Canada: Court Of Appeal Summaries (December 22 – 26, 2014 And December 29, 2014 – January 2, 2015 )

Hello again. I hope everyone enjoyed the holidays and wish you all the best for 2015. Following are the Ontario Court of Appeal Summaries for the weeks of December 22 and 29, 2014. We will resume our regularly scheduled Friday afternoon postings commencing this Friday. Topics covered below include defamation, family law, assessment of lawyers' accounts, insurance law, limitation periods, summary judgment, enforcement of international arbitral awards, medical malpractice and complaints to the Chief Justice under section 86.2 of the Courts of Justice Act with respect to alleged judicial misconduct. Perhaps the most significant decision released in the last two weeks was the decision in PS v Ontario, in which a five member panel of the Court of Appeal declared certain provisions of the Mental Health Act unconstitutional for not providing the Consent and Capacity Board with enough powers to appropriately deal with involuntarily detained persons suffering from disabilities.

Ariston Realty Corp. v. Elcarim Inc., 2014 ONCA 925

[Juriansz, LaForme and Lauwers JJ.A.]
Counsel:
D. A. Taub and E. Gersh for the appellants/respondents by way of cross-appeal
B. B. Skolnik, for the respondent/appellants by way of cross-appeal

Keywords: Costs

Facts:
The appellants realized substantial success on appeal. The central issue at both levels was the respondents' claim of commission earned. An additional issue on appeal was the personal liability of Ms. Mascall.

Holding: Costs of the appeal in favour of the appellants are fixed in the amount of $20,000 all inclusive. Costs order of the trial judge set aside and trial costs fixed in favour of the appellants in the amount of $130,000 all inclusive.

Reasoning:
The appellants are entitled costs at trial and on appeal, subject to some reduction to recognize the subsidiary success of the respondents on their claim of quantum meruit.

Kassburg v Sun Life Assurance Company of Canada, 2014 ONCA 922

[Watt, van Rensburg and Pardu JJ.A.]
Counsel:
D. McDuff, for the appellant
G. Larmer, A. Wray and N. Simmonds, for the respondent

Keywords: Insurance Law, Civil Litigation, Summary Judgment, Rules of Civil Procedure – Rule 20, Hryniak v Mauldin; Limitation Periods; Limitations Act, 2002 – ss. 22(5), 22(6), Consumer Protection Act, 2002 – s. 1; Contract Interpretation, Sattva Capital Corp. v Creston Moly Corp

Facts:
The respondent Karen Kassburg, an employee of the North Bay Police Service, was insured under a group policy issued by the appellant Sun Life Assurance Company of Canada to the North Bay Police Association ("NBPA"), of which she was a member. The respondent's claim for long-term disability benefits, submitted to the appellant in 2008, was denied.

The respondent started an action claiming entitlement to the disability benefits in February 2012. The appellant brought a motion for summary judgment, asserting that the action was out of time, as both of the potentially applicable limitation periods, either under the insurance contract or the Limitations Act, 2002, S.O. 2002, c. 23, Sched. B, had expired.

The appellant relied on the one year limitation period under the insurance contract, which it contended had been grandfathered as a pre-January 1, 2004 contract limitation period (s. 22(2) of the Limitations Act, 2002) or as a limitation period provided under a "business agreement" (s. 22(5) of the Limitations Act, 2002). If the contractual limitation period was unenforceable, the appellant relied on the general two year limitation period under the Limitations Act, 2002.

The appellant's motion was dismissed, and the motion judge granted a declaration that the respondent's action was commenced within the applicable limitation period.

Issues:
(1) Did the motion judge err in finding that the contractual limitation period was ambiguous and therefore unenforceable?

(2) Did the motion judge err in concluding that the statutory limitation period did not begin to run until after the respondent had exhausted the appellant's internal appeal process?

(3) If the motion judge did not err in dismissing the summary judgment motion, did he err in granting judgment in favour of the respondent on the limitation period issue, and not directing that issue to trial?

Holding: Appeal dismissed.

