Court Of Appeal Summaries (January 26-30, 2015)

Hello again to everyone. Below are summaries of this week's Ontario Court of Appeal civil decisions (non-criminal). The court's long-awaited decision on expert reports in Moore v Getahun was released yesterday. Most will recall that the issue under consideration were discussions between counsel and expert witnesses and the extent to which consultations between them should be documented and disclosed to the other side. The court has provided counsel with some much needed guidance on dealing with experts and the extent of disclosure obligations in respect of those dealings. The court held that counsel may communicate with an expert on a draft report and assist in the preparation of that report and that not all drafts or notes must be disclosed. However the litigation privilege that attaches is qualified with some exceptions and disclosure obligations may arise in circumstances such as for the production of foundational information. The court may also order disclosure of such discussions where it can be shown on reasonable grounds that counsel improperly influenced the expert. For a more detailed discussion of Moore v Getahun please see Visnja Jovanovic's article on the case, which can be found here: http://www.blaney.com/sites/default/files/InsuranceBulletin_January2015.pdf

Other topics covered this week included family law (material change in circumstance as it relates to varying residency schedules), class actions (refusal of the court to approve the settlement in the claim by lawyers against Carswell for reproducing their facta on their research service, Litigator), summary judgment and more.

Wishing everyone a nice weekend.

Brown v. Lloyd, 2015 ONCA 46

[Feldman, Cronk and Hourigan JJ.A.]

Counsel: K.C. Bales and R. Diamond, for the appellant J. N. Moldaver, for the respondent

Keywords: Family Law, Access, Residency Schedule, Material Change in Circumstances

Facts: The appellant, David Lloyd, and the respondent, Moya Dianne Brown, resided together from August 2004 to May 2007. They never married. They are the parents of one child, David Daxton Brown Lloyd ("Dax"), who was born on November 14, 2004. Dax is now 10 years of age. Mr. Lloyd appeals from the order of Stevenson J. of the Superior Court of Justice dated January 14, 2014, dismissing his motion to vary the existing residency schedule for Dax based on alleged material changes in circumstances. He seeks to increase his access rights so as to implement essentially an equal residency schedule for Dax, affording each parent equal time with him.

The motion judge dismissed Mr. Lloyd's motion to vary. She found that there had been no material change in Dax's circumstances within the meaning of the governing authorities or the Children's Law Reform Act (the "CLRA"). The threshold requirement of a material change in circumstances not having been met, the motion judge declined to inquire further into the merits of Mr. Lloyd's variation proposal.

Issues: 1) Did the motion judge err by misapprehending the test for the demonstration of a material change in circumstances?

2) Did the motion judge err by failing to find a material change in circumstances? and

3) Did the motion judge err by failing to consider the "maximum contact principle" and Dax's best interests?

Holding: Appeal dismissed.

Reasoning: 1) No. The motions judge referred expressly to the test for variation enunciated by the Supreme Court in the leading case of Gordon v. Goertz, [1996] 2 S.C.R. 27, and noted, correctly, that on the authority of Gordon, the merits of an application to vary a custody and access order may be considered only where the reviewing court is first satisfied that a material change in circumstances has occurred since the date of the order sought to be varied.

2) No. The motion judge considered each of the events or developments advanced by Mr. Lloyd as a material change of circumstances. These included: Dax's age and advancing maturity; Ms. Brown's remarriage; the birth of her two daughters and her relocation to a new home; and Dax's diagnosis of a learning disability, which occasioned the need for specialized tutoring. For lengthy and detailed reasons, the motion judge concluded that while most of these developments constituted changes in the circumstances that prevailed at the time of the original order, none of them, alone or in combination, met the Gordon test for a material change in circumstances on the facts of this case.

3) No. The finding of a material change in circumstances is a prerequisite to an examination of the merits of an application to vary an existing custody or access order. Absent such a finding, the variation inquiry can go no further.

Crawford v. Carey, 2015 ONCA 40

[Doherty, Rouleau & Watt JJ.A.]

Counsel: F. Crawford, for the plaintiffs (appellants) S.A. Crocco, for the defendant (respondent) Allan Socken

Keywords: Civil Procedure, Pleadings, Leave to Amend

Facts: On appeal from the order of Justice Chiappetta of the Superior Court of Justice dated August 27, 2014.

