Court Of Appeal Summaries (March 2-6, 2015)

Hello everyone. It was a quiet week for the Court of Appeal. Topics covered in this week's civil decisions (non-criminal) include: detention order reviews; determining whether orders are interlocutory or final; whether a motion for leave to appeal should be reopened; whether a court's dismissal of a counterclaim on summary judgment was justified; limitation periods in the context of negligent investigation; and of course costs decisions.

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Boucher (Re), 2015 ONCA 135

[Watt, Pepall and Huscroft JJ.A.]

Counsel:

Breese Davies and Owen Goddard, for the appellant

Maura Jetté, for the Ministry of the Attorney General

Michele Warner, for the Centre for Addiction and Mental Health ("CAMH")

Keywords:

Administrative Law, Ontario Review Board, Detention Order

Facts:

On February 3, 2010, the appellant was found not criminally responsible on a count of threatening death or bodily harm (involving his mother) and three counts of assault. The appellant appeals from a disposition of the Ontario Review Board which ordered that he be detained at the General Forensic Unit of CAMH with a condition that he be allowed to live in the community in accommodation approved by CAMH.

The Board found that the appellant continued to represent a significant threat to the safety of the public. The Board heard and considered evidence relating to a conditional discharge including the recommendation of the appellant's treatment team that he needed close structure and supervision and that he was not ready for a conditional discharge; the hospital had to be able to approve his accommodation. The treatment team considered having the appellant live with his mother but rejected this alternative as lacking viability.

The appellant submits that the Board failed to apply the proper test when it ordered that he continue to be detained at CAMH. He focused on the Board's statement that returning to live with his mother was not the "safest first step" for the appellant. He submits that the Board recognized that he was ready for discharge and it should have ordered a conditional discharge.

The Board concluded that a detention order was necessary to approve housing for the appellant.

Issue(s):

Did the Board err by failing to consider the appropriateness of a conditional discharge and by imposing a detention order?

Held:

No. Appeal dismissed.

Reasoning:

The Court of Appeal concluded that the Board's decision revealed no legal errors and was reasonable given the evidence the Board had before it.

The Board considered the relevant criteria including the appellant's liberty interest and made the least onerous and restrictive disposition. It left the appellant's current privileges and supervisory terms in place and added a term allowing the appellant overnight passes into the community for up to seven days at a time, in order to facilitate greater community access.

Dynasty Furniture Manufacturing Ltd. v. Toronto-Dominion Bank, 2015 ONCA 137

[Laskin, Rouleau and Huscroft JJ.A.]

Counsel:

L. Caylor and N. J. Shaheen, for the moving parties Dynasty Furniture Manufacturing Ltd. et al.

G. R. Hall and J. Sirivar, for the respondent the Toronto-Dominion Bank

Keywords:

Civil Procedure, Appellate Jurisdiction, Interlocutory Order, Final Order, Order for Leave to Amend Pleadings

Facts:

Dynasty Furniture Manufacturing Ltd. ("Dynasty") sued Toronto-Dominion Bank ("TD") in negligence, alleging that TD had actual and constructive knowledge of fraudulent dealings by a third party that caused Dynasty to lose roughly $17 million.

In 2010, portions of Dynasty's statement of claim alleging constructive knowledge were struck on the basis that the circumstances of the case were not capable of establishing a relationship of sufficient proximity to found a duty of care. This order was upheld on appeal.

In 2014, Dynasty successfully moved before Justice Penny to amend its statement of claim to reintroduce allegations grounded in constructive knowledge. (The "Penny Order") Justice Penny concluded that the amended pleading particularized the allegation based on information that was neither known nor reasonably knowable in 2009/2010. He noted that the previous order left open the possibility that a duty could be owed to a non-customer, but that sufficient facts had not been...