Monday, May 02, 2011

This Week At The Ontario Court of Appeal: 11-04-29

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

Pate v. Galway-Cavendish (Township). Mr. Pate was dismissed without notice from his job as the Township's Chief Building Official - a job he had held for over nine years - when he was accused of failing to remit permit fees to the Township that were paid to him, and was further told that if he resigned immediately that the Township would not press charges.

Mr. Pate did not resign and charges were pressed: a year later he was acquitted of all charges and sued the Township for wrongful dismissal and malicious prosecution. At trial, the Township conceded a twelve-month notice period, and the trial judge then awarded Mr. Pate four additional months' worth of notice for Wallace damages, plus $75,000 for general and aggravated damages for intentional infliction of mental distress, $7,500 for special damages, and $25,000 for punitive damages. However, the trial judge did not find the Township liable to Mr. Pate for malicious prosecution.

Mr. Pate appealed, seeking to find the Township liable for malicious persecution and arguing that the trial judge also erred by assessing punitive damages in too low an amount.

The Court of Appeal first considered the issue of malicious prosecution, as by the test created in Nelles v. Ontario: proceedings initiated by the defendant, terminated in favour of the plaintiff, absence of reasonable and probable cause, and malice (or a primary purpose other than carrying the law into effect). The Court of Appeal felt that the trial judge set the threshold for proving malice too high in his reasons as he had concluded that he could not infer malice from the surrounding circumstances and from the absence of reasonable and probable cause (which absence he found present in this case).

Further, the trial judge in his reasons required Mr. Pate to establish that the Township "intended to subvert or abuse the criminal justice system," which is not a necessary element for proving malicious prosecution under the Nelles test. The Court stated that the trial judge had improperly assigned the standard for proving malicious prosecution of a Crown prosecutor (who enjoys a higher standard on the grounds of prosecutorial discretion) to the Township, which was instead a private individual.

The Court also noted that in awarding Mr. Pate aggravated damages, the trial judge had essentially admitted the presence of malice in the prosecution of Mr. Pate in his reasons. Finally, the Court found that the trial judge had also been mistaken when he suggested that the test for initiation failed. The trial judge had felt that police had initiated the prosecution with their laying of charges, but the Court pointed out that since the false evidence presented by an official of the Township was what caused the officers to lay charges, initiation therefore emanated from their actions instead.

In regards to the punitive damages, the Court again agreed with Mr. Pate. The trial judge had decided that the principles of proportionality required him to limit punitive damages to $25,000 (and stated that otherwise he would have "ordered more," which the Court took to refer to punitive damages). However, the Court pointed out that although proportionality is a key element of a proper punitive damages measure, the standard of review for punitive damages is whether a properly instructed and reasonable jury could have concluded that the amount was required to punish the defendant, and that in this case the $25,000 figure was too low to satisfy that requirement. The Court therefore ordered a new trial on both issues (malicious prosecution and quantum of punitive damages) with costs going to Mr. Pate. Read-the-whole-case rating: 3.

Degennaro v. Oakville Trafalgar Memorial Hospital. Ms. Degennaro was staying overnight at the hospital with her son, who was undergoing treatment, and was given a bed to sleep upon which was actually more of a folding chair. She sat on the edge of the bed to make a phone call, and the bed collapsed underneath her, causing her to injure her sacrum. Eventually the injury developed into fibromyalgia, causing Ms. Degennaro constant pain. At trial, the hospital was found liable for her injuries and she was awarded approximately $3 million, of which about $1.6 million was for costs of future care.

The hospital appealed on three grounds: that the trial judge improperly rejected the evidence of their medical experts, that he improperly concluded that it was foreseeable that Ms. Degennaro would develop fibromyalgia, and that the $1.6 million award for future care costs was not connected to the evidence presented at trial.

The Court of Appeal disagreed with the appellants' first two submissions. The trial judge gave less weight to the opinions of two experts called by the hospital beneath than those called by Ms. Degennaro on the basis that the hospital witnesses were not the Plaintiff's treating physicians, while her experts were. The appellants argued that the judge improperly disregarded their experts' opinions. The Court found that this was not the case; the hospital's expert witnesses' lack of bedside time with Ms. Degennaro was merely one factor considered by the trial judge in assessing the respective expert evidence of each side.

The Court also disagreed with the appellants' argument that damages flowing from the fibromyalgia were not foreseeable as the ailment developed four years after the accident and required an intervening secondary accident (a car crash) to develop, and were therefore too remote to demand recovery of damages. The Court stated that it was foreseeabe that chronic pain would result from a physical injury, and this was a classic thin-skull situation where the plaintiff's greater affliction from the injury did not inure the defendants from responsibility for her injuries.

However, in regard to the costs of the plaintiff's future care, the Court agreed with the defendant's appeal. The trial judge had relied upon two reports estimating Ms. Degenarro's future costs of living with her affliction; no testimony was led at trial addressing the needs for the items listed in these reports. The Court felt that this submission was merited, as there was no resolution as to the correctness of the documents contained within the reports from which the judge could use to then assist in making an accurate assessment of the plaintiff's future needs. Although the Court felt that there was clearly a need to clearly establish an amount for costs of future care, they were in agreement that the trial judge erred. Seeking to avoid the costs of an additional trial, thel Court of Appeal reduced Ms. Degennaro's award by approximately $375,000. Read-the-whole-case rating: 2.
- Christopher Bird, Toronto
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