Top 5 Civil Appeals From The Court Of Appeal (April 2017)

1. PP v. DD, 2017 ONCA 180 (Rouleau, Hourigan and Huscroft JJ.A.), March 2, 2017

   PP and DD were set up by a mutual friend in the spring of 2014. They dated for several weeks, during which time PP understood that DD was using birth control and did not intend to conceive a child. After they broke up, PP was surprised - and unhappy - to learn that DD was pregnant. DD gave birth to a healthy baby. PP brought an action against DD for fraud, deceit and fraudulent misrepresentation, claiming that her deception and pregnancy deprived him of the choice of when and with whom he would have a child. In this appeal from a decision granting DD's motion to strike PP's Statement of Claim without leave to amend, the Court of Appeal weighed in on the matter of "involuntary parenthood".

   When DD informed PP that she was pregnant with his child shortly after their brief relationship had ended, PP was shocked and angry. He felt that he had been robbed of the future he had envisioned: he wanted to become a father with the woman of his choosing, when they decided as a married couple that it was the "right" time, not, in his words, with "some random girl" he had dated. He suggested that DD have an abortion.

   DD gave birth to a healthy child in March 2015.

   A few months later, PP commenced an action for damages against DD. His Statement of Claim asserted that he engaged in a sexual relationship with DD on the basis of her knowingly false representations with respect to her use of birth control and her implied intention not to conceive or deliver a child. He alleged that his consent was vitiated, having been induced by DD's misrepresentations that led him to believe that she was taking effective birth control. PP claimed he had suffered damages, having been deprived of the choice of when, and with whom he would raise a family. He also sought punitive damages.

   In September 2015, DD brought a motion to have PP's claim struck without leave to amend. Her motion was granted.

   The Court of Appeal affirmed the decision of the motion judge, holding that PP failed to make out a viable claim.

   Writing for the court, Rouleau J.A. emphasized that such a claim cannot succeed in the absence of recoverable damages. It is not sufficient to simply allege that damages were suffered; there must be a basis for the claim that a loss has been suffered for which the law allows recovery of damages.

   Rouleau J.A. distinguished the damages allegedly suffered by PP from those suffered by parents who bring lawsuits against health care providers whose negligence resulted in the unwanted birth of a child. In those cases, recovery has generally been allowed for the damages suffered as a result of the pregnancy and birth of the child, not for the cost associated with the mere fact of having become a parent. PP's damages did not relate to a physical or recognized mental illness, but rather to his "broken dreams", the possible disruption to his lifestyle and career, and a potential reduction in future earnings. These damages are not and, as a matter of legal policy, ought not to be recoverable by way of a fraudulent misrepresentation action.

   In Rouleau J.A.'s view, damages for the emotional and economic costs associated with raising a healthy but unplanned child are "fundamentally incalculable" and not revocable in tort. He turned to the decision of the House of Lords in Rees v. Darlington Memorial Hospital NHS Trust, [2003] UKHL 52, in which Lord Millett stated that while the birth of a healthy baby might be a mixed blessing, and individuals are entitled to regard it as unfavourable, society itself must view the balance as beneficial. To do otherwise would be "repugnant to its own sense of values". Justice Rouleau further held that to award damages to PP for the birth of his healthy child would be contrary to the spirit and purpose of Ontario's statutory family law regime, which provides remedies to ensure support for the child flowing from the simple fact of being a parent, without accounting for blame in the manner in which the child was conceived.

   Rouleau J.A. also rejected the submission that fraudulent misrepresentation as to the use of contraceptives vitiated the appellant's consent for the purpose of advancing a claim of sexual battery. As the Supreme Court explained in R. v. Hutchinson, 2014 SCC 19, for consent to be vitiated by fraud there must be dishonesty - which can include the non-disclosure of important facts - and a deprivation or risk of deprivation in the form of serious bodily harm that results from the dishonesty. The Supreme Court cautioned, however, that "deprivation" does not apply to financial deprivation, sadness or stress. Rouleau J.A. noted that the appellant's alleged damage was the emotional harm caused by his hurt feelings and lost aspirations, and distinguished that harm from the "profound physical and psychological effects on a mother undergoing a pregnancy". PP was not exposed to any serious transmissible disease or other significant risk of serious bodily harm. There was therefore no violation of his right to physical or sexual autonomy that would give rise to a claim in battery.

   The appeal was dismissed.

2. Moore v. Sweet, 2017 ONCA 182 (Strathy C.J.O., Blair and Lauwers JJ.A.), March 2, 2017

   This appeal arose from a battle over the proceeds of the life insurance policy of Lawrence Moore, between his wife of 20 years and his subsequent common law partner.

   The respondent, Michelle Moore, married Lawrence Moore in 1979. In October 1985, Lawrence applied for and obtained a policy of insurance on his life in the principal amount of $250,000 from a predecessor of RBC Life Insurance Company. He was named as the owner of the policy and the respondent a beneficiary, but not an irrevocable beneficiary. Annual premiums of $507.50 were paid from the Moores' joint account. After the couple separated in December 1999, the premiums were paid by the respondent alone. The policy remained in effect until Lawrence's death on June 20, 2013.

   Following the Moores' separation, Lawrence began a relationship with the appellant, Risa Sweet, with whom he lived until his death. Shortly after Lawrence and the appellant began living together - and contrary to an oral agreement he had with the respondent - Lawrence revoked the designation of the respondent as beneficiary and executed a change in beneficiary form designating the appellant as the irrevocable beneficiary under the policy. The change of beneficiary was properly recorded with the insurer.

   After Lawrence died, a dispute arose as to which woman was entitled to the proceeds of the policy.

   The application judge ruled in the respondent's favour, holding that the policy proceeds of $250,000 plus interest were held in trust and that the respondent was entitled to recover them on the basis of unjust enrichment.

   The...