Tag Archives: Superior Court of Justice

You Make Me Want to Make a New Tort Up

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When I last blogged about a new tort in Ontario, I predicted that the next time we would see the creation of a new tort would “not be for some time”.  That prediction has already been proved wrong.  We now have yet another new cause of action to contend with in Ontario law. 

Yenovkian v Gulian

Recently, the Ontario Superior Court of Justice had to deal with a case which involved a deeply unhinged person writing hurtful and defamatory things on the Internet.  In that case, the Judge did not believe that the existing legal tools provided a sufficient remedy for the wronged party.  In her view, to do justice it was necessary to create a new legal tort to address this type of Internet-based harassment.  The Court “discovered” the new tort of “publicity placing a person in a false light” and awarded judgment on the basis of this new tort.

Caplan v Atas

The more recent case of Caplan v Atas dealt with the same problem: an obviously unhinged person who was writing hurtful and defamatory things on the Internet.  In Yenovkian v Gulian, the ex-husband used the Internet to, among other things, allege that his wife had kidnapped and drugged their children.  In Caplan v Atas, Ms. Atas made postings on the Internet against her perceived enemies and their family members in which she made all sorts of vile accusations.  Her defamatory statements ran the gamut, but she usually fell back on accusing them of being paedophiles. 

The judge who decided the Atas case found that the statements were defamatory.  He also took the view that a judgment for defamation was not sufficient to do justice for the defamed parties.  To fully do justice in this case, the presiding judge decided to “discover” yet another new tort.  The Court created the new tort of “harassment in internet communications” and awarded the plaintiffs additional remedies on the basis of this new tort. 

Don’t Like What Someone has Written on the Internet? Make up a New Tort!

Because the two cases are so similar, it is very interesting that the judge in the Atas case did not even consider the Yenovkian case.  It appears the lawyers did not bring the Yenovkian case to his attention: perhaps they were unaware of it themselves. 

This is a shame, because it gives the impression that the Superior Court’s left hand did not know what its right hand was doing.  By handing down a decision about Internet-based harassment without discussing or even referring to the last notable decision about Internet-based harassment, the development of the law is impoverished.  It would have been very useful for the bar to hear Justice Corbett’s reasoning on how his new tort of harassment in internet communications differs, if at all, from Justice Kristjanson’s tort of publicity placing someone in a false light. 

We also don’t know if Justice Corbett’s decision would have been different if he had been made aware of the Yenovkian decision.  Had he been made aware of it, he might have decided that the situation in the case before him was captured by the test for publicity placing a person in a false light.  Had he been aware of the “false light” tort, he might have declined to create the tort of harassment in internet communications in the first place.  Or, maybe not.  The difficulty is, we just do not know. 

In both these cases, it appears that the respective judges let their hearts run ahead of their heads a little bit.  To be sure, the things that Mr. Yenovkian wrote and the things that Ms. Atas wrote were outrageous.  They were highly offensive and outright shocking.  The Court was, in both cases, understandably shocked and offended.  However, it seems that, probably because of how offensive these Internet postings were, the Court set aside its dispassionate demeanour to some extent so that it could throw the book at these Internet harassers.  It looks like the Court was so shocked by this appalling behaviour that they decided to do whatever they had to do to serve justice – even if they had to change the law to do it. 

The End of the Suspension of Legal Deadlines in Ontario

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In response to the COVID-19 pandemic, the Government of Ontario temporarily suspended most statutory and regulatory limitation periods.  This applied to a lot of legal deadlines, chief among them Ontario’s “basic” limitation period which states that most lawsuits have to be started within two (2) years. 

The suspension of most limitation periods went into effect on 16 March 2020.  The Government of Ontario ended the suspension last month, and the suspended time periods resumed running on 14 September 2020.  If we say that 13 September 2020 (which was a Sunday) was the last day of the suspension period, that means the suspension period ended up being 182 days long. 

(I keep saying “most” limitation periods, because there were some legal deadlines which were not suspended by the government, such as deadlines created by a court order.  Other deadlines were suspended for less than the entire duration of the suspension, such as deadlines under the Construction Act, which were suspended for only 31 days.)

Protect Your Legal Interests

If you are sitting on a possible legal claim, do not fall into the trap of thinking you have an extra 182 days beginning on 14 September 2020 within which to commence it.  If your limitation period would have expired after 16 March 2020 but before 14 September 2020, then you only have as much time after 14 September 2020 as you would have had after 16 March 2020. 

So if your limitation period would have, but for the suspension, expired on 29 May 2020 (seventy-four days after the beginning of the suspension), the limitation period will now expire on 27 November 2020 (seventy-four days after the end of the suspension).  I expect this will be an easy mistake for litigants and their counsel to make, so please be alive to this issue.  There will be people who think that they have 182 days from 14 September 2020 when they do not.  It is easy to anticipate that, over the next six months or so, some folks are going to miss deadlines. 

