Ontario Court Of Appeal Summaries (March 18-22, 2019)

Good evening,

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

In Benarroch v. Fred Tayar & Associates P.C., the Court of Appeal confirmed that lawyers who act for themselves are treated like all self-represented litigants when it comes to awarding costs in their favour. They are not to be paid based on their hourly rate for "lawyer's" work done on their own case, but rather to compensate them for lost opportunities to earn remuneration from other work.

In McCabe v. Roman Catholic Episcopal Corporation for the Diocese of Toronto, in Canada, the Court split on whether a trial judge erred in leaving the issue of punitive damages to a jury due to the defendant's failure to admit liability until the morning of the trial. Justice Roberts and Chief Justice Strathy found that the trial judge erred by, in effect, creating a new and unprecedented category of punitive damages. While the defendant's denial of liability right up until trial may give rise to a considerable costs order pursuant to Section 131 of the Courts of Justice Act Rule 57.01 of the Rules of Civil Procedure, and the court's inherent jurisdiction to control its process to prevent an abuse of process, it does not provide, on its own, a basis for a punitive damages award. Justice Benotto dissented, and would have upheld the award of punitive damages on this basis. Justice Benotto found that the question of punitive damages should have been put to the jury because the defendant's failure to admit liability caused the vulnerable respondent to suffer pain.

In Samms v Moolla, the Court found that a trial judge did not err in instructing the jury on the applicable standard of care to a medical professional as well as to the application of the principles from the case ter Neuzen v. Korn.

Other topics covered this week include extension of time to bring or perfect an appeal and appellate jurisdiction.

Finally, my partner, Lea Nebel, and I invite you to our third annual Top Appeals CLE, which has been rescheduled and will now be taking place at the OBA, 20 Toronto Street, Toronto, on Thursday, May 9, 2019. It is a three hour dinner program beginning at 5 PM, which will also be available by live webcast for those who cannot attend in person.

Our first set of panelists, Eliot Kolers, David Thompson and Katherine Di Tomaso, will discuss 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, a panel led by Glenn Chu of the City of Toronto 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.

Have a nice weekend.

John Polyzogopoulos Blaney McMurtry LLP 416.593.2953 Email

Table of Contents

Civil Decisions

Machado v. Ontario Hockey Association, 2019 ONCA 210

Keywords: Civil Procedure, Appeals, Extensions of Time, Discretionary Orders, Enforcement, Standard of Review, Yaiguaje v. Chevron Corporation, 2017 ONCA 827

McCabe v. Roman Catholic Episcopal Corporation for the Diocese of Toronto, in Canada, 2019 ONCA 213

Keywords: Torts, Sexual Assault, Damages, Punitive Damages, Civil Procedure, Jury Trials, Grounds for Mistrial, Inflammatory Remarks, Jury Instructions, Evidence, Admissibility, Hearsay, Business Records, Costs, Evidence Act, R.S.O. 1990 c. E.23, Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 131 & 134(6), Rules of Civil Procedure, Rule 57.01, Ares v. Venner, [1970] S.C.R. 608, Zando v. Ali, 2018 ONCA 680, Hill v. Church of Scientology, [1995] 2 S.C.R. 1130, Whiten v. Pilot Insurance Co., 2002 SCC 18

Samms v. Moolla, 2019 ONCA 220

Keywords: Torts, Negligence, MedMal, Jury Instructions, Standard of Care, Expert Evidence, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(6), ter Neuzen v. Korn, [1995] 3 S.C.R. 674, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, R. v. Jaw, 2009 SCC 42, R. v. Daley, 2007 SCC 53, Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351, R. v. Jacquard, [1997] 1 S.C.R. 314, Wilson v. Swanson, [1956] S.C.R. 804, R. v. Ferguson, 2008 SCC 6, R. v. Brown, [1991] 2 S.C.R. 518, Pereira v. Hamilton Township Farmers' Mutual Fire Insurance Company (2006), 267 D.L.R. (4th) 690 (Ont. C.A.), R. v. Speers, 2017 ONCA 333

Benarroch v. Fred Tayar & Associates P.C., 2019 ONCA 228

Keywords: Civil Procedure, Solicitor and Client, Assessments, Costs, Self-Represented Litigants, Fong v. Chan (1999), 46 OR (3d) 330 (CA), Mustang Investigations v. Ironside, 2010 ONSC 3444 (Div Ct)

Short Civil Decisions

Callidus Capital Corporation v. Opes Resources Inc., 2019 ONCA 212

Keywords: Civil Procedure, Appeals, Jurisdiction, Orders, Final or Interlocutory, Examinations for Discovery, Refusals, Evidence, Admissibility, Relevance, Similar Fact Evidence, Courts of Justice Act, R.S.O. 1990, c. C.43. s. 19(1)(b), Cartwright & Sons Ltd. v. Carswell Co. Ltd., [1958] O.J. No. 475 (C.A.), Diversitel Communications Inc. v. Glacier Bay Inc., (2004) 181 O.A.C. 6 (Ont. C.A.), Walchuk Estate v. Houghton, 2015 ONCA 862

Berta v. Berta, 2019 ONCA 218

Keywords: Family Law, Spousal Support, Set-Off, Jurisdiction, Family Responsibility Office, Courts of Justice Act, R.S.O. 1990, c. C.43., s. 111

Friedrich v. Metropolitan Toronto Condominium Corporation No.1018, 2019 ONCA 216

Keywords: Torts, Negligence, Civil Procedure, Small Claims Court, Appeals, Leave to Appeal, Rules of Civil Procedure, r. 61.03.1 (3) (a), Re Sault Dock Co. Ltd. and City of Sault Ste. Marie, [1973] 2 O.R. 479 (C.A.)

