Friday, February 11, 2011

This Week At the Ontario Court of Appeal: 11-02-11

Each week Wise Law Blog will review recent decisions from the Ontario Court of Appeal.

Abou-Elmaati v. Canada (Attorney General). Mr. Abou-Elmaati was imprisoned and tortured in Syria, ultimately issuing a false confession under torture which led to the wrongful imprisonment and torture of Maher Arar. Mr. Abou-Elmaati launched suit against the Canadian government in Superior Court, arguing that the Canadian government was complicit in his torture. However, after accidentally disclosing a document that they had not intended to disclose, Canada requested that Mr. Abou-Elmaati return the document.

He refused, and moved in court that the government produce documents without redaction. The Canadian government immediately argued that section 38 of the Canada Evidence Act conferred exclusive jurisdiction on the federal courts to review and rule on Canada's claims for privileging evidence on the grounds of national security. The court dismissed the motion, but declared that where a claim is made to enforce the constitution in a civil proceeding, to the extent that section 38 of the Act precludes a Superior Court judge from reviewing a claim of Crown privilege, it is of no force or effect. The Canadian government appealed that declaration and the respondents cross-appealed the dismissal of their motion.

The Court of Appeal felt that the judge's declaration regarding section 38 of the Act was unnecessary, as the record in the case dealt only with pre-trial discovery. Privilege issues would therefore be dealt with by the federal courts, since they have jurisdiction in this instance. The Court also felt that the judge lacked a concrete factual situation on which to base his decision and that therefore the declaration was premature. Therefore they dismissed that part of the decision.

As to the respondents, the Court stated that since the federal court had undertaken a judicial assessment of the Canadian government's claims for withholding evidence based on the public interest and since Mr. Abou-Elmaati had apparently accepted this assessment as having been a fair one, that there was therefore little to no practical difference between delegating disclosure issues to the federal courts as opposed to a master in the provincial court system, and dismissed their cross-appeal accordingly. Read-the-whole-case rating: 2.

Lawless v. Anderson. Ms. Lawless was operated upon by Mr. Anderson, a cosmetic surgeon, to have her breasts enlarged. Ms. Lawless came to believe that the operation was botched, and sought the advice of a plastic surgeon who regularly acted in a capacity as a medical/legal expert in his field. That expert informed her that she had indeed been the victim of malpractice. Ms. Lawless retained counsel on the expert's advice, but her lawyer suggested that she refrain from initiating an action until she had a written expert opinion from someone who had seen her charts.

After some difficulty, Ms. Lawless managed to have the expert plastic surgeon review her charts, and he issued an email confirming his earlier opinion. Ms. Lawless' lawyer still felt this was insufficient basis to begin an action, and Ms. Lawless did not initiate action until consulting with a second expert who wrote a full report approximately twenty months after her first consult with the first expert. Counsel for Mr. Anderson then moved to dismiss the suit on the basis that her limitation period had expired, arguing that the date of discovery of harm was when Ms. Lawless had first consulted with the first expert; Ms. Lawless argued that she had discovered the harm when she received a written opinion from the second expert, which would have put her within her limitation period. The court agreed with Mr. Anderson and dismissed the action. Ms. Lawless appealed.

The Court of Appeal dismissed Ms. Lawless' appeal. They stated that the test for whether a person has discovered harm is whether the prospective plaintiff knows enough facts on which to base an action against the defendant; once that is the case, the limitation period begins. In medical cases, often it is the case that a layperson will not know they have been harmed until medical experts have formally explained the harm to them.

However, in this case, the Court felt that once Ms. Lawless had consulted initially with the first expert, she knew enough: namely, that her breasts were disfigured, the nature of the errors that led to this disfigurement, that she would need corrective surgery, and that the expert felt she should both complain to the College of Physicians and Surgeons of Ontario and consult counsel about a possible malpractice action. The later opinions given to her by both experts had no new information that would have changed this decision, and since the information given to her was in the Court's opinion enough for her to reasonably launch an action, they set the limitation date running from that point. Read-the-whole-case rating: 3.5 since this seems a somewhat important precedent for medical tort limitations.

Thibodeau v. Thibodeau. A lengthy separation and divorce proceeding between the Thibodeaus eventually came to arbitration. The arbitrator ordered Mr. Thibodeau to make an equalization payment and a lump sum payment for overdue spousal support to his wife, as well as a costs award payment, and that the jointly owned matrimonial home be sold so that the husband could afford these payments. Soon after the arbitration decision, Mr. Thibodeau declared bankruptcy. Mrs. Thibodeau then brought an application for enforcement of the arbitration awards under the Family Law Act.

The judge ordered that Ms. Thibodeau's claim on her husband's assets had priority over other creditors, and that the balance of Mr. Thibodeau's RRSP should be transferred to his ex-wife. The Bank of Nova Scotia, another of Mr. Thibodeau's creditors, appealed the order. On appeal Mrs. Thibodeau's counsel argued that the order was correct for one of four potential reasons: that the award effected a division of property which predated the bankruptcy and therefore Mr. Thibodeau had no property rights in the total sale proceeds at date of bankruptcy, that the effect of the award was to impose an equitable trust on the proceeds, that Mr. Thibodeau's obligation to pay the monies out of a specific fund imposed an equitable lien or assignment on the sale proceeds, and that the trustee and the bank stepped into Mr. Thibodeau's shoes and could not abandon his obligation to direct the sale proceeds to Mrs. Thibodeau. As to the RRSP, Mrs. Thibodeau suggested that it was exempt from the bankruptcy proceeding.

The Court of Appeal disagreed. In regards to the RRSP, they agreed that it was exempt from the bankruptcy, but that there was no specific disposition of it granted in arbitration and neither did Mrs. Thibodeau make claim to it, and that therefore the motion judge had exceeded her mandate by granting relief that had not been claimed.

As to the priority claim on assets, the Court also disagreed. They felt that since the proceeds of the home were to be shared equally before the husband made his payments to the wife, that therefore the purpose of the sale was not to provide payment to the wife first and foremost. They also dismissed the equitable trust argument, since the arbitrator had the power under the Family Law Act to create an award of that nature and had not done so, and to retroactively find equitable trust in this instance would both be unfair to other creditors and to suggest that all arbitration awards were de facto equitable trusts. They dismissed the equitable lien/assignment argument much on the same basis, and finally felt that the argument that the bank now bore Mr. Thibodeau's obligations to direct sale proceeds was simply a restatement of the equitable trust argument which they already considered flawed. Read-the-whole-case rating: 3.

- Christopher Bird, Toronto
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