Ontario Court Of Appeal Summaries (October 16 – October 20, 2017) - Trials & Appeals & Compensation

This week's summaries of the civil decisions of the Court of Appeal follow.

The most noteworthy decision was in Airia Brands Inc. v. Air Canada, a class action case. This is a case involving an allegation of conspiracy to price fix the cost of air freight services to and from Canada. The certification judge had refused to include foreign class members who shipped goods to and from Canada as part of the class. In doing so, the certification judge decided not to apply the familiar "real and substantial connection" test regarding jurisdiction simpliciter. The Court of Appeal reversed that decision and included the foreign plaintiffs as part of the certified class. In doing so, the court confirmed that the real and substantial connection text applies, and set out a three-part test for a court taking jurisdiction over foreign class members:

there is a real and substantial connection between the subject matter of the action and Ontario, and jurisdiction exists over the representative plaintiff and the defendants;
there are common issues between the claims of the representative plaintiff and foreign members of the class; and
the procedural safeguards of adequacy of representation, adequacy of notice, and the right to opt out as described in Currie v. McDonald's Restaurants of Canada Ltd. (2005), 74 O.R. (3d) 321 (C.A.) are provided, thereby serving to enhance the real and substantial connection between the foreign class members and Ontario.

In North v. Metaswitch Networks Corporation, a wrongful dismissal case, the court confirmed that if a clause in a contract is illegal, the whole clause becomes inoperative and cannot be partially saved by using the severability clause in the contract to excise only the illegal portion of the clause.

In Jay-Pee Drycleaners Inc. v. 2321324 Ontario Inc., the court set aside summary judgment in favour of a landlord who terminated a lease because the tenant had failed to take a course on the handling of dry cleaning chemicals. In doing so, it granted summary judgment in favour of the tenant and remitted the matter to the court below to assess damages for wrongful termination of the lease.

Other topics covered included standing in the condominium law context and extensions of time to appeal in the municipal law context.

Table of Contents:

North v. Metaswitch Networks Corporation, 2017 ONCA 790

Keywords: Contracts, Illegality, Severability Clauses, Employment Law, Wrongful Dismissal, Employment Standards Act, 2000, S.O. 2000, c. 41, s. 5, Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158, Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986, Oudin v. Centre Francophone de Toronto, Inc., 2015 ONSC 6494, 2176693 Ontario Ltd. v. Cora Franchise Group Inc., 2015 ONCA 152

Airia Brands Inc. v. Air Canada, 2017 ONCA 792

Keywords: Torts, Conspiracy, Price Fixing, Competition Act, R.S.C. 1985, c. C-34, Civil Procedure, Class Actions, Foreign Class Members, Class Proceedings Act, 1992, ss 27(3), 28(1), and 29(3), Jurisdiction, Real and Substantial Connection, McCutcheon v. The Cash Store (2006), 80 O.R. (3d) 644 (S.C.J.), Van Breda v. Village Resorts Ltd., 2012 SCC 17, [2012] 1 S.C.R, Excalibur Special Opportunities LP v. Schwartz Levitsky Feldman LLP, 2016 ONCA 916, Currie v. McDonald's Restaurants of Canada Ltd. (2005), 74 O.R. (3d) 321 (C.A.), Forum Non Conveniens, LaPointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP, 2016 SCC 30

Jay-Pee Drycleaners Inc. v. 2321324 Ontario Inc., 2017 ONCA 798

Keywords: Real Property, Commercial Leases, Termination, Notice, Commercial Tenancies Act, ss. 19(2) and 28, Environmental Protection Act, R.S.O. 1990, c. E. 19, Dry Cleaners, O. Reg. 323/94, Summary Judgment

Saadilla v. York Condominium Corporation No. 187, 2017 ONCA 797

Keywords: Real Estate Law, Condominium Law, Summary Judgment, Condominium Act, 1998, Standing, Fresh Evidence

