Court Of Appeal Summaries (August 7 – 11, 2023) - Civil Law

Good afternoon.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of August 7, 2023.

In Case v. Pattison, the plaintiff was injured walking across a road when struck by the defendant's car. The plaintiffs and the defendants claimed damages against the Town of Milton alleging inadequate street lighting because of a missing luminaire. The Town commenced a third-party claim against Milton Hydro for contribution and indemnity, alleging that Milton Hydro negligently removed the luminaire. The motion judge held that because of the passage of time and intervening acts, the Town could not demonstrate that the plaintiff's accident was reasonably foreseeable at the time the luminaire was removed. She also held that there was no proximity to establish a duty of care by Milton Hydro to the plaintiff and therefore no basis upon which to find liability. The Court found that the motion judge had erred in conflating the duty of care analysis with the legal causation analysis and incorrectly focused on causation and the intervening acts. The Court noted that the motion judge failed to properly assess whether Milton Hydro owed a duty of care to the plaintiff. The Court set aside the motion judge's judgment and held that the requisite duty of care analysis must be undertaken anew and remitted the matter for trial.

In Brewers Retail Inc. v. Campbell, the Court determined that the Financial Services Tribunal did not have exclusive jurisdiction over a dispute related to amendments to the pension plan of the employees of Brewers Retail. The motion judge was correct in dismissing the FST's stay motion and certifying the class proceeding to enforce a settlement relating to the amendments.

In Shwaluk v HSBC Bank of Canada, the appellant appealed a motion judge's dismissal of her motion for leave to amend her statement of claim. The motion judge had found that one of the appellant's proposed amendments was a withdrawal of an admission and that the additional relief requested was a new cause of action which was statute-barred. The Court found that the motion judge failed to apply the correct legal test and, as a result, erred in concluding that the appellant sought to withdraw an admission. The Court also found that the relief requested was not a new claim, since it merely sought alternative relief arising from the same facts alleged and therefore was not statute-barred. The Court permitted the appellant to amend her pleading.

Other topics this week included a costs endorsement where the Court found that elevated costs were justified where a party did not disclose material facts to the parties and the Court, and an appeal from a trial judge's determination of equalization of net family property and spousal support, among others.

Wishing everyone an enjoyable weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Ines Ferreira
Blaney McMurtry LLP
416.593.2953 Email

Civil Decisions

Case v. Pattison, 2023 ONCA 529

Keywords: Torts, Negligence, MVA, Duty of Care, Proximity, Reasonable Foreseeability, Causation, Foreseeability, Remoteness, Intervening Acts, Liability of Public Authorities, Municipalities, Civil Procedure, Third Party Claims, Contribution and Indemnity, Summary Judgment, Municipal Act, 2001, S.O. 2001, c. 25, [Minimum Maintenance Standards for Municipal Highways, O. Reg. 239/02, s. 10(1),Cooper v. Hobart, 2001 SCC 79; Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, Hill v Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, Rankin (Rankin's Garage & Sales) v. J.J., 2018 SCC 19, Nelson (City) v. Marchi, 2021 SCC 4, Frazer v. Haukioja, 2010 ONCA 249, Clements v. Clements, 2012 SCC 32, Saadati v. Moorhead, 2017 SCC 28, Phillip v. Bablitz, 2011 ABCA 383, Price v. Milawski (1977), 18 O.R. (2d) 113 (C.A.), Athey v. Leonati, [1996] 3 S.C.R. 458, Ostash v. Sonnenberg (1968), 67 D.L.R. (2d) 311 (Alta. C.A.), Dominion Chain Co. Ltd. v. Eastern Construction Co. (1976), 12 O.R. (2d) 201 (C.A.), Ives v. Clare Bros. Ltd. et al., [1971] 1 O.R. 417 (H.C.), Dobson (Litigation Guardian of) v. Dobson, [1999] 2 S.C.R. 753, Allan M. Linden et al., Canadian Tort Law, 12th ed. (Toronto: LexisNexis Canada Inc., 2022)

