COURT OF APPEAL SUMMARIES (January 29 – February 5)

Congratulations to Blaneys’ own Anthony Gatensby and Kathleen Lefebvre who were successful in responding to an appeal about whether a commercial landlord’s insurer was permitted to bring a subrogated claim against its tenant for negligence in causing a fire. The Court affirmed the motion judge’s decision that the landlord’s insurer could not pursue the tenant. The issue hinged on the interpretation of the lease in question.

Del Giudice v. Thompson involved a data breach of the credit card company, Capital One, that exposed customer information. The Court found no errors in the motion judge’s dismissal of the action and refusal to certify it on the basis that no reasonable cause of action had been pleaded. This decision puts a serious dent into the viability of data breach claims

In T.O. Estate v D.O., the Court allowed the moving party to amend the notice of appeal after perfecting it to add to corporate defendants who had participated in the trial and were represented by the same lawyer as the principal of the corporations (who was a respondent on the appeal). The failure to name the corporations in the notice of appeal was as a result of inadvertence on the part of counsel, there was no prejudice to the corporations and the appeal had potential merit.

Flying E Ranche Ltd. was a class action against the Canadian government for damages arising out of its handling of the spread of mad cow disease in the 1990s and early 2000s. The Court upheld the trial judge’s dismissal of the action as statute-barred by section 9 of the Crown Liability and Proceedings Act. That section bars claims by plaintiffs who have already received government compensation for losses arising out of the same facts underlying the action.

In Gagne v. Ivari, the Court allowed an appeal from the striking of a claim on the basis that no reasonable cause of action had been pleaded. The motion judge erred by treating the motion as a summary judgment motion and made legal errors regarding the viability of negligence claims against insurers regarding advice about the suitability of their products.

Desrochers v McGinnis is an MVA case involving liability for the negligent operation of an ATV by a notice driver who suffered a serious injury following an accident

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Gagne v Ivari, 2024 ONCA 82

Keywords: Breach of Contract, Breach of Fiduciary Duty, Torts, Negligence, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Rules of Civil Procedure, r. 21.01(1)(b), Fine’s Flowers et al. v. General Accident Assurance Co. of Canada et al. (1977), 17 O.R. (2d) 529 (C.A.), Tran v. University of Western Ontario, 2015 ONCA 295, The Catalyst Capital Group Inc. v. Dundee Kilmer Developments Limited Partnership, 2020 ONCA 272, 150 O.R. (3d) 449, Yan v. Hutchinson, 2023 ONCA 97, Fernandez Leon v. Bayer, 2023 ONCA 629

T.O. Estate v D.O., 2024 ONCA 73

Keywords: Contracts, Debtor-Creditor, Civil Procedure, Appeals, Notices of Appeal, Leave to Amend, Limitation Periods, Limitations Act, 2002, SO 2002, c 24, Sched B, ss 5(3), 13, T.O. Estate v D.O., 2023 ONCA 824,Yar v Yar (2012), 24 RFL (7th) 101 (Ont. C.A.), Akagi v Synergy Group (2000) Inc., 2014 ONCA 731

Robson v. Law Society of Ontario, 2024 ONCA 77

Keywords:Administrative Law, Regulated Professions, Lawyers, Professional Misconduct, Rules of Civil Procedure, rr. 3.02, 61.16, Sickinger v. Sickinger, 2017 ONCA 760

Flying E Ranche Ltd. v Canada (Agriculture), 2024 ONCA 72

Keywords: Torts, Negligence, Crown Liability, Class Proceedings, Crown Liability and Proceedings Act, RSC, 1985, c C-50, s 9, Farm Income Protection Act, SC 1991, c 22, s 12, Crown Liability Act, RSC 1970, c C-38, s 4(1), Sarvanis v Canada, 2002 SCC 28, Berardinelli v Ontario Housing Corp., [1979] 1 SCR 275, Bell ExpressVu Ltd. Partnership v Rex, 2002 SCC 42, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27, North Bank Potato Farms Ltd. v Canadian Food Inspection Agency, 2019 ABCA 344, Vancise v Canada (Attorney General), 2018 ONCA 3, Begg v Canada (Minister of Agriculture), 2005 FCA 362, Langille v Canada (Minister of Agriculture) (CA), [1992] 2 F C 208 (C.A.), Brownhall v Canada (Ministry of National Defence) (2007), 87 OR (3d) 130 (Div. Ct.)

Del Giudice v. Thompson, 2024 ONCA 70

Keywords:Privacy Law, Torts, Intrusion Upon Seclusion, Misappropriation of Personality, Conversion, Negligence, Breach of Confidence, Breach of Fiduciary Duty, Breach of Contract, Civil Procedure, Class Proceedings, Certification, No Reasonable Cause of Action, Class Proceedings Act, 1992, S.O. 1992, c. 6, Bank Act, S.C. 1991, c. 46, Privacy Act, R.S.C. 1985, c. P-21, Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, Privacy Act, R.S.B.C. 1996, c. 373, s. 1(1), Privacy Act, R.S.N.L. 1990, c. P-22, s. 3(1), Privacy Act, R.S.S. 1978, c. P-24, s. 2, Rules of Civil Procedure, rr. 21, 25.11, Nash v. Ontario (1995), 27 O.R. (3d) 1 (C.A.), Das v. George Weston Ltd., 2018 ONCA 1053, Darmar Farms Inc. v. Syngenta Canada Inc., 2019 ONCA 789, McCreight v. Canada (Attorney General), 2013 ONCA 483, Jensen v. Samsung Electronics Co. Ltd., 2021 FC 1185, Jones v. Tsige, 2012 ONCA 32, Owsianik v. Equifax Canada Co., 2022 ONCA 813, Obodo v. TransUnion of Canada, Inc., 2022 ONCA 814, Winder v. Marriot International, Inc., 2022 ONCA 815, Wiseau Studios, LLC v. Harper, 2020 ONSC 2504, Tar Heel Investments Inc. v. H.L. Staebler Company Limited, 2022 ONCA 842, Boma Manufacturing Ltd. v. Canadian Imperial Bank of Commerce, [1996] 3 S.C.R. 727, Baldwin v. Daubney (2006), 83 O.R. (3d) 308, Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, Saadati v. Moorhead, 2017 SCC 28, Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, Agnew-Americano v. Equifax Canada Co., 2019 ONSC 7110, Obodo v. Trans Union of Canada, Inc., 2021 ONSC 7297, Campbell v. Capital One Financial Corporation, 2022 BCSC 928, Evans v. Bank of Nova Scotia, 2014 ONSC 2135, Canadian National Railway Co. v. Norsk Pacific Steamship Co., [1992] 1 S.C.R. 1021, 1688782 Ontario Inc. v. Maple Leaf Food Inc., 2020 SCC 35, Donoghue v. Stevenson, [1932] A.C. 562, Resolute Forest Products Inc. v. Greenpeace, 2016 ONSC 5398, Huachangda Canada Holdings Inc. v. Solcz Group Inc., 2019 ONCA 649

