Ontario Court Of Appeal Summaries (August 26-30 2019)

Good afternoon.

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

In Andros v. Colliers Macaulay Nicolls, the court upheld the motion judge's decision that the termination clause in the parties' employment contract was void for attempting to avoid minimum benefits payable under the Employment Standards Act, and that therefore common law damages for wrongful dismissal were payable.

In Solomon v. Abughaduma, the Court dismissed a doctor's appeal from a finding of negligence for failure to obtain informed consent before conducting surgery on a golf instructor's wrist that left him unable to swing a golf club. The golf instructor's $60,000 damages award was therefore upheld. He represented himself on the appeal.

In Ludwig v Ludwig, the Court had the opportunity to review and apply the Supreme Court's new hybrid test set out in Office of the Children's Lawyer v Balev, 2018 SCC 16, for determining where a child is habitually resident for the purposes of the Hague Convention on the Civil Aspects of International Child Abduction. The Court agreed with the application judge that the children were habitually resident in Ontario, and therefore the Hague Convention did not apply.

In The Commonwell Mutual Insurance Group v. Campbell, the Court agreed with the application judge that once the insurer had defended the claim on behalf of the insured without having reserved its rights, it was estopped from relying on certain exemptions in the policy that might negate the duty to defend or the duty to indemnify.

I hope that everyone has had an enjoyable summer and that you all have a pleasant Labour Day long weekend.

John Polyzogopoulos

Blaney McMurtry LLP

416.593.2953 Email

Table of Contents Civil Decisions

The Commonwell Mutual Insurance Group v. Campbell, 2019 ONCA 668

Keywords: Contracts, Insurance, Coverage, Homeowner's Policy, Duty to Defend, Duty to Indemnify, Reservation of Rights, Estoppel, Waiver, Insurance Act, RSO 1990, c I8, s 258, Progressive Homes Ltd v Lombard General Insurance Co of Canada, 2010 SCC 33, Rosenblood Estate v Law Society of Upper Canada (1989), 37 CCLI 142 (Ont HCJ), aff'd 16 CCLI (2d) 226 (Ont CA)

Solomon v. Abughaduma, 2019 ONCA 677

Keywords: Torts, Negligence, Medmal, Informed Consent, Causation, Evidence, Experts

Ludwig v. Ludwig, 2019 ONCA 680

Keywords: Family Law, Custody and Access, Child Abduction, Habitual Residence, Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35, Office of the Children's Lawyer v Balev, 2018 SCC 16, Housen v. Nikolaisen, 2002 SCC 33

Andros v. Colliers Macauley Nicolls Inc., 2019 ONCA 679

Keywords: Contracts, Interpretation, Employment, Wrongful Dismissal, Statutory Entitlements, Contracting Out, Void Ab Initio, Damages, Bonuses, Benefits, Employment Standards Act, 2000, S.O. 2000, c. 41, North v. Metaswitch Networks Corporation, 2017 ONCA 790, Ceccol v. Ontario Gymnastics Federation (2001), 55 O.R. (3d), Nemeth v. Hatch Ltd., 2018 ONCA 7, Roden v. Toronto Humane Society (2005), 202 O.A.C. 351, Hampton Securities Limited v. Dean, 2018 ONSC 101, Paquette v. TeraGo Networks Inc., 2016 ONCA 618

Short Civil Decisions

Kimaev v. Sobeys Inc., 2019 ONCA 681

Keywords: Civil Procedure, Vexatious Litigants, Abuse of Process, Rules of Civil Procedure, Rule 2.1

Criminal Decisions

R. v. Esseghaier, 2019 ONCA 672

Keywords: Criminal Law, Conspiracy to Commit Murder, Terrorism, Jury Selection, Jury Impartiality, Criminal Code, s. 640(2), R. v. Husbands, 2017 ONCA 607, R. v. Grant, 2016 ONCA 639

R. v. A.R., 2019 ONCA 671 (publication ban)

Keywords: Criminal Law, Sexual Interference, Evidence, The Rule in Browne v Dunn, Motive, Sentencing, Browne v Dunn, (1863) 6 R. 67 (H.L.), R. v. W.(D.), [1991] 1 SCR 742

R. v. R.V., 2019 ONCA 664 (publication ban)

Keywords: Criminal Law, Sexual Interference, Invitation to Sexual Touching, R. v. J.F., 2008 SCC 60, R. v. Pittiman, 2006 SCC 9

R. v. Tomelty, 2019 ONCA 670

Keywords: Criminal Law, Assault, Possession of a Firearm, Evidence, Credibility

R. v. Kormendy, 2019 ONCA 676

Keywords: Criminal Law, Attempted Murder, Arson, Sentencing, R v Lacasse, 2015 SCC 64, R v Cheddesingh, 2004 SCC 16, R v Logan, [1990] 2 SCR 731

Ontario Review Board

Sparling (Re), 2019 ONCA 673

Keywords: Ontario Review Board, Procedural Fairness, Adjournments, Re Conway, 2016 ONCA 918

CIVIL DECISIONS The Commonwell Mutual Insurance Group v. Campbell, 2019 ONCA 668

[Paciocco, Harvison Young and Zarnett JJ.A]

Counsel:

Cynthia Verconich and Jessica Forester, for the appellant The Commonwell Mutual Insurance Group

Christine A. Powell, for the respondent SC

FACTS:

In April 2013, the respondent, SC, was involved in a dirt bike accident. He collided with an all-terrain vehicle (ATV), injuring the ATV driver, and was sued in negligence in April 2015.

The appellant, The Commonwell Mutual Insurance Group ("Commonwell"), held SC's home owner's policy. In June 2015, without securing a non-waiver agreement or issuing a reservation of rights letter, Commonwell appointed a lawyer to defend the claim against SC. In March 2016, Commonwell advised SC in writing that they were denying coverage and would be moving for a declaration that Commonwell was not obligated to defend or indemnify him. Commonwell invoked an exemption from coverage in the policy for vehicles not owned by the insured that are "required to be registered under any government authority". In August 2016, Commonwell brought an application seeking declarations that SC did not have coverage, nor was Commonwell obliged to defend him. During the application, Commonwell invoked a further exemption from coverage for vehicles used without the owner's consent.

In October 2018, the application judge denied the application and held that Commonwell had either waived its right to deny coverage and refuse to defend, or was estopped from doing so. Commonwell appealed.

ISSUES:

(1) Did the application judge err in law by not distinguishing between waiver and estoppel?

(2) Did the application judge err in applying each of these doctrines?

(3) Did the application judge err in finding that Commonwell is prevented from denying coverage?

HOLDING:

Appeal dismissed.

Reasoning:

(1) No. The application judge referred to these doctrines disjunctively. His comment that "[e]ither waiver or estoppel would apply" did not reflect a failure to decide whether either doctrine applied. In context, he was clearly saying that the application must fail on either basis.

(2) No, the application judge did not err in applying each of these doctrines.

The Court of Appeal found that the application judge was entitled to conclude that the litigation was well-advanced, and to infer that allowing Commonwell to now assert that there is no coverage (and therefore no duty to defend) would be detrimental to SC. The Court of Appeal rejected Commonwell's argument that "well advanced" litigation is a formal legal status that can be identified by the stage of litigation, and that prejudice is presumed as a matter of law where litigation reaches this stage. The Court of Appeal stated that Rosenblood Estate v. Law Society of Upper Canada (1989), 37 CCLI 142 (Ont HCJ), aff'd 16 CCLI (2d) 226 (Ont CA) does not stand for such propositions.

The application judge did not make a palpable and overriding error in finding detrimental reliance. Upon being served with a statement of claim in...