Good afternoon
Following are this week's summaries of the civil decisions of
the Court of Appeal for Ontario for the week of September 11,
2023.
In Musa v Carleton Condominiumn Corporation, an occupiers' liability slip and fall case, the Court dismissed the snow removal company's appeal from an order finding it liable in negligence. The evidence at trial included expert evidence and industry best practices for snow-plowing and salting.
In Pridmore v. Drenth, the plaintiff was injured while riding as a passenger on an ATV. The driver of the ATV was convicted of two HTA offences for having driven the ATV on a highway after consuming alcohol. The insurer denied third-party liability coverage to the driver's father, the owner of the ATV because he had given his son permission to drive on a road he mistakenly considered not to be a "highway", in breach of a statutory condition of the policy. . The motion judge had determined that the father was entitled to coverage or if not, was entitled to relief from forfeiture. The accident occurred on a different highway from the one the son had been granted permission to drive on, and therefore the inadvertent breach of the statutory condition did not "taint" the whole trip so as to justify a denial of coverage. The Court agreed and dismissed the appeal.
Wishing everyone an enjoyable weekend.
John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email
Ines Ferreira
Blaney McMurtry LLP
416.593.2953 Email
Table of Contents
Civil Decisions
Mohammad v. McMaster University , 2023 ONCA 598
Keywords: Civil Procedure, Appeals, Dismissal for Delay, Dismissal as Frivolous, Vexatious and Abuse of Process, Rules of Civil Procedure, Rule 2.1, Administration of Justice Act, R.S.O. 1990, c. A.6, s 4.10, Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720
Pridmore v Drenth , 2023 ONCA 606
Keywords: Contracts, Insurance, Automobiles, Coverage, Third-Party Liability, Breach of Statutory Conditions, Remedies, Relief from Forfeiture, Courts of Justice Act, R.S.O. 1990, s.98, Insurance Act, R.S.O. 1990, c. I.8. c. C.43 s.129, Miller v. Carluccio, 2008 ONCA 370, 91 O.R. (3d) 638, Becamon v. Wawanesa Mutual Insurance Company, 2007 CarswellOnt 9747 (S.C.), aff'd 2009 ONCA 113, Kozel v. The Personal Insurance Company, 2014 ONCA 130, Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490, Kerr v. Danier Leather Inc. (2005), 77 O.R. (3d) 321 (C.A.), H.L. v. Canada (Attorney General), 2005 SCC 25
Musa v Carleton Condominium Corporation No. 255 , 2023 ONCA 605
Keywords: Torts, Negligence, Occupiers' Liability, Slip and Fall, Standard of Care, Occupiers' Liability Act, R.S.O. 1990, c. O.2, Waldick v Malcolm, [1991] 2 SCR 456, Housen v Nikolaisen, 2002 SCC 33, Walters v Ontario, 2017 ONCA 53, Fordham v Dutton-Dunwich(Municipality), 2014 ONCA 891, Donoghue v Stevenson, [1932] AC 562 (HL), Mabe Canada Inc v United Floor Ltd, 2017 ONCA 879
Short Civil Decisions
Keywords: Family Law, Child Protection
Ghasempoor v. ICapital Financial Services Corp., 2023 ONCA 607
Keywords: Fresh Evidence, First Elgin Mills Developments Inc v Romandale Farms Limited, 2015 ONCA 54
1947755 Ontario Ltd. v Lamframboise,, 2023 ONCA 604
Keywords: Civil Procedure, Orders, Interlocutory Orders, Enforcement, Contempt, Jurisdiction, The Catalyst Capital Group Inc. v Moyse, 2015 ONCA 784, Simmonds v Simmonds, 2013 ONCA 479
CIVIL DECISIONS
Mohammad v. McMaster University, 2023 ONCA 598
[van Rensburg, Nordheimer and George JJ.A.]]
