To print this article, all you need is to be registered or login on Mondaq.com.
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. emphasized that the treaty clearly states
that use and disclosure of the assistance provided, such as
information seized under a warrant, is confined to the purpose
stated in the request. No other use or disclosure is permissible
without the prior consent of the central authority of the Requested
State, in this case the Minister of Justice. Moreover, the role of
the sending hearing judge under s. 15(1) of the MLACMA is
to ensure that the statutory conditions precedent to the making of
a sending order have been met. This requires the judge to examine
whether the warrant was executed according to its terms and
conditions and whether there is any other reason why what has been
seized should not be sent. Watt J.A. also noted that the discretion
to impose terms and conditions under s. 15(1)(b) of the
MLACMA did not extend to imposing terms and conditions
that would interfere with the conduct of an investigation or
proceedings in the Requesting State.
The appeal was dismissed.
2. MacKay v. Starbucks Corporation,
2017 ONCA 350 (Laskin, Feldman and Hourigan JJ.A.), May 2,
2017
Carole MacKay fell outside of a Toronto area Starbucks. At
trial, the jury determined that the fall occurred on an ice-covered
municipal sidewalk at the entrance to a patio at the
café's entrance. In a ruling before the case went to the
jury to decide, the trial judge held that Starbucks was an
"occupier" of that part of the sidewalk and therefore
owed MacKay a duty of care. The jury went on to find that Starbucks
breached that duty.
Starbucks appealed.
Feldman J.A., writing for the court, noted that there can be
more than one occupier of the same premises for purposes of the
Occupiers' Liability Act, R.S.O. 1990, c. O.2. The
court previously emphasized in Bongiardina v. York (Regional
Municipality) (2000), 49 O.R. (3d) 641 (C.A.) that this
includes municipal sidewalks. However, while owners of commercial
properties are often subject to municipal by-laws obligating them
to clear ice and snow on sidewalks surrounding their properties,
that obligation does not, on its own, make them occupiers of the
sidewalk within the meaning of the Act. The owner must have taken
steps to share sufficient possession or control with the
municipality.
Feldman J.A. held that it was open to the trial judge to
conclude that Starbucks had the requisite responsibility and
exerted the requisite degree of control over the sidewalk entrance
to its patio, and over its customers who used that area to access
its business premises, to be an occupier within the meaning of the
Act.
The court rejected the respondent's submission that, even
if the appellant were not found to be an occupier within the
meaning of the Act, it should nevertheless be found negligent based
on a breach of a common law duty of care. Section 2 of the Act
states that it replaces the previous common law rules that
determined the nature of the duty owed by an occupier of premises
with a statutory duty to take reasonable steps so that the premises
will be reasonably safe. Feldman J.A. concluded that it is clear,
based on s. 2 of the Act, that there is no general common law duty
of care, based on proximity principles, owed by an adjacent
property owner in respect of sidewalks that abut that person's
property. The only duty is the statutory duty owed by a person who
meets the definition of "occupier" under the Act.
The appeal was dismissed.
3. Azzeh v. Legendre, 2017 ONCA 385
(Weiler, Benotto and Roberts JJ.A.), May 12, 2017
On September 7, 2007, Bayden Azzeh and his mother Julia
Neville were involved in a car accident in Sudbury. Bayden suffered
brain injuries. He was just 17 days old.
After the accident, Neville retained the firm of Wallbridge,
Wallbridge to act on her and Bayden's behalf. Their contingency
fee agreement was for both mother and son with respect to the same
accident. Wallbridge issued a Statement of Claim on Neville's
behalf in April 2008. The claim was settled in August 2011. Shortly
thereafter, Neville made an application for statutory accident
benefits for Bayden, signing the application as his
"guardian".
In June 2014, Wallbridge issued a claim on behalf of Bayden,
"represented by his Litigation Guardian Julia Neville",
against Roger Legendre and Susan Legendre, the driver and owner of
the other car involved in the accident. Neville did not swear the
affidavit required by r. 7.02(2) of the Rules of Civil
Procedure, R.R.O. 1990, Reg. 194, which provides that no
person other than the Children's Lawyer or the Public Guardian
and Trustee shall act as litigation guardian for a plaintiff or
applicant under a disability until the prescribed affidavit has
been filed.
