Court Of Appeal Summaries (April 13 – 17, 2020)

Good evening.

There were five substantive civil decisions released by the Court of Appeal for Ontario this week.

Stewart v Toronto (Police Services Board) is another case lingering from the G20 Summit in Toronto in 2010 and it involves the nexus between the common law, the Occupiers' Liability Act ("OLA"), and the Charter. The Court held that the Toronto Police Service's actions to make access to the Allan Gardens park conditional upon a bag search was not authorized by either the OLA or the common law and therefore an infringement of s. 2 of the Charter and not saved by s. 1. The OLA only authorizes an occupier (the police, in this case) to take actions to ensure the safety of those entering the premises, but not to exclude entry. While the common law entitles the Crown to withdraw permission from an invitee to be present on its property, the exercise of that power is "subject always to the Charter". The Court awarded the appellant $500 based upon the four-step framework for Charter damages from Vancouver (City) v Ward.

In Leitch v Novac, the Court overruled the motion judge's determination that the tort of conspiracy should not be extended to the family law context. In the course of matrimonial proceedings, the appellant alleged that the respondent and his family had conspired to keep money out of the respondent's hands specifically for the purpose of reducing the appellant's family law entitlements. The Court ordered a new trial and opined that excluding family members from the tort of conspiracy would allow nefarious actions by "invisible litigants" to proceed with impunity. In addition, the imputation of income provisions in family law legislation do not protect against such conspiracy because the inclusion of hidden assets into the net family property calculation will be a futile exercise, as the recipient cannot collect on what is owing. The Court reasoned that a judgment against a co-conspirator would often be the only means by which a recipient could satisfy a judgment.

The other topics explored this week included administrative law in the police context, substitute decisions and child abduction.

This past Wednesday, April 15, we held our fourth annual "Top Appeals" OBA CLE. Despite the fact that it was a Zoom webcast over the dinner hour, we had an excellent turnout. Thank you again to all of our panel members for a very interesting discussion of their cases, and to all the participants for joining us from their homes. For anyone who missed it, you can view the CLE on demand through the OBA's website.

Wishing everyone continued health and Happy Easter to those of the Greek and other Eastern Orthodox faith.

Table of Contents

Civil Decisions

Stanley v Office of the Independent Police Review Director , 2020 ONCA 252

Keywords: Administrative Law, Judicial Review, Regulated Professions, Police Services, Discipline, Functus Officio, Police Services Act, RSO 1990, c P15, s 68, 72, Wall v Office of the Independent Police Review Director, 2014 ONCA 884, Greer v Ontario Provincial Police Commissioner, [2006] OJ No 4771 (Sup Ct (Div Ct)), Chandler v Alberta Association of Architects, [1989] 2 SCR 848

Geliedan v Rawdah, 2020 ONCA 254

Keywords: Family Law, Custody, Child Abduction, International Law, Hague Convention, Children's Law Reform Act, RSO 1990, c C12, s. 40

Stewart v Toronto (Police Services Board), 2020 ONCA 255

Keywords: Constitutional Law, Freedom of Expression, Freedom from Unreasonable Search and Seizure, Freedom from Arbitrary Detention, Torts, Trespass, Occupier's Liability, Charter Damages, Canadian Charter of Rights and Freedoms, ss. 1, 2(b), 8, 9 and 24(1), Occupiers Liability Act, RSO 1990, c 02, Trespass to Property Act, RSO 1990, c T21, Waldick v Malcolm, [1991] 2 SCR 456, Langenfeld v Toronto Police Services Board, 2019 ONCA 716, Weisfeld v Canada (1994), 116 DLR (4th) 232 (FCA), Nakochee v Linklater, 1993 CarswellOnt 5678 (Ont Ct J (Gen Div), Committee for the Commonwealth of Canada v Canada, [1991] 1 SCR 139, Bracken v Fort Erie (Town), 2017 ONCA 668, Vancouver (City) v Ward, 2010 SCC 27

Volk v Volk, 2020 ONCA 256

Keywords: Substitute Decisions, Powers of Attorney, Real Property, Tenancy in Common, Civil Procedure, Evidence on Motions, Affidavits, Cross-Examination, Scope, Substitute Decisions Act, 1992, SO 1992, c 30, Moyle v Palmerston Police Services Board, [1995] OJ No 627 (Div Ct), Thomson v. Thomson, [1948] OWN 137 (HC), RJR-MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311, Buccilli v Pillitteri, [2013] OJ No 6110 (CA)

