Court Of Appeal Summaries (November 7 – November 10, 2016)

Good Afternoon.

Below are the summaries for this week's civil decisions of the Court of Appeal.

Topics covered this week included interlocutory vs final orders for the purpose of appeal in the context of summary judgment, the triggering of the duty to defend under a CGL insurance policy, MVA, re-opening an appeal on a new ground not previously raised, real and substantial connection, and exclusion clauses in equipment leases.

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CIVIL DECISIONS:

Cook v. 1293037 Alberta Ltd. (Traveller's Cloud 9), 2016 ONCA 836

[Blair, Epstein and Huscroft JJ.A.]

Counsel:

R. Kerr, for the appellants D. W. Powrie and N. Galanis, for the respondent

Keywords: Endorsement, Torts, Negligence, Conflict of Laws, Jurisdiction, Real and Substantial Connection, Club Resorts Ltd. v. Van Breda, 2012 SCC 17, Forum of Necessity, Limitation Periods

Facts:

The Appellants, Gary Cook and Jennifer Corswandt, brought an action against the Respondent in Ontario. The Respondent brought a motion to stay the appellant's action against the respondent corporation on the basis that it has no real and substantial connection to Ontario.

Issue:

Did the motion judge err in concluding that the appellants failed to establish that the action has a real and substantial connection to Ontario?

Holding:

Appeal dismissed.

Reasoning:

No. The motion judge did not err in concluding that the appellants had failed to establish that the action has a real and substantial connection to Ontario. First, none of the presumptive factors set out by the Supreme Court in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, are satisfied on the facts of this case. The motion judge found that the respondent is an Alberta corporation, resident or domiciled in Alberta, and that the accident giving rise to the action occurred when the appellant, Gary Cook, was staying at the hotel while he worked temporarily in Alberta. Further, there is no reason to create a new presumptive factor.

Second, Ontario is not a forum of necessity. The appellants argue that it is necessary to bring the action in Ontario because the limitation period for bringing the action in Alberta has expired. The forum of necessity doctrine is an exception to the real and substantial connection test, and operates only in extraordinary and exceptional circumstances. This is not an appropriate case for the exercise of the court's discretion because the appellants made a tactical decision not to bring their action in Alberta and it would not be appropriate to relieve them of the consequences of that decision.

Jugmohan v. Royle, 2016 ONCA 827

[Blair, Epstein and Huscroft JJ.A.]

Counsel:

Elkin and N. Mester, for the respondents Gordon Royle and Frank Naccarato

Yoo and P. Pollack, for the respondent Ivon Bascom

Keywords: Endorsement, Insurance Law, Insurance Act, MVA, Damages, Non-Pecuniary Loss, Juries, Charge to Jury, Evidence, Expert Opinion Evidence, Credibility

Facts:

The appellant sought to appeal from the jury award of zero damages arising out of her injuries sustained in a car accident, and the trial judge's ruling that her claim for non-pecuniary loss was barred because her injuries did not fall within the exceptions to statutory immunity provided under the Insurance Act.

Issue:

(1) Did the trial judge err by correcting his jury charge from his initial instructions, in which he expressed the view that an assessment of zero damages would not be appropriate, to an instruction that if the jury were to find that the accident did not cause any new injury, or exacerbation of any pre-existing injury, an award of zero damages would be available?

(2) Did the trial judge err by disregarding relevant medical evidence that supported the plaintiff's position on the threshold motion and arrived at an unsupported conclusion?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The appellant's assertion that a properly instructed jury would have awarded damages cannot succeed. Although after the accident, the appellant underwent a right knee replacement and right shoulder rotator cuff repair, there was evidence that prior to the accident, she experienced osteoarthritis and degenerative changes in her right shoulder and right knee. There was expert evidence that the jury was entitled to accept that the appellant's post-accident difficulties were inevitable, given her prior conditions.

The findings of a jury are entitled to great deference, particularly in cases such as this that depended largely on credibility. A jury verdict will not be set aside unless it was so plainly unreasonable and unjust as to satisfy the court that no jury reviewing the evidence as a whole and acting judicially could have reached it. On the evidence, it was open to this jury to conclude that the injuries that formed the basis of the appellant's claim were not caused by the accident and therefore that the appellant was not entitled to any damages.

