Ontario Court Of Appeal Summaries (July 8 – 12, 2019)

Good evening.

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

In Dermann v. Baker, 2019 ONCA 584, the Court considered the qualifying of certain witnesses as experts for the purposes of r. 53.03 of the Rules of Civil Procedure, the standard of review for a trial judge's charge to the jury in a civil trial, and costs assessments in the context of payments made in advance, and offers to settle. On the first issue, the Court held that r. 53.03 has no application to non-party experts as long as their opinions are limited to those formed based on observations made for a purpose other than litigation. On the second issue, the Court found that a new trial will not be ordered on the basis of a misdirection in a charge unless the error leads to a substantial wrong or miscarriage of justice. Finally, on the third issue, the Court held that r. 49.10(2) of the Rules of Civil Procedure has no application where the plaintiff is awarded a nil judgment.

In Buduchnist Credit Union Limited v. 2321197 Ontario Inc., 2019 ONCA 588, the Court considered the appeal routes from an order appointing a receiver. The Court found that when an order appointing a receiver is made under s. 243(1) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 and s. 101 of the Courts of Justice Act, R.S.O., c. C.43, then the more restrictive appeal provisions in the BIA govern the appeal routes. The Court went on to conclude that this case did not give rise to an appeal as of right, and that leave to appeal should not be granted. Specifically, the Court found that the case did not raise an issue of general importance, was not prima facie meritorious, and that an appeal would unduly hinder the progression of the receivership proceedings.

In Murray v. Alatishe, 2019 ONCA 596, the Consent and Capacity Board found that the appellant was incapable of consenting to treatment with respect to medications pursuant to s. 4(1) of the Health Care Consent Act. The appellant appealed to the Superior Court and again to the Court of Appeal, asserting that the decision was procedurally unfair and unreasonable. The appeal was dismissed. The appellant was found to be sufficiently aware of the two-part test for capacity to consent to treatment so no issue of procedural fairness was evident. The decision was also found to be reasonable since while the appellant was able to understand the information relevant to making a decision about treatment, he failed to acknowledge that he suffered from a mental condition and was thus unable to evaluate the potential benefits and risks of the proposed treatment.

Table of Contents

Civil Decisions

Himidan v. Farquharson, 2019 ONCA 575

Keywords: Contract Law; Real Property; Purchase and Sale of Property; Refusal to Close a Transaction; Right of Way; Contractual Interpretation; Standard of Review; Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633; LeMesurier v. Andrus (1986), 54 O.R. (2d) 1 (C.A.); Ventas, Inc. v. Sunrise Senior Living Real Estate Investment Trust, 2007 ONCA 205, 85 O.R. (3d) 254.

Sub-Prime Mortgage Corporation v. 1219076 Ontario Limited, 2019 ONCA 581

Keywords: Civil Procedure, Mortgages, Discharge Statements, Appellate Jurisdiction, Judicial Discretion, Mortgages Act, R.S.O. 1990, c M.40, ss. 12(3), 12(9), 17, and 22, Interest Act, R.S.C. 1985, c. I-15, s. 8; Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 14.05(a), (d) and (e), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(2), Fernicola (In Trust) v. Creview Development Inc., 75 RPR (4th) 226 (Ont SC), leave to appeal refused 80 RPR (4th) 178 (Ont Div Ct), Metroview Investment Corp. v. Araujo, [2000] OJ No. 2403 (Ont SC), Rokhsefat v. 8758603 Canada Corp, 2019 ONCA 273

Irps-Bleeker v. Van Gaalen, 2019 ONCA 592

Keywords: Civil Procedure, Limitation Period, Discoverability, Professional Negligence, Real Estate, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 5 (1)(b)

Dermann v. Baker, 2019 ONCA 584

Keywords: Civil Procedure, Tort Law, Insurance Law, Personal Injury Law, Advanced Payment, Expert Witnesses, Non-Party Experts, Charge To The Jury, Costs Assessment, Offer To Settle, Rules of Civil Procedure, r. 53.03, r. 49.10(2), Courts of Justice Act, s. 120, Insurance Act, RSO 1990, c I.8, s. 267.5(7), Berthiaume-Palmer v. Borgundvaag, 2010 ONCA 470, S & A Strasser Ltd. v. Richmond Hill (Town) (1990), 1 O.R. (3d) 243

Buduchnist Credit Union Limited v. 2321197 Ontario Inc., 2019 ONCA 588

Keywords: Bankruptcy Law, Appeal From Order Appointing A Receiver, Appeal As Of Right, Leave To Appeal, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, ss. 193(a), 193(b), 193(c), 193(e), 243(1), Courts of Justice Act, R.S.O., c. C.43, s. 101, Business Development Bank of Canada v. Astoria Organic Matters Ltd., 2019 ONCA 269, Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, 2403177 Ontario Inc. v. Bending Lake Iron Group Ltd., 2016 ONCA 225

Breen v. FCT Insurance Company Ltd., 2019 ONCA 598

Keywords: Real Property, Title Insurance, Unmarketable Title, Building Permit, Building Code Act, 1992, S.O. 1992, c.23, Fischer v. Stewart Title Guaranty Co., 2014 ONCA 798, MacDonald v. Chicago Title Insurance Company of Canada, 2015 ONCA 842

Bruyea v. Canada (Veteran Affairs), 2019 ONCA 599

Keywords: Small Claims Court; Defamation; Jurisdiction of Deputy Judges; Statutory Interpretation; Courts of Justice Act, RSO 1990, c. C.43, s. 137.1

