Ontario Court Of Appeal Summaries (July 17 – 21, 2017)

Good afternoon,

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

In Rainy River (Town) v. Olsen, the mayor of the town was unsuccessful, both in the court below and in the Court of Appeal, in getting an injunction against the respondent preventing him from defaming and harassing the mayor and other court staff. No finding of defamation was made, and therefore no injunction order restraining defamation could be made.

In Duff v. James, a family law decision, the Court held that the application judge in this case had the authority to impose obligations on the OPP to enforce a child custody order where the father was a member of the local police force and an inherent conflict of interest arose if his colleagues on the local force were asked to enforce the order.

Other topics covered include costs in guardianship matters, vexatious litigants, and MVA.

Have a great weekend.

Table of Contents

Civil Decisions

Rainy River (Town) v. Olsen, 2017 ONCA 605

Keywords: Torts, Defamation, Employment Law, Occupational Health and Safety, Occupational Health and Safety Act, R.S.O. 1990, c. O.1, Remedies, Injunctions

Duff v. James, 2017 ONCA 606

Keywords: Family Law, Custody and Access, Orders, Enforcement, Police, Children's Law Reform Act, R.S.O. 1990, c. C. 12, ss. 12 & 36(2), Police Services Act, s. 9(2)

D'Ascenzo v. Nichols, 2017 ONCA 604

Keywords: Contracts, Damages, Restitution, Pre-judgment Interest, Post-judgment Interest, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 128 and 129

Ontario (Attorney General) v. Reyes, 2017 ONCA 613

Keywords: Civil Procedure, Vexatious Litigants, Stay of Order, Courts of Justice Act, R.S.O. 1990, c. C.43, Rules of Civil Procedure, Kallaba v. Bylykbashi (2006), 265 D.L.R. (4th) 320 (Ont. C.A.)

Jaffer v. Pardhan, 2017 ONCA 612

Keywords: Torts, Negligence, MVA, Statutory Liability, Owners, Underinsured Motorists, Highway Traffic Act, s. 192(2), Fresh Evidence

Childs v. Childs, 2017 ONCA 608

For Criminal Decisions, click here.

Civil Decisions

Rainy River (Town) v. Olsen, 2017 ONCA 605

[Sharpe, Lauwers and Roberts JJ.A.]

Counsel:

A.D. McKitrick, for the appellant

No one appearing for the respondent

Keywords: Torts, Defamation, Employment Law, Occupational Health and Safety, Occupational Health and Safety Act, R.S.O. 1990, c. O.1, Remedies, Injunctions

Facts:

The Town of Rainy River and its mayor, Deborah Ewald, brought an application to stop the respondent, Paul Olsen, from continuing to harass and defame the mayor, members of Town council, and staff. The application was brought under R. 14.05(3)(h) of the Rules of Civil Procedure. There were no facts in dispute since Mr. Olsen declined to participate and the only evidence before the application judge was provided by representatives of the Town. However, the application judge refused to grant any of the relief sought.

Issues:

(1) Did the application judge err in refusing to issue a declaration that Mr. Olsen's conduct breached the Town's "Violence Free in the Workplace Policy" and the "Harassment Policy" under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (the "Act"), on the basis that the Town has a duty to protect its workers under the terms of the Act?

(2) Did the application judge err in refusing to issue a permanent injunction restraining Mr. Olsen from making "in any manner whatsoever directly or indirectly, any statements or comments about Deborah Ewald or any other town councillor, employee or agent that are defamatory and/or made with malice or ill-will"?

(3) Did the application judge err in not addressing the appellant's order that sought to restrain Mr. Olsen from maintaining or purporting to maintain, without permission or authority from the Town, any Town property, including any municipal streets, sidewalks and road allowances?

Holding: Appeal allowed, in part.

Reasoning:

(1) No. The application judge held that neither the Act nor the Town's policy under it had any application to Mr. Olsen, since the harassment occurred outside the workplace and Mr. Olsen was not a worker or co-worker as defined by the Act. The Court of Appeal saw no error in this determination.

(2) No. The application judge pointed out that a permanent injunction would have been appropriate if there had been a verdict of defamation or a final judgment in defamation: Astley v. Verdun, 2011 ONSC 3651 at para 21.

However, such injunctions are not at large, as the appellants sought in this case, but are invariably linked to a finding that defamation has occurred: Barrick Gold Corp. v. Lopehandia (2004), 71 O.R. (3d) 416 (C.A.), at para 78; Astley, at para 35; Ottawa-Carleton District School Board v. Scharf, [2007] O.J. No. 3030 (S.C.), at para 30, aff'd 2008 ONCA 154, leave to appeal ref'd, [2008] S.C.C.A. No. 285.

A broad ongoing injunction is an extraordinary remedy which should be used sparingly: St. Lewis v. Rancort, 2015 ONCA 513 at para 16, leave to appeal ref'd, [2015] S.C.C.A. No. 407, The appellants did not seek a declaration that Mr. Olsen had defamed the mayor or anyone else, and the application judge did not make such a finding. Therefore, the Court of Appeal saw no error in the application judge's refusal to issue a permanent injunction regarding defamatory speech.

(3) Yes. The evidence justified this relief and the application judge erred in not addressing it directly.

Duff v. James, 2017 ONCA 606

[Sharpe, Lauwers and Miller JJ.A.]

Counsel:

V. Torrance, for the appellant/respondent, Waterloo Regional Police Service

3. Diana and L. Donnelly, for the appellant/respondent, Ontario Provincial Police

   No one appearing for the respondents, Shirley Diana Duff and Mark Alexander James

19. Dewart and M. Thomarat, appearing as amicus curiae

    Keywords: Family Law, Custody and Access, Orders, Enforcement, Police, Children's Law Reform Act, R.S.O. 1990, c. C. 12, ss. 12 & 36(2), Police Services Act, s. 9(2)

    Fac...