AMT Finance Inc. v. LaFontaine, 2019 ONCA 226

Keywords: Civil Procedure, Representation by Lawyer, Corporations, Appeals, Perfection

AV Holdings foundation trust v. Gilmore, 2019 ONCA 223

Keywords: Civil Procedure, Appeals, Extension of Time

Gary Anthony Bennett Professional Corporation v. Triella Corp., 2019 ONCA 225

Keywords: Civil Procedure, Appeals, Mootness, Costs

Goldman v. Weinberg, 2019 ONCA 224

Keywords: Torts, Negligent Investigation, Duty of Care, Civil Procedure, Summary Judgment, Limitation Periods, Wellington v. Ontario, 2011 ONCA 274

Gefen v. Gaertner, 2019 ONCA 233

Keywords: Wills and Estates, Constructive Trusts, Civil Procedure, Appointment of Estate Trustee During Litigation, Rules of Civil Procedure, Rule 75, Estates Act, R.S.O. 1990, c. E.21, s. 28, McColl v. McColl, 2013 ONSC 5816

Criminal Decisions

18. v. Baker, 2019 ONCA 214

    Keywords: Criminal Law, Drug Trafficking, Possession of Proceeds of Crime, Evidence, Identification, Photo Lineup, Sophonow Inquiry

18. v. Omar, 2019 ONCA 221

    Keywords: Criminal Law, Using an Imitation Firearm, Assault with a Weapon, Failure to Comply with Recognizance, Aiding or Abetting, Criminal Code, s. 21(2), R. v. Simon, 2010 ONCA 754

18. v. Rose, 2019 ONCA 215

    Keywords: Criminal Law, Sexual Assault, Bail, Evidence, Demeanour, Credibility, R. v. J.A.A., 2011 SCC 17, R. v. Oland, 2017 SCC 17

18. v. Moran, 2019 ONCA 217

    Keywords: Criminal Law, Fraud under $5,000, Sentencing, Fresh Evidence, Immigration Consequences, Immigration and Refugee Protection Act, S.C. 2001, c. 27, R. v. Lacasse, 2018 SCC 64, R. v. Pham, [2013] 1 S.C.R. 739

18. v. Biya, 2019 ONCA 227

    Keywords: Criminal Law, Careless Storage of a Firearm, Possession of a Loaded Prohibited Firearm, Possession of a Schedule 1 Substance for the Purpose of Trafficking, Bail, Circumstantial Evidence, Admissibility, R v Villaroman, 2016 SCC 33, R. v. Oland, 2017 SCC 17

18. v. Branford, 2019 ONCA 209

    Keywords: Criminal Law, Unauthorized Possession of a Firearm, Circumstantial Evidence, R. v. Villaroman, 2016 SCC 33

18. v. Henry, 2019 ONCA 229

    Keywords: Criminal Law, Armed Robbery, Evidence, Credibility, R. v. Boudreault, 2018 SCC 58

18. v. Hussein, 2019 ONCA 230

    Keywords: Criminal Law, Obstruction of Justice, Subpoenas, Collateral Attack, Criminal Code, ss. 139(2) and 700(2), R. v. Pastro (1988), 66 Sask. R. 241 (C.A.), R. v. Houle, 2016 MBCA 121, R. v. Bird, 2019 SCC 7

18. v. Reyes, 2019 ONCA 231

    Keywords: Criminal Law, Appeals, Perfection, Bench Warrants

    Ontario Review Board

    Scalabrini (Re), 2019 ONCA 219

    Keywords: Ontario Review Board, Criminal Law, Assault with a Weapon, Robbery, Conditional Discharges, Carrick (Re), 2015 ONCA 866

    CIVIL DECISIONS

    Machado v. Ontario Hockey Association, 2019 ONCA 210

    [Feldman, Hourigan and Huscroft JJ.A.]

    Counsel:

20. P. Charney, for the moving parties

13. Karabus, for the respondents

    Keywords: Civil Procedure, Appeals, Extensions of Time, Discretionary Orders, Enforcement, Standard of Review, Yaiguaje v. Chevron Corporation, 2017 ONCA 827

    Facts:

    The moving parties, Mr. Machado and Mr. Williamson, commenced an action claiming damages against the respondents who consist of corporate bodies responsible for administering junior level hockey in Ontario along with current and former officers as well as directors. The statement of claim designated Mr. Machado as the representative for both himself and Mr. Williamson.

    The respondents requested an extension of time to file a defence and confirmation that they would not be noted in default. Despite Mr. Machado's confirmation that he would not note any of the respondents in default, he proceeded to do so.

    On January 11, 2018, the respondents brought a motion to set aside the noting in default. This motion was granted. In addition, the motion judge observed that Mr. Machado was not a lawyer and therefore, could not represent Mr. Williamson. Mr. Machado informed the motions judge that both he and Mr. Williamson were self-represented and requested time to amend the statement of claim accordingly. The motion judge granted the moving parties several...