Court Of Appeal Summaries (July 13 ' 17, 2020)

• Published date: 21 July 2020
• Subject Matter: Finance and Banking, Litigation, Mediation & Arbitration, Family and Matrimonial, Charges, Mortgages, Indemnities, Family Law, Trials & Appeals & Compensation
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good afternoon.

Please find below our summaries of last week's civil decisions of the Court of Appeal for Ontario.

Topics covered included family law, an appeal from a medmal jury verdict, summary judgment on malicious prosecution and related claims, the presumption of undue influence in the context of a wife's guarantee of corporate debts of a public company that was also in many respects a family business, and the recoverability of disbursements for expert fees where the expert's evidence was of very little value.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

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CIVIL DECISIONS

Vanleer v. Young , 2020 ONCA 459

[Gillese, Brown and Thorburn JJ.A.]

Counsel:

VAY, acting in person

Luigi De Lisio, for the respondent

Keywords: Family Law, Custody, Access, Best Interests of the Child, Maximum Contact Principle, Spousal Support Civil Procedure, Appeals, Jurisdiction, Costs, Family Law Rules, O. Reg. 114/99, Rule 24(1), Hickey v. Hickey [1999] 2 S.C.R. 518, Young v. Young, [1993] 4 S.C.R. 3 Mattina v. Mattina, 2018 ONCA 867, Marchildon v Beitz, 2012 ONCA 668, Priest v. Reilly, 2018 ONCA 389, Christodoulou v. Christodoulou, 2010 ONCA 93

facts:

The trial judge granted custody of the parties' child to the respondent wife, made an access order, and granted her spousal support. The husband appealed.

issues:

1. Whether a date of separation should be determined and, if so what it should be.

2. Whether spousal support should be awarded to the wife and, if so, what was the appropriate quantum and duration.

3. Whether there should be parallel custody.

4. Whether there should be maximum contact with the child.

5. Whether there should be an equal sharing of holidays.

6. Whether the wife should continue treatment for her emotional issues and in particular her bipolar illness.

7. Whether the costs award to the wife should be vacated.

8. Whether the appellant was experiencing undue hardship.

9. Whether the wife should share in the marital debt and s. 7 expenses.

holding:

Appeal dismissed.

reasoning:

1. No. There was no need for the trial judge to determine a precise date of separation, since no order for the equalization of net family property was made.

2. Yes. The trial judge did not err in the amount of spousal support her ordered, or its five year duration, given this was an approximately five year marriage. An appellate court will not to interfere absent a demonstrated error in principle, a significant misapprehension of the evidence, or where the award is clearly wrong.

3. The trial judge applied the best interests framework in making his custody and access orders. He heard evidence from both parties and had the benefit of a report from the office of the children's lawyer. While he found that both parties were capable and loving parents, he also found a history of confrontation between them, a pattern of intimate partner violence a lack of trust, and an inability to communicate. In ordering sole custody in favour of the wife, the trial judge accepted the conclusion in the OCL Report that joint custody and shared parenting were not viable options and its recommendation that the wife be given sole custody. A trial court's decision on custody and access matters is owed considerable deference on appeal, and there was no error on the part of the trial judge with respect to custody and access.

4. See #3 above.

5. See #3 above.

6. No. Assuming that the court even had jurisdiction to require the wife to continue to receive treatment for her disorder, the court determined that the trial judge did not err in refusing to make such an order, or in finding the wife to be a responsible and capable parent, and that the one occasion on which she appeared to have forgotten to take her mediation was an isolated incident.

7. No. There was no divided success. The wife was successful and was presumptively entitled to costs under Rule 24(1) of the Family Law Rules. There was no basis to set aside the costs order.

8. No. The trial judge took into consideration the husband's debt situation (much of it student debt the preceded the marriage) when he established the quantum of spousal support. He did this despite having found that the husband was the author of his own financial misfortune, the debt was not incurred to support the wife or their child, and it would be inappropriate to hold the wife responsible for the debt. There was no basis to interfere in this case. If the husband's financial circumstances change such that he becomes unable to meet his support obligations, he can bring a motion to change on that basis.

9. No. The trial judge found that both parties had a negative net worth. He declined to make an order making the wife responsible for half of the debts that the husband had accrued during the marriage, citing a lack of jurisdiction. The Court agreed with the trial judge.

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Woods v. Jackiewicz , 2020 ONCA 458

[Juriansz, Pardu and Huscroft JJ.A.]

