Sunday, November 13, 2011

This Week at the Ontario Court of Appeal: 11-11-11

Each Week Wise Blog analyzes recent decisions from the Ontario Court of Appeal.

Children's Aid Society of the Regional Municipality of Waterloo v. C.A.D.

This case concerned an appeal from the order of Crown wardship without access granted by the Ontario Court of Justice on summary judgment. An order of Crown wardship without access has the effect of terminating parental rights making the child eligible for adoption.

The paternity of the child was unclear when she was born. She was initially in the care of the mother, until the child was apprehended by the Children's Aid Society (the "Society") in 2008 from a person with whom the mother had placed the child, when the mother because unabile to care for the child. The appellant was confirmed as the father by DNA testing. The Society had concerns about the appellant's health, as records they received indicated that the he had a history of head trauma resulting from significant physical abuse by his father, abuse of prescription drugs and regular use of marijuana. The Society advised the appellant of the actions he needed to take to address those concerns.

An order was made on March 25, 2009, making the child a Society ward for a four month period. The Society's summary judgment motion for an order of Crown wardship without access was heard by Hardman J. The appellant's opposed the motion and sought placement of the child in his care. In granting the order for summary judgment, Hardman J. asserted that the appellant had little community or family supports, had not provided medical information to explain his blackouts, failed to complete counselling and parenting programs suggested by the Society and continued to use marijuana regularly. The father appealed the decision.

The Court dismissed the appellant's claim that there were factual issues that necessitated a trial. Further, the Court rejected new evidence introduced by the appellant since the order by Harman J. Namely, that he married his girlfriend and and became a new father.  The Court noted that the fresh evidence demonstrated that the appellant  made progress as a father but the key issue remained that this new evidence failed to show that he had developed insight into his deficiencies. Moreover, since May 31, 2010, the child has been with a family who wished to adopt her and the adoption had been approved pending the outcome of these legal proceedings. The Court stated that the relationship that the father developed with the child during his supervised biweekly visits from late 2008 to May 14, 2010 gave the child an opportunity to form a connection with the father, but not enough to cultivate a deep relationship.  The Court held that it was in the child's best interests that she remained with the family she had been residing with.

Attis v. Ontario

The focus of this case was an appeal by Legge & Legge, Barristers and Solicitors ("the firm") from the order of Cullity J on September 10, 2010. Cullity J. ordered the firm to indemnify the plaintiffs for costs awards previously made in this action, including costs awarded to the Attorney General  (AG) of Canada in a previous appeal to the Court (sum of $40,000) as well as costs of an unsuccessful application for leave to the Supreme Court of Canada ($1,086.10). At no point did the AG request that these costs be borne by the appellants.

In November 2009, the AG brought a motion before Cullity J. seeking to reopen the issue of costs, and requested that the costs awarded to the AG throughout become the responsibility of the appellants.  The motions court held that the plaintiffs had not authorized the appellants to bring the action. because they were not properly advised as to their potential exposure to costs. At the hearing, Cullity J. agreed with the appellants that he lacked jurisdiction.  However, he adjourned the motion sine die in order to give the AG the opportunity to amend its motion in order to proceed under Rule 15.02(a) of the Rules of Civil Procedure, O. Reg. 575/07.

Rule 15 is designed to terminate proceedings where a named plaintiff has not authorized commencement. The appellant court found that, without doubt, the proceedings were commenced with the plaintiff's authority.  Th Court stated that it is for the aggrieved party to take steps if there is any issue regarding legal advice received before conferring that authority. The plaintiff Attis took these steps, as she commenced proceedings in negligence against the appellant, seeking damages of $250,000.

The Court agreed with the appellant's assertion that the motions judge misapplied the law of breach of warranty of authority. Cullity J. ordered the appellants to pay the respondent's costs for "breach of their implied warranty of authority". The Court noted that since Ms. Attis and Ms. Tesluk were destitute, even if they provided had authority to Mr. Legge and lost, the Respondent would not have been able to recover the costs from them.  Moreover, the Court noted that awarding costs to the AG would have the effect of putting the AG in a better position than if the action proceeded with authority and failed.

Additionally, the appellants claimed that the procedures adopted by Cullity J. were unfair and that they created unnecessary multiplicity of proceedings.  The Court concurred with the appellants that Cullity J.'s ruling led to a multiplicity of legal proceedings, which should preferably have been avoided.  The motions judge was aware of Ms. Attis' civil proceeding and the almost identical relief sought and thus should have directed the action to proceed.  This would have engaged all the routine pre-trial mechanisms.

For the foregoing reasons, the Court allowed the appeal and set aside the order of Cullity J.
- Alim Ramji, Toronto
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