Sutherland Lofts Inc. v. Peck, 2017 ONCA 803

Keywords: Municipal Law, Building Code Violations, Building Code Act, 1992, S.O. 1992, c. 23, s. 15.9(2)(b), Civil Procedure, Appeals, Extension of Time

North v. Metaswitch Networks Corporation, 2017 ONCA 790

Keywords: Contracts, Illegality, Severability Clauses, Employment Law, Wrongful Dismissal, Employment Standards Act, 2000, S.O. 2000, c. 41, s. 5, Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158, Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986, Oudin v. Centre Francophone de Toronto, Inc., 2015 ONSC 6494, 2176693 Ontario Ltd. v. Cora Franchise Group Inc., 2015 ONCA 152

Civil Cases:

North v. Metaswitch Networks Corporation, 2017 ONCA 790

[Feldman, Sharpe and Roberts JJ.A]

Counsel:

Ben Hahn, for the appellant

Tracy Kay and Carrington Hickey, for the respondent

Facts:

Doug North's employment with Metaswitch Networks Corporation was governed by a written employment contract (the "Agreement"). When North's employment was terminated without cause, a dispute arose as to whether he was entitled to be paid in accordance with the Agreement, or based on common law reasonable notice.

The Agreement contained a termination clause that amounted to a contracting out of the Employment Standards Act, 2000, S.O. 2000, c. 41 (the "ESA"). However, the Agreement also contained a severability clause. The issue before the application judge and on this appeal is the interpretation and application of the two clauses in light of s. 5 of the ESA, which prohibits employers and employees from waiving or contracting out of any employment standard prescribed by the ESA, except to provide a greater benefit to the employee. The application judge used the severability clause to excise what she found to be the offending part of the termination clause, but applied the rest of the termination clause.

Doug's employment was terminated in accordance with paragraph 9(c) of the Agreement, the relevant part of which provides:

Termination of Employment (c) Without Cause – The Company may terminate your employment at any time in its sole discretion for any reason, without cause, upon by [sic] providing you with notice and severance, if applicable, in accordance with the provisions of the Ontario Employment Standards Act (the "Act"). In addition, the Company will continue to pay its share all [sic] of your employee benefits, if any, and only for that period required by the Act.

The reference to notice in paragraphs 9(b) and (c) can, at the Company's option, be satisfied by our provision to you of pay in lieu of such notice. The decision to provide actual notice or pay in lieu, or any combination thereof, shall be in the sole discretion of the Company. All pay in lieu of notice will be subject to all required tax withholdings and statutory deductions.

In the event of the termination of your employment, any payments owing to you shall be based on your Base Salary, as defined in the Agreement.

Issues:

(1) Did the application judge err in law by using the severability clause of the Agreement to save the termination clause that contravened the ESA?

(2) Did the application judge err in law by failing to find that the severability clause had no application to a clause of the Agreement that was rendered void by s. 5(1) of the ESA?

Holding: Appeal allowed.

Reasoning:

(1) Yes. The application judge erred in her approach to the interpretation and application of the severability clause. It is convenient to restate para. 17(a) of the agreement here for ease of reference:

General Provisions (a) If any part of the Agreement is found to be illegal or otherwise unenforceable by any court of competent jurisdiction, that part shall be severed from this Agreement and the rest of the Agreement's provisions shall remain in full force and effect.

The severability clause directs that the part of the agreement that is to be severed is the part that a court would find to be illegal. The rule from Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158, following Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986, is that where a termination clause contracts out of one employment standard, the court is to find the entire termination clause to be void, in accordance with s. 5(1) of the ESA. It is an error in law to merely void the offending portion and leave the rest of the termination clause to be enforced. As a result, the application judge erred in law by severing only the offending sentence that referred to using only base salary to calculate termination pay in lieu of notice, rather than the entire termination clause. Para. 17(a) requires that the part to be severed is the part that a court would find to be illegal, which must be the entire termination clause.

