Ontario Court Of Appeal Summaries (April 24-28, 2017)

Following are the summaries for this week's civil decisions of the Court of Appeal for Ontario.

One decision of note relaxing the commencement of a limitation period for professional negligence is Presidential MSH Corporation v. Marr Foster & Co. LLP. In this case, the respondent accountants filed the appellant's tax returns after their due date, incurring damages in unpaid taxes, interest and penalties to the CRA. The appellant sued more than two years after the CRA's decision to impose the penalties. The appellant's case was dismissed at first instance given the expiry of the limitation period. The court allowed the appellant's appeal, finding that the accountants' efforts to mitigate their client's damages in the year following the CRA's assessment tolled the limitation period.

Table of Contents

Wallace (Re), 2017 ONCA 342

Keywords: Endorsement, Bankruptcy and Insolvency, Power of Attorney, Contempt, Prescott-Russell Services for Children and Adults v. G. (N.)

Chernet v. RBC General Insurance Company, 2017 ONCA 337

Keywords: Summary Judgment, Motor Vehicle Accident, Rear-end Collision, Burden of Proof, Judicial Notice of scientific and technical matters

Presidential MSH Corporation v. Marr Foster & Co. LLP, 2017 ONCA 325

Keywords: Summary Judgment, Limitation Period, Discoverability, Section 5 of the Limitations Act, 2002, "Appropriate Means", Brown v. Baum, Volochay v. College of Massage Therapists of Ontario

Todd Family Holdings Inc. v. Gardiner, 2017 ONCA 326

Keywords: Tort Law, Deceit, Fraudulent Misrepresentation, Intellectual Property, Share Purchase, Ownership, Control

Ranieri v Nagari, 2017 ONCA 336

Keywords: Healthcare Consent Act, Consent and Capacity Board, Capacity to Consent to Treatment, New Issues on Appeal, Fresh Evidence on Appeal

Roberts v. Zoomermedia Limited, 2017 ONCA 327

Keywords: Employment, Summary Judgment, Severance, Termination Clause, Employment Standards Act, s. 61(1)

Abernethy v. Ontario, 2017 ONCA 340

Keywords: No Reasonable Cause of Action, Rule 21.02(1)(b) of the Rules of Civil Procedure, Frivolous and Vexatious Claims, Rule 25.11 of the Rules of Civil Procedure, Crown Immunity, Jones v. Tsige, Judicial Bias, S. L. v. Marson

J.K. v. Ontario, 2017 ONCA 332

Keywords: Endorsement, Motion to Quash Appeal, Interlocutory Order, Class Action, Youth Records

For Civil Endorsements, click here.

For Criminal Decisions, click here.

Civil Decisions:

Wallace (Re), 2017 ONCA 342

[Blair, Lauwers and Hourigan JJ.A.]

Counsel:

S. Zeitz, for the appellant, Brief & Associates Inc.

C. Dockrill, for the respondent, Alma Maria Wallace

Keywords: Endorsement, Bankruptcy and Insolvency, Power of Attorney, Contempt, Prescott-Russell Services for Children and Adults v. G. (N.)

Facts:

The Bankrupt, Alma Maria Wallace (aka Alma Maria Belacic), was required by order of Pattillo J. dated April 8, 2015 to execute a power of attorney with respect to her interest in a property in Croatia, which would enable the Trustee in Bankruptcy, Brief & Associates Inc., to complete a sale of the property. The Bankrupt did not appeal or seek a variation of that order and it remains in effect. However, the Bankrupt subsequently refused to execute the power of attorney.

Instead of determining whether the Bankrupt was in contempt, because doing so would serve no practical purpose, the bankruptcy judge made an order granting the Trustee authority to sign the power of attorney on behalf of the Bankrupt in the form tendered by the Trustee, with one change: she redacted the last sentence that would have enabled the Trustee to assign its powers to a third party in Croatia. She ordered, nonetheless, that if it became necessary to transfer the power of attorney to Croatian counsel to facilitate the sale process, the Trustee could return to court to seek that relief.

The Trustee appealed, not with respect to the main substance of the order, but with respect to the motion judge's refusal to make a finding of contempt and with respect to the redaction of the last sentence of the power of attorney.

Issue:

(1) Did the bankruptcy judge err by failing to find the Bankrupt in contempt?

Holding:

Appeal dismissed.

