Court Of Appeal Summaries (January 20 – January 24, 2020)

Good afternoon.

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

Topics covered last week included the proper notice of proceedings against the provincial Crown, the tort of battery, costs in an unsuccessful claim against a school board, the tort of conversion and setting aside default judgments in the context of an alleged breach of an agreement of purchase and sale of land.

Please join me and Lea Nebel at our "Top Appeals of 2019" CLE (registration is now open at the OBA's website), dinner program to take place at the OBA on Thursday, February 27, 2020. Three decisions will be featured. The first is Darmar Farms v Sygenta, which deals with the potential new tort of "premature commercialization" and pure economic loss in product liability context. The second is The Guarantee Company of North America v Royal Bank of Canada regarding the priority of construction trust claims in bankruptcy. The third is Wright v Urbanek, which deals with the scope of the doctrines of abuse of process and collateral attack.

Wishing everyone a pleasant work week.

Table of Contents

Civil Decisions

B.D. v. D.O., 2020 ONCA 29

Keywords: Torts, Sexual Battery, PP v. DD, 2017 ONCA 180, F.H. v. McDougall, 2008 SCC 53

Hajrizi v. Ottawa-Carleton District Schoolboard, 2020 ONCA 32

Keywords: Torts, Misfeasance in Public Office, Intentional Infliction of Mental Suffering, Negligence, Defamation, Conspiracy, Dependent's Claims, Civil Procedure, Costs, Family Law Act, R.S.O. 1990, c. F.3, s. 61

Wangdah Material Toronto Ltd. v. 1691530 Ontario Ltd., 2020 ONCA 28

Keywords: Contracts, Breach, Torts, Conversion, Civil Procedure, Applications, Summary Trials, Reasonable Apprehension of Bias, Rules of Civil Procedure, Rule 38.10

Zeifman Partners Inc. v. A., 2020 ONCA 33

Keywords: Contracts, Breach, Real Property, Agreements of Purchase of Sale of Land, Civil Procedure, Default Judgments, Setting Aside, Rules of Civil Procedure, Rules 1.04(1), 19.01, Default Judgment, Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194

Pierce v. Belows, 2020 ONCA 41

Keywords: Contracts, Civil Procedure, Offers to Settle, Enforcement, Milios v. Zagas (1998), 38 O.R. (3d) 218 (C.A.), Scherer v. Paletta, [1966] 2 O.R. 524 (C.A.)

Elliot v. Aviva Insurance Company of Canada, 2020 ONCA 36

Keywords: Torts, Negligence, Misfeasance in Public Office, Crown Liability, Contracts, Insurance, Automobile Insurance, Duty of Good Faith, Statutory Accident Benefits, Civil Procedure, Class Proceedings, Proceedings Against the Crown, Notice, Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, ss. 7(1), Insurance Act, RSO 1990, c I.8, Statutory Accident Benefits Schedule, O Reg 34/10, Mattick Estate v. Ontario (Minister of Health) (2001), 52 O.R. (3d) 221 (C.A.), Beardsley v. Ontario (2001), 57 O.R. (3d) 1 (C.A.), Latta v. Ontario (2002), 62 O.R. (3d) 7 (C.A.)

Short Civil Decisions

Asfar v. Sun Life Assurance Company of Canada, 2020 ONCA 31

Keywords: Contracts, Real Property, Mortgages, Torts, Negligent Misrepresentation, Fraudulent Misrepresentation, Breach of Trust, Conspiracy, Fraud, Civil Procedure, Limitation Periods, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B

Elbasiouni v. Brampton (City), 2020 ONCA 43

Keywords: Municipal Law, Appeals, Leave to Appeal, Courts of Justice Act, R.S.O. 1990, c. C.43 s. 6(1)(a), Building Code Act, 1992, S.O. 1992, c. 23 ss. 25 and 26, Sault Dock Co. Ltd. v. Sault Ste. Marie (City), [1973] 2 O.R. 479 (C.A.)