Desrochers v McGinnis, 2024 ONCA 63

Keywords: Torts, Negligence, MVA, Duty of Care, Standard of Care, Contributory Negligence, Family Law Act, R.S.O. 1990, c. F.3, s. 61, Highway Traffic Act, R.S.O. 1990, c. H.8, Motor Vehicle Act, R.S.N.B. 1973, c. M-17, Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19, Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R. 1186, Hall v. Hebert, [1993] 2 S.C.R. 159, Gibson v. Haggith (1994), 156 A.R. 229 (Q.B.), J.G. (Dependent Adult) v. Strathcona (County of), 2004 ABQB 378, Garratt v. Orillia Power Distribution Corp., 2008 ONCA 422, Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19, Anns v. Merton London Borough Council, [1978] A.C. 728 (U.K.H.L.), Cooper v. Hobart, 2001 SCC 79, Ryan v. Victoria (City), [1999] 1 S.C.R. 201, Clements v. Clements, 2012 SCC 32, Sacks v. Ross, 2017 ONCA 773, Waldick v. Malcolm, (1991), 70 O.R. (2d) 717 (C.A.), Schuster v. Whitehead, [1960] O.R. 125 (C.A.), F.W. Argue Ltd. et al. v. Howe, [1969] S.C.R. 354, Thompson v. Bourchier, [1933] O.R. 525 (C.A.), Cummings v. Budget Car Rentals Toronto Ltd., (1996), Finlayson v. GMAC Leasco Limited, 2007 ONCA 557, Fernandes v. Araujo, 2015 ONCA 571, Dionne v. Desjardins, (1999), 214 N.B.R. (2d) 380 (C.A.), Bowe v. Bowe, 2022 BCCA 35, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Housen v. Nikolaisen, 2002 SCC 33

Short Civil Decisions

James v. Gupta, 2024 ONCA 84

Keywords: Civil Procedure, Dismissal for Delay, Rules of Civil Procedure, r. 24.01

Royal Bank of Canada v. S-Cosmetics Clinic Inc., 2024 ONCA 87

Keywords: Civil Procedure, Appeals, Extension of Time, Costs, Machado v. Ontario Hockey Association, 2019 ONCA 210

Windrift Adventures Inc. v. Ontario (Animal Care Review Board), 2024 ONCA 89

Keywords:Civil Procedure, Appeals, Leave to Appeal, Stay Pending Appeal, RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 SCR 199, Sault Dock Co. Ltd. v. Sault Ste. Marie (City), [1973] 2 O.R. 479 (C.A.)

Martinez v. Ontario (Independent Police Review Office), 2024 ONCA 80

Keywords: Civil Procedure, Vexatious Litigation, Appeals, Leave to Appeal, Extension of Time, Rules of Civil Procedure, r. 2.1, Robson v. Law Society of Ontario, 2023 ONCA 860, Scaduto v. Law Society of Upper Canada, 2015 ONCA 733

Stanley v. Lucchese, 2024 ONCA 68

Keywords:Contracts, Debtor-Creditor, Guarantees, Civil Procedure, Partial Summary Judgment, Malik v. Attia, 2020 ONCA 787

CIVIL DECISIONS

Gagne v. Ivari, 2024 ONCA 82

[Lauwers, van Rensburg and Thorburn JJ.A.]

Counsel:

M.L. Pomerleau, for the appellants

J.S. Cavanagh, for the respondent

Keywords: Breach of Contract, Breach of Fiduciary Duty, Torts, Negligence, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Rules of Civil Procedure, r. 21.01(1)(b), Fine’s Flowers et al. v. General Accident Assurance Co. of Canada et al. (1977), 17 O.R. (2d) 529 (C.A.), Tran v. University of Western Ontario, 2015 ONCA 295, The Catalyst Capital Group Inc. v. Dundee Kilmer Developments Limited Partnership, 2020 ONCA 272, 150 O.R. (3d) 449, Yan v. Hutchinson, 2023 ONCA 97, Fernandez Leon v. Bayer, 2023 ONCA 629

Facts:

This case involved an action against the respondent life insurance company and others alleging breach of contract, breach of fiduciary duty and negligence in relation to the creation of a financial retirement plan that included, among other things, the use of life insurance contracts. The appellants alleged that the plan was unsuitable and caused them loss and damages.

The respondent insurer, Ivari, successfully brought a motion r. 21.01(1)(b) of the Rules of Civil Procedure for dismissal of the action against it for failure to disclose a reasonable cause of action.

Issue:

1. Did the motion judge err in applying what he considered to be “settled principles of law” to dismiss the claim against the respondent insurer?

2. Did the motion judge err in refusing leave to amend the claim?

Holding:

Appeal allowed.

Reasoning:

1. Yes.

First, the motion judge erred in treating the r. 21 motion as if it were a motion for summary judgment under r. 20. A motion under r. 21.01(1)(b) focuses on the legal sufficiency of a plaintiff’s pleading, and not the merits of the proceeding.

The Court did not agree that there is any general principle of law that an insurer will never owe a duty to an insured with respect to the suitability of an insurance product. The cases relied on by the motion judge were decided in the context of summary judgment motions or after trial, where claims against insurers were dismissed based on the evidence.

