Court Of Appeal Summaries (October 7 – October 11 2019)

Good afternoon.

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

In McKitty v. Hayani, the court determined that the definition of death at common law includes neurologically determined death (ie. brain death). The other, more common, method of determining death is cardiorespiratory failure (heart stops beating). The Court determined that which of the two criteria for determining death are used by the medical field in making a decision to withdraw mechanical ventilation ought to take into consideration the patient's religious beliefs. However, in this case, which did not have an adequate evidentiary record and, in any event, was moot, the Court ultimately did not determine whether the doctor's declaration of the patient as legally dead under the neurological criterion infringed her constitutional rights.

Other topics covered this week included family law (custody and access and child protection), insurance coverage in the MVA context, assessments of lawyers' accounts, costs in the expropriation context, contractual interpretation in the mortgage and forbearance agreement context, and breach of contract and negligence in the RFP context.

Wishing everyone a Happy Thanksgiving long weekend.

John Polyzogopoulos

Blaney McMurtry LLP

416.593.2953 Email

Table of Contents

Civil Decisions

McKitty v. Hayani, 2019 ONCA 805

Keywords: Health Law, Legal Death, Definition, Certificate of Death, Constitutional Law, Freedom of Religion, Right to Life, Liberty and Security of the Person, Equality Rights, Canadian Charter of Rights and Freedoms, ss 2(a), 7, 15(1), Vital Statistics Act, RSO 1990, c V4, Reg 1094, ss 21(1), 35(2), Public Hospitals Act, Regulation 965, s 17(1), Interpretation Act, RSC 1970, C I-23, Trillium Gift of Life Network Act, RSO 1990, c H 20, Leclerc (Succession) v Turmel, [2005] JQ no 2451 (SC), R v Kitching (1976), 32 CCC (2d) 159 (Man CA), Irwin Toy v Quebec (Attorney General), [1989] 1 SCR 927, Tremblay v Daigle, [1989] 2 SCR 530, Halpern v Canada (Attorney General), (2003) 65 OR (3d) 161 (CA), Edwards v Canada (Attorney General), [1930] 1 DLR 98 (PC), R v Buhay, 2003 SCC 30, Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624, McKinney v University of Guelph, [1990] 3 SCR 229, M v H, [1999] 2 SCR 3, Miron v Trudel, [1995] 2 SCR 418, Hill v Church of Scientology, [1995] 2 SCR 1130, Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, Syndicat Northcrest v Amselem, 2004 SCC 47, Law Society of British Columbia v Trinity Western University, 2018 SCC 32, R v Big M Drug Mart Ltd, [1985] 1 SCR 295, R v Edwards Books and Art Ltd, [1986] 2 SCR 713, Rodriguez v British Columbia (Attorney General), [1993] 3 SCR 519, Carter v Canada (Attorney General), 2015 SCC 5, Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54, RWDSU v Dolphin Delivery Ltd, [1986] 2 SCR 573, R v Oakes, [1986] 1 SCR 103, Watkins v Olafson, [1989] 2 SCR 750, Grant v Torstar Corp, 2009 SCC 61, Dagenais v Canadian Broadcasting Corp, [1994] 3 SCR 835

Del Hugh Terrelonge v CVC Ardellini Investments Inc., 2019 ONCA 811

Keywords: Contracts, Interpretation, Real Property, Mortgages, Forbearance Agreements, Remedies, Relief from Forfeiture, Courts of Justice Act, RSO 1990, c C43, s 98, Sattva Capital Corp. v Creston Moly Corp, 2014 SCC 53

Chong v. Donnelly, 2019 ONCA 799

Keywords: Family Law, Custody and Access, Civil Procedure, Orders, Enforcement, Contempt

Bradfield v Royal Sun Alliance Insurance Company of Canada, 2019 ONCA 800

Keywords: Contracts, Insurance, Automobile, Coverage, Waiver, Estoppel, Insurance Act, RSO 1990, c I8, s 131(1), Saskatchewan River Bungalows Ltd. v Maritime Life Assurance Co., [1994] 2 SCR 490, Economical Insurance Group v Fleming (2009), 89 OR.(3d) 68 (SCJ), aff'd 2009 ONCA 112, Rosenblood Estate v Law Society of Upper Canada (1989), 37 C.C.L.I. 142 (Ont HC), Canadian Federation of Students/Fédération canadienne des étudiant(e)s v Cape Breton University Students' Union, 2015 ONSC 4093, Logel Estate v Wawanesa Mutual Insurance Company [2008] ILR I- 4744 (Ont SC)

Owen Sound (City) v Naidal Incorporated , 2019 ONCA 804

Keywords: Municipal Law, Expropriation, Civil Procedure, Appeals, Costs, Expropriations Act, R.S.O. 1990, c. E.26, s. 32(1), Re A.M. Souter & Co. Ltd. and City of Hamilton (1973), 1 O.R. (2d) 760 (C.A.), Parks v Ontario (Ministry of Transportation) (1997), 109 O.A.C. 1 (Div. Ct.)

