Ontario Court Of Appeal Summaries (May 2-6, 2016)

Hello everyone,

The Court of Appeal had a busy week and released a number of civil decisions, many of which were procedural in nature - extension of time, leave to appeal, limitation periods, Rule 21. One of these procedural decisions was in the Nortel case, in which the court denied leave to appeal Justice Newbould's trial decision, apparently bringing the matter substantially closer to a conclusion.

Have a nice weekend.

CIVIL DECISIONS

Brown v Baum, 2016 ONCA 325

[Weiler, LaForme and Huscroft JJ.A.]

Counsel:

Cynthia B. Kuehl and Stuart Zacharias, for the appellant Osborne G. Barnwell and Maxine Palomino, for the respondent

Keywords: Torts, Professional Negligence, Medical Malpractice, Informed Consent, Limitation Period, Discoverability, Summary Judgment

Facts:

The respondent, Diana Brown suffered severe complications following her breast reduction surgery, which was performed by the appellant, Dr. Joseph Baum, on March 25, 2009. Ms. Brown brought an action against Dr. Baum alleging lack of informed consent on June 4, 2012, over three years after the initial surgery, but within two years when Dr. Baum last treated her to correct the original problems. In her statement of claim, Ms. Brown alleged that Dr. Baum did not inform her of the risks or possible outcomes of undergoing breast surgery, and, in particular, of the risks that her obesity and smoking could pose.

Over a 13-month period from May 6, 2009 to June 16, 2010, Dr. Baum performed a series of surgeries to improve the outcome of the initial surgery that was performed in March, 2009. Dr. Baum was unsuccessful on his summary judgment motion to dismiss the action as statute-barred under the Limitations Act, 2002. The motion judge found that as of July 2009, Ms. Brown knew she had suffered an injury that was caused or contributed to by an act or omission of Dr. Baum and therefore she met the first three branches of the discoverability test, as set out in s. 5(1)(a)(i-iii) of the at that date. However, because Dr. Baum continued to treat Ms. Brown to ameliorate her complications, the motion judge found that the fourth branch, s. 5(1)(a)(iv), was not met because Ms. Brown did not know that "a proceeding would be an appropriate means to seek to remedy" the injury, loss or damage she had suffered. The limitation period did not commence until June 16, 2010, the date of Ms. Brown's last ameliorative surgery by Dr. Baum. As a result, Ms. Brown's statement of claim issued on June 4, 2012, was issued within the limitation period.

Issue: Did the motion judge err in law in his application of s. 5(1)(a)(iv) of the Limitations Act, 2002 to the facts of this case?

Holding: Appeal dismissed.

Reasoning:

No. The court agreed with the motion judge that the fourth condition of discoverability under the Act is met at the point when the claimant not only knows the factual circumstances of the loss she has suffered, but also knows that "having regard to the nature of the injury, loss or damage", an action is an appropriate remedy. Once she knows that, she has two years to initiate that action. Further, the court was satisfied that the test in s. 5(1)(b) was met. A reasonable person in Ms. Brown's circumstances would not consider it legally appropriate to sue her doctor while he was in the process of correcting his error and hopefully correcting or at least reducing her damage. Where the damages are minimized, the need for an action may be obviated.

The court found that the motion judge made no error in his approach to this issue. He considered the relevant case law and applied it to the facts. He was entitled to find that Ms. Brown did not know that it was appropriate to sue Dr. Baum until after the last surgery he performed to try to correct the complications and improve the outcome of the original surgery. The court agreed with the motion judge's observations, that it is not simply an ongoing treatment relationship that will prevent the discovery of the claim under s. 5. However, in this case, it was the fact that the doctor was engaging in good faith efforts to remediate the damage and improve the outcome of the initial surgery.

Gomez v. McHale, 2016 ONCA 318

[Feldman, Lauwers and Benotto JJ.A.]

Counsel:

Elliot Birnboim, for the appellant Colin Still, for the respondent

Keywords: Family Law, Equalization of Net Family Property, Unequal Division of Property, Family Law Act, s. 5(6)

Facts:

The appeal arose from motions for summary judgment brought by both parties. The appellant wife sought a judgment for equalization of net family property ($268,000) or, alternatively, for four-fifths of that amount ($214,000). The respondent husband sought judgment dismissing the plaintiff's clam for an equal or unequal division of net family property.

