Ontario Court Of Appeal Summaries (February 5 – February 9)

Below are this week's Court of Appeal summaries. Topics included Medmal, breach of contract, and several procedural decisions.

We have summarized a criminal decision this week, R v. Blackett. The Court of Appeal set aside a guilty plea of manslaughter that came about following faulty medical opinions by Dr. Charle Smith on the cause of death.

Table of Contents

Zigomanis v. 2156775 Ontario Inc. (D'Angelo Brands), 2018 ONCA 116

Keywords: Contracts, Termination, Morals Clause

Taylor v. Workplace Safety & Insurance Board, 2018 ONCA 108

Keywords: Torts, Misfeasance in Public Office, Odhavji Estate v. Woodhouse, 2003 SCC 69, Bad Faith, Employment Law, Workplace Safety and Insurance Benefits, Civil Procedure, Striking Pleadings, Jurisdiction, Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A, s. 123, Pagourov v. Science Application International Corp., 2007 ONCA 745, Abuse of Process, No Reasonable Cause of Action

Trez Capital Limited Partnership v. Bernstein, 2018 ONCA 107

Keywords: Civil Procedure, Summary Judgment, Viva Voce Evidence, Findings of Fact, Orders, Declarations, Appeals from Orders not Reasons, Limitation Periods, Issue Estoppel

St. Amand v. Tisi, 2018 ONCA 106

Keywords: Contracts, Consensus Ad Idem, Fresh Evidence, Due Diligence

Carleton Condominium Corporation 116 v. Sennek, 2018 ONCA 118

Keywords: Civil Procedure, Vexatious Litigants, Lang Michener Lash Johnston v. Fabian (1987), 59 O.R. (2d) 353 (Ont. H.C.)

Kueber v. Royal Victoria Regional Health Centre, 2018 ONCA 125

Keywords: Torts, Negligence, Medical Malpractice, Defamation, Summary Judgement, Negligence

Lee v. McGhee, 2018 ONCA 128

Keywords: Civil Procedure, Striking Pleadings, Jurisdiction, Human Rights Code

For Short Civil Decisions click Here.

For Criminal Decisions click Here.

For Ontario Review Board Decisions click Here.

Civil Decisions

Zigomanis v. 2156775 Ontario Inc. (D'Angelo Brands), 2018 ONCA 116

[LaForme, Rouleau and Paciocco JJ.A.]

Counsel:

Gregory N. Hemsworth, for the appellant

David A. Whitten and Simone Ostrowski, for the respondent

Keywords: Contracts, Termination, Morals Clause

Facts:

In May 2011, the appellant, 2156775 Ontario Inc., carrying on business as D'Angelo Brands ("D'Angelo"), entered into a promotional contract with professional hockey player Michael Zigomanis. Mr. Zigomanis was on a two-way contract with the Toronto Maple Leafs at the time. The promotional contract provided that Mr. Zigomanis would receive periodic payments in the minimum amount of $200,000 over four years, provided he exercised unilateral extension options available to him.

The contract contained a "morals clause" which read in material part that D'Angelo could terminate the contract if the "athlete commits any act which shocks, insults, or offends the community, or which has the effect of ridiculing public morals and decency".

In February 2012, D'Angelo purported to terminate the contract. The basis for termination was the internet publication of nude photographs of Mr. Zigomanis that Mr. Zigomanis had sent his then girlfriend, prior to signing the contract. D'Angelo claimed that this event violated the morals clause and undermined Mr. Zigomanis's positive image as a "brand ambassador", depriving D'Angelo of what it had bargained for.

Mr. Zigomanis sued successfully for wrongful termination of the contract. The trial judge held that according to the terms of the contract, Mr. Zigomanis agreed to promote D'Angelo's product, not serve as a brand ambassador. The trial judge also held that the morals clause was not offended by the private transmission of nude photographs within a relationship, and that, in any event, this act occurred before the contract was entered into and the morals clause is not retrospective.

The trial judge also accepted Mr. Zigomanis's testimony that Mr. Zigomanis intended to exercise his option to continue with the contract for four years. The trial judge therefore awarded damages in the amount of $162,500, representing the outstanding periodic payments provided for over the four years of the contract.

Issues:

Did the trial judge err in finding that D'Angelo wrongfully terminated Mr. Zigomanis' contract and allowing Mr. Zigomanis to exercise his option to continue with the contract for four years?

