Ontario Court Of Appeal Summaries (February 18 – 22, 2019) - Libel & Defamation

Good evening.

Following are the summaries for this week's civil decisions of the Court of Appeal for Ontario. There were only four substantive civil decisions released this week.

Most notably, the Court of Appeal once again addressed the new anti-SLAPP legislation in United Soils Management Ltd. v. Mohammed ("United Soils"). In United Soils, the appellant brought actions against two respondents for libel after the respondents posted comments on a Facebook group regarding the appellant's excavation and dumping operations. The respondents were successful in having the suits dismissed by way of motion under the anti-SLAPP provisions of section 137.1 of the Courts of Justice Act. The Court of Appeal dismissed the appeal, and clarified that the anti-SLAPP legislation does not provide for the award of punitive damages against a plaintiff when an action is dismissed under section 137.1.

Other topics covered this week included the duty of care in a tragic personal injury context, damages for wrongful dismissal and legal non-conforming uses under the Planning Act.

Have a nice weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Civil Decisions

Ruston v. Keddco MFG (2011) Ltd., 2019 ONCA 125

Keywords: Employment Law, Wrongful Dismissal, Notice Period, Aggravated Damages, Punitive Damages, Singer v Nordstrong Equipment Limited, 2018 ONCA 364, Bardal v Globe & Mail (1960), 24 DLR (2d) 140 (HC), Wallace v United Corn Growers Ltd, [1997] 3 SCR 701, Honda v Keays, 2008 SCC 39, Doyle v Zochem, 2017 ONCA 130, Pate Estate v Galway-Cavendish and Harvey (Township), 2013 ONCA 669

Bonello v. Gores Landing Marina (1986) Limited, 2019 ONCA 127

Keywords: Torts, Negligence, Duty of Care, Proximity, Foreseeability, Occupier's Liability, Anns v. Merton London Borough Council, [1978] AC 728 (UKHL); Cooper v. Hobart, 2001 SCC 79, Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, Rankin (Rankin's Garage & Sales) v. J.J., 2018 SCC 19, Childs v. Desormeaux, 2006 SCC 18, Bonello v. Gores Landing Marina (1986) Limited, 2017 ONCA 632, Occupiers' Liability Act, RSO 1990 c O2

United Soils Management Ltd. v. Mohammed, 2019 ONCA 128

Keywords: Torts, Defamation, Libel, Civil Procedure, Anti-SLAPP, , Freedom of Expression, Public Interest, Damages, Punitive Damages, Costs, Full Indemnity Costs, Proportionality, Reasonableness, Courts of Justice Act, RSO 1990, c C.43, s 137.1, 1704604 Ontario Ltd v. Pointes Protection Association, 2018 ONCA 685, Able Translations Ltd. v. Express International Translations Inc, 2018 ONCA 690, Fortress Real Developments Inc. v. Rabidoux, 2018 ONCA 686, Brad-Jay Investments Ltd v. Szijjarto (2006), 2018 OAC 315 (CA), Sawdon Estate v. Watch Tower Bible and Tract Society of Canada, 2014 ONCA 101, Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 OR (3d) 291 (CA)

Cobalt (Town) v. Coleman (Township), 2019 ONCA 134

Keywords: Municipal Law, Land Use Planning, Zoning By-Laws, Permitted Uses, Legal Non-Conforming Uses, Civil Procedure, Costs, Saint-Romuald (City) v. Olivier, 2001 SCC 57, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, Planning Act, R.S.O. 1990, c. P.13, s. 34(9)

Short Civil Decisions

Haas v. Viscardi , 2019 ONCA 133

Keywords: Contracts, Settlement Agreements

Myles v. Myles, 2019 ONCA 143

Keywords: Family Law, Custody, Variation, Fresh Evidence, Palmer Test.