Huron-Perth Children's Aid Society v. JL, 2019 ONCA 809

Keywords: Family Law, Child Protection, Crown Wardship, Child and Family Services Act, RSO 1990, c C.11, ss. 37(2)(b)(i) and (ii), Ludwig v. Ludwig, 2019 ONCA 680

Adler v. Thomson, Rogers, 2019 ONCA 810

Keywords: Contracts, Solicitor and Client, Assessment of Accounts, Solicitors Act, RSO 1990, c S15, s 11, Echo Energy Canada Inc. v. Lenczner Slaght, 2010 ONCA 709

CG Acquisition Inc. v P1 Consulting Inc., 2019 ONCA 745

Keywords: Contracts, Requests for Proposal, Torts, Negligence, Duty of Care, Civil Procedure,Summary Judgment

Criminal Decisions

R. v B., 2019 ONCA 797

Keywords:Criminal Law, Obstruction of Justice, Evidence, Alibi, R. v Cleghorn, [1995] 3 SCR 175, R. v Noble, [1997] 1 SCR 874, R. v Hogan (1982), 2 CCC (3d) 557 (Ont. CA), R. v Gagnon, 2006 SCC 17

R. v. S., 2019 ONCA 807

Keywords:Criminal Law, Sexual Assault, R. v Dinardo, 2008 SCC 24, R. v Vuradin, 2013 SCC 38, R. v Gagnon, 2006 SCC 17

R. v. M.G., 2019 ONCA 796

Keywords:Criminal Law, Sexual Assault, R. v W.D, [1991] 1 SCR 742

R. v M., 2019 ONCA 808

Keywords:Criminal Law, Criminal Harassment, Counselling Murder, Vetrovec Witness, R. v Vetrovec [1982] 1 SCR 811, R. v Bidawi, 2018 ONCA 698, R. v Shier, 2018 ONSC 5624

Ontario Review Board

K. (Re), 2019 ONCA 802

Keywords:Ontario Review Board, Not Criminally Responsible, Sexual Assault, Criminal Code, RSC 1985, Sheikh (Re), 2019 ONCA 692, Sim (Re), 2019 ONCA 719, Winko v British Columbia (Forensic Psychiatric Institute), [1999] 2 SCR 625, R. v Owen, 2003 SCC 33

A. (Re), 2019 ONCA 812

Keywords:Ontario Review Board, Not Criminally Responsible, Discharge, Marchese (Re) 2018 ONCA 307, Hahmoud (Re) 2018 ONCA 317, Carrick (re), 2015 ONCA 866

CIVIL DECISIONS

McKitty v. Hayani, 2019 ONCA 805

[Doherty, Miller and Paciocco JJ.A.]

Counsel:

Hugh R. Scher, for the appellant

Erica J. Baron, Christine Wadsworth and Leah Ostler, for the respondent

FACTS:

The appellant was found unconscious on a Brampton sidewalk and taken to the hospital. She had suffered significant brain damage due to a lack of oxygen supply to the brain (hypoxia). She was placed on a ventilator. Initially, her brain stem was still functioning and she was able to breathe spontaneously. While she was in the hospital, a second hypoxic event resulted in the loss of the ability to breathe without a ventilator. Following this event the respondent, Dr. H, a critical care physician at the hospital, conducted diagnostic tests on the appellant's brain functioning and determined that the appellant met the neurological criteria for death. He completed a death certificate the next day.

The next day, the appellant's parents, acting as her substitute decision-makers, sought an interlocutory injunction restraining the respondent from withdrawing mechanical ventilation. The injunction was granted. The underlying application sought various remedies, including an order rescinding the appellant's death certificate, a declaration that the appellant was not dead, a declaration that the Consent and Capacity Board had jurisdiction to adjudicate any disputes regarding the appellant's treatment as well as the determination of her death, and a declaration that the appellant's Charter rights had been breached.

The notice of constitutional question in the Superior Court challenged the constitutional validity and applicability of the Vital Statistics Act , and its regulations, particularly s. 21(1) of the Act, and 35(2) of the Regulation with respect to the requirements to determine and certify death in Ontario; and the unconstitutional actions of the respondent in failing to take into consideration the applicant's religious beliefs as part of the legal process to determine and certify death pursuant to the Canadian Guidelines and the Vital Statistics Act.

The notice of constitutional question in the Court of Appeal was somewhat broader, referencing more legislation and the common law. The appellant challenged the constitutional validity and applicability of the Public Hospitals Act and its Regulations, particularly Regulation 965, s. 17(1), and the Vital Statistics Act (the "Act"), and its regulations, particularly s. 21(1) of the Act, and 35(2) of the Regulation, with respect to the statutory duty imposed on doctors to determine and certify death in Ontario.

Furthermore, the appellant challenged the unconstitutional application of the common law to determine and define death in a manner that fails to account for and respect the individual wishes, values and beliefs of the appellant, or Charter values and the application of the Charter to the appellant and respondent.

Lastly, the appellant challenged the allegedly unconstitutional actions of the respondent in failing to take into consideration the appellant's wishes, values and religious beliefs as part of the legal process to determine and certify death pursuant to the statutory duty imposed upon doctors.

The application judge dismissed the application.

ISSUES:

Did the application judge err in finding that:

(1) death at common law includes death by neurological criteria;

(2) the appellant is not a subject of Charter rights;

(3) the Charter does not apply to the respondent;

(4) the appellant's rights under ss. 2(a), 7, and 15(1) of the Charter were not engaged; and

(5) the Consent and Capacity Board had no jurisdiction over the appellant.

HOLDING:

Appeal dismissed.

REASONING:

(1) No. The medical field uses two criteria for determining death: cardiorespiratory failure and...