Reasoning:

(1) No. the Court of Appeal saw no basis for interfering with the bankruptcy judge's decision. She made an order in relation to the power of attorney that on the record matched the Trustee's request for an effective power of attorney. There was no evidence before the court that the power of attorney with the judge's redaction was insufficient to accomplish its goal of permitting the Trustee to realize the bankrupt's Croatian assets.

Even if circumstances met the three-stage test for contempt as set out in such authorities as Prescott-Russell Services for Children and Adults v. G. (N.) (2006), 82 O.R. (3d) 686 (C.A.), courts have long recognized the need to exercise caution prior to making a contempt order and making such an order is discretionary. The motion judge made a discretionary decision carving out instead an order that met the practical needs of the situation. She made no error in doing so.

Chernet v. RBC General Insurance Company, 2017 ONCA 337

[Strathy C.J.O., Gillese and Pardu JJ.A.]

Counsel:

M. Zatovkanuk, for the appellant

C. Kleinman, for the respondents Gregorio V. Galaites and Galites Gounell Zamora

Keywords: Summary Judgment, Motor Vehicle Accident, Rear-end Collision, Burden of Proof, Judicial Notice of scientific and technical matters

Facts:

The appellant appeals an order granting summary judgment dismissing his claim for damages arising from a motor vehicle accident. The appellant asserts that the motion judge erred: (a) by improperly taking judicial notice of scientific and technical matters in determining how the accident occurred and by failing to give the parties an opportunity to respond to his conclusions; (b) by misapprehending the evidence; and (c) by concluding that there was no genuine issue requiring a trial.

Issues:

(1) Did the motion judge err by improperly taking judicial notice of scientific and technical matters in determining how the accident occurred and by failing to give the parties an opportunity to respond to his conclusions?

(2) Did the motion judge err by misapprehending the evidence?

(3) Did the motion judge err by concluding that there was no genuine issue requiring a trial?

Holding:

Appeal dismissed.

Reasoning:

(1)The motion judge did not err in taking judicial notice. The motion judge did not improperly take judicial notice of matters that should have been the subject of expert evidence. He was simply drawing reasonable inferences from the uncontested facts. The damages to the respondents' car were in the middle of the back and there was no damage to either car to suggest that the appellant's car was sideswiped or cut off. Nor was there evidence of tire marks to suggest that one vehicle suddenly swerved in front of the other or that either vehicle came to a sudden stop. The inferences he drew were reasonable and refuted the appellant's theory of how the accident occurred.

The motion judge was not required to advise the parties of the inferences he drew from these unchallenged facts. He was entitled to conclude that this evidence supported the evidence of the respondents and was inconsistent with the evidence of the appellant.

(2)The motion judge did not misapprehend the evidence. The appellant acknowledged that as the rear-ending party in a rear-end collision, he bears the onus of satisfying the court that the collision did not arise due to his negligence. The appellant gave conflicting explanations for how the accident occurred. His assertion that the respondents suddenly swerved in front of him and stopped was inconsistent with the physical evidence and with the respondents' evidence, which the trial judge accepted. The Court disagreed that there was inconsistency in the respondents' evidence or that the respondent driver admitted to having changed lanes prior to the accident. The Court also rejected the appellant's pure speculation about how the accident might have happened.

(3)The motion judge did not err by concluding that there was no genuine issue requiring a trial. The appellant failed to demonstrate either an extricable error in principle or a palpable and overriding error in the motion judge's assessment of the evidence. The motion judge's conclusion that there was no genuine issue for trial is entitled to deference.

Presidential MSH Corporation v. Marr Foster & Co. LLP, 2017 ONCA 325

[Cronk, van Rensburg and Pardu JJ.A.]

A. Sternberg and D. Murynka, for the appellant

M. E. Girard, for the respondents

Keywords: Summary Judgment, Limitation Period, Discoverability, Section 5 of the Limitations Act, 2002, "Appropriate Means", Brown v. Baum, Volochay v. College of Massage Therapists of Ontario.

Facts: The appellant, Presidential MSH Corporation, appealed from summary judgment dismissing its action against the respondents, its former accountant Himmelfarb, and his firm, Marr, Foster & Co. LLP. The respondents filed the appellant's corporate tax returns after their due date. As a result, the CRA denied tax credits that would have been available had the returns been filed on time. The appellant suffered damages of approximately $550,000...