Court Of Appeal Summaries (September 21 ' September 25, 2020)

• Published date: 28 September 2020
• Subject Matter: Litigation, Mediation & Arbitration, Immigration, Family and Matrimonial, Family Law, Court Procedure, Trials & Appeals & Compensation, Professional Negligence, General Immigration
• Law Firm: Blaney McMurtry LLP
• Author: Mr John Polyzogopoulos

Good morning.

Please find our summaries of the civil decisions of the Court of Appeal for Ontario for the week of September 21, 2020. There were only three substantive decisions.

Bruno v. Dacosta involved an inmate who sued the Crown after he was assaulted while in detention. The Court ordered a new trial after finding the trial judge's reasons so insufficient as to preclude any meaningful appellate review. In addition to discussing the importance of meaningful reasons, the Court also took another opportunity to provide some trial practice advice to counsel on the admission and use of joint document books.

Congratulations to our very own Ryan Kniznik, who was substantially successful in representing our client in Levin v Levin, a family law appeal.

Finally, Walker v. Coldin dealt with access easements for cottage properties.

I hope everyone enjoys the good weather while it lasts, but does so while maintaining appropriate physical distancing. The number of cases is, unfortunately, increasing, but if we all remember to do our part, we can reverse that trend and avoid another lockdown.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Bruno v. Dacosta 2020 ONCA 602

Keywords: Torts, Negligence, Standard of Care Crown Liability, Defences, Contributory Negligence, Civil Procedure, Procedural and Natural Justice, Sufficiency Of Trial Reasons, Evidence at Trial, Exhibits, Joint Document Books Proceedings Against the Crown Act, ss. 5(1)(a) and 5(2) Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(6), Evidence Act, R.S.O. 1990, c. E.23, s. 35, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, Brochu v. Pond (2002), 62 O.R. (3d) 722 (C.A.), Nemchin v. Green, 2019 ONCA 634, R. v. Sheppard, 2002 SCC 26, R. v. Dinardo, 2008 SCC 24, Girao v. Cunningham, 2020 ONCA 260

Levin v. Levin, 2020 ONCA 604

Keywords: Family Law, Spousal Support, Child Support, Equalization of Net Family Property, Family Law Rules, O Reg 114/99, rule 18(14), Rados v. Rados, 2019 ONCA 627, Bak v. Dobell, 2007 ONCA 304, Korman v. Korman, 2015 ONCA 578, Fielding v. Fielding, 2015 ONCA 901

Walker v. Coldin, 2020 ONCA 603

Keywords: Real Property, Prescriptive Easements, Civil Procedure, Remedies, Injunctions, Applications, Factums, Rules of Civil Procedure, Rule 38.09(4), W. (D.) v. White, [2004] 189 O.A.C. 256, leave to appeal refused, [2004] S.C.C.A. No. 486, RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311

Short Civil Decisions

Vitucci v. Dimankis, 2020 ONCA 601

Keywords: Civil Procedure, Appeals, Security for Costs, Rules of Civil Procedure, Rule 61.06(1)(a)

CIVIL DECISIONS

Bruno v. Dacosta, 2020 ONCA 602

[Lauwers, Brown and Nordheimer JJ.A.]

Counsel:

Ian MacLeod and Robert Trenker, for the appellant

Gregory P. McKenna and Sabrina L. Seibel, for the respondents

Keywords: Torts, Negligence, Standard of Care, Crown Liability, Defences, Contributory Negligence, Civil Procedure, Procedural and Natural Justice, Sufficiency Of Trial Reasons, Evidence at Trial, Exhibits, Joint Document Books, Proceedings Against the Crown Act, ss. 5(1)(a) and 5(2), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(6), Evidence Act, R.S.O. 1990, c. E.23, s. 35, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, Brochu v. Pond (2002), 62 O.R. (3d) 722 (C.A.), Nemchin v. Green, 2019 ONCA 634, R. v. Sheppard, 2002 SCC 26, R. v. Dinardo, 2008 SCC 24, Girao v. Cunningham, 2020 ONCA 260

facts:

The respondent, PB, was an inmate being held at the Niagara Detention Centre ("NDC"). The trial judge found that other inmates at the NDC assaulted the respondent, leaving him with serious personal injuries that he continues to suffer from. The issue before the trial judge was whether the Crown, as represented by the Ministry of Community Safety and Correctional Services, is liable in negligence because NDC employees failed to take reasonable steps to protect the respondent as a vulnerable inmate.

The trial judge found two breaches of the standard of care, but also found that the respondent was contributorily negligent in failing to bring his vulnerability to the attention of NDC employees. The amount of contributory negligence was assessed at 15 percent. The Crown appealed and asked that the action be dismissed, while the respondent cross-appealed and asked that the level of contributory negligence be reduced to zero.

issues:

1. Are the trial judge's reasons sufficient to permit a meaningful appellate review?
2. Did the trial judge err in finding liability on a Ministry-level basis not tied to the negligence of specific employees, contrary to the Proceedings Against the Crown Act and case law?

holding:

Appeal allowed.

reasoning:

(1) Are the trial judge's reasons sufficient to permit a meaningful appellate review?

No. The Court began by exploring the functional purposes for good reasons, noting the principle in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 39 that reasons allow parties to see that the applicable issues have been carefully considered, and are invaluable if a decision is to be appealed. The Court then moved on from considering the importance of clear and sufficient reasons in general, to exploring the extent to which appellate courts can appropriately salvage a judgment based on inadequately explained trial reasons.

First, the Court cited various authorities for the principle that a new trial should not be ordered unless the interests of justice plainly require that to be done (Brochu v. Pond (2002), 62 O.R. (3d) 722 (C.A.); Nemchin v. Green, 2019 ONCA 634) and that the court must find a real prospect "that a substantial wrong or miscarriage of justice has occurred" (Courts of Justice Act, s. 134(6)).

In R. v. Sheppard, 2002 SCC 26, Justice Binnie wrote that where the trial decision is deficient in explaining the result to the parties, but the appeal court is able to do so, the appeal court's own explanation is sufficient to salvage the judgment. However, where the appeal court is not able to do so, a new trial may be needed. Further, when assessing the trial judge's reasons for sufficiency, the appeal court must examine the evidence and determine whether the reasons for judgment are, in fact, patent on the record (R. v. Dinardo, 2008 SCC 24).

The Court summarized these authorities by finding that appellate courts usually decline to dig too deeply into the record in order to salvage a decision in three particular instances: where the decision turns on (1) issues of conflicting evidence; (2) evaluations of credibility and reliability; or (3) exercises of discretion that are properly within the purview of a trial judge. The Court then used the second issue (the liability of the Crown) considered in this case merely as a tool to illustrate the application of these principles. Ultimately, the Court concluded that there was genuine uncertainty over whether the trial judge properly understood the correct legal test for liability. Among other things, the Court also found that the trial judge failed to assess credibility and reliability, or set out the chains of reasoning applicable to each issue. Therefore, the judgment could not be salvaged upon examining the record, and a new trial was regrettably ordered.

(2) Did the trial judge err in finding liability on a Ministry-level basis not tied to the negligence of specific employees, contrary to the Proceedings Against the Crown Act?

The Court did not reach a direct conclusion on this issue, as it was merely used as a tool to apply the principles listed above pertaining to the sufficiency of trial reasons. The Court did, however, provide a brief review of the law on this issue.

The applicable law in inmate assault cases...