(2) Yes. When a severability clause is introduced into the contract, the issue is whether: (i) the severability clause can be used to remove the illegality in the termination clause; or (ii) because the termination clause as drafted is void as a result of s. 5(1), there is nothing on which the severability clause can act. The court considered both approaches.

First approach:

In Oudin v. Centre Francophone de Toronto, Inc., 2015 ONSC 6494, the motion judge relied on the wording of the specific severability provision in the employment contract that directed modification "only to the extent necessary" to comply with the law (paras. 35, 40). The motion judge found that this established the clear intention of the parties (para. 42).

The problem with this approach is that employers will be incentivized to contract out of the ESA but include a severability clause to save the offending provision in the event that an employee has the time and money to challenge the contract in court. Similar concerns were recognized by this court in 2176693 Ontario Ltd. v. Cora Franchise Group Inc., 2015 ONCA 152, where the court declined to order severance of an illegal clause in a franchise agreement because, if the only consequence to a franchisor is that the illegal clause is read down to make it legal, franchisors would be encouraged to draft illegal contracts.

Second approach:

The other approach is to first assess the termination clause to see whether there is any contracting out of an employment standard. If there is, then the termination clause is void, and there is nothing to which the severability clause can be applied. In that way, the severability clause is not void, but it is inoperative where the agreement contracts out of or waives an employment standard. This approach is the one that is consistent with the intent of the ESA and the Supreme Court decision in Machtinger. Nor does it do any injustice to the contractual interpretation principle of ascertaining the intention of the parties. Because the termination clause is void, it cannot be used as evidence of the parties' intentions to comply with the ESA. This approach also causes no disadvantage to employers, who are free to make a legal contract that limits an employee's rights on termination to the standards set by the ESA.

This conclusion does not make the severability clause void. It continues to have application to the rest of the agreement. However, it cannot have any effect on clauses of the contract that have been made void by statute. Those terms are null and void for all purposes and cannot be rewritten, read down or interpreted through the application of a severability clause to provide for the minimum standard imposed by the ESA.

The court therefore held that s. 5(1) of the ESA makes the severability clause, para. 17(a), inoperative on the termination clause, which contracts out of an employment standard.

Airia Brands Inc. v. Air Canada, 2017 ONCA 792

[Gillese, MacFarland and Pepall JJ.A.]

Counsel:

P Bates, L Visser and E M Maxwell, for the appellants

K L Kay, D K Royal and J S F Wilson, for the respondents Air Canada and AC Cargo Limited

R S Russell and D A Rothschild, for the respondent British Airways PLC

L La Horey and B Kettles, for the intervener Attorney General of Ontario

Keywords: Torts, Conspiracy, Price Fixing, Competition Act, R.S.C. 1985, c. C-34, Civil Procedure, Class Actions, Foreign Class Members, Class Proceedings Act, 1992, ss 27(3), 28(1), and 29(3), Jurisdiction, Real and Substantial Connection, McCutcheon v. The Cash Store (2006), 80 O.R. (3d) 644 (S.C.J.), Van Breda v. Village Resorts Ltd., 2012 SCC 17, [2012] 1 S.C.R, Excalibur Special Opportunities LP v. Schwartz Levitsky Feldman LLP, 2016 ONCA 916, Currie v. McDonald's Restaurants of Canada Ltd. (2005), 74 O.R. (3d) 321 (C.A.), Forum Non Conveniens, LaPointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP, 2016 SCC 30

Facts:

The Appellants allege that the Respondents and other airlines, participated in a conspiracy to increase the price of air freight shipping services, in contravention of the Competition Act, R.S.C. 1985, c. C-34. The Appellants sought an order certifying the class action with a class that included Absent Foreign Claimants ("AFCs"). The Respondents brought a motion for a declaration that the Ontario court did not have jurisdiction over AFCs, and that the class should be defined to exclude such parties. The Respondents also served a notice questioning the constitutional applicability of the real and substantial connection test and ss. 27(3), 28(1), and 29(3) of the Class Proceedings Act, 1992 ("CPA"), which codify Ontario's opt-out class proceedings regime, to AFCs. The Respondents sought an order staying the proposed action insofar as it related to AFCs on the basis of jurisdiction simpliciter and alternatively, on the basis of forum non conveniens.