Shwaluk v. HSBC Bank of Canada, 2023 ONCA 538

Keywords: Contracts, Insurance, Long-Term Disability Benefits, Civil Procedure, Amending Pleadings, Admissions, Withdrawal, Limitation Periods, Insurance Act, R.S.O. 1990, c. I.8, Courts of Justice Act, R.S.O. 1990, c. C.43, s. 98, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, Rules of Civil Procedure, rr. 51.05, 25.07(1) and 25.09(1), Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, Housen v. Nikolaisen, 2002 SCC 33, Dupuis v. Edmonton Cellular Sales Ltd., 2006 ABCA 283, 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co., 2017 ONCA 42, Szelazek Investments Ltd. v. Orzech (1996), 44 C.P.C. (3d) 102 (Ont. C.A.), Kostruba and Sons v. Pervez, 2011 ONSC 4894, Andersen Consulting Ltd. v. Canada (Attorney General) (2001), 13 C.P.C. (5th) 251 (Ont. C.A.), Falk Bros. Industries Ltd. v. Elance Steel Fabricating Co., [1989] 2 S.C.R. 778, Kozel v. Personal Insurance Co., 2014 ONCA 130, Smith v. Sun Life Assurance Company of Canada, 2021 ONSC 7109, Klassen v. Beausoleil, 2019 ONCA 407, MacIvor v. Pitney Bowes Inc., 2018 ONCA 381

Friendly v. 1671379 Ontario Inc., 2023 ONCA 535

Keywords: Contracts, Debtor-Creditor, Security, Civil Procedure, Judgments, Enforcement, Priorities, Civil Procedure, Costs, Substantial Indemnity, Non-disclosure

Brewers Retail Inc. v. Campbell, 2023 ONCA 534

Keywords: Administrative Law, Pensions, Civil Procedure, Jurisdiction, Class Proceedings, Certification, Pension Benefits Act, R.S.O. 1990, c. P.8, Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 8, Financial Services Tribunal Act, 2017, S.O. 2017, c. 34, Sched.17, Labour Relations Act, R.S.O. 1990, c. L.2, Financial Services Commission of Ontario Act, 1997, S.O. 1999, c. 28, s. 106, Courts of Justice Act, R.S.O. 1990, c. C.43, Brewers Retail Inc. v. Ontario (CEO of FSRA), 2021 ONFST 15, Anova Inc. Employee Retirement Pension Plan (Administrator of) v. Manufacturers Life Insurance Co. (1994), 121 D.L.R. (4th) 162 (Ont. Gen. Div.)., Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, Lomas v. Rio Algom Ltd., 2010 ONCA 175, Re Dickson et al. and Richardson (1981), 32 O.R. (2d) 158 (C.A.), Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, Buschau v. Rogers Communications Inc., 2006 SCC 28, Montreal Trust Company of Canada v. Ontario (Superintendent of Financial Services), 2009 ONFST 1, Kidd v. Canada Life, 2011 ONSC 6324, 22 C.P.C. (7th) 156, Toronto District School Board v. Field, 2010 ONSC 3865, Hodge v. Neinstein, 2017 ONCA 494, Pearson v. Inco Ltd. (2006), 78 O.R. (3d) 641 (C.A.), R. v. Zolotow, 2008 ONCA 163

Short Civil Decisions

The Catalyst Capital Group Inc. v. West Face Capital Inc., 2023 ONCA 533

Keywords: Civil Procedure, Appeals, Costs, Full Indemnity, Partial Indemnity, 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 853

Numair v. Numair, 2023 ONCA 530

Keywords: Family Law, Divorce, Equalization of Net Family Property, Child Support, Spousal Support

CIVIL DECISIONS

Case v. Pattison, 2023 ONCA 529

[Roberts, Miller and Coroza JJ.A.]

COUNSEL:

C. M.K. Loopstra, K.C. and P. E.F. Martin, for the appellant

A. Mark and K. Cohen, for the respondent

FACTS:

The plaintiff was catastrophically injured as he walked across the road and was struck by the car driven by the defendant. The plaintiffs and the defendants claimed damages against the Town of Milton ("The Town") alleging inadequate street lighting because of a missing luminaire. The Town commenced a third-party claim against Milton Hydro for contribution and indemnity, alleging that Milton Hydro negligently removed the luminaire. Milton Hydro defended and denied removing the luminaire.

The motion judge found that "with the passage of more than four years and with the intervening annual inspections, the Town cannot demonstrate the alleged pedestrian accident was reasonably foreseeable at the time the luminaire was removed." She also held that "[t]here is no proximity to establish a duty of care by Milton Hydro to the plaintiff and therefore no basis upon which to find liability for contribution and indemnity" based on the "several opportunities" by the Town of Milton to "discover the missing luminaire and remediate the issue.".