Carey-Patel v. Carey, 2019 ONCA 144

Keywords: Wills and Estates, Substitute Decisions, Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory Order, Henderson v Kallio, 1932 OR 675

Criminal Decisions

R. v. Moore , 2019 ONCA 122

Keywords: Criminal Law, Break and Enter, Robbery, Theft, Sentencing

Tolias (Re), 2019 ONCA 123

Keywords: Criminal Law, Sentencing, Conditional Discharge, Not Criminally Responsible due to Mental Disorder, Threat to Public Safety, Uttering Threats, Criminal Harassment, Breach of Recognizance, Re Tolias, 2018 ONCA 215

R. v. MacKay, 2019 ONCA 117

Keywords: Criminal Law, Possession of Cocaine for the Purpose of Trafficking, Sekhon Error

R. v. Leite, 2019 ONCA 121

Keywords: Criminal Law, Possession of Narcotics, Sentencing

R. v. Gaetan, 2019 ONCA 118

Keywords: Criminal Law, Abandoned Appeal

R. v. Dudar, 2019 ONCA 115

Keywords: Criminal Law, Impaired Driving Causing Bodily Harm, Operating a Motor Vehicle with Excess Alcohol Causing Bodily Harm, Fresh Evidence, Criminal Code, R.S.C. 1985, c. C-46, ss. 683(1)(c) and (d), R. v. Palmer, [1980] 1 S.C.R. 759, R. v. Nissan (1996), 89 O.A.C. 389 (C.A.), R. v. Truscott, 2007 ONCA 575, R. v. Manasseri, 2016 ONCA 703, R. v. Snyder, 2011 ONCA 445, R. v. Allen, 2018 ONCA 498, R. v. M.G.T., 2017 ONCA 736, R. v. M.M. (2002), 163 O.A.C. 46 (C.A.), R. v. Winmill (1999), 42 O.R. (3d) 582 (C.A.) R. v. Shafia, 2016 ONCA 812, R. v. Levesque, 2000 SCC 47, R. v. Plein 2018 ONCA 748, R. v. Dooley, 2009 ONCA 910, R. v. P.G., 2013 ONCA 520, R. v. T.S., 2012 ONCA 289, R. v. Yebes, [1987] 2 S.C.R. 168, R. v. Biniaris, 2000 SCC 15

R. v. A.B.A., 2019 ONCA 124

Keywords: Criminal Law, Sexual Assault, Evidence, Credibility, R v J.M.H., 2011 SCC 45, R v Luceno, 2015 ONCA 759, R v A.R.J.D., 2018 SCC 6, Vezeau v The Queen, [1977] 2 SCR 277, R v B. (G.), [1990] 2 SCR 57, R v MacKenzie, [1993] 1 SCR 212, R v Morin, [1988] 2 SCR 345, R v Graveline, 2006 SCC 16

R. v. J.Y., 2019 ONCA 126

Keywords: Criminal Law, Sexual Interference, Sexual Assault, Kienapple principle, Sentencing

R. v. R.D., 2019 ONCA 132

Keywords: Criminal Law, Expert Evidence

R. v. W.D., 2019 ONCA 120

Keywords: Criminal Law, Sexual Assault, Sexual Assault With A Weapon, Jury Instructions, Criminal Code, RSC 1985, c C-46, s. 684 and s. 686(1)(b)(iii)

R. v. Lee, 2019 ONCA 140

Keywords: Criminal Law

CIVIL DECISIONS

Ruston v. Keddco MFG (2011) Ltd., 2019 ONCA 125

[Pepall, Trotter and Harvison Young JJ.A.]

Counsel:

G. Griffiths and A. James, for the appellant

A. Monkhouse and S. Lucifora, for the respondent

Facts:

The respondent was 54 when he was terminated in 2015. He was hired as a sales representative in 2004 and was promoted to president in 2011. At the termination meeting, the respondent was told that he was being terminated for cause and that he had committed fraud without specifics provided. When the respondent advised the appellant that he would be retaining a lawyer, the appellant advised him that if he did, it would counterclaim and that it would be very expensive. When the respondent filed his claim for wrongful dismissal, the defendant responded with a counterclaim in which it alleged cause and claimed $1.7 million in damages.

After an eleven-day trial, the trial judge found that the appellant had failed to prove cause or any of its allegations. She found that the counterclaim for $1.7 million in damages was an intimidation tactic and that the appellant had breached its obligation of good faith and fair dealing in the manner of the respondent's dismissal. The trial judge dismissed the appellant's counterclaim and awarded the respondent significant damages, including: (1) damages in lieu of reasonable notice based on a 19 month notice period; (2) bonus and benefits; (3) aggravated and moral damages in the amount of $25,000; and (4) punitive damages in the amount of $100,000.

Issue:

(1) Did the trial judge err in awarding:

(a) Damages in lieu of reasonable notice based on a 19 month notice period?

(b) A bonus for the 2015 year?

(d) Punitive damages?

Holding:

Appeal dismissed.