2. No.

The motion judge refused leave to amend based on his incorrect conclusion that the legal principles distinguishing between brokers and insurers were settled. There was no reason to refuse leave to amend in this case. The appellants should have had the opportunity to rectify their pleadings against the respondent by setting out the essential elements of the relevant causes of action and the facts supporting such claims.

T.O. Estate v D.O., 2024 ONCA 73

[Fairburn A.C.J.O., van Rensburg and Zarnett JJ.A.]

Counsel:

Gleason and M. Phyper, for the moving party

N. Kostyniuk, for the responding parties D.O., The Ridgeway Education Rec Centre Ltd. and 2012023 Ontario Limited

Keywords: Contracts, Debtor-Creditor, Civil Procedure, Appeals, Notices of Appeal, Leave to Amend, Limitation Periods, Limitations Act, 2002, SO 2002, c 24, Sched B, ss 5(3), 13, T.O. Estate v D.O., 2023 ONCA 824Yar v Yar (2012), 24 RFL (7th) 101 (Ont. C.A.), Akagi v Synergy Group (2000) Inc., 2014 ONCA 731

Facts:

In July 2019, T.O. commenced an application in the Superior Court against his then spouse, D.O. In July 2021, T.O. added two corporations owned by D.O, The Ridgeway Education Rec Centre Ltd. (“Ridgeway”) and 2012023 Ontario Limited (“201”), as parties to the application. The proceedings went to trial. At trial, T.O. confirmed that he was not seeking repayment of the loans from D.O. personally but was claiming repayment from the business that was carried on by one or both of her corporations. On October 17, 2022, the trial judge dismissed T.O.’s claims for repayment of certain loans. Although the trial judge found the advances made to the business were loans, he held that the claim for repayment was statute-barred.

T.O. commenced an appeal to the Court by a notice of appeal served on November 15, 2022. The appeal was against the dismissal of the claim for repayment of the loans. The appeal was perfected in May 2023. T.O. died in August 2023, and the moving party, T.O.’s estate, continued the appeal.

The appeal was scheduled to be heard on December 7, 2023. At the opening of the appeal, the moving party asked to amend the notice of appeal to add Ridgeway and 201 as respondents, and to clarify that relief was sought against them. The request was opposed by counsel for D.O, who confirmed he also represented Ridgeway and 201.

Issues:  Should the moving party be allowed to amend the notice of appeal?

Holding:  Motion granted.

Reasoning:

Yes.

The factors to whether leave to amend a notice of appeal should be granted after an appeal has been perfected were set out in Yar v Yar. They are: (1) whether the appellant formed an intention to appeal within the relevant time-period; (2) the length of and any explanation for the delay; (3) any prejudice to the respondent; (4) the merits of the appeal; and (5) the justice of the case.

Each of the factors pointed in favour of allowing the amendment.

First, counsel who prepared the notice of appeal deposed that T.O. instructed her, prior to its delivery, to appeal the dismissal of the claim for repayment. That claim was made, at trial, against Ridgeway and 201, not against D.O. Accordingly, it was clear that T.O. had the requisite intention to proceed with an appeal against those two corporations within the relevant period.

Second, the delay was adequately explained. The failure to name Ridgeway and 201 as respondents in the notice of appeal was due to counsel’s inadvertence. Ridgeway and 201 were added as parties to T.O.’s claims before trial and were the only targets of the claim for repayment. There was no reason not to include them as respondents on the appeal, and every reason to do so.

Third, the Court failed to see any relevant prejudice to the responding parties arising from the delay in formally adding Ridgeway and 201 as respondents to the appeal. D.O., Ridgeway and 201 were represented at trial by the same counsel, and still were. Given the way the claim for repayment proceeded at trial – against D.O.’s business (her corporations) and not against D.O. personally – there was no reason for them to permanently expect that an appeal would proceed on a different footing. The fact that the responding parties will now have to answer an appeal that properly names Ridgeway and 201 as respondents was not prejudice resulting from the delay.

Fourth, the appeal had arguable merit. The loans had no fixed payment date. They may in law be considered demand obligations. Section 5(3) of the Limitations Act, 2002 was not cited, considered, or applied by the trial judge in his reasons. That provision starts the limitation clock running for a demand obligation only once a demand for performance is made, which the moving party argued was within two years of the addition of Ridgeway and 201 to the proceedings. The moving party also argued that the trial judge did not give effect to the acknowledgment of the loans in Ridgeway’s financial statements, overlooking s. 13 of the Limitations Act, 2002. These arguments deserved a hearing.

Fifth, the justice of the case favoured allowing the amendment so that the matter may be determined on its merits, an important goal of the civil justice system. Denying the amendment would penalize the moving party for an inadvertent error of counsel, which was to be avoided.

Robson v. Law Society of Ontario, 2024 ONCA 77

[JUDGES]

Counsel:

[Gillese J.A. (Motions Judge)]

Counsel:

P.A. Robson, acting in person

Cookhorn, for the responding party

Keywords: Administrative Law, Regulated Professions, Lawyers, Professional Misconduct, Rules of Civil Procedure, rr. 3.02, 61.16, Sickinger v. Sickinger, 2017 ONCA 760

Facts:

In March 2022, the Law Society Tribunal Hearing Division’s panel found that Mr. R., a former lawyer licensee, failed to provide prompt and complete disclosure to LSO investigative inquiries pertaining to a 2021 complaint from a former client. Accordingly, Mr. R. was found to have engaged in professional misconduct by failing to co-operate with an LSO investigation (the “LSO Hearing Panel Decision”).

Mr. R’s appeal of the LSO Hearing Panel Decision to the Law Society Tribunal Appeal division was dismissed in December 2022. Further, his appeal of the LSO Appeal Decision to the Divisional Court was dismissed on September 19, 2023.

Mr. R sought leave to appeal the Divisional Court Decision to the Court of Appeal. He failed to file a notice of motion for leave within the prescribed time, and as a result, brought a motion before a single judge for an extension.

