Court of Appeal Decision of the Week

Spelling Bee Question: Spell “Summary Judgment”

Case: Parsaei v. Toronto (Police Services Board), 2017 ONCA 512 (CanLII)

Keywords: Wrongful Arrest; Reasonable and Probable Grounds; Hryniak v. Mauldin, 2014 SCC 7 (CanLII), [2014] S.C.J. No. 7 (S.C.C.)


This matter arises from the Appellant’s complaints about the way in which her son was treated by school staff and disagreements regarding who won (or should have won) a spelling bee at the school. The Appellant appeals from a summary judgment decision dismissing her action against the Respondents, Toronto Police Services Board and Detective Constable Andrew MacPhail, for wrongful arrest and negligent investigation of criminal charges. The appellant and two other women were charged criminally in connection with:

  • a series of threatening letters posted around and mailed to residents near Perth Avenue Public School in Toronto;
  • a series of related hostile and harassing phone calls to staff, the principal of the school, and members of the Toronto District School Board; and
  • an harassing letter sent to a member of the Board.


Posted: Wednesday, June 21, 2017

Court of Appeal Decision of the Week

Appealing from CCAA Proceedings: Court of Appeal Rejects Application for Leave

Case: Essar Steel Algoma Inc. (Re), 2017 ONCA 478 (CanLII)

Keywords: CCAA Proceedings; Restructuring; Leave to Appeal


GIP Primus LP and Brightwood Loan Services LLC (collectively “GIP”) and Port of Algoma Inc. (“Portco”) apply for leave to appeal an order made in the context of insolvency proceedings under the Companies’ Creditors Arrangement Act, RSC 1985, c C-36 (“CCAA”). The proceedings involve Essar Steel Algoma Inc. (“Algoma”) and related companies.

Algoma addresses its need for “cash injection” via solvent restructuring under the CCAA. This results in a transaction involving four basic components:

  1. the sale by Algoma to Portco of port facilities at Sault Ste. Marie, Ontario;
  2. a lease of the port lands to Portco for a period of 50 years;
  3. a “Cargo Handling Agreement” under which Algoma pays Portco for the use of port and cargo-handling facilities at a cost of $36 million annually (in monthly instalments); and
  4. a “Shared Services Agreement” which requires Portco to pay Algoma $11 million annually in exchange for Algoma providing operation and maintenance services at the port. (See para. 2).


Posted: Wednesday, June 14, 2017

Court of Appeal Decision of the Week

Court of Appeal: Cheese Smuggling by Police (Woulda, Shoulda, Gouda)

Case: R. v. Heron, 2017 ONCA 441 (CanLII)

Keywords: Conspiracy to Smuggle (here, cheese); Breach of Trust By Public Official (here, police officers)


The Appellant is convicted of conspiracy to smuggle (here, cheese) into Canada from the United States. The cheese is sold to local restaurants for profit at discount prices made possible by evading the 246% duty. About $133,000 of cheese and other food is smuggled, with the result that about $325,000 worth of duty is evaded. The Appellant and his accomplice are police officers with Niagara Regional Police. As such, he is also convicted of breach of trust by a public official.

The Appellant does not appeal the smuggling conviction, but seeks to set aside the conviction for breach of trust and leave to appeal from sentences (three month imprisonment for the smuggling offences and one months’ imprisonment, consecutive, on the breach of trust offence).

The Appellant raises one ground with respect to his breach of trust conviction: that the trial judge erred in finding the only reasonable inference to be drawn from his running a Canadian Police Information Centre (“CPIC”) check on the licence plate of his accomplice and fellow police officer was that he made the search to evade detection and/or determine to what extent law enforcement was aware of their activities. (more…)

Posted: Thursday, June 08, 2017

Court of Appeal Decision of the Week

When Do Businesses “Occupy” Municipal Sidewalks – For “Slip and Fall” Purposes

Case: MacKay v. Starbucks Corporation, 2017 ONCA 350 (CanLII)

Keywords: Starbucks; Slip and Fall; Occupiers’ Liability Act, R.S.O. 1990, c. O.2


The Respondent falls on an ice-covered patch of sidewalk near a Starbucks patio. Based on the evidence (including testimony from a Starbucks shift manager who relayed his instruction to ensure the safety of customers by clearing the patio entrance with a shovel and salt) the Trial Judge determines Starbucks is an occupier per the Occupiers’ Liability Act, R.S.O. 1990, c. O.2, and owes the Respondent a duty of care.

On Appeal, the Court of Appeal addressed two issues:

  1. did the Trial Judge err in her conclusion Starbucks was an occupier of the area of the sidewalk leading to its patio where the respondent slipped and fell?
  2. if that finding was in error, did Starbucks nevertheless owe a common law duty of care to the respondent?


Posted: Wednesday, May 31, 2017

Court of Appeal Decision of the Week

The Standard Litigation-Ending Broadly-Worded Mutual Release — Does it Apply to an “Unanticipated Claim”?