Reasoning:
(1) No. The insurance policy consisted of the Contract Document and the Booklet, which was incorporated by reference into the contract. The limitation period was expressed in different terms in each. The motion judge properly considered the entire contract, and found that because the limitation period was not clear, as required under Boyce v The Co-Operators General Insurance Co., 2013 ONCA 298 ("Boyce"), it was not capable of being enforced against the respondent. The interpretation of a contract involves questions of mixed fact and law and an appellate court should not interfere with the interpretation of a contract by a lower court, in the absence of a palpable and overriding error of fact or an extricable legal error, including the application of an incorrect principle, the failure to consider a required element of a legal test or the failure to consider a relevant factor: Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53, at para 53.

(2) No. Whether a limitation period "expired prior to the issuance of a statement of claim is a question of mixed fact and law": Longo v MacLaren Art Centre Inc., 2014 ONCA 526. The question of when the respondent "discovered" her claim for the purposes of s. 5 of the Limitations Act, 2002 was, in the circumstances here, essentially a question of fact. The motion judge determined that the claim was discovered on February 24, 2011, the date of the letter in which the appellant advised the respondent that her final appeal had failed (as opposed to the appellant's contention that the claim was discovered by the respondent on December 4, 2008, when her claim for LTD benefits was initially denied). In arriving at this determination, the motion judge considered the correspondence between the parties where the appellant communicated that the respondent's claim had been denied and where the former reserved its rights to rely on limitation defences. The fact that the motion judge extracted certain passages from the correspondence and included them in his reasons does not mean that he disregarded or ignored other parts.

The appellant was inviting the Court of Appeal to reweigh the evidence considered by the motion judge to arrive at a different factual conclusion. This was not the Court's function. On a Rule 20 motion, the motion judge's exercise of discretion in making factual determinations is entitled to considerable deference.

Finally, the three cases relied on by the appellant on the motion and on the appeal did not assist the appellant, either because in those cases the date from which the limitation period ran was not at issue, or because they involved different factual findings.

(3) No. Consistent with Hryniak v Mauldin, 2014 SCC 7 and the clear wording and purpose of the summary judgment rule, it was open to the motion judge to determine the issue of the limitation defence on a final basis on the record before him in this case. The parties put a comprehensive record before the court, which the appellant considered sufficient for the limitation period issues to be able to be determined. The appellant could have cross-examined on the respondent's affidavit filed on the motion, but chose not to do so. It is in the interests of justice that the issue was determined on a final basis by the motion judge at this stage.

The Court of Appeal also addressed the respondent's cross-appeal. While it was dismissed as being moot, the Court held that the motion judge erred in concluding that the disability policy constituted a "business agreement" for the purpose of ss. 22(5) and (6) of the Limitations Act, 2002. The clear wording of ss. 22(5), 22(6) and s. 1 of the Consumer Protection Act, 2002 (incorporated by ss. 22(6)) permits contracting out of the statutory limitation period, unless the parties to the contract include an individual, and the contract was for "personal, family or household purposes". The word "parties" in ss. 22(6) should be given a broader, purposive reading to accord with the objective of s. 22, which is to restrict the circumstances in which the statutory limitation periods under the Limitations Act can be altered by contract. Although the group insurance contract under which she was making her claim was entered into between the NBPA and the appellant, the appellant relied on a limitation period contained in that contract to exclude her claim. The respondent was in effect deemed to be a party for the purpose of asserting her claim, and for the purpose of the appellant's limitations defence. With respect to the "purposes" requirement, the contract was for personal purposes, and accordingly was not a "business agreement" under ss. 22(5). The Boyce case was properly distinguished by the respondent, as the insurance policy in that case was for business purposes.

Canadian Planning and Design Consultants Inc. v. Libya, 2014 ONCA 924

[Sharpe, van Rensburg and Pardu JJ.A.]
Counsel:
J. Melia and J. Radford, for the appellant
M. Ruby, G. Graham and M. Comartin, for the respondent

Keywords: International Arbitration, Enforcement, Procedural Fairness, Notice, Setting Aside Orders, Rules of Civil Procedure – Rule 38.11

Facts:
The State of Libya ("the appellant") appeals an order enforcing an international arbitral award from the ICC Court of Arbitration. The appellant complains that it was denied procedural fairness when the respondent's application proceeded in the Superior Court in the appellant's absence on June 20, 2014.