On December 18, 2023, a three-person panel of the Court (the “Panel”) granted Mr. R. an extension of time to perfect his motion for review of a decision of a single judge of the Court (the “Review Motion”). The Panel ordered Mr. R. to perfect the Review Motion within ten days of the release of its reasons, failing which the Review Motion would be “administratively dismissed” (the “Panel Order”). Mr. R failed to comply with the Panel Order by not perfecting it within ten days, leading to an administrative dismissal of the Review Motion.

Issue:

1. Does a single judge have jurisdiction to hear the motion?

2. Did the application judge err in denying the appellant’s request for an adjournment upon his counsel getting off the record?

Holding:

Motion dismissed.

Reasoning:

1. No.

First, allowing a single judge to vary or set aside the Panel Order is prohibited by r. 61.16(6.1) of the Rules. On the plain wording of r. 61.16(6.1), the Panel Order may not be set aside or varied under the Rules. This is what Mr. R. sought, asking for the time-period for compliance to be varied and to have set aside part of the Panel Order stipulating that failing to comply will result in the administrative dismissal of the Review Motion.

Second, properly characterized, the Registrar’s dismissal was neither an order nor a decision within the meaning of r. 61.16(5).

2. No.

Even if the Court was incorrect and there is jurisdiction: (1) the putative appeal is meritless, (2) Mr. R.’s explanation for why he failed to meet the ten-day deadline imposed by the Panel Order was not credible – as an experienced lawyer, he could have read r. 3.01(1) of the Rules, (3) the interests of justice demanded that the Motion be dismissed, as Mr. R. had already argued a meritless case four times: before two separate divisions of the Law Society Tribunal, before the Divisional Court, and then before a single judge of the Court.

Flying E Ranche Ltd. v Canada (Agriculture), 2024 ONCA 72

[Hourigan, Miller and Nordheimer JJ.A.]

Counsel:

C. Boswell, M. N. Ruby and R. McMillan, for the appellant

J. Paolone, A. Gilani and M. Sullivan, for the respondent

Keywords: Torts, Negligence, Crown Liability, Class Proceedings, Crown Liability and Proceedings Act, RSC, 1985, c C-50, s 9, Farm Income Protection Act, SC 1991, c 22, s 12, Crown Liability Act, RSC 1970, c C-38, s 4(1), Sarvanis v Canada, 2002 SCC 28, Berardinelli v Ontario Housing Corp., [1979] 1 SCR 275, Bell ExpressVu Ltd. Partnership v Rex, 2002 SCC 42, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27, North Bank Potato Farms Ltd. v Canadian Food Inspection Agency, 2019 ABCA 344, Vancise v Canada (Attorney General), 2018 ONCA 3, Begg v Canada (Minister of Agriculture), 2005 FCA 362, Langille v Canada (Minister of Agriculture) (CA), [1992] 2 F C 208 (C.A.), Brownhall v Canada (Ministry of National Defence) (2007), 87 OR (3d) 130 (Div. Ct.)

Facts:

This appeal arose from the dismissal, after trial, of a class proceeding involving claims by the appellant as representative plaintiff for damages sustained by Canadian farmers, between 2003 and 2008, arising out of the presence in Canada of Bovine Spongiform Encephalopathy (“BSE”), often referred to as mad cow disease. The appellant claimed that the respondent was negligent in failing to ensure that BSE did not enter Canada. In dismissing the claim, the trial judge found that s. 9 of the Crown Liability and Proceedings Act (“CLPA”), barred the appellant’s claim.

BSE affects the central nervous system of cattle. It has a lengthy incubation period. The number of cattle diagnosed with BSE continued to grow in the U.K., peaking in 1992 when over 37,000 cases were confirmed. Like other countries, Canada took steps to prevent BSE from entering its cattle population.

No Canadian animal was diagnosed with BSE in the 1990s. But in May 2003, almost a decade after the last of the U.K. imports was destroyed, a cow which had died earlier that year on a farm in Saskatchewan was found to have had BSE. It was later determined that this cow was fed a “calf-starter” feed containing ruminant protein when it was a calf in 1997, just prior to the enactment of the Feed Ban, and that this was the likely source of BSE in the cow. The United States, which provided over 50 percent of the market for Canadian cattle and cattle products, immediately closed the border to Canadian cattle and beef products. Many other countries followed. Although, over time, the borders gradually reopened and trade resumed, the economic impact on Canadian cattle producers and related industries was enormous. The total cost of the trade embargo between 2003 and 2008 has been estimated to exceed $ 8 billion.

In 1991, Parliament passed the Farm Income Protection Act. The legislation allowed for the implementation of a new series of generally available safety-net programs in collaboration with the provinces. FIPA also authorized the establishment of the Net Income Stabilization Accounts Program (“NISA”) which was set up in the early 1990s. Two funds were created. Fund 1 consisted of the producer’s deposits. Fund 2 contained matching funds from the federal and provincial governments up to three percent of eligible net sales of the producer. Farmers could withdraw funds, if they wished, when their annual net income was below the preceding five-year average, or if household income was below $ 35,000, subject to prescribed limits. In 2003, the Canadian Agricultural Industry Support Program (“CAIS”) was established. Funded by the federal government and the provinces, its objective was to help protect producers against income losses, regardless of the cause. In addition to these programs, Canada implemented a number of direct programs to address the impacts of BSE on cattle producers and cattle production (“the BSE-specific programs”). These included the BSE Recovery Program Phases 1, 2, 3 and 4; Transitional Industry Support Programs (“TISP”); Farm Income Payment Programs (“FIP”); and the Milk Price Increase.

Issues:

Did the trial judge err in finding that s. 9 of the Crown Liability and Proceedings Act barred the claim?

Holding: 

Appeal dismissed.

Reasoning:

No.

Section 9 of the CLPA reads:

No proceedings lie against the Crown or a servant of the Crown in respect of a claim if a pension or compensation has been paid or is payable out of the Consolidated Revenue Fund or out of any funds administered by an agency of the Crown in respect of the death, injury, damage or loss in respect of which the claim is made.