As to the correcting jury charge, although appellant's trial counsel initially objected to the proposed correction, he ultimately agreed to it after the trial judge reworded it to his satisfaction. The charge was clear. The members of the jury were not left with any misapprehension with respect to their duties or the principles to apply, in reaching their verdict.

(2) No. The Court of Appeal did not accept the argument that the trial judge failed to consider material evidence. In his reasons, the trial judge made repeated reference to all of the evidence he heard at trial - evidence that he had an opportunity to weigh and from which he was entitled to make credibility findings. There was ample evidence upon which the trial judge could properly rely to find that the threshold was not met, particularly in the light of the jury award. Decisions of this nature are afforded the highest degree of deference and should not be interfered with absent palpable and overriding error. In this case, there was no reason for the Court of Appeal to interfere.

Laughlin v. Esmaeili, 2016 ONCA 826

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

Counsel:

C. Cashman, for the Defendant (Respondent in Motion/Appellant), the Corporation of the City of Toronto Boghosian, for the Defendant (Applicant in Motion/Respondent in Appeal), the Corporation of the Town of Markham Keywords: Torts, Negligence, MVA, Municipal Liability, Municipal Act, s. 44(1), Summary Judgment, Costs, Sanderson Order

Facts:

The plaintiff's vehicle struck a concrete curbstone that had somehow made its way into the curb lane of Steeles Avenue East. The plaintiff sued both Markham and Toronto, because Steeles Ave is the border between these municipalities. Toronto then cross-claimed against Markham. The motion judge granted summary judgment in favour of Markham, finding that the curbstone emanated from a portion of the grassy boulevard beside the north side of Steeles over which Toronto had exclusive jurisdiction. The judge found that it was "just and fair in the circumstances of this case" that Toronto alone be responsible for Markham's costs and characterized the order as a "Sanderson order".

Toronto appealed the motion judge's dismissal of its cross-claim against Markham. It also sought leave to appeal the motion judge's costs disposition.

Issues:

(1) Will there be a duplication of proceedings and possibility of inconsistent findings as a result of the judge having granted summary judgment?

(2) Was the finding that the curbstone was a hazard that Toronto had an obligation to remove a finding of fact that ought to have been left to the trial judge?

(3) Did the motion judge err in concluding that Toronto had exclusive jurisdiction over the portion of the grassy boulevard from which the curbstone emanated; that Markham was not liable to the plaintiff or that Markham did not owe Toronto a duty of care?

(4) Did the judge err in making a Sanderson order and requiring Toronto to pay Markham's costs?

Holding:

Appeal of summary judgment dismissed. Appeal of motion judge's costs disposition allowed.

Reasoning:

(1) No. With the release of Markham from the litigation, the trial will address whether Toronto breached s. 44(1) of the Municipal Act, and the quantum of damages suffered. The motion judge was clear that he made no binding determination of whether or not Toronto breached its obligation under s. 44. Therefore there is no risk of an inconsistent finding at trial.

(2) No. There was no dispute that at the time of the accident the curbstone was in the curb lane of Steeles Avenue East and that Toronto had an obligation to keep the roadway in a state of repair that was reasonable in the circumstances.

(3) No. Toronto had exclusive jurisdiction over the portion of the grassy boulevard beside Steeles Avenue. Markham did not owe Toronto a duty of care because Toronto had specifically assumed jurisdiction from Markham for this area under an agreement signed in 1974.

(4) Yes. A Sanderson order requires the unsuccessful defendant to pay the successful defendant's costs. The motion judge specifically acknowledged that there had been no finding of liability against Toronto. It was premature to order Toronto to pay Markham's costs. Markham is entitled to costs against Toronto on the summary judgment motion and the cross-claim and costs against the plaintiff of the summary judgment motion and the action against the plaintiff. If the plaintiff succeeds against Toronto at trial, it shall be open to the trial judge in his or her discretion to direct that Toronto reimburse the plaintiff for any portion of the amount that the plaintiff paid to Markham.

Froehlich-Fivey v. Fivey, 2016 ONCA 833

[Lauwers J.A. (In Chambers)]

Counsel:

B.C. Oldham, for the moving party

A. Thomson, for the responding party

Keywords: Endorsement, Family Law, Appeals, Security for Costs, Rules of Civil Procedure, Rule 61.06, Frivolous and Vexatious Appeal, Insufficient Assets...