Court Of Appeal Summaries (August 7 ' 11, 2023)

• Law Firm: Blaney McMurtry LLP
• Subject Matter: Finance and Banking, Employment and HR, Government, Public Sector, Litigation, Mediation & Arbitration, Family and Matrimonial, Financial Services, Discrimination, Disability & Sexual Harassment, Retirement, Superannuation & Pensions, Employee Benefits & Compensation, Employee Rights/ Labour Relations, Family Law, Constitutional & Administrative Law, Trials & Appeals & Compensation, Professional Negligence, Civil Law
• Author: Mr John Polyzogopoulos
• Published date: 14 August 2023

Good afternoon.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of August 7, 2023.

In Case v. Pattison, the plaintiff was injured walking across a road when struck by the defendant's car. The plaintiffs and the defendants claimed damages against the Town of Milton alleging inadequate street lighting because of a missing luminaire. The Town commenced a third-party claim against Milton Hydro for contribution and indemnity, alleging that Milton Hydro negligently removed the luminaire. The motion judge held that because of the passage of time and intervening acts, the Town could not demonstrate that the plaintiff's accident was reasonably foreseeable at the time the luminaire was removed. She also held that there was no proximity to establish a duty of care by Milton Hydro to the plaintiff and therefore no basis upon which to find liability. The Court found that the motion judge had erred in conflating the duty of care analysis with the legal causation analysis and incorrectly focused on causation and the intervening acts. The Court noted that the motion judge failed to properly assess whether Milton Hydro owed a duty of care to the plaintiff. The Court set aside the motion judge's judgment and held that the requisite duty of care analysis must be undertaken anew and remitted the matter for trial.

In Brewers Retail Inc. v. Campbell, the Court determined that the Financial Services Tribunal did not have exclusive jurisdiction over a dispute related to amendments to the pension plan of the employees of Brewers Retail. The motion judge was correct in dismissing the FST's stay motion and certifying the class proceeding to enforce a settlement relating to the amendments.

In Shwaluk v HSBC Bank of Canada, the appellant appealed a motion judge's dismissal of her motion for leave to amend her statement of claim. The motion judge had found that one of the appellant's proposed amendments was a withdrawal of an admission and that the additional relief requested was a new cause of action which was statute-barred. The Court found that the motion judge failed to apply the correct legal test and, as a result, erred in concluding that the appellant sought to withdraw an admission. The Court also found that the relief requested was not a new claim, since it merely sought alternative relief arising from the same facts alleged and therefore was not statute-barred. The Court permitted the appellant to amend her pleading.

Other topics this week included a costs endorsement where the Court found that elevated costs were justified where a party did not disclose material facts to the parties and the Court, and an appeal from a trial judge's determination of equalization of net family property and spousal support, among others.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Ines Ferreira
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Case v. Pattison, 2023 ONCA 529

Keywords: Torts, Negligence, MVA, Duty of Care, Proximity, Reasonable Foreseeability, Causation, Foreseeability, Remoteness, Intervening Acts, Liability of Public Authorities, Municipalities, Civil Procedure, Third Party Claims, Contribution and Indemnity, Summary Judgment, Municipal Act, 2001, S.O. 2001, c. 25, [Minimum Maintenance Standards for Municipal Highways, O. Reg. 239/02, s. 10(1),Cooper v. Hobart, 2001 SCC 79; Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, Hill v Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, Rankin (Rankin's Garage & Sales) v. J.J., 2018 SCC 19, Nelson (City) v. Marchi, 2021 SCC 4, Frazer v. Haukioja, 2010 ONCA 249, Clements v. Clements, 2012 SCC 32, Saadati v. Moorhead, 2017 SCC 28, Phillip v. Bablitz, 2011 ABCA 383, Price v. Milawski (1977), 18 O.R. (2d) 113 (C.A.), Athey v. Leonati, [1996] 3 S.C.R. 458, Ostash v. Sonnenberg (1968), 67 D.L.R. (2d) 311 (Alta. C.A.), Dominion Chain Co. Ltd. v. Eastern Construction Co. (1976), 12 O.R. (2d) 201 (C.A.), Ives v. Clare Bros. Ltd. et al., [1971] 1 O.R. 417 (H.C.), Dobson (Litigation Guardian of) v. Dobson, [1999] 2 S.C.R. 753, Allan M. Linden et al., Canadian Tort Law, 12th ed. (Toronto: LexisNexis Canada Inc., 2022)

Shwaluk v. HSBC Bank of Canada, 2023 ONCA 538

Keywords: Contracts, Insurance, Long-Term Disability Benefits, Civil Procedure, Amending Pleadings, Admissions, Withdrawal, Limitation Periods, Insurance Act, R.S.O. 1990, c. I.8, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 98, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, Rules of Civil Procedure, rr. 51.05, 25.07(1) and 25.09(1), Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, Housen v. Nikolaisen, 2002 SCC 33, Dupuis v. Edmonton Cellular Sales Ltd., 2006 ABCA 283, 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co., 2017 ONCA 42, Szelazek Investments Ltd. v. Orzech (1996), 44 C.P.C. (3d) 102 (Ont. C.A.), Kostruba and Sons v. Pervez, 2011 ONSC 4894, Andersen Consulting Ltd. v. Canada (Attorney General) (2001), 13 C.P.C. (5th) 251 (Ont. C.A.), Falk Bros. Industries Ltd. v. Elance Steel Fabricating Co., [1989] 2 S.C.R. 778, Kozel v. Personal Insurance Co., 2014 ONCA 130, Smith v. Sun Life Assurance Company of Canada, 2021 ONSC 7109, Klassen v. Beausoleil, 2019 ONCA 407, MacIvor v. Pitney Bowes Inc., 2018 ONCA 381

