Court Of Appeal Summaries (December 8 –12, 2014)

Happy Friday! Below are summaries of this week's Ontario Court of Appeal civil decisions (non-criminal). This week's topics include, a municipality's statutory duty of care; procedural fairness and the complaint process under the Police Services Act (arising from a G20 Summit arrest); pleadings in negligent medical care cases; and the interpretation and application of PIPEDA in a case involving enforcement of a judgment and a debtor's mortgage information.

Please feel free to share this blog with anyone whom you think would be interested. As always, we welcome your comments and feedback.

Have a nice weekend.

Neely v. MacDonald, 2014 ONCA 874

[Blair, Pepall and Lauwers JJ.A.]

Counsel: Christopher R. Dunn, for the appellant Mark Elkin, for the respondents

Keywords: Negligence, Fenn v. Peterborough, Appellate review, Sattva Capital Corp. v. Creston Moly Corp.

Facts:

The appellant, the Canadian Litigation Counsel, hosted a golf tournament at the Bond Head Golf Resort. The appellant signed a "Special Function Contract" with ClubLink Corporation ULC, which owned the golf course. Sandy Neely attended the tournament. She was the passenger in a golf cart driven by the defendant Kelly MacDonald, another guest. Ms. MacDonald lost control of the gold cart while driving down a steep hill, injuring Ms. Neely. Ms. Neely sued Ms. MacDonald for negligence in the operation of a golf cart. She also sued Bond Head and ClubLink. The respondents, Bond Head and ClubLink, brought a third party action against the appellant for indemnity under the Special Function Contract. The motion judge granted summary judgment to the respondents against the appellant, obliging it to indemnify ClubLink for all of Ms. Neely's personal injury claims.

Issue: Did the motion judge err in granting a summary judgment for the respondents?

Holding: Appeal allowed.

Reasoning: Yes. The Court referred to Fenn v. Peterborough (City) (1979) and provided that in order for ClubLink to successfully shift the risk of its own negligence to the appellant, the contract must say clearly say so. Based on the indemnity provision and its accompanying heading, the Court agreed with the motion judge that the wording "claims of any nature that may arise from or through the use of a golf cart" was broad enough to oblige the appellant to indemnify ClubLink for damages that arose form the operation of a golf cart by a guest. However, the Court did not agree that the provision clearly extended to ClubLink's own negligence.

The motion failed to give effect to the principle in Fenn. When read in its entirety, the provision was ambiguous and thus, had to be construed against the drafter, ClubLink. Therefore, the contact failed to clearly shift the risk of ClubLink's own negligence to the appellant. The heading of the indemnity provision made it clear that it was only "damage caused by the customer and/or their guest".

The Court invited counsel to make submissions on the application of Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, to the standard of appellate review. The Court found that the motion judge's interpretation of the indemnity provision, and particularly the failure to apply the principle in Fenn were errors that met the standard in Sattva and justified appellate intervention.

Vincorp Financial Ltd. v Oxford (County), 2014 ONCA 876

[Rouleau, van Rensburg and Pardu JJ.A]

Counsel: Clifford Cole and Nicholas Kluge, for the appellants Vincorp Financial Ltd. and Blandford Square Developments Limited. Steven Stieber and Murray Stieber, for the respondents

Keywords: Municipal Law, Expropriation, s.106(1) of the Municipal Act, Expropriations Act, Fair Value,

Facts: At trial the appellants claim for damages resulting from the expropriation of their land and subsequent transfer of such lands was dismissed. The matter proceeded on the basis of an Agreed Statement of Facts and Chronology and a series of uncontested documents. There were three questions before the trial judge. First, could Oxford lawfully expropriate the mall lands for the purposes set out in Oxford by-law No. 4545-2005, including in order to transfer the mall lands to Toyota for the proposed development of the Toyota Plant? Second, did the expropriation and later sale of the mall lands by Oxford, or any step in that transaction, confer a "bonus" on Toyota contrary to the provisions of s.106(1) of the Municipal Act? Third, if a bonus was conferred and/or if the expropriation of the mall lands was unlawful, are the plaintiffs entitled to a remedy in damages against Oxford? The trial judge answered questions 1 and 2 in the affirmative and found it unnecessary to answer question 3. The appellants submit the trial judge erred in answering these questions which led to the dismissal of their claim. On appeal the appellants argue that Oxford gave Toyota a bonus in violation of s.106 of the Municipal Act by transferring the mall lands to Toyota at the fair value as defined by the Expropriations Act, which did not reflect any increase in value attributable to the proposed development. They argue that the expropriation was illegal, because it was tainted by the concurrent agreement to sell the lands at the expropriation value. The appellants also argue that Oxford is liable in trespass for damages for the differential, in addition for fair market value, which the expropriation process will provide.

Issues: (1) Did the trial judge err in answering the questions put to her resulting in the dismissal of the claim?

Holding: Appeal dismissed.

Reasoning: (1) No. The appellants asserted that the trial judge erred in viewing the expropriation of the mall lands as constituting one transaction and the sale to Toyota as a separate transaction. In the appellant's submission, the two should be viewed together as a single transaction, which would violate s. 106 and operate to invalidate the expropriation of the appellants' lands ab initio. The court found problems with this argument and held that although the expropriation decision may have been motivated by a desire to acquire the mall lands for their transfer to Toyota, the expropriation and rights of the appellants to receive compensation for their lands are governed by a specific statutory regime, under which there is a statutory right to receive "fair value". The Expropriations Act s. 14(4)(b) provides that in calculating fair value to be paid, no account shall be taken of "any increase or decrease in the value of the land resulting from development or the imminence of the development in respect of which expropriation is made". The claim by the appellants that they are entitled to damages in an amount that reflects the increase in value attributable to the proposed development cannot be reconciled with the Expropriation Act limiting the compensation payable.

Additionally, it was conceded that the expropriation proceeded on the basis that there was a proper municipal purpose for the expropriation. The court held that even if the sale and transfer to Toyota had breached s.106, the breach would not have invalidated or vitiated the proper purpose for the expropriation and would not render it invalid. The court found that even if the appellants' submissions were accepted, this would not invalidate the transaction or give rise to an entitlement of damages calculated by the excess of fair market value taking into account the proposed development. There is nothing in the legislative purpose underlying s.106 or in the language of s.106 itself to suggest any intention to confer a right to damages. The court held they did not need to try and answer the second question.

Fernandez v. Unique Auto Collision Network Solution Corp., 2014 ONCA 882

[Hoy A.C.J.O., Epstein and Hourigan JJ.A.]

Counsel: Y. Barre, for the appellants G. Gryguc, for the respondents

Keywords: Costs Endorsement, Dismissal of Motion as Abandoned.

Facts: The appellants, Unique Auto Collision Network Solution Corp., appeal the decision of Pardu J. who dismissed its motion as abandoned.

Issues: (1) Did Pardu J. err in dismissing the motion as abandoned?

Holding: The appeal was dismissed and costs of $3,000 were awarded to the respondent.

Reasoning: (1) No. Pardu...