Reasoning:

(1) No, the trial judge did not err in awarding the respondent significant damages.

(a) The trial judge found that several factors justified a notice period of 19 months, which included that the respondent: (i) was 54; (ii) had family ties to a smaller area for the purposes of finding similar employment; (iii) was terminated for serious allegations of cause; and (iv) was not provided with a reference letter. These factors affected the notice period because they made it less likely that the respondent would find employment which he was unable to do.

(b) The trial judge specifically found that she did not have any credible evidence with respect to the appellant's post-termination bonus practices. She also found that the respondent had received a bonus in every year of his employment that constituted a significant amount of his overall compensation.

(c) The trial judge correctly noted that employers have an obligation of good faith and fair dealing in the manner of dismissal and also that an employers' pre- and post-termination conduct may be relevant to the moral damage analysis if such conduct is a component of the manner of dismissal. She was alive to the essentially compensatory nature of aggravated damages and itemized in detail the conduct that she found to warrant the award. The evidentiary record provided ample support for the trial judge's finding that the manner of dismissal warranted an award of aggravated damages. She found that the appellants conduct in threatening the respondent not to make a claim and in instituting the counterclaim was calculated to, and did, cause the respondent stress. She accepted the respondent's evidence that the manner of dismissal was devastating and had caused him stress. There was no error of law or principle or palpable or overriding error of fact that would justify interfering with the award of $25,000.

(d) The trial judge carefully reviewed all of the appropriate factors, including that the court "must consider the overall damages award when selecting an appropriate punitive quantum" and that it must be careful to avoid double compensation or double punishment. The trial judge referred to the counterclaim threat by the appellant during the termination meeting–a threat which the appellant carried out. The trial judge also referred to the fact that the appellant had, on the seventh day of trial, reduced its damages claim from $1.7 million to $1.00. The trial judge concluded that the appellant used the claim of $1.7 million to intimidate the respondent. These facts supported her finding of misconduct justifying a punitive damages award.
It does not follow from the fact that this is the same conduct which the trial judge referred to in making the aggravated damages award that an award of punitive damages amounted to either double recovery or double punishment. That is because aggravated damages aim to compensate a plaintiff for heightened damages caused by the breach of the employer's duty of good faith and fair dealing in the manner of dismissal, while punitive damages seek to punish and denunciate inappropriate or unfair conduct. There can be no question that the appellant's conduct rose to the level of conduct deserving of denunciation for the reasons provided by the trial judge. Accordingly, there was no basis to interfere with the punitive damages award of $100,000.

Bonello v. Gores Landing Marina (1986) Limited, 2019 ONCA 127

[Brown, Paciocco and Zarnett JJ.A.]

Counsel:

R.S. Baldwin, for the appellants

N. Nasr, for the respondent G. Chestnut

N. Kostyniuk and J. Pasternak, for the respondents F. Buttigieg and M. Buttigieg

L. Sharvit, for the respondent J. Jaglel

A. C. Gluek, for the respondent G. Mansueto

R. Tilden, for the respondent A. Cook

Facts:

In 2007, the plaintiff was seriously injured during a game of tug-of-war at a campground operated by the corporate appellant, of which one of the personal appellants was a principal. The rope used during the game contained several loops. The plaintiff put his left arm through a loop. When the pulling began, the loop tightened on the plaintiff's arm, ultimately causing an injury so severe that his left forearm was ultimately amputated.

In 2009, the plaintiff commenced an action against the appellants. Following examinations for discovery, the plaintiff amended his claim to add as a defendant the son of the first personal appellant. In his Amended Statement of Claim, the plaintiff advanced two claims against the appellants. First, that the appellants breached their duties under the Occupiers' Liability Act, by failing to ensure that their premises, and the activities carried on there, were reasonably safe. Second, that the appellants were negligent.

The plaintiff did not sue any of the other participants in the tug-of-war game, but in 2010, the appellants initiated a Third Party Claim against the respondent third parties, all of whom participated in the tug-of-war. In 2016, the appellants moved for summary judgment to dismiss the plaintiff's action. The third parties moved for summary judgment dismissing the Third Party Claim. Those motions were held in abeyance until the disposition of the appellants' motion to dismiss the main action. The motion judge dismissed the action, but the Court of Appeal set aside that order on the ground that consideration was not given to the plaintiff's claim in negligence. As a result, there was a genuine issue requiring a trial as to whether the appellants were vicariously liable for any negligence on the part of the younger personal appellant.

