Court Of Appeal Summaries (June 29 – July 3, 2015)

Hello everyone. Below are summaries of this week's Ontario Court of Appeal decisions. As usual, there are full summaries for the substantive civil decisions. Topics include residential tenancies, the licensing of movie rights, family law, issue estoppel, summary judgment, Crown wardship orders, judicial review, and employment law.

This week, there are also two full summaries of criminal law decisions, one relating to extradition law and the other, R v Graziano, relating to the rule in Browne v Dunne and the rule against splitting one's case, which will be of interest to all litigators. As well, at the end of our post you will find a list of all short endorsements and criminal decisions released this week, with keywords and links to the decisions themselves.

Finally, we have added a new feature on our blog that will hopefully make it more user-friendly for you. There is a table of contents below listing all of the cases in this week's post with the associated keywords. Rather than having to read through the whole post to determine if there were any decisions this week of interest, you should now just be able to click on the name of a case that interests you (based on the keywords associated with that decision), and the link should automatically take you down to the detailed summary of that decision in our blog.

Table of Contents:

Civil Cases:

PDM Entertainment Inc. v. Three Pines Creations Inc. (click on case name to read the summary) Keywords: Contract Law, Intellectual Property, Copyright, Grant of Television Rights, Option Agreement, Contractual Interpretation, Relief from Forfeiture, Courts of Justice Act, s. 98, Sufficiency of Reasons

United States v. Viscomi (click on case name to read the summary) Keywords: Criminal Law, Extradition, Extradition Act, Mutual Legal Assistance in Criminal Matters Act, Canadian Charter of Rights and Freedoms, Child Pornography, Internet Service Provider, IP Address, Disclosure Order, Extradition Order, Surrender Order

Scalia v Scalia (click on case name to read the summary) Keywords: Family Law, Family Law Act, ss. 14, 33(9)(d), Joint Ownership, Presumption of Right of Survivorship, Wills and Estates, Substitute Decisions Act, ss. 31(1), Powers of Attorney, Fiduciary Duty, Partition and Sale, Partition Act, s. 2, Litgation Guardian, Costs, Substantial Indemnity, Ordered Personally Against Representative

Catholic Children's Aid Society of Toronto v A.Y. Keywords: Endorsement, Child Welfare, Crown Wardship Order, Parental Access, Best Interests of Child, Summary Judgment

Sarnia (City) v. River City Vineyard Christian Fellowship of Sarnia Keywords: Municipal Law, Municipal By-Laws, Restrictions as to Use of Church Property, Church Operating Homeless Shelter, Whether Shelter "Church-Sponsored Community Activity or Project", Statutory Interpretation, Interpretation in Accordance with Charter Values

Taylor-Baptiste v. Ontario Public Service Employees Union Keywords: Labour Law, Human Rights Law, Discrimination, Judicial Review, Human Rights Tribunal, Human Rights Code, Meaning of Discrimination "With Respect to Employment", Employment, Unions, Standard of Review, Reasonableness, Charter of Rights and Freedoms, ss. 2(b) and 2(d), Freedom of Expression, Freedom of Association, Charter Scrutiny of Administrative Decisions, Doré Test, Oakes Test

Summarized Criminal Cases and Longer Endorsements:

R v Graziano Keywords: Evidence Law, The Rule in Browne v Dunne, Reply Evidence, Rule Against Splitting Case, Criminal Law, Sexual Interference and Assault

Moon v. Ottaway Keywords: Endorsement, Residential Tenancies, Home Renovations, Civil Procedure, Summary Trial, Affidavit Evidence, Examination-in-Chief, Adjournments, Expert Reports

Drake v Stratford Keywords: Endorsement, Real Estate Law, Issue Estoppel

Short Endorsements

Baradaran v. Tario Warranty Corporation Keywords: Costs Endorsement, Interlocutory Orders, Jurisdiction

Criminal Cases: R. v. Baylis Keywords: Criminal Law, Possession of Restricted Firearm, Criminal Code, s.684, Right to Counsel R. v. Vant Keywords: Criminal Law, Administration of a Stupefying Drug, Criminal Code, ss. 246(b)

R. v. A.A.C. Keywords: Criminal Law, 2nd Degree Murder, Bail Review, Material Change in Circumstances, Criminal Code, ss. 515(10), 522(2) and 680

R. v. M.L. Keywords: Criminal Law, Dangerous Offender, Sentencing, Criminal Code, s.753(4)(b) or (c)

R. v. A.W.B. Keywords: Endorsement, Criminal Law, Youth Criminal Justice Act, ss.110(1), 111(1) and 138(1), Criminal Code, ss. 487.05(1), DNA Data Bank Order

PDM Entertainment Inc. v Three Pines Creations Inc., 2015 ONCA 488

[MacPherson, Epstein and Roberts JJ.A.]

