Court Of Appeal Summaries (March 8 – March 12, 2021) - Civil Law

Good afternoon.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of March 8, 2021.

In Mikelsteins v. Morrison Hershfield Limited, the Court of Appeal had to reconsider its previous decision on remand from the Supreme Court of Canada in light of the Supreme Court's decision in Matthews v. Ocean Nutrition Canada Ltd., 2020 SCC 26.

The case involved a wrongfully terminated employee's rights to additional damages in relation to shares he held in the parent company of his employer. The Court of Appeal ultimately held that the Ocean Nutrition decision did not change its approach to the appeal, as Ocean Nutrition deals with the rights of an employee qua employee, whereas the subject appeal involved the employee's rights under a shareholders' agreement. The original decision to allow the appeal was upheld. The appellants in this case were represented by Blaneys' own David Greenwood and Christopher McClelland. Congratulations to them.

Other topics of note this week included and administrative law decision under the Pay Equity Act, limitation periods in estate litigation, a procurement case, defamation in a child protection context, and stay pending appeal.

Please mark down April 27, 2021, from 5:30-7:45pm in your calendars for our fifth annual "Top Appeals" CLE, which will take place via Zoom. Justice Benjamin Zarnett will be co-chairing the event with myself and Chloe Snider of Dentons. Following is our excellent slate of decisions and speakers:

2020 Update from the Bench
The Honourable Benjamin Zarnett, Court of Appeal for Ontario

Panel 1 - Advocacy Practice Tips from the Court

Girao v. Cunningham, 2020 ONCA 260

OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2020 ONCA 532

Welton v. United Lands Corporation Limited, 2020 ONCA 322

Jordan Goldblatt, Adair Goldblatt Bieber LLP

Sara Erskine, Weintraub Erskine Huang LLP

Panel 2 - Negligently Designed Financial Products - A New Age in Product Liability?

Wright v. Horizons ETFS Management (Canada) Inc., 2020 ONCA 337

Seumas Woods, Blake, Cassels & Graydon LLP

Alistair Crawley, Crawley MacKewn Brush LLP

Elizabeth Bowker, Stieber Berlach LLP

Panel 3 - Developments in Insolvency Law - Priority of Construction Trust Claims and Landlord Claims in Bankruptcy

Urbancorp Cumberland 2 GP Inc. (Re), 2020 ONCA 197

7636156 Canada Inc. (Re), 2020 ONCA 681

Ken Kraft, Dentons LLP

Kevin Sherkin, Miller Thomson LLP

D.J. Miller, Thornton Grout Finnigan LLP

In the meantime, please register for the program by visiting the OBA's website.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Civil Decisions

Ducharme v. Hudson, 2021 ONCA 151

Keywords: Health Law, Consent and Capacity, Capacity to Consent to Treatment, Civil Procedure, Stay Pending Appeal, Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, s. 18, s. 19, Rules of Civil Procedure, Rule 63.02(1), RJR MacDoanld Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620

Inzola Group Limited v. Brampton (City), 2021 ONCA 143

Keywords: Contracts, Interpretation, Procurement, Requests for Proposal, Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, City of Toronto, Toronto Computer Leasing Inquiry and Toronto External Contracts Inquiry, The Honourable Denise E. Bellamy, 2005 ("Bellamy Report")

Ontario Nurses' Association v. Participating Nursing Homes, 2021 ONCA 148

Keywords: Administrative Law, Judicial Review, Labour and Employment, Pay Equity, Proxy Methodology, Gender-Neutral Comparison System, Standard of Review, Reasonableness, Pay Equity Act, R.S.O. 1990, c. P.7, Agraira v. Canada (Public Safety and Preparedness), 2013 SCC 36, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65

Participating Nursing Homes v. Ontario Nurses' Association, 2021 ONCA 149

Keywords: Administrative Law, Judicial Review, Labour and Employment, Pay Equity, Proxy Methodology, Gender-Neutral Comparison System, Standard of Review, Reasonableness, Pay Equity Act, R.S.O. 1990, c. P.7, Agraira v. Canada (Public Safety and Preparedness), 2013 SCC 36, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65

AA v. BB, 2021 ONCA 147

Keywords: Torts, Defamation, Slander, Qualified Privilege, Courts of Justice Act, s. 134, Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, ss. 87(8), 125, RTC Engineering Consultants Ltd. v. Ontario (2002), 58 O.R. (3d) 726 (C.A.), W. (D.) v. White, 2001 CarswellOnt 5892 (S.C.), Nadejda Ryabikhina v. Stanislav (Stan) Savranskiy, 2010 ONSC 3860, Sullivan v. Draper-Sereda, [2006] O.J. No. 4671, Korach v. Moore (1991), 1 O.R. (3d) 275 (C.A.), Bent v. Platnick, 2020 SCC 23, Brad-Jay Investments Limited v. Village Developments Limited (2006), 218 O.A.C. 315 (C.A.), Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, Fong v. Chan (1999), 46 O.R. (3d) 330 (C.A.), Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, Vancouver Sun (Re), 2004 SCC 43, L.C.F. v. G.F., 2016 ONSC 6732, S.M. v. C.T., 2020 ONSC 4819, G.S. and K.S. v. Metroland Media Group et al., 2020 ONSC 5227, Raymond E. Brown, Brown on Defamation, 2nd ed. (Toronto: Thomson Reuters, 2020), at ch. 6.1

