Court Of Appeal Summaries (January 23 – January 27, 2017)

Good Evening.

Apologies for the delay in posting this past week's summaries. The Court of Appeal considered: the sufficiency of conflict screens when counsel moves to another firm and found that the standard procedures to be inadequate in that particular case because of how close the new lawyer to the firm worked with his former adversary (Chartis); summary judgment in the medical malpractice context (Hirchberg); the doctrine of abuse of process in an insurance arbitration context (Intact); and relief from forfeiture of a deposit (Invecom). Other topics included family law, Crown liability, MVA and adjournments.

CIVIL DECISIONS:

1162740 Ontario Limited v. Pingue, 2017 ONCA 52

[Feldman, Lauwers and Miller JJA.]

Counsel:

R. Wozniak, for the appellants

H. Nesathurai and G. Perinot, for respondents

Keywords Civil Procedure, Appeals, Appeal Books, Contents, Evidence, Exhibits, Courts of Justice Act, s. 7(5), the Rules of Civil Procedure, r. 52.04

Facts:

This was a procedural appeal regarding the construction of a trial record. The respondents sued the appellants for misappropriation of funds generated by the operation of the apartment building. The trial judge gave judgment in favour of the respondents.

Towards the end of the case for the defence and of the trial, the appellants moved under rr. 53.03 and 53.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for an order: (1) abridging the time for service of the report of a forensic accounting expert, Charlotte Urquhart; (2) granting leave to admit her report; and (3) permitting her to give evidence at the trial. The appellants did not tender a copy of Ms. Urquhart's report as part of the motion material.

The trial judge dismissed the motion on the basis that it was too late: "Prejudice to the plaintiffs is real." She stated "Permitting the filing of the report and/or the calling of Ms. Urquhart would for all intents and purposes start a second trial."

The primary ground of appeal raised by the appellants on the appeal was that the trial judge erred in refusing to grant them leave to call their witness at trial. The appellants attempted to file an appeal book that contained Mr. Forsyth's report, which had not been made an exhibit at trial in its entirety, and the proffered expert report of Ms. Urquhart. The respondents moved before a single judge of the Court of Appeal, sitting in chambers, to excise those materials. The chambers judge ordered: "The expert reports that were not admitted before the trial judge are to be removed from the appeal book and compendium. Counsel may bring a motion in writing to the panel to admit further evidence if so advised."

The appellants then moved before a panel under s. 7(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43 to set aside the decision of the chambers judge.

Issues:

(1) Did the chamber judge err by excising the reports from the appeal record?

Holding:

Order of chambers judge set aside.

Reasoning:

(1) Yes. Unless the excised documents are before the panel on the appeal, it will be difficult, if not impossible, for the appellants to argue the merits of their main ground of appeal.

The goal of a trial judge in supervising the assembly of an evidentiary record at trial is completeness and accuracy, so that the panel of this court sitting on the appeal can discern without difficulty exactly what was before her at any moment in the course of the trial. The Court emphasized the distinction between numbered exhibits, which are governed by r. 52.04 of the Rules of Civil Procedure, and lettered exhibits. The distinction is important because, subject to the trial judge's discretion, the jury has access to the numbered exhibits, but not to the lettered exhibits.

In the present case, the trial judge did not mark Mr. Forsyth's report for identification as a lettered exhibit and did not make the report an exhibit, because opposing counsel did not consent. The Court was unclear as to whether the trial judge had a complete copy of the report, or only schedules to it. By reviewing the examination-in-chief and the cross-examination, the Court concluded that the trial judge was referencing at least the schedules of both reports.

The Court stated that it should not have been necessary to pick through the pages of a transcript in order to determine precisely what the trial judge had before her in documentary form at any particular moment in time. That is why marking expert reports as numbered or as lettered exhibits for identification is the preferred practice.

On the motion to include Ms. Urquhart's report, counsel had with him a copy of the report, which had been provided to opposing counsel. It was not tendered to the trial judge as part of the motion material, although it ought to have been. It was incumbent on the trial judge to request a copy of the proffered expert's report to be marked as a lettered exhibit for identification, so that the Court of Appeal would have access to it in the event the trial judge's ruling was challenged on appeal.

