COURT OF APPEAL FOR ONTARIO

CITATION:
Beldycki
    Estate v. Jaipargas, 2012 ONCA 537

DATE: 20120810

DOCKET: C53118

Sharpe, Armstrong and Watt JJ.A.

BETWEEN

The Estate of Adam Beldycki
,
by Estate Trustees Mariusz Beldycki and Evelina Beldycki
,
    Zdzislaw Beldycki, Jadwiga Beldycki, Mariusz Beldycki and Evelina Beldycki

Plaintiffs (
Respondents
)

and

Dr. Charles Jaipargas, Dr. Donald Munnings, Dr.
    Claire Coire, Dr. Michael King,
Dr. William Magnuson
and Trillium Health Centre, Mississauga Site

Defendants (
Appellant)

Kirk F. Stevens and Jennifer L. Hunter, for the appellant

Duncan N. Embury and Daniela M. Pacheco, for the respondents

Heard: February 6, 2012

On appeal from the judgment of Justice E. Eva Frank of
    the Superior Court of Justice, sitting with a jury, on December 10, 2010.

Watt J.A.:

[1]

A surgeon removed a cancerous tumour from Adam Beldyckis colon.  A few
    days later, Dr. William Magnuson, a radiologist, reviewed a CT scan of Adam Beldyckis
    abdomen to determine whether the cancer had metastasized. Dr. Magnuson
    reported that the CT scan was normal. As a result, no post-operative treatment
    was scheduled.

[2]

Dr. Magnuson (the appellant) was wrong. He missed a visible lesion, 2 cm
    in diameter, in Adam Beldyckis liver.

[3]

The jury found the appellant negligent for failing to see the lesion in
    Adam Beldyckis liver. It further found that the appellants negligence caused
    or contributed to Adam Beldycki not being disease-free when the case was tried
    and awarded him substantial damages.

[4]

The appellant does not challenge the jurys finding that he was
    negligent in failing to see the lesion in Adam Beldyckis liver. He does
    contend, however, that the jury was wrong in finding that his negligence caused
    the damages claimed, and in failing to reduce the award for future loss of
    income by taking into account certain contingencies.

[5]

These reasons explain why I would dismiss Dr. Magnusons appeal and
    affirm the jurys verdict.

The background facts

[6]

The grounds of appeal advanced in his case require some reference to
    various features of the evidence adduced at trial.

The Principals

[7]

In 2004, Adam Beldycki was a 29-year old pilot with Georgian Airways.
    He wanted to become a pilot with Air Canada, like his brother, and had applied
    for a position with the airline. He passed away on April 10, 2011. His estate
    and estate trustees are the respondents to this appeal.

[8]

Dr. William Magnuson was a general radiologist at the Mississauga site
    of the Trillium Health Centre.

The Diagnosis and Surgery

[9]

In the fall of 2004, a biopsy disclosed a cancerous tumour in Adam
    Beldyckis sigmoid colon. A surgeon removed the tumour and resected several
    contiguous lymph nodes. The surgeon considered the cancer localized and
    completely excised by the surgery. Nonetheless, he arranged for a CT scan to
    ensure that the cancer hadnt spread.

The Post-Operative Period

[10]

Within
    days of the surgery, the appellant reviewed the CT scan of Adam Beldyckis abdomen.
    He saw nothing to indicate that the cancerous growth in Adams colon had metastasized.
    He reported the CT scan as normal.

[11]

Adam
    Beldycki was referred to an oncologist for any essential post-operative
    treatment, such as chemotherapy. The oncologist reviewed the radiological and
    other reports and concluded that no post-operative treatment was required
    because the cancer had not metastasized.

[12]

Adam
    Beldycki returned to work as a pilot for Georgian Airways. He continued to
    pursue employment prospects at Air Canada.

The Employment Medical

[13]

In
    early 2006, Adam Beldycki underwent some medical testing as part of his continued
    pursuit of employment as a pilot with Air Canada. Blood tests revealed elevated
    liver enzymes. A liver ultrasound disclosed several liver lesions.  A CT scan
    and biopsy followed.

[14]

Adam
    Beldycki had stage four colon cancer. His oncologist told him that without
    treatment, he had four to six months to live. With treatment, he could expect
    to survive for about 20 months. The proposed treatments, however, would be
    palliative, not curative.

The Treatment

[15]

Doctors
    embarked on an aggressive form of chemotherapy in an attempt to shrink the
    colon cancer tumours in Adam Beldyckis liver. However, Adam could not tolerate
    this aggressive chemotherapy and a less effective combination of drugs was administered
    instead.

[16]

A
    surgeon removed the entire right lobe of Adam Beldyckis liver, but could not resect
    at least two lesions in the left lobe. Radiofrequency ablation followed. The
    disease returned. Colon cancer found in lymph nodes resected near the liver
    came from the colon, not the liver. At trial, the malignancy had spread into Adams
    lungs.

The Subsequent Events

[17]

On
    December 10, 2010, the jury returned its verdict. Four months later, on April
    10, 2011, Adam Beldycki died.

the grounds of appeal

[18]

The
    appellant does not challenge the jurys finding that he was negligent when he
    failed to see or identify the 2.2 cm lesion on the right lobe of Adam Beldyckis
    liver when he reviewed the CT scan in December 2004.

[19]

Instead
    he  advances three grounds of appeal that I would paraphrase in these terms:

i.        the
    jurys finding on causation is unreasonable and not     supportable on the
    evidence adduced at trial;

ii.       that
    a miscarriage of justice occurred because of non-direction   and misdirection in
    the charge to the jury on the difference      between survival and cure rates,
    the evidence of Adam Beldyckis expert on causation, and the absence of
    evidence to support a finding of future loss of income; and

iii.      that
    the jurys failure to reduce the award for future loss of         income to
    reflect the possibility that Adam Beldycki would not          have been cured
    had the appellant detected the liver lesion in    December 2004 was
    unreasonable.

Ground #1: Unreasonable Finding on Causation

[20]

The
    first ground of appeal characterizes the jurys finding that there was a causal
    nexus between the appellants negligence and Adam Beldyckis damages as
    unreasonable.

[21]

In
    this case, the causation issue reduces to whether, absent the appellants
    negligence, Adam Beldycki had a greater than 50 per cent chance of a cure, in
    other words, a greater than 50 per cent chance of surviving for five years without
    cancer recurrence.

The Expert Evidence

[22]

The
    oncology experts who testified at trial on the issue of causation agreed on the
    meaning to be assigned to the terms survival rate and cure rate in cancer
    treatment.

[23]

The
    term survival rate refers to a patient who has survived for five years after
    completion of cancer treatment. The period of survival may include a time
    during which the patient continued to suffer from, or suffered a recurrence of,
    the same or another form of cancer.

[24]

The
    phrase cure rate refers to a period of five years after treatment during
    which the patient is free of cancer. A patient is cured if she or he survives
    without cancer for at least five years from the conclusion of prior treatment.

[25]

Dr.
    Yoo-Joung Ko, qualified as an expert in medical oncology specializing in
    gastrointestinal cancers, more specifically in colorectal and metastatic
    colorectal cancer, testified on behalf of Adam Beldycki.

[26]

Dr.
    Ko gave evidence that in the decade or more before Adam Beldyckis diagnosis, significant
    developments had occurred in the treatment of colon cancer. Previously,
    treatment for colon cancer that had metastasized into the liver was palliative
    not curative. With these new developments, the focus had shifted to curative
    treatment.

[27]

Dr.
    Ko testified that, absent the appellants negligence in failing to detect the
    liver lesion in December 2004, Adam Beldycki would have received post-operative
    treatment in late 2004 or early 2005. The post-operative treatment would have
    included liver resection to remove the 2.2 cm lesion in the liver that Dr.
    Magnuson missed, and chemotherapy to take care of any remaining lesions that
    were too small to be visible on the CT scan.

[28]

Dr.
    Ko based his conclusion that Adam Beldycki would have had a better than 50 per
    cent chance of being cured absent Dr. Magnusons negligence on several factors.
    These included the relevant medical literature, his own practice and
    experience, and Adam Beldyckis circumstances, including his young age.