Leitch v Novac, 2020 ONCA 257

Keywords: Family Law, Support, Imputation of Income, Property, Torts, Conspiracy, Civil Procedure, Summary Judgment, Federal Child Support Guidelines, SOR/97-175

Short Civil Decisions

Urbancorp Cumberland 2 GP Inc.(Re), 2020 ONCA 253

Keywords: Civil Procedure, Costs

Criminal Decisions

R v CL, 2020 ONCA 258 (Publication Ban)

Keywords: Criminal Law, Sexual Assault, Jury Instructions, Criminal Code, RSC, 1985, c C-46, s 271, R v W(D), [1991] 1 SCR 742, R v JJRD (2006), 215 CCC (3d) 252 (Ont CA)

R v P, 2020 ONCA 259

Keywords: Criminal Law, Aggravated Assault, Weapons Offences, Defences, Self-Defence, Criminal Code, RSC 1985, c C-46, s 34(1), R v Cinous, 2002 SCC 29

CIVIL DECISIONS

Stanley v Office of the Independent Police Review Director, 2020 ONCA 252

[Watt, Hourigan, and Trotter JJA]

Counsel:

WC Childs, for the appellant

SA Pieters and BM Clarke, for FS, YaS, YuS, and TS

AD Ciobotaru, for the Chief of Police of the Toronto Police Service

L Gridin, for Constable CH

Keywords: Administrative Law, Judicial Review, Regulated Professions, Police Services, Discipline, Functus Officio, Police Services Act, RSO 1990, c P15, s 68, 72, Wall v Office of the Independent Police Review Director, 2014 ONCA 884, Greer v Ontario Provincial Police Commissioner, [2006] OJ No 4771 (Sup Ct (Div Ct)), Chandler v Alberta Association of Architects, [1989] 2 SCR 848

facts:

This appeal concerns an investigation into alleged police misconduct. The respondents filed complaints with the Office of the Independent Police Review Director ("the OIPRD" or "the Director") about a number of police officers. After an investigation, the OIPRD found that an allegation that Constable CH had used excessive force was "substantiated" and referred the matter to the Chief of Police of the Toronto Police Service ("TPS") for a disciplinary hearing.

Shortly after the referral, an officer from the Professional Standards Unit of the TPS contacted the Director about a transcription error in Constable CH's statement to the investigators. The Director advised the respondents that new information had come to light that required further investigation. Following a further investigation, the Director determined that the allegation against Constable CH was now "unsubstantiated" and advised the respondents of his decision. The file was closed. There was no disciplinary hearing.

The respondents sought judicial review of the Director's second decision in the Divisional Court. They argued that: (a) the Director lacked the authority to re-open the investigation; (b) there was a breach of the rules of procedural fairness arising from the communications between the Director and the TPS; and (c) the Director's second decision was unreasonable. The Divisional Court allowed the application solely on the basis of the procedural fairness issue. The Director's decision was quashed and the complaints were referred back to the OIPRD for a fresh investigation. The OIPRD appealed this decision, supported by the TPS and Constable CH.

issue:

Did the Director have authority to reconsider his decision to refer the case to the TPS for a disciplinary hearing?

holding:

Appeal allowed in part.

reasoning:

No. Despite the Director's claim, he had no power at common law to re-open an investigation and reconsider his hearing referral decision. His claim relied on Greer v Ontario Provincial Police Commissioner, which held that the Superintendent was not prohibited from revisiting a decision that a complaint was unsubstantiated because he "was performing a screening function that was investigative, not adjudicative and therefore administrative in nature." The Court found this decision unhelpful because it was decided before the creation of the OIPRD and the framework for decision-making under the current model. Further, the characterization of decisions as "investigative", "adjudicative", "final adjudicative", and "administrative" is inconsistent with the approach of the Court in Endicott v Ontario (Independent Police Review Office) and Wall v Office of the Independent Police Review Director.

The Director also purported to find power to reconsider his decision in s 72 of the Police Services Act ("PSA"). The Court noted that the distinction between investigative referrals and hearing referrals is crucial to a proper reading of s 72(1). The power in s 72(1) is triggered by an investigative referral. In this case, the Director had retained the investigation, completed it, and then referred the matter to the Chief of Police to conduct a hearing. There was no...