Top 5 Civil Appeals From The Court Of Appeal - April 2015

  1. Leighton v. Best, 2015 ONCA 180 (Lauwers, Hourigan and Pardu JJ.A.), March 18, 2015

  2. Figueiras v. Toronto (Police Services Board), 2015 ONCA 208 (Rouleau, van Rensburg and Pardu JJ.A.), March 30, 2015

  3. Mroz v. Mroz, 2015 ONCA 171 (Doherty, Gillese and Lauwers JJ.A.), March 16, 2015

  4. Westerhof v. Gee Estate, 2015 ONCA 206 (Laskin, Sharpe and Simmons JJ.A), March 26, 2015

  5. Parsons v. Ontario, 2015 ONCA 158 (Juriansz, LaForme and Lauwers JJ.A.), March 13, 2015

  6. Leighton v. Best, 2015 ONCA 180 (Lauwers, Hourigan and Pardu JJ.A.), March 18, 2015

    The appellant, Randy Leighton, suffered serious injuries when the respondent Matthew Best punched him in the jaw during a recreational hockey game. Following a trial, Best was found liable for battery on the basis that the blow exceeded the scope of Leighton's consent to the application of force.

    When Best went bankrupt before satisfying the damage award granted by the trial judge, the appellants moved for a declaration under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 ("BIA") that he was not released from his obligation to pay it. Section 178(1)(a.1)(i) of the BIA stipulates that "[a]n order of discharge does not release the bankrupt from ... any award of damages by a court in civil proceedings in respect of ... bodily harm intentionally inflicted". The motion judge's decision accordingly turned on whether the damage award was for "bodily harm intentionally inflicted".

    The motion judge drew parallels between the facts before him and those in Dickerson v. 1610396 Ontario Inc., 2013 ONSC 403: both cases involved single punches which occurred in "the heat of the moment", and both resulted in injuries and a civil damage award. He noted that while both punches were intentional, there was no proven intent to inflict bodily harm in either case. Significantly, the motion judge adopted the view expressed in Dickerson that, in crafting the exceptions outlined in s. 178 of the BIA, Parliament could not have intended to burden the defendant with a "life long penance" for a single punch. The motion judge concluded that the damage award did not survive the respondent's bankruptcy.

    In a brief endorsement, the Court of Appeal noted that while recreational hockey players can be presumed to consent to a certain level of contact and attendant risk, the trial judge's factual findings clearly determined that the respondent's punch was intentional and exceeded the scope of the appellant's consent to physical contact.

    The Court noted, however, that the fact that the punch was intentional is not sufficient to bring the damage award within s. 178(1)(a.1)(i) of the BIA; in order for the award to survive the respondent's bankruptcy, he must also have intended for the punch to cause bodily harm.

    In any event, the Court found that the respondent, like the plaintiff in Dickerson - which it reversed on appeal shortly after the motion judge delivered his decision in this case - indeed intended to cause the appellant bodily harm.

    In Dickerson v. 1610396 Ontario Inc. (Carey's Pub & Grill), 2013 ONCA 653, the Court of Appeal held that when one person hits another with a closed fist with such force as to cause the recipient to lose consciousness and fall to the ground, "it cannot be seriously doubted that the person intended to inflict bodily harm." The Court recalled the trial judge's findings that Best pulled off Leighton's helmet and delivered a blow which sent the six foot two inch, two hundred and twenty-five pound appellant to the ice with his jaw broken in three places. The inference that the respondent intended to cause significant bodily harm to the appellant was "inescapable".

    As in Dickerson, the Court rejected the motion judge's finding that damages for a single punch delivered in the heat of the moment should not survive bankruptcy, subjecting the respondent to a "life long penance". The circumstances of the assault and the number of blows are irrelevant. What matters is whether the defendant intended to cause bodily harm.

    Best clearly intended to cause bodily harm to Leighton. That intention is sufficient to bring the damage award related to that conduct within the exception in s. 178(1)(a.1)(i) of the BIA.

  7. Figueiras v. Toronto (Police Services Board), 2015 ONCA 208 (Rouleau, van Rensburg and Pardu JJ.A.), March 30, 2015

    In this appeal, which arose from police conduct during the 2010 G20 summit in Toronto, the Court of Appeal considered the proper scope of common law police powers and whether the police acted within those powers when they stopped demonstrators walking in downtown Toronto and required that they submit to a search of their belongings.

    On June 27, 2010, the second day of the summit, Paul Figueiras went downtown with some friends to demonstrate in support of animal rights. As they neared the corner of University Avenue and King Street, one block north of the security fence enclosing the summit site, the group was approached by police, who told them that they would have to submit to a search of their belongings if they wished to proceed. Figueiras refused to consent to the search.

    The incident, which was captured on a now-viral video, showed Figueiras protesting that the proposed search violated his civil rights and one of the officers retorting "there's no civil rights here in this area" and "this ain't Canada right now". Another officer, Sargent Charlebois, wrapped his arm around Figuerias' shoulder, grabbed his shirt and said "you don't get a choice", before pushing him and telling him to move along if he refused to submit to a search. Figueiras abandoned his plans to protest and went home.

    Figueiras later applied for a declaration that the police officers had violated his rights to freedom of expression, peaceful assembly and liberty under ss. 2(b), 2(c), and 7 of the Charter of Rights and Freedoms, as well as a declaration that Sgt. Charlebois had committed the tort of battery by grabbing and pushing him.

    The parties to the application agreed that the officers did not have statutory authority to demand Figueiras consent to a search in order to walk down a public street. The application therefore turned on whether the officers' actions were authorized under the common law ancillary powers doctrine.

    As the Court of Appeal recently explained in R. v. Peterkin, 2015 ONCA 8, where an officer's conduct has led to a prima facie interference with an individual's liberty or property, the court must apply a two-part test to determine whether that conduct falls within the officer's common law ancillary powers. The test was originally set out R. v. Waterfield [1963] 2 All E.R. 659 (C.C.A.):

    Does the impugned police conduct fall within the general scope of any duty imposed on the officer by statute or common law? If so, in the circumstances of this case, did the execution of the impugned conduct involve a justifiable use of the powers associated with the engaged statutory or common law duty? The parties agreed that the officers' conduct met the first part of the Waterfield test: they were acting in furtherance of their duty to preserve the peace. It fell to the application judge, therefore, to determine whether the impugned conduct met the second stage of the test. The application judge concluded that it did, explaining that requiring demonstrators submit to a search was...

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