The appellant had retained counsel and had participated in the proceedings up to and including May 27, 2014. On that date, an order was made removing solicitors of record because the appellant had terminated its solicitors' retainer. In support of that motion, the appellant's solicitors filed a letter from the appellant's ambassador instructing them that the appellant "had decided to follow different channels and procedures" to deal with the respondent's claim. The May 27 order referred to that letter as "showing [Libya's] intent to withdraw from these proceedings". The May 27 order also set the return date for the hearing of the application to the week of June 16, 2014. The May 27 order was not appealed or otherwise challenged. It is conceded that the appellant was notified of that order. The matter came on for hearing the week of June 16, as provided for in the May 27 order, and was actually heard on June 20. No one appeared for the appellant and the order was made.

The appellant submits that it did not have proper notice of the June 20 hearing date.

Issue: Was the applicant denied procedural fairness?

Held: Appeal dismissed.

Reasoning:
No. The court concluded that there was no adequate record before it as to the state of the appellant's knowledge regarding the June 20 date or its reasons for not appearing on that date. The only evidence as to the appellant's intentions with respect to the application is the letter indicating that it had decided "to follow different channels and procedures" which the motion judge interpreted as indicating an intention to withdraw from the proceedings. In these circumstances, the court found there to be no basis to interfere with the order on procedural fairness grounds.

Instead, the court noted that the appropriate procedure to raise this issue was, and still may be, a motion to set aside the order pursuant to rule 38.11 in the Superior Court on a proper factual record. If such an application is brought subsequent to this appeal, it will be for the Superior Court to determine the availability of that remedy.

Gutowski v. Clayton, 2014 ONCA 921

[Blair, Pepall and Lauwers JJ.A.]
Counsel:
C.K. Boggs and K. F. Stevens, for the appellants
K.A. MacLaren and O. Bourns, for the respondent

Keywords: Civil Litigation, Defamation Law, Absolute Privilege, Qualified Privilege, Municipal Councillors, Rules of Civil Procedure – Rule 21, Determination of Question of Law

Facts:
The parties are elected members of the council of the County of Frontenac. At a regularly scheduled council meeting, the defendants made, seconded and approved of a motion alleging that the plaintiff had engaged in a form of corruption and the "peddling of political favours", and had lost the trust of council. The defendant Jones is also alleged to have asked, rhetorically, "What other tricks has she been up to?"

The plaintiff commenced this action for defamation. The defendants pleaded, amongst other things, the defences of absolute privilege and qualified privilege.

The defendants moved for a determination of a question of law, and asked to have the allegations of defamation struck on the basis that the words were protected by absolute privilege. Relying on a Supreme Court of Canada case that stated that elected municipal officials do not enjoy parliamentary privilege, the motion judge held that absolute privilege does not attach to statements made by municipal councillors during the course of a municipal council meeting and dismissed the motion to strike.

Issue: Did the motion judge err in holding that the defence of absolute privilege does not apply to statements made by municipal councillors during the course of a municipal council meeting?

Holding Appeal dismissed.

Reasoning:
No. The motion judge correctly reviewed the case law to conclude that municipal councillors enjoy qualified privilege only. The appellants concede this point, and argue that absolute privilege ought to protect speech made during the course of municipal meetings. A ruling on whether or not absolute privilege ought to be extended to municipal councillors should be made only after a full evidentiary hearing. A Rule 21 motion is not the proper vehicle to develop an area of law that is not fully settled.

However, the rationale underlying the policy argument is precisely why qualified privilege has already been extended to municipal councillors. Nothing in the record demonstrates that there is any need for municipal councillors to enjoy absolute privilege, or that the protection of qualified privilege is inadequate, and it would therefore be inappropriate to presume a chilling effect as suggested by the appellants.

