Tag Archives: Canada

Judge Slams Toronto Landlord as Racist

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The Elias Restaurant is a 1,500 square foot hole-in-the-wall in a dreary post-capitalist strip mall on one of the busiest arterial roads in the far reaches of Toronto’s soul-crushing urban sprawl.  It is sandwiched between a nondescript beauty supply store and an equally nondescript convenience store.  It is two doors down from a “New York Fried Chicken”.  Situated in this desert of concrete, power lines, and cell phone towers, Elias Restaurant has managed to carve out a niche for itself, serving an Afro-Caribbean menu since it opened its doors in 2013. 

They must have been moving a lot of jerk chicken, because they never missed a monthly rental payment under their lease, even though the rent was close to $50 per square foot per year (which seems like a lot to me).  Good thing they are situated on that aforementioned busy arterial road. 

Commercial leases, like all contracts, are infinitely malleable.  A contract can say pretty much whatever the parties to the contract want it to say.  For example, this particular lease expired in 2017.  But the lease also contained a provision which allowed the tenant to renew the lease if it wanted to stay. 

When the lease expired in 2017, Elias Restaurant did not exercise their option to renew within the required time.  So what happens if the tenant doesn’t legally renew the lease, but stays in the unit anyway?  That’s called “overholding”, and this lease said that if the tenant did overhold they would have to pay rent at the rate of 125% – which Elias Restaurant did.  This case came to court because the landlord tried to evict Elias Restaurant (on the basis that the lease had expired without being renewed), even though Elias Restaurant had never missed a rental payment. 

It is very difficult to evict a tenant who is current with the rent.  This landlord’s efforts to kick out the tenant backfired spectacularly.  The tenant went to Court and asked for “relief from forfeiture”.  Not only did they get the relief they were seeking, but they got it in the most sensational way possible. 

In ordering that the tenant could remain in the premises, the judge also found that the landlord was motivated to try and evict this tenant because of its prejudice against this tenant’s black proprietors and (overwhelmingly) black customers.  In other words, the judge called this commercial landlord racist.  While he stopped short of using the “r-word” specifically, he did say that the landlord’s actions were based on “prejudices” and “stereotypes”, and also said there was “some good reason” to describe the landlord’s conduct as “unseemly” and “uncalled for”.  Reading the decision as a whole, there is no ambiguity about what the judge meant.

Some commentators have described the judge as ruling that the landlord acted on the basis of “unconscious bias”, but the judge wasn’t even that generous with this landlord.  He actually said that the landlord acted on the basis of its “subjective, if perhaps unconscious prejudices.”  He was only willing to grant that the landlord’s prejudices were perhaps unconscious – which, of course, leaves the insinuation that the landlord’s prejudices may very well have been conscious. 

There are a couple of lessons to be taken from this remarkable case.  The first is that judges are human.  They are just as susceptible to trends and societal developments as the rest of us.  If this case had come to court in 2019, the decision would have been very different.  The outcome probably would have been the same: the judge would have simply and quietly applied the test for relief from forfeiture, determined that there is no prejudice to letting a paying tenant stay in the unit, and moved on without providing extensive comments on the landlord’s perceived racial prejudices.  But in 2020, with the widespread publicity of the Black Lives Matter movement, this routine commercial lease dispute took on a completely different tenor.  This decision is a product of the zeitgeist.  It shows that the judiciary are not perfectly detached and dispassionate.  They can be influenced by societal developments and prevailing political moods, just like the rest of us can. 

The second lesson is the unpredictability of going to court.  Regardless of how stubborn or hard-headed this landlord was, NO ONE goes to court if they think there is even a one percent chance that they are going to end up being called a racist by the judge.  Clearly, the landlord did not see this coming.  Something went badly wrong for the landlord in the preparation of this case.  Losing in court?  That happens.  Losing in court and getting called racist by the presiding judge?  You can’t just chalk that up to a bad day at the office. 

There is a lot going on in this headline-grabbing case.  How it ended up getting this far in the first place is a question the landlord needs to ask itself.

Sprayed in the Face with a Fire Extinguisher at Wal-Mart

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Wal-Mart gets involved in a lot of litigation in Ontario, usually not by choice.  The most recent lawsuit against Wal-Mart to make it through the courts is a doozy.

It was brought by a guy name Kim Manos who was accidentally sprayed with a fire extinguisher by an employee at the Waterdown Wal-Mart.  This is amazing to me for a few reasons.  First, how does a fire extinguisher go off accidentally anyway?  Second, what employee thinks it is a good idea to handle a fire extinguisher within spraying-distance of a customer?  And, of course, what are the chances you are going to hit the customer who already has respiratory problems?

I’m also fascinated by this case because I used to live in Waterdown and the Waterdown Wal-Mart is the Wal-Mart I have visited more than any other.  From a customer’s perspective, it was a really well-run store.  It was clean, safe, and well-organised.  My personal experience would be that it was one of the better-run Wal-Mart stores I have seen.  It is unlikely to make an appearance on the “People of Wal-Mart” blog.  (The Wal-Mart here in Stratford, on the other hand . . .)

