Court Of Appeal Summaries (January 16 – 20, 2017

Good evening.

Below are the summaries for this week's civil decisions of the Court of Appeal for Ontario. It was a busy week.

Surujdeo v. Melady is a medical malpractice case that went to a jury. The court dealt with jury charges, the questions for the jury, the number of juror votes needed on each question and jury polling, issues that do not often get discussed in civil decisions.

In 1588444 Ontario Ltd v State Farm Fire and Casualty Company, the court discussed actual and presumed prejudice in the context of substantially amending pleadings to change a defence after many years of litigation.

In Independence Plaza 1 Associates, L.L.C. v. Figliolini, the Court of Appeal confirmed that claims to enforce foreign judgments in Ontario are subject to the basic two-year limitation period, but that the two years does not start to run until an appeal in the foreign jurisdiction has been determined.

Other topics covered this week included a number of other limitation period issues (including one involving a sexual assault claim, where we are reminded that there is no limitation period for such claims), unjust enrichment in the condominium law context and the residential schools class action settlement.

Finally, it was only fitting, given that it was inauguration day today in the U.S., that our Court of Appeal released this week another decision in Singh v Trump (a costs decision), the lawsuit involving the Trump tower in Toronto.

John Polyzogopoulos

Blaney McMurtry LLP

jpolyzogopoulos@blaney.com

Tel: 416.593.2953

http://www.blaney.com/lawyers/john-polyzogopoulos

Table of Contents:

Civil Decisions (click on case name to read summary):

Singh v. Trump, 2017 ONCA 34

Keywords: Endorsement, Civil Procedure, Summary Judgment, Costs, Rules of Civil Procedure, Rule 49

Dale v. Frank, 2017 ONCA 32

Keywords: Torts, Negligence, Medical Malpractice, Breach of Fiduciary Duty, Summary Judgment, Limitation Periods, Limitations Act, 2002, s. 5, Discoverability, Lawless v. Anderson, 2011 ONCA 102, 276 O.A.C. 75

Filanovsky v. Filanovsky, 2017 ONCA 28

Keywords: Endorsement, Intentional Torts, Assault, Child Abuse, Evidence, Procedural and Natural Justice, Sufficiency of Reasons, Evidence, Findings of Fact, Standard of Review, Palpable and Overriding Error

Middlesex Condominium Corporation 229 v. WMJO Limited, 2017 ONCA 27

Keywords: Endorsement, Contracts, Unjust Enrichment, Real Property, Condominiums, Joint Use and Maintenance Agreements

Fontaine v. Canada (Attorney General), 2017 ONCA 26

Keywords: Class Actions, Indian Residential School Settlement Agreement, Independent Assessment Process, Availability of Recourse to Courts, Jurisdiction, Authority of Courts

1588444 Ontario Ltd v State Farm Fire and Casualty Company, 2017 ONCA 42

Keywords: Civil Procedure, Rules of Civil Procedure, Rule 26.01, Amending Pleadings, Actual Prejudice, Presumed Prejudice, Costs, Substantial Indemnity

Surujdeo v. Melady, 2017 ONCA 41

Keywords: Torts, Negligence, Medical Malpractice, Juries, Charge to Jury, Questions for Jury, Polling of Jury

Independence Plaza 1 Associates, L.L.C. v. Figliolini, 2017 ONCA 44

Keywords: Civil Procedure, Conflict of Laws, Foreign Judgments, Limitation Periods, Limitations Act, 2002, ss 4, 5 and 16(1), Discoverability

Cook v. Joyce, 2017 ONCA 49

Keywords: Summary Judgment, Sexual Assault, Limitation Period, Limitations Act, s. 16(1.2)(b), Settlement, Oral Contract, Objective Evidence, Remedial Powers, Court of Justice Act, Section 134, Slander

For Short Civil Decisions, click here

For Criminal Decisions, click here

Civil Decisions

Singh v. Trump, 2017 ONCA 34

[Rouleau, van Rensburg and Benotto JJ.A.]

Counsel:

13. Wine and K. Sherkin, for the appellants

19. Zucker, M. Solmon and N. Tourgis, for the respondents

    Keywords: Endorsement, Civil Procedure, Summary Judgment, Costs, Rules of Civil Procedure, Rule 49

    Facts:

    On October 13, 2016, the Court of Appeal allowed the plaintiffs' appeal from the dismissal of their motions for partial summary judgment. Among other relief, the Court awarded the plaintiff (appellant), Sarbjit Singh, rescission of his agreement of purchase and sale and awarded the plaintiff (appellant), Se Na Lee, damages as against Talon International Inc. The two cases on appeal were said to be representative of claims in 20 other outstanding actions against the same defendants. Those 20 other matters, as well as other aspects of the claims brought by the two appellants, remain to be determined. The October 13 decision also confirmed that the partial summary judgment motion brought against the defendants Alex Shnaider, Val Levitan and Donald J. Trump Sr. was properly dismissed.