Based on this finding, the motion judge concluded that the Town's "failure to do so broke any proximity between Milton Hydro and the damages allegedly suffered by the plaintiff." She held that the "failure of the Town's annual inspections to note the luminaire was missing or that the roadway in that location was darker than usual is an intervening act that most certainly broke any chain of causation that may have existed to establish any liability on Milton Hydro." The motion judge allowed Milton Hydro's motion for summary judgment and dismissed the third-party claim against it.

ISSUES:

Did the motion judge err when dismissing the third-party claim?

HOLDING:

Appeal allowed.

REASONING:

Yes.

The Court found that the motion judge did not carry out the requisite legal analysis. The Court noted that a successful claim for negligence requires proof of a duty of care, breach of the standard of care, compensable damage, and causation. The motion judge erred in conflating the duty of care analysis with the legal causation analysis. Rather, she focused on causation and the "break" in the chain of responsibility for the removal of the luminaire and its effect on the street lighting. The Court noted that this was an appropriate consideration but should have been considered after she had properly assessed whether Milton Hydro owed a duty of care to the plaintiff pedestrian.

The Court noted that in finding that no prima facie duty was owed by Milton Hydro to the plaintiff pedestrian, the motion judge did not ask whether the alleged duty was a novel duty, nor did she properly consider the questions of reasonable foreseeability and proximity. Rather, she appeared to consider the questions of foreseeability and proximity in the duty of care analysis from the causation perspective of foreseeability and remoteness. The Court noted that the motion judge's duty of care analysis should have been focused on whether someone in Milton Hydro's position ought reasonably to have foreseen at the time of the assumed removal of the luminaire the type of harm it caused, rather than on whether the assumed removal of the luminaire caused, in fact, and in law, the harm in issue.

The Court noted that the motion judge did not consider or determine whether Milton Hydro's assumed action of removing the luminaire was negligent, independent of any duty of care owed by the Town to the plaintiff pedestrian. Rather, the motion judge assumed that the Town's actions were the sole cause of any harm alleged by the plaintiff pedestrian simply because it was responsible for inspections over the intervening four-year period. The Court noted that the motion judge conflated the causation analysis, which includes the assessment of intervening actions that may break the chain of causation, alleviating liability from one party, with the duty of care analysis, in which multiple independent parties may owe a duty of care to a plaintiff. The Court found that it was an error to assume the Town's alleged statutory duties necessarily meant that Milton Hydro could not also owe a common law duty of care arising from its assumed action.

Additionally, the Court held that the motion judge was required but failed to consider or explain why Milton Hydro's alleged removal of the luminaire would not be an ongoing contributing cause to the allegedly inadequate lighting that the plaintiff pedestrian argued contributed to the accident. Rather than considering whether the alleged negligence of Milton Hydro could co-exist with the allegedly negligent inspections by the Town, the motion judge simply assumed that the Town's alleged negligence necessarily extinguished Milton Hydro's alleged original negligence. The Court concluded that this was incorrect and insufficient reasoning.

The Court noted that a subsequent failure to inspect does not automatically and necessarily remove liability from the original negligent actor and that even if the Town were negligent in failing to inspect the street lighting, the Town's alleged negligence would not automatically or necessarily negate the reasonable foreseeability of harm arising from Milton Hydro's removal of the luminaire. In the Court's view, the motion judge approached these issues through a binary lens – either the Town or Milton Hydro was responsible but not both. The Court held that the motion judge should have considered whether both could be responsible for the harm caused.

The Court noted that the main reason the motion judge provided for finding that the Town's failure to inspect removed liability from Milton Hydro was that the injury occurred over four years after the removal of the luminaire. The passage of time by itself does not necessarily determine foreseeability or proximity under the duty of care analysis or the causation and intervening act analysis. The time for determining foreseeability is at the time of the allegedly tortious act.

The Court held that the correct question under the duty of care analysis and the intervening act analysis was whether the traffic injury to the plaintiff pedestrian, allegedly caused by poor lighting, was a reasonably foreseeable consequence of the removal of the luminaire at the time it was removed – regardless of when the traffic injury occurred in relation to the removal of the luminaire. The motion judge erred in failing to answer this question.

The Court set aside the motion judge's judgment and held that the requisite analysis must be undertaken anew. The Court remitted the matter for trial.