Because the impugned comments are not covered by absolute privilege, the appellants' request to strike paragraph 16 of the Statement of Claim is dismissed. Pleading that a defamatory statement was made to unnamed persons is permissible if the plaintiff has made out a prima facie case that the statement was made to a named person and has produced uncontradicted evidence of publication to others. The respondent met both of these requirements.

Larman v. Mount Sinai Hospital, 2014 ONCA 923

[Sharpe, van Rensburg and Pardu JJ.A.]
Counsel:
J.B. Johnston, for the appellant
E. K. P. Grace and N. Marotta, for Dr. Safir, Dr. Okusanya and Dr. Nauth
D. Girlando and M. Lindo, for Mount Sinai Hospital
Keywords: Civil Litigation, Medical Malpractice, Summary Judgment, Rules of Civil Procedure – Rule 20

Facts:
The motion judge dismissed the appellant's action claiming damages as a result of the medical treatment he received from the respondents. The appellant argued he was denied procedural fairness when the respondents relied on discovery transcripts at the hearing of the motion.

Issue: Did the motion judge err in granting a summary judgment?

Holding: Appeal dismissed.

Reasoning:
No. There was no evidence of causation put forth by the appellant in response to the motion and there was no evidence in the expert report that the hospital and the two doctors fell below the standard of care. The failure to put forward any evidence regarding the essential elements of the claim was fatal for the appellant. Furthermore, there was no denial of procedural fairness. The motion judge granted summary judgment because the appellant failed to meet his obligation to put his "best foot forward" irrespective of the moving party's evidence. The failure to do so meant that there was no evidence to address the central elements of the appellant's claim, including causation, and therefore no issue requiring a trial.

Teitel v Ontario (Attorney General), 2014 ONCA 893

[Sharpe, van Rensburg and Pardu JJ.A]
Counsel:
M. Teitel, in person
T. Kloeze, for the Attorney General of Ontario
M. Solmon and E. Borzi, for Master Ronald Dash

Keywords: Civil Litigation, Judicial Misconduct, Bias, Courts of Justice Act – s. 86.2, Complaint to Chief Justice

Facts:
An appeal, with leave, was made from the decision of the Chief Justice of the Superior Court dismissing a complaint lodged against a Case Management Master. Under s. 86.2 of the Courts of Justice Act, a person may make a complaint in writing to the Chief Justice alleging misconduct. The appellant made a complaint that the Master had acted with a lack of integrity and impartiality in relation to a costs decision in an attempt to cover up mistakes the Master had made. The Chief Justice gave detailed written reasons for dismissing the complaint. The appellant submitted that the Chief Justice failed to give adequate reasons for dismissing the complaint and exceeded her jurisdiction by asking the Master for an explanation. The appellant contends that he was denied procedural fairness, as the Chief Justice failed to disclose to him the Master's response and allow him an opportunity to respond.

Issue: Did the Chief Justice err in dismissing the complaint?

Holding: Appeal dismissed. Master entitled to costs.

Reasoning:
No. The Chief Justice gave careful and comprehensive reasons which clearly explain why she dismissed the complaint. The Court also did not find that the Chief Justice erred or exceeded her jurisdiction by asking the Master for his comments. Subsection 86.2(2) permits the dismissing of a complaint "without further investigation". However, that does not mean the Chief Justice is precluded from asking the subject of the complaint for comment. The Court also did not accept the submission that the Chief Justice was required to provide the appellant with an opportunity to comment on the Master's response.

The Court held that ss. 86.2(2) gives the Chief Justice clear authority to dispose of groundless complaints in a summary manner. The powers must be read in light of the important role the Chief Justice plays in fostering the integrity and independence of the court, and the privilege attaching to judicial deliberations.