Criminal Decisions

R. v. C., 2020 ONCA 35

Keywords: Criminal Law, Impaired Driving, Refusing to Provide Breath Sample, Breach of Peace Bond, Arbitrary Detention

R. v. S.H., 2020 ONCA 34

Keywords: Criminal Law, Sexual Assault, Criminal Code, s. 686(1)(b)(iii), s. 276, R. v. Arp, [1998] 3 S.C.R. 339, R. v. Mahalingan, 2008 SCC 63, R v. D.C., 2019 ONCA 442, R. v. Bartholomew, 2019 ONCA 377, R. v. M.B., 2011 ONCA 76, R. v. L.L., 2009 ONCA 413

R. v. R.S., 2020 ONCA 39

Keywords: Criminal Law, Fresh Evidence, Criminal Code, s. 486.5

R. v. R., 2020 ONCA 38

Keywords: Criminal Law, Impaired Driving Causing Death, Sentencing, R. v. Lacasse, 2015 SCC 64, R. v. Kummer, 2011 ONCA 39, R. v. Luskin, 2012 ONSC 1764, R. v. Muzzo, 2016 ONSC 2068, R. v. R.E.M., 2008 SCC 51, R. v. Altiman, 2019 ONCA 511, R. v. M.(C.A.), [1996] 1 S.C.R. 500

R. v. C., 2020 ONCA 40

Keywords: Criminal Law, Constitutional Law, Jury Selection, Peremptory Challenges, Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, 1st Sess., 42nd Parl., 2019, c. 25, ss. 269, 272, 406, Criminal Code, ss. 634, 640, Canadian Charter of Rights and Freedoms, ss. 11(d), 11(f), 7

CIVIL DECISIONS

B.D. v. D.O., 2020 ONCA 29

[Sharpe, Juriansz and Trotter JJ.A.]

Counsel:

Vusumzi Msi and Pedram Najafi, for the appellant No one appearing for the respondent

Keywords: Torts, Sexual Battery, PP v. DD, 2017 ONCA 180, F.H. v. McDougall, 2008 SCC 53

facts:

The appellant and the respondent were co-workers. They commenced a sexual relationship. The respondent was married at the time. He testified that he wanted to end the physical aspect of their relationship, and conveyed this to the appellant. They decided to have sex again for the last time. The appellant testified that the two went to a wooded area during a lunch break and had sexual intercourse. The respondent told her to turn onto her stomach. The appellant testified that she then felt excruciating pain; she almost passed out. The appellant thought that the respondent attempted to penetrate her anus with his penis, and with his fingers or hand. The appellant brought an action against the respondent for sexual battery and negligence. The trial judge held that the appellant failed to establish either claim on a balance of probabilities and dismissed the action in its entirety.

issues:

(1) Did the trial judge err in not giving effect to the respondent's admissions in his Statement of Defence?

(2) Did the trial judge err by failing to deal separately with the evidence as it related to negligence, focusing all of his attention on battery?

(3) Did the trial judge confound the issues of liability and causation of the appellant's injuries?

holding:

Appeal dismissed.

reasoning:

No. The court dealt with all issues summarily, stating that the trial judge carefully evaluated all of the evidence. He was simply not satisfied that the standard of proof had been met. He identified problems with the appellant's evidence and noted that it was roundly contradicted by the respondent's account. While the trial judge's finding, at para. 48, that the appellant "did not know what happened" during the alleged sexual battery may be at odds with a brief portion of her testimony in which she described the incident, the court concluded that this finding was one of many factors he considered in his credibility assessment of the appellant.

Hajrizi v. Ottawa-Carleton District Schoolboard, 2020 ONCA 32

[Hoy A.C.J.O., Doherty J.A. and Marrocco A.C.J. (ad hoc)]

Counsel:

William N. Fuhgeh, for the appellants Craig O'Brien, for the respondents

Keywords: Torts, Misfeasance in Public Office, Intentional Infliction of Mental Suffering, Negligence, Defamation, Conspiracy, Dependent's Claims, Civil Procedure, Costs, Family Law Act, R.S.O. 1990, c. F.3, s. 61

facts:

In the tenth grade, RH was charged with uttering threats, arrested, and on the same day, released. She transferred to another school. RH and her parents...