Counsel:
A. M., acting in person
J.R. Bernardo and A. Anandarajah, for the respondent/responding party, McMaster University
D.M. Paul, for the respondent/responding party, CUPE, Local 3906
K. Martini, for the respondents/responding parties, G. C. and M. U.
A. Hassan and A. Matic, for the respondent, Google LLC
Keywords: Civil Procedure, Appeals, Dismissal for Delay, Dismissal as Frivolous, Vexatious and Abuse of Process, Rules of Civil Procedure, Rule 2.1, Administration of Justice Act, R.S.O. 1990, c. A.6, s 4.10, Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720
facts:
The appellant, AM had three appeals before the Court from orders dismissing actions brought by him as vexatious pursuant to r. 2.1.01 of the Rules of Civil Procedure. Two of the appeals had been dismissed for delay by the registrar: (1) the appeal of the claim against McMaster University and CUPE, Local 3906 ("the McMaster appeal") and (2) the appeal of the claim against Dr. GC, Dr. MU and SM ("the GC appeal"). In both appeals, the motion judge declined to set aside the registrar's dismissal for delay. The appellant had filed a panel motion in each matter to review both motion judges' decisions. The third appeal related to a claim brought against Google LLC ("the Google appeal"). The appellant had not perfected the appeal by the extended deadline granted by the Court. The appeal was not dismissed by the registrar for the delay while the appellant attempted to file deficient materials and then additional motions for a further extension of time.
With regards to the McMaster Appeal, the motion judge declined to set aside the registrar's dismissal of the appeal for delay. The motion judge observed that the appellant pointed to no error in the r. 2.1 judge's application of the relevant principles, analysis or conclusion and that the appellant had "doggedly and unsuccessfully pursued the same grievances against each of the respondents for several years."
With regards to the GC appeal, the motion judge had declined to set aside the registrar's dismissal of the appeal for delay. The motion judge concluded that there appeared to be no merit to the appeal and the underlying claim appears to have all the hallmarks of a vexatious claim.
With regards to the Google appeal, the motion judge granted the appellant a short extension to perfect his appeal. However, the appellant failed to perfect by the deadline.
issues:
- Did the motion judges err in declining to set aside the registrar's dismissals for delay?
- Should the appellant be granted a fee waiver pursuant to s 4.10 of the Administration of Justice Act?
holding:
Appeal dismissed.
reasoning:
- No.
The Court noted that the application of r. 2.1 is "limited to the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading and there is a basis in the pleadings to support the resort to the attenuated process": Scaduto. The abusive nature of the proceedings were apparent on the face of each of the pleadings in the underlying court proceedings and in the documents the appellant filed and attempted to file with the Court. The Court held that resort to r. 2.1 was warranted.
The Court noted that the various notices of appeal, the related notices of motion and the appellant's r. 2.1 submissions bore hallmarks of proceedings that were frivolous, vexatious and an abuse of process: Lochner. A common feature of the appellant's different proceedings were that, even with a generous reading of the pleadings, there were no discernable or intelligible grounds of appeal, nor were there discernable or intelligible allegations in the statements of claim. Instead, what was set out in the notices of appeal and notices of motion for panel review were mostly spurious allegations against the judge who made the order.
The appellant's submissions in response to the notices given under r. 2.1 and s. 4.10 of the Administration of Justice Act were also disjointed and non-responsive. The bulk of the submissions were bald and alleged conspiracies between the various respondents and others. The submissions contained over 100 pages of irrelevant attachments and multiple video and audio clips.
The Court concluded that although the appellant believed he had been wronged by the respondents, fairness in the adversarial process required the respondents and the Court to have been able to glean discernable causes of action in statements of claim and grounds of appeal in notices of appeal. Further, the Court stated that it was not in the interests of justice to allow the proceedings to continue. Prolonging the frivolous proceedings would only serve to occupy scarce judicial resources and place an undue burden on the various respondents who would be forced to respond to the vexatious litigation.
- No.
For the same reasons, the Court revoked the appellant's fee waivers for the three proceedings and ordered that the appellant not make any further requests for a fee waiver under the Administration of Justice Act with respect to these or any related proceedings, without permission from a judge.
Pridmore v Drenth , 2023 ONCA 606
[Gillese, Benotto and Copeland JJ.A.]