Shwaluk v. HSBC Bank of Canada, 2023 ONCA 538

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

COUNSEL:

E.O. Gionet and S. A. Lucenti, for the appellant

H.D.K. Friedman and M. Prosia, for the respondent

FACTS:

The appellant commenced an action against her employer, HSBC Bank of Canada ("HSBC") and the respondent, Sun Life Assurance Company of Canada ("Sun Life"). She alleged that in March 2015 she became unable to perform her employment duties due to disabilities that stemmed from injuries sustained in a motor vehicle accident. She claimed payment of Short-Term Disability ("STD") and Long-Term Disability ("LTD") benefits. Sun Life denied liability for STD benefits as those were solely the responsibility of HSBC, although they were "administered and adjudicated" by Sun Life. It admitted that it issued a group policy that provided for LTD benefits but denied that the appellant was disabled to the extent required for payment of LTD benefits.

The appellant brought a motion for leave to amend her claim against Sun Life for payment of LTD benefits and damages for the failure to pay them. The motion judge denied leave on the basis that 1) the proposed amendments sought to withdraw an admission that the appellant made in her reply that she had not filed an application for LTD benefits within the time the policy required; and 2) the proposed amendments sought to add a request for relief from forfeiture that was statute-barred.

ISSUES:

Did the motion judge err in concluding the amendments sought to withdraw an admission?
Did the motion judge err in concluding the request for relief from forfeiture was statute-barred?

HOLDING:

Appeal allowed.

REASONING:

Did the motion judge err in concluding the amendments sought to withdraw an admission?

The Court found that the motion judge failed to use the correct legal test and, as a result, erred in concluding that the appellant sought to withdraw an admission.

To determine whether an amendment withdraws an admission, two matters need to be considered: (i) the nature and extent of the admission in the original pleading; and (ii) the difference between the original pleading and the proposed amended pleading concerning what was admitted. The Court noted that admissions can pertain to alleged facts or to legal conclusions or consequences alleged to follow from the alleged facts, or to both. A court must consider whether the admission does one, or both, of the following: makes a "deliberate concession to a position taken by" the other party; or, accepts that "a set of facts posed by" the other party is correct.

The Court found that the appellant's proposed amendment did not alter the paradigm in the original pleadings. The amended allegation continued to accept the fact that no application was submitted, and likewise continued to contest Sun Life's position that a fatal consequence flowed from it. The amended pleadings continued the factual admission that the appellant made no application for LTD benefits.

The motion judge's error led her to apply the wrong legal test for whether to grant leave to amend. Amendments to pleadings are generally governed by r. 26.01. Under this rule, the court must permit an amendment, regardless of the stage of the action at which it is sought, unless the party opposing the amendment can demonstrate actual prejudice that is non-compensable, or unless the delay in seeking it was so long, and the justification so inadequate, that prejudice is presumed.

The test for withdrawal of an admission varies in two significant ways from the test applicable to other types of amendments. First, where no withdrawal of an admission is involved, the moving party is not required to show that the prior version of the pleading is the result of inadvertence or incorrect instructions. Second, the onus regarding prejudice is different. Where an admission is withdrawn "the onus is on the moving party to show that the opposite party will not be prejudiced, rather than the reverse as is the case under rule 26.01."

The Court found that by applying the test for withdrawal rather than the test to amend, the motion judge came to the wrong conclusion.

The Court further disagreed with the motion judge's finding that the appellant failed to show that Sun Life would not suffer non-compensable prejudice from the amendments. The only finding pertaining to prejudice was that "Sun Life has conducted its litigation strategy on the basis of the admission" and permitting the withdrawal of the admission would therefore prejudice it. However, in the Court's view, since there was no withdrawal of an admission, this ground of prejudice could not stand.

The Court concluded that the amendments should have been permitted.

Did the motion judge err in concluding the request for relief from forfeiture was statute-barred?

The Court stated that an amendment is not an assertion of a new claim if it merely pleads an alternative claim for relief arising from the same facts already alleged, different legal conclusions drawn from the same facts, particulars of an allegation already pleaded, or additional facts upon which the original right of action is based. In making the assessment of whether a new claim is advanced, the original pleading is to be read generously, with some allowance for drafting deficiencies. The motion judge tied her finding that the appellant's request for relief from forfeiture was a new statute-barred claim directly to her view that an admission had been withdrawn.