The motion judge granted the Respondent's jurisdiction motion, concluding that the real and substantial connection test for jurisdiction simpliciter should not be applied. Rather, the motion judge held that the jurisdictional analysis was to be guided by principles of order, fairness, and comity. She concluded that, because AFCs were not present in Ontario, and had not consented in some way to the jurisdiction of the court, jurisdiction had not been established. In the alternative, the motion judge held that there was no real and substantial connection of the AFCs claim to Ontario and, in any event, Ontario should decline to exercise jurisdiction on the basis of forum non conveniens. The Appellants appeal this decision.

Issues:

What is the applicable standard of review?
Did the motion judge err in her rejection of the real and substantial connection test for global class actions?
Did the motion judge err in finding that Ontario was forum non conveniens?

Holding: Appeal allowed.

Reasons:

Prior to its analysis on the merits, the Court discussed its jurisdiction to hear the present appeal and determined that it had jurisdiction pursuant to section 6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

(1) The part of the analysis involving the consideration of the appropriate test to be applied in assessing whether Ontario can take jurisdiction over class action proceedings involving AFCs is a question of law and therefore the standard of correctness applies. The application of this test is generally a question of mixed fact and law which attracts a standard of palpable and overriding error. However, where an error in the application of the correct legal test can be attributed to an extricable legal error – for example, the failure to consider a required element of a legal test, a mischaracterization of a legal test, or a similar error in principle – a standard of correctness applies.

This appeal also addresses the issue of forum non conveniens, which requires the application of the relevant legal test to the facts, and involves questions of mixed fact and law. Again, this issue is reviewable on a standard of palpable and overriding error, except where the motion judge's analysis involved an error that is traceable to an extricable question of law.

(2) Yes. In Ontario, the real and substantial connection test has been consistently applied to the question of jurisdiction in class actions. In McCutcheon v. The Cash Store (2006), 80 O.R. (3d) 644 (S.C.J.), Cullity J. certified a class proceeding involving non-residents. He determined that he could bind non-resident class members to an Ontario proceeding because there was a sufficient real and substantial connection between non-resident class members and Ontario, and the principles of order and fairness were met. Decisions that pre-date Van Breda v. Village Resorts Ltd., 2012 SCC 17 must be read through the lens of that decision. Van Breda confirmed the real and substantial connection test as a constitutional imperative and a conflict of laws rule, and founded presumptive connecting factors which, if present, establish jurisdiction. In Excalibur Special Opportunities LP v. Schwartz Levitsky Feldman LLP, 2016 ONCA 916, the Court of Appeal affirmed that the test to determine whether to take jurisdiction over foreign class members begins with an inquiry into jurisdiction simpliciter, on the principles set out in Van Breda. In Excalibur, the representative plaintiff and the respondent accounting firm were both based in Toronto, but the remaining 56 plaintiffs were non-residents of Ontario. Justice MacFarland concluded that three of the four presumptive connecting factors identified in Van Breda were present.

The motion judge erred in failing to apply the real and substantial connection test articulated in Van Breda. As explained in Van Breda, order, fairness, and comity are not independent roots of jurisdiction but are subsumed by the real and substantial connection test. It is true that jurisdiction may be based on traditional grounds such as presence and consent to the jurisdiction, however, while those factors can be relied upon as grounds for granting jurisdiction, their absence should not be grounds for rejecting jurisdiction.

Jurisdiction may be established over AFCs where:

there is a real and substantial connection between the subject matter of the action and Ontario, and jurisdiction exists over the representative plaintiff and the defendants;
there are common issues between the claims of the representative plaintiff and AFCs; and,
the procedural safeguards of adequacy of representation, adequacy of notice, and the right to opt out as described in Currie v. McDonald's Restaurants of Canada Ltd. (2005), 74 O.R. (3d) 321 (C.A.) are provided, thereby serving to enhance the real and substantial connection between AFCs and Ontario.

