Court Of Appeal Summaries (January 30, 2023 ' February 3, 2023)

• Law Firm: Blaney McMurtry LLP
• Subject Matter: Finance and Banking, Corporate/Commercial Law, Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Family and Matrimonial, Insolvency/Bankruptcy/Re-structuring, Financial Services, Corporate and Company Law, Insolvency/Bankruptcy, Contracts and Commercial Law, Family Law, Class Actions, Trials & Appeals & Compensation, Personal Injury, Professional Negligence, Civil Law
• Author: Mr John Polyzogopoulos
• Published date: 09 February 2023

Following are this week's summaries of the Court of Appeal for Ontario for the week of January 30, 2023.

Levac v James is a medmal class action arising from an infectious disease outbreak at a pain management centre. The appellant doctor administered injections that resulted in serious infections, which was caused by inadequate Infection Prevention and Control. Following a five-week common issues trial, the trial judge found against the doctor on all common issues: negligence (duty of care, standard of care and breach, and causation), fiduciary duty, limitation period, entitlement to punitive damages and the Sanderson costs order made against him. The doctor's appeal was dismissed, however he has an opportunity to rebut theprima facieliability findings made against him at individual trials.

In Kemeny v. Callidus Capital Corporation, the respondent helped arrange a loan between the appellant and Esco Marine Inc. ("Esco"). Esco agreed to pay the respondent a consulting fee for his services in arranging the loan. The appellant agreed to an Irrevocable Direction directing it to pay the respondent's fee directly to him from the first advance of the loan to Esco. The loan proceeds were advanced, but the appellant did not pay the respondent his fee out of the first advance. Esco then went bankrupt. The respondent claimed damages from the appellant for breach of contract, breach of fiduciary duty, and breach of trust. The Court dismissed the appeal, and found the trial judge did not err in finding that the Irrevocable Direction created a contractual obligation on the part of the appellant, and that the appellant breached its contract and trust obligations to the respondent.

In J.N. v. C.G., the Court allowed an appeal by a parent who wished to have their children vaccinated against COVID-19. The motion judge had refused to permit the appellant to make the decision on whether the children would be vaccinated. The motion judge had placed the onus on the appellant father to show that the children should be vaccinated, and incorrectly relied on the respondent mother's evidence of risks with the vaccine. The Court disagreed with the motion judge, and found that he had made palpable and overriding errors. The Court clarified that where one party seeks to have a child treated by a Health Canada-approved medication, the onus was on the objecting party to show why the child should not receive that medication.

Table of Contents

Civil Decisions

J.N. v. C.G.,2023 ONCA 77

Keywords: Family Law, Parenting, COVID-19, Office of the Children's Lawyer, Standard of Review, Evidence, Judicial Notice, Evidence Act, R.S.O. 1990, c. E.23, s. 25, Housen v. Nikolaisen, 2002 SCC 33, Sferruzzi v. Allan, 2013 ONCA 496, Van de Perre v. Edwards, 2001 SCC 60, Hickey v. Hickey, [1999] 2 S.C.R. 518, N.S. v. R.M., 2019 ONCA 685, R. v. Abbey, 2017 ONCA 640, ITV Technologies Inc. v. WIC Television Ltd., 2003 FC 1056, Sutton v. Sutton, 2017 ONSC 3181, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, I.S. v. J.W., 2021 ONSC 1194, A.B.S. v. S.S., 2022 ONSC 1368, Warren v. Charlton, 2022 ONSC 1088, Campbell v. Heffern, 2021 ONSC 5870, Dyquiangco Jr. v. Tipay, 2022 ONSC 1441, Rashid v. Ayanesov, 2022 ONSC 3401, Davies v. Todd, 2022 ONCJ 178, A.M. v. C.D., 2022 ONSC 1516, R. v. P.(A.) (1996), 109 C.C.C. (3d) 385 (Ont. C.A.), A.C. v. L.L., 2021 ONSC 6530, Finestone v. The Queen (1953), 107 C.C.C. 93 (S.C.C.), Decaen v. Decaen, 2013 ONCA 218, K.K. v. M.M., 2021 ONSC 3975, Chase v. Chase, 2020 ONSC 5083, Zinati v. Spence, 2020 ONSC 5231, A.C. v. L.L., 2021 ONSC 6530, Yohannes v. Boni, 2020 ONSC 4756, Gillespie v. Jones, 2020 ONSC 2558, A.T. v. V.S., 2020 ONSC 4198, R.S.P. v. H.L.C., 2021 ONSC 8362, R. v. Find, 2001 S.C.C. 32, O.M.S v. E.J.S., 2023 SKCA 8, R. v. Marquard, [1993] 4 S.C.R. 223

