Ontario Court Of Appeal Summaries (May 29 – June 2, 2017)

Good afternoon,

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

There were a couple of noteworthy cases which may interest those interested in personal injury and class action law.

In Letestu Estate v. Ritlyn Investments Limited, the Court overturned the lower court's decision that the estate of a deceased tenant had 1 year to sue the landlord of the tenant. The estate claimed that the deceased had tripped on a "worn, torn and unsecured carpet" in his living room and fell, resulting in personal injury (prior to his death). The motion judge dismissed the estate's action, after concluding the claim fell within the exclusive jurisdiction of the Landlord and Tenant Board over the subject matter, and was outside the 1 year limitation period prescribed under the Residential Tenancies Act. The Court of Appeal found that the Superior Court had jurisdiction and the 2 year limitation period under the Limitations Act applied.

In Wellman v. TELUS Communications Company, the motions judge certified a class action to include both consumers and non-consumers (business customers) and refused Telus' motion to stay the claims of non-consumers which it argued were claims subject to a mandatory arbitration clause contained in Telus' contracts. The motions judge applied section 7(5) of the Arbitration Act and the decision of the Court of Appeal in Griffin v. Dell Canada Inc., in refusing to grant a partial stay. The issue on appeal was whether the Court's analysis in Griffin had been overtaken by the analysis mandated in the Supreme Court of Canada's decision in Seidel v. TELUS Communications Inc. The Court ultimately affirmed that Griffin remains good law in respect of class proceedings commenced in Ontario.

Other topics covered include competing claims for relief relating to an easement, vicarious liability of a taxi company (employer) for wrongful acts of a taxi driver (employee) and Criminal Code s. 490 applications (return of items seized by the police).

Have a great weekend.

CIVIL DECISIONS

Letestu Estate v. Ritlyn Investments Ltd., 2017 ONCA 442

[LaForme, van Rensburg and Huscroft JJ.A.]

Counsel:

B.A. Percival Q.C., D. Zacks and J.P. McCoy, for the appellant

K.J. Raddatz and K.C. Dickson, for the respondent

Keywords: Torts, Negligence, Slip and Fall, Residential Tenancies, Estates, Residential Tenancies Act, 2006, S.O. 2006, c.17, Limitation Periods, Limitations Act, 2002, S.O. 2002, c. 24, Sch. B., Trustee Act, R.S.O. 1990, c. T.23 Efrach v. Cherishome Living, 2015 ONSC 472

Facts:

In December 2011 the appellant estate commenced an action for damages for injuries the deceased suffered when he allegedly slipped and fell over a damaged carpet in his residential rental unit. The action claimed $500,000 in damages from the respondent, the owner, and manager of the apartment building. The appellant estate commenced the action 23 months after the alleged slip and fall. The respondent, on the eve of trial, moved under Rule 21 of the Rules of Civil Procedure to strike the claim on the basis the Superior Court had no jurisdiction to hear the claim.

The motion judge dismissed the estate's action, after concluding that the claim fell within the exclusive jurisdiction of the Landlord and Tenant Board (the "Board"), and was outside the one-year limitation period prescribed under s. 29(2) of the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (the "Act"). The estate appealed the motion judge's decision.

Issues:

(1) Did the motion judge err in determining that the Superior Court lacks jurisdiction over the action?

(2) Did the motion judge err in determining that the action is statute-barred?

Holding: Appeal allowed.

Reasoning:

(1) The Superior Court Has Jurisdiction over the Claim

Yes. A plain reading of the four relevant provisions of the Act demonstrates the Act does not grant the Board exclusive jurisdiction over all claims of non-repair against a landlord:

Section 29(1) of the Act provides for a tenant or former tenant of a rental unit to apply to the Board for a variety of orders, including that the landlord breached an obligation under s. 20(1) (the landlord's duty to repair).

Section 168(2) provides that the Board "has exclusive jurisdiction to determine all applications under the Act and with respect to all matters in which jurisdiction is conferred on it by this Act."

Section 207(1) provides that the Board may, "where it otherwise has the jurisdiction, order the payment to any given person of an amount of money up to the greater of $10,000 and the monetary jurisdiction of the Small Claims Court ($25,000)."

Section 207(2) of the Act, provides that "a person entitled to apply under the Act but whose claim exceeds the Board's monetary jurisdiction may commence a proceeding in [court] for an order requiring payment of that sum and...the court may exercise any power that the Board could have exercised if the proceeding had been before the Board and within its monetary jurisdiction".