Here (a) there is a real and substantial connection between the subject matter of the action and Ontario. All of the three Respondents carry on business in Ontario. Moreover, there is jurisdiction over the three Respondents based on presence in the jurisdiction and over the three Representative Plaintiffs based on presence and consent to the jurisdiction. Further, with respect to the Respondents, three specific meetings in furtherance of the conspiracy are alleged to have taken place in Canada; (b) The common issues relate to the core question of whether the Respondents are liable to the class members for the tort of conspiracy and breaches of the Competition Act arising from the supply of airfreight shipping services to and from Canada in the relevant time period. These common issues clearly extend to the AFCs; and (c) Lastly, as a result of the settlements with some of the other defendants, the AFCs have been afforded the three procedural safeguards described in Currie. Notice has been effected in 140 countries. The designed website had received more than 54,000 visitors from 135 countries as of November 2008 and the interactive telephone service had fielded 3,900 calls.

Thus an Ontario Court has jurisdiction over the AFCs in this class action proceeding

(3) Yes. In Van Breda Lebel J. set out a list of non-exhaustive factors to consider in the forum non conveniens analysis: the location of the parties and the witnesses; the cost of transferring the case to another jurisdiction or declining the stay; the impact of a transfer on the conduct of the litigation or on related or parallel proceedings; the possibility of conflicting judgments; problems related to recognition and enforcement of judgments; and the relative strength of the connection of the parties. The burden is on the Respondents to show that another jurisdiction has a real and substantial connection to the claim and also the availability of a clearly more appropriate forum than Ontario: LaPointe Rosenstein Marchand Melançon LLP v. Cassels Brock & Blackwell LLP, 2016 SCC 30.

The motion judge failed to ask whether any jurisdiction was clearly more appropriate than Ontario. This was an error. Furthermore, the evidence clearly demonstrates a robust connection between the parties and Ontario. All of the respondents carry on business in Ontario, as do at least two of the representative plaintiffs. There is no clearly more appropriate forum to resolve the AFCs' claims than Ontario, and the respondents have not met their onus in demonstrating otherwise.

Jay-Pee Drycleaners Inc. v. 2321324 Ontario Inc., 2017 ONCA 798

[Pepall, van Rensburg and Trotter JJ.A.]

Counsel:

Byeongheon Lee, acting in person

Kyle Van Schie, for the respondent

Keywords: Real Property, Commercial Leases, Termination, Notice, Commercial Tenancies Act, ss. 19(2) and 28, Environmental Protection Act, R.S.O. 1990, c. E. 19, Dry Cleaners, O. Reg. 323/94, Summary Judgment

Facts:

The appellant operated a dry cleaning business in premises that were subject to a 12-year commercial lease. The lease required the appellant to comply with all applicable statutes and regulations affecting the premises. The respondent landlord wrote to the appellant advising that under s. 6.07 of the lease and Dry Cleaners, O. Reg. 323/94, a regulation under the Environmental Protection Act, R.S.O. 1990, c. E. 19, the appellant had to complete a course approved in connection with the operation of dry cleaning equipment. Under the regulations, this requirement could also be fulfilled if the Director in the Management of Contaminants and Wastes was satisfied that there was a full-time trained individual capable of operating the dry cleaning equipment. The letter stated that the appellant had to complete the course within 90 days and provide proof of completion. The respondent sent several letters to the appellant, reminding of the requirement that the course be completed. The course was not completed, and the respondent terminated the lease. The Ministry of the Environment informed the appellant that the Ontario Dry Cleaners Training Course had not been available for several months. The appellant submitted that he was informed by the ministry that the course was unnecessary. The landlord terminated the lease.