Counsel:
J. Lin and K. Newton, for the appellant
A. Rachlin and S. Auld, for the respondent
Keywords:Contracts, Insurance, Automobiles, Coverage, Third-Party Liability, Breach of Statutory Conditions, Remedies, Relief from Forfeiture, Courts of Justice Act, R.S.O. 1990, s.98, Insurance Act, R.S.O. 1990, c. I.8. c. C.43 s.129, Miller v. Carluccio, 2008 ONCA 370, 91 O.R. (3d) 638, Becamon v. Wawanesa Mutual Insurance Company, 2007 CarswellOnt 9747 (S.C.), aff'd 2009 ONCA 113, Kozel v. The Personal Insurance Company, 2014 ONCA 130, Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490, Kerr v. Danier Leather Inc. (2005), 77 O.R. (3d) 321 (C.A.), H.L. v. Canada (Attorney General), 2005 SCC 25
facts:
In 2013, T.D. bought two ATVs. He intended to give the smaller of the two ATVs to his son, T., who was 25 years old at the time, and keep the other ATV for himself. He insured both ATVs with Novex under a standard Ontario automobile policy that includes third-party liability coverage of $1,000,000 (the "Policy"). T.D. knew that T., a G1 licensee, was prohibited from driving alone on an Ontario highway and that a licensed driver had to be seated next to him.
On March 29, 2014, the day of the incident, a friend asked T. to bring his ATV to a field and use its winch to pull out his ATV which was stuck in the mud. T.D.'s ATV was the larger and more powerful of the two ATVs, so T. asked his father if he could take that one. His father consented. On the way home, because of the weather, T. drove the ATV along the shoulder of Bird Road, a highway, with B.P. as his passenger. The ATV hit a culvert and B.P. was thrown from the ATV and suffered serious injuries resulting in complete paraplegia.
T. had a G1 driver's licence and was operating the ATV with the permission of his father, T.D. T. was convicted of two HTA offences for having driven the ATV on a highway after consuming alcohol. A G1 licensed driver is prohibited from driving a motor vehicle on a highway unless accompanied by a G licensed driver seated next to him. Moreover, a G1 licensed driver must have a blood alcohol concentration level of zero while driving on a highway.
Because T. violated the conditions of his G1 licence on the date in question, he was not entitled to third-party liability coverage from Novex.
Novex denied T.D. third-party liability coverage on the basis that he was in breach of Statutory Condition 4(1) ("SC 4(1)") of the insurance policy by permitting T. to operate the ATV on a highway when he did not have the requisite driver's licence. SC 4(1) provides as follows:
- The insured shall not drive or operate or permit any other person to drive or operate the automobile unless the insured or other person is authorized by law to drive or operate it.
The question on the motion was whether T.D. was entitled to that coverage. The central issue on the motion was whether T.D. was in breach of SC 4(1) in granting T. permission to use the ATV on the day in question.
The motion judge determined that T.D. was entitled to coverage. He concluded that, on the day in question, T.D.'s consent to T.'s use of the ATV was clear and specific. He found that T.D. permitted T.: to drive the ATV from their residence onto Central Lane (under the mistaken belief that Central Lane was not a "highway" under the HTA) to get to the open field; from there, T. was to drive, via trails, to his friend's stuck ATV; and, once the ATV was retrieved, T. was to drive home the way that he came.
The motion judge concluded that T.D.'s breach of SC 4(1) did not "taint" the entire trip because the breach of a statutory condition must be determined at the specific time of the incident and the incident occurred on a highway on which T. had not been given permission to drive (Bird Road).
issues:
- Did the motion judge make a palpable and overriding error in finding that T.D. did not give T. permission to drive on the shoulders of roads?
- Did the motion judge err in finding that T.D. was entitled to third-party coverage despite having breached SC 4(1) and section 1.4.5 of the standard Ontario automobile policy (the "OAP 1")
- Did the motion judge err by, alternatively, granting T.D. relief from forfeiture?
holding:
Appeal dismissed.
reasoning:
Issue 1. and 2. No
Issue 1 and Issue 2 were so closely intertwined that they were considered together.
On Issue 1, Novex submitted that the motion judge disregarded, misapprehended, and failed to appreciate relevant evidence. On Issue 2, Novex submitted that T.D. was not entitled to coverage because he breached SC 4(1) by permitting T., an under-licensed driver, to drive his ATV on the shoulders of highways on the date of the loss.