In 2018, the appellants again moved for summary judgment dismissing the action, but the motion judge dismissed their motion. Based on his interpretation of the Court of Appeal's 2017 decision, he concluded that the defendants were precluded by virtue of issue estoppel from moving a second time for summary judgment. The third parties similarly brought motions for summary judgement, which were heard at the same time. The motion judge granted them, dismissing the Third Party Claim. The appellants appealed from the dismissal of the Third Party Claim.

Issue:

(1) Did the motion judge err in failing to recognize that the Court's 2017 decision implicitly accepted that the younger personal appellant owed the plaintiff a duty of care, and therefore that the third parties owed a similar duty to the plaintiff?

(2) Did the motion judge err in failing to recognize that the Court's 2017 decision that there was a genuine issue requiring a trial with respect to whether the younger personal appellant ought to have foreseen the risk of injury to the plaintiff, implied that therefore the same genuine issue existed with respect to the third parties?

(3) Did the motion judge misapply the principles involved in the two-stage duty of care analysis?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The Court found that no such holding, implicit or otherwise, was apparent in its 2017 decision. In that earlier decision, the Court held that a genuine issue requiring a trial existed as to whether the corporate appellant and older personal appellant were vicariously liable for the actions of the younger personal appellant. The determination of that issue would require an inquiry into whether any duty of care existed, whether it was breached, as well as the nature of the relationship between the appellants.

(2) No. The evidence disclosed differences between the conduct of the younger personal appellant and that of the third parties. Unlike the third parties, the younger personal appellant "scoured" the campground until he found a rope belonging to the corporate appellant, which he provided to those organizing the tug-of-war. In assessing whether the Third Party Claim gave rise to a genuine issue requiring trial, the motion judge was satisfied that the record enabled him to reach a fair and just determination on the merits of the third parties' liability. He thoroughly considered the largely undisputed evidence about the acts and omissions of the third parties in light of the allegations advanced in the Third Party Claim and the applicable legal principles.

(3) No. The Court began by reviewing the Anns/Cooper duty of care analysis, noting its recent reaffirmation by the Supreme Court of Canada in Deloitte & Touche v. Livent Inc. (Receiver of) and Rankin (Rankin's Garage & Sales) v. J.J. Importantly, the Court noted that the appellants' Third Party Claim alleged both wrongful acts and wrongful omissions by the third parties. With respect to failures to act, the Court affirmed the motion judge's reliance on Childs v Desormeaux for the proposition that a positive duty to act is imposed in only three circumstances: (i) where a defendant intentionally attracts and invites others to an inherent and obvious risk that he or she has created or controls; (ii) where there exists a paternalistic relationship of supervision and control; and (iii) where the defendant either exercises a public function or engages in a commercial enterprise that includes implied responsibilities to the public at large.

The Court agreed with the motion judge's conclusion that the evidence of the third parties' involvement in the tug-of-war did not fall into any of the three circumstances identified in Childs. The motion judge specifically accounted for the evidence that some of the third parties observed loops in the rope and one testified that he had warned the plaintiff not to put his hand through a loop. The Court similarly concluded that the motion judge's finding that the third parties did not invite or attract the plaintiff to an inherent and obvious risk that they had created or controlled was amply supported by the evidence.

With respect to the alleged commission of an overtly negligent act, the Court similarly agreed with the motion judge that the appellants failed to demonstrate reasonable foreseeability of the harm suffered by the plaintiff. Although some of the third parties may have foreseen the possibility of harm, the law requires that the harm be probable. With respect to most of the third parties, the evidence supported the conclusion that any harm was unforeseeable to them. With respect to those third parties for whom the evidence supported some degree of foreseeability, the Court observed that the appellants still could not overcome the fact that the circumstances did not fall within any of the three categories established in Childs. Accordingly, the third parties owed no duty of care to the plaintiff in this situation.

United Soils Management Ltd. v. Mohammed, 2019 ONCA 128

[Doherty, Pardu and Nordheimer JJ.A.]

Counsel:

W.A. Chalmers, for the appellant

J.M. Leclerc and S. Callaway, for the respondents

Facts:

Two appeals were heard together. The appellant provides site remediation, excavation and special materials disposal services throughout southern Ontario. It has operated a gravel pit near Stouffville since 2007. In 2016, the Whitchurch-Stouffville Town Council (the "Council") approved an amendment to the appellant's licence which expanded its dumping rights at the gravel pit site and, in particular, allowed it to dump material collected from small quantity sites and from hydro-vac trucks (the "Dumping").