The appellant sued for damages arising from the unlawful termination of the lease and the respondent counterclaimed for damages flowing from, among other things, the appellant's failure to deliver vacant possession. The respondent then moved for summary judgment dismissing the appellant's action and seeking judgment on the counterclaim. The affidavit of the respondent did not contradict the appellant's evidence that he had told the property manager that the course was both unnecessary and unavailable.

The motion judge granted summary judgment to the respondent dismissing the appellant's claim and allowing the respondent's counterclaim, in part. The motion judge held that the respondent had lawfully terminated the tenancy. This conclusion was based on the motion judge's findings that the appellant had failed to provide evidence that he had taken a dry cleaning course or that he had a trained person working at all times on the premises. The motion judge determined that the regulations governing dry cleaning businesses required this designation.

The appellant appealed from that judgment, arguing that the motion judge erred in concluding that the tenancy was lawfully terminated and in finding that the tenancy was month-to-month. In addition, he submitted that the motion judge's reasons were insufficient.

Issues:

(1) Did the motion judge err in finding the termination of the lease lawful?

(2) Did the motion judge err in finding that the tenancy was a month-to-month agreement?

(3) Were the motion judge's reasons insufficient?

Holding: Appeal allowed.

Reasons:

(1). Yes. Subsection 19(2) of the Commercial Tenancies Act, R.S.O. 1990, c. L.7 provides that a landlord's right of re-entry for breach of any covenant or condition in the lease, other than in respect of the payment of rent, is not enforceable unless the landlord serves on the tenant a notice specifying the breach, and if the breach is capable of remedy, the tenant has failed within a reasonable time thereafter to remedy the breach. In reaching his conclusion, the motion judge relied in part on the appellant's failure to provide evidence that he had a trained person working at all times on the premises. However, this was not a ground relied upon by the respondent in the notice of termination given to the appellant. Courts considering a landlord's termination of a lease have insisted upon strict compliance with the notice requirement in s. 19(2) of the Act.

The motion judge failed to consider that the Regulation could be satisfied in one of three ways and failed to address the appellant's uncontradicted evidence that the Ministry had checked the premises and that a course was unnecessary. In essence, the appellant's contention was that he had satisfied the Director that he was qualified to manage contaminants and wastes in connection with the operation of dry cleaning equipment. The motion judge also failed to consider the appellant's evidence that, contrary to the position of the respondent, the course was unavailable and the breach was incapable of being remedied in the time provided. Accordingly, the appellant, to the knowledge of the respondent, could not comply in the time specified. The respondent therefore did not give the appellant a reasonable amount of time to remedy the breach before exercising its right of re-entry, as required by s. 19(2) of the Act.

The respondent also submitted that the tenancy could have been terminated under s. 28 of the Commercial Tenancies Act, which provides for one month's notice of termination for a month-to-month tenancy. This argument was rejected by the court, as the respondent never gave any notice relying on this provision as the basis for termination.

(2) No. This finding was supported by the record.

(3) No. The motion judge's reasons explained how and why he reached the conclusions he did, and allowed for effective appellate review.

In the result, the court set aside the summary judgment granted in favour of the landlord and granted summary judgment in favour of the tenant that the lease had been wrongfully terminated. It remitted the matter back to the court below to quantify damages for the wrongful termination.

Saadilla v. York Condominium Corporation No. 187, 2017 ONCA 797

[MacPherson, Juriansz and Roberts JJ.A.]

Counsel:
Sardar Saadilla, acting in person

Antoni Casalinuovo, for the respondent

Keywords: Real Estate Law, Condominium Law, Summary Judgment, Condominium Act, 1998, Standing, Fresh Evidence

Facts:

The appellant, Sardar Saadilla, appeals from the order of the motion judge granting summary judgment and dismissing his action against the respondent, York Condominium Corporation No. 187.

Issues:

Should the appellant's motion to file fresh evidence be granted?
Did the motion judge err in not granting the appellant's request for an adjournment?
Does the appellant have standing to sue the Corporation with respect to its alleged noncompliance with the Condominium Act, 1998, S.O. 1998, c. 19?

