In Lam v University of Western Ontario, 2019 ONCA 82, the Ontario Court of Appeal reiterated that courts have jurisdiction over claims for damages for breach of contract and tort even when the claims arose out of an academic dispute. Judicial History After commencement of the action by the student, the university brought a motion for summary judgment. The principal basis for the motion was that the student’s claim related to the university’s decisions about teaching, mentoring, supervising and administering its Ph.D. program and therefore to matters that are “purely academic in nature” [para 22]. The motion judge granted summary judgment dismissing the action. The motion judge held that academic issues must be distinguished from legal issues when reviewing a university’s conduct, and that academic issues are to be resolved by the university’s internal process, subject to judicial review [para 23]. In reversing the motion judge’s decision, the Court of … Read More
Irreparable Harm for Injunctive Relief Determined by Court, Not Agreement
In dismissing a motion for an interlocutory injunction, the Ontario Superior Court in Homestead House Paint Co. Inc. v Jamieson, 2019 ONSC 2660 (“Homestead”), recently reiterated that a clause deeming a breach to cause irreparable harm does not displace the courts’ exclusive role to determine whether injunctive relief is appropriate and whether or not irreparable harm has been established. The RJR MacDonald Test In RJR-MacDonald v Canada (AG), 1994 SCC 117, the Supreme Court of Canada established the well-known test for an interlocutory injunction. The moving party is required to prove that: There is a serious issue to be tried; That the moving party will suffer irreparable harm if the relief is not granted; and The balance of convenience favours granting the injunction. Irreparable Harm Irreparable harm is defined as harm that “cannot be quantified in monetary terms or which cannot be cured” [RJR-Macdonald]. In Homestead, the moving party argued … Read More
Determining a “Series of Incidents” under Ontario’s Human Rights Code
The recent decision in Martin v Trinity United Church, 2019 HRTO 726 highlights limitation periods and the applicable factors to determine what constitutes a “series of incidents” under Ontario’s Human Rights Code (“Code”). Limitation Period under Ontario’s Code Section 34 of the Code provides that a person who believes that his or her rights under Part I of the Code have been infringed must apply to the Tribunal: (a) Within one year after the incident to which the application relates; or (b) If there was a series of incidents, within one year after the last incident in the series. Late applications are allowed if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay. Determining a “Series of Incidents” In order to establish that discrimination constituted a “series of incidents,” there must be a connection … Read More
Obiter or Not? A Refresher from the Ontario Court of Appeal
The recent case of The Catalyst Capital Group Inc. v VimpelCom Ltd., 2019 ONCA 354 [Catalyst], serves as a reminder that a court’s finding will not be considered obiter simply because there was another sufficient basis for the court’s decision. The Rule of Precedent The rule of precedent requires that courts render decisions that are consistent with the previous decisions of higher courts [Canada (AG) v Bedford, 2012 ONCA 186]. There are several well-known rationales for the rule: it promotes consistency, certainty and practicability in the law, sound judicial administration, and it enhances the legitimacy and acceptability of the common law [David Polowin Real Estate Ltd. v Dominion of Canada General Insurance Co., 2005 ONCA 21093]. Ratio vs Obiter The traditional dichotomy of ratio decidendi (“ratio”) and obiter dicta (“obiter”) is important for the scope of the rule. Only the ratio is binding on a subsequent court. Ratio refers to … Read More
Court Considers Nuisance Test for Neighbours’ Tree in Allen v MacDougall
In the recent case of Allen v MacDougall, 2019 ONSC 1939, a neighbour applied for a court order authorizing the destruction of a maple tree growing amid two Toronto properties. The Ontario Superior Court refused. In its decision, the Court clarified the applicable test for nuisance and confirmed that “the tendency of courts today is that trees are not lightly ordered removed on the basis of being a nuisance.” Facts The large maple tree sat jointly on the land of two neighbours. According to s. 10(2) of The Forestry Act (“Act”), the maple is therefore owned by both neighbours: “Every tree whose trunk is growing on the boundary between adjoining lands is the common property of the owners of the adjoining lands.” The Applicants, as part of their home renovations and extensions, wanted the tree chopped down. The Applicants claimed that their intended home addition on the north side of … Read More
Court Finds Waterfront Cottage Sufficiently Unique for Specific Performance
