Defending Sexual Assault and Harassment at Work

In situations involving sexual misconduct in the workplace, criminal and employment law can intersect, sometimes with adverse results for an employee who has been accused. In situations where an employer or institution believes that one of their employee’s may be guilty of sexual misconduct in the workplace, either due to a specific complaint or through some other source, they will launch an investigation into the matter. Ontario’s Health and Safety Act was recently updated, mandating that employers must investigate any and all complaints of sexual misconduct or harassment in the workplace. Such an investigation often involves a third-party investigator being hired by the company or institution to conduct a full impartial and independent investigation into the matter. Third-party investigators are tasked with collecting any and all relevant information in order to make various findings of fact to conclude whether misconduct has occurred. In almost all cases, part of this investigation will involve speaking to the complainant, potential witnesses and to the impugned employee. Typically, the investigator will interview all relevant parties to gain a better understanding of what occurred. In most cases, law enforcement will not be contacted until the employer has completed their investigation, except in more extreme cases. This fact can lead to complications for an employee who is later arrested and charged for the allegations. Those who are charged with a criminal offence automatically gain certain rights, such as the right to remain silent and the right against self-incrimination. However, these rights have often not yet attached during the employer’s investigation. It is common for employees in this situation to feel compelled to speak to the investigator and give a statement. An accused employee may see it as their opportunity to tell

Does the Court of Appeal have the Inherent Jurisdiction to Hear an Appeal of an Interlocutory Order?

The Court of Appeal for Ontario has no jurisdiction to hear an appeal from an interlocutory order.In P.M. v. M.A., 2017 ONCA 6, the Court of Appeal rejected counsel’s argument that the Court had inherent jurisdiction or some type of residual jurisdiction to hear the appeal of an interlocutory order of the Superior Court.The concept of inherent jurisdiction has been described as follows:The inherent jurisdiction of the court is a virile and viable doctrine, and  has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particularly to ensure the observation of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them"The Inherent Jurisdiction of the Court" (1970), 23 Current Legal Problems 27-28. In Halsbury's Laws of England, 4th ed. (London: Lexis-Nexis UK, 1973 -) vol. 37,at para. 14The Court in P.M. v. M.A., 2017 ONCA 6 held that there must be a statutory basis for the Court to hear an appeal and counsel could not point to any.

The Purposes Behind Limitation Periods

In M. (K.) v. M. (H.), 1992 CanLII 31 (SCC),  [1992] 3 S.C.R. 6, [1992] S.C.J. No. 85, at paras. 21-24, the Supreme Court of Canada set out the underlying rationale for the limitations statutes as follows: There are three [purposes], and they may be described as the certainty, evidentiary, and diligence rationales. . . . Statutes of limitations have long been said to be statutes of repose . . . The reasoning is straightforward enough. There comes a time, it is said, when a potential defendant should be secure in his reasonable expectation that he will not be held to account for ancient obligations. . . . The second rationale is evidentiary and concerns the desire to foreclose claims based on stale evidence. Once the limitation period has lapsed, the potential defendant should no longer be concerned about the preservation of evidence relevant to the claim. . . . There are, however, rules for the amendment of pleadings, which allow a court to relieve against the harshness of an expired limitation period in certain circumstances (for instance, in Ontario Rules 26.01 and 5.04(2) of the Rules of Civil Procedure). It would be wrong, however, to view such rules as allowing a party to use the existence of an outstanding claim, and nothing more, to defeat the protection of relevant limitation periods.See Frohlick v. Pinkerton Canada Limited, 2008 ONCA 3 (CanLII) at para 20In an upcoming blog I will discuss how this judicial policy informs the rules in respect of the amendment of pleadings.

Participant Experts v. Litigation Experts

At common law a distinction developed between expert witnesses engaged to provide opinion evidence in relation to a proceeding (litigation expert) and an expert not engaged by a party to form his/her opinions, and who does not form his/her opinions for the purpose of the litigation (participant expert). An example of the latter is a treating physician who gives opinion evidence directly related to his/her treatment of a patient, such as a working diagnosis and prognosis.   The distinction between these types of expert witnesses has been codified in amendments to the Rules of Civil Procedure as of 2010.The Rules of Civil Procedure provides a comprehensive framework addressing a specific class of expert witnesses (see Rules 4.1.01, 53.03 and Form 53):  those “engaged by or on behalf of a party to provide [opinion] evidence in relation to a proceeding.” Witnesses, albeit ones with expertise, testifying to opinions formed during their involvement in a matter, do not come within this description. They are not engaged by a party to form their opinions, and they do not form their opinions for the purpose of the litigation. As a result, this type of expert (a participant expert) may give opinion evidence for the truth of its contents without complying with the procedural requirements set out in rule 53.03.Westerhof v. Gee Estate, 2015 ONCA 206 at para 14.The Court of Appeal for Ontario has been clear that a party does not “engage” an expert “to provide [opinion] evidence in relation to a proceeding” simply by calling the expert to testify about an opinion the expert has already formed.Westerhof v. Gee Estate, 2015 ONCA 206 at para 82.A participant witness—a witness with special skill, knowledge, training, or experience who has not

Security for Costs of Appeal (Cont’d)