Kemeny v. Callidus Capital Corporation, 2023 ONCA 76

Keywords: Contracts, Interpretation, Debtor-Creditor, Defences, Estoppel, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Bridgepoint Financial Services Limited Partnership I v. Galamini, 2021 ONSC 6979, R. v. R.E.M., 2008 SCC 51, Farej v. Fellows, 2022 ONCA 254

Wilson v. Fatahi-Ghandehari, 2023 ONCA 74

Keywords: Civil Procedure, Vexatious Litigants, Abuse of Process, Rules of Civil Procedure, rr. 2.1, 2.1.01(1), 2.1.01(3), 59.06(2), Bell v. Fishka, 2022 ONCA 683, Wilson v. Fatahi-Ghandehari, 2018 ONCA 728,< em>Fatahi-Ghandehari v. Wilson, 2017 ONSC 6034, Fatahi-Ghandehari v. Wilson, 2018 ONSC 5579, Fatahi-Ghandehari v. Wilson, 2021 ONSC 3547, Wilson v. Fatahi-Ghandehari, 2022 ONCA 421, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497, Saggi v. Grilone, 2021 ONSC 2276, Lamothe v. Ellis, 2022 ONCA 789

Levac v. James, 2023 ONCA 73

Keywords: Torts, Negligence, Medical Malpractice, Breach of Fiduciary Duty, Duty of Care, Standard of Care, Causation, Damages, Punitive Damages, Civil Procedure, Class Proceedings, Common Issues, Liability, Rebuttable Inferences, Individual Trials, Limitation Periods, Discoverability, Concealment, Procedural Fairness, Adequacy of Reasons, Costs, Sanderson Orders, Class Proceedings Act, 1992, S.O. 1992, c. 6, s.31, Family Law Act, R.S.O. 1990, c. F.3., Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 5(1)(a), Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r.49, Canada Labour Code, R.S.C. 1985, c. L- 2, Andersen v. St. Jude Medical, Inc., 2012 ONSC 3660, Housen v. Nikolaisen, 2002 SCC 33, Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, Rumley v. British Columbia, 2001 SCC 69, White v. Canada (Attorney General), 2002 BCSC 1164, Armstrong v. Royal Victoria Hospital, 2019 ONCA 963, Fresco v. Canadian Imperial Bank of Commerce, 2022 ONCA 115, Cavanaugh v. Grenville Christian College, 2021 ONCA 755, Clements v. Clements, 2012 SCC 32, Moran v. Fabrizi, 2023 ONCA 21, Donleavy v. Ultramar Ltd., 2019 ONCA 687, Snell v. Farrell, [1990] 2 SCR 311, Hassen v. Anvari, 2003 CanLII 1005 (Ont. C.A.), Benhaim v. St-Germain, 2016 SCC 48, Rothwell v. Raes (1988), 66 OR (2d) 449 (H.C.), Farej v. Fellows, 2022 ONCA 254, R. v. G.F., 2021 SCC 20, Whiten v. Pilot Insurance, 2002 SCC 18, [2002] 1 SCR. 595, Performance Industries v. Sylvan Lake Golf and Tennis Club, 2002 SCC 19, Cavanaugh et al. v. Grenville Christian College et al., 2020 ONSC 1133, Gordon Dunk Farms Limited v. HFH Inc., 2021 ONCA 681, Grant Thornton LLP v. New Brunswick, 2021 SCC 31, Smith v. Inco Limited, 2011 ONCA 628, Zeppa v. Woodbridge Heating & Air-Conditioning Ltd., 2019 ONCA 47, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, Ruffolo v. Sun Life Assurance Company of Canada, 2009 ONCA 274, Moore v. Wienecke, 2008 ONCA 162, Taylor v. Canada (Attorney General), 2022 ONCA 892