[29]

It
    is common ground that Dr. Ko was mistaken when he described a study by Dr.
    Abdalla in Houston as supporting a cure rate as high as 72 or 73 per cent.
    The study referred to a survival rate, not a cure rate

[30]

Dr.
    Mark Vincent gave expert evidence on behalf of the appellant. Dr. Vincent
    is an oncologist whose practice is equally divided between patients he treats
    for colorectal cancers and those he treats for lung cancers.

[31]

Dr.
    Vincent testified that even with surgical resection of the missed liver lesion
    in December 2004, or early the following year, Adam Beldyckis chance of being
    cured of cancer was only around 30 per cent. Inclusion of chemotherapy in the
    treatment would not have significantly improved the likelihood of cure.

[32]

Dr.
    Vincent explained that by examining the growth of the undetected liver lesion
    between 2004 and 2006, he could determine the average doubling time of the
    other liver lesions found in 2006, and extrapolate backwards to determine when
    those lesions first existed in the liver. He concluded that Adam Beldycki had
    more than a single liver lesion in 2004, something that might have been
    apparent to an operating surgeon but would not necessarily have been visible on
    a CT scan. Further, the distribution of lesions in the liver made it more
    likely that those lesions originated in the colon, as opposed to the liver.

[33]

Dr.
    Vincent acknowledged that the growth rate of lesions varies among patients as
    well as within individuals. The age of a patient, thus of study groups
    reflected in the literature, is important. Also significant is whether the
    disease has spread elsewhere at the time of surgery and whether contiguous
    lymph nodes were positive or negative for cancer. At the time of surgery in
    December 2004, Adam Beldyckis lymph nodes were negative.

[34]

Dr.
    Ko explained that medical oncologists in clinical practice do not use the
    doubling time principle employed by Dr. Vincent when they provide a prognosis
    to a cancer patient. The principle, Dr. Ko said, has not been tested or
    validated in a prospective study.

The Charge to the Jury on Causation

[35]

The
    trial judge provided counsel with a copy of her proposed charge.  Without
    objection, she instructed the jury on causation in these terms:

Putting it in another way, the plaintiffs must satisfy you
    with respect to Dr. Magnuson, that diagnosis in December 2004 of the metastatic
    liver disease would have resulted in Mr. Beldycki being cured of cancer.

If you find that but for Dr. Magnusons conduct, the
    probability is that Mr. Beldycki would have had a greater than 50 per cent chance
    of being cured of his cancer, then you must find that Dr. Magnuson caused Mr.
    Beldyckis damages and is liable for them.

As I have said, you do not need to be satisfied that there was
    causation on the basis of scientific precision. Causation is essentially a
    practical question of fact that can best be answered by the application of
    ordinary common sense to the evidence.

I remind you that what the plaintiffs must establish is that
    there is a probability that Mr. Beldycki would have had a greater than 50 per
    cent chance of being cured of his cancer had he received chemotherapy following
    his surgery in 2004.  A guess that this would have been the outcome does not
    meet the burden.  It is for you to decide, based on all of his evidence including
    evidence-in-chief that Mr. Beldycki had a better than 50 per cent chance of
    being cured, whether Dr. Kos evidence provides sufficient proof to meet the
    burden, in spite of his having referred to that opinion as his best guess.

The Arguments on Appeal

[36]

For
    the appellant, Mr. Stevens does not dispute that Adam Beldycki was deprived of a
    chance of cure for his colon cancer when Dr. Magnuson missed the liver lesion
    on his review of the CT scan in December, 2004.  But to establish the necessary
    causal link between the failure to detect and the proliferation of the cancer, Adam
    Beldycki had to show that it was more probable than not that with timely
    treatment he would have been cured.  In other words, he had to show that he
    would have been free of cancer five years after his last treatment. The
    evidence, Mr. Stevens says, is incapable of sustaining this conclusion.

[37]

Mr.
    Stevens submits that the only witness upon whose evidence Adam Beldycki relied
    was Dr. Ko. And Dr. Kos opinion was seriously flawed. Dr. Ko misstated the
    effect of the Abdalla study, to which no reference was made or reliance placed
    in his report. He mischaracterized as a cure rate what Dr. Abdalla had
    reported as a survival rate, an error that was not clarified in the charge to
    the jury. In his own terms, Dr. Kos opinion was a guess or an estimate. It
    was therefore inadequate to establish causation.

[38]

For
    the respondents, Mr. Embury begins with a reminder about the significant burden
    imposed on an appellant who seeks to overturn the verdict of a civil jury as
    unreasonable. The appellant must demonstrate that no jury, viewing the evidence
    on the issue as a whole and acting judicially, could have reached the
    conclusion these jurors did. Mr. Embury says that the jurys finding was open
    to them on the evidence adduced at trial, especially the testimony of Dr. Ko.

[39]

Mr.
    Embury points out that causation, like other factual findings, falls to be
    decided on the whole of the evidence adduced at trial. The issue was properly
    left to the jury without any need for express instruction on the difference
    between cure and survival rates, a subject thoroughly canvassed by counsel at
    trial and properly stated in the questions submitted to the jury for answer.
    Trial counsel for the appellant did not object to the charge on causation or to
    the omission of the distinction now said to have been crucial.

The Governing Principles

[40]

The
    parties do not differ significantly on the principles that govern the issue
    raised.
AlthougHoHo
However, they part
    company on the result the application of those principles should yield in this
    case.

[41]

First,
    an appellant who challenges a civil jury verdict on the ground that the verdict
    is unreasonable is required to show that no jury, viewing the evidence as a
    whole and acting judicially, could have reached such a conclusion:
McCannell
    v. McLean
, [1937] S.C.R. 341, at p. 343;
Bovingdon (Litigation
    Guardian of) v. Hergott
(2008), 88 O.R. (3d) 641 (C.A.), at para. 22. In
    construing the jurys findings, we must not apply an overly rigorous, critical
    method. If, on a fair interpretation, the findings can be supported on a
    reasonable view of the evidence adduced at trial, we should give effect to
    those findings:
McCannell
, at p. 343;
CNR v. Miller
, [1934] 1
    D.L.R. 768 (S.C.C.), at p. 769.

[42]

Further,
    in a civil case, a new trial will only be ordered where the interests of
    justice plainly require it: see
Fiddler v. Chiavetti
, 2010 ONCA 210,
    317 D.L.R. (4th) 385, at para. 9.  A reviewing court will not direct a new
    trial unless there has been a substantial wrong or miscarriage of justice:
    see
Courts of Justice Act
, R.S.O. 1990, c. C-43, s. 134(6).

[43]

Second,
    although a failure by counsel to object to a charge to the jury in a civil case
    is not dispositive on appeal, such a failure tells heavily against a request
    for a new trial based on alleged flaws in the charge:
Kerr v. Loblaws Inc.
,
    2007 ONCA 371, 224  O.A.C. 56, at para. 32;
Brochu v. Pond
(2002), 62
    O.R. (3d) 722 (C.A.), at para. 66; and
Mizzi v. Hopkins
(2003), 64 O.R.
    (3d) 365 (C.A.), at para. 50.

[44]

Third,
    in an action for delayed medical diagnosis and treatment, a plaintiff must
    establish on a balance of probabilities that the delay caused or contributed to
    the unfavourable outcome. A plaintiff who fails to prove that the unfavourable
    outcome would have been avoided with prompt diagnosis and treatment, will fail
    to establish his or her claim. It is not enough for a plaintiff to prove that
    adequate diagnosis and treatment would have afforded the plaintiff a chance of avoiding
    the unfavourable outcome unless the chance surpasses the threshold of more
    likely than not:
Cottrelle v. Gerrard
(2003), 67 O.R. (3d) 737
    (C.A.), at para. 25; see also
Laferrière v. Lawson
, [1991] 1 S.C.R.
    541.