Holding: Appeal dismissed.

Reasoning:

1) No. The appellant asserted that the material he had tendered in his fresh evidence motion should not be considered fresh evidence, as his affidavit of documents was served and filed in court. However, he conceded that the documents, listed in Schedule A of that affidavit, were not in the record before the motion judge. Accordingly, the court determined that the materials before it were fresh evidence. However, the court held that none of the materials, including the police report, could reasonably be expected to have affected the result of the summary judgment motion. The court therefore dismissed the motion to file fresh evidence.

2) No. The appellant explained that he did not have all his material before the motion judge because the motion judge did not grant him an adjournment of the motion. The appellant said he advised the motion judge that he needed to wait for a police report and access for information request that would corroborate his claim that the superintendent of the respondent assaulted him. The court held that the motion judge's refusal of the adjournment was discretionary and reasonable. The appellant had adequate opportunity to make an access to information request prior to the motion but did not do so.

3) No. The motion judge explained that the appellant is a tenant in a condominium unit of the respondent, which is a condominium corporation. The court agreed with the motion judge that the appellant had no standing to sue the Corporation with respect to alleged noncompliance with the Condominium Act, 1998, S.O. 1998, c. 19, or the condominium's governing by-laws. Furthermore, the authorizations provided to the appellant by his landlord did not include suing the respondent.

Sutherland Lofts Inc. v. Peck, 2017 ONCA 803

[Feldman J.A]

Counsel:

D. McGee, acting in person for the moving party

T. Halinski, for the responding parties

Keywords: Municipal Law, Building Code Violations, Building Code Act, 1992, S.O. 1992, c. 23, s. 15.9(2)(b), Civil Procedure, Appeals, Extension of Time

Facts:

The moving party seeks an extension of time to file its notice of appeal from the lower court judgment. The judgment found that the applicant's building in St. Thomas, Ontario is unsafe under s. 15.9(2)(b) of the Building Code Act, 1992, S.O. 1992, c. 23. The applicant further seeks an order enjoining the responding parties from proceeding with the demolition of the building pending the appeal.

Issues:

Should the court grant an extension of time for the applicant to file its notice of appeal?
Should it enjoin the responding parties from proceeding with the demolition of the building pending the appeal?

Holding: Motion dismissed.

Reasoning:

No. When determining whether to grant an applicant an extension of time to appeal, the court must consider the following factors:
whether the applicant formed a bona fide intention to appeal within the time limit;
the length of, and explanation for, the delay;
any prejudice to the respondent;
the merits of the potential appeal; and
whether the justice of the case requires that an extension be given.

The first two grounds consider the intent to appeal and the explanation for the delay. The Court found that, based on the evidence, it appeared that although the moving party considered an appeal, particularly as a bargaining tactic in its negotiations with the City, it is not clear that it formed an unequivocal intention to appeal. Similarly, the reason for the delay in bringing this motion for an extension does not suggest any urgency in addressing the situation.

With respect to the third ground, the responding parties would be prejudiced, as the building continues to pose a danger to the safety of the public while standing, and the cost of demolition has increased due to continued deterioration of the structure.

The fourth ground considers the potential merit of an appeal. The moving party's main position is that the application judge erred in law by accepting the opinion evidence of the City's engineering expert consultant, Mr. Harris, rather than the opinions of the moving party's experts. In particular, it asserts that Mr. Harris has maintained the same concern regarding collapse since 2008, and that his concern has not been borne out. At the same time, other experts have refuted the claim of danger to the public.

The moving party also assertted that the application judge erred by taking into account three criteria not included in the Building Code Act definition of "unsafe building": (i) the moving party's lack of funds to pay for temporary repairs or to renovate the building; (ii) the failure to insure the building; and (iii) the fact that no renovations have ever been performed by the applicant.

