Court Of Appeal Summaries (March 9-13, 2015)

Good evening. As usual, there were quite a few summary judgment cases dealt with by the Court of Appeal this week, several dealing with limitation periods, including in the areas of medical malpractice, defamation, slip and falls, and negligence. There was also an interesting franchise law decision discussing the contract law doctrine of severance of void or unenforceable terms from the rest of the contract. In that case, by overreaching, the franchisor lost other legitimate protections. Additionally, a decision was released on whether a judge of the Ontario Superior Court of Justice could participate in a joint hearing with other supervisory judges either inside or outside of Ontario.

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Arnone v. Best Theratronics Ltd.,2015 ONCA 153

[Strathy C.J.O., Laskin and Brown JJ.A.]

Counsel:

F. Cesario and S. O'Brien, for the appellant

C. Rootham, for the respondent

Keywords: Costs endorsement

Holding: Costs were payable to the respondent in the amount of $10,000, inclusive of applicable taxes and disbursements.

Ontario (Review Board) v. Petroniuk,2015 ONCA 156

[Sharpe, Gillese and Benotto JJ.A.]

Counsel:

D. Moore, for the appellant

J. Gorda and G. MacKenzie, for the respondent

Keywords: Administrative Law, Ontario Review Board, Detention Order

Facts: The appellant appeals the Ontario Review Board's ("ORB") decision to maintain her detention order under Part XX.1 of the Criminal Code.

Issue: Did the ORB err in upholding the appellant's detention order?

Holding: Appeal dismissed.

Reasoning: No. The court found that the appellant lacks insight into her mental illness. The index offence involved a violent assault on the appellant's mother, which the appellant continues to regard as an act directed by God. There is a long history of non-compliance with medication and the appellant expresses a continuous desire to stop taking it.

There was also ample evidence to support the ORB's finding that the appellant continues to pose a significant risk, and that the detention order is the least restrictive measure to deal with that risk. Therefore, the conclusion that the appellant and the risk she poses could not be adequately managed in the community was reasonable.

Hodutu v. Bulger, 2015 ONCA 160

[Lauwers, Hourigan and Pardu JJ.A.]

Counsel:

M. Djukic, for the appellant

E. Nwator, for the respondent

Keywords: Civil Litigation, Medical Malpractice, Professional Negligence, Limitation Period, Limitations Act, 2002, Discoverability, Fraudulent Concealment

Facts: The respondents are dental surgeons who provided services to the appellant from 1998 to June 2006. The appellant claimed the dental implants inserted by the respondents caused pain and infections and that her pain ceased when the implants were removed in June 2006. The appellant commenced an action against the respondents on February 5, 2013, alleging professional negligence and medical malpractice. The respondents brought a motion to strike the appellant's statement of claim asserting, among other things, that the claim was statute-barred by the Limitations Act, 2002. Mew J. granted the motion. The appellant appealed this decision submitting that the motion judge failed to properly consider the issues of discoverability and fraudulent concealment, and erred in not granting her leave to amend her claim.

Issue: Should the order striking the appellant's statement of claim on the basis that the applicable limitation period had expired be set aside?

Holding: Appeal dismissed. Costs in the amount of $5,000 all-inclusive to be paid to the respondents.

Reasoning: No. The Court held that the appellant's argument that she did not discover her claim in June 2006 was contradicted by her own pleadings and there was no evidence to support the allegation of fraudulent concealment. Additionally, there was no basis to grant leave to amend the statement of claim because it was statute-barred.

Ontario (Review Board) v Merner, 2015 ONCA 157

[Sharpe, Gillese and Benotto JJ.A.]

Counsel:

A. Szigeti, for the appellant

B. Walker-Renshaw, for the respondent, Ontario Shores Centre for Mental Health

J. Stuart, for the respondent, Her Majesty the Queen

Keywords: Ontario Review Board, Conditional Discharge

Holding: Appeal dismissed.

Reasoning: No issue was taken with the ORB's finding of significant risk. The Board fully discharged its obligation to ensure that the least onerous and restrictive disposition was imposed. The issue of conditional discharge was expressly considered by the treating physician and the co-author of the hospital's report.

Ontario (Review Board) v. Caster, 2015 ONCA 155

[Sharpe, Gillese and Benotto JJ.A.]