Also bear in mind that not all legal claims in Ontario are subject to the “basic” limitation period of two years.  There are exceptions to the basic limitation period.  In some situations, the deadline to start a lawsuit is shortened by the terms of a contract (such as most insurance contracts), or by a statutory requirement to give notice (such as in the Municipal Act or in the Libel and Slander Act, for certain types of claims).  Some types of legal proceedings are not statute-barred at all. 

If you think you might have a legal claim, protect your interests.  DO NOT rely on this blog, which is simply an informative summary and does not constitute legal advice.  Consult with a lawyer. 

Legal Challenge to the Will of Former Maple Leafs Head Coach Dan Maloney

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A version of this article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

Hockey fans of a certain age will remember Dan Maloney as a player for, and later the head coach of, the Toronto Maple Leafs in the 1970s and 80s.  He passed away recently at the age of only 68, and there are many unanswered questions about whether the hits he took (and dished out) during hockey’s toughest era contributed to the decline in his health and, ultimately, his death. 

Complicating Dan Maloney’s final years was the fact that his family was not united about how to manage his health and personal affairs.  As reported by Dan Robson in his excellent article at The Athletic (subscription required – and strongly recommended), Maloney’s family were still arguing about whether he had legal capacity to make his own health care decisions less than two (2) weeks before he died. 

When Maloney died, the disputes within his family continued.  His daughter, Shelley, challenged his Will in Superior Court and the decision, released last year, is a great example of how a civil court case is all about the intersection between the legal and the personal.

Dan named a niece, rather than any of his children, as his estate trustee but, in all other respects, his Will was unremarkable.  His Will provided that his estate was to be divided equally amongst his three (3) children: the only exception being that, in addition to her one-third (1/3) share, Shelley would also get an oak china cabinet.

Shelley represented herself at court, and it is clear from reading the case that her objection her father’s Will was more a cathartic or therapeutic exercise than anything to do with the legal validity of his Will.  To begin with, even if she had been successful in having her father’s Will invalidated, that simply would have meant that the estate would have been divided equally amongst Dan’s three (3) children—which is already what the Will said.  The only change would have been that Shelley would not have received the oak china cabinet that Dan wanted her to have. 

What is more, much of the relief that Shelley asked for was relief which the Court could not even award.  In addition to asking for the Will to be invalidated, she also asked the Court to, among other things:

  • Revoke the licence to practise medicine of the estate trustee (who, in addition to being Dan’s niece, happened to be a doctor);
  • Revoke the licence to practise law of the lawyer who drafted Dan’s Will;
  • Order the Ontario Provincial Police and the Chief Coroner to conduct an investigation into the death of Dan Maloney; and
  • Order paternity tests to be conducted on her brothers.

Even though she was self-represented, I suspect that Shelley knew full well that her challenge of her dad’s Will was not going to succeed.  It seems that the motivation behind her proceeding was personal and emotional, rather than legal or financial.  While there may be a perception that the law is dull and sterile, this case is a reminder that the courts are often the place where the law collides with the very real lives of the people it impacts. 

This case also provides a good example of how to respond to a litigant who is using the court process for some sort of moral, therapeutic, or emotional purpose, and not for any actual legal remedy.  The judge who decided the case, Justice Christie, was not at all dismissive of Shelley’s challenge to the validity of her father’s Will.  Instead of dismissing the case on the spot, she took the time to write a judgment which was detailed and thorough and gave a fulsome analysis of the applicable law.  While her exasperation could not help but at times seep through, she nevertheless delivered a judgment that, overall, treated the legal case with the solemnity and gravitas which we rightly expect from the courts.  A court case which had no possible chance of success from a legal perspective, and which probably took less than two (2) hours of court time to argue, still resulted in a twelve-page legal decision. 

It is sometimes said that judges should “write for the loser”, and that’s what Justice Christie did here.  She certainly wasn’t writing for the appeal court (there was an exactly zero percent chance of this ruling being overturned on appeal) and she wasn’t writing for the benefit of the estate trustee’s lawyers (who already know the law).  This ruling was for the benefit of the person who—unsuccessfully—challenged the Will.  While Shelley would undoubtedly have been disappointed in the result, she can hopefully take some comfort that her concerns were given due consideration by a Judge of the Superior Court, and at least she was heard.  And there is every chance that, at the end of the day, that is all she really wanted. 

Déjà Vu all Over Again

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It was déjà vu all over again at the Court of Appeal on the issue of punitive damages. 

