New Tort of Family Violence Rejected at Court of Appeal In a decision highly anticipated by family law litigants and practitioners across the Province, the Ontario Court of Appeal has rejected the newly created tort of family violence. This novel tort was created last year in the precedent setting decision of Ahluwalia v Ahluwalia,[1] decided by Brampton judge, Justice Renu Mandhane. Justice Mandhane ordered that a man pay his former wife $150,000 in damages for years of physical, financial, and verbal abuse. The decision was appealed shortly thereafter. In her reasons released in July 2023, Justice M. L. Benotto of the Court of Appeal began her judgment by acknowledging the problem of intimate partner violence in Canadian society: Intimate partner violence is a pervasive social problem. It takes many forms, including physical violence, psychological abuse, financial abuse and intimidation. In Canada, nearly half of women and a third of men have experienced intimate partner violence and rates are on the rise.[1] What was once thought to be a private matter is now properly recognized for its widespread and intergenerational effects.[2] Statistics support this conclusion: in 2021, there were 127,082 victims of family violence who reported the crime to the police. However, as many incidents of such violence go unreported, the true number is likely much higher. Nevertheless, Justice Benotto concluded that the creation of a novel tort was unnecessary, as existing torts and remedies are sufficient to address the harms caused by intimate partner violence. Facts The parties married in India in 1999 and their first child was born 18 months later. In September 2001, the husband, immigrated to Canada. The wife and child arrived in Canada soon after in March 2002. The parties had their second child in 2004 and bought a home in Brampton in 2005. In July 2016, the couple separated. The parties’ children largely refused to see their father following the separation. The trial judge accepted the wife’s evidence that her husband was extremely abusive during their marriage. She recounted instances of physical violence, verbal abuse, financial threats and controlling behaviour. The husband was criminally charged in September 2021 with assault and uttering death threats against his former partner. The wife brought an action for statutory relief under the Divorce Act for divorce, child support, spousal support, and equalization of property, as well as a claim in tort for $100,000 in damages for the husband’s abusive conduct during their marriage. The Trial Decision Justice Mandhane agreed with the wife’s position that the Divorce Act did not go far enough in addressing the issue of family violence. In fact, the Act specifically prohibits courts from considering spousal misconduct in spousal support orders.[3] She maintained that “[t]he no fault nature of family law must give way where there are serious allegations of family violence that create independent, and actionable harms that cannot be compensated through an award of spousal support.”[4] The Creation of the Tort of Family Violence As a result, Justice Mandhane recognized a new tort of family violence. To establish liability under this new tort, the plaintiff must prove the existence of conduct by a family member, within the context of a family relationship, that: is intentionally violent or threatening; or constitutes a pattern of coercive and controlling behaviour; or causes the plaintiff to fear for their own safety or the safety of another.[5] Justice Mandhane emphasized that damages would be based on patterns of violence, not individual incidents, and that mere unhappy or dysfunctional relationships are insufficient. Damages Having accepted the wife’s evidence of her husband’s abusive conduct during their marriage, Justice Mandhane turned to damages. She awarded $150,000 to the wife in total, with $50,000 each for compensatory, aggravated, and punitive damages. Issues on Appeal The husband appealed Justice Mandhane’s decision. There were three main issues on appeal: Did the trial judge err in creating a new tort of family violence? Should the court recognize the narrower tort of coercive control? Did the trial judge err in assessing damages? The appellant objected to the recognition of the novel tort. He argued that it was poorly constructed, too easy to prove, would open the floodgates for claims, and would constitute a substantial change to the law that is best left to the legislature. In contrast, the respondent maintained that the creation of the novel tort was necessary to address the harm caused by family violence. In the alternative, if the new tort is too broad, she proposed a narrower tort of coercive control. (1) Did the Trial Judge Err in Creating the Tort of Family Violence? Justice Benotto concluded that Justice Mandhane did err in creating the tort of family violence. The common law changes slowly and incrementally, not quick and dramatically, and significant change is best left to the legislature to implement.[6] Moreover, novel torts will not be recognized in any of the following circumstances: where there are adequate alternative remedies; where the tort does not reflect and address a wrong visited on one person by another; or where the change to the legal system from the new tort would be indeterminate or substantial.[7] The first scenario posed the most problems for the tort of family violence. In the trial decision, Justice Mandhane argued that while some existing torts overlapped with the tort of family violence, they did not fully capture the cumulative harm of family violence: …existing torts do not fully capture the cumulative harm associated with the pattern of coercion and control that lays at the heart of family violence cases and which creates the conditions of fear and helplessness. These patterns can be cyclical and subtle, and often go beyond assault and battery to include complicated and prolonged psychological and financial abuse. These uniquely harmful aspects of family violence are not adequately captured in the existing torts. In general, the existing torts are focused on specific, harmful incidents, while the proposed tort of family violence is focused on long-term, harmful patterns of conduct that are designed to control or terrorize… In the context of damage assessment for family violence, it is the pattern of violence that must be compensated, not the individual incidents.[8] Justice Benotto disagreed. The appellant’s abusive conduct satisfied the requirements for the torts of battery, assault, and intentional infliction of emotional distress. Moreover, in determining the quantum of costs for such tortious conduct, courts have taken into account patterns of abusive behaviour. As such, there was no need to create a tort of family violence. (2) Should the Courts Recognize a Tort of Coercive Control? If the court would not recognize the tort of family violence, the respondent suggested a narrower tort of coercive control. Coercive control would include “emotional and psychological harm, financial abuse, social isolation, intentional damage to property, deprivation of necessities of life, or micro-regulation of daily activities.”[9] The respondent proposed that the tort of coercive control would not require proof of harm, but would be established if a person: (a) in an intimate relationship, (b) inflicted a pattern of coercive and controlling behaviour, and (c) which, cumulatively, was calculated to induce compliance, create fear and helplessness, or cause harm to the victim.[10] Justice Benotto rejected this submission. The tort of coercive control is highly similar to the existing tort of intentional infliction of emotion distress. Moreover, elimination of the requirement that the plaintiff show harm would constitute a substantial change to the law that would require legislative intervention. As such, the Court of Appeal declined to recognize a tort of coercive control. (3) Did the Trial Judge Err in Assessing Damages? While this case had major implications for the practice of family law in Ontario, it was much less impactful for the parties involved in terms of the damages. Justice Benotto upheld trial judge’s award of compensatory and aggravated damages in the amount of $100,000, due to the high degree of deference given to trial judges in awarding costs. However, she allowed the appeal in regards to the additional $50,000 for punitive damages. Justice Benotto pointed to the principles for awarding punitive damages established in Whiten v Pilot Insurance. In this case, the Supreme Court held that punitive damages were highly exceptional remedies and should only be awarded where compensatory damages are insufficient.[11] Here, the compensatory and aggravated damages, in the amount originally sought by the applicant, were sufficient to demonstrate the court’s disapproval of the appellant’s conduct. Conclusions While this decision eliminated one avenue of recourse for survivors of family violence in Ontario, it should not be viewed as a loss. The Court recognized the harm of family violence, the need for judicial condemnation of the offenders, and the need for compensation for the survivors. In dismissing the need for novel torts, the Court also affirmed the efficacy of existing torts like battery, assault, and intentional infliction of emotional distress in addressing family violence and highlighted to survivors the legal options available to them. If you have questions about your family law matter, please visit our website or contact Jillian C. Bowman from Devry Smith Frank LLP at 249-888-4639 or Jillian.Bowman@devrylaw.ca. This blog was co-authored by law student, Leslie Haddock. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” [1] 2022 ONSC 1303 [Ahluwalia, ONSC]. [2] 2023 ONCA 476 at para 1 [Ahluwalia, ONCA]. [3] Divorce Act, RSC 1985, c 3, s 15.2(5). [4] Ahluwalia, ONSC, supra note 1 at para 46. [5] Ibid at para 52. [6] Merrifield v Canada (Attorney General), 2019 ONCA 205 at paras 20-21. [7] Neysun Resources Ltd v Araya, 2020 SCC 5 at para 237. [8] Ahluwalia, ONSC, supra note 1 at para 54. [9] Ahluwalia, ONCA, supra note 2 at para 103. [10] Ibid at para 104. [11] Whiten v Pilot Insurance, 2002 SCC 18 at para 94. By Fauzan SiddiquiBlog, Family LawAugust 21, 2023August 9, 2023