Counsel:

A. Szigeti, for the appellant

B. Walker-Renshaw, for the respondent, Ontario Shores Centre for Mental Health

J. Gorda, for the respondent, Her Majesty the Queen

Keywords: Appeal Book Endorsement, Ontario Review Board

Holding: The finding of not-criminally responsible was set aside on the previous appeal by the Ontario Review Board. The appeal to the Court of Appeal was dismissed for lack of jurisdiction.

Ashley v. Reinhart, 2015 ONCA 164

[Cronk, Gillese and Brown JJ.A.]

Counsel:

R. Campbell, for the appellant

A. Bedard, for the respondent

Keywords: Civil Procedure, Disclosure and Production Obligations, Self-represented

Facts: This was an appeal from a dismissal order resulting from the appellant's persistent and deliberate failure to comply with court orders requiring him to fulfill his disclosure and production obligations. The appellant was initially represented by counsel but, at the material times in the proceedings in question, he was self-represented. He was represented by counsel before the Court of Appeal.

The appellant sought reinstatement of the dismissed action.

Issue: Did the motion judge err in dismissing the action?

Holding: Appeal Dismissed

Reasoning: No. The appellant had repeatedly flouted court orders to comply with disclosure and production obligations. On August 7, 2014, the appellant was given a "last chance" order to produce his list of witnesses and a sworn affidavit of documents or else face the dismissal of his action. He was given a choice between this option and proceeding to trial, but only with those documents and witnesses that had been disclosed to the other side. The appellant chose the option that required him to comply with his disclosure and production obligations. He made no attempt to fulfill those obligations in the allotted time.

The Court rejected any suggestion that the appellant, as a self-represented litigant, was not fairly treated. The record made it clear that the orders in question were repeatedly explained to him and he was given considerable assistance by both the courts and opposing counsel. His response was to ignore the judicial advice and threaten opposing counsel with death, for which he was convicted in a criminal court.

Boiko v. Grover,2015 ONCA 161

[Lauwers, Hourigan and Pardu JJ.A.]

Counsel:

R. M. Rowe, for the appellant

H. Robertson, for the respondents

Keywords: Summary Judgment, Defamation, Public Service Staff Relations Act, Qualified Privilege

Facts: The appellant was hired by the respondent, the National Research Council (the "NCR") in November 2001. As an employee of the NCR, he was subject to the Public Service Staff Relations Act ("PSSRA"). The other respondents are employees of the NRC. After the appellant received unfavourable performance reviews during the probationary period, his employment with the NRC was terminated. Consistent with NRC's standard practice, the human resources department prepared a "Release on Probation" document (the "Release"), which summarized the appellant's performance reviews.

The appellant commenced the underlying action in March 2009, seeking $1 and a letter of apology as damages. The respondents brought a motion for summary judgment arguing that the appellant's claim (1) was barred by the PSSRA; (2) was out of time; (3) did not correctly plead the elements of defamation; and (4) was subject to the defence of qualified privilege. The motion judge granted the motion for summary judgment on three of the four grounds submitted by the respondents.

First, the motion judge found that the claim was barred by the PSSRA. She found that in reality the claim was a dispute related to the termination of the appellant's employment. The motion judge considered this to be the type of workplace dispute Parliament determined should be resolved by the PSSRA. The appellant had already availed himself of that system. It was noted that the Release was a summary of the reasons for terminating the appellant's employment and such a document was routinely used by the NRC. Further, the appellant conceded that the Release was never published outside select NRC employees.

Second, the motion judge found that the appellant did not discharge his burden of demonstrating that any of the statements in the Release were defamatory. Even if the appellant was not required to pursue his complaint through the grievance system, the motion judge found that none of the elements of defamation could be established, and there was no need for a trial on this issue.

Third, the motion judge found that the respondents were protected by qualified privilege because they had prepared the Release in the course of their employment. The appellant did not provide any evidence of malice on the part of the respondents, which was the only basis for depriving them of the defence of qualified privilege.

The motions judge found that on these three separate bases, there was no genuine issue for trial.

Issue: Did the motion judge err by granting summary judgment to the respondents?

Holding: Appeal dismissed with costs to the respondents, fixed in the amount of $3,000, all-inclusive.

Reasoning: No. The Court found no error in...