Every week, Bell Temple LLP selects and reports on interesting and relevant decisions from the Ontario
Superior Court of Justice, Ontario Court of Appeal, and Supreme Court of Canada.
This week’s case reports are written by Angus Chalmers
Fabrikant v. Kelly, 2023 ONCA 579
The appellant is an inmate at the Archambault Penitentiary in Quebec. He brought an action against the
Commissioner of the Correctional Service of Canada, personally. He alleged that the electricity to his cell
had been deliberately and maliciously cut off on 31 occasions. The action was dismissed under rule
2.1.01 of the Rules of Civil Procedure. The lower court found that it appeared on its face to be frivolous,
vexatious, and an abuse of the court’s process. The lower court noted that it “cannot possibly succeed”
and was “designed to sanction [the Commissioner] after she ignored [the appellant’s] messages to her”.
The appellant had been declared a vexatious litigant in and could not commence a proceeding without
leave. The lower court stated that it was intended to “circumvent the restrictions in the Quebec
Superior Court and Federal Court of Canada”.
The Court of Appeal upheld the lower court’s ruling. Decisions under rule 2.1.01 are discretionary. As per
Visic v. Elia Associates Professional Corporation, 2020 ONCA 690, they can only be set aside where “the
motion judge misdirected themselves or where the decision was so clearly wrong as to amount to an
injustice”. In this case, the judge followed the procedure mandated under rule 2.1.01. The Court of
Appeal rejected the Appellant’s argument that his affidavit evidence should have been allowed in the
hearing. They noted that the purpose of rule 2.1 is to allow the court to dismiss frivolous or vexatious
proceedings in a summary manner. Allowing evidence would defeat this purpose and give parties a
vehicle to inflict the harms of frivolous proceedings on the opposing parties and the civil justice system.
Soo Mill & Lumber Company Ltd. v. Pozzebon et al., 2023 ONSC 5014
The appellant Soo Mill sought an extension of time to commence an appeal of a November 18, 2021,
order by Gordon J. on a motion Rule 45.02 of the Rules of Civil Procedure for preservation of funds. Soo
Mill served a Notice of Motion for Leave to Appeal on December 3, 2021. However, the parties were
uncertain of the proper jurisdiction due to the interlocutory nature of the appeal, so Soo Mill also
commenced an appeal to the Court of Appeal. While doing so, their Notice of Motion for Leave to
Appeal was held in abeyance. Eventually, on March 28, 2023, the appeal was quashed by the Court of
Appeal on the grounds that it did not have jurisdiction over the appeal because it was an interlocutory
order. Following this, Soo Mill returned to pursue appellate relief. However, they needed to file a Notice
of Appeal as there was no right to seek leave to appeal from an interlocutory order under the
Construction Lien Act.
The court went through the test for granting an extension of time as outlined in Enbridge Gas
Distribution Inc. v. Froese, 2013 ONCA 131: (a) whether the moving party formed a bona fide intention
to appeal within the relevant time period; (b) the length of, and explanation for, the delay in filing; (c)
any prejudice to the responding parties caused, perpetuated or exacerbated by the delay; and (d) the
merits of the proposed appeal. The Court found that it was clear that Soo Mill had formed a bona fide
intention to appeal within the relevant time period as they had filed and served their original Notice of
Motion for Leave to Appeal within the time required. They had a reasonable explanation for the delay as
it was caused by their appeal to the Court of Appeal. While they eventually lost on jurisdictional
grounds, it was clear that this was a live issue at the time. The Court held that there would be no
prejudice as arguments prepared for the Court of Appeal would be readily adaptable. The Court further
found that Soo Mill had raised, at the very least, arguable questions of law or mixed law and fact. There
were substantive issues to address on a motion or before the panel hearing the appeal. At this stage, the
Court was not in a position to determine them. For the purposes of granting an extension of time, the
appeal raised arguable questions that had at least some merit. As such, the extension of time to
commence the appeal was granted.
Thompson v. Handler, 2023 ONSC 5042
The Plaintiff Elisha Shaw went to the emergency room on November 16 th , 2015, with abdominal pain.
She was seen by Dr. Handler who discharged her on the 17 th and told her to follow up with her family
doctor. On the 18 th she went back to the hospital in an ambulance. She was found to have an internal
hernia and surgery was performed. Her condition deteriorated and she was transferred to a different
hospital. A second surgery was performed to remove part of her small bowel that had developed
necrosis. She never recovered and died on the 25 th . The general cause of death was ischemia with
resulting small bowel resection and the complications that flowed from the surgery. Her husband sued
Dr. Handler. At issue was whether Dr. Handler breached the standard of care owed to Shaw and
whether that breach caused her death. The Court answered both questions affirmatively.