Short Civil Decisions

Lacey v. Kakabeka Falls Flying Inc.,2023 ONCA 83

Keywords: Contracts, Real Property, Commercial Leases, Remedies, Declaratory Relief, Civil Procedure, Orders, Enforcement, Writs of Possession, Costs, Planning Act, R.S.O. 1990, c. P.13, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 4, s. 16(1)(a), Real Property Limitations Act, R.S.O. 1990, c. L.15

Hibbert v. National Bank of Canada, 2023 ONCA 84

Keywords: Civil Procedure, Striking Pleadings, Appeals, Vexatious Litigants, Rules of Civil Procedure, r. 2.1

Warner v. Ahmadi, 2023 ONCA 71

Keywords: Breach of Contract, Real Property, Agreements of Purchase and Sale of Land, Remedies, Specific Performance, Civil Procedure, Summary Judgment

CIVIL DECISIONS

J.N. v. C.G., 2023 ONCA 77

[Tulloch, Thorburn and George JJ.A.]

COUNSEL:

J.N., acting in person

1. Pleet, J. Richardson and J. Herman, for the appellant

Keywords: Family Law, Parenting, COVID-19, Office of the Children's Lawyer, Standard of Review, Evidence, Judicial Notice, Evidence Act, R.S.O. 1990, c. E.23, s. 25, Housen v. Nikolaisen, 2002 SCC 33, Sferruzzi v. Allan, 2013 ONCA 496, Van de Perre v. Edwards, 2001 SCC 60, Hickey v. Hickey, [1999] 2 S.C.R. 518, N.S. v. R.M., 2019 ONCA 685, R. v. Abbey, 2017 ONCA 640, ITV Technologies Inc. v. WIC Television Ltd., 2003 FC 1056, Sutton v. Sutton, 2017 ONSC 3181, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, I.S. v. J.W., 2021 ONSC 1194, A.B.S. v. S.S., 2022 ONSC 1368, Warren v. Charlton, 2022 ONSC 1088, Campbell v. Heffern, 2021 ONSC 5870, Dyquiangco Jr. v. Tipay, 2022 ONSC 1441, Rashid v. Ayanesov, 2022 ONSC 3401, Davies v. Todd, 2022 ONCJ 178, A.M. v. C.D., 2022 ONSC 1516, R. v. P.(A.) (1996), 109 C.C.C. (3d) 385 (Ont. C.A.), A.C. v. L.L., 2021 ONSC 6530, Finestone v. The Queen (1953), 107 C.C.C. 93 (S.C.C.), Decaen v. Decaen, 2013 ONCA 218, K.K. v. M.M., 2021 ONSC 3975, Chase v. Chase, 2020 ONSC 5083, Zinati v. Spence, 2020 ONSC 5231, A.C. v. L.L., 2021 ONSC 6530, Yohannes v. Boni, 2020 ONSC 4756, Gillespie v. Jones, 2020 ONSC 2558, A.T. v. V.S., 2020 ONSC 4198, R.S.P. v. H.L.C., 2021 ONSC 8362, R. v. Find, 2001 S.C.C. 32, O.M.S v. E.J.S., 2023 SKCA 8, R. v. Marquard, [1993] 4 S.C.R. 223

FACTS:

The appellant father and respondent mother were married for almost seven years, but are now separated. They have three children. The oldest child lives with the appellant and the two youngest (ages 10 and 12 at the time in 2022) live with the respondent. The issue surrounding this dispute is who would have decision-making authority in respect of the COVID-19 vaccine for the two youngest children.

The appellant brought a motion asking the court to grant him decision-making authority. The appellant advocated for the children to be vaccinated and relied on the fact that the vaccine was recommended for children ages 5 and older. The respondent was against the vaccination and argued that sufficient doubt had been cast on the vaccine's safety and efficacy.

Each party attached to their affidavit information in support of their respective positions. The appellant relied primarily on information from Health Canada and the Canadian Paediatric Society. The respondent relied...