Court Of Appeal Summaries (November 3 – 7, 2014)

Hello again for another week of Ontario Court of Appeal Summaries. If you find these summaries useful, please feel free to go to our blog website at http://blaneyscourtsummaries.com/ where you can sign up to follow the blog and receive our weekly Friday afternoon email updates containing our latest posting for that week.

This week's topics covered by our Court of Appeal include Product Liability (appeals from jury awards of aggravated damages), Summary Judgment (genuine issue of credibility in MVA context, limitation periods and Crown Liability), Contract law (subject-matter jurisdiction in a tendering case and interpretation of use clause in a lease), Enforcement of Settlements (in the context of allegations of lack of capacity to settle) and Crown liability and the importance of complying with the strict notice requirements of the Proceedings Against the Crown Act (congratulations to Blaneys' very own Thomasina Dumonceau for her success on that matter).

Wishing everyone a nice weekend.

Zesta Engineering Ltd. v. Cloutier, 2014 ONCA 762

[Laskin, Gillese and Pardu JJ.A.]

Counsel:

Sarit Batner and Moya Graham, for the appellant

Morris Cooper, for the respondent Douglas Christie and 798068 Ontario Limited

Keywords: Costs, Leave to Appeal, Pre-Judgment Interest

Issues:

(1) Should leave to appeal from the costs order of the trial judge be granted on either of the following two bases?

(a) Did the trial judge err in failing to award costs of the first trial against Christie on the basis that as counsel he knowingly led false evidence at the first trial?

(b) Did the trial judge err in failing to award substantial indemnity costs of the second trial?

(2) Should an appeal from the order declining to award pre-judgment interest be granted?

Decision: Leave to appeal costs is refused.

Reasoning:

(1)(a) No. Zesta did not plead (in the second trial) that Christie committed fraud on the court; therefore, it was not the subject of any finding.

(1)(b) No. The trial judge was aware of the competing considerations and applied the correct test in declining to award substantial indemnity costs.

(2) Yes. There was no consideration that would warrant refusing to award pre-judgment interest, and it may not have been dealt with through inadvertence.

Tags: Costs, Leave to Appeal, Pre-Judgment Interest

Stilwell v. World Kitchen Inc., 2014 ONCA 770

[Gillese, Pepall and Hourigan JJ.A.]

Counsel: P.J. Pape and S. Goudarzi, for the appellant, World Kitchen Inc.

Park, for the appellant, Corning Incorporated Morrison and P.J. Cahill, for the respondents Keywords: Negligence, Product Liability, Limitation Period, Jury Trial, Standard of Review, Aggravated Damages, Error in Charge to Jury

Facts: This case involves an appeal of the judgment of Leach J., sitting with a jury, awarding the respondents total damages of $1,157,850 for negligence related to product liability. The specific product liability claim at issue related to a pot manufactured by the appellants, World Kitchen Inc. and Corning Inc., which shattered in one of the respondent's hands and caused him significant personal injury.

Issues:

(1) Did the trial judge err in finding that the respondents' claim was not statute-barred by the six- year limitation period?

(2) Should the jury's liability finding be set aside?

(3) Should the jury's award of $25,000 in aggravated damages be set aside or added to the award for general damages?

Holding: The appeal was allowed in part and the $25,000 aggravated damages award was set aside. The appellants were found to be jointly and severally liable for the respondents' costs in the amount of $30,000.

Reasoning:

(1) No. The trial judge applied the correct legal test in his limitation period analysis- "where the identity of a potential defendant is in question, the limitation period commences when the plaintiff has, or is deemed to have, prima facie grounds to infer that the relevant acts or omissions were caused by a particular party." Indeed, the appellants even admitted that the trial judge articulated the correct legal issue when applying this test to the facts. Furthermore, there was available evidence that supported his finding that the respondents' claim was not barred by the six-year limitation period. In sum, the appellants admitted that the trial judge did not make any palpable or overriding error in his limitation period analysis, and therefore there is no basis to overturn his finding that the appellants were not barred by the limitations period.

(2) No. The appellants argued that the jury's finding of liability should be overturned because the jury's findings are inconsistent with the evidence presented at trial. This argument was ultimately rejected, as they failed to meet the very high standard of review of civil jury verdicts. Specifically, a civil jury's verdict should be set aside "only where it is so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have arrived at the verdict." In applying this test, the jury's verdict is entitled to a fair and liberal interpretation in light of the evidence and the circumstances. Reviewing the evidence, it was found on appeal that there was an evidentiary basis for the conclusion reached by the jury. Specifically, there was an available inference that could be drawn from the evidence that the plaintiff's wife would not have purchased the cookware which ultimately injured her husband if the appellants had placed a sufficiently clear warning label on their product. Given this evidence, the panel was not satisfied that the jury's verdict of liability was plainly unreasonable or unjust, or that it was not acting judicially.

(3) Yes. All parties conceded that the trial judge erred in his charge to the jury on the issue of aggravated damages. Specifically, he failed to advise the jury that in order to award aggravated damages, they had to be satisfied that any increased injury to the respondent had to be a result of reprehensible misconduct by the appellants. Therefore, the $25,000 award of aggravated damages should be set aside, as one can only speculate as to whether the jury would have found reprehensible conduct on the part of the appellants.

Tags: Negligence, Product Liability, Limitation Period,Jury Trial, Standard of Review, Aggravated Damages, Error in Charge to Jury

Myers-Gordon v Martin, 2014 ONCA 767

[MacFarland, LaForme and Lauwers JJ.A.]

Counsel:

Chris G. Paliare and Andrew K. Lokan for the appellant, State Farm

Kirk Boggs for the respondent, Karen Martin Keywords:

Summary Judgment; Implied Consent; Impaired Driving; Hryniak v Mauldin et al; Combined Air Mechanical Services Inc v Flesch

Facts:

In the early morning of September 26, 2009, Randy Martin drove a motor vehicle while impaired. The vehicle was owned by his mother Karen Martin. Randy struck and killed two young persons and seriously injured two others. He pleaded guilty to two counts of impaired driving causing death, two counts of impaired driving causing bodily harm and one count of leaving the scene of an accident causing bodily harm. During the plea process Randy admitted that he did not have his mother's consent to operate the motor vehicle at the time of the accident. Karen Martin also denied providing consent. An action was brought against Karen Martin on the issue of...