Court Of Appeal Summaries (September 14-18, 2015)

The Ontario Court of Appeal released a number of civil law decisions this week. Topics covered include two lawyers' professional negligence decisions in which the lawyers were successful both times; a priority dispute between creditors making constructive trust claims and seeking a tracing remedy; the striking of what was found to be a frivolous defamation and related claims brought by a doctor against former patients who had sued her for malpractice and complained about her to her professional college; a dispute about the internal governance of a private golf course; and a Crown wardship decision under the Child and Family Services Act.

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CIVIL DECISIONS

C.M. v Children's Aid Society of the Regional Municipality of Waterloo, 2015 ONCA 612

[Feldman, Simmons and Miller JJ.A.]

Counsel:

E. Ichim, for the appellant

W. Boich, for the respondent

Keywords: Family Law, Child Custody, Wardship, Child and Family Services Act, ss. 3, ss. 47(2)(c), ss. 59(2.1), ss. 70, Access, Definition of "Indian" or Native Person, Best Interests of the Child

Facts: The appellants have two children that have been in care with their current foster parents since September 2010 when a protection application was filed. When they went into care, one child was less than two years old and the other child was less than four years old. In November 2013, following a trial that began in August 2012, the appellants' two children were found in need of protection. The trial judge ordered that the children be designated Crown wards without access. In March 2015, a Superior Court appeal judge dismissed the appellants' appeal from that order. On appeal to the Court of Appeal, the appellants ask that the Crown wardship order be varied to provide them with access to their children.

Issues:

(1) Did the trial judge err in determining the Indian or native status of the children? In the alternative, did the trial judge err by failing to apply the principles from R v Gladue?

(2) Did the trial judge err by drawing negative inferences based on the appellant mother's "flat affect"?

(3) Did the trial judge err in failing to consider the best interests of the children in relation to access?

Holding: The Appeal is dismissed with no order as to costs.

Reasoning:

(1) No, neither the mother nor the children fall within the definition of "Indian" or native person under the Child and Family Services Act (CFSA). The Court noted that the relevant inquiry under the CFSA is the children's status, not the mother's status. The fact that the mother may self-identify as native does not determine her children's status. For the Court to make an access order under the CFSA, the court must be satisfied that: (a) the relationship between the person and the child is beneficial and meaningful to the child; and (b) the ordered access will not impair the child's future opportunities for adoption. The trial judge declined to make an order for access for two reasons. First, she was not satisfied that a relationship existed between the appellants and their children that was beneficial or meaningful to the children. Second, because no adoption plan had by then been put forward, she was unable to determine whether access would impair the children's future opportunities for adoption. Under these circumstances, an access order was not available under the CFSA. Furthermore, the Court was not persuaded that the Gladue principles affected the determination of whether an access order would be appropriate in this case. Gladue was decided under the Criminal Code and does not alter the statutory definitions set out in the CFSA.

(2) No, this issue was fully canvassed before the Superior Court appeal judge so there is no basis to interfere with the Superior Court appeal judge's conclusions. The Superior Court appeal judge placed little weight on fresh evidence the appellants sought to introduce on appeal from "a self-described expert" because no effort had been made to adduce such evidence at trial, or to demonstrate on appeal the witness' credentials. The issue of the mother's "flat affect" and her ability to connect with her children had been raised in a Parental Capacity Assessment prior to trial. The only evidence the appellants led at trial in response was a brief statement by the mother that she is part native and that natives tend to speak in a monotone voice. As noted by the Superior Court appeal judge, this evidence was insufficient to allay the trial judge's concerns arising from the assessor's evidence that the mother was unable to connect emotionally with her children and gain their attention.

(3) No, the trial judge was aware of the children's cultural heritage, which she noted in her reasons. The trial judge concluded that, considering all the circumstances of the case, an order for Crown wardship was necessary and in the best interests of the children, which was supported by the evidence.

Pruner v Ottawa Hunt and Golf Club Limited, 2015 ONCA 609

[Simmons, Epstein, and Pardu JJ.A.]

Counsel:

Craig M. Bater, for the appellant R. Aaron Rubinoff and Emily S.S. Rahn, for the respondent

Keywords: Corporate Law, Corporations Act, 1990, ss. 34(4), 329 and 332, Share Capital Social Clubs, Governance, Board of Directors, Duty to Act in Best Interests of the Corporation, Policy Requiring Cancellation of Shares, Whether Ultra Vires, Appeal Routes, Appeal Lying to Divisional Court, Courts of Justice Act R.S.O. 1990, ss. 18(2), Reconstitution of Court of Appeal as Divisional Court in Order to Determine Appeal

Facts:

Joseph Pruner is a member at the Ottawa Hunt and Golf club. He wanted to transfer from a "Fully Privileged Golfing" member to "Senior Social" member. He also requested to keep the Class B voting share the Club allocated to him when he became a Fully Privileged Golfing member 31 years ago.

The Board of directors refused his request, and adopted a policy requiring members who wanted to switch memberships to resign, thereby cancelling their Class B voting share- and re apply for membership in the new category.

Mr. Pruner brought an application in the Superior Court seeking an order requiring the Board to accept his transfer application. He argued that the new policy amounts to a variation or restriction of the rights attached to his Class B share, and as such the Board cannot impose such a change unilaterally. The application judge did not accept this argument, and found that the policy was in the Board's jurisdiction. The application judge decided that the club's Board is entitled to make policies respecting the management of the Club so long as these policies are in the best interests of the corporation. Mr. Pruner renews his position on Appeal. His argument is that the policy is ultra vires the Board because it amounts to a variation of the rights attaching to his Class B share, thus triggering ss.34 (4) of the Corporations Act.

Issues:

Does the policy change made by the golf club affect Class B rights? Was the appeal properly before the Court of Appeal? Holding:

Appeal Dismissed.

Reasoning:

The Court held that, the Board's policy cannot fairly be described as imposing a variation, condition or restriction on Class B Shares. The Court concluded that the Board's policy does not affect Mr. Pruner's rights as a shareholder, therefore it follows that the policy was indisputably a valid exercise of the Board's power based on the Corporation's by-laws.

The Court also held that the application judge's order dismissing Mr. Pruner's application was an order made under the Corporations Act, and that the appeal should have been brought to the Divisional Court pursuant to section 329 of the Corporations Act. The Court also pointed out that although the parties did not advert to it, s. 332 of the Act provides a remedy for an aggrieved shareholder such as Mr. Pruner.

Mitchinson v. Baker, 2015 ONCA 623

[Gillese, Pepall and Benotto JJ.A.]

Counsel:

Elisabeth Mitchinson and Timothy Mitchinson, acting in person

Adam J. Huff, for the respondent Lawyers' Professional Indemnity Company

Louis C. Sokolov and Krishana Persaud, for the respondent David Baker

Keywords: Torts, Professional Negligence, Rules of Civil Procedure, Rule 21.01(3)(d), Rule 25.11, Motion to Strike, No Reasonable Cause of Action, Abuse of Process

Facts:

David Baker (the "Respondent") represented Elisabeth Mitchinson in a human rights complaint related to the termination of her...