Kim Manos sued Wal-Mart and the matter went to trial.  Wal-Mart retained medical experts who disputed the Plaintiff’s contention that he had developed a particular respiratory condition.  Wal-Mart’s experts also opined that, even if the Plaintiff did have that respiratory condition, it wasn’t caused by the fire extinguisher accidentally discharging in his face in the Waterdown Wal-Mart.  (It sounds more and more ridiculous each time I say it.)

The Plaintiff won at trial.  In addition to compensation for his actual monetary losses, the trial judge also awarded him $225,000.00 in general damages for his pain and suffering which, for sure, is on the high end for this kind of injury.

Insufficiency of Reasons

In giving his reasons, the trial judge accepted the evidence of the Plaintiff’s medical experts and did not accept the evidence of Wal-Mart’s medical experts.  The problem was that he never explained in his reasons why he was rejecting the evidence of Wal-Mart’s expert witnesses. 

Wal-Mart appealed.  The Court of Appeal granted the appeal and ordered a new trial.  The Court of Appeal’s rationale was that the trial judge failed to give adequate reasons for rejecting the expert evidence put forward by the Defendant.  The Court of Appeal confirmed that the trial judge was entitled to reject the Defendant’s expert evidence if he wanted to, but he had to give intelligible reasons for doing so.  By giving no reasons at all, he made it impossible for the Defendant to know why it had lost and made his decision incapable of meaningful appellate review. 

This is another reason why I find this case so fascinating because the very first appeal I ever argued, way back in my law school days, was successful for the very same reason.  In that case, we were appealing a decision of the Discipline Committee of the College of Physicians and Surgeons of Ontario.  The Committee had a report from an independent assessor which was critical of the doctor in question.  In its decision, the Committee did not accept the conclusions of the report, but neither did it give any reasons for rejecting the report’s conclusions.  In the appeal to the Health Professions Appeal and Review Board we argued that this was unreasonable, and the Board agreed.  The Board held, “The Committee is not bound to accept the report of an independent assessor, but it is incumbent on the Committee to offer cogent reasons if it chooses to reject or discount the opinion of an assessor.”

That case was sent back to the Committee for re-consideration, just like the Manos case was sent back for a new trial. 

Appeal to the Supreme Court of Canada?

So when will the Manos case be re-tried?  Not any time soon, because (plot twist!) Mr. Manos has sought leave to appeal to the Supreme Court of Canada.

The overwhelming majority of applications for leave to appeal to the Supreme Court of Canada are dismissed, and my money would be on this application for leave being dismissed as well. 

So why would the Plaintiff seek leave when the chance of getting it is so low?  Well, one reason might be because the pay-off would be very much worth it in the unlikely event that that leave (and the subsequent appeal) are granted.  Success at the Supreme Court could mean that the Plaintiff gets to keep his $225,000.00 general damages award and would not have to put in the time and expense of a re-trial (which he might not even win, and which could also be appealed . . .).  I suspect that the Plaintiff knows very well that, even if he wins the re-trial, his is not going to get anywhere near the $225,000.00 he got the first time, because that really is on the high end of damages for the type of injury which he allegedly suffered.  If he can get the Supreme Court to overturn the Court of Appeal’s ruling the $225,000.00 damages award will stand and he will almost certainly be better off than he would be after winning the re-trial. 

I will keep a close eye on this fascinating case and provide an update once the application for leave to appeal is decided by the Supreme Court.

Quick, Good, Cheap – Pick Two

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Her Honour Madam Rosalie Abella, a Justice of the Supreme Court of Canada, recently penned an opinion column in The Globe and Mail titled, “Our Civil Justice System needs to be Brought into the 21st Century” (subscription required). 

While I came to agree with Justice Abella’s conclusion, she actually made two arguments in order to get there.  And while I agree with her second argument, I cannot bring myself to agree with her first.

Her first argument is basically just “Change for change’s sake.”  She notes that the adversarial system of civil litigation we use today is pretty similar to the one used at the turn of the (last) century.  She then goes on to argue that, since the airplane and the Internet have been invented in that time, we should similarly change the way we resolve civil disputes. 

The flip side to the sentiment that “we should change with the times” is “if it ain’t broke, don’t fix it.”  And of course, our adversarial system of civil litigation has a lot of things to commend it.  It is a system which has been honed and refined over centuries and it does a fairly good job of serving its objectives.  While other systems of dispute resolution have been conceived and tried our adversarial system remains, to paraphrase Churchill, the worst system except for all the others which have been tried from time to time.  So I would disagree with the suggestion that we ought to make any substantial changes to our civil litigation system solely on the basis that it is an old system.  We should not tear down a fence unless we know why it was put up in the first place. 

That being said, Justice Abella’s second argument really lays bare the biggest shortcoming of our “least bad” system.  She persuasively argues that the system is just too inaccessible for regular people, for the dual reasons that (i) it is too expensive and (ii) it takes too long.  One cannot really disagree with her assertion that it should not take litigants “forever and thousands of dollars to decide where their children live, whether their employer should have fired them, or whether their accident was compensable.” 

