Court Of Appeal Summaries (November 23-27)

The Court of Appeal released a number of civil decisions this week.

Blaney's own Jason Mangano was counsel for the successful respondent insurer in Forsythe v Westfall in which the Ontario Court of Appeal held that that the applicable law of the insurance policy for the defendant driver is not relevant in determining whether there is a real and substantial connection between the MVA claim and the jurisdiction in which that claim was commenced.

Other topics this week included limitation periods for claims of police liability, wrongful dismissal, property line dispute, a private right of action with respect to contamination under the Environmental Protection Act, and various procedural issues.

Civil Cases

Forsythe v Westfall, 2015 ONCA 810

[Gillese, Blair, MacFarland, Pepall and Benotto JJ.A.]

Counsel:

L. Rachlin, for the appellant

L. Brooks and Victor Galleguillos, for the respondent Michael Westfall

Jason P. Mangano of Blaney McMurtry LLP, for the respondent Intact Insurance Company

M. Cameron, for the intervener Ontario Trial Lawyers Association

Keywords: Torts, Motor Vehicle Accident, Insurance Law, Automobile Policy, Coverage Dispute, Jurisdiction, Van Breda, Real and Substantial Connection, Presumptive Connecting Factors, Forum Non Conveniens, Forum of Necessity, Appeal Dismissed

Facts:

The appellant was a passenger on a motorcycle owned and operated by Mr. Westfall when they were involved in a single vehicle accident in British Columbia. Mr. Westfall does not admit negligence and blamed the accident on an unidentified vehicle crossing into his lane of traffic. He was insured under a standard automobile insurance policy in Alberta. The appellant was an Ontario resident with a standard automobile policy issued to her by AXA in Ontario. Her policy requires that she sue in Ontario to determine whether she has coverage or not. She was treated for her injuries in British Columbia, Alberta, and Ontario.

The appellant sought damages for her injuries against Mr. Westfall, his insurer, AXA, and the unidentified driver. Mr. Westfall moved to have the action against him stayed on the basis that the Ontario court lacked jurisdiction over him. The motion judge agreed with Mr. Westfall's position on the basis that there was not a real and substantial connection between the matter, the parties, and Ontario. He held that the appellant's Ontario automobile insurance policy was not a factor that satisfied the real and substantial connection test, and followed the Court of Appeal's previous decision in Tamminga v. Tamminga in that regard.

Issues:

1) Is the appellant's insurance contract a presumptive connecting factor that gives this court jurisdiction over the entire dispute, including her claim against Westfall? Should this court overrule or distinguish its decision in Tamminga?

2) Should this court recognize a new presumptive connecting factor on the facts of this case?

3) Did the motion judge err by failing to extend the forum of necessity doctrine to the circumstances of this case?

Holding: Appeal dismissed by a five-member panel of the court.

Reasoning:

(1) No, the appellant's automobile insurance contract is not a presumptive connecting factor pursuant to the test set out by the Supreme Court in Club Resorts Ltd. v. Van Breda. The appellant only sued Mr. Westfall in tort. There was no nexus between the appellant's insurance contract and the respondents. Further, Tamminga cannot be distinguished. The principles set out in Tamminga are equally applicable to unidentified, uninsured, or underinsured drivers. In addition, the court in Tamminga was aware that the plaintiffs were required to litigate claims against their insurers in Ontario.

(2) No, a new factor based on the appellant's insurance contract, the regulatory requirement, the appellant residing in Ontario, the appellant sustaining damages in Ontario, and the requirement to bring a suit in two jurisdictions would not go to jurisdiction simpliciter. However, they may be appropriate considerations once jurisdiction is established in a forum non conveniens analysis.

(3) No, the forum of necessity doctrine is only available in extraordinary and exceptional circumstances where the need to ensure access to justice justifies the court's assumption of jurisdiction. According to the Ontario Court of Appeal in West Van Inc. v. Daisley, for Ontario to accept jurisdiction, the appellant must establish that there is no other forum in which she can reasonably seek relief. The appellant has not established this as she has pursued a claim against Mr. Westfall in British Columbia, and she may also continue her claim against AXA in Ontario. There is no chance that the appellant will be denied access to justice in this case.

Cassidy v. Belleville (Police Service), 2015 ONCA 794

[Cronk, Epstein and Huscroft JJ.A.]