Mikelsteins v. Morrison Hershfield Limited, 2021 ONCA 155

Keywords: Employment Law, Wrongful Dismissal, Corporations, Shareholders, Shareholders Agreements, Civil Procedure, Remand from Supreme Court, Business Corporations Act, R.S.O. 1990, c. B.16, s. 32, Canada Business Corporations Act, R.S.C. 1985, c. C-44, Supreme Court Act, R.S.C. 1985, c. S-26, s. 43(1.1), Matthews v. Ocean Nutrition Canada Ltd., 2020 SCC 26, Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc., 2017 ONCA 293, leave to appeal refused, [2106] S.C.C.A. No. 249

Zachariadis Estate v. Giannopoulos Estate, 2021 ONCA 158

Keywords: Wills and Estates, Civil Procedure, Limitation Periods, Appeals, Fresh Evidence, Adjournments, Substantial Indemnity Costs, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s 4, Trustee Act, R.S.O. 1990, c. T.23, s 38(3), Rules of Civil Procedure, Rules 39 and 57.01, Khimji v. Dhanani (2004), 128 A.C.W.S. (3d) 904 (Ont. C.A.), Burns Estate v. Mellon [2000] O.J. No. 2130 (C.A.), Canadian Broadcasting Corporation Pension Plan v. BF Realty Holdings Ltd., 214 DLR (4th) 121, R. v. Burns, [1994] 1 S.C.R. 656, Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, Levesque v. Crampton Estate, 2017 ONCA 455, M.(K.) v. M.(H.), [1992] 3 S.C.R. 6, Beaudoin Estate v. Campbellford Memorial Hospital, 2021 ONCA 57, Pioneer Corp. v. Godfrey, 2019 SCC 42

Short Civil Decisions

Paulpillai Estate v. Yusuf, 2021 ONCA 146

Keywords: Civil Procedure, Appeals, Motions to Reconsider, Jurisdiction, Final or Interlocutory, Rules of Civil Procedure, Rule 59.06, Meridian Credit Union v. Baig, 2016 ONCA 942

CIVIL DECISIONS

Ducharme v. Hudson, 2021 ONCA 151

[Harvison Young J.A. (Motion Judge)]

Counsel:

C.D., acting in person

A.F. Raviele, appearing as amicus curiae

J.L. Lefebvre and J.P. Thomson, for the responding party

facts:

The moving party is a patient at a high-security forensic hospital where he is being detained as a result of him being found not criminally responsible on account of mental disorder in relation to certain criminal charges. The respondent is the physician responsible for his care.

The Consent and Capacity Board (the "Board") confirmed the respondent's finding that the moving party lacks capacity to consent to treatment. Immediately following this confirmation, the moving party filed a notice of appeal. Since then, the moving party has not taken any steps to advance the appeal. However, s. 18 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (the "Act"), provides that treatment cannot commence on non-consenting individual until such appeal has been determined.

Accordingly, the respondent brought a motion pursuant to s. 19(1) of the Act, which would authorize the treatment to proceed pending the appeal of the Board's decision. The motion judge granted the order, and the moving party subsequently brought this motion for a stay of the order pending appeal.

issues:

Should a stay pending appeal of the motion judge's order be granted?

holding:

Motion dismissed.

reasoning:

Should a stay pending appeal of the motion judge's order be granted?

No. The three-part test for a stay pending appeal was articulated in RJR MacDoanld Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311: (i) whether there is a serious issue to be tried; (ii) whether the moving party would suffer irreparable harm if the stay is not granted; and (iii) whether the balance of convenience favours granting the stay. All three components are interrelated in the sense that the overriding inquiry focuses on whether the moving party has demonstrated that it is in the interests of justice to grant a stay (BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620).

(i) Is there a serious issue to be determined?

With respect to the first inquiry, whether there is a serious question to be determined, the Court noted that the odds for the success of the moving party's appeal were slim to none. While the bar for a finding that there is a serious question to be tried is notably low, the Court found that the moving party did not appear to be willing or able to either instruct counsel or to accept and cooperate with the assistance provided by the amicus.

Also, the motion judge properly applied the applicable legal test when making the order under s. 19 of the Act, and his careful consideration of the evidence presented was owed deference.

(ii) Would the moving party suffer irreparable harm if the stay is not granted?