[45]

Causation
    need not be determined with scientific precision, rather it is essentially a
    practical question of fact best answered by ordinary common sense.  Medical
    experts ordinarily determine causation in terms of certainties. The law demands
    a lesser standard:
Snell v. Farrell
, [1990] 2 S.C.R. 311, at paras.
    29, 30 and 34.

The Principles Applied

[46]

For
    several reasons I would not give effect to this ground of appeal.

[47]

First,
    as the appellant frankly acknowledges, the standard he must satisfy to succeed
    on this ground is extremely onerous.  In essence, we must be able to conclude
    that, in making their finding on this issue, the jury failed to perform the
    judicial duty assigned to it by the trial judge.  By this standard, the
    appellant comes up short.

[48]

Second,
    the evidence of Dr. Ko was that had the appellant detected the liver lesion in
    December 2004, Adam Beldycki would have had a surgical resection of the tumour
    in his liver and, post-operatively, chemotherapy that could reasonably be
    expected to have treated any other lesions too small to be visible on a CT
    scan. According to Dr. Kos review of the literature and his clinical
    experience, as a young man in otherwise good health, Adam Beldyckis chance of
    a cure exceeded 50 per cent. The jury were entitled to rely on this evidence in
    deciding the issue of causation. How much the probability of cure exceeded the
    threshold required was of no moment - only that it did: fifty-one per cent was just
    as good as 73 per cent.

[49]

Third,
    the jury were properly instructed on causation and Adam Beldyckis obligation
    to prove that but for the negligence of the appellant, he would be disease
    free today.

[50]

Fourth,
    causation was a finding of fact for the jury to make on all the evidence
    adduced at trial, including, but not only, the testimony of Dr. Ko.  Causation
    need not be determined with scientific precision. Nor does the issue turn on
    the use of a particular word formula by the qualified expert. Substance counts,
    not form.

[51]

Finally,
    trial counsel for the appellant did not object to the charge on causation on
    the basis of any of the errors or omissions alleged here.

Ground #2: Miscarriage of Justice

[52]

The
    second ground of appeal also relates to Dr. Kos misstatement of the results of
    the Abdalla study and the trial judges failure to expressly instruct the jury
    about the differences between survival and cure rates.

[53]

It
    is common ground that Dr. Ko misspoke when he characterized the Abdalla study
    as concluding that the cure rate following hepatic resection of solitary
    colorectal liver metastasis was 72 or 73 per cent at five years.  The parties
    agree and the fresh evidence
[1]
confirms that the study refers to a survival rate not a cure rate.

The Charge to the Jury

[54]

The
    causation question formulated for the jurys decision asked whether Dr.
    Magnusons failure to meet the standard of care caused or contributed to Adam
    Beldycki not being disease free today.

[55]

In
    her charge, the trial judge repeated Dr. Kos misstatement of the conclusion of
    the Abdalla study. She did not expressly point out the distinction between
    survival rate and cure rate or that the causation question involved the
    latter, not the former.

[56]

At
    the outset of her discussion of the causation issue in connection with Dr. Magnuson,
[2]
the trial judge said:

This instruction with respect to causation applies equally to
    the claim against Dr. Magnuson. If you find that but for Dr. Magnusons
    conduct, the probability is that Mr. Beldycki would have had a greater than 50
    per cent chance of being cured of his cancer, then you must find that Dr.
    Magnuson caused Mr. Beldyckis damages and is liable for them.

She then described causation as a practical question
    of fact that can best be answered by the application of ordinary common sense
    to the evidence.

[57]

Towards
    the end of her evidentiary references on causation in connection with Dr.
    Magnuson, the trial judge said:

Dr. Ko testified that his opinion that had Mr. Beldycki
    received treatment for Stage 4 cancer rather than Stage 1 cancer in 2004, Mr.
    Beldycki would be disease free, is just a guess based on patients similar to
    Mr. Beldycki in the literature and in Dr. Kos practice. I remind you that what
    the plaintiffs must establish is that there is a probability that Mr. Beldycki
    would have had a greater than 50 per cent chance of being cured of his cancer
    had he received chemotherapy following his surgery in 2004. A guess that this
    would have been the outcome does not meet the burden. It is for you to decide,
    based on all of his evidence including evidence-in-chief that Mr. Beldycki had
    a better than 50 per cent chance of being cured, whether Dr. Kos evidence
    provides sufficient proof to meet the burden, in spite of his having referred
    to that opinion as his best guest.

The Positions of the Parties

[58]

For
    the appellant, Mr. Stevens acknowledges that, in civil cases, a new trial
    should not be ordered unless the interests of justice plainly require it. He
    submits, however, that in this case the cumulative effect of the trial judges errors
    and the jurys response thereto caused a miscarriage of justice. He relies on:

·

The trial judges repetition of Dr. Kos mischaracterization of
    the conclusions of the Abdalla study;

·

Her failure to expressly distinguish between the survival rate
    and cure rate and to instruct the jury that only the cure rate was of
    importance on the issue of causation; and

·

The jurys failure to appreciate the distinction between the two,
    as evidenced by its failure to reduce the award for future loss.

The only appropriate remedy, he submits, is a new
    trial.

[59]

For
    the respondents, Mr. Embury says that the appellant has failed to meet the
    stringent standard required to justify a new trial in a civil jury trial. He
    says that the real issue to be determined is whether any errors in the judges
    charge deprived the appellant of the right to a fair trial in the circumstances
    of this case.  The causation issue, the evidence relied upon by the parties on
    the issue, and the differences between survival and cure rates were fully
    explored in the testimony, the addresses of counsel, and in the charge. The
    causation question referred to cure, not survival. Counsel did not object
    to the charge on causation.

The Governing Principles

[60]

The
    applicable principles have already been canvassed in connection with the first
    ground of appeal.  Nothing will be gained by the repetition.

The Principles Applied

[61]

This
    ground of appeal fails.

[62]

The
    causation issue was fully explored at trial. The principal witnesses,
    Dr. Ko and Dr. Vincent, distinguished between cure and survival rates. The
    causation question referred to Adam Beldycki being cancer free today. The
    conflicting evidence on causation was a principal focus of closing arguments.
    The instructions on causation attracted no objection from trial counsel for the
    appellant. Finally, the jurys finding on future loss, discussed below, does
    not reflect any lack of appreciation of the distinction between cure and
    survival rates.

Ground #3: Deduction for Future Contingencies

[63]

The
    final ground of appeal relates exclusively to the jurys award for future
    income loss. The appellant seeks a reduction in the award on the basis that the
    jury failed to take into account future adverse contingencies.

[64]

Brief
    reference to some of the evidence adduced at trial and to the trial judges
    charge will provide a suitable setting for the discussion that follows.

The Evidence About Future Income Loss

[65]

The
    parties each called experts to quantify Adam Beldyckis past and future
    economic losses. Neither experts future income loss calculations included
    consideration of negative or positive contingencies. The appellants expert
    explained that, as was his practice absent compelling reasons not to do so, he
    assumed positive and negative contingencies would offset each other.

[66]

Dr.
    Eli Katz, an economist who testified on behalf of Adam Beldycki, concluded that
    his future income loss, including his claim for lost years discounted by 50 per
    cent for living expenses, ranged from $1,024,450 to $1,477,366.

The Charge to the Jury

[67]

In
    her charge to the jury on Future Loss of Income and Lost Years of Earnings,
    the trial judge explained Adam Beldyckis burden of proof in these terms:

The onus, or burden of proof, rests on the plaintiff to prove
    the loss of future income, but it is not a loss that must be proven precisely,
    that is, in an exact dollar and cent figure. And the burden of proof is lower
    for a plaintiff with respect to a claim for future loss of earnings.  With
    respect to this claim, Mr. Beldycki need only satisfy you on the evidence that
    there is a real and substantial possibility that he has lost a chance of
    earning income in the future, to be entitled to damage for this. Of course, the
    possibility cannot be based on speculation alone.