The gap between reality and expectation for participants in the civil litigation system can be profound.  I blogged last week about an employment case in Ontario which took eleven (11) years to go from start to completion at the Court of Appeal.  By comparison, a few years ago I represented an employee in an employment case that was decided by the Court of Appeal eleven months after the employee was fired.  And do you know what they told me after it was over?  They said, “If I knew it would have taken this long, I never would have done it.”  And that was in a case which, by the usual standards, was resolved quickly.

In my own practice, I have seen a fair number of clients walk away from good, promising cases—cases worth tens or even hundreds of thousands of dollars—because they are not willing to wait 1, 2, or 3 years before seeing the inside of a courtroom, or because they are no longer willing to continue funding litigation which will go on for another 1, 2, or 3 years. 

The people who are most likely to be caught on the outside are those who can’t or won’t sink thousands of dollars, and years of their lives, into fighting a legal dispute – even though their case may be just.  Justice Abella perspicaciously identifies this problem when she says, “They want their day in court, not their years.”

Normally, this is where I would criticize the author for identifying the problem but not identifying any solutions.  But I can’t criticize Justice Abella here, because I don’t have any answers at the moment either.  The civil justice system serves multiple goals, among them efficiency, truth-seeking, and justice.  Major reforms to improve the outcomes in one area are almost certain to be at the expense of the other goals of the justice system.  The legal system finds itself stuck in the classic consumer quandary of “Quick, cheap, good – pick two”. 

What should we do?  Eliminate or severely curtail pre-trial discovery?  That would certainly get us to trial more efficiently.  It would also bring back the old days of “trial by ambush”, which the profession definitely wants to avoid.  Getting rid of “trial by ambush” was a major reason for the significant expansion of pre-trial discovery in the first place.  We can make our civil litigation system quicker and cheaper, but it won’t be as good.

While I can’t say what we should do, I can make a suggestion about what we should not do.  We should not do mandatory mediation.

In my opinion, the experiment of mandatory mediation is a failure and should be abandoned.  For a number of years now, any civil lawsuit in Ottawa, Toronto, or Windsor has been required to go to mandatory mediation as a necessary pre-condition to going to trial.  And why is this such a bad a idea?  Simply put, if you want to make the process of a lawsuit quicker and cheaper, you should not add additional procedural hurdles to the lawsuit.  Mandatory mediation adds both time and expense and makes the overall lawsuit take even longer.  I cannot understand why anyone thought that the system would be made more efficient by adding an extra step to civil lawsuits: it is impossible to make a journey quicker by adding pit stops.  If we want to make the process of civil lawsuit a little bit quicker and a little bit less expensive without sacrificing quality, we can start by eliminating the costly and time-consuming step of mandatory mediation.

Two Inconsistent Hockey Cases from Ontario

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Does it help to have the right lawyer argue your case in court? We would like to think that it doesn’t matter: that the justice of the case will prevail, regardless of how persuasive your lawyer is.

Well, try telling that to Robbie Levita. He lost his personal injury lawsuit in 2015 in which he sued the guy who hit him from behind during the dying minutes of a rec-league hockey game. He has to be scratching his head at the more recently-released case of Casterton v MacIsaac, where Drew Casterton sued the guy who hit him during the dying the minutes of a rec-league hockey game and won a judgment for more than $700,000.00.

To find any substantial difference between Mr. Levita’s case and Mr. Casterton’s case is an exercise in splitting hairs very, very finely. Any difference between the cases is minor, while the similarities are striking:

LevitaCasterton
Playing in a “non-contact” recreational hockey league in OntarioPlaying in a “non-contact” recreational hockey league in Ontario
Signed a liability waiver in favour of the leagueSigned a liability waiver in favour of the league
Incident happened in the last minute of play, with his team trailingIncident happened in the last minute of play, with his team trailing
Hit by an opposing player while not in possession of the puckHit by an opposing player while not in possession of the puck
Suffered serious injuries, including a broken tibia and fibulaSuffered serious injuries, including long-term brain damage

To find any differences between these two incidents requires a fair degree of creative thinking. What tipped the results in either direction were the factual findings by the respective Judges. Mr. Justice Firestone found that that the guy who hit Mr. Levita did not do so with an intent to injure, while Madam Justice Gomery found that the guy who hit Mr. Casterton deliberately attempted to injure him, or was reckless about the possibility that he would do so. It was on these findings of fact that the respective cases turned.

The Casterton case shows that the Levita case could have easily turned out differently, and vice versa. One has to question how much of a role the advocacy of the respective lawyers played in these cases.

  • Did Mr. Casterton have more effective advocates than Mr. Levita?
  • Or, did the Defendant in the first case have more effective advocates than the Defendant in the second case?
  • Perhaps it was a combination of both?

At the same time, it may have been some other reason or reasons, completely unrelated to the effectiveness of counsel. Perhaps the Defendant in the Levita case came across as sympathetic and remorseful in a way that the Defendant in the Casterton case did not: we can only speculate. All the same, we cannot rule out the strong possibility that the effectiveness of counsel played some role in these two very similar cases ending up with very, very different results.