Sidhu v. State Farm Mutual Automobile Insurance Company, 2014 ONCA 920

[Sharpe, van Rensburg and Pardu JJ.A.]
Counsel:
T.J. McCarthy, for the appellant
F.J. Burns, for the respondent

Keywords: Civil Litigation, Insurance Law, Motion for Mistrial, Jury Address, Interest, Statutory Accident Benefits Schedules – O.Reg. 403/96 and O.Reg. 34/10

Facts:
The appellant, State Farm, appealed the decision of Lack J., who dismissed its two motions for a mistrial on the basis that her instructions to the jury were inadequate.

Issue: Did Lack J. err in dismissing the appellant's motions for a mistrial?

Holding: The appeal was dismissed and costs fixed in the amount of $15,000 were awarded to the respondent.

Reasoning:
No. Lack J. did not err in dismissing the appellant's two motions for a mistrial. The trial judge's decisions are entitled to deference and a review of her instructions to the jury do not demonstrate that she made any error of law or principle. When plaintiff's counsel made two irrelevant remarks to the jury, she instructed them not to consider those remarks and also told them the specific issues upon which the jury should focus. In sum, Lack J.'s jury address was clear on all points, and the panel was satisfied that the jury properly understood its task, what it was to consider, and what considerate was not ignore.

With respect to the appellant's argument that Lack. J erred in awarding interest at two percent per month on overdue payments, subsection 2(2) of the new schedule of Statutory Accident Benefits Schedules – O.Reg. 34/10 clearly preserves the substantive right to the former two percent rate (citing Federico v. State Farm Insurance Company, 2013 CarswellOnt. 6347, at para. 64 (F.S.C.O.)).

P.S. v Ontario, 2014 ONCA 900

[Weiler, Laskin, Sharpe, Gillese and van Rensburg JJ.A]
Counsel:
M. Perez and K.A. Steward, for the appellant
S.A.Metzler and K.M. Frelick, for Waypoint Centre for Mental Health Care
H. Schwartz and J. Hunter, for her Majesty the Queen in Right of Ontario and the Attorney General for Ontario
K.R. Spector, for the intervenor, Mental Health Legal Committee
D.S. Morritt and E. Morgan, for the intervenor, Canadian Civil Liberties Association

Keywords: Constitutional Law, Canadian Charter of Rights and Freedoms, s. 15 – Equality Rights, s. 7 – Liberty, ss. 52(1) of the Constitution Act, Habeas Corpus Jurisdiction, Mental Health Act, Disability, Involuntary Detention, Bifurcation Order

Facts:
The appellant's involuntary committal in a mental health facility began in 1996 on the day he was to be released from the penitentiary after serving a sentence for sexual assault. His committal lasted for nineteen more years, with no apparent end in sight. He has been held in a maximum security facility throughout his involuntary detention. The appellant contended that the Mental Health Act (MHA) fails to provide an adequate procedural process to protect his right to liberty guaranteed by s.7 of the Charter. The appellant claimed that he has also been denied his constitutional right to equality guaranteed by s. 15 of the Charter, as he is deaf and argued that he has not received the level of sign language interpretation required to meet his treatment, rehabilitative and other needs during his nineteen years of confinement. Pursuant to the MHA, the Consent and Capacity Board has repeatedly reviewed the appellant's detention and has affirmed the appellant continues to meet the criteria for involuntary detention but does not belong in a maximum security facility. The Board has urged his treatment team to transfer him to a less secure facility and ensure that he receives proper sign language interpretation.

In October 2007, after it became apparent his transfer to a medium security facility would not be forthcoming, the appellant brought an application for hapeas corpus and a declaration that his rights had been breached under ss. 8, 9, 10(a), 12 and 15(10) of the Charter. In February 2008, Marchand J. granted the motion of the hospitals to strike out the application. The appellant appealed this order to the Court of Appeal. The appeal was allowed on terms agreed to by the parties, resulting in the bifurcation order. In 2011, the appellant filed an Amended Notice of Application seeking a declaration that the involuntary detention and review provisions of the MHA are inconsistent with ss.7, 9, 12, 15(1) of the Charter and are of no force and effect under s. 52(1) of the Constitution Act, 1982.