Two Council members expressed concerns that the amendment which permitted the Dumping could compromise the long-term integrity of the local water supply. There were long-standing concerns about the safety of the water supply in the community. Both respondents, K.M. and K.B., shared these concerns.

K.M. took to Facebook. She posted and commented over a three day period. In at least three of these postings, she referred to the Dumping as potentially "poisoning our children". A few days after the postings, K.M. received a letter, which included a libel notice, demanding an immediate retraction and apology. On the same day, K.M. deleted the word "poison" from the postings and added a comment to each post retracting her "defamatory and slanderous statements". She also apologized. A day or two later, she received the appellant's claim alleging libel and seeking damages, aggravated damages, punitive damages, special damages and costs (the "Claim").

K.B. also took to Facebook. In a group, she posted a message which said that a councillor, who had voted in favour of the amendment, was "in the pocket of United Soils". Less than four hours later, the President of the appellant personally e-mailed K.B., copying the appellant's lawyer. The President indicated that he had instructed his lawyer to sue her for libel and that he "looked forward to that process". Two days later, K.B. received a letter, which included a libel notice, demanding that she "immediately post, for the period of seven consecutive days, a public retraction and apology" on Facebook. The libel notice alleged that K.B.'s words were made with the intention of "bringing political pressure against [the appellant]".

K.B. deleted the post but was unable to post the retraction and apology because the Facebook group was shut down. Later and similar to K.M., K.B. was served with the appellant's Claim. Both K.M. and K.B. brought a motion under s 137.1 of the Courts of Justice Act (the "Act") for an order dismissing the appellant's action and both motion judges allowed the motions and dismissed the actions.

In both cases, the motion judges found that: (1) the statements related to a matter of public interest under s 137.1(3) of the Act; (2) the appellant had failed to meet its onus under either s 137.1(4)(a)(i) (substantial merit) or s 137.1(4)(a)(ii) (no valid defence); and (3) the appellant had also failed to meet its onus under s 137.1(4)(b) (public interest balancing).
In K.M.'s case, the motion judge awarded $7,500 in damages to K.M. pursuant to s 137.1(9) of the Act and awarded $122,286.94 in costs to K.M. on a full indemnity basis. In K.B.'s case, the motion judge awarded $20,000 in damages to K.B. pursuant to s 137.1(9) and awarded $126,438.55 in costs to K.B. on a full indemnity basis.

Issue:

(1) Did the motion judges err in their analysis under s 137.1(4)(b) of the Act?

(2) Did the motion judges err in their damages awards?

(3) Should leave to appeal the costs orders be granted?

Holding:

Appeal dismissed.

Reasoning:

(1) No, neither of the motion judges erred in their analysis under s 137.1(4)(b) of the Act. Section 137.1(4)(b) (public interest balancing) required the motion judges to dismiss the appellant's actions unless the appellant could demonstrate that the harm suffered by it, or likely to be suffered by it, as a result of the respondents' statements was sufficiently serious that the public interest in permitting the appellant's actions to go forward outweighed the public interest in protecting the respondents' freedom of expression. In both cases, the appellant did not meet that onus and thus both proceedings were properly dismissed.

Any monetary damages suffered by a plaintiff, or likely to be suffered by a plaintiff, as a consequence of alleged defamatory statements is a key feature in the assessment of the harm suffered or likely to be suffered by the plaintiff. In both cases, the appellant offered no evidence of any monetary damage suffered by it. In addition, the appellant offered no evidence of any reputational harm done to the appellant's business.

Furthermore, the extent of any harm suffered or likely to be suffered by the appellant was significantly diminished by the very limited circulation of the alleged defamatory comments. In both cases, they were posted for only a few days and to a limited audience of likeminded individuals also concerned about environmental damage. In the case of K.M., the timely and unqualified apology, and retraction of the offensive portions of her posts, was a crucial factor in assessing harm caused or likely to be caused to the appellant. The apology went a long way to eliminate any possible future harm to the appellant's reputation from the posts.

Both respondents made a strong case for protecting their freedom of expression. The statements related to a matter of significant public importance. They were also part of an ongoing political dialogue in the local community. There was no doubt that the subject matter of the respondents' concerns, and the manner in which they advanced those concerns, constituted expression that engaged the public interest.