The Court noted that it was not necessary to decide whether relief from forfeiture can ever be considered a "claim" within the meaning of the Limitations Act, 2002. Even if a request for relief from forfeiture is a "claim", it was not a new claim within the meaning of Klassen. The motion judge's view to the contrary was tainted by her incorrect finding that an admission was being withdrawn in favour of new facts and positions not previously advanced. On this basis, the Court concluded that the request for relief from forfeiture in the amended pleadings was not a new claim, and therefore not statute-barred. Sun Life will not suffer non-compensable prejudice from the amendments. Accordingly, leave to amend should have been granted.

Friendly v. 1671379 Ontario Inc., 2023 ONCA 535

[Brown, Sossin and Copeland JJ.A.]

COUNSEL:

E. Birnboim and M. Crampton, for the appellant

S. Robinson, for the respondent MCAP Financial Corporation

J.C. for the respondent C. Law Professional Corporation

Varoujan Arman, for the respondent Dorr Capital Corporation

D. Seed, for the respondent 1671379 Ontario Inc.

Keywords: Contracts, Debtor-Creditor, Security, Civil Procedure, Judgments, Enforcement, Priorities, Civil Procedure, Costs, Substantial Indemnity, Non-disclosure

FACTS:

The respondents MCAP Financial Corporation ("MCAP"), Dorr Capital Corporation c.o.b. Dorr and Associates ("Dorr"), Cherniak Law Professional Corporation ("Cherniak"), and Manuel Elkind and 1671379 Ontario Inc. ("the 167 respondents") sought costs of the appeal on a substantial indemnity basis, or in the alternative, on a partial indemnity basis.

The appellant, Assignment Credit Corp., acknowledged that MCAP had been successful on appeal on the issue of priority for its Shortfall Judgment under its general security agreement ("GSA"). On that basis, the appellant accepted that MCAP was entitled to a portion of its costs on a partial indemnity basis, but argued that the quantum should be a portion of the amount MCAP agreed on at the end of the oral hearing of the appeal. With respect to Dorr and Cherniak, the appellant argued that they should be held to agreements on costs reached at the end of the oral hearing of the appeal. The appellant argued that the 167 respondents should not be entitled to any costs of the appeal.

ISSUES:

Are the respondents entitled to the costs of the appeal?
If so, what are the appropriate scale and quantum of the costs?

HOLDING:

Costs of the appeal ordered as follows:

$30,000 to MCAP;
$11,565.55 to Dorr; and
$9,500 to Cherniak.

REASONING:

Entitlement to Costs of the Appeal

The Court rejected the appellant's position that MCAP, Dorr, and Cherniak should be held to the agreements on costs reached at the end of the appeal hearing. Those agreements were reached before the appellant's non-disclosure of the fact that the Mesbur Judgment was obtained on consent was revealed.

The Court considered entitlement to costs in light of the two issues on appeal. The first issue was MCAP's priority for its Shortfall Judgment over all of the claims based on its GSA. MCAP was entirely successful on this issue. In the Court's view, MCAP was entitled to costs of the appeal from the appellant as it related to this ground. This factor had no impact on costs entitlement for the other respondents.

The second issue was the appellant's claim to priority based on the security created by the Mesbur Judgment, which was subsequently assigned to the appellant. The Court rejected the appellant's claim that it was entitled to costs as it related to the issue. The appeal was allowed because of the non-disclosure before the motions judge and before the Court until the Court had requested further documentation. The Court held that MCAP (as it related to its Costs Judgment), Dorr, and Cherniak were entitled to their costs as it related to the second issue as it could not be decided on the merits by the Court because of the appellant's non-disclosure. The non-disclosure also had an impact on the appropriate scale of costs and quantum.

Scale and Quantum

MCAP, Dorr, and Cherniak sought costs on a solicitor-client basis based on the appellant's non-disclosure of the fact that the Mesbur Judgment was obtained on consent. They argued that the fact that the Mesbur Judgment was obtained on consent was relevant to the assessment of priorities of the unsecured claims. The failure to disclose this relevant fact, which was known to the appellant and its counsel, warranted a costs award on an elevated scale, both as a deterrent and due to the wasted time and effort it caused.

The appellant argued that an elevated costs award was not justified on the basis that the endorsement of Mesbur J. had been included in a motion record filed in 2015 before a different judge than the motion judge, in a different (but related) proceeding, to which MCAP and Dorr were parties.