The Court did not accept either submission. Novex conceded that the motion judge applied the correct legal principles in determining whether T.D. was in breach of SC 4(1) at the time of the incident. The Court held that the motion judge's findings were not "clearly wrong", nor were they "unsupported by the evidence": Kerr v. Danier Leather Inc., citing H.L. v. Canada (Attorney General). Consequently, there was no basis for appellate intervention with the motion judge's determination that T.D. was entitled to the third-party liability coverage.
The motion judge correctly approached the issue of the terms of the permission that T.D. gave T. for use of the ATV on the day in question. He divided his analysis into two parts. First, he set out the law for interpreting "permit," in the context of SC 4(1), in accordance with the decision in Miller. Permission connotes "knowledge, wilful blindness, or at least a failure to take reasonable steps to inform one's self of the relevant facts": Miller, at para. 6. Based on that, the motion judge found that T.D. was in breach of SC 4(1) when he permitted T. to drive the ATV on Central Lane, because Central Lane is a highway and T.'s G1 licence barred him from driving on a highway without a licensed driver seated next to him.
The motion judge then proceeded to the second part of his analysis. The fact that T.D. was in breach of SC 4(1) when he permitted T. to drive on Central Lane, to access the fields and to return home, did not automatically disentitle T.D. from coverage under the Policy. The motion judge stated that to determine whether T.D. was entitled to coverage, the breach of SC 4(1) had to taint the trip, including at the time the incident took place. Based on Becamon, because T.D. did not know nor ought to have known that T. would drive the ATV on a highway other than Central Lane, the motion judge concluded that T.D. was not in breach of SC 4(1) at the time of the incident.
The motion judge made factual findings as required by the applicable legal principles. The motion judge's reasons for concluding that T.D. was not in breach of SC 4(1) at the time of the incident included the following. The ATVs were under lock and key in the shed. Only T.D. had the key. Whenever T. wanted to use an ATV, he had to have his father's permission. T.D. knew that T. could not drive unaccompanied on a highway because he had only a G1 licence. While T.D. had permitted T. to drive on Central Lane, that was based on his mistaken belief that Central Lane was not a highway.
The motion judge's reasons were adequate to explain why he rejected Novex's arguments and, instead, found that, on the day in question, T.D. gave T. clear and specific permission to: drive the ATV to the fields by means of Central Lane; assist his friend in extricating his ATV that was stuck in the mud; and, then return home following the same path.
- No
Novex's submission on this issue was based on the same argument made on the first two issues, namely that the motion judge erred in his factual findings. However, there was no basis for appellant interference with the motion judge's exercise of discretion in granting relief against forfeiture.
Musa v Carleton Condominium Corporation No. 255 , 2023 ONCA
605
[Roberts, Miller and Coroza JJ.A.]
Counsel:
D. Zarek and M. Owen, for the appellants
B. Hollingsworth and G. Mactaggart, for the respondent
Keywords:Torts, Negligence, Occupiers' Liability, Slip and Fall, Standard of Care, Occupiers' Liability Act, R.S.O. 1990, c. O.2, Waldick v Malcolm, [1991] 2 SCR 456, Housen v Nikolaisen, 2002 SCC 33, Walters v Ontario, 2017 ONCA 53, Fordham v Dutton-Dunwich(Municipality), 2014 ONCA 891, Donoghue v Stevenson, [1932] AC 562 (HL), Mabe Canada Inc v United Floor Ltd, 2017 ONCA 879
facts:
During a snowstorm in Ottawa on December 5, 2016, the respondent slipped and fractured his ankle on a slippery roadway outside his condominium owned by Carleton Condominium Corporation No. 255 ("Carleton"). The roadway was plowed but not salted by Exact Post Ottawa Inc. ("Exact Post"), the snow removal contractor for the condominium. The respondent sued Carleton and Exact Post. The trial focused on whether the timing of Exact Post's application of road salt was consistent with the reasonableness standard of care required of a commercial snow removal contractor. The trial judge concluded that the delay in applying road salt was due to an inherent problem in Exact Post's system, finding Exact Post negligent in its failure to apply road salt in an appropriate and timely manner. The trial judge found that given the weather conditions, Exact Post was reasonably required to apply road salt promptly; however, it failed to do so. Exact Post sought to challenge the trial judge's determinations on the standard of care and causation.
issues:
- Did the trial judge misapply the reasonableness standard of care by finding that the appellant should have arrived at the premises at 6 a.m.?