The term "irreparable" as used in this context refers to the nature of the harm, rather than its magnitude. Irreparable harm occurs where the failure to grant a stay would render any subsequent appeal moot. The Court noted that the issues in this motion involved considerations of an individual's bodily integrity, which is of paramount importance in our legal system. However, the intrusion on the moving party's bodily integrity, while significant, is aimed at dramatically improving the moving party's psychosis and delusions. Further, the evidence showed that when the moving party had been successfully medicated in the past, his overall health and sociability greatly improved. Therefore, the moving party would not suffer irreparable harm if the stay were not granted.

(iii) Does the balance of convenience favour granting a stay?

This step considers which of the parties would suffer greater harm from the granting or refusal of the stay. The respondent acknowledged that the granting of a stay would not harm him personally, as he has no personal interest in this matter. However, the Court acknowledged that in these particular instances, this step of the inquiry should rightly consider the interests of certain third parties, as well as the public interest in general. In this respect, the Court considered the interests of the staff that interact with the moving party on a daily basis at the hospital where he is held, and the continued risk to their own personal safety if the moving party was not medicated. Therefore, this final step, as well as the broader interests of justice as a whole, were satisfied by the refusal to grant a stay.

Inzola Group Limited v. Brampton (City), 2021 ONCA 143

[Strathy C.J.O., Brown and Miller JJ.A.]

Counsel:

D. Chernos, S. Svonkin and A. Allison, for the appellant

A. Stephens, D. Rabinowitz and K. Genest, for the respondent

facts:

In October 2009, the respondent issued a Request for Proposals ("RFP") for an addition to its City Hall. The respondent endeavoured to set out a detailed RFP process, specifically designed to keep elected officials completely separated from the competitive bidding process. All bids were to be assessed by an independent Evaluation Committee, and the respondent also engaged an outside expert as a Process and Fairness Advisor to monitor the process and ensure its fairness.

The appellant was one of three qualified bidders under the RFP. The appellant and its principals were generally viewed as significantly influential entities within the community. Repeatedly throughout the RFP process, the appellant made efforts to circumvent the independent nature of the RFP process, and instead make representations directly to city council.

Eventually, in June 2010, the respondent advised the appellant that it was being disqualified from the RFP process due to fatal breaches of its terms. The respondent ultimately awarded the contract to another contractor participating in the RFP process.

The appellant denied the breaches, and commenced an action alleging it had been disqualified as a result of bias, and sought damages. The trial judge dismissed the appellant's claim, finding that the appellant did in fact breach several aspects of the RFP.

issues:

(1) Did the trial judge err in finding that the appellant breached the "sole point of contact" provision of the RFP?

(2) Did the trial judge err by treating the "Bellamy Report" as part of the factual matrix?

(3) Did the respondent breach its duty of fair and equal treatment?

holding:

Appeal dismissed.

reasoning:

(1) Did the trial judge err in finding that the appellant breached the "sole point of contact" provision of the RFP?

No. The RFP provided that any bidders participating in the process were to contact the respondent only through the respondent's Purchasing Advisor, who was designated as the "sole point of contact". The trial judge found that the appellant clearly breached this provision by having its lawyer write to the mayor and to the city council, effectively asking them to intervene in the RFP process.

On appeal, the appellant submitted that the "sole point of contact" provision only pertained to operational communications in the course of the RFP process, and did not apply to expressions of concern over the process itself. In this respect, the appellant argued that any communications it undertook with any city representative outside of the Purchasing Advisor were strictly limited to expressing such concerns.

The Court rejected the appellant's submission on the basis that its interpretation of the provision was highly technical, and ignored the broad meaning intended. The "sole point of contact" provision was specifically designed to ensure consistency and fairness in any and all communications related to the RFP, including comments or concerns on the process itself. The Court concluded that the appellant's conduct threatened the credibility and integrity of the process, and the Evaluation Committee was justified in its decision to disqualify the appellant. Lastly, the trial judge's interpretation of the contract was reasonable and therefore entitled to deference (Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53).

(2) Did the trial judge err by treating the "Bellamy Report" as part of the factual matrix?

No. The trial judge observed that the expert evidence led at trial, as well as all witnesses called by the respondent, were all in agreement that the 2005 "Bellamy Report" was "highly persuasive, if not authoritative" as to procurement best practices in competitive bidding process. Specifically, the Bellamy Report referenced the practice that all elected municipal officials should remain outside the process, and should not be involved in any form of bid evaluation.

The appellant submitted that it was not proper for the trial judge to consider the Bellamy Report as part of the factual matrix because: (i) it had no statutory effect; (ii) concerned events that took place in an entirely different city; and (iii) the respondent never suggested it could be used as an interpretive aid anywhere in the RFP documents.

The Court did not accept the appellant's arguments, and instead concluded that the trial judge did not in fact find that the Bellamy Report was part of the "factual matrix". Rather, the trial judge was entitled to consider the underlying principles that made it clear that the RFP was designed to keep elected officials separate from the evaluation process, and the Bellamy Report, as suggested by the witness evidence led at trial, was a component of this consideration.

