Ontario Court Of Appeal Summaries (February 11 – 15, 2019)

Good evening.

Following are the summaries for this week's civil decisions of the Court of Appeal for Ontario. There were only three substantive decisions.

Topics covered this week included wills and estates (capacity and undue influence), insurance coverage in the MVA context where there was a question of intentional acts as opposed to mere negligence, and the familiar issue of whether an order is final or interlocutory for appeal purposes.

Finally, my partner, Lea Nebel, and I invite you to our third annual Top Appeals CLE, which will take place at the OBA, 20 Toronto Street, Toronto, on Monday, February 25. It is a three hour dinner program beginning at 5pm, which will also be available by live webcast for those who cannot attend in person.

Eliot Kolers, David Thompson and Katherine Di Tomaso will be our panelists on the first set of cases: Gillham v Lake of Bays and Mega International v Yung, and other decisions dealing with discoverability, appropriate means, and discoverability as it relates to claims for contribution and indemnity.

Tim Danson, Mark Wiffen and Peter Downard will discuss Platnick v Bent, Pointes Protection Association and the "Anti-SLAPP Sextet".

Last, but certainly not least, Glenn Chu of the City of Toronto, Yashoda Ranganathan of MAG and Donald Eady will discuss the high-profile, real-time, high-stakes constitutional litigation that was the City of Toronto v Attorney-General (reduction of wards from 47 to 25).

The full program agenda can be found here. Please join us for what promises to be a very interesting evening.

Wishing everyone an enjoyable family day long weekend.

John Polyzogopoulos Blaney McMurtry LLP 416.593.2953 Email

CIVIL DECISIONS

Brunning v. Fontaine, 2019 ONCA 98

[Feldman, Lauwers and Nordheimer JJ.A.]

Counsel:

C. Coughlan and Brent Thompson, for the moving party

L. Greenspon, for the responding party

Keywords: Civil Procedure, Appeals, Jurisdiction, Orders, Costs, Recusal, Reasonable Apprehension of Bias, Final or Interlocutory Order, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(1)(b) and s. 19(1)(b), Hendrickson v. Kallio, [1932] O.R. 675 (C.A.), Catford v. Catford, 2013 ONCA 56, Brunning v. Canada (Attorney General), 2018 ONCA 1009

FActs:

On January 4, 2018, the motion judge released reasons addressing various issues raised in a Request for Directions brought by the responding party on behalf of her client. The decision went largely, but not entirely, against the responding party's client.

On January 15, 2018, the motion judge issued a Direction addressing the contents of various emails sent by the responding party to the court in which she expressed, in part, her disagreement with the January 4 decision: Fontaine v. Canada (Attorney General), 2018 ONSC 357 (the "January 15 Direction"). The motion judge then invited costs submissions with respect to the January 4 decision. The moving party submitted that costs should be paid personally by the responding party.

The responding party asked the motion judge to recuse himself from the determination of the costs issue on the basis that there was a reasonable apprehension of bias arising from some comments that the motion judge had made respecting the responding party in the course of his reasons that led to the January 15 Direction. The motion judge refused to recuse himself and proceeded to deal with the costs. In doing so, he ordered the responding party to pay costs personally in the amount of $25,000.

The moving party contends that the recusal order is an interlocutory order and therefore any appeal lies to the Divisional Court with leave. It therefore seeks to quash the appeal for want of jurisdiction. The responding party contends that the recusal order is final as it finally decides that the motion judge would decide the costs issue.

Issues:

(1) Is the recusal order an interlocutory order or a final order?

Holding:

Motion granted.

REasoning:

(1) The recusal order is an interlocutory order. The appeal was therefore quashed. The recusal order did not finally determine any substantive rights of the parties, nor did it determine a substantive claim or defence in the matter before the court. Thus, it was an interlocutory order that may only be appealed to the Divisional Court, with leave.

The only substantive issue was whether the responding party must personally pay the costs of the January 15 Direction. That issue was separately...