This Week In The Ontario Court of Appeal: 10-10-29

Each week at Wise Law Blog, we review the week's decisions from the Ontario Court of Appeal.

Amato v. Pesek. An appeal on a personal injury case, where the appellants' primary complaint was about the conduct of the judge, who asked questions of a witness that the appellants argued were designed to enhance the complainant's credibility. The Court of Appeal disagreed, finding that the judge's questions were "non-leading in nature and largely non-confrontational." The Court also noted that defence counsel did not object to the judge's questions while they were being made and that at other times defence counsel had not been reticent about objection. Lesson to take from this case: if you think you're going to pursue an appeal based on judicial impropriety, make sure you lay your groundwork early. Read-the-whole-case rating (out of 5): 2.

Echo Energy Canada v. Lenczner Slaght Royce Griffin LLP. A lengthy appeal about legal billing where the appellant client sued Lenczner Slaght Royce Griffin, Voorheis and Co. LLP (hired by Lenzcner Slaght) and McCarthy Tétrault LLP, accusing them of spending recklessly on the appellant's behalf. Echo Energy had retained the firms prior to a changeup of the Board of Directors, where individuals whose opposition to the previous Board regime could be described as "contentious" took control of the Board. They then sued the law firms, which had been retained to defend against lawsuits launched by those individuals. The trial judge was equally unimpressed with all members of the Board and suggested that sophisticated businessmen should expect that hiring large Toronto corporate law firms would result in large legal bills, finding for the defendant firms.

At appeal, the OCA reversed the decision with respect to Lenczner Slaght and Voorheis (hired by Lenczner Slaght) but not with respect to McCarthys, stating that the trial judge had improperly considered the situation from a lawyer-centric position rather than a client-centric one, and that there was evidence that the previous Board regime had both spent profligately on legal counsel in an attempt to maintain control and had not adequately supervised the spending of counsel. The fact that Lenczner Slaght's retainer agreement did not cover all of the work they did for the firm - and that Voorheis worked without retainer - also led to the OCA's reversal of the decision. Read-the-whole-case rating: 4 if you work in corporate law or otherwise have an interest in billing issues, 2 if not.

Peterborough (City) v. Kawartha Native Housing Society. The Housing Society is a corporation created by the provincial government for the purpose of operating affordable rental housing for the Aboriginal community. It was subsequently ordered into receivership after an application by the Ministry of Housing, which alleged that the corporation was in breach of its operating agreement. The Society retained counsel fter the order was made, both to contest an extension of the order and, as well, to provide general corporate legal advice.

When the Society claimed legal costs, the trial judge found that based on the operating agreement of the Society, it had no right to retain counsel, and that ultimately the counsel were operating in the best interests of the Board of Directors, rather than the interests of the corporation itself. The trial judge allowed $15,000 in costs, nonetheless, on the basis of fairness - a little less than one-fifth of the Society's total legal costs.

The OCA disagreed with the trial judge, stating that nothing in the operating agreement prevented the Society from retaining counsel, and that only an interpretation of that agreement allowed the argument that counsel were operating for the Board rather than for the corporation (noting that counsel had been helpful and cooperative throughout the litigation process). He reversed the decision, allowing the Society to seek costs. Read-the-whole-case rating: 2.5.

R. v. Jeanvenne. An appeal on a double murder where the appellant defendant wanted the two murders with which he was charged severed iand tried as two separate criminal actions. The two murders occured 17 years apart and were wildly disparate: the earlier was characterized as an "assisted suicide" (albeit with a shotgun); the latter was a violent killing involving 18 stab wounds and a shooting. The trial judge refused to sever the two charges and Mr. Jeanvenne was convicted on both counts.

The OCA overturned the decision, severed the proceedings and ordered two new trials. The Court was critical of the trial judge's reluctance to sever, given an absence of similar fact evidence and given the weight of precedent to the contrary. The Court also stated at some length that criminal trials - and especially criminal trials for murder - must have a higher standard for joinder. The Court held that

the ability of the jury to deliver a fair verdict on each charge was compromised by

evidence of bad character received at trial that was relevant to only one of the charges, and where witnesses who were concerned with only one of the charges gave character evidence in connection with the other, unrelated charge. Read-the-wh0le-case rating: 4.5. Very "Law and Order," in a good way. (There's even a sting operation called "the Mr. Big Operation.")

- Christopher Bird, Toronto

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