The application judge determined that since the MHA contained a complete code for reviewing decisions, the court should decline to exercise its habeas corpus jurisdiction. The application judge concluded that the Court of Appeal's decision in Starnaman v Penetanguishene Mental Health Centre conclusively determined that the MHA does not offend ss.7, 9 or 12 of the Charter. Additionally it was found that the appellant did not suffer a s.7 infringement. Although the maximum security facility was not an ideal setting because of its security level and limited deaf-appropriate services, it provided a safe and secure environment with some sign language support. The appellant enjoyed additional privileges that were tailored to his individual circumstances. The judge concluded that there was no evidence that the failure to accommodate the appellant's disability prolonged his detention contrary to s.7 of the Charter. However the application judge did find the appellant's ss.15(1) rights had been infringed by not providing him with effective communication during a number of specific therapeutic interactions. As he found only historical breaches of the appellant's Charter rights, it was unnecessary to determine the appellant's service and security needs as contemplated by the bifurcation order. The appellant appealed this decision and moved to introduce fresh evidence regarding his status as an "involuntary patient".

Issues:
(1) Should the fresh evidence be admitted?

(2) Did the application judge err in rejecting the appellant's claim that the involuntary detention provisions of the MHA violate the constitutional standard mandated by s.7 of the Charter when applied to long-term detainees?

(3) Did the application judge err with respect to the appellant's claim that his s.15 rights were violated?

(4) Did the application judge err by declining to exercise his habeas corpus jurisdiction?

(5) Did the application judge misinterpret the court's 2008 bifurcation order by failing to determine the appellant's service and security needs?

(6) If the applicant's Charter rights were violated, what is the appropriate remedy?

Holding:
Sections of the MHA dealing with involuntary committal violate s.7 of the Charter by allowing for indeterminate detention without adequate procedural protection of the liberty interests of long-term patients. The declaration of invalidity is to be suspended for twelve months in order to allow the legislature to consider revisions.

The appellant had not been provided with adequate interpretation services, violating his right to equality under ss.15(1) of the Charter. If, despite the articulation of the extent of his constitutional rights, further litigation is required, the matter is to be remitted to the Superior Court of Justice as contemplated by the bifurcation order.

Reasoning:
(1) The fresh evidence motion is dismissed. An appellate court will only entertain a fresh issue where the opposing party would not be prejudiced, where the interests of justice require the argument to be heard and where the court would have a sufficient evidentiary record to entertain the issue. Here, the issue was explicitly raised before the application judge and the appellant made a clear decision to proceed on the basis that he was an involuntary patient in an Agreed Statement of Facts. It would be unfair to the respondents to introduce on appeal a new issue that was expressly abandoned at first instance with the result that the parties introduced no corresponding evidence or argument. The interests of justice also did not require the new argument be heard.

(2) Yes. In the non-punitive detention context, s.7 requires the body reviewing detention to have the procedures and powers necessary to render a decision that is minimally restrictive on liberty in light of the circumstances necessitating the detention. The application judge disposed of the s.7 argument on the ground that it has been conclusively determined by the Court of Appeal in Starnaman. The court held that the decision was carefully restricted to the facts of that case and the appeal court was not bound in respect to this new issue before it. The court held that the factual findings of the application judge were full of legal error and therefore invited appellate review.

The court held that where an individual is not being detained for punishment following conviction, but rather simply because they pose a risk to public safety, the Charter's guarantee of fundamental justice requires that there be a fair procedure to ensure, on a regular and ongoing basis, that the risk to public safety continues and the individual's liberty is being restricted no more than necessary to deal with the risk. The limited powers conferred upon the Consent and Capacity Board did not meet this constitutional standard. The court held that it was evident from the Board's multiple decisions and frustration of its members that the MHA failed to provide the Board with the necessary tools to ensure that the liberty interests of long-term involuntary patients are restricted no more than is necessary to deal with the risk they pose and that steps are taken toward their eventual reintegration into the community. The Board lacked the jurisdiction to supervise the level, privileges, therapy and treatment of long-term detainees and to craft orders that would ensure an appropriate balance between public protection and the protection of detainees' liberty interests. The court held that the MHA lacked the procedural safeguards required by s.7 to ensure adequate protection of a long-term patient's liberty interest. The infringement was not saved under s.1.

