Court Of Appeal Summaries (December 30, 2019 – January 3, 2020)

Good afternoon.

I hope everyone's New Year is off to a great start.

There were three civil decisions released by the Court of Appeal this week. Topics covered included the apportionment of costs following settlement of an MVA case, the admissibility of documents in a personal injury case, and Anti-SLAPP.

As many of you may know, my partner, Lea Nebel and I have been chairing the last few years a CLE at the OBA of "Top Appeals" from the Court of Appeal over the past year. The program will be a dinner program to take place at the OBA on Thursday, February 27, 2020, so please mark your calendars! Two of the cases we will be featuring this year are Darmar Farms v Sygenta, which deals with the potential new tort of "premature commercialization" and pure economic loss in product liability context, and The Guarantee Company of North America v Royal Bank of Canada regarding the priority of construction trust claims in bankruptcy. We are also lining up our speakers for a third decision that will be featured, so please stay tuned.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos Blaney McMurtry LLP 416.593.2953 Email

Table of Contents

Civil Decisions

Bondy-Rafael v. Potrebic, 2019 ONCA 1026

Keywords: Torts, Negligence, MVA, Civil Procedure, Settlements, Costs, Apportionment, Mortimer v. Cameron (1994), 17 OR (3d) 1 (CA), Wright v. Wal-Mart Canada et al., 2010 ONSC 2936, Gorman v. Falardeau, 2004 CanLII 14959, Burns v. Hedge (2001), 146 OAC 333 (CA)

Bukshtynov v. McMaster University, 2019 ONCA 1027

Keywords: Torts, Negligence, Evidence, Admissibility, Hearsay, Documents in Possession, Business Records, Principled Exception, Occupational Health and Safety Act, R.S.O. 1990, c. O.1 s.1(d), 5(1) and 51, Evidence Act, R.S.O. 1990, c. E. 23 s. 35, R. v. Turlon (1989), 49 C.C.C. (3d) 186, R. v. Araya, 2015 SCC 11

Ontario College of Teachers v. Bouragba, 2019 ONCA 1028

Keywords: Tort, Defamation, Anti-SLAPP, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1, 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685

Criminal Decisions

R. v. M., 2019 ONCA 1019

Keywords: Criminal Law, Weapons Offence, R. v. Weare, (1993) CCC (3d) 494

R. v. B., 2019 ONCA 1020

Keywords: Criminal Law, Assault, Identification Evidence

R. v. G.H., 2020 ONCA 1

Keywords: Criminal Law, Publication Ban, Sexual Interference, Incest, Jury Instructions, Evidence, Rule in Browne v. Dunn, Prior Inconsistent Statements, Cross-Examination, Credibility, Adverse Inferences, Browne v. Dunn (1893), 6 R. 67 (H.L.), R. v. Rose (2001), 53 O.R. (3d) 417 (C.A.), R. v. L.L., 2009 ONCA 413, R. v. T.M., 2014 ONCA 854, leave to appeal refused, [2015] S.C.C.A. No. 110, Deacon v. The King, [1947] S.C.R. 531, McInroy and Rouse v. R., [1979] 1 S.C.R. 588, R. v. Mannion, [1986] 2 S.C.R. 272, R. v. Squire, [1977] 2 S.C.R. 13, R. v. Bevan, [1993] 2 S.C.R. 599, Colpitts v. The Queen, [1965] S.C.R. 739, Wildman v. The Queen, [1984] 2 S.C.R. 311

CIVIL DECISIONS

Bondy-Rafael v. Potrebic, 2019 ONCA 1026

[Lauwers, van Rensburg and Roberts JJ.A.]

Counsel:

Sheldon A Gilbert, Q.C., for the appellants

Brian A Foster and Anne C Davenport, for the respondents, The Estate of LP, by his Estate Trustee, EMP, EMP, ALP, and AP Incorporated

Alan L Rachlin, for the respondents, KLBR, TCE, a minor by his Litigation Guardian, LR, SO, a minor by his Litigation Guardian, LR and LR

Keywords: Torts, Negligence, MVA, Civil Procedure, Settlements, Costs, Apportionment, Mortimer v. Cameron (1994), 17 OR (3d) 1 (CA), Wright v. Wal-Mart Canada et al., 2010 ONSC 2936, Gorman v. Falardeau, 2004 CanLII 14959, Burns v. Hedge (2001), 146 OAC 333 (CA)

facts:

This appeal turned on the correct analytical approach to be followed in the fixing of costs when an action is settled before its adjudication on the merits.

The POs appealed from the order of the motion judge that required them to pay all the plaintiffs' partial indemnity costs in the amount of $927,934.08, without any contribution from the PI respondents ("the PIs"), but net of an agreed upon contribution by the City of Windsor. While they also took issue with the quantum of the costs award, the main thrust of their appeal challenged the motion judge's apportionment of liability for damages as the basis for apportioning costs following the settlement.

The motion judge later heard argument on the issue of costs payable to the plaintiffs by the POs and the PIs. The plaintiffs' disbursements were...