Ontario Court Of Appeal Summaries (August 12 - 16, 2019)

It was a light, yet eventful week at the Court of Appeal for Ontario.

Smith v Ontario (Attorney General) marked the second time in the last four months that the Court has addressed the issue of prosecutorial immunity, having already done so in the April 2019 decision in Clark v. Ontario (Attorney General).

Smith involved a crossclaim for contribution and indemnity by the police against the Crown attorneys for allegedly negligent legal advice provided to the police during the pre-charge stage of a failed prosecution. Following the dismissal of the charges, the police and Crown were sued for wrongful arrest. Clark had involved a claim by the police against the Crown for misfeasance in public office for not pursuing certain charges laid by the police that led to a claim against them by the accused.

The Court in Smith stopped the crossclaim in its tracks, finding that prosecutorial immunity protected the Crown. Moreover, after undergoing an Anns/Cooper analysis, the Court concluded that, for policy reasons, it should not recognize a duty of care owed by Crown prosecutors to the police in providing legal advice. The Court discussed the chilling effect potential liability of the Crown to the police may have on the proper functioning of the criminal justice system.

One has to wonder what has been going on lately between two of the three pillars of our criminal justice system (the other, of course, being the judiciary). It would seem to me that public finger pointing like this between the police and the Crown does nothing for the repute of our criminal justice system. Moreover, these claims seem to be a waste of public funds (although I recognize that one purse may be municipal, the other provincial). Hopefully, the two branches will work together moving forward to eliminate these kinds of claims, similar to what LawPro does by prohibiting lawyers who are involved in litigation from pointing the finger at each other.

In Alford v Canada (Attorney General), the Court held that Lakehead University law professor, Dr. Ryan Alford, has standing to challenge the constitutionality of section 12 of the National Security and Intelligence Committee of Parliamentarians Act. According to his bio on Lakehead's website, Dr. Alford's area of research focuses on the rule of law and legal rights during public emergencies. The Act in question establishes the National Security and Intelligence Committee of Parliamentarians, which is to be made up of MPs and Senators, not including members of Cabinet. Under sections 11 and 12 of the Act, members of the Committee must obtain security clearance and take an oath or affirm to keep state secrets secret. Section 12 removes the defence of immunity based on parliamentary privilege in any prosecution of a member or former member of the Committee for improperly disclosing classified information. Dr. Alford maintains that section 12 is unconstitutional because it purports to take away immunity arising from parliamentary privilege, which he maintains is a constitutionally protected privilege. The Court's ruling means that Dr. Alford can proceed with his constitutional challenge.

In Cassandro v Glass, a case involving the breach of a commercial tenancy agreement, the Court reminded litigants once again that it is inappropriate to raise a new defence on appeal that was neither raised in the pleadings nor argued at trial.

Finally, in an unfortunate turn of events in Hilson v. 1336365 Alberta Ltd., the Court revealed that its decision in that case released on May 27, 2019, was released in error. Apparently, one of the judges who sat on the panel inadvertently did not participate in the preparation of the Court's reasons for decision, and those reasons were erroneously signed by another judge who had not sat on the panel. The Court had no choice but to order a re-hearing of the appeal on an expedited basis before a new panel. I am sure that the judges and staff involved feel terribly that this could have ever happened, and I understand that the Court has already instituted several procedures to ensure that something like this does not happen again. No one is perfect, not even our venerable Court!

The Canadian National Exhibition opened today, marking the unofficial beginning of the end of the summer. Enjoy what is left of it!

Table of Contents

Civil Decisions

Smith v Ontario (Attorney General), 2019 ONCA 651

Keywords: Torts, Solicitor's Negligence, Duty of Care, Anns/Cooper Test, Criminal Law, Crown Attorneys, Prosecutorial Immunity, Duty of Care, Police Independence, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Rules of Civil Procedure, Rule 21.01(1)(b), R v Imperial Tobacco, 2011 SCC 42, Clark v. Ontario (Attorney General), 2019 ONCA 311

Alford v Canada (Attorney General), 2019 ONCA 657

Keywords: Constitutional Law, Parliamentary Privilege, Civil Procedure, Standing, Public Interest Standing, National Security and Intelligence Committee of Parliamentarians Act, SC 2017, c 15, s12, Downtown East Side Sex Workers United Against Violence Society v Canada (Attorney General), 2012 SCC 45

Cassandro v Glass, 2019 ONCA 654

Keywords: Contracts, Real Property, Commercial Leases, Remedies, Distraint, Distress Damage Feasant, Mitigation, Stewart v Gustafson, [1999] 4 WWR 695 (Sask QB), Forhan & Read Estates Ltd v. Hallett and Vancouver Auto Towing Service (1959), 19 DLR (2d) 756 (BC Co Ct), R v Howson, [1966] 2 OR 63, Barbour v University of British Columbia, 2009 BCSC 425, Davy Estate v CIBC World Markets Inc, 2009 ONCA 763, deposit, Benedetto v 2453912 Ontario Inc., 2019 ONCA 149

Short Civil Decisions

Hilson v 1336365, 2019 ONCA 653

Keywords: Civil Procedure, Appeals, Judgments, Court Error

Hunt v Peel Mutual Insurance Company, 2019 ONCA 656

Keywords: Torts, Negligence, Occupier's Liability, Statutory Interpretation, Insurance Act, RSO 1990, c 18, s239(1)

Smith v Smith, 2019 ONCA 655

Keywords: Family Law, Civil Procedure, Appeals, Extension of Time

Criminal Decisions

R v Boone, 2019 ONCA 652

Keywords: Criminal Law, Attempted Murder, Aggravated Sexual Assault, Administering a Noxious Thing, Jury Instructions, New Trial, Criminal Code, ss14, 241.2, s 229(a)(i), s245(1)(a), R v Mabior, 2012 SCC...