Canada Announces Express Entry Invitations for Skilled STEM Immigrants François-Philippe Champagne, the Minister of Innovation, Science and Industry, on behalf of Sean Fraser, the Minister of Immigration, Refugees and Citizenship recently announced a new STEM round for the category-based selection in the Express Entry system which opened on July 5, 2023. As immigration accounts for nearly 100% of labour force growth in Canada, policy-makers hope that this will draw in talented candidates and address labour shortages in Canada’s science and technology sector. What is Express Entry? Express Entry is Canada’s online application management system for permanent residency applications for skilled workers. Three immigration programs are managed through Express Entry: Canada Experience Class Skilled workers with Canadian work experience are eligible for this class. You must: have at least one year of skilled work experience in Canada in the last three years before your application; and your work experience must have been gained while under temporary resident status with authorization to work. You are not eligible if: you’re a refugee claimant in Canada; you were working without authorization; or your work experience was gained while you did not have temporary resident status in Canada. Federal Skilled Worker Program Skilled workers with foreign work experience are eligible for this class. You must meet the minimum requirements for skilled work experience, language ability, and education. If so, Immigration Canada will assess your eligibility based on the following factors and assign you a score out of 100: age; education; work experience; the presence of a valid job offer; English or French language abilities; and adaptability to life in Canada. Federal Skilled Trades Program Skilled workers who are qualified in a skilled trade are eligible for this class. You must: meet the minimum language requirements; have at least two years of full-time paid work experience (or four years of part-time paid work experience) in a skilled trade in the past five years before you apply meet the job requirements for that skilled trade set out in the National Occupational Classification (besides a certificate of qualification); and have a valid job offer for full-time employment lasting a minimum of one year, or a certificate of qualification in that skilled trade issued by a Canadian federal, provincial, or territorial authority. If you are eligible under one of these programs and submit your profile to Express Entry, you’ll be ranked using the Comprehensive Ranking System (CRS). This points-based system assesses your profile and ranks it in the Express Entry pool where you’re compared to other candidates. To receive an invitation to apply, you must have a score above the minimum threshold for your round of invitations. Candidates with the highest scores are invited to apply and have sixty days to submit their applications. Most complete applications with supporting documentation are processed within six months. Category-Based Selection Earlier this year, on May 31, 2023, Minister Fraser announced the launch of a new category-based selection for the Express Entry system. This allows Canada to issue invitations to candidates with in-demand skills, training, or language abilities, to address Canadian labour shortage needs. When there is a category-based round of invitations, the top-ranking candidates in the Express Entry pool who fall into the selected category will be invited to apply for permanent residence. In 2023, category-based selection invitations will focus on candidates who fall under the following categories: strong French language proficiency; healthcare occupations; STEM occupations; trade occupations; transport occupations; and agriculture and agri-food occupations. Immigration Canada chooses these categories based on labour market data and projections and feedback received from provinces, territories, and other stakeholders in Canada. They will be responsible for reporting to Parliament on the categories chosen, the process of and reasons for choosing them, how the categories are established, and the number of invitations issued for each category. STEM Round for Category-Based Selection The STEM round in early July is the first of the new category-based selection invitations. It focuses on candidates that can drive growth and innovation within Canada’s science and technology sector, including data scientists, mathematicians, statisticians, actuaries, software developers and programmers, and electrical and electronics engineers. Minister Fraser says that: Canada’s ability to remain at the cutting edge of science, technology, engineering and mathematics depends largely on our country’s ability to recruit top talent from around the world. I’m excited to announce this STEM category-based selection round with my colleague, Minister Champagne, which will increase permanent residence for skilled workers with STEM experience. We look forward to welcoming these talented and innovative newcomers to our country. This announcement furthers Canada’s efforts in their recently announced Tech Talent Attraction Strategy. Here, Canada seeks to use immigration to meet their innovation priorities and secure their place as a world leader in new technologies. Other strategies include introducing new work permits for H-1B visa holders, a new Innovation Stream to the International Mobility Program, reducing backlogs for the start-up visa, a two week processing time for the Global Skills Strategy, and allowing digital nomads working remotely to work in Canada for up to six months with only visitor status. This is only the first of Canada’s new category-based selection round of invitations, which are scheduled to continue throughout the year. On July 7, 2023, the Minister of Official Languages, Ginette Petitpas Taylor, announced the first Francophone round of category-based selection. More details on these initiatives are set to be announced over the coming weeks. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. For more information about immigration and your specific circumstances, please contact a lawyer in our Immigration Law Group.” This blog was co-authored by law student, Leslie Haddock. By Fauzan SiddiquiBlog, ImmigrationAugust 7, 2023August 15, 2023
Understanding Islamic Wills and Inheritance Laws: A Guide for Muslims in Ontario A Will is a legal document that sets out an individual’s wishes and instructions regarding the distribution of their assets and the management of their affairs after their death. In Islam, the wealth of any individual is divided into two parts: Fara’id and the Wasiyyah. Fara’id represents two-thirds of the deceased’s property and must be divided as per the Shari’a (Islamic Laws). The Wasiyyah is a part of your Will that you are free to allocate any way you see fit. Muslims have a religious obligation whilst alive to ensure their property will be distributed according to Islamic law and ensure certain responsibilities be carried out after their death. In Ontario, if a person dies without a Will, Islamic or otherwise, his or her property will be divided according to the rules set out in the Succession Law Reform Act. Our blog outlining the requirements for a valid Will in Ontario (Formal or Holographic) can be found here. Similar to a secular Will, an Islamic Will includes the following provisions: Appointing an executor to manage your estate and distribute your estate after death; Appointing a guardian to care for your children and manage their inheritance until they reach adulthood; leaving assets from your estate to charitable causes or other family members; and Specify any debts that must be paid upon your death. An Islamic Will also includes provisions that specifically address: Burial procedures; Preferences regarding autopsy and organ donation; Outstanding moral and religious obligations to be paid out of the estate; Permissible bequests (Wasiyyah) of up to one-third of the estate in total; and Division of assets according to Islamic inheritance rules. Islamic Inheritance