BLANEY’S APPEALS: ONTARIO COURT OF APPEAL SUMMARIES (MAY 13 – 17, 2019)

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Good evening.

Following are the summaries for this week’s civil decisions of the Court of Appeal for Ontario.

In Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2019 ONCA 393, the court upheld the constitutionality of two policies enacted by the College. Each of policies required physicians who objected to providing certain medical procedures and pharmaceuticals on the basis of religious beliefs or freedom of conscience (such as medical assistance in dying, abortion and reproductive health services) to provide the patient with an effective referral to other practitioners or clinics. The Court upheld the Divisional Court’s finding that while the policies infringed the individual doctor’s religious freedom, the policies were reasonable limits that were demonstrably justifiable in a free and democratic society. The Court agreed with the Divisional Court and found that the policies’ objective to facilitate equitable access for vulnerable patients to health care services was sufficiently pressing and substantial to warrant overriding individual doctors’ religious freedom. The Court found that the policies fell within a range of reasonable alternatives to address the religious objections of physicians.

Other topics covered this week included the standing of a union member to challenge the legality of clauses in the union’s constitution that limited the ability of locals to disaffiliate from the parent union, compensatory spousal support, amending pleadings in an oppression case, an appeal from a jury’s determination of damages in an MVA case, constructive dismissal of a teacher, a dispute over a right of way, extension of time to comply with an order for security for costs, and extension of time to appeal an order refusing security for costs in the bankruptcy context.

Wishing everyone a Happy Victoria Day long weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Civil Decisions

Keywords: Real Property, Easements, Rights-of-Way, Encroachments, Substantial Interference, Civil Procedure, Applications, Evidence, Registry Act, RSO 1990, c R.20, Fallowfield v Bourgault (2003), 68 OR (3d) 417 (CA), Mihaylov v 1165996 Ontario Inc, 2017 ONCA 116, Weidelich v de Koning, 2014 ONCA 736

Keywords: Labour Law, Unions, Constating Documents, Contracts, Privity, Unconscionability, Civil Procedure, Standard of Review, Justiciability, Standing, Representative Proceedings, Orders, Declarations, Stays, Striking Pleadings, Fresh Evidence, Rules of Civil Procedure, Rules 12.08, 21.01(1)(b), 21.01(3)(a) & 21.01(3)(b), Labour Relations Act, 1995, SO 1995 c 1, Courts of Justice Act, RSO 1990 c C.43, s 97, Berry v. Pulley, 2002 SCC 40, Ewert v. Canada, 2018 SCC 30

Keywords: Administrative Law, Regulated Professions, Doctors, Constitutional Law, Freedom of Conscience and Religion, Equality, Oakes Test, Doré/Loyola Framework, Standard of Review, Fresh Evidence, Canadian Charter of Rights and Freedoms, ss 1, 2(a), 7, 15(1), Regulated Health Professions Act, 1991, SO 1991, Health Professions Procedural Code, Sched 2, s 95(1.1), Professional Misconduct, O Reg 856/93, Medicine Act, 1991, SO 1991, c 30, Criminal Code, RSC 1985, c C-46, Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2018 ONSC 579, R v Oakes, [1986] 1 SCR 103, Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624, Carter v Canada (Attorney General), 2015 SCC 5, Doré v Barreau du Quebec, 2012 SCC 12, Loyola High School v Quebec (Attorney General), 2015 SCC 12, Kahkewistahaw First Nation v Taypotat, 2015 SCC 30, Greater Vancouver Transportation Authority v Canadian Federation of Students – British Columbia Component, 2009 SCC 31, Harper v Canada (Attorney General), 2004 SCC 33, Housen v Nikolaisen, 2002 SCC 33, Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, Dr Q v College of Physicians and Surgeons of British Columbia, 2003 SCC 19, College of Physicians and Surgeons of Ontario v Peirovy, 2018 ONCA 420, Law Society of British Columbia v Trinity Western University, 2018 SCC 32, R v Big Drug Mart Ltd, [1985] 1 SCR 295, Syndicat Northcrest v Amselem, 2004 SCC 47, Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, Multani v Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, Trinity Western University v College of Teachers, 2001 SCC 31, R v Morgentaler, [1988] 1 SCR 30, Roach v Canada (Minister of State for Multiculturalism and Culture) (1994), 113 DLR (4th) 67 (FCA), Quebec (Attorney General) v A, 2013 SCC 5, R v Moriarity, 2015 SCC 55, RJR-MacDonald Inc v Canada (Attorney General), [1995] 3 SCR 199, Gordon v Canada (Attorney General), 2016 ONCA 625, leave to appeal to SCC refused, [2016] SCCA No 444 and No 445, R v Swain, [1991] 1 SCR 933, Irwin Toy Ltd v Quebec (Attorney General), [1989] 1 SCR 927, M v H, [1999] 2 SCR 3, Green v Law Society of Manitoba, 2017 SCC 20, Wynberg v Ontario (2006), 82 OR (3d) 561 (CA), leave to appeal to SCC refused, [2006] SCCA No 441, McInerney v MacDonald, [1992] 2 SCR 138, Norberg v Wynrib, [1992] 2 SCR 226