The court rejected this submission, finding no error of law or palpable and overriding error of fact that would allow it to interfere with the decision of the application judge. The application judge gave detailed and thorough reasons for his finding that the building is unsafe as hazardous to the public. He specifically accepted the opinion of Mr. Harris and rejected the opinions of the applicant's two experts, with reasons. He also noted that because of the three factors to which the applicant objects, there is no prospect that the unsafe condition is going to be remedied by this owner.

The fifth and final ground allows the court to grant leave if the justice of the case requires it. The Court did not believe this case requires leave as it has been ongoing for a number of years with numerous judicial proceedings. The town has moved the bus terminal from a nearby location and has closed an abutting street because of the safety concerns. There are also restrictions in place on the ability of police and firefighters to enter the building in an emergency because of its dangerous condition. Finally, the failure to properly insure the building for the financial protection of the public exacerbates the potential effect on the public if something were to happen before the building is demolished.

There was no need to consider granting an injunction in light of the answer to question 1.

Short Civil Endorsements:

Abdikarim (Re), 2017 ONCA 793

[Pepall, Benotto and Nordheimer JJ.A.]

Counsel:

K.J. Berger, for Mohamed Abdikarim

Whitford, for A.G. of Ontario
Warner, for the person in charge of the Centre for Addiction and Mental Health

Keywords: Ontario Review Board, NCR, CAMH, Fresh Evidence, Significant Threat to Public Safety, Criminal Code, s. 672.5401

Criminal Decisions:

R v. Downey, 2017 ONCA 789

[Van Rensburg, Pardu and Fairburn JJ.A.]

Counsel:

M.A. Downey, acting in person

Erika Chozik, appearing as duty counsel

Jessica Smith Joy, for the respondent

Keywords: Criminal Law, Importing Firearms, Mens Rea, Wilful Blindness, Sentencing, Mitigating Factors

R v. Gallagher, 2017 ONCA 791

[Van Rensburg, Pardu and Fairburn JJ.A.]

Counsel:

Stein, duty counsel
Smith Joy, for the respondent

Keywords: Criminal Law, Carrying Concealed Weapon, Criminal Code, s.90, Jury Instructions, Mens Rea, Circumstantial evidence

R v. Scharf, 2017 ONCA 794

[Pepall, Benotto and Nordheimer JJ.A.]

Counsel:

Langevin, for the appellant
Pistyner, K.Ramchand and J. Legrand for the respondent

Keywords: Criminal Law, Possession, Fresh Evidence, Palmer Test, Ineffective Assistance of Counsel, Sentencing

R v. Ali (Appeal Book Endorsement), 2017 ONCA 796

[Doherty, LaForme and Paciocco JJ.A.]

Counsel:

J. Guiste, for the appellant
Harper, for the respondent

Keywords: Criminal Law, Summary Conviction, Ineffective Assistance of Counsel, Contingency Fees, Solicitors Act, s. 28.1(2)

R v. Dedeckere, 2017 ONCA 799

[Pepall, Benotto and Nordheimer JJ.A.]

Counsel:

A Newton-Smith, for the appellant

DeFilippis, for the respondent

Keywords: Criminal Law, Criminal Negligence Causing Bodily Harm, Sentencing, Mitigating Factors, Aggravating factors, Criminal Code, s. 718, Deterrence and Denunciation, Proportionality

R v. Norrie (Appeal Book Endorsement), 2017 ONCA 795

Doherty, LaForme and Paciocco JJ.A.

Shirtliff-Hinds, for the appellant

D.M. Garg, for the respondent

Keywords: Criminal Law, Summary Conviction, Stay

R v. Marshall (Publication Ban), 2017 ONCA 801

[MacPherson, Blair and Epstein JJ.A.]

Counsel:

J. Sandler and A. Ross, for the appellant
Siebenmorgen, for the respondent

Keywords: Criminal Law, Sexual Assault, Actus Reus, Evidence, Reliability

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.

Canada: Ontario Court Of Appeal Summaries (October 16 – October 20, 2017)

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