(3) Yes, the court found that the application judge mischaracterized the extent and nature of the violations of the ss.15(1) violations. Deafness is a physical disability that triggers the protection of ss.15(1). The court held that although the application judge's factual findings on the issue were entitled to deference, he erred in law and failed to explain a significant amount of evidence, making his decision vulnerable to appellate review. The court held that although ss.15(1) does not require interpretation services for all aspects of daily living on a 24 hour a day, seven day a week basis, in the context of involuntary detention, it requires a degree of accommodation beyond the context of therapeutic services and interactions. In Eldridge v British Columbia (Attorney General), the Supreme Court of Canada held that "discrimination can accrue from a failure to take positive steps". Here "effective communication" mandated the regular provision of communication through deaf appropriate services in order to ensure that the detainees' basic and fundamental personal needs were being fully understood and consistently addressed.

The Board decisions indicate that from the beginning, it had concerns with the inadequacy of the level of interpretation services provided to the appellant. Over the course of his detention, the appellant endured prolonged and serious ss.15(1) breaches. The infringements could not be saved under s.1. He was not accommodated to the degree required by Eldridge for much of his time. The court held that the systemic deficiencies that blocked his access to appropriate assessment, treatment and rehabilitative opportunities continued to persist.

(4) The court held that the application judge erred in finding that the review powers of the Consent and Capacity Board were constitutionally adequate. Instead, habeas corpus was an appropriate remedy to challenge the constitutional validity of legislation authorizing detention, and the application judge's rejection of habeas corpus as an available remedy was not correct. However, given the way the litigation had progressed, it was no longer necessary to address the habeas corpus application.

(5) The panel held it was not equipped to engage in a detailed inquiry as there was no determination by the application judge of this factually complex issue. Since the application judge held that it was not necessary to determine the appellant's service and security needs as contemplated by the bifurcation order, there were no findings for the court to test or assess.

(6) The court held that the appropriate remedy for the s.7 breach was severance. The court limited the duration of MHA committals to approximately six months by declaring the words "or subsequent" in ss. 20(4)(b)(iii) to be inconsistent with s.7 of the Charter and therefore of no force or effect pursuant to ss. 52(1) of the Constitution Act. The court held that since an immediate declaration of invalidity would pose a risk to public safety, the declaration was temporarily suspended for twelve months.

The court held the appropriate remedy for the s.15 breach was a declaration that the appellant's rights had been violated and setting out in general terms, the nature and extent of his entitlement under ss.15(1). The court found that the appellant had to be provided necessary and appropriate communication services to ensure the appellant's basic and fundamental personal needs as a detainee were fully understood and addressed and that the appellant was able to communicate effectively to access the therapeutic, treatment and other programs offered to detainees.

Stetco v. Pohani, 2014 ONCA 917

[Hoy A.C.J.O., Simmons and Tulloch JJ.A.]
Counsel:
C. Stetco, in person
V. Pohani, for the respondent

Keywords: Solicitors Act, Assessment of Accounts, Special Circumstances, Deference

Facts:
The appellant submits the application judge erred in denying her application on the basis that the application for assessment was filed after the 12 month statutory deadline from the rendering of the final account, and no special circumstances existed to permit judicial intervention, pursuant to s. 4(1) of the Solicitors Act.

Issue: Did the application judge err in dismissing the appellant's application for an assessment of legal fees of the respondent?

Holding: Appeal dismissed.

Reasoning:
No. The Court referred to Guillemette v. Doucet, 2007 ONCA 743, "[a] finding of special circumstances turns on the fact driven exercise of judicial discretion". Therefore, deference was accorded to the discretion of the application judge because there was neither an error in principle nor a clearly unreasonable result.