Rules (Generally) The Fara’id is divided amongst three main types of heirs in Islam: Quota-heirs: entitled to specific shares (i.e., husband/wife, son, daughter, father, and mother); Residuaries: usually a combination of relatives that inherit as residuaries after the shares of the Quota-heirs is distributed (i.e., siblings, grandparents, nieces and nephews); and Extended family members: any blood relative who is not a quote-heir or a residuary (i.e., paternal and maternal aunts and uncles and their descendants) The Fara’id separates inheritance into “fixed” and “variable” categories. Typically, fixed shares will be given to one’s spouse and parents, with varying shares given to the children. The following is the inheritance percentage that each quota-heir receives: The surviving husband gets one-half of the deceased’s assets, or one-fourth of the assets if he has children; The surviving wife receives one-fourth of the deceased’s assets, or one-eighth of the assets if she has children; One-sixth of a share will go to each of the deceased’s parents. If the deceased left behind children, sons and daughters will each receive a 2:1 share of the remaining assets. The rationale being that the male’s portion is given with the understanding that he will spend it on the entire family as needed. There are no such restrictions on a daughter’s inheritance; and The amount of a person’s Wasiyyah cannot exceed one-third of their total possessions. Conclusion It is important to note that interpretations and practices of Islamic inheritance rules may differ across Islamic schools of thought and legal jurisdictions. Consultation with a qualified Islamic scholar in conjunction with a lawyer is advised to ensure proper application of these laws in specific cases. For more information regarding Wills, Trusts, and/or Estates related topics, please contact Kelli Preston at Devry Smith Frank LLP at (416) 446-3344 or kelli.preston@devrylaw.ca. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.” This blog was co-authored by Articling Student, Owais Hashmi* Sources: [1] https://districts.ecourts.gov.in/sites/default/files/jcj%20palakondawrkshp1.pdf [2] https://www.rhjdevonshire.co.uk/the-islamic-succession/ [3] https://islamicinheritance.com/islamic-inheritance-guide/ [4] https://www.islamicwillsusa.com/islamic-inheritance/ By Fauzan SiddiquiBlog, Wills and EstatesJuly 31, 2023July 31, 2023
Post-Separation, Who Gets the Frozen Embryos? According to the Canadian Fertility and Andrology Society, approximately one in six Canadians experience infertility. As a result, more and more Canadians have turned to various forms of assisted reproduction, such as in vitro fertilization (IVF). This is an increasingly important means of building a family especially for same-sex couples. With advancements in reproductive technology, the availability of government funding, and the increased visibility of fertility treatments, in popular culture, assisted reproduction has become more than an option for the wealthy; it is now a realistic avenue for the average couple. Over 7,000 children are born through IVF in Canada every year. As of 2014, one to two percent of live births in Ontario are from infertility treatments. However, as the accessibility of assisted reproduction increases, so do disputes over what happens to the leftover reproductive material following the end of a relationship. Is reproductive material treated as property or something more? Reproductive Material as Property Traditionally, Canadian courts considered reproductive material to be property. In JCM v ANA, a British Columbia court was asked to determine the ownership of “sperm straws” following the divorce of a lesbian couple.[1] During their relationship, each partner gave birth to a child using the sperm from the same anonymous donor. After separating, one of the women wanted to use the remaining sperm to impregnate her new partner, while the other wanted the sperm destroyed. The court found that the parties were the joint owners of the sperm and that they should be divided along with the rest of their matrimonial property. After the straws were divided, each couple could choose to use them or destroy them.[2] Likewise, Lam v University of British Columbia decided that sperm was property for the purposes of provincial legislation governing the storage of goods.[3] KLW v Genesis Fertility Centre also found that the reproductive material of the applicant’s deceased husband was property under provincial legislation governing personal property passed through intestacy.[4] Under this approach, if you could obtain the reproductive material used by you and your partner after your relationship ended, you were free to do whatever you want with it. This simplistic approach raised several policy concerns given evidence that people are confused about their options in regards to reproductive material, often change their minds over time, and rarely consider what should happen to reproductive material after separation, or their partner’s death or loss of capacity. Transition to a Consent-Based Regime The traditional contract-based approach changed dramatically with the landmark decision SH v DH and the rise of the consent-based regime.[5] The case arose out of the following dispute: a couple purchased donated eggs and sperm from a company in Georgia, which they used to create two viable embryos. An Ontario fertility clinic implanted one of the embryos into the respondent and she gave birth to the parties’ son. After the parties separated, the respondent wanted to use the remaining embryo to have another child, while the applicant wanted to have it donated. The trial judge held that the dispute should be governed by the law of contracts.[6] The contract with the Ontario clinic stated that the patient (the respondent, in this case) could decide what happened to the embryo in the event of the couple’s separation. As such, the respondent was free to use the embryo however she wanted. The decision was overturned on appeal. The Ontario Court of Appeal relied on the consent-based regime set out under the Assisted Human Reproduction Act (AHRA) and the Consent for Use of Human Reproductive Material and In Vitro Embryos Regulations (Regulations). This regime included terms which the parties could not contract out of; as such, it prevailed over the Ontario clinic’s contractual terms. Under the legislative regime, subsection 8(3) of the AHRA precludes the use of an embryo for any purpose unless the donor has given written consent. Part 3 of the Regulations provides further clarification on the necessity of “consent”, including: A “donor” refers to: individual(s) for whose reproductive use an in vitro embryo is created; or a married or common-law couple for whom the in vitro embryo is created, regardless of the source of the reproductive material used in its creation. If the donor is a couple, then the embryo can only be used for purposes that both parties consented to. Written consent is required from the donor before the embryo is used. Donors can consent for the embryos to be used for one or more of the following purposes: the donor’s own reproductive use; a third party’s reproductive use; improving assisted reproduction procedures; and providing instruction in assisted reproduction procedures, or a specific research project. If a donor wishes to withdraw their consent, it must be in writing and the person intending to use the embryos must be notified of the withdrawal of consent. If the donor is a couple, then the consent can be withdrawn by either spouse or common-law partner at any time. In this case, the respondent was not allowed to use the embryo to have another child without the express consent of her former partner, the applicant, even though the applicant’s reproductive material was not used. It is critical to note that subsection 10(3) of the Regulations provides that, if only one of the individuals in the couple used the genetic material of only one of them when the embryo was created, that individual is considered to be the donor if the couple breaks up before the embryo is used. This would have led to a very different conclusion in SH v DH. Implications Subject to subsection 10(3) of the Regulations and following SH v DH, if a couple creates embryos throughout the course of their relationship, whether or not their own reproductive material is used, those embryos cannot be used by either party after the relationship ends without the other’s consent. Other courts have followed this decision for other kinds of reproductive material besides embryos. In LT v DT Estate, the British Columbia Court of Appeal denied an applicant’s request to harvest her late husband’s sperm.