(3) Did the respondent breach its duty of fair and equal treatment?

No. The appellant claimed that the respondent breached the duty of fair and equal treatment it owed by treating the "breach" by the ultimately successful bidder differently than the appellant's breaches. Specifically, the appellant raised suspicions of unfair assistance provided to the successful bidder by the respondent, in connection with an apparent option to purchase a library that was the focal point of "Phase 2" of this project. However, the facts surrounding this alleged unfair assistance transpired approximately six months after the appellant had been disqualified from the RFP for its breaches.

Accordingly, the Court agreed with the respondent's submissions that: (i) the duty of fair and equal treatment was no longer in existence once the appellant had been disqualified; (ii) the trial judge compared the breaches committed by the appellant and the alleged breach of the successful bidder, and concluded that they were not similar and therefore did not need to be addressed with similar responses; and (iii) the respondent reserved the discretion to address the breaches differently because the circumstances were different.

In short, the Court found that the appellant's breaches threatened the integrity of the RFP process itself, while the successful bidder's breach was somewhat inconsequential. In any event, the terms of the RFP gave the respondent broad discretionary powers, and the respondent was certainly entitled to waive the successful bidder's breach.

Ontario Nurses' Association v. Participating Nursing Homes, 2021 ONCA 148

[Strathy C.J.O., Benotto, Brown, Huscroft and Zarnett JJ.A.]

Counsel:

D.M. Golden and M.P. Falco, for the appellants/respondents by way of cross-appeal, the Participating Nursing Homes

S.Z. Green, E. Bala and C.L. Kay, for the appellant/respondent by way of cross-appeal, the Attorney General of Ontario

P.J.J. Cavalluzzo, A. Telford and L. Koerner Yeo, for the respondent/appellant by way of cross-appeal, the Service Employees International Union, Local 1

J. Borowy, D. Bisnar and A. Sobko, for the respondent/appellant by way of cross-appeal, the Ontario Nurses' Association

L. Lawrence and A. Hart, for the respondent, the Pay Equity Hearings Tribunal

F. Faraday for the intervener, the Equal Pay Coalition

facts:

The Pay Equity Act, R.S.O. 1990, c. P.7 (the "Act") was enacted to address the issue of systemic gender discrimination with respect to compensation in "female job classes". Generally speaking, a female job class is a job class in which 60 percent or more of the members are female. Further, "job class" is defined in s. 1(1) of the Act as "those positions in an establishment that have similar duties and responsibilities and require similar qualifications, are filled by similar recruiting procedures and have the same compensation schedule, salary grade or range of salary rates."

The Act seeks to achieve its purpose by requiring employers who are subject to its provisions to establish and maintain compensation practices that provide for pay equity. There are three different methodologies prescribed by the Act to establish and maintain pay equity: the job-to-job method, the proportional value method, and the proxy method. Both the job-to-job method and proportional value method involve some form of comparison between female job classes and male job classes within the same establishment of a particular employer.

In employer establishments without any male job classes (generally, a job class in which 70 percent or more of the members are male), such as the nursing homes in question in this appeal, the proxy method must be used. The proxy method is complex, but essentially involves comparing the subject female job class to another female job class in a different (i.e. proxy) employer's establishment, where such proxy female job class has already achieved pay equity by way of comparison to a male job class within the proxy employer's establishment. Put simply, the proxy female job class functions as the "deemed" male comparator, allowing for an indirect comparison to a male job class when a direct comparison is not available in the subject employer's own establishment.

In 1994, the Participating Nursing Homes ("PNH") took steps to establish pay equity for their female employees using the proxy method. After lengthy negotiations, the PNH, the Ontario Nurses' Association and Service Employees International Union, Local 1 (collectively, the "Unions") eventually reached an agreement that established pay equity for all female job classes at the PNH by 2005.

However, the Unions took the position that since 2005, the PHN has failed to maintain such pay equity, and insisted that the PHN continue to employ the proxy method to effect this maintenance. The PHN and the Attorney General of Ontario (the "AGO"), on the other hand, argued that the proxy method is only required to be used to establish pay equity, not to maintain it.
The matter was brought before the Pay Equity Hearings Tribunal (the "Tribunal"), and the Tribunal agreed with the position of the PHN and the AGO - namely, that the proxy method was not to be used to maintain pay equity as it is an "extraordinary" method viewed as a substantial practical impediment if prescribed as an ongoing requirement.

On an application for judicial review, the Divisional Court concluded that the Tribunal's decision was unreasonable, and held that a proper interpretation of the Act requires ongoing access to male comparators, which the proxy method provides, and which is only possible by way of the proxy method in certain situations where there are no direct male comparators available.

issues:

Was the Tribunal's decision unreasonable?

holding:

Appeals and cross-appeal dismissed.

reasoning:

Was the Tribunal's decision unreasonable?