Keywords: Bankruptcy and Insolvency, Civil Procedure, Appeals, Extension of Time, Security for Costs, Rules of Civil Procedure, Rules 3.02(1) & 56.01, Bankruptcy and Insolvency Act, R.S.C. 1985, c B-3, s. 193(e), Bankruptcy and Insolvency General Rules, C.R.C., c. 368, s. 3, Issai v. Rosenzweig, 2011 ONCA 112, Ontario Wealth Management Corporation v. Sica Masonry and General Contracting Ltd., 2014 ONCA 500, Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282

Keywords: Civil Procedure, Orders, Security for Costs, Extension of Time, Joint and Several Liability, Rules of Civil Procedure, Rule 56.06, Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, Margaret Grace Kerr v. CIBC World Markets et al., 2013 ONSC 7685

Keywords: Family Law, Spousal Support, Compensatory Support, Variation, Material Change in Circumstances, Spousal Support Advisory Guidelines, Divorce Act, RSC 1985, c 3, s 17(4.1), 17(7), Hickey v Hickey, [1999] 2 SCR 518, Moge v Moge, [1992] 3 SCR 813, LMP v LS, 2011 SCC 64, Halliwell v Halliwell, 2017 ONCA 349, Brad-Jay Investments Ltd v Szijjarto (2006), 218 OAC 315 (CA), leave to appeal refused, [2007] SCCA No 92

Keywords: Employment Law, Constructive Dismissal, Civil Procedure, Summary Judgment

Keywords: Torts, MVA, Civil Procedure, Jury Trials, Jury Charge, Causation, Damages, Evidence, Admissibility, Character Evidence, Expert Evidence, Hearsay, Medical Records, Costs

Keywords: Corporations, Oppression, Contracts, Share Purchase Agreements, Debtor-Creditor, Civil Procedure, Amending Pleadings, Rules of Civil Procedure, Rule 26.01, Business Corporations Act, R.S.O., c. B.16, s. 248, 158844 Ontario Ltd v. State Farm Fire and Casualty Co., 2017 ONCA 42, Local 175 Region 6 v. Quality Meat Packers Holdings Limited, 2018 ONCA 671, Davis v. East Side Mario’s Barrie, 2018 ONCA 410, Frohlick v. Pinkerton Canada Ltd, 2008 ONCA 3

Short Civil Decisions

Keywords: Appeals, Hearing Together, Adjournments

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land, Options, Statute of Frauds, R.S.O. 1990, c. S.19

Keywords: Contracts, Privity, Agency, Summary Judgment

Criminal Decisions

Keywords: Criminal Law, Fraud, Criminal Code, s. 380(1)(a), Evidence, Credibility, R. v. Morrissey, (1995) 22 O.R. (3d) 514 (C.A.)

Keywords: Criminal Law, Second Degree Murder, Evidence, R v. Walle, 2012 SCC 41

Keywords: Provincial Offences, Lobbying, Lobbying Act, ss 7 and 10.11(1)

Keywords: Criminal Law, Possession of a Firearm Obtained by Crime, Possession of Property Obtained by Crime, Break and Enter with Intent to Commit an Indictable Offence

Keywords: Criminal Law, Attempted Murder, Discharging Firearm with Attempt to Injure, Procedural and Natural Justice, Duty to Provide Reasons, Canada Evidence Act, R.S.C. 1985, c. C-5, R. v. Headley, 2018 ONCA 915, 368 C.C.C. (3d) 308, R. v. Tsekouras, 2017 ONCA 290, 353 C.C.C. (3d) 349, leave to appeal dismissed [2017] S.C.C.A. No. 225

Keywords: Criminal Law, Endorsement, Sentencing, R. v. Danvers, (2005), 199 C.C.C. (3rd) 490 (Ont. C.A.)

Keywords: Criminal Law, Possession of Cocaine for the Purposes of Trafficking, Possession of Proceeds of Indictable Offence, Unreasonable Search and Seizure, Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5(2), Criminal Code, R.S.C. 1985, c. C-46, s. 354(1), Canadian Charter of Rights and Freedoms, ss. 8 & 9

Keywords: Criminal Law, Endorsement, Possession of Narcotics, Canadian Charter of Rights and Freedoms, s. 24(2)

Keywords: Criminal Law, Trafficking in Property Obtained By Crime, Possession of Property Obtained by Crime, Sentencing, R v W.(D.), [1991] 1 S.C.R. 742

[Watt, Pardu and Nordheimer JJ.A.]

Counsel:

B. N. Radnoff and L. Woods, for the appellants

B. Bussin, for the respondents

Ke...