If a plaintiff establishes a real and substantial possibility
    of a future loss, then he is entitled to compensation based on the percentage
    of possibility that you find that the future loss will. Compensation for future
    losses is not an all or nothing proposition. The greater the probability of
    loss, the greater will be the compensation. You will recall that the highest
    end of the range that Dr. Ko testified applied to Mr. Beldyckis chances of
    being cured was 70, or perhaps, 73 per cent. If you accept that percentage, you
    will have to reduce Mr. Beldyckis future loss of earnings from the date of his
    death by around 30 per cent.
[3]

[68]

The
    trial judge returned to the subject of contingencies later in her charge:

In deciding how much Mr. Beldycki would have earned from the
    date of the commencement of the trial forward, you must consider contingencies,
    those things that might happen in the future and would have an effect, either
    positive or negative, on his earnings.

Some contingencies apply generally to people in the work force
    potentially adversely affecting their earnings. These include future illness or
    accidents that might impair earning ability, general economic downturn,
    strikes, jobs lost through dismissal or changes at the employer resulting in
    lay-off or the failure of the employer. All of these things reduce earning
    capacity.

To summarize then, when you consider Mr. Beldyckis claims
    for loss of future income and lost years of earnings, before you do any
    calculations you will have to decide:

1.       What is Mr. Beldycki
s life
    expectations?

2.       Would Mr. Beldycki have had an
    extended life expectancy because he would have been cured, if he had been
    diagnosed and treated following his seeing Dr. Jaipargas in September 2003 or
    if the liver lesion had been noted by Dr. Magnuson in December 2004?

3.       If Mr. Beldycki had been cured, what
    would his salary have been, when would he have retired and what is the effect
    of contingencies on his earnings?

The Arguments on Appeal

[69]

For
    the appellant, Mr. Stevens takes no objection to the correctness or
    completeness of the trial judges instructions on the impact of contingencies
    on Adam Beldyckis claim for future income loss. He submits, however, that the
    jurys award of $1,250,000 on this claim is the unreasonable result of its failure
    to follow the trial judges instructions. The award should be discounted by 30
    percent to $1,034,156.20 to reflect the fact that Adam Beldycki had a 30
    percent chance of not surviving even if the lesion had been detected.

[70]

For
    the respondents, Mr. Embury says that once the jury found that the appellant caused
    the loss, Adam Beldycki was entitled to full compensation for his loss without
    deduction for negative contingencies. Once proven, causation is established as
    a legal certainty.  Future events are, by nature, hypothetical and incapable of
    proof to any level of certainty, thus not subject to deduction for negative
    contingencies.

The Governing Principles

[71]

To
    determine the validity of appellants assertion of the unreasonableness of the
    jurys award for future income loss, it is helpful to examine the role or
    relevance of contingencies in claims for future income loss.

[72]

Courts
    deal with alleged past events and potential future or hypothetical events in
    different ways.

[73]

Past
    events must be proven on the evidence adduced at trial by the party who bears
    the onus of proof. Once proven to the applicable standard of proof, we treat
    those past events as certainties:
Athey
, at para. 28.  In an action
    for negligence, the court must decide whether the defendant was negligent and
    whether the defendants negligence caused the plaintiffs injury. Once proven,
    negligence and causation are accepted as certainties:
Athey
, at para.
    28.

[74]

On
    the other hand, hypothetical or future events, such as how the plaintiffs life
    would have proceeded without the failed diagnosis, need not be proven, but simply
    accorded weight on the basis of their relative likelihood. A future or
    hypothetical possibility will be taken into account provided it is a real and
    substantial possibility and not mere speculation:
Athey
, at paras. 27
    and 41.

[75]

A
    trier of fact required to assess future pecuniary loss becomes engaged in an
    exercise that is, perforce, somewhat speculative. The ultimate questions to be
    decided cannot be proved or disproved in the same way as facts relating to past
    events. A plaintiff who seeks compensation for future pecuniary loss need not
    prove on a balance of probabilities a loss or diminution of future earning
    capacity or a requirement of future care because of a defendants wrong. A
    plaintiff who establishes a real and substantial risk of future pecuniary loss
    is entitled to compensation:
Graham v. Rourke
(1990), 75 O.R. (2d) 622
    (C.A.), at p. 634.

[76]

However,
    a plaintiff who establishes a real and substantial risk of future pecuniary
    loss is not necessarily entitled to the full measure of that potential loss.
    Entitlement to compensation depends, in part at least, on the degree of risk
    established. Risk in this sense refers to the risk of future loss  not the
    degree to which causation was established. The measure of compensation will
    also depend on the possibility, if any, that a plaintiff would have suffered
    some or all of the projected losses even if the wrong done to him or her had
    not occurred:
Graham
, at pp. 634-635.

[77]

A
    contingency is a chance occurrence, something that is dependent on an uncertain
    event. We refer to factors that affect the degree of risk of future economic
    loss and the possibility that all or part of these losses may have occurred
    apart from the tortious conduct that underpins the litigation as contingencies:
Graham
, at p. 635.

[78]

As
    a general rule, we take account of contingencies that might affect future
    earnings. This is so despite the fact that these contingencies are already implicitly
    contained in an assessment of the projected average level of earnings of the
    person wronged. Not all contingencies are adverse. And some public and private
    schemes cushion individuals against adverse contingencies. The percentage
    deduction is generally small:
Andrews v. Grand & Toy Alberta Ltd
.,
    [1978] 2 S.C.R. 229, at p. 253.

[79]

Contingencies
    may be general or specific. General contingencies represent the common lot of
    all of us. Adjustments based on general contingencies should only be modest:
Graham
,
    at p. 636. Specific contingencies are peculiar to an individual plaintiff and
    require evidentiary support for the conclusion that the occurrence of the
    contingency is a realistic, not merely a speculative possibility:
Graham
,
    at p. 636; and
Schurrip v. Koot
(1977), 18 O.R. (2d) 337 (C.A.), at p.
    343.

The Principles Applied

[80]

I
    would give no effect to this ground of appeal for four reasons.

[81]

First,
    the appellant challenges the jurys award on future income loss as
    unreasonable. Thus the appellant must demonstrate that the quantum of damages
    awarded under this head was one that no trier of fact, considering the evidence
    as a whole and acting judicially, could reasonably have rendered. The
    assessment of damages is in the peculiar province of the jury.  The court will
    only interfere with a jurys award for damages where it is
so
    grossly out of proportion to the negligence as to shock the court's conscience
    and sense of justice:
Hill v. Church of Scientology
, [1995] 2 S.C.R. 1130, at para. 159 citing
Walker v.
    CFTO Ltd.

(1987), 59
    O.R. (2d) 104
(C.A.), at p. 110.

[82]

The
    appellant rightly acknowledges the stringent standard he must meet to have this
    portion of the award set aside and substituted with the amount he says is
    appropriate. Like many before him, and doubtless many in the future, he fails.
    Quite simply put, this award is not unreasonable.

[83]

Second,
    it is a reasonable inference that the jury took into account adverse
    contingencies in reaching their conclusions on future income loss as the trial
    judge instructed them to do. Their award is about 15 per cent less than the
    upper limit of the range for future income loss described by Dr. Katz. That the
    reduction does not coincide with what the appellant contends is appropriate
    does not make the jurys conclusion unreasonable.

[84]

Third,
    the argument advanced by the appellant is based on flawed reasoning. Once it
    was established on a balance of probabilities that the appellants negligent
    failure to detect the liver lesion caused the metastasis of the colon cancer,
    no principle of law entitled the appellant to a discount from the full measure
    of the Adam Beldyckis damages to reflect the chance that, even given prompt
    treatment after deduction, the colon cancer might well still have metastasized:
Cabral v. Gupta
, [1993] 1 W.W.R. 648 (Man. C.A.), at para. 8; and
Hotson
    v. East Berkshire Area Health Authority
, [1987] A.C. 750, at p. 783. The
    jury found that Adam Beldycki would have been cured but for the appellants
    negligence. At law, that he would have been cured was therefore a certainty; that
    his cancer might still have metastasized was a legal impossibility.