"For other good reason"In my November 9, 2016 blog, I discussed motions for security for costs of appeal where there is good reason to believe the appeal is frivolous and vexatious and that the appellant has insufficient assets in Ontario to pay the cost of the appeal: Rule 61.06(1)(a) of the Rules of Civil Procedure.There is in the appellate context, however, an additional basis for a court to issue an order for security for costs, viz: where there is "other good reason" (Rule 61.06(1)(c)).This rule does not necessarily require that the respondent to the appeal establish that the appellant has insufficient assets in Ontario to pay the costs of the appeal, or even that the appeal is frivolous and vexatious.Even when the case is not frivolous and vexatious, a low prospect of success is a factor that may lead the Court ot conclude that it is appropriate to order security for costs.  For instance, in Perron v. Perron, the Court of Appeal for Ontario made an order for security for costs despite not finding the appeal to be frivolous or vexatious.  The low prospect of success on appeal, coupled with the behavior of the appellant which included lengthening the trial process and avoiding liability for his costs at trial was sufficient to allow the Court to make an order for security for costs "for other good reason."See Perron v. Perron, 2011 ONCA 776 ONCA 776 (CanLII) at paras 21 and 23In the circumstances, the Court held, it would be very unfair to expose the respondent to the risk that the appellant will not satisfy the costs of appeal.Rule 61.06 of the Rules of Civil Procedure:          SECURITY FOR COSTS OF APPEALIn an appeal where it appears

What is the appropriate date for the assessment of damages?

It is well established that the general measure of damages for breach of contract is the amount of damages that will, so far as money can, place the aggrieved party in the same position as if the wrong had not been done.The focus is on the injured party’s loss and on the measure of compensation required to restore it to the position that it would have been in had the contract been performed.With respect to the appropriate date for the assessment of damages, the presumption is that damages, including those for loss of a business or opportunity, should generally be assessed as of the date of breach: Johnson v. Agnew, [1980] A.C. 367 (H.L.), at pp. 400-401.  The general presumption that damages will be assessed as of the date of breach may be subject to exceptions where fairness requires it.  However, this presumption should not be easily displaced; any deviation from it must be based on legal principle. As the British Columbia Court of Appeal recently noted in Dosanjh v. Liang, 2015 BCCA 18 (CanLII), 380 D.L.R. (4th) 137, at para. 55:[T]he presumption that contract damages are to be assessed as of the date of the breach is not so easily displaced. It is important that the law in this area be predictable, and such predictability is not served by allowing judges unbounded discretion as to the date for assessment of damages.This general presumption should only be displaced in special circumstances, such as, for example, where no market exists to replace undelivered shares at the date of breach: Kinbauri, at para. 126; or in relation to “[s]ome classes of property, including shares, whose value is subject to sudden and constant fluctuations of unpredictable amplitude, and

Re-opening an Appeal

Courts have long frowned on the practice of raising new arguments on appeal. The concerns are two-fold: first, prejudice to the other side caused by the lack of opportunity to respond and adduce evidence at trial and second, the lack of a sufficient record upon which to make the findings of fact necessary to properly rule on the new issue. See Chuang v. Toyota Canada Inc., 2016 ONCA 852; College of Optometrists of Ontario v. SHS Optical Ltd. (c.o.b. Great Glasses), 2008 ONCA 6895 (CanLII); Kaiman v. Graham, 2009 ONCA 77 (CanLII), 245 O.A.C. 130, at para. 18 A party seeking to re-open an appeal after the appeal decision has been rendered faces a high hurdle.. In Mujagic v. Kamps, 2015 ONCA 360 (2015 ONCA 360 (CanLII), 125 O.R. (3d) 715, at para. 12, the Court of Appeal for Ontario said that the power to re-open an appeal “will be exercised sparingly and only where it is clearly in the interests of justice”.

Motions for Security of Costs

Appeal    Security for Costs      A respondent to an appeal should consider whether or not to bring a motion requiring the appellant to post security of costs, essentially a payment made by the appellant into court underwriting the costs award against the appellant which might follow if the appeal is ultimately unsuccessful.An order for security for costs is appropriate when it is unfair to expose the respondent to the risk that the appellant will not satisfy the costs of the appeal if the appeal is unsuccessful.  Security of costs on appeal is governed by Rule 61.06(1)(a) and (c) of the Rules of Civil Procedure.For such an order to be granted under 61.06(1)(a), the motion judge musthave good reason to believe the appeal has no merit and is therefore frivolous and vexatious, andhave good reason to believe the appellant has insufficient assets in Ontario to cover the costs of the appeal.Of course, on a practical level it is impossible for a motions judge to assess adequately the merits of an appeal, considering the transcripts and volume of material which will be placed before the appellate court. In light of this, a judge hearing a motion for security for costs may reach the tentative conclusion that an appeal appears to be so devoid of merit as to give "good reason to believe that the appeal is frivolous and vexatious" without being satisfied that the appeal is actually totally devoid of merit.Where the appeal has a low prospect of success, more is required to establish the appeal as frivolous and vexatious."The words "frivolous and vexatious" imply that the appeal must not only have a minimal chance of success; there must be good reason, on the facts surrounding the litigation, or from the conduct of