Case: Biancaniello v. DMCT LLP, 2017 ONCA 386

Keywords: butterfly transaction, unanticipated claim, Income Tax Act

Motion judge:  No.|
Divisional Court (an intermediate 3-judge appellate court in Ontario): No.
Ontario Court of Appeal: Yes.
Supreme Court of Canada: don’t know (yet), judgment came down Monday of last week (May 15, 2017), so S.C.C. deadline to file a Leave to Appeal is Monday, August 14th. Email me if:


Posted: Wednesday, May 24, 2017

Court of Appeal Decision of the Week

‘Slip and Fall’: Speculation; and the Court of Appeal

Case: Robinson v. 1390709 Alberta Ltd., 2017 BCCA 175 (CanLII)

Keywords: ‘Slip and Fall’; Occupiers Liability Act, RSBC 1996, c 337


On their way to attend a show, Ms. Robinson and Ms. Horgan stop at a restaurant called Chopped Leaf to have dinner. The roads and sidewalks are dry as it had neither snowed nor rained that day. After Ms. Robinson and Ms. Horgan finish their meals, they get up and begin walking towards the front door, leaving their dishes at the table. There are no other customers in the restaurant at the time.

In her affidavit, Ms. Robinson explains what happens next (See at para. 2):

As I neared the door, I put my left foot down and felt it slip forward suddenly. I definitely felt something slimy and thicker than liquid under my foot, and felt it slide as my left foot slid forward. I could not lift my left foot because it was already too far in front when I started to react to the slip. I tried to correct my balance by shifting my weight forward but my left foot was out in front of me and I fell heavily onto my back and left side. [Emphasis added].


Posted: Wednesday, May 17, 2017

Court of Appeal Decision of the Week

Quantifying Loss-of-Use: When the Garage Drives Your Favourite Ferrari into a Parked Truck

Case: Miller v. Brian Ross Motorsports Corp., 2017 BCCA 166 (CanLII)

Keywords: Ferrari F430; General Damages; Non-Pecuniary Damages


A technician employed by the Respondent automobile dealership road-tests the Appellant’s Ferrari F430 (the “quality control” component of its annual service). During the course of this test, the technician collides with a parked truck, causing considerable negligent damage to the Ferrari (and the truck as well, no doubt). The Appellant’s Ferrari F430 is then wrongfully detained for nine months as repairs are sorted. The parties “wisely settled” repair costs ($35,664) and accelerated depreciation ($36,350.25); they could not agree on the value of the appellant’s loss-of-use. (See para. 1). (No word on whether crash-driving technician still works there).

At trial, Madam Justice Dardi awarded the Appellant $15,000 in general, non-pecuniary damages for loss-of-use. On appeal, the Appellant raises the following issues: (more…)

Posted: Wednesday, May 03, 2017

Court of Appeal Decision of the Week

Tax Returns and the Court of Appeal: “What a Diff’rence a Day Makes”

Case: TD Bank v. British Columbia (Commissioner of Income Tax), 2017 BCCA 159 (CanLII)

Keywords: International Business Activity Act, S.B.C. 2004, c. 49; Income Tax; Tax Return; Tax Refund


TD Bank’s tax return claiming a refund of $2.8 million is filed one day after the B.C. Provincial Commissioner of Income Tax thought it was due. The Commissioner determines the refund is nil. She also refuses an extension of time. The B.C. Minister of Finance confirms the nil determination.

TD appeals the Minister’s decision, seeking judicial review of the Commissioner’s refusal to extend time. The chambers judge finds the return had been filed in time and ordered the Commissioner to assess the claim. The chambers judge does not find it necessary to judicially review the refusal of the extension of time. (more…)

Posted: Wednesday, April 26, 2017

Court of Appeal Decision of the Week

Employment Law: “Express Oral Terms”; Standard of Review

Case: Aubrey v. Teck Highland Valley Copper Partnership, 2017 BCCA 144 (CanLII)

Keywords: Employment Contract; Oral Term; Severance Package; Objective Assessment


The Appellant, Teck Highland Valley Copper Partnership (“HVC”), operates a large copper mine near Logan Lake, Brit111ish Columbia. In 1993, the Respondent, Mr. Aubrey is hired in a staff position as supervisor. Following a discussion with HVC’s human resources department, Mr. Aubrey understands that, upon retirement, he is entitled to receive one month’s pay for every year of service up to a maximum of 18 months.

Mr. Aubrey retires in July 2012 and HVC refuses to provide the package. An action is brought for damages for breach of the employment contract. The Trial Judge allows the claim, awarding damages of $176,250. For the Trial Judge, Mr. Aubrey’s understanding/recollection of the discussion with HVC’s human resources department provided evidence of an express oral term in the employment agreement. (more…)

Posted: Wednesday, April 19, 2017

Court of Appeal Decision of the Week

Lacking Jurisdiction: Can a Court of Appeal Determine a Matter (Novel Cause of Action) Arising from in Chambers Negotiation?

Case: Abridean International Inc. v Bidgood, 2017 NSCA 25 (CanLII)

Keywords: Chambers Judge; Jurisdiction; Motion in Chambers; Enforceable Contract


The Nova Scotia Labour Board awards the Applicant, Mr. Bidgood, a substantial sum of money following termination of his employment. Mr. Bidgood’s former employer appeals, arguing the Labour Board lacked jurisdiction to provide the award.

Negotiations occur between the parties. The Court of Appeal is informed an agreement in principle has been reached. Mr. Bidgood claims a deal is made. The appellants disagree. The Applicant, Mr. Bidgood, brings a motion (in chambers) to enforce the alleged settlement agreement.

Bryson J.A. raises the question of jurisdiction to resolve the matter, and dismisses the Applicant’s motion. The issue discloses a new cause of action, justiciable in the Supreme Court of Nova Scotia. (more…)

Posted: Tuesday, April 11, 2017