Ontario Court Of Appeal Summaries (February 18 – 22, 2019)

Good evening.

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

Most notably, the Court of Appeal once again addressed the new anti-SLAPP legislation in United Soils Management Ltd. v. Mohammed ("United Soils"). In United Soils, the appellant brought actions against two respondents for libel after the respondents posted comments on a Facebook group regarding the appellant's excavation and dumping operations. The respondents were successful in having the suits dismissed by way of motion under the anti-SLAPP provisions of section 137.1 of the Courts of Justice Act. The Court of Appeal dismissed the appeal, and clarified that the anti-SLAPP legislation does not provide for the award of punitive damages against a plaintiff when an action is dismissed under section 137.1.

Other topics covered this week included the duty of care in a tragic personal injury context, damages for wrongful dismissal and legal non-conforming uses under the Planning Act.

Have a nice weekend.

John Polyzogopoulos Blaney McMurtry LLP 416.593.2953 Email

Table of Contents

Civil Decisions

Ruston v. Keddco MFG (2011) Ltd., 2019 ONCA 125

Keywords: Employment Law, Wrongful Dismissal, Notice Period, Aggravated Damages, Punitive Damages, Singer v Nordstrong Equipment Limited, 2018 ONCA 364, Bardal v Globe & Mail (1960), 24 DLR (2d) 140 (HC), Wallace v United Corn Growers Ltd, [1997] 3 SCR 701, Honda v Keays, 2008 SCC 39, Doyle v Zochem, 2017 ONCA 130, Pate Estate v Galway-Cavendish and Harvey (Township), 2013 ONCA 669

Bonello v. Gores Landing Marina (1986) Limited, 2019 ONCA 127

Keywords: Torts, Negligence, Duty of Care, Proximity, Foreseeability, Occupier's Liability, Anns v. Merton London Borough Council, [1978] AC 728 (UKHL); Cooper v. Hobart, 2001 SCC 79, Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, Rankin (Rankin's Garage & Sales) v. J.J., 2018 SCC 19, Childs v. Desormeaux, 2006 SCC 18, Bonello v. Gores Landing Marina (1986) Limited, 2017 ONCA 632, Occupiers' Liability Act, RSO 1990 c O2

United Soils Management Ltd. v. Mohammed, 2019 ONCA 128

Keywords: Torts, Defamation, Libel, Civil Procedure, Anti-SLAPP, , Freedom of Expression, Public Interest, Damages, Punitive Damages, Costs, Full Indemnity Costs, Proportionality, Reasonableness, Courts of Justice Act, RSO 1990, c C.43, s 137.1, 1704604 Ontario Ltd v. Pointes Protection Association, 2018 ONCA 685, Able Translations Ltd. v. Express International Translations Inc, 2018 ONCA 690, Fortress Real Developments Inc. v. Rabidoux, 2018 ONCA 686, Brad-Jay Investments Ltd v. Szijjarto (2006), 2018 OAC 315 (CA), Sawdon Estate v. Watch Tower Bible and Tract Society of Canada, 2014 ONCA 101, Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 OR (3d) 291 (CA)

Cobalt (Town) v. Coleman (Township), 2019 ONCA 134

Keywords: Municipal Law, Land Use Planning, Zoning By-Laws, Permitted Uses, Legal Non-Conforming Uses, Civil Procedure, Costs, Saint-Romuald (City) v. Olivier, 2001 SCC 57, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, Planning Act, R.S.O. 1990, c. P.13, s. 34(9)

Short Civil Decisions

Haas v. Viscardi , 2019 ONCA 133

Keywords: Contracts, Settlement Agreements

Myles v. Myles, 2019 ONCA 143

Keywords: Family Law, Custody, Variation, Fresh Evidence, Palmer Test.

Carey-Patel v. Carey, 2019 ONCA 144

Keywords: Wills and Estates, Substitute Decisions, Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory Order, Henderson v Kallio, 1932 OR 675

Criminal Decisions

R. v. Moore , 2019 ONCA 122

Keywords: Criminal Law, Break and Enter, Robbery, Theft, Sentencing

Tolias (Re), 2019 ONCA 123

Keywords: Criminal Law, Sentencing, Conditional Discharge, Not Criminally Responsible due to Mental Disorder, Threat to Public Safety, Uttering Threats, Criminal Harassment, Breach of Recognizance, Re Tolias, 2018 ONCA 215

R. v. MacKay, 2019 ONCA 117

Keywords: Criminal Law, Possession of Cocaine for the Purpose of Trafficking, Sekhon Error

R. v. Leite, 2019 ONCA 121

Keywords: Criminal Law, Possession of Narcotics, Sentencing

R. v. Gaetan, 2019 ONCA 118

Keywords: Criminal Law, Abandoned Appeal

R. v. Dudar, 2019 ONCA 115

Keywords: Criminal Law, Impaired Driving Causing Bodily Harm, Operating a Motor Vehicle with Excess Alcohol Causing Bodily Harm, Fresh Evidence, Criminal Code, R.S.C. 1985, c. C-46, ss. 683(1)(c) and (d), R. v. Palmer, [1980] 1 S.C.R. 759, R. v. Nissan (1996), 89 O.A.C. 389 (C.A.), R. v. Truscott, 2007 ONCA 575, R. v. Manasseri, 2016 ONCA 703, R. v. Snyder, 2011 ONCA 445, R. v. Allen, 2018 ONCA 498, R. v. M.G.T., 2017 ONCA 736, R. v. M.M. (2002), 163 O.A.C. 46 (C.A.), R. v. Winmill (1999), 42 O.R. (3d) 582 (C.A.) R. v. Shafia, 2016 ONCA 812, R. v. Levesque, 2000 SCC 47, R. v. Plein 2018 ONCA 748, R. v. Dooley, 2009 ONCA 910, R. v. P.G., 2013 ONCA 520, R. v. T.S., 2012 ONCA 289, R. v. Yebes, [1987] 2 S.C.R. 168, R. v. Biniaris, 2000 SCC 15