Friendly v. 1671379 Ontario Inc., 2023 ONCA 535

Keywords: Contracts, Debtor-Creditor, Security, Civil Procedure, Judgments, Enforcement, Priorities, Civil Procedure, Costs, Substantial Indemnity, Non-disclosure

Brewers Retail Inc. v. Campbell, 2023 ONCA 534

Keywords: Administrative Law, Pensions, Civil Procedure, Jurisdiction, Class Proceedings, Certification, Pension Benefits Act, R.S.O. 1990, c. P.8, Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 8, Financial Services Tribunal Act, 2017, S.O. 2017, c. 34, Sched.17, Labour Relations Act, R.S.O. 1990, c. L.2, Financial Services Commission of Ontario Act, 1997, S.O. 1999, c. 28, s. 106, Courts of Justice Act, R.S.O. 1990, c. C.43, Brewers Retail Inc. v. Ontario (CEO of FSRA), 2021 ONFST 15, Anova Inc. Employee Retirement Pension Plan (Administrator of) v. Manufacturers Life Insurance Co. (1994), 121 D.L.R. (4th) 162 (Ont. Gen. Div.)., Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, Lomas v. Rio Algom Ltd., 2010 ONCA 175, Re Dickson et al. and Richardson (1981), 32 O.R. (2d) 158 (C.A.), Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, Buschau v. Rogers Communications Inc., 2006 SCC 28, Montreal Trust Company of Canada v. Ontario (Superintendent of Financial Services), 2009 ONFST 1, Kidd v. Canada Life, 2011 ONSC 6324, 22 C.P.C. (7th) 156, Toronto District School Board v. Field, 2010 ONSC 3865, Hodge v. Neinstein, 2017 ONCA 494, Pearson v. Inco Ltd. (2006), 78 O.R. (3d) 641 (C.A.), R. v. Zolotow, 2008 ONCA 163

Short Civil Decisions

The Catalyst Capital Group Inc. v. West Face Capital Inc., 2023 ONCA 533

Keywords: Civil Procedure, Appeals, Costs, Full Indemnity, Partial Indemnity, 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 853

Numair v. Numair, 2023 ONCA 530

Keywords: Family Law, Divorce, Equalization of Net Family Property, Child Support, Spousal Support

CIVIL DECISIONS

Case v. Pattison, 2023 ONCA 529

[Roberts, Miller and Coroza JJ.A.]

COUNSEL:

C. M.K. Loopstra, K.C. and P. E.F. Martin, for the appellant

A. Mark and K. Cohen, for the respondent

Keywords: Torts, Negligence, MVA, Duty of Care, Proximity, Reasonable Foreseeability, Causation, Foreseeability, Remoteness, Intervening Acts, Liability of Public Authorities, Municipalities, Civil Procedure, Third Party Claims, Contribution and Indemnity, Summary Judgment, Municipal Act, 2001, S.O. 2001, c. 25, [Minimum Maintenance Standards for Municipal Highways, O. Reg. 239/02, s. 10(1),Cooper v. Hobart, 2001 SCC 79; Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, Hill v Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, Rankin (Rankin's Garage & Sales) v. J.J., 2018 SCC 19, Nelson (City) v. Marchi, 2021 SCC 4, Frazer v. Haukioja, 2010 ONCA 249, Clements v. Clements, 2012 SCC 32, Saadati v. Moorhead, 2017 SCC 28, Phillip v. Bablitz, 2011 ABCA 383, Price v. Milawski (1977), 18 O.R. (2d) 113 (C.A.), Athey v. Leonati, [1996] 3 S.C.R. 458, Ostash v. Sonnenberg (1968), 67 D.L.R. (2d) 311 (Alta. C.A.), Dominion Chain Co. Ltd. v. Eastern Construction Co. (1976), 12 O.R. (2d) 201 (C.A.), Ives v. Clare Bros. Ltd. et al., [1971] 1 O.R. 417 (H.C.), Dobson (Litigation Guardian of) v. Dobson, [1999] 2 S.C.R. 753, Allan M. Linden et al., Canadian Tort Law, 12th ed. (Toronto: LexisNexis Canada Inc., 2022)

FACTS:

The plaintiff was catastrophically injured as he walked across the road and was struck by the car driven by the defendant. The plaintiffs and the defendants claimed damages against the Town of Milton ("The Town") alleging inadequate street lighting because of a missing luminaire. The Town commenced a third-party claim against Milton Hydro for contribution and...