Ontario Court Of Appeal Summaries (April 1 – 5, 2019)

Good evening.

Below are the civil decisions released by the Court of Appeal for Ontario this week.

In Alectra Utilities Corporation v. Solar Power Network Inc, the Court confirmed that where a contract contains an arbitration clause that expressly denies the possibility of appeal from the arbitral award, the arbitrator's jurisdiction is not limited to findings that are reasonable or correct. In other words, the arbitrator has the right to be wrong, and being wrong does not mean that the arbitrator exceeded their jurisdiction.

In College of Optometrists of Ontario v. Essilor Group Inc, the Court addressed the scope of provincial legislative authority in respect of regulating out-of-province eyewear retailers. In interpreting the relevant statutes and regulations governing optometry and opticianry in Ontario, the Court concluded that Ontario's regulatory scheme could not apply to out-of-province parties such as the appellant (which was based out of Quebec but was selling eyewear to Ontarians out of BC). The Court found that there was not a sufficient connection between the activity of the vendor and Ontario and set aside the application judge's decision that had prohibited Essilor from selling eyewear into Ontario. The Court noted that applying the Ontario legislation to out-of-province suppliers would effectively sanction the creation of a monopoly over the importation of prescription eyewear into Ontario from other provinces. Perhaps the Supreme Court will take interest in this case, with its blend of issues of public importance - from the interprovincial sale of goods through ecommerce, to the protection of public health through regulated health professions, to the constitutional issue of the scope of provincial legislative jurisdiction.

Other topics covered this week included summary judgment in a breach of contract case, assessments of solicitors' accounts, and wilful blindness in the context of a fraud claim.

Wishing everyone a safe and enjoyable weekend.

John Polyzogopoulos Blaney McMurtry LLP 416.593.2953 Email

Table of Contents

Civil Decisions

College of Optometrists of Ontario v. Essilor Group Canada Inc., 2019 ONCA 265

Keywords: Commercial Law, Sale of Goods, Regulated Health Professions, Optometrists, Opticians, Constitutional Law, Inter-Provincial Trade and Commerce, Provincial Jurisdiction, Sufficient Connection, Statutory Interpretation, Regulated Health Professions Act, 1991, SO 1991, c 18, Optometry Act, 1991, SO 1991, c. 35, Opticianry Act, 1991, SO 1991, c 34, Health Professions Act, RSBC 1996, c. 183, Optometrists Regulation, BC Reg. 33/2009, Opticians Regulation, BC Reg 118/2010, Unifund Assurance Co. v. Insurance Corp. of British Columbia, 2003 SCC 40, Wadden v. College of Opticians of Ontario, (2001) 207 DLR (4th) 72, (Ont CA)

Herman v. Goldman, Sloan, Nash and Haber LLP, 2019 ONCA 250

Keywords: Contracts, Solicitor and Client, Accounts for Services Rendered, Assessments, Special Circumstances

Wescom Solutions Inc. v. Minetto, 2019 ONCA 251

Keywords: Torts, Fraud, Knowing Receipt, Wilful Blindness, R. v. Malfara (2006), 211 O.A.C. 200 (CA), R. v. Sansregret, [1985] 1 SCR 570

Alectra Utilities Corporation v. Solar Power Network Inc., 2019 ONCA 254

Keywords: Contracts, Interpretation, Arbitration Agreements, Jurisdiction, Arbitration Act, 1991, S.O 1991, C 17, Mexico v. Cargill, Incorporated, 2011 ONCA 622, C.U.P.E. v. N.B. Liquor Corporation, [1979] 2 SCR 227

Vandenberg v. Wilken, 2019 ONCA 262

Keywords: Real Estate, Civil Procedure, Summary Judgment, Hryniak v. Mauldin, 2014 SCC 7, Butera v. Chown, Cairns LLP, 2017 ONCA 783

Crescent Hotels and Resorts Canada Company v. 2465855 Ontario Inc., 291 ONCA 268

Keywords: Contracts, Termination, Breach, Civil Procedure, Summary Judgment, Fact-Finding Powers, Rules of Civil Procedure, Rule 20.04(2.1), Hryniak v Mauldin, 2014 SCC 7, Guarantee Company of North America v Gordon Capital Corp., [1999] 3 SCR 423

Short Civil Decisions

Asghar v. Alon, 2019 ONCA 249

Keywords: Torts, Defamation

Saint Luke Lutheran Church v. McGregor, 2019 ONCA 261

Keywords: Civil Procedure, Capacity to Sue, Standing

Rivers v Waterloo Regional Police Services Board, 2019 ONCA 267

Keywords: Civil Procedure, Striking Pleadings, Jurisdiction, Police Services Act, RSO 1990, c. P.15, Weber v. Ontario Hydro, [1995] 2 S.C.R. 929

Criminal Decisions

R. v. Imona-Russel, 2019 ONCA 252

Keywords: Criminal Law, Aggravated Sexual Assault, Sexual Assault, Assault with a Deadly Weapon, Assault Causing Bodily Harm, Right to a Fair Trial, R. v. Rowbotham, (1998) 25 O.A.C. 321, Rowbotham Application