On May 25, 2015, Bayden changed lawyers, retaining Mazin and
Associates. Ingrid Dion, Bayden's grandmother, swore an
affidavit as his new litigation guardian. A few days later, Dion
gave notice to the City of a potential claim against it. In October
of that year, a court order substituted her as Bayden's
litigation guardian.
Bayden moved to amend his Statement of Claim to increase the
amount of damages sought and to add multiple defendants, including
his previous counsel, Neville, and the City of Sudbury, which had
jurisdiction over the intersection where the accident
occurred.
The City opposed the motion on two grounds: first, that the
claim against it was statute-barred under the Limitations Act,
2002, S.O. 2002, c. 24; second, that the claim was barred
because Bayden failed to provide it with notice within ten days of
the accident, as required under s. 44(10) of the Municipal Act,
2001, S.O. 2001, c. 25.
Unsuccessful on both counts, the City appealed.
The City submitted that the motion judge erred in holding that
the claim against it was not statute-barred. It took the position
that under the Limitations Act, 2002, a minor is
represented in relation to a claim as soon as someone takes steps
on his behalf in relation to the claim, not when a Statement of
Claim is issued. Accordingly, it argued that Bayden was represented
by Neville when she signed the contingency agreement with
Wallbridge or alternatively when she signed the application for
statutory accident benefits on his behalf in October 2011, and that
the limitation period had long expired by the time of Bayden's
motion.
The City submitted that the motion judge also erred in finding
that notice had been provided to it within the 10 day period set
out in Municipal Act, 2001. It argued that the 10 day
period began to run, at the latest, in June 2014 when Wallbridge
issued a Statement of Claim in which Neville held herself out as
Bayden's litigation guardian.
The Court of Appeal rejected the City's first submission
but gave effect to the second.
Writing for the majority, Weiler J.A. upheld the motion
judge's finding that Bayden was not represented by a litigation
guardian until June 11, 2014, when the Statement of Claim was
issued on Bayden's behalf against the Legendre defendants. She
noted that where the person with a claim is a minor, the
Limitations Act, 2002 requires that the minor be
"represented by a litigation guardian in relation to the
claim", meaning that the litigation guardian may do anything
in a proceeding that the party under disability would ordinarily be
required or authorized to do. Neville's contingency fee
agreement with Wallbridge did not result in Bayden being
represented by a litigation guardian in relation to the claim
because there was not yet any proceeding. Moreover, in the
statutory accident benefits application, Neville identified herself
as Bayden's "guardian", not as his litigation
guardian. Weiler J.A held that Neville could have been signing as
her son's substitute decision maker or simply using the word
colloquially.
Weiler J.A. also rejected Bayden's and Wallbridge's
submission that Bayden was still "not represented by a
litigation guardian in relation to the claim" in June 2014,
observing that Neville clearly held herself out her son's
litigation guardian to the Legendre defendants. Her failure to file
the required affidavit made the proceeding "an irregularity
and not a nullity". Weiler J.A. pointed out that to delay the
running of the limitation period on the basis that the litigation
guardian had not filed the required affidavit would render the
limitation period unlimited because the litigation guardian could
delay filing the affidavit indefinitely.
Weiler J.A. concluded that Bayden was represented by a
litigation guardian on June 11, 2014, and that is when the two-year
limitation period began to run. He filed his motion to amend his
claim on September 15, 2015, well within two years. Weiler J.A.
therefore concluded that the motion judge was correct in finding
that the Limitations Act, 2002 did not bar the claim
against the City.