No. A reasonableness inquiry involves "stepping into the shoes" of the lower court and focusing on the Tribunal's decision (Agraira v. Canada (Public Safety and Preparedness), 2013 SCC 36). Reasonableness is a single standard, as held in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, and the particular context of a decision constrains what will be reasonable in a given case.

Vavilov also confirmed the modern principle of statutory interpretation: that the words of a statute must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. As a result, the administrative decision must be consistent with principles of statutory interpretation and be compliant with the statutory scheme under which it was adopted.

In short, the Tribunal's decision was held to be unreasonable because, in its view, maintenance did not require the ongoing monitoring of changes to the value or compensation of the female job classes in the proxy establishment. This view was unreasonable because it ignored the purpose, scheme and plain wording of the Act.

The scheme of the Act was built upon the fundamental premise that comparison between male and female job classes is essential if systemic gender discrimination is to be redressed. This is not only true in instances where pay equity is sought to be first established, but also in cases where it has been established, and must be maintained.

In this respect, the Tribunal's distinction between the obligations to establish pay equity, and the obligation to maintain pay equity, was not grounded in the plain language of the Act. The Act made no such distinction between the methods to be used in establishing and maintaining, nor would such distinction be consistent with the purpose of the Act. This conclusion was supported by the numerous examples cited by the Court where the Tribunal has routinely used the same method for maintaining pay equity as was used to establish it in the first place.

Vavilov instructed that before a reviewing court can set aside a decision on the basis that it is unreasonable, the court must be satisfied that there are serious shortcomings such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency. While the Court did not impugn the transparency or intelligibility of the Tribunal's decision, it ultimately found the decision lacking justification. In sum, when taking into consideration the provisions of the Act itself, as well as its wider purpose and scheme, a male comparator is critical in both establishing and maintaining pay equity. When no direct male comparator is available, the proxy method is clearly intended to be the methodology used for both.

Participating Nursing Homes v. Ontario Nurses' Association, 2021 ONCA 149

[Strathy C.J.O., Benotto, Brown, Huscroft and Zarnett JJ.A.]

Counsel:

D.M. Golden, for the appellants Participating Nursing Homes

P.J.J. Cavalluzzo, A. Telford and L. Koerner Yeo, for the respondent Service Employees International Union, Local 1

J. Borowy, D. Bisnar and A. Sobko, for the respondent Ontario Nurses' Association

L. Lawrence and A. Hart, for the respondent, the Pay Equity Hearings Tribunal

F. Faraday for the intervener, the Equal Pay Coalition

Keywords: Administrative Law, Judicial Review, Labour and Employment, Pay Equity, Proxy Methodology, Gender-Neutral Comparison System, Standard of Review, Reasonableness, Pay Equity Act, R.S.O. 1990, c. P.7, Agraira v. Canada (Public Safety and Preparedness), 2013 SCC 36, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65

facts:

This case dealt with substantially the same facts as those noted above in Participating Nursing Homes v. Ontario Nurses' Association, 2021 ONCA 148. However, in this case the Participating Nursing Homes ("PNH") appealed from the judgement of the Divisional Court that affirmed in part a decision of the Pay Equity Hearings Tribunal (the "Tribunal").

The Tribunal decision directed the PNH, in collaboration with the Ontario Nurses' Association and the Service Employees International Union, Local 1 (collectively, the "Unions"), to negotiate a gender-neutral comparison system ("GNCS") for maintaining pay equity. The Pay Equity Act, R.S.O. 1990, c. P.7 (the "Act") required every seeking employee to prepare a pay equity plan that includes a description of the GNCS used for the purposes of making the comparisons involved in the proxy comparison methodology detailed in Participating Nursing Homes v. Ontario Nurses' Association, 2021 ONCA 148.

In 1995, the PNH and the Unions negotiated and executed a pay equity plan for the entire nursing home sector. However, the parties did not agree on a GNCS and did not use a GNCS to evaluate job classes in the PNH and proxy female job classes.

The Tribunal directed the parties, pursuant to its authority under s. 25(2)(g) of the Act, to negotiate a GNCS. The decision was upheld by the Divisional Court. The PNH submitted that the Tribunal's decision was unreasonable because it will "forever require the PNHs to base their pay equity compensation" on another employer.

issues:

Did the Divisional Court err in upholding the Tribunal's decision that the parties negotiate a gender-neutral comparison system for maintaining pay equity?

holding:

Appeal dismissed.

reasoning:

Did the Divisional Court err in upholding the Tribunal's decision that the parties negotiate a gender-neutral comparison system for maintaining pay equity?

No. The Court held that it was the obligation of the employer to prepare a pay equity plan in compliance with the?Act, and it did not do so. Therefore, it was within the Tribunal's power to direct it to comply under section 25(2)(g) of the Act. Further, as discussed in the reasons of the companion appeal (Ontario Nurses' Association v. Participating Nursing Homes, 2021 ONCA 148), the object of the Act requires ongoing comparison to men. Under the proxy method, when there are insufficient men in the establishment, there is reference to another employer. The proxy method depends on such comparisons.