Counsel: K. Prehogan and H. Book for the appellants M. Scott Martin, for the respondent

Keywords: Contract Law, Intellectual Property, Copyright, Grant of Television Rights, Option Agreement, Contractual Interpretation, Relief from Forfeiture, Courts of Justice Act, s. 98, Sufficiency of Reasons

Facts: The appellant, Louise Penny, is an award winning Canadian mystery writer. In 2011, she optioned certain rights to her books to a television production company, PDM. Through her company, Three Pines, Ms. Penny granted PDM the option to purchase the rights to her works for the purpose of producing made for television movies. The option agreement had an initial two year term, but also provided for extensions. When PDM gave notice that it was invoking the extension clause, Three Pines asserted that PDM's rights under the agreement had ended.

In September 2013, PDM extended the Option Agreement by one year. A year later, in September 2014, PDM still had not finalized production order for the second book, and attempted to extend the Option Agreement by a fourth year. Three Pines did not accept the extension.

The application judge accepted PDM's interpretation of the contract and allowed for the extension. He also granted PDM relief from forfeiture as a result of mistakenly underpaying Three Pines. Three Pines appealed.

Issues: 1. Did the application judge provide adequate reasons for judgment?

Did the application judge err in fining that the Option Agreement provides for two one-year extensions of the Initial First Set Option Period? Did the application judge exceed his jurisdiction or otherwise in granting the respondent relief from forfeiture? Holding: Appeal dismissed.

Reasoning: 1) The appellants argued that the judge's reasons were "wholly inadequate", as he did not say anything about the wording of the two key relevant provisions. The Court of Appeal found that while the reasons are conclusory, they do not cross the line and fall into the category of "insufficient" as described in the leading cases (i.e. R. v. Sheppard 2002 SCC 26). At the conclusion of argument, PDM advised the application judge of the urgency of the matter and requested that the decision be issued quickly. The appellants did not take issue with that. The judge released his decision the next morning. The application judge's reasons met the standard required in F.H. v. McDougall, 2008 SCC 53. He 1) justified and explained the result, 2) made it clear to the losing party why they lost, 3) the reasons, coupled with the record, the parties' facta and submissions provide for the Appeal Courts' informed consideration of the grounds of the appeal, and 4) there was nothing to suggest that a reasonable member of the public would doubt that justice had been done.

2) The dispute over contractual interpretation came down to whether PDM could extend the Option Agreement pursuant to clause x and clause y, or clause x or clause y. The Court found that the wording of the clauses, taken together, supported the extension of the contract, and found commercial sense in that interpretation.

3) The appellants submitted that the application judge did not have jurisdiction to grant relief from forfeiture because the remedy can only be granted where the party seeking relief has breached a contract and the breach gives rise to a right to forfeiture essentially to secure the payment of money. The Court of Appeal rejected this argument, stating that a court has a broad discretion to award relief under s.98 of the Courts of Justice Act.

Furthermore, the application judge did not err in granting relief under Kozel v. Personal Insurance Co. 2014 ONCA 130. He found that PDM acted in good faith, its error was trivial in relation to the contract, and forfeiture would be a grossly disproportionate outcome in light of the error.

United States v. Viscomi, 2015 ONCA 484

[Simmons, Cronk and Blair JJ.A.]

Counsel: J. A. Greenspan, J. S. Wilkinson, B. Greenshields for the appellant Marco Viscomi (C57211, C57910 and C59973) J. Norris and M. Conway, for the appellant Brandon Lane (C59982) R. Kramer and N. Denison, for the respondent The Attorney General of Canada (C59973 and C59982), and for the respondent The Attorney General of Canada on behalf of the United States of America (C57211) and on behalf of the Minister of Justice (C57910). R. Hubbard and M. Fawcett, for the respondent The Attorney General of Ontario (C59973 and C59982).

Keywords: Criminal Law, Extradition, Extradition Act, Mutual Legal Assistance in Criminal Matters Act, Canadian Charter of Rights and Freedoms, Child Pornography, Internet Service Provider, IP Address, Disclosure Order, Extradition Order, Surrender Order

Facts: The USA sought the extradition of the appellants, Viscomi and Lane, arising out of internet luring, child exploitation and child pornography charges. Under the Mutual Legal Assistance in Criminal Matters Act (MLACMA), the United States requested assistance to obtain the fruits of searches and seizures conducted by Ontario police relating to Mr. Lane, as they would do in the proceedings relating to Viscomi.

Viscomi's extradition was sought in relation to exploitative internet communication between someone and a 17-year old girl in Virginia Beach in the US. The Virginia Beach police traced communications through an Internet...