Top 5 Civil Appeals from the Court of Appeal

In preparation for summer, the Court of Appeal's May decisions addressed a number of interesting points including the application of limitation and notice periods to minors and litigation guardians, the objective component of the informed consent analysis in medical cases, "sending orders" in the context of Canadian assistance to foreign jurisdictions in criminal matters, the required wording for releases to capture unanticipated future claims, and when a commercial property owner becomes an "occupier" of the municipal sidewalk abutting the business.

1. Belgium v. Suthanthiran, 2017 ONCA 343 (Laskin, Gillese and Watt JJ.A.), May 1, 2017

2. MacKay v. Starbucks Corporation, 2017 ONCA 350 (Laskin, Feldman and Hourigan JJ.A.), May 2, 2017

3. Azzeh v. Legendre, 2017 ONCA 385 (Weiler, Benotto and Roberts JJ.A.), May 12, 2017

4. Biancaniello v. DMCT LLP, 2017 ONCA 386 (Feldman, Epstein and Miller JJ.A.), May 15, 2017

5. Bollman v. Soenen, 2017 ONCA 391 (Simmons, Pepall and Huscroft JJ.A.), May 17, 2017

1. Belgium v. Suthanthiran, 2017 ONCA 343 (Laskin, Gillese and Watt JJ.A.), May 1, 2017 The Court of Appeal granted leave to hear this appeal on a single issue of law: whether the application judge erred by refusing to impose terms and conditions on a sending order obtained under the Mutual Legal Assistance in Criminal Matters Act that would minimize the risk that the applicants' confidential information would be unnecessarily and inappropriately disclosed to third parties. Best Theratronics is in the business of cancer diagnosis and treatment. It manufactures cyclotrons, machines that produce radioactive isotopes for use in radiation therapy. The individual appellant, Krishnan Suthanthiran, the founder and owner of Best, heads an international group of companies all in the business of providing medical equipment and supplies. The corporate appellants, Best Theratronics Ltd. and Best Medical Belgium Inc., are part of this international group. Belgian authorities believe that three Best transactions involving a loan and the purchase and sale of two cyclotrons are criminal offences in the Kingdom of Belgium. Belgium sought assistance from Canada under the mutual legal assistance treaty between the two countries and, on Belgium's behalf, counsel for the Attorney General of Canada obtained a search warrant under s. 12 of the Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.) (MLACMA), which authorized the search of Best's offices in Canada for records relating to what Belgium regarded as the criminal transactions. The premises were searched and records seized. Suthanthiran claimed that the records seized under the search warrant included documents containing a variety of commercially sensitive information, such as material about the design and manufacture of cyclotrons. This information, while of significant value to Best's competitors, was of little value in the potential criminal prosecution. Belgium brought an application for a sending order under s. 15(1) of the MLACMA. Best wanted the order tailored to ensure that a state-owned competitor could not access the commercially sensitive information included in the seized documents. The application judge granted the sending order but declined to attach any terms or conditions restricting access to the documents to those involved in the criminal prosecution. The Court of Appeal held that the application judge did not err. Writing for the court, Watt J.A. noted that parties can craft appropriate terms and conditions to attach to a sending order. The Treaty between the Government of Canada and the Government of the Kingdom of Belgium on Mutual Legal Assistance in Criminal Matters contemplates the imposition of such conditions. Article 10, for example, requires that the Requesting State observe any conditions imposed by the Requested State with respect to seized documents. The MLACMA, which gives effect to the treaty, also contemplates discretion to impose terms and conditions. Section 15(1)(b) of the MLACMA authorizes a sending hearing judge to impose any terms or conditions on the sending order that he or she deems desirable, including those necessary give effect to the request, to preserve and return to Canada any record seized, and to protect the interests of third parties. Despite having the discretion to impose such terms and conditions, however, Watt J.A. held that the sending hearing judge did not err in declining to impose any in this case. In Watt J.A.'s view, the nature of the mutual legal assistance scheme did not favour the inclusion of the particular terms and conditions sought by the appellants, namely (i) that the items or copies of the items not be disseminated to any private person, party or litigant who was not involved in an official capacity in the criminal proceedings and (ii) that if the Belgian authorities wished to make different use of the seized material, they could re-apply to the Superior Court of Justice for such permission. Watt J.A...