Top 5 Civil Appeals From The Court Of Appeal (January 2018)

1. Children's Aid Society of the Regional Municipality of Waterloo v. C.T., 2017 ONCA 931 (MacFarland, Watt and Benotto JJ.A.), December 1, 2017

   This decision demonstrates the difficulty when a judge determines that the justice system has failed and something should be done for the litigants. While one may sympathize with the judge's concerns, this is a recipe for a decision that will get overturned on appeal.

   This was the second appeal from a trial decision that a 10 year old girl be made a Crown ward with no parental access for the purpose of adoption.

   On the biological parents' appeal of the no access order, the appeal judge found no error with the trial judge's determination, but nonetheless ordered access after an openness hearing ordered by him. He determined that trial counsel for the parents had been incompetent and ordered her to pay costs personally. He declared that the trial was unfair and that there had been a miscarriage of justice. He apologized to the parents on behalf of "the system".

   The Children's Aid Society, supported by the Office of the Children's Lawyer, appealed the appeal judge's orders as to access. The biological parents cross-appealed, seeking declarations that there had been a miscarriage of justice. Trial counsel cross-appealed the findings of ineffective assistance and the costs award against her.

   The Court of Appeal allowed the appeal, restoring the trial judge's determination of no access.

   Writing for the court, Benotto J.A. noted that the appeal judge found no palpable and overriding error by the trial judge and therefore erred in varying the "no access" order. That conclusion should have ended the appellate inquiry, but the appeal judge went on to consider fresh evidence about access, which did not support overturning the trial judge's decision. While the rule for admitting fresh evidence is more flexible in a child protection matter so that evidence providing "an accurate assessment of the present situation" can be considered, the proposed fresh evidence did not provide an accurate assessment of the present or future. There was nothing in the fresh evidence about access that was not before the trial judge.

   Benotto J.A. also observed that the requirements of s. 59(2.1) of the Child and Family Services Act, R.S.O. 1990, c. C.11, which create a presumption against access for a Crown ward, prohibited the making of an access order in this case. She wrote that the appeal judge failed to identify how the biological parents had discharged their burden to show that access was "meaningful and beneficial" to the child as required under that provision. Further, there was uncontroverted evidence of the prospective adoptive mother that she would not adopt the child if there was contact with her biological parents.

   Benotto J.A. found that the appeal judge further erred in partially basing his order of access on the indigenous status of the child in the absence of any evidence that the biological parents had any connection to their culture, that the child was ever exposed to the Indigenous culture or that anyone from the Indigenous community had ever been involved with the parents or the child. Benotto J.A. noted that while Indigenous membership has expanded to include self-identification, there must still be evidence in relation to the child so a determination can be made as to whether access is beneficial or meaningful to her. The appeal judge erred by ordering access based on the parents' self-identification in the absence of any evidence on this issue specific to the child.

   Benotto J.A. also determined that the appeal judge had no jurisdiction to order an openness hearing or to seize himself of it. By making the access order, to be followed by the openness hearing, the appeal judge ignored the mandatory process set out in s. 145.1.1(3) of the Child and Family Services Act. Moreover, the appeal judge was sitting in a non-Family Branch site and was acting in his appellate capacity as a Superior Court judge, not as a family court judge.

   Benotto J.A. dismissed the biological parents' cross-appeal, holding that the remedy of a declaratory judgment can only be granted if it will have practical utility or will settle a "live controversy" between the parties. In this case, there was no utility to the remedy sought: there were no interests to be determined and nothing would be settled as a result.

   Benotto J.A. allowed counsel's cross-appeal, holding that the appeal judge erred in finding ineffective assistance of counsel and ordering costs against her personally. Having found no error on the part of the trial judge, the issue of ineffective assistance was moot. It was also not open to the appeal judge to consider counsel's failure to apply for an access order after the trial judgment given the issue before him was the no access order from trial. Further, Benotto J.A. disagreed that such a motion would have succeeded.

2. DHMK Properties Inc. v. 2296608 Ontario Inc., 2017 ONCA 961 (Rouleau, Benotto and Roberts JJ.A.), December 7, 2017

   This appeal emphasizes the important damages principle that the injured party should be put in the position it would have been in but for the breach. This includes examining the consequences...