The Court rejected this argument, noting that simply because the documents were disclosed eight years prior in a different (but related) proceeding did not excuse the appellant's failure to disclose the fact that the Mesbur Judgment was obtained on consent to the motion judge and to the Court. Further, the respondent Cherniak was not a party to the other proceeding, and the respondent MCAP had different counsel at the time of the other proceeding.

The Court concluded that the costs of the appeal on a solicitor-client basis were justified by the conduct of the appellant in failing to disclose that the Mesbur Judgment was obtained on consent, both before the motion judge and the Court. The failure to disclose a fact relevant to the issue of priorities, known to the appellant and its counsel, was sufficient, standing alone, to warrant an elevated costs award. Further, the non-disclosure created the need for additional submissions to the Court after the oral hearing was completed, which also increased costs.

Brewers Retail Inc. v. Campbell, 2023 ONCA 534

[Feldman, Gillese and Huscroft JJ.A.]

COUNSEL:

C. Smith and P. Underwood, for the appellant

D. M. Peebles, R. Bauslaugh, and L. Ostler, for the respondent Brewers Retail Inc.

A. Kaplan, D. Rosenfeld, and C. Leach, for the respondents W.C., G.H., D.H., T.K., and D.R.

FACTS:

Brewers Retail established a defined benefit pension plan for salaried employees in 1945 (the "Plan"). Brewers is the employer and Plan administrator. Brewers amended and filed Plan amendments. A group of affected Plan members formed the Pension Stewardship Steering Committee (the "Committee") to dispute the 2013 amendment and made submissions to the Financial Services Commission of Ontario ("FSCO", and later replaced by the Financial Services Regulatory Authority of Ontario ("FSRA")) regarding whether the indexing provided by the Plan constituted a "pension benefit" under the Pension Benefits Act (the "PBA").

In March 2021, with the Committee's concurrence, Brewers began a class proceeding and moved for certification of the class in preparation for court approval of a Settlement Agreement. Brewers tried to address FSRA's concerns about its administration of the Plan's indexing provisions by filing retroactive Plan amendments going back to 1974. FSRA issued a Notice of Intended Decision ("NOID") advising that it was refusing to register Plan Amendment No. 9, the 2013 amendment, and another amendment proposed in 2015. In December 2020, Brewers requested a hearing by the Financial Services Tribunal (the "FST") to challenge the NOID.

Brewers and the Committee then brought a joint motion to the FST, seeking an adjournment of the FST hearing so the certification motion could continue. FST adjourned its hearing to permit the Superior Court to decide the issue of jurisdiction. FSRA had sought to have the proceeding stayed, claiming that the FST had exclusive jurisdiction over the matter. The motion judge rejected that claim. The court dismissed the stay motion and ordered certification (the "Orders"). The motion judge granted FSRA leave to intervene, dismissed its stay motion, and granted certification for settlement purposes. FSRA appealed the Orders.

ISSUES:

Did the motion judge err in concluding that it had jurisdiction over the Application without applying the appropriate legal principles or addressing the governing statutory language?
Did the motion judge err by failing to consider whether it was appropriate to defer to the FST in a dispute involving complex questions of pension law and policy within the FST's area of expertise?
Did the motion judge err in finding that a class proceeding was "preferable" to a regulatory proceeding where the court lacks jurisdiction to address the core issues raised on the Application?

HOLDING:

Appeal dismissed.

REASONING:

& 2. The FST does not have exclusive jurisdiction over the Application

The Court dealt with the first two issues on the basis that they both rest on the contention that the FST has exclusive jurisdiction over the subject-matter of the Application and the Court must defer to it.

In the Court's view, neither s. 8 of the Financial Services Tribunal Act, 2017 (the "FSTA") nor the general statutory scheme in the PBA contains clear and unequivocal wording that ousts a court's jurisdiction. While the motion judge did not expressly advert to s. 8 of the FSTA or the general PBA statutory scheme, he considered and addressed FSRA's argument that the FST had exclusive jurisdiction over the dispute. At paras. 38-39 of his reasons, the motion judge stated that FSRA had not identified any provision in the PBA or other statutes which excluded the court's jurisdiction. The Court agreed with the motion judge's decision to dismiss the motion.