Issue: Did the motion judge err in refusing to grant the plaintiffs (appellants) leave to amend their statement of claim?

Holding: Appeal dismissed.

Reasoning: The statement of claim does not plead facts as against the defendant capable of supporting any of the causes of action as pled. Like the motion judge, the court saw no basis upon which to grant the appellants leave to amend.

Holdstock v. Holdstock, 2015 ONCA 42

[Feldman, Simmons and Pardu JJ.A.]

Counsel: Raymond G. Colautti and Anita E. Landry, for the appellant Robert J.M. Ballance, for the respondent

Keywords: Family Law, Property, Trust Agreement, Authenticity of Signature, Commercial Property

Facts: The parties were involved in matrimonial litigation following a long-standing marriage of 35 years. The current appeal related to a commercial property on which the husband runs his landscaping business. The husband's financial statements show the property as owned by the wife. After the wife entered into an agreement of purchase and sale to sell the property for approximately $80,000 in excess of the valuation-day value, the husband claimed to have found a trust agreement which provides that the wife holds the property in trust for the husband and agrees not to sell it. The wife tendered an unsworn expert report that questioned the authenticity of her signature on the trust agreement. The motion judge granted the wife's motion for a writ of possession on the basis that her alleged signature was refuted by a handwriting analyst. The formal order did not include a declaration that the wife was the owner of the property. Rather, it simply provided that a writ of possession shall issue in favor of the wife. The husband appealed the motion judge's ruling and renewed his request for a trial on the issue of the authenticity of the wife's signature.

Issue: Did the motion judge err in issuing the writ of possession?

Decision: Appeal dismissed

Reasoning: No. Although the motion judge erred by relying on the unsworn report of a handwriting expert, he came to the correct conclusion that a writ of possession should issue. Given the wife's status as the registered owner, the husband's position in his financial statements that the wife is the owner of the property, and her reliance on that position in selling the property, together with the unclear effect of the declaration of trust, in all the circumstances, the mere existence of the trust document, even if signed, did not justify jeopardizing the favourable sale of the property at this stage of the proceedings. The parties were not precluded from asserting their respective claims to the proceeds of sale as advised.

Agostino v Gary Bean Securities Ltd., 2014 ONCA 49

[Doherty, Juriansz and Huscroft JJ.A.]

Counsel: M. Agostino, acting in person L.M. Smits, for the respondents

Keywords: Employment Law, Termination For Cause, Progressive Discipline, Pre-Trial Disclosure of Witnesses, Failure to Disclose not Precluding Calling Witnesses

Facts: This was an appeal from the decision of Grace J. dismissing the appellant's action for wrongful dismissal and granting judgment on the respondents' counterclaim for $63,179.66, money found owing as a result of the appellant's expense account.

Holding: Appeal dismissed. Reasoning: The trial judge properly exercised his discretion to allow the respondents to call two witnesses to testify at the trial, despite the fact that they were not included on the pre-trial conference report.

It was open to the trial judge to conclude that the appellant's employment was terminated for just cause given his findings that the appellant made unauthorized trades, lied to a client, and misled the respondent.

Further, there is no legal principle requiring progressive discipline in every case. The trial judge considered whether progressive discipline was appropriate and determined that it was not.

There was no basis to suggest that the respondents acted with malice or bad faith toward the appellant.

Lastly, there was no need to consider the appellant's notice period argument, and the trial judge's calculation of expenses was supported by the facts.

Pinsky v. Smiley, 2015 ONCA 52

[Weiler, Watt and Epstein JJ.A.]

Counsel: M. Cheng, for the moving parties, responding parties by way of cross-motion A. Pinsky, acting in person

Keywords: Civil Litigation, Quashing Appeal, Interlocutory vs. Final

Facts: This was a motion to quash the the appellant, Mr. Prinsky's appeal as being interlocutory rather than final. The appellant conceded that the decision on a motion to remove counsel is interlocutory. He argued that the motion judge's refusal to grant him an adjournment to examine a third party was a final one and that the Court of Appeal has jurisdiction to deal with the matter. The appellant sought an adjournment to examine witnesses for whom solicitor client privilege was claimed. The request for the adjournment was intertwined with the refusal to remove Faskens as solicitors of...