- Did the trial judge misapprehend the evidence that suggested that the appropriate standard of care was to apply salt after plowing the entire condominium property?
- Did the trial judge fail to look at the spectrum of characteristics set out in Waldick v Malcolm in his standard of care analysis?
holding:
Appeal dismissed.
reasoning:
- No.
As per Housen v Nikolaisen, questions of law are reviewable on a standard of correctness. In the negligence context, the determination of the duty of care is a question of law, and the application of the standard of care and the determination of the issue of causation are questions of mixed fact and law: Walters v. Ontario. The appellant's contract with the condominium stated that it "shall attempt to confine its work to the hours between 6 a.m. and 11 p.m." The appellant argued that the trial judge held it to a standard of perfection by requiring it to attend the premises at 6:00 a.m. This situation would be "commercially impossible" and require constant surveillance or an instant response. The Court saw no merit in this submission and found that the trial judge properly identified and applied the correct reasonableness standard of care. The Court concluded that the trial judge did not misapply the appropriate standard of care. The trial judge focused on the lag between the clearing of snow and the subsequent application of the road salt. It was open to him to find that this was neither timely nor appropriate.
- No.
The appellant claimed that the evidence supported its argument that a contractor must finish plowing the entire property before applying salt. The expert witness provided evidence that the road salt must be spread concurrently with or immediately after plowing to prevent ice/pavement bond. Having opted not to pre-salt, the appellant then failed to salt the area concurrently with or immediately after plowing. At the time of the accident, ice formation was foreseeable. The trial judge identified that the appellant's breach stemmed from its problematic system of relying on one individual for salt application at multiple properties. The trial judge found the industry best practices guidelines to be relevant, supporting the expert's opinion on the proper application of road salt. The duty to take reasonable care existed independently of any contractual obligation. The Court was not satisfied that the trial judge committed any palpable and overriding error in his determination and application of the standard of care.
- No.
Although the trial judge did not explicitly cite the Supreme Court's decision in Waldick, the thrust of his analysis was consistent with the contextual analysis that the SCC espoused. In Waldick, a slip and fall case, the court articulated several factors to consider in assessing reasonable care. The Court found that these factors informed the trial judge's decision in this case. The trial judge identified that: the incident took place amidst a snowstorm that set in at 4 a.m. at a residential condominium property; the temperature was just below freezing; and ice formation was readily foreseeable. He considered in some detail the preventative measure of pre-salting the property, and he expressly made a finding on the type and quality of footwear of the respondent's winter boots. Further, the trial judge considered and accepted the expert evidence and industry best practices guidelines in determining the appropriate standard of care. The Court concluded that the trial judge's analysis was entirely in keeping with Waldick.
SHORT CIVIL DECISIONS
[Gillese, Benotto and Copeland JJ.A]
Counsel:
W.A.C., acting in person
C.V.F., acting in person
Keywords: Family Law, Child Protection
Ghasempoor v ICapital Financial Services Corp., 2023 ONCA 607
[Pardu, Roberts and Miller JJ.A.]
Counsel:
A.G, acting in person and for Atciti Corp.
P. Smiley, for the responding party, iCapital Financial Services Corp.
Keywords:Fresh Evidence, First Elgin Mills Developments Inc v Romandale Farms Limited, 2015 ONCA 54
1947755 Ontario Ltd. v Laframboise , 2023 ONCA 604
[Feldman, Paciocco and Sossin JJ.A.]
Counsel:
Doug Laframboise, for the appellants
No one appearing for the respondent
Keywords: Civil Procedure, Orders, Interlocutory Orders, Enforcement, Contempt, Jurisdiction, The Catalyst Capital Group Inc. v Moyse, 2015 ONCA 784, Simmonds v Simmonds, 2013 ONCA 479
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