Murray v. Alatishe, 2019 ONCA 596

Keywords: Capacity, Court-Ordered Assessment, Consent to Treatment, Criminal Law, Not Criminally Responsible, Judicial Review, Procedural Fairness, Health Care Consent Act, 1996, SO 1996, c. 2, Sch. A, s. 4(1), Statutory Powers Procedure Act, RSO 1990, c. S.22, s. 8, Starson v. Swayze, 2003 SCC 32, [2003] 1 SCR 722, Gajewski v. Wilkie, 2014 ONCA 897, 123 OR (3d) 481

Stockey v. Grant, 2019 ONCA 597

Keywords:

Real Estate Transaction, Lien Application, Cost Orders, Trial Management Conference, 60-day Deadline, Payment of Principal, Delay, Trial on the Merits

Short Civil Decisions

Browne v. Browne, 2019 ONCA 580

Keywords: Divorce Proceedings, Custody Order, Permission to Leave the Country, Change in the Status Quo, Motion Granted

Holly v Greco, 2019 ONCA 579

Keywords: Family Law, Child Support, Adjournment, Costs

ACT Greenwood Ltd. v. Desjardins-McLeod, 2019 ONCA 585

Keywords: Contracts, Costs

Criminal Decisions

18. v. Mayor, 2019 ONCA 578

    Keywords: Criminal Law, Driving with a Suspended License, Impaired Driving, Possession of a Controlled Substance for the Purpose of Trafficking, Unlawful Detention or Arrest, Road Safety Purpose, Criminal Investigation, Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 55.2(1), 216(1), 217(2) Canadian Charter of Rights and Freedoms, ss. 8, 9, R v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 255, R. v. Ladouceur, [1990] 1 S.C.R. 1257, Brown v. Durham Regional Police Force (1998), 43 O.R. (3d) 223 (C.A.), R. v. Grant, 2009 SCC 32, R. v. Sandhu, 2011 ONCA 124, R. v. Nolet, 2010 SCC 24, R. v. Humphrey, 2011 ONSC 3024

18. v. Grant , 2019 ONCA 577

    Keywords: Criminal Law, Appeal Book Endorsement, Charter of Rights and Freedoms, s. 11(b)

18. v. Bajich, 2019 ONCA 586

    Keywords: Criminal Law, Possession of Drugs for the Purpose of Trafficking; Reasonable Grounds for Arrest, Totality of Circumstances, Uneven Scrutiny of Evidence; Assessment of Witness Credibility; Confidential Informants; Standard of Review for Reasonable Grounds for Arrest; Interpretation of 'for the Purposes of Trafficking'; Indicia of Trafficking; R. v. Quilop, 2017 ABCA 70, 49 Alta. L.R. (6th) 213; R. v. Storrey, [1990] 1 S.C.R. 241; R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63; R. v. Debot, [1989] 2 S.C.R. 1140; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527; R. v. Anang, 2016 ONCA 825, 367 C.R.R. (2d) 289; R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742; R. v. Labelle, 2016 ONCA 110; R. v. O.N., 2017 ONCA 923; R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.); R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000; R. v. Lohrer, 2004 SCC 80

18. v. Bhagwandat , 2019 ONCA 589

    Keywords: Appeal Book Endorsement, Mental Disorder, Unequivocal Plea

18. v. Dean, 2019 ONCA 587

    Keywords: Appeal Book Endorsement, Dangerous Driving, Recognizance, Motor Vehicle Collision, Immigration Consequences, Joint Submission, Fresh Evidence

18. v. J.B., 2019 ONCA 591

    Keywords: Criminal Law; Jury Trials; Errors in Jury Instructions; Failure to Incorporate Evidence into the Jury Instructions; Failure to Relate Evidence to the Essential Elements of the Charge; Rules of Evidence; Accused's Testimony; Out-of-Court Statements; Intrinsic Value as Substantive Evidence vs Impeachment of Credibility; Ability of Juries to Review Materials not in Evidence; Obligations of a Trial Judge in Responding to In-Deliberation Jury Requests; Unbalanced and One-Sided Review of Evidence; 'Rushed Verdicts'; Exhortations to the Jury; R. v. Davison, DeRosie and MacArthur (1974), 20 C.C.C. (2d) 424 (Ont. C.A.); R. v. Fischer, 2005 BCCA 265; R. v. Groves, 2013 BCCA 446; R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.); R. v. S. (W.D.), [1994] 3 S.C.R. 521; R. v. De Bellefeuille (1994), 39 B.C.A.C. 276 (B.C. C.A.); Olbey v. R., [1980] 1 S.C.R. 1008; R. v. Ferguson (2000), 142 C.C.C. (3d) 353 (Ont. C.A.); R. v. Ferguson, 2001 SCC 6; R. v. R.M.G., [1996] 3 S.C.R. 362; R. v. Sims, [1992] 2 S.C.R. 858; Azoulay v. The Queen, [1952] 2 S.C.R. 495; R. v. Royz, 2009 SCC 13; Cluett v. The Queen, [1985] 2 S.C.R. 216

18. v. Lewis, 2019 ONCA 590

    Keywords: Appeal Book Endorsement, Sentencing, Pre-Sentence Custody, Credit

18. v. Rajavadivel , 2019 ONCA 595

    Keywords: Appeal Book Endorsement

18. v. Salama , 2019 ONCA 594

    Keywords: Appeal Book Endorsement

18. v. Treleaven , 2019 ONCA 593

    Keywords: Appeal Book Endorsement, Gladue Report, Fresh Evidence, Sentencing

    Ontario Review Board

    Shepherd (Re), 2019 ONCA 582

    Keywords: Ontario Review Board, Criminal Law, Mental Illness, Detention...