Top 5 Civil Appeals from the Court of Appeal (December 2017)

1. Levac v. James, 2017 ONCA 842 (Blair, Juriansz and Miller JJ.A.), November 3, 2017

   After performing an audit of a pain management clinic's infection prevention and control practices (IPAC), Toronto Public Health investigators identified patients who had developed infections after receiving injections administered at the clinic.

   One of the patients commenced an action and brought a motion seeking certification as a class action as well as partial summary judgment against a physician at the clinic. The two motions were argued one after the other on the same day and the motion judge issued one set of reasons and one order regarding both. He granted partial summary judgment and certified the class proceeding. In his analysis of certification, the motion judge discarded the formulation of the breach of care common issue that he had certified at the certification hearing, instead certifying a fourth formulation of his own devising.

   The physician appealed, arguing that the motion judge compromised procedural fairness.

   The Court of Appeal agreed, and allowed the appeal.

   Writing for the court, Miller J.A. noted that a certification judge may, in some circumstances, depart from the wording of a common issue that the parties have agreed upon and proposed, but emphasized that the requirements of procedural fairness impose limits on when and how that discretion may be exercised.

   Miller J.A. went on to note that the motion judge did not view his change to the wording of the formulation of the breach of care common issue as merely a "distinction without a difference". He clearly understood the new wording as capturing "permutations of the duty of care issue" absent from the three formulations previously advanced, better portraying the distinction between negligent performance and negligent design of the IPAC practice. Regardless of whether the new wording actually did so, Miller J.A. held that the parties were denied the opportunity to address that question through submissions to the motion judge. Miller J.A. also noted that the physician may well have contested certification of the class proceeding had he known the certified common issue would be the one formulated by the motion judge. He was deprived of the opportunity to contest not only the final formulation of the common issue, but certification of a proceeding premised on that issue.

   Miller J.A. rejected the respondent's submission that any unfairness from a lack of notice of the common issues was cured by the appeal process. The opportunity to argue an appeal with knowledge of the certified common issue did not cure the unfairness of arguing a summary judgment motion under a misapprehension about the common issue in question, and the ability to contest the certified common issue on appeal did not provide an adequate remedy for the lack of opportunity to convince the motion judge against certifying that issue at first instance. Miller J.A. held that it is crucial that litigants receive a fair process when they initially argue a certification motion, particularly since a certification judge's substantive conclusions are not easily set aside on appeal.

   The matter was sent back for a new certification motion.

2. Holmes v. Hatch Ltd., 2017 ONCA 880 (Cronk, Huscroft and Nordheimer JJ.A.), November 20, 2017

   The appellant employer, Hatch Ltd., appealed from summary judgment awarding the respondent employee, Paul Holmes, 18 months' reasonable notice at common law for the termination of his employment, subject to his mitigation obligations and applicable statutory deductions.

   The motion judge's conclusion turned on her finding that Hatch breached the termination clause contained in the parties' employment agreement. Specifically, the motion judge found that Hatch failed to consider Holmes' years of service, position, and age when fashioning his termination package, contrary to the express language of the termination clause. This failure was a fundamental breach of contract that, at law, constituted a repudiation by Hatch of the entire employment agreement. As a result, the motion judge concluded, Holmes was entitled to common law damages based on reasonable notice of termination.

   In a succinct decision, the Court of Appeal held that the summary judgment must be set aside and the matter remitted back to the Superior Court of Justice for a new hearing.

   The motion judge's conclusion was based on her finding that Hatch breached the employment agreement. The court pointed out, however, that Holmes did not plead this, nor did he allege in his pleading that Hatch repudiated the agreement on that basis. Moreover, he did not advance these claims in his materials or on the motion. It was only when the motion judge raised the notion of this type of breach during oral argument that the parties made oral and subsequent written submissions on this issue. Hatch was therefore denied the opportunity to lead evidence on the precise allegation on which the motion judge's decision ultimately turned.

   As the court emphasized in Rodaro v. Royal Bank (2002), 59 O.R. (3d) 74...