Section 9 has been considered in many cases, the leading one of which is the Supreme Court decision in Sarvanis v. Canada. In that case, an inmate in a federal penitentiary had sustained serious personal injuries. As a result, he qualified for Canada Pension Plan disability benefits. The inmate sued the Crown in tort soon after suffering his injuries. The Crown moved for summary judgment claiming that the action was statute-barred by s. 9 because the plaintiff was receiving Canada Pension Plan disability benefits. The Supreme Court of Canada found that s. 9 did not bar the plaintiff’s action. In making that determination, Iacobucci J. set out a form of test for the application of s. 9. He said that for s. 9 to apply, the pension or compensation paid or payable “must be made on the same factual basis as the action” that would be barred against the Crown. Iacobucci J. reiterated that the purpose of s. 9 was to bar double recovery “for the same claim where the government is liable for misconduct but has already made a payment in respect thereof”.

The appellant resisted the application of s. 9 to this case largely based on its argument that the various programs referred to above were designed to provide “financial assistance” to the class members but were not for the purpose of providing “compensation”. The Court found this submission unpersuasive. The application of s. 9 did not turn on whether the specific word “compensation” is used in relation to the payment made. It was the purpose of the payment, and whether it was “contingent” on an event of death, injury, damage or loss, that was important.

In the factual circumstances of this case, the government’s purpose in paying assistance to the cattle farmers under the BSE-specific programs was clearly to compensate them, in particular, for the economic effects of the border closures that arose from the discovery of BSE in Canada, but also for the impact of BSE generally. This purpose was reflected not only in the programs’ substantive provisions, as described in the facts section above, but also in their surrounding documents provided in the record. For instance, the TISP Direct Payment Form and Guide published by the Ministry states that “The Direct Payment is designed to provide assistance to producers in meeting the financial challenges resulting from the market impacts of …BSE”.

In support of its view that “compensation” is distinct from “assistance”, the appellant submitted, based on Berardinelli v. Ontario Housing Corp, that s. 9 should receive a restrictive meaning because it circumscribes the rights of citizens. This submission was also unpersuasive. The words used in s. 9 each have a clear meaning. Further, no apparent ambiguity arises from the sentence structure. Irresolvable ambiguity obtains only when it is not possible to determine which of two equally plausible meanings were intended by Parliament. The mere fact that a party can conceive of an alternative meaning does not mean there was any ambiguity: an alternative interpretation can simply be wrong. Furthermore, difficulty in applying a provision to a particular set of facts was not necessarily the result of any ambiguity. Meaning and application are two different concepts.

In any event, the interpretative approach of treating some statutes as requiring restrictive interpretations was abandoned some time ago. There is now only one interpretive principle or approach, namely, “the words of an Act are to 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”. The conclusion that the absence of the word “compensation” from the BSE specific schemes did not determine the application of s. 9 is also consistent, either explicitly or implicitly, with various other decisions.

The case law was clear that s. 9 bars an action for damages for a loss that has already been compensated, even if the action attempts to frame the loss differently. In Vancise v. Canada (Attorney General), the plaintiff/appellant brought a claim in negligence against the federal government arising out of damages he suffered when his cattle became infected with anaplasmosis – a bacterial infection that was considered to be a foreign animal disease requiring the destruction of any infected animal. His claim was dismissed on a summary judgment motion because s. 9 was found to bar his claim. On appeal, the plaintiff/appellant argued that his claim for negligence was separate and apart from the loss arising from the destruction of his animals, for which he acknowledged he had been compensated by the respondents. The Court rejected that argument. Paciocco J.A. said that the reach of s. 9 was “settled”.

Section 9 bars a claim if the plaintiff has received monies by way of compensation for losses arising from the same factual basis that the action is based upon. It was clear that the appellant in this case received payments under various programs that the federal government had set up to address the financial impacts that arose from the presence of BSE in this country. Indeed, the trial judge made that specific finding.

Del Giudice v. Thompson, 2024 ONCA 70

[Miller, Paciocco and Coroza JJ.A.]

COUNSEL:

J.A. Campion, R.D. Elliott, H.R. Scher, J. Childs, E. Bordman and T. Phelan, for the appellants

L.F. Cooper, V. Toppings, A.D. Cameron and P. Sergeyev, for the respondents Capital One Financial Corporation, Capital One Bank (Canada Branch), Capital One (Services) Canada Inc., Capital One, N.A., and Capital One Bank (USA), N.A.

S.M. Kugler, B.J. Arnold and K. Sivasothy, for the respondents Amazon Web Services Inc. and Amazon Web Services (Canada) Inc.

KEYWORDS: Privacy Law, Torts, Intrusion Upon Seclusion, Misappropriation of Personality, Conversion, Negligence, Breach of Confidence, Breach of Fiduciary Duty, Breach of Contract, Civil Procedure, Class Proceedings, Certification, No Reasonable Cause of Action, Class Proceedings Act, 1992, S.O. 1992, c. 6, Bank Act, S.C. 1991, c. 46, Privacy Act, R.S.C. 1985, c. P-21, Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, Privacy Act, R.S.B.C. 1996, c. 373, s. 1(1), Privacy Act, R.S.N.L. 1990, c. P-22, s. 3(1), Privacy Act, R.S.S. 1978, c. P-24, s. 2, Rules of Civil Procedure, rr. 21, 25.11, Nash v. Ontario (1995), 27 O.R. (3d) 1 (C.A.), Das v. George Weston Ltd., 2018 ONCA 1053, Darmar Farms Inc. v. Syngenta Canada Inc., 2019 ONCA 789, McCreight v. Canada (Attorney General), 2013 ONCA 483, Jensen v. Samsung Electronics Co. Ltd., 2021 FC 1185, Jones v. Tsige, 2012 ONCA 32, Owsianik v. Equifax Canada Co., 2022 ONCA 813, Obodo v. TransUnion of Canada, Inc., 2022 ONCA 814, Winder v. Marriot International, Inc., 2022 ONCA 815, Wiseau Studios, LLC v. Harper, 2020 ONSC 2504, Tar Heel Investments Inc. v. H.L. Staebler Company Limited, 2022 ONCA 842, Boma Manufacturing Ltd. v. Canadian Imperial Bank of Commerce, [1996] 3 S.C.R. 727, Baldwin v. Daubney (2006), 83 O.R. (3d) 308, Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, Saadati v. Moorhead, 2017 SCC 28, Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, Agnew-Americano v. Equifax Canada Co., 2019 ONSC 7110, Obodo v. Trans Union of Canada, Inc., 2021 ONSC 7297, Campbell v. Capital One Financial Corporation, 2022 BCSC 928, Evans v. Bank of Nova Scotia, 2014 ONSC 2135, Canadian National Railway Co. v. Norsk Pacific Steamship Co., [1992] 1 S.C.R. 1021, 1688782 Ontario Inc. v. Maple Leaf Food Inc., 2020 SCC 35, Donoghue v. Stevenson, [1932] A.C. 562, Resolute Forest Products Inc. v. Greenpeace, 2016 ONSC 5398, Huachangda Canada Holdings Inc. v. Solcz Group Inc., 2019 ONCA 649

