Court Of Appeal Summaries (October 3- 7, 2016)

There were five substantive civil decisions released and summarized this week. The first, J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys so that impaired minors without driver's licenses cannot easily steal the cars and get into serious accidents. The second, Fernandes v. Carleton University, involved an odd claim by a student who appealed a University grade combined with a claim for wrongful termination against his employer. Hoang v. Vicentini was a motor vehicle case that discusses the difference between litigation experts and participant experts (the former needs to prepare a report under the Rules of Civil Procedure, the latter does not) and also conflict of interest issues for defence counsel acting in a reservation of rights situation. Nadeau v Caparelli discusses legal and equitable assignments, when an assignee of a debt can sue in their own name and when they need to name the assignor as a co-plaintiff. Lastly, C-A Burdet Professional Corporation v. Gagnier is an endorsement amending an order requiring counsel asserting a solicitors lien to produce the file to new counsel.

Table of Contents:

Civil Cases:

J.J. v. C.C., 2016 ONCA 718

Keywords: Torts, Negligence, Duty of Care, Reasonable Forseeability, Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), Cooper v. Hobart, 2001 SCC 7

Fernandes v. Carleton University, 2016 ONCA 719

Key Words: Employment Law, Wrongful Dismissal, Administrative Law, Universities, Appeal from Grades, Summary Judgment, No Reasonable Cause of Action, Abuse of Process, Rules of Civil Procedure, Rules 20, 21.01(3)(d) and 25.11(c)

Hoang v. Vicentini, 2016 ONCA 723

Keywords: Torts, MVA, Opinion Evidence, Litigation Experts, Participant Experts, Westerhof v. Gee Estate, Civil Procedure, Rules of Civil Procedure, rule 53.03, Ultimate Issue, Trials, Evidence, Admissibility, Charge to Jury, Failure to Object at Trial, Insurance Law, Reservation of Rights, Defence Counsel, Conflict of Interest, Costs, Sanderson Orders

Nadeau v. Caparelli, 2016 ONCA 730

Keywords: Contracts, Debtor-Creditor, Legal Assignments, Equitable Assignments, Conveyancing and Law of Property Act, s 53(1), Civil Procedure, Joinder of Parties, Assignors, Rules of Civil Procedure, Rule 5.03(3), Summary Judgment, Limitation Periods

C-A Burdet Professional Corporation v. Gagnier, 2016 ONCA 735

Keywords: Endorsement, Solicitor and Client, Unpaid Legal Fees, Solicitors Lien, Appeals, Jurisdiction, Final or Interlocutory, Courts of Justice Act, R.S.O. 1990, c. C.43. s. 19(1)(b)

For Civil Endorsements, click here

For Criminal Cases, click here

Civil Cases:

J.J. v. C.C., 2016 ONCA 718

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

Counsel:

D. S. Young and K. R. Bridel, for the appellant, James Chadwick Ranki

M. L. Bent, J.T. Akbarali, and A. E. Campos Reales, for the respondent

J. Chapman, for the respondent, C.C. (Motor Vehicle Accident Claims Fund)

Keywords: Torts, Negligence, Duty of Care, Reasonable Forseeability, Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), Cooper v. Hobart, 2001 SCC 79

Facts: J.J., a 15 year old boy, met with his friends C.C., age 16, and T.T., age 16. C.C. and T.T. drank numerous beers. All three boys also drank vodka mixed with orange juice and shared a single marijuana cigarette. T.T. went home later that evening and C.C. and J.J. left the house at that time.

C.C. and J.J. walked around with the intention of stealing from unlocked cars. They attempted to break into several cars and found that a few of them were unlocked. They ended up at Rankin's Garage & Sales ("Rankin's Garage"), which services and sells cars and trucks. The garage property was not secured. C.C. testified that he remembered checking two cars on the lot and finding an unlocked Toyota Camry parked in an area behind the garage. The keys to the Camry were in the ashtray. C.C. decided to steal the car even though he did not have a driver's license and had never driven a car.

J.J. got into the car as passenger. C.C. decided to drive to the nearby town of Walkerton to pick up a friend. The car crashed on the way there. J.J. suffered a catastrophic brain injury.

J.J. sued C.C., Rankin's Garage, and C.C.'s mother, D.C., for negligence. J.J. conceded, through his parents, that he was partially responsible for his injuries.

