Court Of Appeal Summaries (March 14-18, 2016)

Good afternoon.

This week's decisions from the Court of Appeal covered a broad range of topics, including defamation (the requirements for notice under the Libel and Slander Act), wrongful dismissal, expropriations, several contract interpretation cases, and a family law case, involving whether there was a true loan from a parent to their child.

Have a nice weekend.

CIVIL DECISIONS

Arsenault v. Nunavut, 2016 ONCA 207

[LaForme, Pardu and Roberts JJ.A.]

Counsel:

Michael D. Marin and David Quayat, for the appellant

Jock C. Climie, for the respondent

Facts:

Appellant sued Government of Nunavut for wrongful dismissal. The appellant claims that the alleged harassment by her employer caused her to develop severe mental illness. She filed a report from a psychological associate indicating that a return to Nunavut could trigger her symptoms in legal proceedings. The motion judge ruled the action to be heard in Nunavut. The appellant wants the cause of action to be heard in Ontario, and claims that is the appropriate forum giving her circumstances.

Issues:

Did the motion judge err in failing to conclude that Ontario was a forum of necessity?

Holding: Appeal Dismissed

Reasoning:

No. The Court found no error in the motion judge's decision. The evidence of the psychological associate was that there was a risk of traumatic activation, that it was not advisable for the appellant to return to Iqaluit, and that it would be "especially challenging" for the appellant to return to Iqaluit for a legal proceeding. She did not say the appellant could not return. The court also said that should the appellant make the case by admissible evidence on a motion before a Nunavut court her condition requires her to give evidence from a remote location, the appellant's request could be accommodated.

Canadian Union of Postal Workers v. Quebecor Media Inc., 2016 ONCA 206

[LaForme, Pardu and Roberts JJ.A.]

Counsel:

David Migicovsky and Karin M. Pagé, for the appellant

Tycho Manson, for the respondents Quebecor Media Inc., Sun Media Corporation, TVA Group Inc., and Jerry Agar

Stephen Cavanagh, for the respondent Avi Benlolo

Facts:

The motions judge had dismissed the appellant's action following the respondents' Rule 21 motion. Specifically, the motions judge held that the appellant's notices did not comply with the requirements of ss. 5(1) of Ontario's Libel and Slander Act. While they identified the matters complained of by the appellant, the notices did not sufficiently specify them.

On appeal, the parties agreed that the standard of review of a motion judge's order pursuant to Rule 21.01(1)(a) of the Rules of Civil Procedure is correctness, as these orders determine questions of law. The appellant submitted that the motions judge erred in holding that its ss. 5(1) notices were deficient.

Issues: Did the motions judge err in holding that the appellant's ss. 5(1) notices were deficient?

Holding: Appeal Allowed.

Reasoning:

Yes. The Court in Grossman v. CFTO-TV Ltd. established that ss. 5(1) notices under the Libel and Slander Act do not have to be in a specific form, while the Court in World Sikh Organization of Canada v. CBC/Radio Canada held that it is not necessary for these notices to contain the same level of particularity as required in a statement of claim. Instead, they need to be sufficiently specified so that the notice reveals the essence of the matter complained of by the plaintiff and concomitantly gives the defendant the opportunity to analyze and assess the allegations.

The Court held that the appellant's notices achieved these objectives: the broadcast and article in issue were short and could not reasonably cause confusion. Moreover, they clearly specified the matters complained of and even reproduced actual portions of the allegedly defamatory words.

The respondent Benlolo argued that the notice was invalidated by the inclusion of a retraction notice and draft apology because he could not bring about the retraction as he had no control over the media defendants. The Court rejected this argument and reasoned that the LSA requires only that notice of the matter complained of be given and that there is no requirement that the plaintiff suggest a possible resolution or that the defendant accept any proposal from the plaintiff.

The other respondents' argument that the appellant failed to include the additional allegations pleaded in the statement of claim about the form and placement of the article was similarly rejected. Instead, the Court found that the notice specified the matter complained of and met the requirements of the LSA.

Benlolo's argument that the plaintiff unincorporated trade union had no capacity to bring a suit in defamation was not decided either by the motions judge or by the Court of Appeal, as it was the subject of Benlolo's cross-appeal, which he did not pursue and for which leave was required to the Divisional Court pursuant to Rule 62.02(1) of the Rules of Civil Procedure. That issue is better left to be decided by the trial judge.

1739061 Ontario Inc. v. Hamilton-Wentworth District School Board, 2016 ONCA 210

[Feldman, Lauwers and Benotto JJ.A.]

Counsel:

Frank Sperduti and Christel Higgs, for the appellant

Paul R. Henry, for the respondent

Facts:

The School Board operated a secondary school on a property (the "Property") for 33 years until declining enrolment led it to close the school and to sell the Property to the appellant. The appellant intended to redevelop the old school building as a seniors centre. The School Board then changed its mind and decided to close other secondary schools in the area and build a centrally located school on the Property it had sold to the appellant. When the appellant would not sell the Property to the School Board at what it viewed as a fair price, the School Board expropriated the Property from the appellant.

The School Board subsequently authorized its staff to implement a land swap with the City whereby a large portion of the Property would be exchanged for City lands adjoining the Property in a joint development plan to build a school with accessibility to ancillary facilities. However, the swap had not been executed, only approved. The appellant asserted that the School Board's actions triggered ss. 41(1) of the Expropriations Act, and the School Board was required to offer to re-convey the Property to it.

The application judge accepted the School Board's submission that it is essential and fundamental to the creation of shared services that "related amenities" be interpreted broadly enough to include the development of the Property to be completed by the City rather than the School Board. The application judge also accepted the submission that s. 41 was not triggered because the Property had not been found to be no longer required for the School Board's purposes, which...