[7] Relying on subsection 8(2) of the AHRA, the court held that you cannot remove reproductive material from a donor’s body posthumously without their written consent, which the donor did not provide. These cases and provisions have effectively ended the property-based approach to reproductive material in Canada. The courts in Canada have confirmed that it is a consent-based regime in regards to reproductive material – regardless of ownership, if your former partner does not consent, then the reproductive material cannot be used, subject to the exception in subsection 10(3) of the Regulations. Interestingly, one area of fertility law which is gaining increased traction is the donation of embryos. In receiving embryos which are being gifted and drafting the agreements which secure that gift, couples should be cognizant of the need to obtain consent from both donors before the transfer is made. What Couples Should Understand Before Creating Embryos As in many cases of separation and divorce, couples, in love and anxious to have children, do not think through all of the implications of access to their embryos following the dissolution of the partnership. There is a natural tendency to want to create children who have a biological link to existing children. Not being able to use embryos you have created can lead to heart break or further animosity between partners now estranged. Prior to creating any embryos, all persons engaged in the process of reproductive technology should make themselves aware that a consent-based system means that you generally cannot use embryos without the consent of the other. Where the embryos have been created with the genetic material of only one of the couple the other person should be aware that the “donor” in that situation will have access to the embryos, potentially freezing out the non-donor while creating siblings for their child(ren). This is important for fertility clinics as well. Clinics must explain these implications to their clients and provide them with documentation to sign which sets out that consent may be withdrawn at any time and that, where this happens, the other partner is left with no recourse. Similarly clinics can provide an option for consent where the surviving partner after a spouse dies. Finally, after separation all persons should immediately as possible follow up with the clinic to provide instructions regarding their consent. Clinics must be vigilant in ensuring that one party does not go around the other to obtain the remaining embryos. This author is aware of one situation where the mother falsified the father’s consent on clinic forms following their separation and became pregnant with a child the father did not want in order to provide a sibling for their child. The ex-partner in that situation is of course now liable for child support and faces a difficult ethical situation in deciding on whether he wants to have a relationship with the new child. We would be pleased to answer any questions you may have about fertility law matters, please visit our website or contact Marc Kemerer from Devry Smith Frank LLP at 416-446-3329 or marc.kemerer@devrylaw.ca. This blog was co-authored by Law Student, Leslie Haddock. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” [1] 2012 BCSC 584. [2] Ibid at paras 75 and 96. [3] 2015 BCCA 2. [4] 2016 BCSC 1621 at paras 97-100. [5] 2019 ONCA 454. [6] 2018 ONSC 4506. [7] 2020 BCCA 328. By Fauzan SiddiquiBlog, Family LawJuly 25, 2023August 24, 2023
My Neighbour’s Old Renovation Has Been Continually Damaging My Property – Can I Still Make a Claim or is it Statute-Barred? Your claim may be “statute-barred” if it falls outside of the limitation periods within your jurisdiction. The Limitations Act, 2002 sets out two main limitation periods for claims commenced in Ontario: (1) a general 2-year limitation period, beginning when the claim was discovered and (2) an ultimate 15-year limitation period, regardless when the claim was discovered. These limitation periods were both considered by Tyszko v St. Catherines (City), a recent decision from the Superior Court of Justice. This case mainly addressed the following question: does a claim for ongoing property damage resulting from work completed nearly twenty years earlier fall outside the ultimate 15-year limitation period? The Facts This decision centered around a motion for summary judgment commenced by the plaintiff, Mr. Tyszko, against the City of St. Catherines for damage resulting from work they completed near the plaintiff’s property. On September 12, 2002, the City installed new storm sewers at the plaintiff’s property. Since then, whenever it rains, water flooded the property instead of draining onto the road. In 2021, the plaintiff sought compensation for repairs made to the property, loss of enjoyment of the property, and his mental distress caused by the claim. In 2015 and 2016, the plaintiff began to notice that rain would come toward his parents’ house instead of onto the street and that cracks were appearing in the basement and around the house. When the plaintiff acquired title to the property in October 2017, he immediately complained to the City about the drainage problem. After getting nowhere with the City, the plaintiff retained a lawyer, who wrote to the City in January, April, and May 2018. In May 2019, the lawyer wrote again, threatening legal action. The City did not respond until the plaintiff’s lawyer followed up in January 2021. An adjuster for the City then investigated the plaintiff’s claim and rejected it on March 12, 2021. The plaintiff finally commenced his statement of claim on July 13, 2021. The City argued that the claim was statute-barred by the ultimate 15-year limitation period or, alternatively, the general 2-year limitation period. The plaintiff disputed these arguments. He held that the 15-year limitation period did not apply as the damage was ongoing; moreover, as he did not know that a legal proceeding was the appropriate remedy until the City denied his claim in March 2021, his claim fell within the general 2-year limitation period. Justice M. Bordin accepted the City’s argument; the claim was barred under both limitation periods. The Ultimate Limitation Period Subsection 15(2) of the Act states that “[n]o proceeding shall be commenced in respect of any claim after the 15th anniversary of the day on which the act or omission on which the claim is based took place.”[1] This 15-year limitation period applies even if the claim remains undiscovered for the entirety of the fifteen years.[2] Under subsection 24(5) of the Act, if an act or omission took place before the Act came into effect on January 1, 2004, and if the claim was not discovered at that time, then the Act applies as if the act or omission had taken place when the Act came into effect.[3] This would apply here: the City’s alleged negligent act occurred in 2002 and was not discovered until well after 2004. As a result, the 15-year limitation period for this act would have expired on January 1, 2019, over two years before the claim was commenced.[4] Do the Exceptions under Subsection 15(6) of the Act Apply? Subsection 15(6) of the Act provides some exceptions to the ultimate limitation period if (a) there is a continuous act or omission, (b) a series of acts or omissions in respect of the same obligation, or (c) an act or omission in respect of a demand obligation. For (a) and (b), the date of the claim is the last time the act or omission occurs.[5] The plaintiff argued that this claim involved a continuous action under subsection 15(6)(a), as the damage worsened every time it rained. Alternatively, the claim was a result of a series of acts or omissions in respect of the same obligation under subsection 15(6)(b), as the City had an ongoing obligation to ensure that water flowed onto the road and not adjoining properties.[6] Justice Bordin rejected both of these arguments. A “continuous cause of action” was defined in Sunset Inns v Sioux Lookout (Municipality) as a cause of action which arises from a repetition of the same acts or omissions which the action sought to address.[7] Justice Bordin found that a failure to rectify an alleged act of negligence is not the same as a series of acts of negligence.[8] The City’s only alleged act of negligence was the work completed in 2002 and a single breach with continuing consequences does not fall under s. 15(6)(a). As discussed in a previous blog, courts have recognized “rolling limitation periods” in the context of breaches of contractual obligations, as discussed in s. 15(6)(b). In these cases, the limitation period resets every time the defendant breaches one of their obligations. However, the plaintiff failed to provide any legal authorities for an obligation owed by the City.[9] Do the Exceptions under Subsection 15(4) of the Act Apply? Subsection 15(4) of the Act states that that ultimate limitation period does not run when (a) the person with the claim is incapable of commencing a proceeding due to their physical, mental, or psychological condition; (b) the person is a minor, or (c) the defendant wilfully conceals the claim or misleads the plaintiff about it.[10] The plaintiff claimed under s. 15(4)(c)(ii) that the City misled him when their insurers failed to contact him. However, Justice Bordin found no evidence that the City instructed the plaintiff to hold off on commencing legal proceedings until they heard from the City’s insurers or the City conducted an investigation.[11] There was nothing preventing the plaintiff from commencing a legal proceeding while waiting to hear from the City before the ultimate limitation period ended. The General Limitation Period Section 4 of the Act states that “a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.”