[85]

Fourth,
    the appellant advances this position for the first time on appeal. Trial counsel
    failed to raise the issue before the trial judge notwithstanding ample
    opportunity to do so.

CONCLUSION

[86]

For
    these reasons, I would dismiss the appeal. The respondents are entitled to
    their costs that I would fix at $58,000 inclusive of disbursements and all
    applicable taxes.

David Watt J.A.

I agree Robert J. Sharpe J.A.

I agree
    Robert P. Armstrong J.A.

Released: R.P.A.  August 10, 2012

[1]
The appellant brought, and the panel allowed, a motion to adduce the fresh
    evidence of the Abdalla study for the purpose of demonstrating this
    misstatement.

[2]
At trial an action for negligence was also brought against another doctor.
    There was no finding of negligence against that doctor and no appeal has been
    taken from that decision.

[3]
Though nothing turns on it, the last two sentences of this excerpt are
    erroneous for the same reasons set out at para. 85. The discount, if any, on
    compensation for future loss of earnings is not based on the degree to which
    causation has been established. Causation once proven is a certainty.


COURT OF APPEAL FOR ONTARIO

CITATION:
Bennett v. Cunningham, 2012
    ONCA 540

DATE: 20120817

DOCKET: C53920

MacPherson, Gillese and MacFarland JJ.A.

BETWEEN

Dawn Marie Bennett

Plaintiff (Respondent)

and

Karen Rosalee Cunningham

Defendant (Appellant)

Kenneth M. Alexander, for the appellant

William R. Gale and Michael Stitz, for the respondent

Heard:  May 8, 2012

On appeal from the order of the Divisional Court
    (Hackland R.S.J., Harvison Young and Whitaker JJ.), dated January 19, 2011,
    with reasons by Hackland R.S.J. reported at 2011 ONSC 28, allowing an appeal
    from the judgment of Justice George T. Valin of the Superior Court of Justice,
    dated November 7, 2006.

MacFarland
    J.A.:

[1]

This
    is an appeal from the order of the Divisional Court (with leave of this court
    granted June 24, 2011), which allowed an appeal from the trial judgment which
    found that the respondent Ms. Bennett had been dismissed for just cause. The
    Divisional Court found that the trial judge erred in failing to apply a
    contextual approach to the analysis of whether there was just cause. The
    Divisional Court also concluded that the trial judge would have found that
    dismissal for just cause was not made out had he undertaken the appropriate
    analysis.

[2]

For
    the reasons that follow, in my view, the Divisional Court erred in finding that
    the trial judge failed to apply a contextual approach to his analysis of the
    question of whether there was just cause to terminate Ms. Bennett. I would
    overturn the order of the Divisional Court and restore the trial judgment in
    all respects.

THE FACTS

[3]

At
    all relevant times the parties were lawyers and members of the Law Society of
    Upper Canada. Ms. Cunningham operated a one-woman law firm in Mississauga,
    Ontario, and in the summer of 2002 was looking for a junior associate lawyer to
    assist her with litigation files. She interviewed Ms. Bennett, who had been
    called to the bar in 2001, for the position on July 4, 2002, and on July 8,
    2002 Ms. Bennett accepted Ms. Cunninghams offer of employment.

[4]

At
    trial, much time was spent on the issue of whether Ms. Bennett was an employee
    or an independent contractor. The trial judge determined that Ms. Bennett was
    an employee. That issue is not before us here.

[5]

At
    the time of her hiring, Ms. Bennett elected to be compensated on the basis of
    the first of two schemes offered by Ms. Cunningham. She would be paid fifty
    percent of all fees billed and collected with an annual, recoverable advance
    against commission of $38,000.

[6]

The
    trial judges other factual findings are set out in paragraphs 5 through 17 of
    his reasons for judgment:

[5] Ms. Bennett began work on
      July 15, 2002.  During her first morning of work, Ms. Cunningham presented
      her with a written agreement specifying the terms of the position. The written
      agreement contained a number of provisions that had not been discussed during
      either the interview or the subsequent telephone conversation when Ms. Bennett
      accepted the position.  Ms. Bennett signed the agreement.

[6] Ms. Bennett immediately
      assumed responsibility for a number of files, the majority of which were family
      law cases, an area in which she had little experience.  The office was
      busy.  Ms. Bennett worked long hours from Monday to Friday, and often on
      weekends.  She became concerned that Ms. Cunningham was not providing her
      with the tools she required to do her work.  Her concerns focused on the
      paucity of office resources available to her and the inadequacy of the
      technology in place.

[7] Ms. Bennett prepared a
      proposed business plan to address those concerns.  She met with Ms. Cunningham
      in mid-August 2002 to discuss them. In addition to office resource and
      technology issues, Ms. Bennett expressed concern that she had been asked to
      sign a written agreement relating to her position on such short notice,
      particularly when there had been no mention of a written agreement during the
      interview or at the time of the job offer.

[8] In response [to] Ms.
      Bennetts concerns, Ms. Cunningham had the staff attend at the office on a
      Saturday after her meeting with Ms. Bennett.  They identified and listed
      the files assigned to Ms. Bennett.  Ms. Cunningham invested in voice mail
      and software known as Amicus Attorney.  She also adopted Ms. Bennetts
      suggestion that each file contain a sub-folder for lawyers notes.

[9] Prior to the introduction of
      the Amicus Attorney software, Ms. Bennett had submitted handwritten dockets for
      the time spent on all files she worked on.  The receptionist was
      responsible for entering the dockets into the office computer for file and
      billing purposes.  The receptionist retired suddenly about August 22,
      2002, and was not replaced until September 1, 2002.

[10] Ms. Cunningham met with
      Ms. Bennett on the evening of November 5, 2002.  Ms. Bennett expressed
      concern that, while her share of fees billed was about $26,500, only $2,650 had
      been collected.  She was also concerned about whether all her time dockets
      had been entered.  A subsequent comparison of the handwritten documents
      with the computer records for her files confirmed that 42.8 hours of her
      docketed time had not been
entered
in the computer.

[11] The two lawyers met again
      on December 16, 2002.  Ms. Bennett remained concerned.  The gap
      between fees billed and collected had increased; after five months, the
      advances paid to Ms. Bennett exceeded her share of fees collected by about
      $10,000.  She asked Ms. Cunningham for a legal assistant.  Ms.
      Cunningham told her that if she wanted one, she would have to bear the cost
      from her commission income.

[12] Prior to this meeting, Ms.
      Bennett had pulled some accounts rendered and discovered a number of instances
      where time she had docketed had been credited to Ms. Cunningham.  When she
      learned of this, Ms. Cunningham told Ms. Bennett that these errors would be
      corrected upon receipt of copies of the accounts where such errors had
      occurred.

[13] Ms. Bennett met with Ms.
      Cunningham on Saturday morning, December 21, 2002, just prior to Ms. Cunningham
      leaving on a Christmas vacation. She handed Ms. Cunningham a four-page letter
      dated December 21, 2002, which documented nine areas of concern.  She also
      sent her a copy by registered mail.  In the letter, Ms. Bennett made a
      number of statements that Ms. Cunningham claimed were untrue.  Under the
      heading Docketing System, Ms. Bennett accused Ms. Cunningham of being
      dishonest and negligent.  The letter contained other comments suggesting
      that Ms. Cunningham was disorganized and incompetent.

[14] Ms. Cunningham left
      on vacation and returned to the office on January 6, 2003.  On that date,
      she invited Ms. Bennett to her office and informed her that she was
      terminated.  On January 8, 2003, Ms. Cunningham handed a termination
      letter dated January 7, 2003 to Ms. Bennett, advising that her last day of work
      was to be January 10, 2003.

[15] Ms. Bennett subsequently
      secured a similar position on similar terms with another lawyer.  She
      began working for him on March 25, 2003, although he had invited her to
      commence work as of March 1, 2003.

