Law Times

Law Times • November 19, 2018 Page 19 www.lawtimesnews.com Construction Law CONTRACTS Breach of terms of contract New circumstances gave rise to possibility of additional defences Plaintiffs brought motion to strike amended defences to crossclaims delivered by co-defendants, GM and P Group ("defendants by crossclaim"). Motion dismissed. It was entirely reasonable to amend defences to crossclaims. New circumstances gave rise to possi- bility of additional defences and more facts were known than were apparent at time of original plead- ings. Whereas the focus originally was in jointly defeating plaintiff 's inf lated claim for damages, focus of litigation was now entirely on claims for indemnity and contri- bution. Scaffidi-Argentina v. Tega Homes Developments Inc. (2018), 2018 CarswellOnt 11303, 2018 ONSC 4274, Calum Ma- cLeod J. (Ont. S.C.J.). Evidence OPINION Experts Testimony by expert on issue of causation or whether there was breach of standard of care was not permissible Plaintiff commenced action against defendant orthopedic surgeon for medical malpractice. Plaintiff claimed ulnar nerve was damaged by defendant during arthroscopy of plaintiff\s elbow. Plaintiff required further surgery and was left with ongoing defi- cits. Plaintiff 's expert P was criti- cal of care and treatment provid- ed by defendant during surgery. P opined that care ant treatment fell below standard of care. De- fendant claimed plaintiff was not entitled to elicit opinion on causation from P as there was no opinion on causation expressed in P's reports. Defendant also objected to P providing opinion on whether breach of standard of care occurred during plaintiff 's first attendance with defendant because opinion was not ex- pressly stated in reports. Defen- dant brought motion to limit P's testimony. Motion granted. P was retained by plaintiff to pro- vide opinion on breach of stan- dard of care by defendant but P did not expressly set out opinion on causation in reports. It was open to P, if requested by counsel for the plaintiff, to offer views on issue of causation and specifical- ly address opinion of defendant's expert. P did not do so in reports and it would be unfair to allow P to provide opinion for first time during examination in chief. P also failed to articulate in reports that there was breach of standard of care on plaintiff 's first visit with defendant. Testimony by P on issue of causation or whether there was breach of the standard of care was not permissible. Peller v. Ogilvie-Harris (2018), 2018 CarswellOnt 11875, 2018 ONSC 725, Darla A. Wil- son J. (Ont. S.C.J.). Health Law MALPRACTICE Negligence Without establishing crucial link between breach and outcome, causation could not be established Plaintiff brought action against defendant doctors, plaintiff 's obstetrician and doctor on call at hospital who delivered baby R by emergency Caesarian sec- tion, alleging negligence in management of her pregnancy and delivery of R who was di- agnosed with hypotonic cere- bral palsy and was profoundly disabled. Jury found that both defendants fell below standard of care, and that their breach caused R's brain damage. De- fendants brought motion for order that judge refuse to enter judgment in accordance with jury verdict. Motion granted. Trial judge had discretion to re- fuse to enter judgment in accor- dance with jury verdict, but that discretion was only exercised in very rare cases. It was open to jury to accept plaintiff 's expert evidence and find that R should have been delivered earlier, and that if she had been she would not have suffered brain dam- age. There was some evidence on which jury could have found causation, and verdict was not devoid of any evidentiary basis. As result of improper remarks made to jury by plaintiff 's so- licitor, charge included correct- ing instruction in which jury was told that to insert same answers for particulars of causa- tion as they did for particulars of breach of standard of care would be incorrect. Read in generous fashion, findings on causation demonstrated that jury ignored charge. Answers of jury on causation did not re- fer to expert evidence and did not explain causal link between negligence and brain damage. Jury's answers made it clear they did not follow reasoning pro- cess that was explained to them in charge, and they ignored in- struction that it would be incor- rect to insert same answers for causation as they did for breach of standard of care. Plaintiff 's solicitor's advice that it would be appropriate for jury to fill in answers on causation with same answers they inserted on questions for standard of care was incorrect in law, and it in- vited misunderstanding of legal concept of causation as it inti- mated that there was no appre- ciable difference between issue of standard of care and issue of causation. Causation was criti- cal issue for jury to determine, questions required jury to pro- vide clear and specific answers to how breach of standard of care caused R's brain damage, but jury failed to answer ques- tions and causation was not ex- plained. Without establishing crucial link between breach and outcome, causation could not be established. Causation issue was central issue at trial, answers provided were contrary to law, they did not explain causal link between negligence and result, judgment could not be entered in accordance with jury verdict, and new trial was ordered. Cheung v. Samra (2018), 2018 CarswellOnt 10260, 2018 ONSC 3480, Darla A. Wilson J. (Ont. S.C.J.). Municipal Law MUNICIPAL LIABILITY Negligence Reasonable grounds for arrest meant no liability could be found against other defendants Appellant husband and wife owned property, which they rented to university students. Property was not in compliance with fire code, but this was never communicated to husband and wife. Resident of property in- tentionally started fire, seriously injuring guest and injuring two other residents in property. Hus- band was criminally charged with arson by negligence. Pre- liminary inquiry found that hus- band lacked necessary mens rea to commit offence, due to action of city officials. Husband and wife brought action against city, fire and police boards, and indi- viduals for negligent investiga- tion and prosecution. Husband and