    Regarding costs, the Court awarded costs of the appeal to the appellants and provided that if the parties could not agree on the costs of the original summary judgment motions, brief submissions in writing could be made.

    The appellants sought a total of $235,661.69 including fees, disbursements and applicable taxes. They argued that they should be awarded the costs of their actions through to the partial summary judgment motions, with partial indemnity costs up to the date of their offers to settle and substantial indemnity costs thereafter under rule 49 of the Rules of Civil Procedure. They maintained that of the $184,821.50 in fees claimed, fully $154,427 of this amount was incurred for the summary judgment motions themselves. They also claimed that none of the costs related to the other 20 similar claims.

    The respondents argued that the offers ought not to be considered because they required acceptance not only of settlement of the appellants' claims but also of the claims in the 20 other similar actions that are outstanding. The respondents also argued that the offers to settle were not capable of acceptance because they were not for a fixed amount as they provided for the accrual of interest. They also noted that the summary judgment motions against the three individual defendants were dismissed thus entitling those defendants to costs.

    Issues:

    How should cost be awarded in respect of a partial summary judgment in light of mixed success on appeal and outstanding actions against the same defendants?

    Holding:

    Costs awarded to the appellants in the amount of $180,000, inclusive of disbursements and applicable taxes. Costs also awarded to the three individual defendants in the amount of $7,000, inclusive of disbursements and applicable taxes.

    Reasoning:

    The Court held that the offers to settle did not, as the respondents suggested, require that the respondents agree to settle all 22 outstanding actions brought against them. On the contrary, the offers contemplated settlement on a case by case basis, although the proposed terms of settlement were the same for all of the similar claims. Nor did the provision for interest in those offers to settle, which referred to interest to be paid pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43, make them not capable of acceptance and not compliant with rule 49.

    There was no dispute that the appellants ought to be awarded their costs of the summary judgment motions, save for the portion of the costs relating to the partial summary judgment motions against the three individual defendants, which constituted only a small fraction of the costs incurred based on the materials filed.

    Given the "unusual circumstances", the Court held that it was appropriate to make a significant award of costs for the partial summary judgment motions. However, it did not consider it appropriate to award costs for the entire actions as the claims were still ongoing. As a result, the Court made a significant reduction to the amount claimed to account for the dismissal of the partial summary judgment motions as against the three individual defendants, as well as the fact that a significant portion of the amount claimed did not relate to the summary judgment motions themselves. Ultimately, the Court awarded the appellants their costs of the partial summary judgment motions in the court below, fixed in the amount of $180,000, inclusive of disbursements and applicable taxes.

    Regarding the three defendants that had the partial summary judgment motions against them dismissed,those defendants were entitled to their costs of the original motions on a partial indemnity basis.

    Their involvement in the partial summary judgment motions was quite limited and the amount of $10,000 proposed by the respondents was held to be too high. The Court awarded $7,000, inclusive of disbursements and applicable taxes.

    Dale v. Frank, 2017 ONCA 32

    Counsel:

10. Dobson and D. Douek, for the appellants

3. Brandow and J. Damstra, for the respondents

   Keywords: Torts, Negligence, Medical Malpractice, Breach of Fiduciary Duty, Summary Judgment, Limitation Periods, Limitations Act, 2002, s. 5, Discoverability, Lawless v. Anderson, 2011 ONCA 102, 276 O.A.C. 75

   Facts:

   The appellants were patients of the respondent Dr. Cathy Frank, a medical doctor. Between September 2012 and August 2013, all of the appellants, in separate actions, brought claims against Dr. Frank and related medical parties, personal and institutional, for negligence and breach of fiduciary duty. The essential claim was that Dr. Frank performed various medical procedures below the standard of care, thus injuring the appellants.

   The respondents brought motions for summary judgment on the basis that all of the actions were brought outside the relevant two year limitation period in s. 4 of the Limitations Act, 2002(the "Act"). The appellants conceded that they had not commenced their proceedings before the second anniversary of the medical procedures that had caused their injuries. However, they relied on the principle of discoverability to resist the motions for summary judgment. Counsel for the appellants had issued a press release on November 4, 2011, indicating that the respondents were being sued by other patients for medical negligence and that a complaint against the...