[16] Prior to the commencement
      of this action, Ms. Cunningham never asked Ms. Bennett to re-pay her any money
      by way of excess advances paid over Ms. Bennetts share of fees collected,
      although the agreement dated July 15, 2002 entitled her to do so.  While
      Ms. Bennett may have been concerned about her ability to pay Law Society fees
      and liability insurance premiums due at the end of December, she never
      expressed that concern to Ms. Cunningham.

[17] During the trial, Ms.
      Cunningham admitted through her counsel that Ms. Bennetts share of fees billed
      and collected to date, and remaining unpaid net of advances, is
      $18,545.73.  Ms. Cunningham admitted that she owed that amount to Ms.
      Bennett.

DECISIONS BELOW

A.

Trial Judgment

[7]

After
    reviewing the facts, the trial judge analyzed the nature of the contract
    between Ms. Bennett and Ms. Cunningham. Again, as indicated above, that issue
    is not before this court. The parties now accept the trial judges finding that
    Ms. Bennett was an employee at the relevant time.

[8]

At
    paragraph 29 of his reasons for judgment the trial judge turned to the question
    of whether Ms. Cunningham had just cause to terminate Ms. Bennett. After
    briefly reviewing the context in which Ms. Bennett gave Ms. Cunningham the
    December 21, 2002 letter, the trial judge went on, at para. 32, to outline how
    Ms. Cunningham had responded to Ms. Bennetts concerns about the shortcomings
    of the offices organization that were raised at meetings in August and
    November. These responses included having her entire staff attend on a Saturday
    to help Ms. Bennett organize her files, authorizing Ms. Bennett to use the
    office process server to obtain copies of missing pleadings, installing Amicus
    Attorney computer software, installing voicemail, revising the office filing
    system to include a sub-folder in each file for lawyers notes, and offering to
    correct docketing errors where it appeared that Ms. Cunningham had been
    credited for time that should have been credited to Ms. Bennett.

[9]

At
    para. 33, the trial judge listed his findings regarding the December 21, 2002
    letter. The trial judge found that Ms. Bennett had made several unsubstantiated
    allegations about Ms. Cunninghams practice.

[10]

At paras. 34 to
    40, the trial judge further analyzed the language and tone of the letter. He
    assessed whether it provided a sufficient basis upon which to conclude that Ms.
    Bennett had been insolent to the extent that the employment relationship could
    no longer be maintained, thereby justifying summary dismissal.

[11]

At para. 35, the
    trial judge noted Ms. Bennetts concerns over the fact that she appeared to owe
    more to Ms. Cunningham than she had earned and that her Law Society and
    insurance dues would soon require payment. He also noted that Ms. Bennett had
    not mentioned her concerns about her fees to Ms. Cunningham.

[12]

Beginning at
    para. 41, the trial judge concluded his analysis:

[41] The relationship between
      lawyers practicing in the same law office is fundamentally based on confidence,
      respect and trust. After she had an opportunity to read the letter in its
      entirety and to consider its implications, Ms. Cunningham concluded that she
      could no longer have a working relationship with Ms. Bennett.

[42] Her conclusion in that
      regard was justified. The letter was highly critical of the operations in
      the law office and of Ms. Cunningham's integrity. The comments and
      accusations in the letter undermined the confidence she had in Ms. Bennett and
      destroyed the employment relationship.

[43] I find that the contents
      and tone of the letter constituted serious misconduct on the part of Ms.
      Bennett. The insolence was not reconcilable with maintaining the employment
      relationship. In the circumstances, Ms. Cunningham had just cause for
      terminating the services of Ms. Bennett without notice.

B.

Divisional Court Decision

[13]

The Divisional
    Court, in its decision to reverse the trial judgment, focused on the failure of
    the trial judge to apply a contextual approach to the assessment of whether
    there was just cause for dismissal, as mandated by the decisions in
McKinley
    v. BC Tel
, 2001 SCC 38, [2001] 2 S.C.R. 161, and
Dowling v. Ontario
    (Workplace Safety and Insurance Board) (2004)
, 246 D.L.R. (4th) 65 (Ont.
    C.A.).

[14]

At paras. 9 and
    11 of its reasons, the Divisional Court stated the following:

[9]  I agree with the appellant Ms.
      Bennetts submission that there was an absence of the required contextual
      analysis concerning the cause for dismissal in this case and that such an
      analysis would have led to the finding that her letter of December 21, 2002 did
      not warrant dismissal for cause.

[11]  I am of the opinion that a failure to apply a contextual approach to a
      determination of just cause for dismissal, as mandated by the Supreme Court of
      Canada in [
McKinley
]
, is an
        error of principle and constitutes an overriding and palpable error justifying
        appellate intervention, see
Henry v. Foxco Ltd.

2004 NBCA 22 (CanLII)
,
      (2004), 31 C.C.E.L. (3d) 72 (NBCA).

ANALYSIS

[15]

The Supreme
    Court of Canada instructs us in
McKinley
, at para. 34, that the
    contextual approach involves examining both the circumstances surrounding the
    conduct as well as its nature or degree. In my view, a fair reading of
    paragraphs 32 through 43 of the trial judges reasons for judgment clearly
    demonstrates that he did precisely that, even if he did not use the words
    contextual approach.

[16]

The case was
    neither complicated nor complex. The trial judge considered the circumstances
    leading up to the writing of the letter, the facts surrounding the actual
    delivery of the letter to Ms. Cunningham, and the nature of the allegations and
    accusations contained in the letter. He also considered the nine areas of
    concern Ms. Bennett outlined in her letter and found many of her complaints to
    be unsubstantiated. He was entitled to make these factual findings on the
    record before him. Only after having done so, did the trial judge conclude that
    Ms. Cunningham had just cause for terminating the services of Ms. Bennett.

[17]

The trial
    judges decision was also premised on his factual findings, included at the
    beginning of the judgment that set out the nature of the parties relationship.
    The trial judge need not repeat his factual conclusions when he considers the
    question of whether there was just cause for termination. He zeroed in on the
    central question in this case: whether Ms. Bennetts four page letter dated
    December 21, 2002 provided just cause for her immediate termination. He
    concluded it did and I agree with his disposition. The trial judges conclusion
    in this regard is essentially factual in nature, and, absent palpable and
    overriding error, will not be overturned on appeal. See
Housen

v.
    Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235.

[18]

In effect the
    Divisional Court simply substituted its view of the facts for that of the trial
    judge. This is not the role of an appellate court. The trial judge found that
    the December 21, 2002 letter did constitute just cause for dismissal and he was
    entitled to do so on the evidence before him.

CONCLUSION

[19]

In the result, I
    would allow the appeal, set aside the order of the Divisional Court, and
    restore the trial judgment in all respects.

COSTS

[20]

In view of the
    result, the costs before the Divisional Court should be to the appellant in
    this court.

[21]

The costs of the
    appeal, including the application for leave to appeal, are fixed in the sum of
    $12,000.00 inclusive of disbursements and applicable taxes, and are payable to
    the appellant.

J. MacFarland J.A.

I agree J.C. MacPherson J.A.

I agree E.E. Gillese J.A.

Released:
J. MacF. August 17,
    2012


COURT OF APPEAL FOR ONTARIO

CITATION:
Crystallex
    (Re), 2012 ONCA 527

DATE: 20120802

DOCKET: C55434 & C55435

OConnor A.C.J.O., Blair and Hoy JJ.A.

In the Matter of the
Companies
    Creditors Arrangement Act
, R.S.C. 1985, c.C-36 as amended

And in the Matter of a Plan of
    Compromise or Arrangement of Crystallex International Corporation

Richard B. Swan, S. Richard Orzy, Derek J. Bell and Emrys
    Davis, for the appellant Computershare Trust Company of Canada

Andrew J.F. Kent, Markus Koehnen and Jeffrey Levine, for
    the respondent Crystallex International Corporation

Barbara L. Grossman, for Tenor Capital Management
    Company, L.P. and Affiliates

Robert Frank, for Forbes & Manhattan Inc. and
    Aberdeen International Inc.

David Byers, for the Monitor Ernst & Young Inc.

