Court Of Appeal Summaries (December 2 – December 6, 2019)

Good afternoon.

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

In Armstrong v. Royal Victoria Hospital, the plaintiff was seriously injured during a colectomy surgery. The trial judge found the doctor who completed the surgery negligently caused the plaintiff's injuries. The doctor appealed this liability finding, arguing that the trial judge erred by (i) establishing a standard of perfection; and (ii) conflating the causation and standard of care analysis.

A majority of the Court of Appeal agreed with the doctor. In clarifying the appropriate standard of care analysis, the majority held that it will generally be an error of law to use outcomes or goals as the standard of care. The trial judge measured the doctor's liability according to the goal a prudent surgeon would have when conducting the operation, rather than the means a prudent surgeon would use to attain that goal. This was an error of law.

The majority further clarified that as a general rule, a trial judge should determine whether the defendant has breached the standard of care before resolving issues of causation. Where the nature of the injury is relevant to "what happened", it is not an error to consider that injury in resolving whether the standard of care has been breached. However, what should be avoided is engaging such questions where they are not relevant to whether a breach has occurred. The majority allowed the doctor's appeal and dismissed the action. In dissent, Justice van Rensburg would have dismissed the appeal. I would not be surprised if this is not the last word on the matter.

Other topics covered this week included wrongful dismissal, the interpretation of a Will providing for the sale of a business, personal guarantees, bankruptcy, costs and security for costs.

Hope everyone is enjoying the weekend.

John Polyzogopoulos Blaney McMurtry LLP 416.593.2953 Email

Table of Contents

Civil Decisions

1951584 Ontario Inc. (Maxium Financial Services Inc.) v. Altavision Plus Inc. , 2019 ONCA 943

Keywords: Contracts, Interpretation, Guarantees, Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53, Bauer v Bank of Montreal, [1980] 2 SCR 102

MacLeod v Marshall, 2019 ONCA 955

Keywords: Torts, Assault and Battery, Civil Procedure, Costs, Substantial Indemnity, Interest of Justice, Rules of Civil Procedure, R.R.O. 1990, Reg 194, s. 57, Victims' Bill of Rights, 1995, S.O. 1995, c. 6., s. 4(6)

1732427 Ontario Inc. v. 1787930 Ontario Inc., 2019 ONCA 947

Keywords: Bankruptcy and Insolvency, Proposals, Automatic Stay, Creditor's Remedies, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 69(1)(a)

Loran v. Weissman , 2019 ONCA 962

Keywords: Wills and Estates, Interpretation, Sale of Assets, Advice and Directions

Armstrong v. Royal Victoria Hospital, 2019 ONCA 963

Keywords: Torts, Negligence, MedMal, Standard of Care, Causation, "But For" Test, Expert Opinion Evidence, Paur (Committee of) v. Providence Health Care, 2017 BCCA 161, 96 B.C.L.R. (5th) 320, Fullowka v. Pinkerton's of Canada Ltd., 2010 SCC 5, St-Jean v. Mercier, 2002 SCC 15, Carlsen v. Southerland, 2006 BCCA 214, Snell v. Farrell, [1990] 2 S.C.R. 311, Bafaro v. Dowd, 2010 ONCA 188, Chasczewski Estate v. 528089 Ontario Inc. (Whitby Ambulance Service), 2012 ONCA 97, McArdle Estate v. Cox, 2003 ABCA 106, Meringolo (Committee of) v. Oshawa General Hospital (1991), 46 O.A.C. 260 (C.A.)

C. v. 1772887 Ontario Limited (St. Joseph Communications), 2019 ONCA 965

Keywords: Employment Law, Wrongful Dismissal, Civil Procedure, Summary Judgment, Employment Standards Act, 2000, S.O. 2000, c. 41, ss. 5, 13, and 60, Rules of Civil Procedure, Rule 20.01, Hryniak v. Mauldin, 2014 SCC 7, Red Deer College v. Michaels, [1976] 2 S.C.R. 324, McKee v. Reid's Heritage Homes Ltd., 2009 ONCA 916, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158, Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986, Paquette v. TeraGo Networks Inc., 2016 ONCA 618

Health Genetic Center Corp. v. New Scientist Magazine , 2019 ONCA 968

Keywords: Civil Procedure, Appeals, Security for Costs, Torts, Defamation, Courts of Justice Act, RSO 1990, c C43, s 7(5), Rules of Civil Procedure, Rules 56.01 (1)(f), 61.06, Libel and Slander Act, RSO 1990, c L12, s 12, Yaiguaje v Chevron Corporation, 2017 ONCA 827, Combined Air Mechanical Services Inc. v Flesch, 2010 ONCA 633

Short Civil Decisions

King v. King, 2019 ONCA 950

Keywords: Family Law, Spousal Support

Niras v. Doe, 2019 ONCA 949

Keywords: Civil Procedure, Limitation Periods, Discoverability, 1100997 Ontario Limited v. North Elgin Centre Inc., 2016 ONCA 848, Davis v East Side Marios Barrie, 2018 ONCA 410

Syrnyk v. Syrnyk, 2019 ONCA 948

Keywords: Consent Dismissal

Carey-Patel v. Carey, 2019 ONCA 960

Keywords: Wills and Estates, Substitute Decisions, Powers of Attorney

The Floor Show Ltd. v. Man-Shield (NWO) Construction Inc., 2019 ONCA 954

Keywords: Civil Procedure, Partial Summary Judgment

Narvaez v. Muzlera, 2019 ONCA 959

Keywords: Contracts, Real Property, Misrepresentation, Civil Procedure, Default Judgments