The parties began dating in July 2007. The appellant moved into the respondent's home, which is the sole property in issue on the claim for division of family property, in September 2009. The parties married in June 2013. They separated in February 2014. The appellant contended that the entire 2007-2014 period needed to be considered as the period of cohabitation. However, counsel for the appellant invited the court to ignore the 2007-2009 period and rely on the dates of cohabitation not in dispute, 2009-2014.

As the parties cohabited for less than five years, s. 5(6) of the Family Law Act ("FLA") was considered, whereby the court may award a spouse an amount that is more or less than half the difference between the net family properties if equalizing the net family properties would be unconscionable having regard to the fact that the amount a spouse would otherwise receive under the FLA would be disproportionately large in relation to a period of cohabitation that is less than five years. The motion judge granted the appellant an equalization payment of $60,000.

Issues:

(1) Did the motion judge fail to consider the parameters of the motions before him as defined by the parties' Notices of Motion, thereby offending the audi alterem partem rule?

(2) Did the motion judge err by granting judgment on a final basis rather than a partial basis to enable the issues to be heard fully on the merits?

(3) Did the motion judge grant an unequal division of family property on an arbitrary basis?

Holding: Appeal dismissed.

Reasoning:

(1) No. The motion judge was entitled to consider all the evidence and then apply the relevant statutory provision, s. 5(6) of the FLA, and determine both whether an unequal division was appropriate and, if so, the quantum of the unequal division. He was not limited to choosing one of the two amounts proposed by the appellant and, if he was inclined to reject both those amounts, obligated to refer the question of quantum on to a trial.

(2) No. The court found this submission was merely a reformulation of the first issue. The response was, again, that the appellant brought a motion for summary judgment. The motion judge heard and determined it. He was not limited to choosing one of the appellant's alternative positions.

(3) No. The court did not accept the appellant's submission that the motion judge erred by not following a mathematical formula for calculating the unequal division of net family property. He looked carefully at the backgrounds of both parties, determined that an equal division would be "unconscionable", and fixed what he regarded as a reasonable figure. The court saw no error in the motion judge's approach.

With regard to the appellant's submission that there was an error in the motion judge's statement about her submission about an unequal division, the court found the submission was speculative. There was no language in the motion judge's reasons between his statement about the appellant's position and his ultimate conclusion about quantum to suggest that he linked these numbers in a formulaic way. The court found the factors cited by the motion judge supported the final amount of equalization at $60,000.

Hussain v. Sarafian, 2016 ONCA 322

[Doherty, MacPherson and Miller J.A.]

Counsel:

Alamgir Hussain, acting in person Amanda Gibson, for the respondents

Keywords: Civil Procedure, Offers to Settle, Acceptance, Withdrawal

Facts:

The appellant wrote to counsel for the settlement respondents making an offer to withdraw his claim against them. The appellant later emailed counsel for the settlement respondents stating "Please schedule dates for the Discovery and Mediation." Afterwards, counsel for the settlement respondents wrote to the appellant advising that her clients accepted the offer to settle and stated that she would send a draft "full and final release".

Having received the draft release, the appellant advised that he required a letter of apology from the respondents. Counsel for the settlement respondents replied that this was not a term of the settlement and, thereafter, the appellant took the position that he had rescinded the offer to settle.

The motion judge found that the settlement offer was an offer to consent to the dismissal of the action as against the settlement respondents, and not simply an offer to withdraw. Moreover, there was no additional requirement for an apology. The appellant's email did not constitute a withdrawal of the offer, and withdrawals must be clear and unequivocal. The motion judge enforced the settlement.

Issues: Did the motion judge err in finding that the settlement offer was an offer to consent to the dismissal of the action as against the settlement respondents?

Holding: Appeal Dismissed.

Reasoning:

No. The appellant challenged the motion judge's findings that: (1) the settlement offer was for the dismissal of the action as against the settlement respondents, and not just to withdraw the claim; (2) the offer was not withdrawn prior to its acceptance; and (3) the settlement is binding on the appellant. Instead, the Court held that these findings were supported by the evidentiary record, were entitled to deference, and that there was no basis upon which it...