Punitive damages are already a bit weird in the realm of civil litigation, because the purpose of the civil law is to compensate.  It is not to punish: that is a purpose of the criminal law.  Yet punitive damages can be awarded in a civil proceeding to (as their name implies) punish the defendant when his, her, or its conduct has been so malicious, oppressive, and high-handed that it offends the court’s sense of decency. 

The Supreme Court of Canada has said that punitive damages should be rare and modest, and they usually are.  I’ve only ever argued one case in which punitive damages were awarded and, even then, the punitive damages were only $25,000.00.

But sometimes, a showstopper of a case will come along where the jury makes an enormous award of punitive damages.  Two Ontario cases, about twelve years apart, both featured jury awards of $1,000,000.00 for punitive damages.  And yes, one of the cases involved Wal-Mart.

The first case was Whiten v Pilot Insurance.  A homeowner’s house burned down.  Her insurance company took the unreasonably hard-headed position of denying her claim on the basis that she had burned the house down herself, even though Pilot Insurance had no evidence of arson whatsoever.  The homeowner had to sue her insurance company, and take it all the way to trial, just to get her house rebuilt.  The jury was incensed by Pilot Insurance’s intransigent stance and, in addition to the compensatory damages, ordered the defendant to pay punitive damages of $1,000,000.00. 

Pilot Insurance appealed and the Court of Appeal reduced the punitive damages from $1,000,000.00 to $100,000.00.

On appeal to the Supreme Court of Canada, though, the Supreme Court overturned the Court of Appeal’s ruling on punitive damages and reinstated the jury award of $1,000,000.00.

The second case was Boucher v Wal-Mart Canada Corp.  Ms. Boucher, an employee at a Windsor Wal-Mart, had been really viciously bullied by her immediate supervisor.  This supervisor yelled at Ms. Boucher, singled her out, screamed at her, and swore both to and about her, both in front of and behind her back.  (This manager, a one Jason Pinnock, had a propensity for workplace use of the F-word which was nothing short of pathological.) 

Perhaps the most disturbing part of this case of workplace bullying was the fact that Wal-Mart took Mr. Pinnock’s side and backed him up.  The jury was not impressed, and ordered Wal-Mart to pay Ms. Boucher punitive damages in the amount of $1,000,000.00. 

History repeated itself at the Court of Appeal.  When faced with an appeal of a $1,000,000.00 jury award for punitive damages, the Ontario Court of Appeal reduced it to—you guessed it—$100,000.00. 

Obviously it was not the same panel of judges at the Court of Appeal who heard Boucher as heard Whiten.  Still, it seems strange that the Boucher panel did not say, “Hey, last time we slashed a jury’s $1,000,000.00 punitive damages award by 90% the Supreme Court reinstated it – maybe we shouldn’t do that again?” 

In Whiten, the Supreme Court of Canada did not go so far as to say ‘the jury is always right’.  They said that juries should be given enough leeway to do their job and their awards should not be overturned on appeal unless they are “irrational”.  The Supreme Court went on to hold that, in that case, the jury award of $1,000,000.00, was not irrational and it should not have been overturned. 

In Boucher, the Court of Appeal held that $100,000.00 was all that was rationally required to punish Wal-Mart and to denounce and deter its conduct.  Which, allow me to say, is bonkers.  This is Wal-Mart we are talking about.  If $1,000,000.00 was not an “irrational” amount to punish, denounce, and deter a small Canadian insurance company which acted in an oppressive and high-handed manner, then how is the same amount of money, awarded for the same purpose, against one of planet earth’s largest corporations “irrational”? 

The facts of the two (2) cases were different but the respective juries’ decisions on the issue of punitive damages were the same.  If it was incorrect for the Court of Appeal to have reduced the first award by 90%, then I would have argued that it was similarly incorrect for the Court of Appeal to have reduced the second award by 90%. 

Might history have been repeated at the Supreme Court?  Would the Supreme Court have reinstated the million-dollar damages award in the Boucher case, just like it reinstated the million-dollar damages award in the Whiten case?  We will never know, because Ms. Boucher did not seek leave to appeal to Canada’s top court.

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.

Publicity Placing Person in False Light

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To successfully sue someone, you need to have a legally-recognised basis for suing them.  These legally-recognised bases for suing someone are called “causes of action”.  Many of them are obvious and well known: where the evidence justifies it, you can sue someone for breach of contract, wrongful dismissal, or defamation.  Other causes of action are less well known, but nevertheless well-established, such as certiorari or mandamus.

Notably, the list of legally-recognised causes of action is not a closed list.  Where the right conditions are met, new causes of action can be “discovered” by the courts. 