wife also claimed damages, for violations of s. 7 Charter of Rights and Freedoms rights. Action was dismissed. Costs of $491,100 were awarded to de- fendants, $260,000 going to city defendants and $231,100 going to fire marshal employees. Hus- band and wife appealed from dismissal of action and costs award. Appeal dismissed. Police officer had reasonable and prob- able grounds to arrest husband and wife. Evidence available to officer indicated that husband and wife had likely violated fire codes. Only upon charging did officer find out that husband had control of premises. Reason- able grounds for arrest meant no liability could be found against other defendants. Payne v. Mak (2018), 2018 CarswellOnt 11261, 2018 ONCA 622, G.R. Strathy C.J.O., K. Feld- man J.A., and David Brown J.A. (Ont. C.A.); affirmed (2017), 2017 CarswellOnt 382, 2017 ONSC 243, T.A. Heeney R.S.J. (Ont. S.C.J.). Real Property LANDLORD AND TENANT Nature and elements of lease There was authority to make adjustment to allow credit for rent payments after landlord failed to close Motion judge granted tenant's motion for summary judgment on its action for specific perfor- mance of option to purchase in lease agreement. Tenant ap- pealed. Appeal allowed in part. Motion judge's order amended to ref lect $10,000 abatement in purchase price. Motion judge erred in finding there was no authority to make adjustment to allow credit for rent payments after landlord failed to close; however, there was inadequate record to calculate adjustment, so that ground of appeal failed. Motion judge erred in failing to adjust price to account for wast- ed legal expenses. Motion judge had authority to make this ad- justment and $10,000 was estab- lished on record and reasonable. McLaughlin v. Canadian Service Management Inc. (2018), 2018 CarswellOnt 16181, 2018 ONCA 799, C.W. Hou- rigan J.A., Miller J.A., and Trot- ter J.A. (Ont. C.A.); reversed (2018), 2018 CarswellOnt 4787, 2018 ONSC 1937, C.D. Braid J. (Ont. S.C.J.). Remedies DAMAGES Damages for breach of fiduciary duty Law firm breached contractual and fiduciary duties by accepting dealer retainer and failing to disclose conf lict During global financial crisis, Canadian automotive manufac- turer G Ltd. sought government financial assistance in order to avoid Companies' Creditors Arrangement Act (CCAA) pro- ceedings. G Ltd. offered wind down agreements (WDAs), to be accepted within six days, to certain vehicle dealers as part of restructuring plan required to secure government funding. Law firm CBB was retained by Industry Canada and certain dealers. CBB was also retained by another group of dealers. Dealer T Ltd. brought class ac- tion against G Ltd. and CBB. Tri- al judge held CBB breached con- tractual and fiduciary duties by accepting dealer retainer despite having agreed to act for Canada in relation to any G Ltd. CCAA proceedings and by failing to disclose conf lict to dealers. Trial judge awarded damages for deal- ers' loss of chance to negotiate collectively regarding WDAs. Damage award was upheld on appeal and issue of quantifica- tion of damages returned to trial judge. T Ltd. brought applica- tion for quantification of dam- ages. Application granted. Trial judge initially calculated damag- es owing in amount of $45 mil- lion. Court of Appeal reduced starting point for damages to amount of $36.9 million. Math- ematical approach proposed by CBB was adopted by trial judge on review. Final damages were based on how many, out of 181 dealers, were participation form dealers. As there were 141 par- ticipation form dealers, damages CBB owed damages in amount of $28,745,304. Trillium Motor World Ltd. v. Cassels Brock & Blackwell LLP (2018), 2018 CarswellOnt 16705, 2018 ONSC 5497, McE- wen J. (Ont. S.C.J.). Ontario Criminal Cases Criminal Law CHARTER OF RIGHTS AND FREEDOMS Right to be tried within reasonable time [s. 11(b)] Under Jordan framework for transitional cases, 24 1/2 month delay was reasonable While driving at high rate of speed down residential street after night of drinking, accused lost control of his vehicle and collided with tree. Accused and his passenger were injured as result of accident. Accused was convicted of dangerous driv- ing causing bodily harm, but was acquitted of impaired driv- ing causing bodily harm and driving with excessive alcohol causing bodily harm. Applying framework established in R. v. Morin, trial judge dismissed ac- cused's pre-trial application un- der s. 11(b) of Canadian Charter of Rights and Freedoms that he was denied his right to be tried within reasonable time. After trial, R. v. Jordan established new framework for s. 11(b) ap- plications, establishing pre- sumptive ceiling of 18 months' delay. Accused appealed convic- tion on basis that under Jordan framework, 31-month delay from laying of charges to trial was unreasonable and contrary to s. 11(b) of Charter. Appeal dismissed. This was transitional case to which Jordan frame- work applied. Trial judge prop- erly applied Morin framework, thoroughly analyzed each of its components, and concluded that overall delay was reason- able. Trial judge found about eight months of defence delay. Adjournment of first trial date was necessary because Crown did not disclose to defence un- til shortly before scheduled trial expert report that police had in their possession for two years. Negligence in late disclosure of report caused six-month delay which was attributed to Crown. Resulting net delay of 24 1/2 months under Jordan was rea- sonable and did not warrant stay of proceedings for this transi- tional case. Defence showed no interest in moving case along. Delay caused little prejudice to accused. Moderate complexity of case bore on reasonableness of delay. On trial judge's find- ing, institutional and Crown delay was 11 1/2 months, only slightly above Morin guideline. Under Jordan framework for transitional cases, 24 1/2 month delay was reasonable and did not deny accused his constitutional right to be tried within reason- able time. R. v. Pyrek (2017), 2017 Car- swellOnt 8930, 2017 ONCA 476, John Laskin J.A., David Watt J.A., and C.W. Hourigan J.A. (Ont. C.A.); affirmed (2015), 2015 CarswellOnt 8975, 2015 ONCJ 333, Paul F. Monahan J. (Ont. C.J.). CASELAW

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