[12] Section 5(1) of the Act describes when a claim is ‘discovered’: 5 (1) A claim is discovered on the earlier of, (a) the day on which the person with the claim first knew, (i) that the injury, loss or damage had occurred, (ii) that the injury, loss or damage was caused by or contributed to by an act or omission, (iii) that the act or omission was that of the person against whom the claim is made, and (iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and (b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).[13] A claim is “discovered” and the limitation period is triggered when a plaintiff has sufficient knowledge – that is more than suspicion and less than perfect – that the defendant’s act or omission contributed to or caused their loss.[14] A plaintiff does not need comprehensive knowledge or know the extent of the damages caused by the claim.[15] Here, the plaintiff had enough knowledge of his damages to make the claim by May 2018 and knew that legal proceedings were an appropriate means to seek a remedy by the time of his lawyer’s letter to the City on May 22, 2019.[16] Justice Bordin also rejected the plaintiff’s assertion under s. 5(1)(iv) of the Act that he did not know that a legal proceeding was an appropriate remedy until the City’s rejection of his claim on March 12, 2021. The plaintiff was not required to wait for the City to respond to his demands, there was no alternative means of compensation underway at the time, and the plaintiff could not explain why he waited two years for a response from the City before commencing proceedings.[17] Conclusions This case serves as a warnings to plaintiffs to be aware of any relevant limitation periods when commencing an action. Namely: If the act or omission resulting in your claim occurred more than fifteen years ago, then the claim is statute-barred, regardless of whether the consequences from the Act have continued. The continuing consequences of a single act of negligence is different than continuing acts of negligence, which can constitute an exception to the ultimate 15-year limitation period under s. 15(6)(a) of the Act. Waiting for a response from the defendant without a concrete alternative means of compensation is not sufficient to engage s. 5(1)(a) of the Act and delay your discovery of when a legal proceeding is the appropriate remedy. For more information regarding litigation, please contact Gabriella Schneider or call us at 416-449-1400 for your available options or to book a consultation. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.” This blog was co-authored by law student, Leslie Haddock. [1] SO 2002, c 24, Sched B, s 15(2) [LA]. [2] See York Condominium Corporation No. 382, 2007 ONCA 49 at para 5 and Mega International Commercial Bank (Canada) v Yung, 2018 ONCA 429 at para 69. [3] LA, supra note 1, s 24(5). [4] Tyszko v St. Catherines (City), 2023 ONSC 2892 at para 37 [Tyszko]. [5] LA, supra note 1, s 15(6). [6] Tyszko, supra note 4 at paras 40-42. [7] 2012 ONSC 437 at paras 20-24. [8] Tyszko, supra note 4 at para 44. [9] Ibid at para 42. [10] LA, supra note 1, s 15(4). [11] Tyszko, supra note 4 at para 49. [12] LA, supra note 1, s 4. [13] Ibid, s 5(1). [14] Zeppa v Woodbridge Heating & Air-Conditioning Ltd, 2019 ONCA 47 at para 41. [15] Taylor v David, 2021 ONSC 3264 at paras 16-17. [16] Tyszko, supra note 4 at para 57. [17] Ibid at paras 60-65. By Fauzan SiddiquiBlog, LitigationJuly 17, 2023July 17, 2023
Self-Defence in Canada – the Khill case Peter Khill Gets 8 Years for Manslaughter After the Supreme Court Ordered a New Trial Based on New Self-Defence Guidelines To the surviving family members of Jonathan Styres, the scales of justice have finally balanced. Seven years have elapsed since Peter Khill fatally shot Styres, who was seemingly attempting to steal Khill’s pickup truck parked in the driveway of his home. After three trials (including one mistrial) and several appeals, Khill was recently sentenced to 8 years in prison for manslaughter. You can read about the facts in greater detail here. At the initial trial, Khill pleaded self-defence and the jury found him not-guilty of second-degree murder. The Crown successfully appealed to the Ontario Court of Appeal (“ONCA”), who unanimously ordered a new trial. Khill appealed this decision, but in 2021, the Supreme Court of Canada (the “SCC”) upheld the ONCA’s decision while opining on the proper way to analyze self-defence. A New Regime for Self-defence in Canada Self-defence or the use of force to protect yourself against harm, is a legal concept and defence in Canada that is codified at section 34 of the Criminal Code. Under this “Defence of Person” section, the Code provides a complete defence to the actions of an accused if they are reasonable and committed while protecting themselves or another person. Parliament enacted legislation in 2013 which drastically changed the application of self-defence. The amendments primarily affected the former sections 34-37 of the Criminal Code and were designed to make the law of self-defence more easily understandable and accessible to Canadians.[i] In the Khill case, the SCC was mainly focused on the new section 34 as it directly related to accused’s claim of self-defence and whether it was reasonable. Justice Sheila Martin, writing for the majority, explained that the initial trial judge improperly instructed the jury on the requirements under the 2013 amendments, thereby invalidating the verdict.[ii] Section 34(1) (a) to (c): The Three Inquiries Justice Martin provided an analysis of the three inquiries and conditions to be met under Section 34(1) of the Criminal Code to make out the defence. She characterized the three inquiries as follows: The Catalyst – defined as “the accused’s state of mind and the perception of events that led them to act.” Their state of mind must be based on an “actual belief” which is objectively reasonable.[iii] The Motive – defined as “the accused’s personal purpose” in committing the crime. This is a subjective, not an objective, inquiry. Justice Martin summed this up in the following way: “If there is no defensive or protective purpose, the rationale for [self-defence] disappears.”[iv] The Response – the SCC emphasized that this really examines the reasonableness of the accused’s response.[v] Section 34(2)(c): The Accused’s Role in the Incident Section 34(2) of the Criminal Code provides a non-exhaustive list of factors for the court to consider when looking at whether the actions of the accused are reasonable in the circumstances under s. 34(1)(c). The key factor that was interpreted in the Khill decision was s. 34(2)(c) – “the accused’s role in the incident”. The majority defined the accused’s role as their “contribution toward something, without necessarily suggesting full responsibility or fault.”[vi] By delineating the accused’s role and the extent to which they played it, the SCC reasoned that judges and juries will be better equipped to assess the reasonableness of the response. Crucially, this role can, but does not need to, be characterized by “provocative, unlawful, and morally blameworthy conduct”. Triers of fact are to consider the accused’s contribution to the incident, then are to evaluate whether their conduct “as a matter of logic and common sense, could tend to make the accused’s act more or less reasonable in the circumstances.”[vii] Conclusion What emerged from this reasoning was that the judge in Khill’s first trial did not instruct the jury along these lines. So, the SCC used the Khill appeal as an opportunity to expound on what Parliament intended to do with the new regime, as well as what the amendments to the Criminal Code require of fact-finders. The majority then ruled in favour of a new trial at the Superior Court. The final trial ultimately resulted in a different verdict from a properly instructed jury: guilty for manslaughter. This means that the jury found Khill’s role in the incident led to an unreasonable response, thus vitiating his defence of self-defence. If you or someone you know has been charged with an offence, please contact criminal defence lawyer David Schell to discuss any questions and your options at 416 446-5096 or david.schell@devrylaw.ca. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.” This blog was co-authored by Summer Law Student, Rachel Weitz. [i] https://www.justice.gc.ca/eng/rp-pr/other-autre/rsddp-rlddp/index.html#:~:text=Legislative%20Objective%20and%20Overview%20of%20New%20Defences [ii] R v Khill, 2021 SCC 37 at paras 4-5. [iii] Ibid at paras 52-3. [iv] Ibid at para 59. [v] Ibid at para 74. [vi] Ibid at para 84. [vii] Ibid at para 124. By Fauzan SiddiquiBlog, Criminal LawJuly 10, 2023July 24, 2023