Shaw had had a bariatric surgery in 2012. Bariatric surgery can result in complications that appear years
after the surgery. Those complications can include a bowel hernia, which can be the precursor to an
ischemic bowel. It was known in the medical literature that the symptoms of a bowel hernia, or an
ischemic bowel, can include abdominal pain that is not supported by objective findings. The Plaintiff was
in a significant amount of abdominal pain that was radiating to her back, a known symptom of an
internal hernia. Further, a CT scan was performed which, while not conclusive, had been suggestive of a
hernia. Dr. Handler received this after discharging Shaw. Dr. Handler was aware that Shaw had had a
bariatric surgery and aware of the risks associated with it. Given Shaw’s symptoms, he should have
called Shaw to have her return to the hospital and referred her to one of the surgeons on duty for an
emergency consultation. In not doing so, he breached the standard of care.
Shaw died because she had a significant necrotic bowel that flowed from hernias in her intestines. The
Court found that if Shaw had been called back on the 17 th , an emergency laparoscopy would have been
performed. This was based on the evidence that there is a low threshold for a laparoscopic investigation
with a patient who had undergone bariatric surgery. If this had occurred, the hernia would have been
removed when there was no necrosis and the bowels would have been healthy, such that necrosis
would not have developed. As such, the Court found that but for Dr. Handler’s negligence in not
following up with Ms. Shaw after receiving the CT scan, Ms. Shaw would not have died.
Royal Bank of Canada v. Paleswaran, 2023 ONSC 5019
The Crown, as a Third Party, brought a Rule 21.01 motion against the Defendant Yorktown Motors. At
issue was whether the crown owed Yorktown a private law duty to ensure the accuracy of vehicle
permits and used vehicle information packages (“UVIPs”). Yorktown had purchased a vehicle from the
other Third Parties and sold it to the Plaintiff RBC. However, the vehicle did not exist, and Yorktown
claimed it was the victim of fraud committed by the other Third Parties. It also claimed that Ontario was
negligent in allowing the other Third Parties to register fraudulent documents.
Ontario argued that the issuance of a vehicle permit is a regulatory decision and that it is not actionable
under ss. 11(2) of the Crown Liability and Proceedings Act, 2019. Under the Highway Traffic Act, issuing
a permit is defined as a regulatory decision. Yorktown argued that Ontario breached its duty as record
keeper under s. 13(7) of the Highway Traffic Act when it represented, through the issuance of a permit,
that a vehicle existed when no such vehicle existed. In doing so Yorktown argued, Ontario enabled the
registration of fraudulent documents. The Court found that this was a distinction without a difference.
Enabling a registration was the same action as issuing a permit and the action was barred.
While the Court denied the claim on the basis of ss. 11(2) of the Crown Liability and Proceedings Act,
2019, it proceeded to undertake an analysis of whether the claim disclosed a reasonable cause of action.
To do so, the Court had to determine if there was a duty of care between Ontario and Yorktown.
Yorktown was a middleman that dealt in used vehicles. They relied exclusively on permits and the UVIPs
to confirm the existence of vehicles without ever seeing them. They argued that it was reasonably
foreseeable that they would rely upon the UVIPs and permits produced by Ontario to confirm the
existence of the vehicle and that such reliance was reasonable in the circumstances of the case.
The Court disagreed, finding that there was no duty of care between Ontario and Yorktown. The Court
distinguished the case from Cheltenham v. Ontario, 2003 CanLII 2976 (ON SC), which was raised by
Yorktown, noting that in that case the government had been informed by the police that their system
was being used for fraud. The Court cited Am-Stat Corporation v. Ontario, 2018 ONCA 877, noting that a
relationship of proximity giving rise to a prima facie duty of care can only arise explicitly or by
implication from the language of the governing legislation or from the nature of the interactions
between the parties. Here there was no express duty in the statute to third parties whose business is
the trade of used vehicles. There were also no specific transactions between Yorktown and Ontario that
would ground the duty of care. Further, recognizing a duty of care would have had the potential to
create an indeterminate class. As such, the Court found that there was no duty of care between Ontario
and Yorktown and dismissed the action.