Holding: Appeal dismissed.

Reasoning:

No. The court did not accept D'Angelo's argument that the trial judge accepted that the community was shocked by Mr. Zigomanis' conduct. The court stated that Mr. Zigomanis' understandable, subjective desire to suppress publication of the photographs and to distance himself from them was evidence only of his desire for privacy, not of the community's reaction. Furthermore, the widespread public interest that was generated by the photographs says nothing about the community reaction to Mr. Zigomanis' act in sharing those photos only with an intimate party.

Thus, the court held that the trial judge's conclusion that the community conscience would not be shocked was reasonable.

Taylor v. Workplace Safety & Insurance Board, 2018 ONCA 108

[Laskin, Huscroft and Paciocco JJ.A.]

Counsel:

P Taylor, acting in person

J-D Be'lec and J Clarke, for the respondent WSIB

A Lokan and D McKenna, for the respondent WSIAT

Keywords: Torts, Misfeasance in Public Office, Odhavji Estate v. Woodhouse, 2003 SCC 69, Bad Faith, Employment Law, Workplace Safety and Insurance Benefits, Civil Procedure, Striking Pleadings, Jurisdiction, Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A, s. 123, Pagourov v. Science Application International Corp., 2007 ONCA 745, Abuse of Process, No Reasonable Cause of Action

Facts:

In 1997, the appellant, Paul Taylor, was injured on the job while unloading a large shipment of goods from a tractor trailer. Over the last 20 years he has been litigating over his Workplace Safety & Insurance Board benefits. He has had numerous hearings before the Board, and brought various appeals before the Workplace Safety & Insurance Appeals Tribunal. Some of his claims have been accepted; some have not.

In February 2014, Taylor started an action against both the Board and the Tribunal. In his amended statement of claim, he sought "compensatory damages" of $1,710,455, broken down into various categories of benefits, as well as punitive damages of $15 million. Both the Board and the Tribunal brought motions to dismiss Taylor's claim for lack of jurisdiction and alternatively, to strike his pleadings on the ground that they disclosed no reasonable cause of action. In lengthy reasons, the motion judge granted their motions. The main basis for his decision was that Ontario's Superior Court of Justice does not have jurisdiction to grant relief against the respondents in a civil action. Relief against the Board and the Tribunal must be sought on judicial review.

Issues:

Did the motion judge err in dismissing Taylor's claim for lack of jurisdiction? Did the motion judge err either by striking Taylor's pleadings as failing to disclose a reasonable cause of action for "bad faith" or misfeasance in public office, or by refusing to grant Taylor leave to amend his statement of claim? Holding:

Appeal dismissed.

Reasoning:

The essence of Taylor's claim against the Board is that the Board treated him unfairly and denied him the benefits and treatment to which he was entitled. The essence of Taylor's complaint against the Tribunal is that the Tribunal did not treat him fairly in the hearing process, that the Tribunal's decision was wrong and should be reversed, and that the Tribunal and its members committed various torts against him. In substance, these complaints are about the decisions made and the process used by the Tribunal and Board in determining Taylor's entitlement to benefits. Section 123 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A provides that "[a]n action or decision of the Appeals Tribunal under this Act is final and is not open to question or review in a court. " In accordance with the decision in Pagourov v. Science Application International Corp., 2007 ONCA 745, an attempt to circumvent the statutory scheme for the determination of benefits by a civil action, as Taylor has attempted, amounts to an abuse of process. Thus this ground of appeal was dismissed. The motion judge struck Taylor's amended statement of claim in its entirety, as the allegations it contained did not amount to torts recognized in law. At the hearing of the motions, Taylor alleged that the bad faith conduct of the Board and Tribunal described in his amended statement of claim amounted to the tort of misfeasance in public office. On appeal, Taylor argued in substance that his amended statement of claim appropriately pleads the "tort of bad faith" and, when read generously, also discloses a cause of action for misfeasance in public office. He contends that the allegations in his pleadings make out the tort of misfeasance in public office on either of two grounds: the bad faith denial of his claims for benefits; and the improper comments and conduct of a Tribunal member. With respect to the first claim, a government official's bad faith conduct is not independently actionable. The law does not recognize a stand-alone action for bad faith.

With respect to the second claim, the motion judge was correct to hold that Taylor's amended statement of claim does not assert a cause of action for the tort of misfeasance in...