The trial judge instructed the jury that Rankin's Garage owed J.J. a duty of care, among other things "because people who [are] entrusted with the possession of motor vehicles must assure themselves that the youth in their community are not able to take possession of such dangerous objects."

A jury found the Rankin's Garage partly liable for injuries suffered by J.J.. The jury also found C.C. and D.C. liable, and J.J. contributorily negligent. The sole proprietor of Rankin's Garage appeals the jury's decision that he owed a duty of care to J.J..

Issues:

Did the trial judge err in concluding that Rankin's Garage owed a duty of care to J.J.? Did the trial judge correctly charge the jury regarding an enhanced duty owed to J.J.? Did the trial judge err in admitting irrelevant evidence that was highly prejudicial to Rankin's Garage and of little probative value? Is the verdict of the jury unsustainable given all of the evidence and findings, including that C.C. and J.J. both participated in the theft of the vehicle? Holding: Appeal dismissed.

Reasoning:

No. The trial judge was correct, though for different reasons, to conclude that Rankin's Garage owed a duty of care to J.J. Courts determine whether a duty of care arises in particular circumstances based on the decision of the House of Lords in Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), as modified by the Supreme Court of Canada in Cooper v. Hobart, 2001 SCC 79. The Anns-Cooper approach first considers whether this case is governed by a duty of care that has already been recognized in the case law, or falls within an analogous situation. If not, a court must then complete the two-stage Anns-Cooper analysis in order to determine whether a duty should be recognized. The Court followed the approach in Anns-Cooper.

(a) Has a duty already been recognized in prior cases?

No. The trial judge incorrectly concluded that prior cases have already recognized this duty of care. The trial judge relied on cases where a third party who was unconnected to the theft was injured. These cases are not analogous to the circumstances of this case. In fact, the finding that a duty of care is owed to a third party is relatively rare in cases arising out of the theft of a vehicle because the injury to the third party was not a reasonably foreseeable consequence of the theft. Therefore, this is a novel situation and a full Anns-Cooper analysis is required.

(b) The Anns-Cooper Test

The Anns-Cooper Test is satisfied and a duty of care exists. Though the trial judge only dealt with the Anns-Cooper test briefly, her conclusion was correct: the requirements of foreseeability and proximity are established on the facts of this case, and the duty is not negated by residual policy concerns.

(i) Foreseeability

There was ample evidence to support the conclusion of foreseeability in this case. In particular, Rankin's Garage was easily accessible and it had no security measures designed to keep people off the property when the business was not open. Cars were left unlocked with the keys in them. Further, there was a history of theft in the area. Therefore, the risk of theft was clear.

(ii) Proximity

Proximity is established. Proximity does not depend on whether the appellant knew J.J., but on whether the appellant should have had minors like J.J. in mind when he considered security measures at Rankin's Garage. In this case, the appellant had care and control of many vehicles for commercial purposes. With that role comes the responsibility of securing the vehicles against minors, in whose hands the vehicles are potentially dangerous. He should have adverted to the risk that minors would be tempted to take a vehicle if it were made easily available to them. Further, securing the vehicles was not an onerous obligation. It was a simple matter of locking the vehicles and storing the keys.

(iii) Residual Policy concerns

No residual policy concerns exist that negate the prima facie duty of care. The law does not currently provide a remedy in this case. Further, recognition of a duty of care in this case would not create a spectre of unlimited liability to an unlimited class of claimants or result in undue hardship to the appellant. The duty can be complied with simply by locking the vehicles and securing the keys. Lastly, the duty of care operates independently of the illegal or immoral conduct of an injured party. Their wrongdoing is properly taken into account in determining contributory negligence, as occurred in this case.

(2) Yes. The trial judge correctly charged the jury that the appellant owed an enhanced duty to J.J.. Though J.J. was engaging in adult activities - such as drinking alcohol, smoking marijuana, stealing, driving without a license, and driving while impaired - the case is not concerned with the duty of care owed by minors who participate in adult activities. The case is concerned with the duty of care owed by adults to minors

(3) No. The trial judge did not err in admitting evidence from C.C.'s sister, C.L.C., as to a previous theft from Rankin's Garage, and from Officer Pittman concerning the establishment of a theft-prevention program. This evidence spoke to the history of theft in the area. As such, the evidence was clearly relevant to the question of foreseeability and no prejudice was caused by its admission.

(4) No. The jury verdict is sustainable. The court requires an appellant to meet a high threshold to overturn a jury verdict. The decision must be "so plainly unreasonable...