The Act does not grant the Board exclusive jurisdiction over all claims of non-repair against a landlord. Rather, the Board has jurisdiction over a tenant's or former tenant's claim for damages (as well as other claims within the Board's authority) where the "essential character of the claim" is for non-repair and within its monetary jurisdiction.

Per s. 207(2) of the Act, the Court of Appeal held that since the estate claimed damages exceeding the monetary jurisdiction of the Small Claims Court, and therefore exceeded the jurisdiction of the Board, the appellants were entitled to commence their proceeding in the Superior Court. Furthermore, through the operation of section 207(2), the court would be able to make any order the Board could have made in addition to any relief it could grant in a court proceeding.

(2) The Limitation Period for Applications to the Board Does Not Apply

Yes. The motion judge concluded that, although the estate's claim exceeded the monetary jurisdiction of the Board, the action had to be commenced within the one-year limitation period for applications to the Board under the Act (s. 29(2)) before the court could assume jurisdiction. In reaching this conclusion, the motion judge applied the decision in Efrach v. Cherishome Living, 2015 ONSC 472, [2015] O.J. No. 293 (Div. Ct.), where the court reasoned that after the expiry of the one-year limitation period for making a claim to the Board, the claim could not be transferred to the Superior Court since that court can only exercise powers that the Board could have exercised if the proceeding had been before the Board.

The Court of Appeal expressed no opinion on the result in Efrach, but disagreed with the conclusion that the one-year limitation period for applications to the Board applied. The Court of Appeal reasoned that there is no basis for importing the limitation period prescribed by the Act for applications to the Board into an action of this kind. The limitation of actions is governed by the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B. Section 19 of the Limitations Act, 2002 lists the limitation periods, (including section 38(3) of the Trustee Act, R.S.O. 1990, c. T.23), which requires a tort action by an estate to be commenced within two years of the deceased's death. The schedule in section 19 of the Limitations Act was applicable in this case.

Since the appellant commenced the action within two years of the deceased's death (and within two years of the alleged slip and fall), the action is not barred by the limitation period. Accordingly, the appeal was allowed, the Superior Court has jurisdiction over the action.

Wellman v. TELUS Communications Co., 2017 ONCA 433

[Weiler, Blair and van Rensburg JJ.A.]

Counsel:

G.L.R. Ranking and A. Borrell, for the appellant

J.P. Rochon, P. Jervis, L. Fenech and E. Karp, for the respondent

Keywords: Class Actions, Consumer Contracts, Arbitration Clauses, Enforceability, Consumer Protection Act, 2002, S.O. 2002, c.30, Sched. A, Arbitration Act, 1991, S.O. 1991, c. 17, Griffin v. Dell Canada Inc., 2010 ONCA 29, 98 O.R. (3d) 481, Seidel v. TELUS Communications Inc., 2011 SCC 15, [2011] 1 S.C.R. 531

Facts:

Consumers and business customers brought claims against TELUS that became the subject of class proceedings. Accordingly, one motion before the judge was to certify class proceedings. Wellman, the representative plaintiff, claimed that TELUS overcharged customers during the class period by rounding up calls to the next minute without disclosing this practice.

TELUS's contracts contained standard terms and conditions, including a mandatory arbitration clause. TELUS conceded that s. 7(2) of the Consumer Protection Act enabled consumer claims to proceed to court notwithstanding any arbitration clause. It submitted, however, that the claims of business customers were governed by the mandatory arbitration clause, in accordance with s. 7(5) of the Arbitration Act, and therefore ought to be stayed. TELUS moved for a partial stay of proceedings with respect to the claims of the business customers.

The motion judge refused to stay the business customer claims, relying on the authority of the Ontario Court of Appeal in Griffin. There, the Court refused to grant a partial stay of non-consumer claims on the basis of s. 7(5) of the Arbitration Act, which gives the court discretion to determine whether it is reasonable to separate the matters dealt with in an arbitration agreement from the other matters in the litigation. The motion judge concluded that it was not reasonable to separate the matters. She accordingly certified the class, including the business customers.

TELUS initially appealed to the Court of Appeal to reconsider the Court's decision in Griffin, which was rejected. TELUS subsequently appealed the motion judge's ruling in this case, arguing that Griffin has been superseded or modified by the Supreme Court's decision in Seidel, and that applying the reasoning in Seidel, a...