Posner v. Weir Foulds LLP, 2019 ONCA 966

Keywords: Wills and Estates, Civil Procedure, Summary Judgment, Settlements

Public Guardian and Trustee v. Kennedy, 2019 ONCA 956

Keywords: Wills and Estates, Substitute Decisions, Public Guardian and Trustee, Fresh Evidence, Substitute Decisions Act, 1992, S.O., c. 30, s. 18(2), Palmer v The Queen, [1910] 1 S.C.R. 759

Mikhailova v. Skylark Holdings Limited, 2019 ONCA 958

Keywords: Civil Procedure, Default Judgements, Intact Insurance Company v Kisel, 2015 ONCA 205

Criminal Decisions

R. v. L.M., 2019 ONCA 945

Keywords: Criminal Law, Sexual Assault, Sexual Interference, Invitation to Sexual Touching, Assault, Evidence, Admissibility, Confessions, Criminal Code, ss. 271(1), 151, 152 and 266, R. v. W.(D.), [1991] 1 SCR 742, R. v. Trachy, 2019 ONCA 622

R. v. Y., 2019 ONCA 942

Keywords: Criminal Law, Drug Trafficking, Organized Crime, Evidence, Admissibility, Wiretaps, Sentencing, Criminal Code, ss 185, 186, and 487.01, Canadian Charter of Rights and Freedoms, s. 8, 11(b) and 24(2), R v Brewster, 2016 ONSC 8038

R. v. U.A., 2019 ONCA 946

Keywords: Criminal Law, Sexual Assault, Sentencing, R. v. Aird, 2013 ONCA 447, R. v. R.W., [1992] 2 S.C.R. 122, R. v. Duncan, 2016 ONCA 754, R. v. Lacasse, 2015 SCC, 64 Criminal Code, s. 719(3.1)

R. v. C., 2019 ONCA 953

Keywords: Criminal Law, Arrange a Sexual Offence Against Child, Breach of Probation, Sentencing, Criminal Code, ss. 172.2, 161, Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, R. v. Brar, 2016 ONCA 724

R. v. M., 2019 ONCA 952

Keywords: Criminal Law, First Degree Murder, Attempted Murder Using Firearm, Jury Instructions, Vetrovec Warning, R. v. Yebes, [1987] 2 S.C.R. 168, R. v. Biniaris, 2000 SCC 15, R. v. Hall, 2010 ONCA 724

R. v. R.D., 2019 ONCA 951

Keywords: Criminal Law, Unlawful Confinement, Sexual Assault Causing Bodily Harm, Choking with Intent, Sentencing, R. v. Corbett, [1988] 1 S.C.R. 670

Ontario Review Board Decisions

W. (Re), 2019 ONCA 958

Keywords: Ontario Review Board, Criminal Law, Not Criminally Responsible, Criminal Code, ss. 672.67(1), 672.68(2), 672.69(2), 672.69(3), 672.71

CIVIL DECISIONS

1951584 Ontario Inc. (Maxium Financial Services Inc.) v. Altavision Plus Inc., 2019 ONCA 943

[van Rensburg, Paciocco, and Thorburn JJ.A.]

Counsel:

B Illion and D Ngai, for the appellants

L Hone, for the respondent

Keywords: Contracts, Interpretation, Guarantees, Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53, Bauer v Bank of Montreal, [1980] 2 SCR 102

facts:

This is an appeal from a summary judgment enforcing personal guarantees against the appellants in relating to the obligations of Altavision Plus Inc. ("Altavision') under a 2009 equipment lease agreement that Altavision entered into with the respondent. The lease pertained to Altavision's medical aesthetics business in Fort McMurray, Alberta.

issues:

(1) Did the motion judge err by misinterpreting the Governing Law clause in the guarantees?

(2) Did the motion judge err by holding that the appellants could not defend themselves based on the respondent's failure to claim insurance coverage for its losses sustained by the appellant's default?

(3) Did the motion judge err by permitting the respondent to enforce the guarantees after assigning its receivables to another entity?

holding:

Appeal dismissed.

Reasoning:

(1) No. The motion judge properly applied the principles of contract interpretation to determine that the Governing Law clause referred to the province in which the respondent held the appellants' account, and not the other way around. The Court agreed that the motion judge's interpretation accords with "sound commercial principles and good business sense, avoiding a commercially absurd result", since a financial services company would not want to agree "to an ever-changing governing law, and 'irrevocably submit to the exclusive jurisdiction' of undetermined courts" if the appellants chose to move their account from jurisdiction to jurisdiction. Any "ambiguity" that may exist is with the factual determination of where that place is. The motion judge considered the evidence and determined the place to be Ontario and not Alberta, as the appellants desired. The Court found no overriding and palpable errors of fact or extricable errors of law arising from that finding.

(2) No. The insurance policy in question was obtained by the respondent to secure an unrelated contract with another party. It was not held to secure the performance of the debt that the appellants guaranteed. In actual fact, the obligation the appellants guaranteed required their corporation to insure the leased property, which it failed to do. Even if the insurance policy covered the value of losses the respondent is seeking to recover, the policy provides the appellants with no defence, as the so-called "Bauer Rule" (a creditor's duty to protect and...