McGregor v. Pitawanakwat, 2017 ONCA 77

[Laskin, Feldman and Hourigan JJ.A.]

Counsel:

N. Marcus, for the appellant

E. Hovius, for the respondent

Keywords: Real Property, First Nations, Indian Act, Procedural and Natural Justice, Fairness of Hearing, Adjournments, Reasonable Apprehension of Bias, Costs, Substantial Indemnity

Facts:

The appellant, Mary Pitawanakwat, and the respondent, Robert McGregor, are sister and brother. Both are members of the Whitefish River First Nation. Their underlying dispute is over possession of a parcel of land - Lot 15 - on the Whitefish reserve. The parties' parents owned Lot 15. In July 1988, they transferred possession of it to McGregor. A Certificate of Possession in his name was registered under the Indian Act, R.S.C., 1985, c. I-5.

In April 2010, Pitawanakwat moved into a house on Lot 15. She claims she is entitled to possession, because in 2009 her parents orally gifted the lot and the house to her, a gift they later confirmed by an addition to their will in February 2011. The parties' father died in late 2011, and their mother died a few months later. After their deaths, Pitawanakwat continued to live on Lot 15. She claims to have made improvements to the property in the rough amount of $29,000. But she paid no occupation rent.

Then, in January 2014, McGregor brought an application to determine possession of Lot 15. He eventually also sought an order evicting Pitawanakwat from the property. After numerous adjournments, the application was heard in March 2015. Although Pitawanakwat had previously had a lawyer, she chose to represent herself at the hearing.

The application judge found for McGregor and ordered Pitawanakwat's eviction and ordered substantial indemnity costs against Pitawanakwat of approximately $24,000.

Issues:

Was Pitawanakwat denied a fair hearing because the application judge unreasonably refused an adjournment to permit her to retain a lawyer, lead further evidence, and give notice of a constitutional question concerning the impact of Anishinaabe custom on the property provisions of the Indian Act? Was Pitawanakwat denied a fair hearing because the application judge's conduct of the hearing gave rise to a reasonable apprehension of bias? Was the application judge's order for substantial indemnity costs excessive and unfair? Holding: Appeal dismissed. Leave to appeal costs granted and costs appeal allowed.

Reasoning:

1. An application judge's decision whether to grant or refuse an adjournment is discretionary and thus attracts a high degree of deference from this court. In exercising this discretion, an application judge should take into account the interest of the applicant, the interest of the respondent, and the interest of the administration of justice in the timely resolution of the dispute: Khimji v. Dhanani, 182 O.A.C. 142. The application judge in this case took these interests into account, and his refusal to grant an adjournment was a reasonable exercise of his discretion.

2. No. The threshold for showing bias is appropriately high. Courts presume judges will be impartial. Courts presume they will carry out their oath of office and act fairly to litigants. This high threshold requires cogent evidence to make out a claim of bias. The standard is objective. The test the party alleging bias must meet is whether an informed person, viewing the matter realistically, and having thought the matter through, would conclude that the trial or application judge would not decide the matter fairly: Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369

   In assessing a claim alleging an appearance of bias, a reviewing court has to examine the judge's conduct of the entire trial or hearing. Instances of alleged improper conduct must be considered cumulatively, but the odd inappropriate comment during the course of a long hearing will be unlikely to establish a reasonable apprehension of bias: S. (R.D.).

   The application judge neither prejudged the case nor treated Pitawanakwat unfairly. On the contrary, he conducted a fair hearing, and he gave Pitawanakwat a full opportunity to present her case, including trying to assist her in her presentation.

   The application judge gave Pitawanakwat an opportunity to put forward all of her arguments. She was not denied a fair hearing. The Court of Appeal did not give effect to her main ground of appeal.

3. Yes. Pitawanakwat does not have a right to appeal the costs award. She must obtain leave of the Court of Appeal to do so. The Court of Appeal rarely grants leave, because costs orders are discretionary, and the court does not lightly interfere with them. A party seeking leave to appeal a costs order must show that the judge exercised this discretion unreasonably. This is one of those rare cases in which leave should be granted and the application judge's cost award should be set aside.

   The application judge based his order of substantial indemnity costs on...