Heard: May 11, 2012

On appeal from the order of Justice Frank J.C. Newbould
    of the Superior Court of Justice dated January 20, 2012, with reasons reported
    at 2012 ONSC 538, and from the orders of Justice Frank J.C. Newbould of the
    Superior Court of Justice dated April 16, 2012, with reasons reported at 2012
    ONSC 2125.

COSTS ENDORSEMENT

[1]

The appellant shall pay costs of the appeal to the respondent,
    Crystallex International Corporation, in the amount of $110,688.00 and to the
    respondent, Tenor Capital Management Company, L.P. and Affiliates, in the
    amount of $80,000, both amounts are inclusive of disbursements and HST.

D. OConnor A.C.J.O.

R.A. Blair J.A.

Alexandra Hoy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:

de
    Somer v. Martin, 2012 ONCA 535

DATE: 20120810

DOCKET: C55362

Feldman, Gillese and Epstein JJ.A.

BETWEEN

Marc de Somer

Respondent

(Appellant)

and

Isabella Martin

Applicant

(Respondent in Appeal)

W. Douglas R. Beamish, for the appellant

Ella L.J. Bernhard, for the respondent

Heard: June 22, 2012

On appeal from the judgment of Justice Victor Paisley of
    the Superior Court of Justice, dated March 12, 2012.

Epstein J.A.:

OVERVIEW

[1]

This appeal arises out of competing child support orders in two
    jurisdictions  Ontario and Nancy, France.

[2]

On March 11, 2004, OConnell J., on consent, ordered the
    appellant father, Mr. de Somer, to pay child support pursuant to the Canadian
Federal
    Child Support Guidelines
, S.O.R./97-175. The actual amount payable by Mr.
    de Somer has fluctuated over the years, in accordance with changes to his
    income. Currently, Mr. de Somer is paying monthly support in the amount of
    $3,299.00.

[3]

In January 2011, Mr. de Somer brought an application in France
    for a revision of his Ontario-ordered child support obligations. On September
    23, 2011, Justice Sombrin of the High Court of Nancy granted the revision,
    ordering Mr. de Somer to pay monthly child support in the amount of 950.  This
    order remains in effect pending the appeal of the respondent mother to the
    Court of Appeal for Nancy.

[4]

In June 2011, Mr. de Somer brought a motion before the Ontario
    Superior Court for a declaration that France is the proper forum for the
    determination of child support, an order staying the Ontario proceedings and an
    order terminating his support and financial disclosure obligations under
    various Ontario court orders.

[5]

The motion judge dismissed Mr. de Somers motion by order dated
    March 12, 2012, and on April 5, 2012, awarded costs against him, assessed on a
    full indemnity scale, in the amount of $51,190.48.

[6]

Mr. de Somer appeals on the basis that the motion judge erred in
    his determination that Ontario is the more convenient forum.  Mr. de Somer
    challenges the motion judges application of the
forum non conveniens

test and, specifically, claims that he failed to apply the principle of
    comity.

[7]

At the conclusion of the hearing, the appeal was dismissed with
    reasons to follow.  Here are the reasons.

FACTS

[8]

Mr. de Somer and Ms. Martin lived together in Toronto when their
    son Matthieu was born in November of 2003.  The parties separated shortly
    thereafter.  They resolved all issues relevant to their separation on terms set
    out in Minutes of Settlement dated March 11, 2004.

[9]

The agreement gave sole custody of Matthieu to Ms. Martin.  The
    parties inserted several provisions into the Minutes of Settlement to take into
    account their future plans.  First, they explicitly referenced the fact that
    Ms. Martin, who was to have sole custody of their son, would be moving to
    France to live, and that the flexible access given to Mr. de Somer was based on
    his need to travel extensively for work.
Second, they
    identified the Canadian
Federal Child Support Guidelines
as the method
    by which Mr. de Somers child support obligations would be determined.  Third,
    they agreed that they did not want any court to order a change which deviates
    from or overrides the terms of these Minutes of Settlement as they were
    basing their future lives upon [the settlement].

[10]

On the same day as the Minutes of Settlement were signed,
    OConnell J. granted judgment in accordance with the parties agreement.  The
    judgment, applying Guideline support to Mr. de Somers income at that time,
    ordered him to pay monthly child support in the amount of $1778.00.

[11]

Shortly after entering into the settlement, Ms. Martin and
    Matthieu moved to France.  Mr. de Somer remained in Ontario until March of
    2010, when he relocated to Massachusetts.

[12]

Ms. Martin, concerned that Mr. de Somer was not meeting his
    financial disclosure obligations set out in the Minutes of Settlement and related
    judgment, brought a motion in November 2006 for an order requiring production
    of financial information for the years 2005 and 2006.  Once the motion was
    brought, Mr. de Somer consented to an order granting the disclosure sought.
    However, the motion judge assigned to hear the motion, Wilson J., awarded Ms.
    Martin her costs in the amount of $2000, holding that it should not have been
    necessary for her to have brought the motion.

[13]

In October of 2007, Mr. de Somer brought a motion before the
    Ontario Superior Court for an order terminating his child support obligations
    on the basis that he had no income.  Frank J. dismissed the motion and ordered
    Mr. de Somer to pay support arrears of $28,766.00 and on-going support of $1994
    per month, based on an imputed annual income of $250,000.  The motion judge
    also required Mr. de Somer to pay Ms. Martins costs fixed at $15,000.

[14]

In January 2011, Mr. de Somer initiated the French proceedings
    detailed above.

[15]

On June 13, 2011, Ms. Martin brought a contempt motion, alleging
    that Mr. de Somer had breached his court-ordered disclosure obligations and had
    not paid Guideline child support in amounts commensurate with his income.

[16]

Mr. de Somer responded on June 23, 2011, by bringing a
    cross-motion for a declaration that France was the proper forum for the
    determination of child support, as well as an order staying proceedings in
    Ontario and terminating his Ontario child support and disclosure obligations.

THE MOTION JUDGES REASONS

[17]

In his brief endorsement, after setting out some background
    facts, the motion judge noted that Mr. de Somer had breached his child support
    obligations in the past, quoting passages from the reasons of Frank J.
    culminating in her observation of [Mr. de Somers] failure to recognize the
    significance of and to do what is necessary to comply with court orders.

[18]

The motion judge then turned to the current situation:  Mr. de
    Somer was living in the United States, had an admitted income of more than
    $400,000 U.S. and had brought proceedings in France that resulted in a
    significantly reduced support order.

[19]

Before specifically addressing jurisdiction and the
forum non
    conveniens
test, the motion judge first held that this was not a case of
    forum shopping on the part of Ms. Martin.  In fact, he expressed the view
    that Mr. de Somer likely applied to have his support obligations resolved in
    France to take advantage of the lower amount that that jurisdiction would
    require him to pay.

[20]

The motion judge then turned to the issue before him, the essence
    of which was whether the Ontario court should decline to exercise its
    jurisdiction over the determination of child support in favour of the French
    court.

[21]

The motion judges analysis of which forum was the most
    appropriate for the determination of child support is contained in the
    following portion of his reasons:

Neither party now resides in France. I am not satisfied that a
    court in France is a more convenient or appropriate forum to determine [Mr. de
    Somers] ongoing child support obligation than this court...The parties agreed
    in 2004 that they did not want a court to override the terms of their minutes
    of settlement. [Mr. de Somer] has apparently succeeded in persuading the court
    in France to disregard the Canadian child support guidelines, which the parties
    had agreed were applicable.

[22]

On the basis of this reasoning, the motion judge concluded that
    he was satisfied that [Ms. Martins] preference that the issue of ongoing child
    support should continue to be decided by the Superior Court of Justice should
    be respected.

ISSUES

[23]

As a preliminary matter, Ms. Martin brought a motion to have the
    appeal quashed or stayed on the basis that Mr. de Somer is in default of
    various court orders.

[24]

In
    his appeal, Mr. de Somer submits that the motion judge erred by misapplying the
    doctrine of
forum non conveniens
.