D'Mello v. The Law Society of Upper Canada, 2014 ONCA 912

[Weiler, Feldman and Benotto JJ.A.]
Counsel:
R. D'Mello, acting in person
B. MacLeod Rogers, for the respondents

Keywords: Real Estate Law, Defamation, Law Society of Upper Canada, Disciplinary Proceedings, Absolute Privilege, s. 9, Law Society Act, Statutory Interpretation, Presumption that Statute Not Altering Common Law, Costs

Facts:
The appellant lawyer operated his real estate practice from his home office. To generate more business, he entered into an agreement with a company, Canadian Conveyancing, whereby he agreed to provide representation to lenders and clients the company would refer to him. The appellant gave the company his personal information and changed his office designation with the Law Society to an office location and phone number under the company's control. The appellant never received any referrals and continued practising out of his home office. Canadian Conveyancing opened law firm accounts with the Bank of Montreal in the appellant's name and processed several fraudulent real estate transactions with multiple financial institutions. The victim institutions lost a combined total of about $2.5 million as a result.

Some of the victim institutions complained to the Law Society, which launched an investigation. The Law Society then authorized disciplinary proceedings against the appellant. At the direction of the Law Society's discipline counsel, a Mr. McClyment sent emails to two of the victim institutions, Royal Bank of Canada and Scotiabank, seeking their respective files for the discipline proceedings. As a result of certain language in the emails, the appellant sued the Law Society for defamation, alleging malice.

The Law Society defended by claiming the common law defence of absolute privilege, a complete defence even for malice, and brought a motion for summary judgment. For purposes of the motion, the appellant's allegations were presumed to be true. The motion judge held that absolute privilege applied and dismissed the action. He awarded costs of $5,000 against the appellant. The appellant appeals this decision.

Issues:
(1) Has the common law defence of absolute privilege been superseded by the enactment of s. 9 of the Law Society Act (the "Act") which immunizes a person performing a duty under the Act from suit if they are acting in good faith?

(2) Does absolute privilege apply in the circumstances of this case?

(3) Did the motion judge err in awarding costs against the appellant?

Decision: Appeal dismissed

Reasoning:
(1) No. The position put forward by the Law Society and accepted by the motion judge is correct. It accords with the principle of statutory construction that legislation is presumed not to change the common law unless it clearly and expressly does so. In this case, the legislation supplements the common law both when regard is had to the wide variety of damages actions to which s. 9 applies and its specific application in a defamation action where the circumstances are such that the requirements for absolute privilege are not met. The application of the presumption harmonizes the common law and the legislation. Finally, and most importantly, the application of the presumption is consistent with the overarching goal of the legislation as a whole, namely, the protection of the public in a timely manner.

(2) Yes. Absolute privilege protects the communications in issue in the circumstances. Although the words used to give the update must be presumed to be libellous, they provided the context or grounds for the request and, in that sense, were required in connection with a proceeding under the Act. In making this determination, the purpose of the communication as a whole must be considered as opposed to each phrase without context and in isolation. As found by the motion judge, the communications from Mr. McClyment were for the purpose of preparing evidence for discipline proceedings that existed at the time. The Court also agreed with the motion judge in finding that Mr. McClyment was acting in his capacity as an investigator for the Law Society and was not acting outside the scope of his duties.

(3) No. The Court found that the motion judge properly took all relevant factors into account and made no error in principle in his award of costs.

Gilmore v. Gilmore, 2014 ONCA 916

[Hoy A.C.J.O., Simmons and Tulloch JJ.A.]
Counsel:
C. Vitsentzatos, for the appellant
J.Howard, for the respondent

Keywords: Family Law, Spousal Support, Imputing Income, Standard of Review

Facts:
The appellant appeals from a 2013 order awarding lump sum and periodic spousal support to the respondent. The trial judge found that the respondent was not intentionally unemployed and did not impute income to her on that basis.

The appellant submits that the trial judge erred in failing to impute income to the respondent and further erred in failing to take into account the disposition by the respondent of her business.

Holding: Appeal dismissed.

Reasoning:
Absent an error in principle, a significant misapprehension of the evidence or unless the award is clearly wrong, an appellate court must not interfere. The appellant has not established any such error.

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