(2) No, neither of the motion judges erred in their damages awards. There was no basis for interfering with the damages awards that were made. There was evidence of harm to the respondents arising from these proceedings. Accordingly, no error was present which warranted intervention.

In K.M.'s case, the motion judge found that prior motions brought by the appellant were "an objective demonstration of improper purpose" and pointed out that the appellant instituted the proceeding notwithstanding that K.M. apologized. He found that this was "a continuation of its desire to intimidate". In fixing the amount of damages, the motion judge noted that there was no medical evidence in support of K.M.'s claim that she suffered stress as a result of the proceeding. Nevertheless, he accepted that the proceeding unnecessarily caused K.M. stress.

In K.B.'s case, the motion judge found that the action was brought in bad faith and for an improper purpose "of stifling public debate around a crucially important public issue", and that K.B. suffered "personal anguish" as a result of the action. The motion judge also found, in the alternative, that s 137.1(9) of the Act would permit an award of punitive damages. She found that the appellant's conduct "warrant[ed] denunciation and deterrence".

First, it is not necessary for a defendant to adduce medical evidence to support a claim for damages. Although such evidence may be of assistance, it may be presumed that damages will arise from the use of a SLAPP action. Both respondents were inexperienced in litigation and would understandably suffer the stress and anxiety associated with this type of proceeding. This was especially true given the intimidating nature of the appellant's conduct. However, this does not mean that damages will naturally follow in every case where the action is dismissed. Whether a damages award is warranted should take into account the presumption that costs will be awarded on a full indemnity basis. In some cases, this may address the harm to a defendant that arises from a SLAPP action.

Second, the wording of s 137.1(9) of the Act is not broad enough to encompass punitive damages awards. The thrust of s 137.1(9) is to provide compensation for harm done directly to the defendant, and is not intended to provide wide-ranging authority for the court to sanction the plaintiff's conduct through a damages award. Any need to sanction the plaintiff's conduct is addressed through s 137.1(7) of the Act (full indemnity).

(3) No, leave to appeal the costs orders should not be granted. There were no grounds on which to conclude that either of the motion judges erred in exercising their discretion in fixing costs such that leave to appeal should be granted. The motions were complex and a considerable amount of time was spent on them. The amounts awarded, given that they were on a full indemnity basis, were not unreasonable.

However, an obligation remains on a motion judge, when determining the quantum of costs under s 137.1(7) of the Act, to undertake the same type of analysis that is required when fixing costs in any other context. Just because the award is on a full indemnity basis does not mean that the successful party is entitled to whatever costs were incurred. The quantum must still be fair and reasonable for what was involved in the proceeding and the award must be proportionate to the importance and complexity of the issues and the amount involved in the proceeding.

Cobalt (Town) v. Coleman (Township), 2019 ONCA 134

[Pepall, Trotter and Harvison Young JJ.A.]

Counsel:

M. Sirdevan, for the appellant

R. Uukkivi and A. Pilkington, for the respondent

Facts:

This appeal concerned a tract of land ("the property") situated in the Township of Coleman ("Coleman"). The property was owned by the nearby Town of Cobalt ("Cobalt"). Cobalt had been using the property to conduct a large-scale aggregate extraction operation. Coleman objected to this use, alleging that it was not compliant with its current zoning by-law. Cobalt brought an application seeking a declaration that its use of the property for aggregate extraction was a permitted use. The application was dismissed. The application judge found that the extraction operation was not a permitted use under Coleman's current zoning by-law, and was not a legal non-conforming use pursuant to s. 34(9) of the Planning Act, R.S.O. 1990, c. P.13. In a separate decision, the application judge awarded Coleman costs on a partial indemnity scale.

Issue:

(1) Did the application judge err in finding that the use of the property was not a legal non-conforming use?

(2) Did the application judge err in awarding costs?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The Court of Appeal found that the application judge properly applied the principles concerning legal non-conforming uses to the facts of this case. Cobalt contended that the application judge erred by failing to first determine whether activity presently conducted on the property was permitted by current zoning by-law. The Court found that the application judge made no such error, and interpreted the zoning by-law by examining the historical use of the property and the language of the by-law.