Counsel:

Thomas J. Curry, Mitchell C. Brown, Mark Veneziano, Dena Varah and Robert Trenker, for the appellant

Christopher Morrison and Paul Cahill, for the respondents

Keywords: Torts, Negligence, MedMal, Causation, "But For" Test, Civil Procedure, Jury Charge, Evidence, Witnesses, Parent v. Janandee Management Inc. , 2017 ONCA 922, Lambert v. Quinn, 1994 CanLii 978 (ONCA), Stilwell v. World Kitchen Inc., 2014 ONCA 770

facts:

The respondent, Ms. B was pregnant with twins. She saw the appellant for an unscheduled appointment on July 5, 1991, as she was experiencing severe abdominal pain and excessive weight gain. The appellant sent her home to rest. When the symptoms became worse, she went to Niagara Hospital on July 7 which arranged for her immediate transfer by ambulance to McMaster Hospital. By then, her cervix was two or three centimetres dilated. Doctors there delivered the babies by emergency C-section at 27 weeks into the pregnancy. As a result of the premature birth, one of the twins, KW, sustained brain damage.

The jury found that the appellant was negligent for, among other things, failing to arrange for her to be seen immediately by a perinatologist - a fetal medicine specialist - on July 5. The theory of the respondents' case was that if she had been seen on July 5, 1991 by specialists at a tertiary center with expertise in high-risk pregnancies, like McMaster Hospital, then the Twin-to-Twin Transfusion Syndrome ("TTTS") imperilling the babies would have been detected and treated, and the premature delivery and the brain damage to KW would have been avoided.

TTTS is a rare complication of twin pregnancies. One twin gets too much fluid, while the other gets too little. The twin getting excess fluid continues to urinate, creating a large volume of amniotic fluid around it. This large volume of fluid compresses the other twin who gets less and less fluid. Untreated, this condition is usually fatal for both.

The respondents' experts testified that there was effectively only one treatment in 1991: amnioreduction, a procedure where a needle is inserted into the amniotic cavity to remove some of the excess fluid. If this was not possible, the only other option was an emergency C-section, which at this gestational age could have catastrophic consequences.

The matter went to trial in 2019. It was a two-issue case: 1. Did the appellant breach the standard of care? 2. If yes, did his breach of the standard of care cause the brain damage that KW sustained because of her premature birth? The jury answered, "yes", to both questions. The appellant did not challenge the jury's conclusion that he breached the standard of care, limited his appeal to issues related to causation.

issues:

1. Was the jury's verdict unreasonable because there was no evidentiary basis to support the jury's verdict on causation?

2. Did the trial judge's charge to the jury contain legal errors on the issue of causation that resulted in a substantial miscarriage of justice?

a. Did the trial judge err by refusing to instruct the jury that they were permitted to draw an adverse inference from the respondents' failure to call any witness from McMaster Hospital to give evidence on the availability of amnioreduction in 1991?

b. Did the charge give disproportionate weight to the respondents' experts or mischaracterize the expert evidence?

c. Did the trial judge err by refusing to instruct the jury that a mere loss of chance is not compensable at law?

holding:

Appeal dismissed.

reasoning:

1. No. The test for appellate interference with a jury verdict is high. Here it was open to the jury to infer that had Ms. B been referred to McMaster Hospital on July 5, 1991, amnioreduction would have been performed to effectively treat the TTTS. McMaster Hospital was a tertiary centre specializing in high-risk or problem pregnancies. The jury could infer that the easy-to-perform treatment would have been administered, given that there was no other treatment available other than a potentially catastrophic early C-section. The respondents' experts provided a basis from which the jury could infer that the TTTS would have been successfully treated at McMaster Hospital in 1991. The jury rejected the appellant's expert's "feeling" that amnioreduction was not offered at that time at McMaster Hospital. There may have been any number of reasons why the jury preferred the evidence of the respondents' experts. It was open to them to do so and conclude that the treatment would have been administered and would have avoided the brain damage on the balance of probabilities.

2. No.

a. No. The trial judge did not err in deciding not to instruct the jury that they could draw an adverse inference from the failure of the respondents to call a witness from McMaster Hospital to testify about whether amnioreduction was used to treat TTTS at the time. Either party could have called that evidence if they thought it was important.

b. No. The Court was satisfied that the statements challenged by the appellant, when read in their full context, would not have...