Feelings of Anger and Frustration are Not Compensable Mental Injuries Bothwell v London Health Sciences Centre Mental injuries can be as devastating as physical injuries to the people who experience them, but they are not as easily recognized as injuries by the courts. By law, individuals need to meet a high threshold to prove a compensable mental injury, which includes demonstrating impairment of cognitive functions or daily life. In general, this means that feelings of anger and frustration are not compensable mental injuries. To put this in context, consider the following vignette: You are driving home from work and enter an intersection when the light is green. Out of nowhere, another car comes rushing through the red light and crashes into you. You survive, but receive a concussion, several broken bones, and spinal injuries. Each of these injuries severely impact your ability to work and live your life. You also feel extreme frustration and anger that this happened to you through no fault of your own and because of another person’s reckless actions. These feelings are overwhelming. For this reason, you have become short and irritable with many family and friends and have alienated some of them. You feel as though these feelings have had as much of an impact on you as your physical injuries because of their deleterious effects. You wonder, “can I be compensated for these types of injuries?” The question of whether a person can be compensated for mental injuries together with physical injuries was addressed in the recent Ontario Court of Appeal decision Bothwell v London Health Sciences Centre.[1] In Bothwell, the court clarified what is required for a compensable mental injury and whether persistent feelings of anger and frustration qualify. In essence, for a mental injury to be legally recognized as compensable, it needs to be serious and enduring, surpassing the common irritations, worries, and fears that are part of everyday life. Emotional reactions beneath this threshold — such as distress, aversion, anxiety, or agitation — are not legally recognized as compensable mental injuries. Facts of the Bothwell Case Mr. Craig Bothwell suffers from Crohn’s disease. In September 2011, Mr. Bothwell went to London Health Sciences Centre, Victoria Hospital to undergo a surgical procedure connected to his condition. Following the procedure, his doctor ordered that he be given a blood volumizer, but a nurse mistakenly administered an anticoagulant instead. As a consequence, Mr. Bothwell experienced internal bleeding and required emergency surgery. He would also undergo several more surgeries to repair further damage. In addition to his physical injuries, Mr. Bothwell felt frustrated and angry about his experience; i.e., that this serious injury happened to him through no fault of his own and because of another person’s carelessness. The Test for Compensable Mental Injuries Compensable mental injuries were first recognized in Mustapha v Culligan of Canada by the Supreme Court of Canada in 2008.[2] Here, the injury must be “serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept.”[3] In contrast, “[t]he law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury.”[4] Saadati v Moorhead reaffirmed this test and emphasized the difference between “mental injury” and “mere psychological upset.”[5] The Court laid out several factors to consider when assessing whether a claimant has demonstrated a mental injury and not simply psychological upset, including: the impairment on the claimant’s cognitive function and daily activities; the length of such impairment; the nature and effect of any treatment on the impairment; expert evidence or a psychiatric diagnosis; and any other evidence produced by the claimant which shows the presence of a mental injury on a balance of probabilities. In Saadati, Mr. Saadati was involved in five car accidents and the second caused him psychological injuries, including personality change and cognitive difficulties like slow speech. These changes led to a deterioration in Mr. Saadati’s relationship with his family and friends. As such, the Court found that these injuries constituted a “serious and prolonged disruption that transcended ordinary emotional upset or distress.”[6] Application in the Bothwell Case At trial,[7] Mr. Bothwell claimed that he experienced a number of psychological injuries in addition to worsening physical symptoms of his Crohn’s disease — including nightmares, emotional distress, anxiety, and depression. At trial, the court found that the error indeed caused Mr. Bothwell’s psychological upset and that Mr. Bothwell’s feelings of persistent anger and frustration met the standard for a compensable mental injury established by law. The Ontario Court of Appeal overturned the trial judge’s ruling. Here, the Court interpreted Saadati as laying out two steps to distinguish a mental injury from mere psychological upset: the claimant’s psychological upset; and the impairment of the claimant’s cognitive functions and daily life from that upset, the length of such impairment, and the nature and effect of any treatment sought. The Court found that the trial judge failed to consider the second element: …the trial judge failed to consider the degree of disturbance Mr. Bothwell experienced as a result of his psychological upset. That is, he failed to consider what impact Mr. Bothwell’s continuing anger and frustration had on his cognitive functions and participation in daily activities. He also failed to consider the absence of evidence that Mr. Bothwell sought treatment for those feelings. These failures caused the trial judge to fail to determine whether Mr. Bothwell’s continuing psychological upset met the requisite degree of disturbance to become a compensable mental injury.[8] The Court then examined whether Mr. Bothwell met this test and found that his evidence fell short. The Court saw no indication that Mr. Bothwell’s feelings of frustration and anger following the incident impaired his cognitive functions or daily life; i.e., he continued to work as a paramedic and participate in his family life as a husband and father. The Court also highlighted the importance of obtaining expert evidence — while the law does not require expert evidence to find a compensable mental injury, claimants run the risk of falling short of proving their evidentiary burden without it. The Court also clarified that while the gravity of the experience may be a relevant factor, the Saadati factors still must be considered and applied. As such, Mr. Bothwell’s persistent feelings of frustration and anger did not constitute a compensable mental injury. Summary and Conclusion Mental injuries can be equally, if not more, devastating than physical injuries. Moreover, unlike a wound or broken bone, mental injuries are not often readily apparent to the courts. As seen in Bothwell, there is a very high threshold that claimants must meet to prove a compensable mental injury. Even persistent feelings of anger and frustration will not meet the threshold unless claimants cannot also prove that these feelings impaired their cognitive functions or daily life and activities. Moreover, while not required, expert evidence of mental injury can be integral in establishing a valid claim. For more information regarding personal injury related topics, please contact David Heppenstall at Devry Smith Frank LLP at (416) 446-5834 or david.heppenstall@devrylaw.ca This blog was co-authored by Summer Law Student, Leslie Haddock “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” [1] Bothwell v London Health Sciences Centre, 2023 ONCA 323 [Bothwell, ONCA]. [2] 2008 SCC 27. [3] Ibid at para 9. [4] Ibid at para 9. [5] 2017 SCC 28 at para 37 [emphasis in original]. [6] Ibid, at para 40. [7] Bothwell v London Health Sciences Centre et al, 2021 ONSC 6755. [8] Bothwell ONCA at para 34. By Fauzan SiddiquiBlog, Personal InjuryJuly 4, 2023July 5, 2023
How To Address Soaring Food Prices: Recommendations From The Competition Bureau Of Canada The Competition Bureau of Canada (the “Bureau”) is an independent federal law enforcement agency which aims to protect and promote competition for the benefit of Canadian consumers and businesses. The driving principle is that competition drives lower prices and innovation while also fueling economic growth. The Bureau is now casting a harsh light upon an industry which is integral to daily life: the grocery sector. In its recent market study report titled “Canada Needs More Grocery Competition,” the Bureau calls for increased competition.[1] This report arrives on the heels of constantly soaring grocery prices — the highest in over forty years. The Bureau’s recommendations therein may be viewed as an essential step in fostering a more robust and fair grocery marketplace. In brief, Canada’s grocery industry is dominated by three giants: Loblaws, Sobeys, and Metro. This domination makes it more challenging for new entrants or independent stores to compete on that scale. To address rising grocery prices and increase competition, the Bureau suggests that the Canadian government should create a “Grocery Innovation Strategy,” support independent and international grocers, introduce harmonized unit pricing, and limit property controls that hinder new grocery stores from opening. These measures aim to ensure more choice and affordability for Canadian consumers, although changes may take time. Dominance and Market Power in the Grocery Sector One of the primary concerns within the context of Competition Law is the accumulation and exercise of market power. In the grocery industry, dominant players may exert substantial control, influencing prices and choices available to consumers. Market dominance, as outlined in Section 79 of the Competition Act, revolves around entities having substantial or complete control of a class or species of business.