Secondly, the application judge correctly applied the Supreme Court of Canada's decision in Saint-Romuald (City) v. Olivier, 2001 SCC 57 to conclude that Cobalt failed to discharge its onus of proving that the commercial extraction operation is a legal non-conforming use. The historical record regarding the use of the property was far from clear, and there was an evidentiary basis for the application to find that, when an old zoning by-law was passed, the essential use of the property was as a municipal park, making any aggregate extraction ancillary to this purpose. The Court also noted that to prove a legal non-conforming use, it must be shown that the land was actually used for this purpose (as per Saint Romuald at para. 5). Cobalt may have expressed a desire to use the property to conduct aggregate extraction during a time before the passing of the current zoning by-law, when it was no longer used as a park, but the property was not actually used for this purpose. Accordingly, there was no basis to disturb the application judge's finding that any aggregate extraction occurring before the passing of the current zoning by-law was ancillary.

The application judge also did not err in finding that the commencement of a large-scale commercial extraction operation was not a "mere intensification" of an existing use. Per Saint-Romuald, merely continuing the precise pre-existing activity, even at an intensified level, is clearly protected, but the intensification may be of such a degree as to create a difference in kind. Additionally, a court's objective is to maintain a fair balance between the individual landowner's interest and the community's interest. The evidentiary record permitted the application judge to find that the change in use of the property – from a municipal park and campground (with some incidental extraction of sand and gravel) to a large-scale commercial extraction operation – was "a change in the type of use" within the meaning of Saint-Romuald, and that the change impacted on the community in an adverse way. Although the evidentiary record was not nearly as robust with respect to determining if the new activities at the property were too remote from the earlier activities entitled to protection, the Court found that this was not enough to conclude that the application judge erred in the balancing required by Saint-Romuald.

(2) No. The Court of Appeal was not persuaded that the application judge made any error in principle, or that the costs order was plainly wrong, and cited the Supreme Court of Canada's decision in Hamilton v. Open Window Bakery Ltd., 2004 SCC 9 at para. 27 in support. Although the costs award was substantial, much of it was consumed by disbursements. The fees claimed, when considered on the partial indemnity scale, were not disproportionate in the circumstances. Furthermore, the application judge's findings and conclusions on the issue of costs were entitled to deference.

SHORT CIVIL DECISIONS

Haas v. Viscardi, 2019 ONCA 133

[Feldman, Brown and Miller J.A]

Counsel:

P. Gemmink and H. Catania, for the appellant

A.H. Ottaway, for the respondent

Keywords: Contracts, Settlement Agreements

Myles v. Myles, 2019 ONCA 143

[Hourigan, Benotto and Huscroft JJ.A]

Counsel:

S.N. Finbow and L. Hayes, for the appellant

R.H. Thomson, for the respondent

Keywords: Family Law, Custody, Variation, Fresh Evidence, Palmer Test

Carey-Patel v. Carey, 2019 ONCA 144

[Hourigan, Benotto and Huscroft JJ.A]

Counsel:

M.R. Harris and Y. Lipetz, for the appellants

R. Watson, for the respondents

Keywords: Wills and Estates, Substitute Decisions, Civil Procedure, Appeals, Jurisdiction, Final or Interlocutory Order, Henderson v Kallio, 1932 OR 675

CRIMINAL DECISIONS

R. v. Moore, 2019 ONCA 122

[MacPherson, Sharpe and Tulloch JJ.A]

Counsel:

I. Smith, duty counsel

A. Baiasu, for the respondent

Keywords: Criminal Law, Break and Enter, Robbery, Theft, Sentencing

Tolias (Re), 2019 ONCA 123

[Sharpe, Benotto and Brown JJ.A]

Counsel:

J. Marshman, for the appellant

M. Goswami, for the respondent

Keywords: Criminal Law, Sentencing, Conditional Discharge, Not Criminally Responsible due to Mental Disorder, Threat to Public Safety, Uttering Threats, Criminal Harassment, Breach of Recognizance, Re Tolias, 2019 ONCA 215

R. v. MacKay, 2019 ONCA 117

[Feldman, Paciocco and Zarnett JJ.A]

Counsel:

M.C. Halfyard, for the appellant

T.C. Lemon, for the respondent

Keywords: Criminal Law, Possession of Cocaine for the Purpose of Trafficking, Sekhon Error

R. v. Leite, 2019 ONCA 121

[MacPherson, Sharpe and Tulloch JJ.A]

Counsel:

I. Smith, for the appellant

R. Visca, for the respondent

Keywords: Criminal Law, Possession of Narcotics, Sentencing

R. v. Gaetan, 2019 ONCA 118

[MacPherson, Sharpe and Tulloch JJ.A]