FACTS:

The Capital One respondents (collectively, “Capital One”) collected data from people applying for Capital One credit cards. Capital One stored its data on servers of the Amazon Web Services respondents (collectively, “Amazon Web”). Amazon Web was hacked, and consequently the personal and confidential information provided to Capital One was exposed or became vulnerable to exposure to the public. This appeal arose from the motion judge’s dismissal of the appellants’ motion to certify a class action against Capital One and Amazon Web for various torts related to data misappropriation and data misuse. The motion judge concluded that the appellants had advanced a case that was “doomed to fail”. Their pleadings were struck without leave to amend, and their certification motion was dismissed.

ISSUES:

1. Did the motion judge err in relying on unsworn documents?
2. Did the motion judge err in determining that the pleadings did not support any valid cause of action?
3. Did the motion judge err in striking out 78 paragraphs of the statement of claim without leave to amend?

HOLDING:

Appeal dismissed.

REASONING:

1. No.

There were four unsworn documents, which were pivotal in the motion judge’s analysis of the viability of some of the appellants’ substantive claims. The Court held that the documents filed by Capital One on the motion were either tendered or received as evidence. Nor did the Court accept the appellants’ related argument that the motion judge used the documents to transform a pleadings motion into a summary judgment motion.

It is well established that a statement of claim is deemed to include any document to which it refers, and which forms an integral part of the plaintiffs’ claim. As the appellants had pleaded that they had contracts and a credit application with Capital One (and that Capital One had breached the contracts and exceeded the terms of the application), these documents were incorporated by reference into the Fresh as Amended Statement of Claim. It was therefore permissible to consider those documents in determining whether the appellants had pleaded viable causes of action.

The appellants argued that some of the documents pertained only to cardholders, and that the vast majority of class members never became cardholders and have no contractual relationship with Capital One. These documents therefore have no application to the dispute between the respondents and the vast majority of non-cardholder class members who never had contractual relationships with Capital One. This argument was foreclosed by settled law. Whether a pleading discloses a reasonable cause of action is to be determined by reference to the claims of the named plaintiffs and not to potential members of a proposed class. The appellants pleaded that they were both Capital One cardholders. Accordingly, although the proposed class included those whose applications for Capital One credit cards were unsuccessful, the motion judge properly assessed the pleadings by reference to the appellants’ claims only.

The appellants also argued the documents were not incorporated by reference in the claim, because the documents were not “central enough to the claim to form an essential element or an integral part of the claim itself”. The Court rejected this argument. Whether the documents were integral to the claim was to be assessed objectively and not according to the plaintiffs’ intentions. “Integral to the claim” does not mean “integral to the plaintiffs’ dominant theory of liability”.

The appellants further argued they were prejudiced by the use of the documents, because they do not admit the authenticity of the documents. At the hearing of the motion, they objected to the documents’ production and advised that they were proceeding “under protest”. The Court held that since the appellants did not object in a timely fashion or seek an adjournment in order to locate and produce what they asserted to be the authentic contractual documents, the protest was groundless. The appellants argued that the motion judge erred in considering the documents in his determination of whether the causes of action pleaded were viable because the contracts between the appellants and Capital One were invalid and unenforceable. On a pleadings motion what is in the pleadings and what is not in the pleadings matters. This submission foundered on what was not pleaded: invalidity or unenforceability of the contracts.

The Court ultimately held that the documents were properly filed for the purposes of the s. 5(1)(a) hearing and the motion judge made no error in referencing them as though they were included in the pleadings.

2. No.

The motion judge held that none of the causes of action that the appellants pleaded were viable. On appeal, the appellants separated the causes of action pleaded into two groups: data misuse claims and data breach claims.

Data Misuse

The motion judge found it plain and obvious that there was no viable claim for intrusion upon seclusion against either Capital One or Amazon Web. The appellants now argued that their claim was not based in negligent custodianship, but concerned the improper retention and misuse of data, which included its improper aggregation and ultimate migration to a third-party platform. The Court held that the claim could not succeed. Whether the alleged misdeeds of Capital One and Amazon were characterized as mistakes in safeguarding information or improper retention and misuse of that information, neither characterization satisfied a key element of intrusion upon seclusion: that the conduct be of a highly offensive nature causing distress, humiliation, or anguish to a reasonable person.

The motion judge held that it was not appropriate to extend the tort of misappropriation of personality to the circumstances alleged. The Court held that the interests protected by the tort did not arise from the facts as pleaded. No party was alleged to have lost any commercial interests in the exploitation of their own personality because of the alleged data misuse. The motion judge was justified in not allowing the claim to proceed.

The motion judged held that it was “plain and obvious the claim for conversion is untenable and bound to fail.” He made no error in so holding. A claim for conversion “involves a wrongful interference with the goods of another, such as taking, using or destroying these goods in a manner inconsistent with the owner’s right of possession”. The Court held that this case did not implicate a gap in the common law that warranted a change to the tort of conversion.

The appellants argued that the motion judge erred in concluding that: (1) Capital One did not owe the appellants any trust or fiduciary duty, (2) most of the appellants’ hacked data was not confidential, and (3) there was no unauthorized use of that information. The Court held that the first two arguments could be summarily rejected. As the motion judge found, the facts pleaded did not establish a fiduciary relationship between Capital One and the putative class members. A financial institution acting as a lender does not ordinarily owe its borrowers a fiduciary duty. With regard to the breach of confidence claim, the motion judge’s rejection of this claim rested on the conclusion that the appellants did not properly plead the material facts needed to establish that information provided by the appellants was used by Capital One or Amazon Web for an unauthorized purpose. This was an essential element of the tort of breach of confidence and must be adequately pleaded.