[2] With control, there is a possibility of exerting that control to engage in anti-competitive behaviour and independently influence market dynamics. For example, Canada Bread, a major producer of baked goods, recently agreed to pay a $50 million fine after admitting to collusion in fixing the price of bread in Canada.[3] The company confessed that it had collaborated with competitors to raise wholesale bread prices, which affected consumer prices. The collusion involved discussions and agreements on price hikes between executives at Canada Bread and Weston Foods (Canada) Inc. This price-fixing scandal first came to light in 2015 when the Bureau commenced an investigation. The $50 million fine is the highest price-fixing fine ever imposed by a Canadian court. Opportunities for Reform The Bureau has put forward four key recommendations aimed at catalyzing competition in the grocery industry: Whole-of-government strategy: Creating a comprehensive government strategy to facilitate the emergence of new types of grocery businesses is crucial. This approach can ensure that there are fewer barriers to entry and the competitive landscape becomes more diverse. Encouraging independent and international players: Encouraging the growth of independent grocers and facilitating the entry of international players can break the stronghold of the few dominant entities. This could lead to more competitive pricing strategies and innovation in the sector. Harmonized unit pricing requirements: Introducing accessible and harmonized unit pricing requirements can empower consumers to make informed choices. This transparency could drive competitive pricing as consumers can easily compare the value of products across different retailers. Limiting property controls: Property controls can restrict new entrants by making it difficult for new grocery stores to open. Limiting these controls would lower barriers to entry and stimulate competition. These recommendations come while the federal government works to develop a code of conduct for grocers. In January of this year, Agriculture and Agri-Food Canada released a statement stating that this code would strengthen Canada’s food supply chain by promoting transparency, fairness, and predictability.[4] The statement acknowledges that the Code won’t solve all challenges in the food supply chain, but asserts that its adoption will bolster the supply chain’s resilience and earn consumer trust. Embracing Competition Rising consumer prices are connected to the lack of competition in the marketplace. The Bureau’s recommendations come at a time when Canadians are grappling with cost-of-living increases which are increasingly out of control. Implementing the Bureau’s recommendations can ensure a fair playing field in the grocery industry, which in turn can result in lower prices, increase choice, and provide better service. These recommendations may ultimately lead to a more vigilant approach against any other anti-competitive practices, including abuse of dominance or anti-competitive agreements among existing players. The Bureau commits to rigorously scrutinizing the industry, supporting the implementation of a grocery code of conduct, and revisiting the matter in three years. The Bureau is taking a sharp aim at identifying and breaking down the barriers to competition in Canada. These recommendations are a step in the right direction towards a more competitive and consumer-friendly grocery industry in Canada. [1] See: Competition Bureau Canada, Canada Needs More Grocery Competition: Competition Bureau Retail Grocery Market Study Report (Gatineau, Quebec: Competition Bureau, 27 June 2023); see also: Competition Bureau Canada, Competition Bureau makes recommendations to promote competition in Canada’s grocery industry (Gatineau, Quebec: Competition Bureau, 27 June 2023). [2] Competition Act, RSC, 1985, c C-34, s 79. [3] Pete Evans, “Canada Bread agrees to $50M fine for role in bread price-fixing scandal,” CBC News (21 June 2023). [4] See: Agriculture and Agri-Food Canada, Joint Statement on the development of Canada’s first-ever Grocery Code of Conduct (Ottawa, Ontario: Agriculture and Agri-Food Canada, 13 January 2023). By Fauzan SiddiquiBlog, UncategorizedJune 28, 2023June 28, 2023
The Rebuttable Presumption of Implied Consent In Motor Vehicle Accidents When the Vehicle Was Taken by Someone Else Under Section 192(3) of the Highway Traffic Act, when you rent a motor vehicle, you are ultimately responsible if you lend that vehicle to someone else. If the other person took it without your permission, you are not liable for that person’s negligence. But what if you did not explicitly provide permission for the other person to take the vehicle but the evidence suggests that your consent was implied? The Naghash case is crucial in widening the scope of what “implied consent” is in determining whether an owner of a motor vehicle or a person who leased a vehicle is liable for damages caused by operating the vehicle. In brief, the evidence must be able to rebut the presumption that a vehicle is in the possession of somebody other than the owner or the person leasing the vehicle with his or her consent. If a defendant is unable to rebut this presumption, he or she will be liable for any loss or damage caused by negligently operating the vehicle. Background On or about July 5, 2017, the defendant Mohammad Ganjikhany (“Mohammad”) parked his rented vehicle outside the mechanic shop and left the keys hanging on a board near the shop office.[1] The plaintiff Ali Mehraein (“Ali”), a friend of Mohammad, and the other defendant Vahid Pashahzahiri (“Vahid”) asked Mohammad if they could borrow the car that Mohammad rented.[2] Mohammad claimed that he said no.[3] Ali and Vahid drove away in the rented vehicle with Ali as the passenger.[4] A collision occurred while Vahid was driving Mohammad’s rented vehicle.[5] The issue for determination at the Ontario Superior Court of Justice was whether Ali had Mohammad’s express or implied consent to possess the vehicle at the time of the accident. If the Ontario Superior Court found that there was consent, then Mohammad would be vicariously liable for any loss or damage caused by Vahid. The Law In Ontario, the courts presume that an individual who has possession of a vehicle that is owned or leased by another person has that person’s consent to possess the vehicle. If that presumption is not refuted, then the owner of the vehicle or the person who leased the vehicle will also be liable for any loss or damage caused by any negligent operation of the vehicle.[6] Whether or not a vehicle is in the possession of some other person with the consent or implied consent of the lessee is a question of fact to be determined by the evidence of the case.[7] If a vehicle is in the possession of a person with the owner’s consent, the owner is liable regardless of whether the person operating the vehicle has the owner’s consent.[8] An owner cannot avoid liability simply because the operator breached conditions or restrictions placed upon him or her.[9] Implied consent requires a determination of whether the circumstances would demonstrate that the operator of the vehicle was in possession of the vehicle at the time of the accident with the owner’s implied consent.[10] Ontario Superior Court Decision The Ontario Superior Court found that Mohammad’s position that he did not provide either express or implied consent to Vahid and Ali to use the vehicle was untenable given the factual circumstances of surrounding the incident.[11] Justice McCarthy noted that Mohammad and Ali had been friends for several years, Ali was a frequent visitor in the shop, Mohammad knew of Ali’s criminal history which included stealing cars, and the keys to the vehicle were kept in a conspicuous location that would have been well-known to someone with familiarity with the shop.[12] Justice McCarthy also found Mohammad’s evidence highly problematic as Mohammad was unable to explain how Ali would have known the existence, make, and model of a leased vehicle that Mohammad had in his possession for a mere couple of days.[13] Justice McCarthy provided that the only reasonable inference to draw was that Mohammad provided a specific description of the vehicle sufficient to identify it in the parking lot because he had consented to his friend’s request to make use of it.[14] Lastly, Mohammad had assumed that Ali had taken the vehicle when he noted that it was missing from the parking lot.[15] Justice McCarthy noted that Ali did not report the vehicle to the police as he assumed that Ali would return the vehicle and did not report the missing vehicle to his wife because he did not want to upset her.[16] Justice McCarthy further rejected Mohammad’s evidence to the court that he refused the request made by Ali and Vahid to use his vehicle.