 2014 ONCA 578 (Weiler, Lauwers and Pardu JJ.A.), August 13, 20014 4. Kaynes v. BP, PLC, 2014 ONCA 580 (Sharpe, Simmons and Benotto JJ.A.), August 14, 2014 5. Baradaran v. Tarion Warranty Corporation, 2014 ONCA 597 (Feldman, Watt and van Rensburg JJ.A.), August 19, 2014

1. Langstaff v. Marson, 2014 ONCA 510 (MacPherson, Watt and Benotto JJ.A.), July 2, 2014

   The respondent Langstaff brought an action for damages for sexual abuse committed by his teacher at a Belleville elementary school. The respondent named the teacher, Marson, and the appellant, the Hastings and Prince Edward District School Board, as defendants. Marson, who was convicted of sexual assault, did not defend the action.

   The school board agreed that the assault occurred and that the respondent had suffered damages as a result. The only issues at trial were the quantum of damages and whether the school board had been directly negligent or was only vicariously liable for Marson's acts. The jury found that it had been negligent. In a separate ruling, the trial judge found that it was vicariously liable. The jury awarded general, special and punitive damages.

   The school board appealed, seeking to admit fresh evidence which it claimed would disclose a reasonable apprehension of bias on the part of the trial judge.

   The fresh evidence concerned a near-identical action brought by Mead, another of Marson's former students. During the course of a pre-trial for that action, the judge realized that he knew the plaintiff and his family. As a result, the parties agreed that the pre-trial would not proceed further. The lawyer acting for the school board in both actions then retired, transferring the files to new counsel, Morris. Morris proceeded to defend the lawsuit, but remained unaware that the trial judge was the same judge who presided over the Mead pre-trial and that the pre-trial had been discontinued due to the judge's association with the Mead family. It was only after the verdict had been rendered, when Morris began to prepare for the Mead case, that he learned of these issues and the similarities between the two cases. He testified that had he been aware of these facts prior to the respondent's trial, he would have requested that the trial judge recuse himself.

   At issue on appeal was whether the evidence was admissible and whether it disclosed a reasonable apprehension of bias.

   Writing for the court, Benotto J.A. noted that the principles governing the admissibility of fresh evidence set out in R. v. Palmer, [1980] 1 S.C.R. 759 do not apply to all cases where new evidence is tendered on appeal. As Doherty J.A. pointed out in R. v. W.W and I.W. (1995), 25 O.R. (3d) 161 (Ont. C.A.), when the proposed evidence raises issues related to the validity of the trial process itself, different considerations apply. Observing that the new evidence sought to be admitted by the appellant dealt with subsequently discovered facts concerning the validity of the trial process, Benotto J.A. held that it ought to be admitted.

   On the merits, Benotto J.A. emphasized that the presumption of judicial impartiality, defined by the Supreme Court as "the key to our judicial process", is a strong presumption, grounding public confidence in the integrity of our judicial system. An allegation of bias casts doubt not just on the personal integrity of the judge, but on the administration of justice. The presumption therefore places a heavy burden on anyone who seeks to rebut it.

   The threshold for a finding of real or perceived bias is high. As the Supreme Court set out in R. v. S. (R. D.), [1997] 3 S.C.R. 484, the test for rebutting the presumption of impartiality requires not only that the person considering the alleged bias be reasonable but that the apprehension of bias itself must also be reasonable in the circumstances of the case. Benotto J.A. emphasized that the test contemplates a hypothetical observer who is not a party to the litigation. That person must be informed of all of the facts and must understand all of the relevant circumstances, including the traditions of integrity and impartiality on which the judicial system is based.

   Viewing the case through the eyes of this hypothetical reasonable person, Benotto J.A. considered its unique sequence of events. As he succinctly put it, the trial judge gave an opinion on a crucial issue of liability during a pre-trial, but felt sufficiently compromised by his relationship with the plaintiff's family that he recused himself. Shortly thereafter, he rendered a decision in "a mirror-image matter" on the same key issue of liability. That decision, like the earlier one, was favourable to the parties with whom he was associated. A reasonable person considering the circumstances surrounding the case realistically and practically would find that there was an apprehension of bias.

   The Court allowed the appeal and ordered a new trial.

2. Foulidis v. Baker, 2014 ONCA 529 (MacPherson, Watt and Benotto JJ.A.), July 8, 2014

   Foulidis v. Ford, 2014 ONCA 530 (MacPherson, Watt and Benotto JJ.A.), July 8, 2014

   These decisions - arising from two actions for libel relating to statements made by candidates in the 2010 Toronto municipal election - were released concurrently. Both actions failed at trial. George Foulidis, the unsuccessful plaintiff, appealed both judgments.

   Foulidis was involved in the management of a family business, the Boardwalk Café, in the Beaches area of Toronto. The restaurant was operated by Tuggs Inc., the Foulidis family company, under a long-term lease with the city. In 2006, Foulidis, on behalf of Tuggs, submitted a proposal for a new and exclusive long-term lease for the business. Some councillors opposed the application because it did not involve an RFP process. Nonetheless, City Council voted to approve the Tuggs proposal. A long period of negotiations...