Data Breach

The appellants advanced a claim against Capital One and Amazon Web for negligence and breach of a duty to warn. A claim of negligence requires that a claimant establish not only that the defendants owed a duty of care and that they breached the standard of care, but that the breach caused compensable damage. The motion judge struck the claim on the principal basis that the appellants had not succeeded in pleading a compensable loss. First, a claim in negligence for a future loss from the risk of future identity theft and fraud is not sustainable. The vast majority of class members would only have suffered a risk of future loss, and “[t]here is no right to be free from the prospect of damage; there is only a right not to suffer damage that results from exposure to unreasonable risk.” The motion judge made no error.

The Court agreed with the respondents’ submission that the appellants’ claim did not satisfy the factors the Supreme Court identified in 1688782 Ontario Inc. v. Maple Leaf Food Inc. at paras. 33-35, as determining sufficient proximity under this category: (1) whether the defendant undertook to provide a service to the plaintiff; and (2) whether the plaintiff reasonably relied on the defendant’s undertaking, altered its position, and forewent more beneficial courses of action as a result.

With respect to Capital One, the Court held that the appellants’ pleading did not identify any service Capital One was thought to have performed for the appellants that concerned the appellants’ data. At most, the pleading alleged that Capital One offered some of the Plaintiffs credit services. The pleading did not assert that Capital One performed its credit services negligently, nor did it identify any detrimental reliance as a result of those services. There was simply no basis in the pleadings to find proximity under this category.

Similarly, with respect to Amazon Web, the pleadings did not allege any service provided by Amazon Web to the appellants, who did not know of the existence of Amazon Web. The Court held that the motion judge made no error in refusing the analogy to products liability cases flowing from Donoghue v. Stevenson.

The Court held that it was sufficient to dispose of the negligence and duty to warn claims, and that it was not necessary to address the further arguments advanced by the appellants under these grounds of liability. The appellants pleaded breach of contract as part of the cluster of data misuse claims, and negligent breach of contract as part of the data breach claims. The breach of contract claim was struck by the motion judge and the appellants did not strenuously argue for that claim to be restored. The appellants also argued that the motion judge erred in dismissing their claims brought under various privacy and consumer protection statutes. However, the Court held that the motion judge made no error in dismissing these claims as doomed to fail.

3. No.

A motion judge’s decision to strike out a pleading under r. 25.11 without leave to amend is discretionary and should not be interfered with on appeal unless the motion judge erred in principle, misapprehended or failed to take account of material evidence, or reached an unreasonable conclusion. The motion judge found that the claim “egregiously contravene[d] the rules of pleading”. The reasons for decision were careful and comprehensive and explained the bases on which each of the 78 problematic paragraphs were found to have violated the rules of pleading and were struck. The appellants did not establish that the motion judge erred in this exercise of discretion.

The Court upheld the motion judge’s decision not to grant leave to amend.

Desrochers v McGinnis, 2024 ONCA 63

[Brown, George and Monahan JJ.A.]

Counsel:

S. Baldwin, for the appellant, P.M, and respondents by way of cross-appeal, G.M and C.M

Bonn and A. Rouben, for the respondents and appellants by way of cross-appeal, M.D, S.D and R.D

Keywords: Torts, Negligence, MVA, Duty of Care, Standard of Care, Contributory Negligence, Family Law Act, R.S.O. 1990, c. F.3, s. 61, Highway Traffic Act, R.S.O. 1990, c. H.8, Motor Vehicle Act, R.S.N.B. 1973, c. M-17, Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19, Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R. 1186, Hall v. Hebert, [1993] 2 S.C.R. 159, Gibson v. Haggith (1994), 156 A.R. 229 (Q.B.), J.G. (Dependent Adult) v. Strathcona (County of), 2004 ABQB 378, Garratt v. Orillia Power Distribution Corp., 2008 ONCA 422, Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19, Anns v. Merton London Borough Council, [1978] A.C. 728 (U.K.H.L.), Cooper v. Hobart, 2001 SCC 79, Ryan v. Victoria (City), [1999] 1 S.C.R. 201, Clements v. Clements, 2012 SCC 32, Sacks v. Ross, 2017 ONCA 773, Waldick v. Malcolm, (1991), 70 O.R. (2d) 717 (C.A.), Schuster v. Whitehead, [1960] O.R. 125 (C.A.), F.W. Argue Ltd. et al. v. Howe, [1969] S.C.R. 354, Thompson v. Bourchier, [1933] O.R. 525 (C.A.), Cummings v. Budget Car Rentals Toronto Ltd., (1996), Finlayson v. GMAC Leasco Limited, 2007 ONCA 557, Fernandes v. Araujo, 2015 ONCA 571, Dionne v. Desjardins, (1999), 214 N.B.R. (2d) 380 (C.A.), Bowe v. Bowe, 2022 BCCA 35, Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Housen v. Nikolaisen, 2002 SCC 33

Facts:

On July 29, 2014, M.D sustained a severe brain injury in an accident involving an all-terrain vehicle (ATV) owned by G.M, driven on Young Road, Prince Edward County. At the time, she was the girlfriend of P.M, G.M’s son. M.D, through her litigation guardian, sued P.M, G.M, and P.M’s mother, C.M, for damages. The trial concluded with P.M found liable, M.D’s contributory negligence assessed at 10%, but no breach of the standard care was found against G.M and C.M. The lawsuit included a claim against G.M under s. 192(2) of the Highway Traffic Act (HTA), which the trial judge dismissed. Both P.M and the M.D filed appeals against these findings.

Issues:

1) In the appeal by P.M, did the trial judge err in concluding that:

(i) P.M owed M.D a duty of care in respect of her operation of the ATV;

(ii) P.M breached the standard of care; and

(iii) P.M’s breach caused M.D’s injuries?

2) In the cross-appeal by the M.D, did the trial judge erred in failing to find that G.M and C.M breached the applicable standard of care?