Section 8 of the FSTA does not give the FST the authority to decide "all differences between the parties arising from the interpretation, application, administration or alleged violation" of the PBA, the language found in Weber to oust the court's jurisdiction. Section 8 gives the FST exclusive jurisdiction over only all questions of law or fact that "arise in any proceeding before it". The questions before the FST were whether certain Plan amendments complied with ss. 14 and 14.1 of the PBA. These questions were not co-extensive with questions of fact and law that arise in the class proceeding.

The Court noted that, while s. 8 may give the FST concurrent or overlapping jurisdiction over the common issues in the Application, the FST does not have the power to approve the Settlement Agreement or vary the pension trust.

The Court did not accept FSRA's criticism of the motion judge's comments about its disregard for the interests of the class members and alleged over-focus on the goals of the Class Proceedings Act, 1992. When deciding whether to defer jurisdiction to the FST, the motion judge made no error in considering the impact that each of the two proceedings would have on the interests of the class members.

Further, the Court did not accept FSRA's contention that neither party would suffer harm if it succeeded in obtaining a stay of the Application. Brewers and the Committee disagreed on the interpretation and status of the indexing provisions. The interpretation would determine whether Plan members would receive indexing benefits or whether Brewers would have to pay retroactive indexing benefits. Forcing Brewers and the Committee to abandon the Application in favour of the FST hearing placed both sides at risk. Against their wishes, those parties would have been forced into an FST hearing, an "all or nothing" forum. After a decade of negotiations, with the full participation and approval of the previous regulator, both sides would risk losing all that they had bargained for. In the Court's view, the parties would have suffered harm by this result.

FSRA submitted that the correctness standard of appellate review applied to the motion judge's determination that the class proceeding was the preferable procedure (the "Determination"). FSRA argued that in making the Determination, the motion judge failed to apply the correct legal standard, thereby committing an error in principle.

The Court disagreed with FSRA's position, and instead found the motion judge did consider whether it was appropriate to defer jurisdiction to the FST on the basis that the FST was the better forum for addressing the matters in issue. The motion judge did so within his preferable procedure analysis. An overall reading of his reasons shows that the motion judge understood the scheme of the PBA and the roles that FSRA and the FST play in the regulatory regime. The motion judge made no error in exercising his discretion under s. 5(1)(d) of the Class Proceedings Act, 1992 in favour of the class proceeding nor in refusing to exercise his discretion and defer jurisdiction to the FST.

The Court also did not accept FSRA's overarching contention that permitting the proceeding to continue would undermine the regulatory scheme governing the regulation of pension plans and allow employers to commence court proceedings instead of engaging with the regulator. The Court disagreed, noting that the decade-long negotiation process unequivocally showed that Brewers and the Committee understood and respected the role of the pension standards regulator and the need for compliance with the PBA.

SHORT CIVIL DECISIONS

The Catalyst Capital Group Inc. v. West Face Capital Inc., 2023 ONCA 533

[Miller, Coroza and Copeland JJ.A.]

COUNSEL:

D. Moore and K. Jones, for the appellants (C70208, C70209 and C70228), Catalyst Capital Group Inc., Callidus Capital Corporation, N.G, G.D, and J.R.

M. Milne-Smith, A. Carlson, and M. O'Sullivan, for the respondents (C70208 and C70228), West Face Capital Inc. and G.B

M.P. Tunley, for the respondents, Dow Jones and Company and J.N (C70209) and R.C (C70209 and C70228)

Lucas Lung and Rebecca Shoom, for respondents (C70228), ClaritySpring Inc. and N.A.

E. Bodnar and B. Campbell, for the respondent (C70228), K.B

M. Wiffen, for the respondents, J.M. (C70209 and C70228) and D.L (C70228)

A.D. Lascaris, P. Guy, and A. Seely, for the respondent (C70228), B.L.

Keywords: Civil Procedure, Appeals, Costs, Full Indemnity, Partial Indemnity, 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 853

Numair v. Numair, 2023 ONCA 530

[Feldman, Benotto and Roberts JJ.A.]

COUNSEL:

W. Numair, acting in person

M. Numair, acting in person

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 (August 7 – 11, 2023)
Blaney's Appeals

Table of Contents

CIVIL DECISIONS

SHORT CIVIL DECISIONS

Canada: Court Of Appeal Summaries (August 7 – 11, 2023) Blaney's Appeals

Table of Contents

CIVIL DECISIONS

SHORT CIVIL DECISIONS

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Canada: Court Of Appeal Summaries (August 7 – 11, 2023)
Blaney's Appeals