AA v. BB, 2021 ONCA 147

[Lauwers, Brown and Roberts JJ.A.]

Counsel:

AA, acting in person

BB, acting in person

CC, acting in person

facts:

The appellant, AA, and the respondent, CC, have two children. The respondent, BB, was a friend of CC. Following AA and CC's separation, the children's aid society (the "Society") received an anonymous report that AA was abusing his children and partner. BB made the call. The report was false. AA brought an action against BB and CC claiming damages for intentional infliction of emotional distress, conspiracy, slander, and libel. AA's action focused on BB's report and CC's interview by the Society (the "Interview Call") as part of the investigation of the initial report.

After granting AA judgment against BB but dismissing AA's claim against CC in the first trial, AA discovered fresh evidence regarding CC's role in BB's report, and the trial was re-opened. The trial judge found at the second trial that CC and BB conspired together to have BB make the false report to the Society, which slandered AA. He granted judgment against CC and BB. AA was self-represented but the trial judge awarded him no costs for his time and awarded disbursements of less than what AA sought (the "Costs Order"). In order to protect the children's identities, the trial judge ordered that letters be used for the parties' names. However, the local sheriff's office was not prepared to enforce the judgment in that form. To remove that obstacle to enforcement, the trial judge issued a subsequent order (the "Naming Order") that continued the use of lettered names in the proceeding but directed that a new court file be opened for enforcement purposes. AA appealed the two trial judgments, the Costs Order, and the Naming Order.

issues:

(1) Did the trial judge err in dismissing AA's claim against CC for the statement she made during the Interview Call with the Society?

(2) Did the trial judge err in the Costs Order?

holding:

Appeal allowed in part.

reasoning:

Before the Court could determine the issues on appeal, it had to determine what the defamatory statements were, since the trial judge did not clearly identify which statements made by CC during the Interview Call defamed AA. The Court noted that the absence of such a finding created problems for appellate review. The case AA advanced alleged that, during the Interview Call, CC informed the Society employee that she had told people that AA was a terrible and abusive parent. The appeal record did not include the transcript of the Society's evidence, but the Court accepted the audio recording of the testimony of the Society employee for review. The Court was also able to evaluate the Case Note of the Interview Call. Although there was a lot of conflicting evidence, the Case Note records several statements made by CC during the Interview Call that were capable of defaming AA. CC admitted that the Case Note was an accurate reflection of the conversation she had with the Society.

The Court concluded that the trial judge considered AA's claim against CC for defamatory statements made during the Interview Call; the trial judge did not make a finding as to which statements made by CC during that call defamed AA; yet the trial judge concluded that the statements were protected by qualified privilege. Given the length of time that has passed since the Interview Call and the fact that all parties were self-represented, the Court held that it would not be in the interests of justice to remit the matter back to the trial judge. The Court found that this was an appropriate case to exercise its powers under s. 134 of the Courts of Justice Act, including by making any necessary findings of fact.

The Court ultimately concluded that given CC's admission at trial that the Case Note accurately reflected the conversation she had with the Society employee during the Interview Call, the Court proceeded on the basis that CC told the Society employee that AA was "an abusive and vindictive man" and a "terrible and abusive parent". Those statements certainly defamed AA. The Court's analysis of the trial judge's qualified privilege finding treated these as the "Defamatory Statements" at issue in the Interview Call.

(1) Did the trial judge err in dismissing AA's claim against CC for the statement she made during the Interview Call with the Society?

AA advanced two arguments in support of this contention.

(i) Did the trial judge err by refusing to admit a Society document which he contended demonstrated that the Interview Call was not an occasion of qualified privilege?

No. The Society document AA referred to stated that communications were not privileged. The trial judge refused to admit the document because it fell outside the scope of admissible evidence for the re-opened trial. In agreeing with the trial judge, the Court explained that the references in the Society document to "privilege" were not references to the concept of qualified privilege in the law of defamation. More relevant to the issue of whether the Defamatory Statements were made on an occasion of qualified privilege was s. 125 of the Child, Youth and Family Services Act. That section sets out the obligation of a person to report information to a society where there are reasonable grounds to suspect that a child has suffered harm. This statutory qualified privilege attaches to statements made in a complaint to a society, as well as to statements made by a person in the course of an investigation. Thus, the Court held that the trial judge did not err in finding that CC made the statements to the Society on an occasion of qualified privilege.

(ii) Did the trial judge fail to determine whether CC's claim for qualified privilege was defeated by her malice?