On the notice issue, s. 44(10) of the Municipal Act,
2001 provides that no action shall be brought against a
municipality for failure to keep a highway in a reasonable state of
repair unless notice is given to the municipality within 10 days of
the occurrence of the injury. Although the notice requirement is
similar in character to a limitation period, the action will not be
barred if the plaintiff can provide a reasonable excuse for not
giving notice and if the municipality is not prejudiced in its
defence. The words "reasonable excuse" are to be given a
liberal interpretation. However, there was nothing in the record to
suggest that by the time Neville acted as Bayden's litigation
guardian on June 11, 2014, the extent of his injuries was unknown.
Neville was capable of forming the intention to sue the
municipality within the notice period and had retained counsel to
pursue claims on her son's behalf.
Dissenting in part, Roberts J.A. held that the motion judge
erred in making a final determination with respect to the
limitation and notice period issues. She noted that this was a
pleadings a motion, not a motion to determine an issue of law prior
to trial or even a summary judgment motion. No declaratory relief
was sought. She felt that there were credibility and factual issues
that ought to have been left for final determination on a summary
judgment motion or at trial. Roberts J.A. would have allowed the
appeal to the extent of granting leave to the appellant to plead
limitation and notice period defences.
The appeal was allowed, setting aside the motion judge's
order, and ordering that the claim against the City be
dismissed.
4. Biancaniello v. DMCT LLP, 2017
ONCA 386 (Feldman, Epstein and Miller JJ.A.), May 15, 2017
In this decision, the Court of Appeal considered whether a
mutual release signed in settlement of an action applies to a
future claim which was not anticipated at the time of
settlement.
The appellant, DMCT LLP, acted as accountant to the
respondent, Prinova Technologies. Incorporated as a consulting
business offering advice on document automation, Prinova also
developed a software business. DMCT billed Prinova more than
$60,000 for services rendered in 2006 and 2007 on three separate
matters, including the structuring of a "butterfly
transaction" in which Prinova's software and consulting
businesses were divided into separate companies. Prinova objected
to paying the fees, alleging that it obtained little value for the
services rendered and incurred damages as a result of some of the
advice provided by DMCT.
DMCT sued for its fees. Before a Statement of Defence was
delivered, the parties agreed to settle the litigation for a total
payment by Prinova of $35,000. As part of the settlement, the
parties executed a mutual release dated March 31, 2008.
Broadly-worded, the release provided that the parties:
... do hereby remise, release, and
forever discharge each other of and from all manner of actions,
causes of actions, suits, debts, duties, accounts, bonds,
covenants, claims and demands which against each other they had,
now have or hereafter may, can or shall have for or by reason of
any cause, manner or thing whatsoever existing to the present time
with respect to any and all claims arising from any and all
services provided by DMCT to Prinova through to and including
December 31, 2007 ... [Emphasis added.]
Subsequently, in late 2011, Prinova learned that the butterfly
transaction DMCT had structured could be subject to an income tax
liability of approximately $1.24 million.
Prinova obtained a court order dated January 23, 2013,
rescinding the steps taken to implement the butterfly transaction.
As part of its rescission application, Prinova included an
affidavit from Enzo Testa, the DMCT partner who had advised Prinova
on the butterfly transaction, in which Testa acknowledged that the
transactions designed by DMCT did not comply with the relevant
provisions of the Income Tax Act, R.S.C. 1985, c. 1 (5th
Supp.) and therefore were contrary to Prinova's
intentions.
Prinova incurred over $250,000 in legal and accounting fees in
the process of obtaining the rescission order.
In May 2012, Prinova filed a Notice of Action against DMCT
seeking an order setting aside the 2008 release and claiming $3
million in damages for negligence, breach of contract,
misrepresentation and breach of fiduciary duty.
DMCT moved for summary judgment to dismiss the action on the
basis that Prinova's claim was barred by the 2008
release.
The motion judge dismissed DMCT's motion, finding that the
release did not bar Prinova's claim. The Divisional Court
dismissed DMCT's appeal, agreeing with the motion judge that,
at the time it signed the release, Prinova did not know that
DMCT's advice on the butterfly transaction had been negligently
given, and therefore it did not know that it had a claim for
negligence against it.
The Court of Appeal disagreed.