Counsel:

G. Gaetan, appearing in person

Z. Kerbel, duty counsel

M. Comiskey, for the respondent

Keywords: Criminal Law, Abandoned Appeal

R. v. Dudar, 2019 ONCA 115

[MacPherson, Sharpe and Tulloch JJ.A]

Counsel:

B. Bytensky, for the appellant

C. Webb, for the respondent

Keywords: Criminal Law, Impaired Driving Causing Bodily Harm, Operating a Motor Vehicle with Excess Alcohol Causing Bodily Harm, Fresh Evidence, Criminal Code, R.S.C. 1985, c. C-46, ss. 683(1)(c) and (d), R. v. Palmer, [1980] 1 S.C.R. 759, R. v. Nissan (1996), 89 O.A.C. 389 (C.A.), R. v. Truscott, 2007 ONCA 575, R. v. Manasseri, 2016 ONCA 703, R. v. Snyder, 2011 ONCA 445, R. v. Allen, 2018 ONCA 498, R. v. M.G.T., 2017 ONCA 736, R. v. M.M. (2002), 163 O.A.C. 46 (C.A.), R. v. Winmill (1999), 42 O.R. (3d) 582 (C.A.) R. v. Shafia, 2016 ONCA 812, R. v. Levesque, 2000 SCC 47, R. v. Plein 2018 ONCA 748, R. v. Dooley, 2009 ONCA 910, R. v. P.G., 2013 ONCA 520, R. v. T.S., 2012 ONCA 289, R. v. Yebes, [1987] 2 S.C.R. 168, R. v. Biniaris, 2000 SCC 15

R. v. A.B.A, 2019 ONCA 124

[MacPherson, Pardu and Brown JJ.A]

Counsel:

J. Klukach and C. Suter, for the appellant

R. Sheppard, for the respondent

Keywords: Criminal Law, Sexual Assault, Evidence, Credibility, R v J.M.H., 2011 SCC 45, R v Luceno, 2015 ONCA 759, R v A.R.J.D., 2018 SCC 6, Vezeau v The Queen, [1977] 2 SCR 277, R v B. (G.), [1990] 2 SCR 57, R v MacKenzie, [1993] 1 SCR 212, R v Morin, [1988] 2 SCR 345, R v Graveline, 2006 SCC 16

R. v. J.Y., 2019 ONCA 126

[MacPherson, Sharpe and Tulloch JJ.A]

Counsel:

I. Smith, duty counsel

A. Baiasu, for the respondent

Keywords: Criminal Law, Sexual Interference, Sexual Assault, Kienapple principle, Sentencing

R. v. R.D., 2019 ONCA 132

[MacPherson, Sharpe and Tulloch JJ.A]

Counsel:

R.D., appearing in person

Z. Kerbel, duty counsel

A. Hotke, for the respondent

Keywords: Criminal Law, Expert Evidence

R. v. W.D., 2019 ONCA 120

[Simmons, Lauwers and Trotter JJ.A]

Counsel:

N.R. Hasan, for the appellant

W.D., appearing in person

H. Loubert, for the respondent

Keywords: Criminal Law, Sexual Assault, Sexual Assault With A Weapon, Jury Instructions, Criminal Code, RSC 1985, c C-46, s. 684 and s. 686(1)(b)(iii)

R. v. Lee, 2019 ONCA 140

[MacPherson, Sharpe and Tulloch JJ.A]

Counsel:

W.L. (P.) Lee, appearing in person

A. Ohler, duty counsel

J.S. Joy, for the respondent

Keywords: Criminal Law

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be ought about your specific circumstances.

Canada: Ontario Court Of Appeal Summaries (February 18 – 22, 2019) Blaney's Appeals

John Polyzogopoulos Blaney McMurtry LLP 416.593.2953 Email

Table of Contents

Civil Decisions

Short Civil Decisions

Criminal Decisions

CIVIL DECISIONS

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Facts:

Issue:

Holding:

Reasoning:

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Issue:

Holding:

Reasoning:

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Facts:

Issue:

Holding:

Reasoning:

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Facts:

Issue:

Holding:

Reasoning:

SHORT CIVIL DECISIONS

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Counsel:

CRIMINAL DECISIONS

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Canada: Ontario Court Of Appeal Summaries (February 18 – 22, 2019)
Blaney's Appeals

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email