Yes. Yes. The defence of qualified privilege can be defeated by malice or if the statements exceed the limits of the applicable duty or interest. In considering whether malice defeats qualified privilege, the presence of an improper motive is the critical consideration. Malice in the context of qualified privilege means not just ill will towards another but any ulterior motive that conflicts with the interest or duty created by the occasion. It includes recklessness. AA argued that, since the trial judge had found CC and BB made a malicious initial referral to the Society, that malice would defeat any qualified privilege. The Court disagreed. The finding of malice in respect of the initial report did not automatically mean that malice was the dominant motive for CC making the statements over a week later in the Interview Call. The issue was whether, at the time of the Interview Call, malice was the dominant motive.

The trial judge erred when he failed to make a finding as to whether CC made the Defamatory Statements with malice. Therefore, the Court of Appeal had to decide the issue. Here, CC made Defamatory Statements during the Society's investigation and falsely denied knowing anything about the referral or its source. Yet, she used the occasion of the Interview Call to repeat, and therefore reinforce, allegations similar to those BB made in her false referral. Given those circumstances, and the fact that the trial judge found that the initial referral allegations were made with malice, the Court held that CC made the Defamatory Statements with malice thereby defeating a defence of qualified privilege for CC. The Court allowed AA's appeal with respect to the dismissal of his claim for slander against CC in respect of the Interview Call.

(2) Did the trial judge err in the Costs Order?

Yes. An appellate court should set aside a costs award only if the trial judge has made an error in principle or the costs award is plainly wrong. AA submitted that the trial judge erred in failing to award pre-litigation costs related to the work he undertook. The Court disagreed and found that it was within the trial judge's discretion not to award those costs. AA next submitted that the trial judge erred in failing to award him any costs for the time he spent on these proceedings. The Court disagreed. The trial judge held that AA failed to prove that he had to give up remunerative activity in order to perform work on this case that ordinarily would be done by a lawyer.

As to disbursements, the trial judge awarded less than what AA claimed because AA had not filed a breakdown to support his request. The Court reviewed AA's cost submissions and while they do not break out costs and disbursements in a typical way, the court allowed the appeal from the Costs Order to the extent of raising the disbursements awarded to what AA sought.

Mikelsteins v. Morrison Hershfield Limited, 2021 ONCA 155

[Fairburn A.C.J.O., Lauwers and Nordheimer JJ.A.]

Counsel:

David E. Greenwood and Christopher McClelland, for the appellant

J.D. Heeney and J. Burke, for the respondent

facts:

This case involved a reconsideration of a previous appeal following the matter being referred back from the Supreme Court of Canada.

The respondent was an employee of the appellant corporation. When the respondent was terminated from his employment, he brought an action for wrongful dismissal. On a summary judgment motion, the respondent was awarded damages for wrongful dismissal. The motion judge also held he was entitled to additional payment for the shares that he held in the appellant's parent corporation and a further share bonus. The appellant appealed the share related awards, not the damages award.

The respondent, during his employment, was entitled to purchase shares in the parent company. The shares were governed by a shareholders' agreement. Under the shareholders' agreement, holders of the shares were entitled to a bonus based on the performance of the parent company in proportion to the number of shares they held - it was in effect a dividend, rather than a bonus related to the employee's contributions. In addition, the shareholders' agreement contained an automatic transfer notice where, inter alia, the shareholder is terminated. This automatic notice resulted in the shareholders being entitled to the fair value of their shares. The motion judge determined that the respondent could hold the shares until the end of the reasonable notice period (26 months) and receive damages for the loss of any share bonuses he missed in that 26 month period.

On the initial appeal, the Court of Appeal allowed the appeal, finding that contrary to the motion judge's conclusions, the respondent was not entitled to have his shares valued as at the end of the reasonable notice period nor was he entitled to the share bonuses during that time.

The respondent sought leave to appeal this decision to the Supreme Court. The Supreme Court returned the appeal to the Court of Appeal for determination pursuant to Matthews v. Ocean Nutrition Canada Ltd., 2020 SCC 26, a decision of the Supreme Court that was released after the first appeal was heard.

issues:

Does the Supreme Court of Canada's decision in Ocean Nutrition change the outcome of the appeal?

holding:

Appeal decision affirmed.

reasoning:

Does the Supreme Court of Canada's decision in Ocean Nutrition change the outcome of the appeal?

No. In Ocean Nutrition, at para. 55, Kasirer J. concluded that, in assessing an employee's damages arising from a wrongful dismissal, a court should ask itself two questions: (i) Would the employee have been entitled to the bonus or benefit as part of their compensation during the reasonable notice period?; and (ii) If so, do the terms of the employment contract or bonus plan unambiguously take away or limit that common law right?

The Court of Appeal noted that these two questions are underpinned by a very important factual point - they are directed at determining the rights of the employee qua employee. This factual point was sufficient to determine the remand in accordance with Ocean Nutrition because the subject appeal was determining the respondent's rights under the shareholders' agreement, not under his employment contract. The respondent was not given his shares in relation to his performance as an employee, rather, he used his own funds to purchase the shares and his rights in respect of the shares were dictated by the shareholders agreement.