R. v. A.B.A., 2019 ONCA 124

Keywords: Criminal Law, Sexual Assault, Evidence, Credibility, R v J.M.H., 2011 SCC 45, R v Luceno, 2015 ONCA 759, R v A.R.J.D., 2018 SCC 6, Vezeau v The Queen, [1977] 2 SCR 277, R v B. (G.), [1990] 2 SCR 57, R v MacKenzie, [1993] 1 SCR 212, R v Morin, [1988] 2 SCR 345, R v Graveline, 2006 SCC 16

R. v. J.Y., 2019 ONCA 126

Keywords: Criminal Law, Sexual Interference, Sexual Assault, Kienapple principle, Sentencing

R. v. R.D., 2019 ONCA 132

Keywords: Criminal Law, Expert Evidence

R. v. W.D., 2019 ONCA 120

Keywords: Criminal Law, Sexual Assault, Sexual Assault With A Weapon, Jury Instructions, Criminal Code, RSC 1985, c C-46, s. 684 and s. 686(1)(b)(iii)

R. v. Lee, 2019 ONCA 140

Keywords: Criminal Law

CIVIL DECISIONS

Ruston v. Keddco MFG (2011) Ltd., 2019 ONCA 125

[Pepall, Trotter and Harvison Young JJ.A.]

Counsel:

G. Griffiths and A. James, for the appellant

A. Monkhouse and S. Lucifora, for the respondent

Keywords: Employment Law, Wrongful Dismissal, Notice Period, Aggravated Damages, Punitive Damages, Singer v Nordstrong Equipment Limited, 2018 ONCA 364, Bardal v Globe & Mail (1960), 24 DLR (2d) 140 (HC), Wallace v United Corn Growers Ltd, [1997] 3 SCR 701, Honda v Keays, 2008 SCC 39, Doyle v Zochem, 2017 ONCA 130, Pate Estate v Galway-Cavendish and Harvey (Township), 2013 ONCA 669

Facts:

The respondent was 54 when he was terminated in 2015. He was hired as a sales representative in 2004 and was promoted to president in 2011. At the termination meeting, the respondent was told that he was being terminated for cause and that he had committed fraud without specifics provided. When the respondent advised the appellant that he would be retaining a lawyer, the appellant advised him that if he did, it would counterclaim and that it would be very expensive. When the respondent filed his claim for wrongful dismissal, the defendant responded with a counterclaim in which it alleged cause and claimed $1.7 million in damages.

After an eleven-day trial, the trial judge found that the appellant had failed to prove cause or any of its allegations. She found that the counterclaim for $1.7 million in damages was an intimidation tactic and that the appellant had breached its obligation of good faith and fair dealing in the manner of the respondent's dismissal. The trial judge dismissed the appellant's counterclaim and awarded the respondent significant damages, including: (1) damages in lieu of reasonable notice based on a 19 month notice period; (2) bonus and benefits; (3) aggravated and moral damages in the amount of $25,000; and (4) punitive damages in the amount of $100,000.

Issue:

(1) Did the trial judge err in awarding:

(a) Damages in lieu of reasonable notice based on a 19 month notice period?

(b) A bonus for the 2015 year?

(c) Aggravated/moral damages?

(d) Punitive damages?

Holding:

Appeal dismissed.

Reasoning:

(1) No, the trial judge did not err in awarding the respondent significant damages.

(a) The trial judge found that several factors justified a notice period of 19 months, which included that the respondent: (i) was 54; (ii) had family ties to a smaller area for the purposes of finding similar employment; (iii) was terminated for serious allegations of cause; and (iv) was not provided with a reference letter. These factors affected the notice period because they made it less likely that the respondent would find employment which he was unable to do.

(b) The trial judge specifically found that she did not have any credible evidence with respect to the appellant's post-termination bonus practices. She also found that the respondent had received a bonus in every year of his employment that constituted a significant amount of his overall compensation.

(c) The trial judge correctly noted that employers have an obligation of good faith and fair dealing in the manner of dismissal and also that an employers' pre- and post-termination conduct may be relevant to the moral damage analysis if such conduct is a component of the manner of dismissal. She was alive to the essentially compensatory nature of aggravated damages and itemized in detail the conduct that she found to warrant the award. The evidentiary record provided ample support for the trial judge's finding that the manner of dismissal warranted an award of aggravated damages. She found that the appellants conduct in threatening the respondent not to make a claim and in instituting the counterclaim was calculated to, and did, cause the respondent stress. She accepted the respondent's evidence that the manner of dismissal was devastating and had caused him stress. There was no error of law or principle or palpable or overriding error of fact that would justify interfering with the award of $25,000.

(d) The trial judge carefully reviewed all of the appropriate factors, including that the court "must consider the overall damages award when selecting an...

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