In Carr v Rivet, 2019 ONSC 1546, the Ontario Superior Court recently dismissed a motion to discharge a certificate of pending litigation (“CPL”). In doing so, the Court held that a waterfront cottage on Talon Lake was sufficiently unique to form the basis of a claim for specific performance. Importantly, in addition to finding that the particular cottage was specifically unique to the plaintiffs, the Court noted that most waterfront properties are, by their nature, unique. Unlike mass-produced properties, each waterfront property possesses different exposure and other water-related features that make it unique. Facts The day after their real estate transaction was supposed to close, the Plaintiffs commenced an action seeking specific performance. Subsequently, the Plaintiffs successfully brought an ex parte motion to register a CPL against the property. The Defendant then moved to discharge the CPL arguing, among other things, that the property was not sufficiently unique to support … Read More
Court Clarifies “Clean Hands” Doctrine Applies to Post-Breach Conduct
In 232702 Ontario v 1305 Dundas, 2019 ONSC 1885, the Ontario Superior Court of Justice recently considered the “clean hands” doctrine in the context of a terminated commercial lease for non-payment of rent. Importantly, the Court clarified that the doctrine of “clean hands” is not restricted to conduct occurring prior to the breach, but encompasses subsequent conduct as well. The Test for Relief from Forfeiture Under s. 98 of the Courts of Justice Act and s. 20 of the Commercial Tenancies Act, a court may grant relief from forfeiture, including forfeiture of a lease for non-payment of rent. The court’s power to relieve from forfeiture is an equitable remedy. It is discretionary, fact-specific and granted sparingly. The party seeking relief must prove that enforcing the contractual right would lead to inequitable consequences. In Saskatchewan River Bungalows Ltd. v Maritime Life Assurance Co., the Supreme Court of Canada held that a … Read More
Discrimination under Ontario’s Human Rights Code is Restricted to Enumerated Grounds: A Reminder in Stukanov v Paypal Canada Inc.
A recent decision of the Human Rights Tribunal of Ontario (“HRTO”) serves as a reminder that grounds for discrimination under Ontario’s Human Rights Code (“Code”) are restricted to those enumerated in the Code. Analogous grounds are not prohibited. In Stukanov v Paypal Canada Inc., 2019 HRTO 386, the HRTO dismissed an application alleging that Paypal discriminated against Canadian residents. Facts The applicant wanted to close his U.S. dollar account with Paypal and have the account money sent to him in U.S. dollars, either by cheque or by direct deposit into his U.S. dollar account at his Toronto bank. Paypal, apparently, would not send a cheque to Canada, and would only deposit money into a Canadian dollar account when sending money to a bank located in Canada. The applicant’s primary allegation was that he cannot receive his Paypal funds in U.S. dollars because he is a Canadian resident. He claimed that … Read More
Arbitration Clauses Enforced as Non-Consumers Ejected from Telus Class Action by Supreme Court of Canada
In Telus Communications Inc. v Wellman, 2019 SCC 19, the Supreme Court of Canada has favoured arbitration clauses in staying the claims of non-consumers in a class action against TELUS. The Court’s decision reflects a continued commitment of courts to taking a hands-off approach in upholding valid arbitration agreements, while its citation of the Ontario Court of Appeal’s Uber decision indicates that other routes – such as unconscionability – may be pursued to challenge specific arbitration clauses. Facts A proposed class action was filed in Ontario alleging that TELUS had for a number of years rounded up calls to the next minute without telling customers. The class included both consumers and non-consumers (business customers). Each individually agreed to the same non-negotiable standard form contract. The contract included an arbitration clause requiring all disputes (other than collection of accounts by TELUS) to be mediated, and failing that, arbitrated. Ontario’s Consumer Protection … Read More
Ontario Court of Appeal: There is No Common Law Tort of Harassment
Merrifield v Canada (Attorney General), 2019 ONCA 205 is the first case in which a Canadian appellate court has been required to determine whether a common law tort of harassment exists. The Ontario Court of Appeal has decided that it does not. Ontario Superior Court of Justice Relying on four trial-level decisions, the trial judge held that the tort of harassment exists as a cause-of-action in Ontario and that the elements of the tort are: Outrageous conduct; Intention to cause, or reckless disregard for causing, emotional distress; Suffering of severe or extreme emotional distress; and The outrageous conduct is the actual and proximate cause of the emotional distress. Ontario Court of Appeal The Ontario Court of Appeal held that, in sum, the four trial-level decisions assume rather than establish the existence of the tort or its elements. Contrasting the case at bar with Jones v Tsige, which recognized a new … Read More
Tests for Intentional Infliction of Mental Suffering and Constructive Dismissal clarified by the Ontario Court of Appeal in Colistro v Tbaytel
