Top 5 Civil Appeals From The Court Of Appeal (November 2015)

1. Mehedi v 2057161 Ontario Inc., 2015 ONCA 670 (Cronk, Lauwers and van Rensburg JJ.A.), October 6, 2015

2. Ferri v. Ontario (Attorney General), 2015 ONCA 683 (Cronk, Tulloch and Hourigan JJ.A.), October 8, 2015

3. Curoc Construction Ltd. v Ottawa (City), 2015 ONCA 693 (Gillese, Epstein and Roberts JJ.A.), October 15, 2015

4. Chrisjohn v. Riley, 2015 ONCA 713 (Gillese, van Rensburg and Miller JJ.A.), October 26, 2015

5. Puri Consulting Limited v Kim Orr Barristers PC, 2015 ONCA 727 (Gillese, van Rensburg and Miller JJ.A.), October 29, 2015

1. Mehedi v 2057161 Ontario Inc., 2015 ONCA 670 (Cronk, Lauwers and van Rensburg JJ.A.), October 6, 2015 The appellant, Golam Mehedi, claimed that the respondents, operating as "Job Success", promised to find him a job that paid $70,000 per year within two months, in exchange for a fee of $3,700. When Job Success failed to secure such employment, Mehedi sued. The trial judge dismissed the case, finding that none of the defendants made any promises or commitments that they did not fulfill and, specifically, that there was never a promise to find Mehedi a job within any specified time frame or at any specified salary range. The Court of Appeal dismissed Mehedi's appeal in January, 2012. Less than a month later, the CBC broadcast an episode of Marketplace entitled "Recruitment Rip-off", in which it exposed "Toronto Pathways", a Toronto recruitment agency which exploited vulnerable, unemployed persons - mainly immigrants newly arrived in Canada - by promising to find them good jobs in exchange for a fee. Using hidden cameras, the program showed the defendant Dale Smith acknowledging that Toronto Pathways and Job Success are the same business. It also revealed company officials explicitly promising to find prospective clients jobs in order to induce them to enter into a contract. The program showed a Marketplace staffer asking the defendant Wendell Lacombe: "So you're basically guaranteeing me that I'm going to get a job?" and Lacombe responding "Absolutely. And we are very good at it." The episode featured numerous individuals making the same claims as Mehedi. At the direction of Juriansz J.A., Mehedi brought a motion before a judge of the Superior Court under Rule 59.06(2)(a) of the Rules of Civil Procedure, R.R.O., 1990, Reg. 194, to adduce fresh evidence and re-open the trial. Mehedi sought to introduce as new evidence the Marketplace broadcast, as well as an article in the Metro newspaper recounting similar statements apparently made by Smith to a reporter posing as a Job Success customer. The motion judge dismissed Mehedi's motion, briefly stating that the new evidence, if allowed, would not reasonably affect the outcome of the trial. Mehedi appealed, invoking both Rule 59.06 of the Rules of Civil Procedure and the Court's inherent jurisdiction. Writing for the Court of Appeal, Lauwers J.A. noted that a motion judge's decision under Rule 59.06(2)(a) is discretionary and attracts considerable deference from a reviewing court. The decision should not be interfered with unless the motion judge erred in principle, misapprehended or failed to consider material evidence, reached an unreasonable decision or if the reasons failed to set out his reasoning process and do not reflect a consideration of the relevant factors. In Lauwers J.A.'s view, this was one such case: the motion judge provided inadequate reasons and erred in applying the test for setting aside an order under rule 59.06(2)(a). The test for re-opening a trial after the judgment or other order has been issued and entered was set out by the Court in Tsaoussis (Litigation Guardian of) v. Baetz (1998), 41 O.R. (3d) 257. In that decision, Doherty J.A. explained that the onus is on the moving party to demonstrate that the new evidence could not have been put forward by the exercise of reasonable diligence at the original proceeding. The Court must evaluate the cogency of the new evidence, any delay in moving to set aside the previous judgment, any difficulty in re-litigating the issues and any prejudice to other parties who may have acted in reliance on the judgment. Lauwers J.A. observed that the motion judge briefly referred to the appropriate test, but found that his reasons for refusing to re-open the trial were inadequate. He failed to describe the proposed new evidence or explain why it failed to meet the test or why it would not "reasonably affect the outcome" of the trial. These failures precluded the Court of Appeal from conducting a meaningful review of the basis for his dismissal of the appellant's motion. Lauwers J.A. concluded that Mehedi met the Baetz test. He held that the proposed new evidence was not available at the time of the first trial or the appeal, that the appellant did not delay in seeking relief and that there would be no prejudice to the respondents if the trial were re-opened. He also found the new evidence cogent: it appeared credible and, if accepted, would likely have affected the result of trial. The new evidence, which showed the respondents making the same or similar promises to others that the appellant alleges were made to him, supported the appellant's claim that the respondents had promised to find him a job at a specified salary and within a specified time, promises which the trial judge had dismissed as "unrealistic and unreasonable". 2. Ferri v. Ontario (Attorney General), 2015 ONCA 683 (Cronk, Tulloch and Hourigan JJ.A.), October 8, 2015 The appellant, Mario Ferri, is a regional councillor for the City of Vaughn. His son, Steven Ferri, is an associate at the law firm Loopstra Nixon LLP, practising in the areas of municipal, development and land use planning law. Following the adoption of the Vaughan Official Plan 2010 by Vaughan City Council, Antonio Di Benedetto retained Loopstra Nixon to appeal an aspect of the Plan to the Ontario Municipal Board. Steven Ferri works directly on the Di Benedetto Appeal, under the supervision of a partner of Loopstra Nixon. Pursuant to section 3 of the Municipal Conflict of Interest Act, R.S.O. 1990, chapter M.50 ("MCIA"), the pecuniary interest of any parent, spouse or child of a councillor, if known to the councillor, is deemed the pecuniary interest of the councillor. Section 5 of the statute provides that where a councillor has a pecuniary interest, direct or indirect, in any matter that is under consideration at a meeting, that member shall declare his interest and is prohibited from, among other things, discussing or voting in respect of the matter or attempting to influence the vote. Under section 4(k) of the MCIA, however, where the pecuniary interest of the councillor is "so remote or insignificant in...