3) In the cross-appeal by the M.D, did the trial judge err in failing to find G.M liable for the injuries M.D sustained pursuant to HTA s. 192(2)?

Holding:

Appeal dismissed, cross-appeal allowed in part.

Reasoning:

1) No.

(i) Duty of Care

P.M challenged the trial judge’s conclusion that he owed M.D a duty of care, arguing that the judge’s application of the Anns/Cooper test was erroneous. The trial judge found that M.D, though an adult without impairment, lacked ATV experience and was reliant on instruction and guidance from P.M and his mother, C.M. The trial judge applied a principle from Hall v. Hebert noting that a person who has the care and control of a motor vehicle should not permit another person that he or she knows or should know is unfit to drive to take over the control of the vehicle, particularly where the vehicle is high powered, the driving conditions are difficult, and the proposed driver is clearly impaired. Based on this, the trial judge concluded that P.M should not have allowed M.D to operate the ATV. Despite P.M’s argument that the judge’s reasoning was inconsistent, the Court found no error in the judge’s determination of a duty of care based on M.D’s limited ATV experience and the foreseeable risks.

(ii) Breach of the Standard of Care and Causation

The trial judge concluded P.M breached the standard of care in several ways: M.D had minimal ATV instruction, lacked experience with sharp turns, and was unfamiliar with driving the ATV on Young Road in semi-dark conditions. P.M failed to warn M.D about the road’s sharp turn and did not take preventive measures to ensure her safety. The Court found the trial judge’s conclusions on breach of standard of care and causation accurate, supported by evidence from a forensic engineer.

(iii) Apportionment of Liability

The trial judge assessed M.D’s contributory negligence at 10 percent. P.M contended that M.D was wholly at fault, but the Court rejected this, upholding the trial judge’s assessment. The Court stated that appellate interference in negligence findings is unwarranted without palpable and overriding errors in the trial judge’s analysis, which P.M failed to demonstrate.

2) No.

On her cross-appeal, the M.D challenged the trial judge’s dismissal of her action against P.M.’s parents, G.M. and C.M. The trial judge had concluded that neither G.M. nor C.M. breached the applicable standard of care. M.D contended that the trial judge failed to correctly apply his findings of fact to the standard of care and did not adequately consider the totality of the evidence. However, the Court found no error in the trial judge’s analysis and upheld the dismissal of the claims against G.M. and C.M. The Court’s conclusion was based on evidence showing G.M. and C.M. had not known P.M. would operate the ATV unsafely with M.D. They had also provided M.D. with some ATV operation instruction, and G.M. was not aware of M.D.’s plans to ride the ATV on the night of the accident. Furthermore, C.M. had observed M.D. driving the ATV without incident, only at low speeds, and not on public roads.

3) Yes.

In her cross-appeal, the M.D argued that G.M., as the owner of the ATV, should be liable for M.D.’s damages under s. 192(2) of the HTA. This provision stated that an owner is liable for any loss or damage caused by negligence in the operation of their vehicle on a highway, unless the vehicle was used without the owner’s consent. The core issue was whether G.M. held responsibility for P.M.’s negligent decision to allow M.D. to drive the ATV unsupervised, especially given her lack of skill and experience necessary to safely maneuver the ATV through a sharp curve on a public road.

The trial judge, referencing Schuster v Whitehead, interpreted “negligence in the operation of a motor vehicle” narrowly, focusing on the physical control and driving of the vehicle. However, the Court disagreed with this interpretation. The Court referenced broader interpretations from other cases, notably Fernandes v Araujo, which emphasized the legislative intent behind HTA s. 192(2) to protect the public by imposing responsibility on vehicle owners for careful management. This broader understanding included liability for negligent decisions about who was allowed to operate the vehicle, not just the physical act of driving. Therefore, the Court concluded that G.M. was liable under HTA s. 192(2) for P.M.’s negligence in permitting M.D. to operate the ATV in conditions she was not prepared for, leading to her accident and injuries.

SHORT CIVIL DECISIONS

James v. Gupta, 2024 ONCA 84

[Benotto, Roberts and Sossin JJ.A.]

Counsel:

R. Kestenberg, for the appellant

J. Esterbauer and N. Manwani, for the respondent, Fogler, Rubinoff LLP

Keywords: Civil Procedure, Dismissal for Delay, Rules of Civil Procedure, r. 24.01

Royal Bank of Canada v. S-Cosmetics Clinic Inc., 2024 ONCA 87

[Benotto, Roberts and Sossin JJ.A.]

Counsel:

I. Ryu, for the appellants

Marconi, for the respondent

Keywords: Contracts, Debtor-Creditor, Guarantees, General Security Agreements, Enforcement, Civil Procedure, Summary Judgment

Windrift Adventures Inc. v. Ontario (Animal Care Review Board), 2024 ONCA 89

[Benotto, Roberts and Sossin JJ.A.]

Counsel:

K. Gillespie, for the appellants/moving parties

Meuleman and J. Kirsh, for the respondent/responding party

Keywords: Civil Procedure, Appeals, Leave to Appeal, Stay Pending Appeal, RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 SCR 199, Sault Dock Co. Ltd. v. Sault Ste. Marie (City), [1973] 2 O.R. 479 (C.A.)

Martinez v. Ontario (Independent Police Review Office), 2024 ONCA 80

[Benotto, Roberts and Sossin JJ.A.]

Counsel:

A.M., acting in person

Shojaei and M. Saksznajder, for the responding party

Keywords: Civil Procedure, Vexatious Litigation, Appeals, Leave to Appeal, Extension of Time, Rules of Civil Procedure, r. 2.1, Robson v. Law Society of Ontario, 2023 ONCA 860, Scaduto v. Law Society of Upper Canada, 2015 ONCA 733

Stanley v. Lucchese, 2024 ONCA 68

[MacPherson, Miller and Paciocco JJ.A.]

Counsel:

1. Lipetz, for the appellant
2. W. Thomas and Claire Copland, for the respondent

Keywords: Contracts, Debtor-Creditor, Guarantees, Civil Procedure, Partial Summary Judgment, Malik v. Attia, 2020 ONCA 787

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