Writing for the court, Feldman J.A. held that the Divisional
Court erred in law by failing to properly apply established
principles of interpretation.
Review the matter on a standard of correctness, Feldman J.A.
emphasized the importance of a contextual approach in the
interpretation of a release. As the Supreme Court explained in
Hill v. Nova Scotia (Attorney General), [1997] 1 S.C.R.
69, in determining what was contemplated by the parties, the words
used in a document must not be looked at in a vacuum. The context
in which the document was executed may assist in understanding the
particular words used.
Feldman J.A. concluded that the release was "clear and
unequivocal in its intent and effect". Although the release
did not specifically reference unknown claims, it included
"all" claims arising from the services provided to
Prinova by DMCT up to the end of December 2007. By including all
claims, there was no need to further specify the types of claims
that were included.
Feldman J.A. noted that in signing the release, the parties
intended to fully and finally settle their fee dispute. The
language of the release reflected that intention, "wiping the
slate clean" in respect of the work performed by DMCT –
including the butterfly transaction – by covering all claims
arising from that work. Feldman J.A. pointed out that had the
parties wished to exclude claims which might later be discovered
arising from that work, they could have done so.
The court allowed the appeal, set aside the decision of the
Divisional Court and granted summary judgment dismissing the
action.
5. Bollman v. Soenen, 2017 ONCA 391
(Simmons, Pepall and Huscroft JJ.A.), May 17, 2017
The respondent performed a surgical procedure on the
appellant. Although the surgery appeared to go smoothly, in the
following days and weeks the appellant experienced significant pain
and complications. A CT scan revealed an injury, and corrective
surgery followed.
The appellant sued the respondent alleging negligence. She also
alleged that he failed to obtain her informed consent to the
procedure.
The trial judge rejected the appellant's claims that the
respondent was not qualified to perform the surgery and that he
failed to meet the standard of care in performing it. While the
trial judge was not satisfied that the respondent fully informed
the appellant about the risks of surgery, he concluded that a
reasonable person experiencing the appellant's symptoms would
have chosen to proceed with the surgery had full disclosure been
made. The informed consent claim was therefore dismissed.
The trial judge did not find the respondent negligent in his
post-operative care, however, he held that the respondent could
have spared the appellant an additional week of pain and
complications as well as the second surgery had he ordered the CT
scan sooner. He awarded the appellant $35,000 in damages.
The appellant appealed the dismissal of her claim based on a lack
of informed consent, while the respondent cross-appealed with
respect to the finding based on the timing of the CT scan. The
Court of Appeal dismissed the former and allowed the
latter.
Writing for the court, Simmons J.A. found that the trial judge
correctly applied the test for informed consent in medical
negligence cases established by the Supreme Court in
Reibl v.
Hughes, [1980] 2 S.C.R. 880, and modified in
Arndt v.
Smith, [1997] S.C.R. 539. The trial judge's reasons
demonstrated that he believed the appellant when she said that she
would have tried other management had full disclosure been made,
but found her evidence tainted by hindsight and therefore
unreliable. Taking account of the appellant's circumstances at
the time, he concluded that she wanted relief and a
"solution". The trial judge held that a reasonable person
who had experienced the appellant's symptoms over the same time
period and with the same attempts at correction that she had tried,
would have opted for surgery – even with its small risk of
injury – to solve the problem.
Simmons J.A. rejected the appellant's submission that the
trial judge ignored or failed to consider the evidence of her
expert in reaching this conclusion. She found that the trial judge
considered all of the evidence and applied the correct legal test.
The trial judge's conclusion was entitled to
deference.
Turning to the cross-appeal, Simmons J.A. held that the trial
judge did err, however, in finding that the respondent failed to
consider and investigate a possible surgical injury a week before
the date of the CT scan. Read as a whole, the expert evidence did
not support this conclusion. Although two physicians gave opinions
relied upon by the trial judge, both acknowledged that declining to
order a CT scan would be a reasonable decision – or at least
not an unreasonable one – and thus within the standard of
care.
http://lernersappeals.ca/netletters
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.