[17] If Mohammad truly did not intend to have Ali and Vahid to use his vehicle, Mohammad would have taken steps to prevent them from possessing the vehicle including safeguarding his keys or take steps to facilitate the vehicle’s return including contacting the police.[18] As such, Justice McCarthy found that the evidence was inadequate to discharge the onus to prove on a balance of probabilities that express or implied consent was not provided.[19] Analysis and Conclusion The Ontario Superior Court makes it clear that the evidence must be able to rebut the presumption that a vehicle is in the possession of somebody other than the owner or the person leasing the vehicle with his or her consent. If a defendant is unable to rebut this presumption, he or she will be liable for any loss or damage caused by negligently operating the vehicle. The courts will determine whether a vehicle is in the possession of some other person with the consent or implied consent of the owner of the vehicle or the person leasing the vehicle based on the circumstances and evidence of the case. In doing so, the courts have broadened the concept of implied consent to include interpreting the parties’ relationships, past conduct, inconsistencies, and reasonable expectations to determine whether implied consent was given. This blog was co-authored by student-at-law, Abby Leung This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs. [1] 2023 ONSC 609 at para 6 [Naghash]. [2] Ibid. [3] Ibid. [4] Ibid. [5] Ibid. [6] Highway Traffic Act, R.S.O. 1990, c. H.8 s.192(3). [7] Argante v. Munro, 2014 ONSC 3626 at para 27. [8] Henwood v. Coburn, 2007 ONCA 882 at para 14. [9] Parkinson v. MacDonnell, 1995 CarswellOnt 1402 at para 52. [10] Sparks v. Cushnie et al., 2021 ONSC 213 at para 10. [11] Naghash, supra note 1 at para 14. [12] Ibid at para 15. [13] Ibid at para 16. [14] Ibid. [15] Ibid at para 17. [16] Ibid at para 20. [17] Ibid at para 19. [18] Ibid at paras 17 and 21. [19] Ibid at para 23. By Fauzan SiddiquiBlog, Personal InjuryJune 26, 2023June 21, 2023
Office of the Privacy Commissioner of Canada launches an investigation into ChatGPT: What does it mean for the Legal Profession? ChatGPT (Generative Pre-trained Transformer) is an artificial intelligence language model or deep machine learning model (also known as a “chatbot”) created by OpenAI. It is designed to understand natural language and generate human-like responses. It assists its users by answering their questions, providing information, and engaging in human-like conversation with them on a wide variety of topics. Since it’s release in November 2022, ChatGPT is now one of the fastest growing user applications in the world. Over one hundred million users are using ChatGPT to generate code, draft papers, and generate detailed and articulate answers based on their prompts. Some use ChatGPT for legal purposes. Indeed, ChatGPT has the potential to transform the legal profession, from researching complex legal questions to drafting legal documents such as employment contracts and wills — reducing work which used to take hours to seconds. In April 2023, the Office of the Privacy Commissioner of Canada announced that it was launching an investigation into ChatGPT: “AI technology and its effects on privacy is a priority for my Office,” Privacy Commissioner Philippe Dufresne says. “We need to keep up with – and stay ahead of – fast-moving technological advances, and that is one of my key focus areas as Commissioner.” The investigation into OpenAI, the operator of ChatGPT, was launched in response to a complaint alleging the collection, use and disclosure of personal information without consent. What does the introduction of ChatGPT mean for the legal profession, and what are the risks? Benefits and Drawbacks ChatGPT is a powerful tool which allows lawyers to experiment with generating legal documents and provide succinct answers for complex inquiries. A significant proportion of lawyers’ work takes the form of writing letters, briefs, pleadings, responses, transactional documents, and so forth. Through its AI-powered technology, ChatGPT can be used to streamline these time-consuming tasks, allow lawyers to quickly digest complex information, and analyze documents quickly by accurately identifying key documents and evidence. By providing these tools, ChatGPT can be beneficial for freeing up more time for lawyers to focus on their cases. But are the documents legally sound? Are the answers even correct? In brief, ChatGPT cannot be entirely trusted. While ChatGPT can create quick answers for legal questions and inquiries, ChatGPT cannot be trusted to truly comprehend complex legal concepts or jurisprudence. This serious limitation can lead to inaccurate or incomplete advice which presents a risk for both legal practitioners and to their clients. In June 2023, an embarrassed lawyer from New York asked the court not to sanction him after he made arguments based upon multiple entirely imaginary legal precedents based on a conversation with ChatGPT. The case citations generated by ChatGPT which the lawyer wrote into his brief were entirely made up. These examples of fictitious case history stated confidently by ChatGPT are examples of an artificial intelligence “hallucinations.” Given this serious risk of inaccurate or entirely imaginary information, lawyers and legal professionals would be strongly cautioned to review and double check the work which ChatGPT produces. The answers and documents which ChatGPT generates will sound confident and human-like, but they are prone to error and may be pure nonsense. With time and more training, it is expected that ChatGPT will provide more comprehensive and accurate answers. But, it is also expected that ChatGPT will generate a lot of drivel. Ethical Concerns ChatGPT also raises ethical questions arising from using artificial intelligence to resolve client concerns. Under the Rules of Professional Conduct, lawyers have an obligation to provide competent legal services and to abide by ethical considerations including security, client privacy, and privilege through the transmission of data between the firm and ChatGPT. Lawyers and legal professionals who dutifully provide ChatGPT with as much facts and context as possible, may be revealing and sharing confidential and privileged information and disseminating it to the servers hosting the ChatGPT model. While communication with these servers typically takes place over the internet using secure connections and protocols, data security and privacy of sensitive information cannot be guaranteed. However, a lawyer also has the obligation to provide efficient services. Therefore, there is a question regarding how to balance as to what extent lawyers can utilize ChatGPT to provide efficient legal services. While adopting legal technologies can assist with streamlining tasks and improving performance, it is also critical for lawyers to assess and implement technology responsibly in order to meet ethical obligations and to protect client interests. ChatGPT and Access to Justice The use of ChatGPT has also raised questions on the use of technology in improving access to justice within the Canadian legal system. ChatGPT may one day be effective in providing general legal information that can assist with directing users towards resources to learn more about their legal claims. ChatGPT’s ability to summarize complex legal topics and generate legal work products could assist numerous Canadians who are otherwise unable to access traditional legal services by providing answers for people to resolve their legal issues. However, relying on ChatGPT for legal information poses risks as it may provide outdated or incorrect advice, and lacks the specialized expertise and judgment that a qualified legal professional can offer. The widespread and ready access to ChatGPT presents a risk that users will receive inaccurate answers as well as documents that are not based on a solid legal grounds. Future and Conclusion The demand for artificial intelligence tools such as ChatGPT is clear. These tools allow users to streamline legal processes, provide greater access to legal information, and may one day be able to provide correct answers to complex legal questions. However, there is a danger that both legal professionals and their clients in using ChatGPT without considering the accuracy and ethical considerations associated with ChatGPT. It is crucial to approach using ChatGPT with caution and to ensure that legal advice provided by both legal professionals and ChatGPT is good and to a professional standard. The outcome of the investigation by the Office of the Privacy Commissioner will undoubtedly reveal additional risks and possible mitigations for the use of ChatGPT in the legal profession, but there will likely be more investigations to come. ChatGPT highlights the promise of artificial intelligence, and ushers in a new era to assist both lawyers and their clients in accessing, creating, and generating legal information to benefit the legal system. This blog was co-authored by student-at-law, Abby Leung. It was specifically not co-authored by ChatGPT. This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs. By Fauzan SiddiquiAdministration and Technology, BlogJune 21, 2023June 21, 2023