In Colistro v Tbaytel, 2019 ONCA 197, the Ontario Court of Appeal recently dismissed an appeal and cross-appeal in an employment dispute. Appeal: Intentional Infliction of Emotional Suffering In the appeal, the Ontario Court of Appeal confirmed that three elements comprise the tort of intentional infliction of mental suffering: Flagrant or outrageous conduct; Calculated to produce harm; and Resulting in a visible and provable illness. Objective vs Subjective Following its earlier decisions in Prinzo v Baycrest Centre for Geriatric Care and Piresferreira v Ayotte, the Ontario Court of Appeal held that the first and third element are objective, while the second is subjective. The Court held that the second element requires the plaintiff to prove that “the defendant must have intended to produce the kind of harm that occurred or have known that it was almost certain to occur” [Boucher v Wal-Mart Canada Corp.]. It is insufficient to show only … Read More
Employee or Not? An Uber Problem to be Decided by Ontario Courts: Arbitration Not the Route
In its first reported decision of the year, the Ontario Court of Appeal has allowed a proposed class action against Uber to proceed in Ontario court. Facts The Appellant commenced a proposed class action in January 2017. They sought, among other things, a declaration that Uber drivers are employees of Uber and governed by Ontario’s Employment Standards Act [“ESA”], as well as $400 million in damages payable to the class for alleged Uber violations of ESA provisions. Prior to certification, Uber brought a motion to stay the proceeding, requesting the court to enforce a clause in the agreement that requires all disputes to be arbitrated in Amsterdam according to the law of the Netherlands. Ontario Superior Court of Justice The motion judge held that the arbitration clause was enforceable and stayed the action. Applying the Supreme Court of Canada’s Seidel decision and the Ontario Court of Appeal’s TELUS ruling, the motion … Read More
Waivers of Liability Enforced in Schnarr v Blue Mountain Resorts Ltd.
What happens when statutes collide? In Schnarr v Blue Mountain Resorts Limited, the Ontario Court of Appeal was recently asked to bar a negligence suit by enforcing waivers of liability signed by skiers visiting a ski resort. The issues in the case clustered around the dual application of both the Occupiers’ Liability Act (“OLA“) and the Consumer Protection Act (“CPA“) to agreements between skiers and ski resorts. As an occupier of premises, ski resorts are subject to the OLA. To encourage landowners to make their property available for recreational activities, the OLA allows for landowners to limit their liability through waivers of liability. However, as a consumer agreement, these ski resort contracts are also governed by the CPA. The CPA requires services supplied under a consumer agreement to be of a reasonably acceptable quality and deems waivers purporting to limit resultant liability to be void. The concurrent governance of the OLA and … Read More
Liability Possibilities for Third-Party Privacy Invasions in Agnew-Americano v Equifax Canada
A company learns its cybersecurity is vulnerable to hacking but fails to implement preventative measures. Hackers attack and access the private data of clients. Can these clients sue the company for the tort of privacy invasion (“intrusion upon seclusion”) or can the company escape liability because it has only allowed a third-party invasion? The question turns on the definition of invasion. As held in the leading case of Jones v Tsige, the tort of intrusion upon seclusion consists of three elements: Intentional or reckless conduct; That invades the defendant’s privacy; and The invasion must reasonably be regarded as highly offensive causing distress, humiliation or anguish. Does allowance of a third-party invasion meet the second requirement? In deciding which of two actions should proceed as a class action in Ontario, the Court in Agnew-Americano v Equifax Canada expressed preliminary support favouring the possibility of liability for third-party invasions. The Court held claims that … Read More
An Uber Quick Ride in Oshawa (City) v Greaves
What is the definition of a taxi ride? A version of this question recently arrived at the Ontario Court of Justice in Oshawa (City) v Greaves. An Oshawa by-law makes it illegal to operate a taxicab without a valid license. Last year, as part of a project concerning unlicensed taxicabs, a municipal by-law officer ordered an Uber in Oshawa. When the Uber arrived at the requested location, the driver found himself collecting a by-law infraction charge instead of a waiting passenger. On appeal before the Ontario Court of Justice, counsel for the driver argued that the driver did not illegally operate a taxicab because no taxi ride occurred. Nonetheless, the Court upheld the by-law charge. The Court relied on the standard approach to statutory interpretation, which reads a statute by its “grammatical and ordinary sense” in light of the broader objectives and intentions of the legislation. Central to the Court’s … Read More