False Light

Late last year, the Ontario Superior Court of Justice “discovered” another new cause of action in the family law case of Yenovkian v Gulian. 

There was a trial to determine the issues of custody, access, and spousal support.  At the trial, the wife put forward evidence of websites written and published by the husband which alleged that the wife and her parents were involved in kidnapping, child abuse, assault, and making death threats (among other things). 

The husband’s websites (which are still up, in violation of court orders to take them down) are written by someone who is clearly unhinged, and the allegations they contains against his ex-wife are outrageous.  The judge decided to give Ms. Gulian a remedy for the injury she suffered in having these things written about her on the Internet. 

Rather than give the wife a judgment which was based on an already-recognised cause of action, the judge decided to base the ruling on a cause of action which had never previously been recognised in Ontario law.  The Judge held that the cause of action by which Ms. Gulian was entitled to a remedy was “publicity placing a person in a false light”, and she awarded Ms. Gulian $100,000.00.

This ruling creates a situation of significant uncertainty in Ontario law.  First, it is not at all clear from this ruling how “publicity placing a person in a false light” is different from good old-fashioned defamation.  I don’t see how accusing your ex-wife of kidnapping and child abuse could possibly be anything other than defamatory so, in my personal view, the judge did not need to recognise a new cause of action in order to give Ms. Gulian a remedy: she could have simply awarded Ms. Gulian damages based on defamation. 

Second, because this case was decided by the Superior Court and not by the Court of Appeal, it is not binding on other courts in Ontario.  My own suggestion would be that the job of introducing new causes of action into Ontario law should be left to the Court of Appeal, whose decisions are binding on all the courts in the province.  The last time a new cause of action was discovered in Ontario (“intrusion upon seclusion”), it was done by the Court of Appeal.  The last time the Superior Court attempted to discover a new cause of action (the “tort of harassment”), the ruling was overturned by the Court of Appeal.

The Court of Appeal did not have the opportunity, in this case, to weigh in on the “false light” cause of action because the husband did not appeal.  One judge of the Superior Court was convinced that the cause of action of “publicity placing a person in a false light” exists in Ontario; another judge hearing a similar case may not be similarly convinced.  This creates the possibility of inconsistent legal rulings in the Ontario courts, which in turn could potentially erode public confidence in the justice system. Until the Court of Appeal rules on the “false light” cause of action, it will remain a big question mark in Ontario law. 

When will we next see a new cause of action recognised in Ontario?  I suspect it will not be for some time.  A new cause of action is supposed to fill a gap in the existing law, and where it is not immediately obvious that there is a gap in the law which needs to be filled, it will be less likely that any potential new cause of action will be recognised. 

An 11-Year Long Employment Case

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Civil litigation clients often ask, “How long will this case take?” People who have never been involved in a civil court proceeding may be surprised to learn that civil matters are usually measured in years, not weeks. But how long can a lawsuit go on for? An employment law case released by the Ontario Court of Appeal this past year shows just how long a lawsuit in Ontario could take.

On January 31st, 2019, the Court of Appeal heard an appeal of a case which had been argued in 2016 and decided in 2017. The Court of Appeal was remarkably efficient, releasing its decision just six (6) weeks after the appeal was argued.

The interesting date in this case, however, is not the date on which the judgment at first instance was handed down, or the date on which the case was argued, but the date on which the case was commenced – 2008.

Most people understand that even after you go to court there is a right of appeal, and they understand that an appeal will add some time to the length of your legal matter. In this case, the time between judgment and appeal (less than two (2) years) was a drop in the bucket compared to the time between the commencement of the lawsuit and the argument at first instance, which took a staggering eight (8) years.

What we do not learn from the reported decision is whether or not there were valid reasons for the eight (8) years which transpired between the employment law case being commenced and it being argued at court. Extraordinary delays sometimes happen in civil litigation, but there are usually extraordinary events behind those delays, such as one of the lawyers being removed from the case due to illness, retirement, or death, for example.

A new rule came into effect in Ontario in 2012 with the goal of trying to prevent these sorts of extraordinary delays. Rule 48.14 of the Rules of Civil Procedure now requires the Registrar of the court to automatically dismiss every lawsuit which has not been set down for trial after the five-year anniversary of it having been commenced. This rule does not mean that a lawsuit has to go to trial within five (5) years, only that it has to be ready to go to trial within five (5) years. It seeks to strike a balance between giving parties and their lawyers enough time to prepare their lawsuit, while at the same time eliminating totally unreasonable delays.

And of course, this particular case is an outlier. Rarely will a relatively uncomplicated employment law case drag on for years, let alone eleven (11) years. But this case nevertheless stands as a marker of just how long, in some circumstances, a civil lawsuit can actually take.

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.