R. v. Barry, 2019 ONCA 257

Keywords: Criminal Law, Theft, Victim Surcharge, R. v. Boudreault, 2018 SCC 58

R. v. Nurse, 2019 ONCA 260

Keywords: Criminal Law, First Degree Murder, Evidence, Admissibility, Hearsay, Exceptions to Hearsay Rule, Dying Declarations, R. v. Khelawon, 2006 SCC 57, R. v. Badgerow, 2014 ONCA 272, leave to appeal refused, [2014] S.C.C.A. No. 254, Canadian Charter of Rights and Freedoms, s. 24(2)

R. v. Campbell, 2019 ONCA 258

Keywords: Criminal Law, Impaired Driving Causing Death, Criminal Code, s. 255(3), Canadian Charter of Rights and Freedoms, ss. 7 and ss. 8, R. v. Graveline, 2006 SCC 16, R. v. Grant, 2009 SCC 32

R. v. Forrester, 2019 ONCA 255

Keywords: Criminal Law, Drug Trafficking, Evidence, Alibi, Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5(1), R. v. Richards, 2017 ONCA 424

R. c. J.P.G., 2019 ONCA 256

Keywords: Droit Criminel, Criminal Law, Exploitation Sexuelle, Sexual Exploitation, Assistance Inefficace d'un avocat, Ineffective Assistance of Counsel, Droits Linguistiques, Language Rights, Code Criminel, Criminal Code, ss 153(1) and 530, Canadian Charter of Rights and Freedoms, Charte canadienne des droits et libertés, s 14, R. c. Beaulac, [1999] 1 R.C.S. 768

G. v. Ontario (Attorney General), 2019 ONCA 264

Keywords: Criminal Law, Sexual Assault, Sex Offender Registry, Defences, Not Criminally Responsible by Reason of Mental Disorder, Christopher's Law (Sex Offender Registry), 2000, S.O. 2000, c. 1, Sex Offender Information Registration Act, S.C. 2004, c. 10, Canadian Charter of Rights and Freedoms, ss. 7 and ss. 15, R. v. Khawaja, 2012 SCC 69

CIVIL DECISIONS

College of Optometrists of Ontario v. Essilor Group Inc., 2019 ONCA 265

[Juriansz, Brown and Huscroft JJ.A.]

Counsel:

J. Lisus, H. Book and P. Underwood, for the appellant

L. Rothstein, J. Killey, and D. Rosenbluth, for the respondents

Keywords: Commercial Law, Sale of Goods, Regulated Health Professions, Optometrists, Opticians, Constitutional Law, Inter-Provincial Trade and Commerce, Provincial Jurisdiction, Sufficient Connection, Statutory Interpretation, Regulated Health Professions Act, 1991, SO 1991, c 18, Optometry Act, 1991, SO 1991, c. 35, Opticianry Act, 1991, SO 1991, c 34, Health Professions Act, RSBC 1996, c. 183, Optometrists Regulation, BC Reg. 33/2009, Opticians Regulation, BC Reg 118/2010, Unifund Assurance Co. v. Insurance Corp. of British Columbia, 2003 SCC 40, Wadden v. College of Opticians of Ontario, (2001) 207 DLR (4th) 72, (Ont CA)

Facts:

In 2014, the appellant — a company with a Quebec head office and whose online business was conducted in British Columbia — acquired a company that sold contact lenses and eyeglasses online to Ontario customers. Shortly thereafter, the respondents wrote a joint letter to the appellant alleging that it was engaged in unlawful behaviour "by dispensing prescription eyewear through the Internet to Ontario consumers without involving an Ontario-licensed health care provider." Discussions ensued amongst the parties, but no agreement was reached.

The respondents brought an application alleging the appellant breached s. 27 of the Regulated Health Professions Act, 1991 ("the RHPA") by accepting orders for prescription eyewear online and shipping eyewear to patients in Ontario. The respondents sought a declaration that the appellant had breached s. 27, and an injunction prohibiting the appellant from engaging in such dispensing "except where the dispensing is performed by a Member [of the respondents] or a Member's delegate". The respondents did not file any evidence of specific harm to any of their members, instead relying on the presumption that if a person performs a controlled act in contravention of RHPA s. 27, harm to the public is presumed.

The application judge granted the declaration and injunction, making two key findings. First, he held that "[i]n substance [the appellant is] dispensing eyewear to those who require corrective lenses to assist with less than perfect vision"; and second, with respect to the applicability of provincial legislation to out-of-province defendants (such as the appellant), that a sufficient connection existed between Ontario and the appellant's conduct to fall within the prohibition contained in s. 27 of the RHPA.

Issues:

(1) Did the application judge err in finding that the appellant performed the "controlled act" of "dispensing" in Ontario within the meaning of the RHPA?

(2) Did the application judge err in finding that a sufficient connection existed between appellant's provision of eyewear and Ontario so as to bring it within the ambit of the RHPA?

Holding:

Appeal allowed.

REasoning:

(1) No. The Court began by detailing the exact nature of the appellant's business model. Via the Ontario subsidiary that it acquired in 2013, the appellant's online retail business was based in British Columbia and operated in accordance with British Columbia laws and regulations. Located in British Columbia were the subsidiary's head office and management team, its lab, its distribution centre, and its warehouse. Where a customer in Ontario bought prescription eyewear online from the subsidiary, only two steps in the transaction touch upon Ontario: (i) the customer entered the order online from a device in Ontario; and (ii) the appellant's subsidiary arranged for the delivery of the eyewear to the customer at a...