The respondent's entitlement respecting his shares falls to be determined by his rights as a shareholder of the parent company, not by his status as a terminated employee of the appellant. To conclude otherwise would run the risk of interfering with the established law on the rights and obligations of shareholders, much of which is codified in corporate statutes such as the Business Corporations Act.

The respondent raised other arguments, including whether and to what extent the Employment Standards Act applies. The Court of Appeal dismissed these other arguments as they were outside the scope of the remand. The remand was for a specific purpose and did not invite a wholesale reopening of the appeal: Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc., 2017 ONCA 293. None of the other issues raised by the respondent arose from the decision of Ocean Nutrition and so they were not open for re-argument.

Zachariadis Estate v. Giannopoulos Estate, 2021 ONCA 158

[Roulea, Benotto and Thorburn JJ.A.]

Counsel:

N. Groot and G. Keeble, for the appellants

J. de Vries and D. Vieira, for the respondents

facts:

The appellants were estranged daughters of the deceased, who passed in February of 2015 without a will. In November of 2014, the deceased gave the respondent a bank draft for $700,000 with a notation "Payment to (Respondent)" inscribed on the "Re" line.

The appellants commenced this action to recover the $700,000 payment for the estate and alleged breach of trust, fraud at equity, conversion and unjust enrichment.

The motion judge refused to grant an adjournment sought by the appellants and granted summary judgment dismissing the appellants' claim, since (1) the appellants' action was commenced outside the strict two-year limitation period set out at s. 38(3) of the Trustee Act, R.S.O 1990, c. T.23; and (2) the respondents had established that the $700,000 payment was a valid gift. In the costs endorsement, the motion judge awarded costs on a substantial indemnity basis and made the order against the estate as well as the appellants as estate trustees.

issues:

(1) Did the motion judge err in not granting the adjournment request?

(2) Did the motion judge err in finding that the $700,000 payment was a valid gift?

(3) Did the motion judge err in finding that the action was statute-barred?

(4) Should the appellants be allowed to file fresh evidence on appeal?

(5) Did the motion judge err in granting substantial indemnity costs?

holding:

Appeal dismissed.

reasoning:

(1) Did the motion judge err in not granting the adjournment request?

No. The decision to grant or refuse an adjournment is discretionary and the motion judge's application of Rule 39 of the Rules of Civil Procedure was entitled to deference. The proposed non-party examinations would have added little to the evidentiary record.

(2) Did the motion judge err in finding that the $700,000 payment was a valid gift?

No. The motion judge had the benefit of extensive submissions and was clearly aware of the various alleged suspicious circumstances. The fact that he chose to address only a sampling of the alleged suspicious circumstances in his reasons did not constitute error. The word "payment" is neutral and did not necessarily imply that the payment was not a gift.

(3) Did the motion judge err in finding that the action was statute-barred?

No. The two-year limitation period under s. 38(3) of the Trustee Act applied and precluded the appellants from bringing an action. The respondent did not actively conceal the existence of the payment and her failure to volunteer information about the gift was not unconscionable. She had no reason or duty to disclose the existence of the gift to the appellants, whom she had never met. The doctrine of fraudulent concealment did not apply.

(4) Should the appellants be allowed to file fresh evidence on appeal?

No. The fresh evidence ought to have been excluded on the basis that it could have been obtained by the exercise of due diligence. When the respondent brought their motion for summary judgment, the appellants had a pending motion to obtain the respondent's tax documentation from the CRA and were content to have that motion adjourned until after the summary judgment motion was heard.

(5) Did the motion judge err in granting substantial indemnity costs?

No. There was no basis to interfere with the motion judge's award of costs. In concluding that substantial indemnity costs were appropriate, the motion judge considered the correct factors, including the allegations of fraud, the settlement offers, the need to discourage and sanction inappropriate behaviour by litigants and the factors listed under Rule 57.01 of the Rules of Civil Procedure. Similarly, there was no basis to interfere with the motion judge's decision to award costs against the trustees personally, as his conclusion was well supported by the record.

SHORT CIVIL DECISIONS

Paulpillai Estate v. Yusuf, 2021 ONCA 146

[Doherty, Hoy and Jamal JJ.A.]

Counsel:

O.G. Barnwell, for the moving parties

E.G. Upenieks and A.H. Kwok, for the responding parties

Keywords: Civil Procedure, Appeals, Motions to Reconsider, Jurisdiction, Final or Interlocutory, Rules of Civil Procedure, Rule 59.06, Meridian Credit Union v. Baig, 2016 ONCA 942

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: Court Of Appeal Summaries (March 8 – March 12, 2021) Blaney's Appeals

John Polyzogopoulos Blaney McMurtry LLP 416.593.2953 Email

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Canada: Court Of Appeal Summaries (March 8 – March 12, 2021)
Blaney's Appeals

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email