Counsel:

R. S. Baldwin and J. Sewell, for the appellant

Muszynski and K. Cooke, for the respondents

Keywords: Torts, Negligence, Police Liability, Limitation Period, Limitations Act, 2002, ss. 5(2) Discoverability, Summary Judgment, Appeal Dismissed

Facts:

On August 18, 2009, Officer Groen pulled over the appellant, Paula Cassidy while she was driving and confiscated the car on the basis that it was stolen. This forced Cassidy and her children to find their own way home. Cassidy was pregnant at that time and alleges that she suffered medical complications relating to her pregnancy as a result of Officer Groen's conduct.

Cassidy wrote to a lawyer on August 24, 2009, asking whether she should pursue a civil action, but did not commence her claim at that time. Cassidy instead complained to the Ontario Civilian Police Service and her complaint to that body was upheld on November 29, 2012. Following the release of that decision, Cassidy commenced her action against the respondents, which was more than four years following the incident.

A motion was brought to determine when the limitation period commenced. Cassidy argued that the limitation period began when the Ontario Civilian Police Service released its decision because this is the date that she was informed of the standard of care required of police officers. The motion judge granted a summary judgment on the basis that the claim was barred by operation of the two-year limitation period, holding that the limitation period commenced at the earliest on the date of the incident, and at the latest, the date the appellant wrote to a lawyer.

Issues:

Did the motion judge err in determining when the limitation period commenced?

Holding:

Appeal dismissed.

Reasoning:

No. A claim is discovered on the date the claimant knew, or ought to have known, of the material facts giving rise to the claim. Under ss. 5(2) of the Limitations Act, 2002, Cassidy knew of the matters giving rise to her potential claim on the day the incident took place unless she could prove to the contrary.

Although the administrative proceeding provided additional information to support Cassidy's claim, the discoverability of her claim did not depend on it. The discovery of sufficient material facts to trigger commencement of the limitation period did not require a precise knowledge of the applicable standard of care for a police officer.

Michela v. St. Thomas of Villanova Catholic School, 2015 ONCA 801

[Hoy A.C.J.O., Epstein and Huscroft JJ.A.]

Counsel:

D. Wright and S. Moreau, for the appellants/respondents by way of cross-appeal

B. St. John and J. Rochwerg, for the respondent/appellant by way of cross-appeal

Keywords: Employment Law, Wrongful Dismissal, Notice Period, Payment in Lieu of Notice, Offers to Settle, Rule 49, Costs

Facts:

The appellants, who were teachers at a private school, were terminated from their employment and sued for wrongful dismissal. Judgment was granted in their favour on a motion for summary judgment, however, the motion judge, who initially found that the proper notice period should be twelve months, reduced that period to six months as a result of the respondent employer's financial difficulties. He also awarded the teachers costs in the amount of $42,000 on a partial indemnity basis, which was an amount that was discount from their actual partial indemnity costs of approximately $68,500 because the appellants were not entirely successful. The teachers appealed and the employer sought leave to cross-appeal on the issue of costs.

Issues:

The appellants raise three issues on appeal:

(1) Did the motion judge err in law in relying on the respondent's alleged financial difficulties to reduce the notice period?

(2) Did the motion judge err in law in presuming that there may be positions the appellants could secure six months following their termination?

(3) Did the motion judge make a palpable and overriding error of fact in finding that enrolment issues constituted a financial problem permitting a reduction in the notice period to six months?

(4) What was the appropriate costs award?

Holding: Appeal allowed, leave to cross-appeal denied.

Reasoning:

(1) The court held that the motion judge erred in considering the employer's financial circumstances as part of the "character of the employment" in deciding to reduce the notice period to six months. A consideration of the character of the employment refers to the nature of the position that had been held by the employee-the level of responsibility, expertise etc., not the circumstances of the employer.

(2) The court held that there was no evidentiary basis for the motion judge's presumption concerning the future availability of teaching positions. It was a matter of speculation and was inconsistent with his conclusion that the appellants took all reasonable steps to mitigate their damages. This finding did not support the decision to reduce the notice period.

(3) Given the conclusion on the first issue, it was not necessary to address the third issue.

(4) Given the appellants' success on the appeal and given that the amount of their entitlement was greater than the amount they...