ANALYSIS

Motion to Quash

[25]

Ms. Martin, relying on decisions such as
Dickie v. Dickie
(2006), 78 O.R. (3d) 1 (C.A.), revd 2007 SCC 8, [2007] 1 S.C.R. 346, submitted
    that Mr. de Somer is in breach of child support, costs and disclosure orders of
    the Ontario court, and his appeal should therefore not be heard until his
    breaches are cured.

[26]

In
Dickie
, Laskin J.A. held that the Court of Appeal had
    the discretion to refuse to hear an appeal when the appellant had not cured a
    wilful breach of a court order (at para. 86). This discretion was based on the
    courts power to prevent abuse of process, and it should be exercised where
    necessary to prevent a litigant from impeding the course of justice or
    undermining the courts ability to enforce its own orders (at para. 85). Laskin
    J.A. was in dissent, but, on appeal, his reasoning was adopted by the Supreme
    Court.

[27]

At the outset of the hearing, the panel dismissed Ms. Martins
    motion.  The evidence presented on the motion demonstrated that Mr. de Somer
    was current with his court-ordered support obligations, save for any potential
    amount found owing if and when further disclosure is ordered that warrants an
    increase in support. The only costs award that remained unpaid is the one related
    to the matter under appeal.

[28]

The parties disagreed on whether Mr. de Somer has provided full
    financial disclosure. Mr. de Somer had produced his 2010 and 2011 tax returns
    as well as a stock option certificate awarded in his favour from 2011. Ms.
    Martin alleged that Mr. de Somer had failed to provide details of employer
    pension contributions, while Mr. de Somer maintained that his employer does not
    make contributions to his retirement account. While it may ultimately be found
    that Mr. de Somer must produce more financial information and therefore pay
    more child support under the
Federal Child Support Guidelines
, the end
    result of this dispute was not clear.  What was clear was that the mere
    existence of a debate over whether Mr. de Somer was in breach of his disclosure
    obligations and perhaps, therefore, behind in child support yet to be
    determined, did not come close to amounting to conduct of a nature so as to deprive
    a party of his right to appeal.

Forum Non Conveniens

[29]

The parties agree that both Ontario and France have jurisdiction,
    and therefore, the
forum non conveniens
test should be used to
    determine the most appropriate location for the resolution of their dispute.  In
    the recent decision of
Club Resorts Ltd. v. Van Breda
, 2012 SCC 17,
    343 D.L.R. (4
th
) 577, in which this area of the law was
    comprehensively considered, the Supreme Court held it was not possible to draw
    up an exhaustive list of relevant factors.  However, at para. 110, the court
    identified such factors as including:

·

the locations of parties and witnesses,

·

the cost of transferring the case to another jurisdiction or of
    declining the stay,

·

the impact of a transfer on the conduct of the litigation or on
    related or parallel proceedings,

·

the possibility of conflicting judgments,

·

problems related to the recognition and enforcement of judgments,
    and

·

the relative strengths of the connections of the two parties.

[30]

In order to succeed in this appeal, Mr. de Somer must demonstrate
    that France is clearly more appropriate as the forum for the determination of
    child support:
Van Breda
, at para. 109.

[31]

In this case, several points are pertinent to the analysis.

[32]

First, I attach considerable importance to the parties agreement
    set out in the Minutes of Settlement.  After separation, with the assistance of
    experienced counsel, Mr. de Somer and Ms. Martin explicitly agreed that: 1)
    child support would be determined in accordance with the
Federal Child
    Support Guidelines
, and 2) no court should order a change that deviates
    from or overrides the terms of their agreement.

[33]

Mr. de Somers and Ms. Martins resolve that the Canadian Guideline
    formula be used as a basis for the calculation of child support made sense at
    the time since both parties and young Matthieu then lived in Ontario.  However,
    in my view, the parties specific identification of the Guidelines and the
    additional provision that they did not want any court to interfere with this
    resolution take on additional significance in the context of two facts they
    went out of their way to identify in the Minutes of Settlement: Ms. Martin had
    immediate plans to relocate to France and Mr. de Somers employment could very
    well involve periodic relocation.

[34]

Mr.
    de Somer resists any import being given to the agreement that the
Federal
    Child Support Guidelines

would apply on the basis that Matthieus
    residence in France with different expenses and standard of living has given
    rise to circumstances that are materially different.  He also argues that the
Guidelines

cannot apply, as neither he nor Ms. Martin were living in Canada at the
    time the motion judge determined Ontario to be the more appropriate forum.

[35]

I
    do not accept either of these arguments.

[36]

First,
    in my view, they fly in the face of the specific term in the Minutes of
    Settlement, concerning which Mr. de Somer mounts no argument, that he and Ms.
    Martin did not want any court to order a change which deviates from or overrides
    the terms of these Minutes of Settlement as they were basing their future
    lives upon [the settlement].

[37]

Second,
    in my view, they are based on a misreading of the agreement concerning the
    application of the Guidelines.  The parties contractually agreed upon a
    specific formula for the determination of child support - the formula set out
    in the Canadian
Federal Child Support Guidelines
. The agreement does
    not say that the legislation applies to the determination of child support.  It
    follows that the wording of the statute, in terms of its legislated
    jurisdiction, is not relevant.

[38]

Mr.
    de Somer further argues that, while he agreed that the
Federal Child
    Support Guidelines
would govern, they could just as well be applied by a
    French court. However, his conduct belies this argument. In his application to
    the French court, Mr. de Somer did not seek to have the court apply the
    Guidelines.  He relied on French law.  I suggest, as did the motion judge, that
    he did so for reasons that should be obvious  the application of French law
    resulted in an order providing for significantly reduced child support.

[39]

Finally,
    Mr. de Somer contends that several factors favour France as the most convenient
    forum, and the motion judge erred in not giving them more weight. Specifically,
    he argues that Ms. Martin was living in France at the time of the French
    judgment and had been living there since 2004. Furthermore, key witnesses,
    particularly Ms. Martin, reside in France.

[40]

The
    fresh evidence provides a complete response to these points.

[41]

On
    appeal, Ms. Martin brought a motion to introduce fresh evidence disclosing her
    pending move to Montreal. In addition to her affidavit evidence, Ms. Martin
    produced an employment agreement she has entered into with a Montreal employer
    identifying a start date between July 16 and August 1, 2012, and a letter from
    a Montreal school admitting Matthieu for the 2012-2013 academic year.

[42]

I
    would admit the fresh evidence as it satisfies the requirements set out in
R.
    v. Palmer
, [1980] 1 S.C.R. 759; see also
Sengmueller
    v. Sengmueller

(1994), 17 O.R. (3d) 208

(C.A.)
.

[43]

As
    a result, the location of the parties and witnesses does not favour France.

[44]

This
    takes me to the issue of comity upon which Mr. de Somer heavily relies.

[45]

It is always important to show respect for an order made by a
    court in another jurisdiction. However, in this case it was Mr. de Somer
    himself who created the conflict by bringing proceedings in France from which
    only he stood to benefit. Given these circumstances, I have difficulty giving
    much weight to this factor.

[46]

My conclusion that there is no reason to interfere with the
    motion judges conclusion that Ontario is the most appropriate forum for the
    determination of Mr. de Somers obligations to provide financial support for
    his son, Matthieu, can be succinctly summarized: Staying the Ontario
    proceedings in favour of those in France would allow Mr. de Somer to resile
    from the clear terms of the agreement he freely entered into with Ms. Martin
    for their benefit and for the benefit of their son.  This should not be
    sanctioned by this court without compelling reasons.  Here, there are none.
    Furthermore, and in any event, the other factors identified above, relevant to
    the test for the determination of the most appropriate forum for the resolution
    of child support, unequivocally lead to the conclusion that Ontario is the
    appropriate forum.

DISPOSITION

[47]

I
    would therefore dismiss the appeal with costs to Ms. Martin, as agreed, in the
    amount of $24,000 inclusive of disbursements and HST.

Released:

KF                                                   Gloria
    Epstein J.A.

AUG 10 2012                                   I agree
    K. Feldman J.A.

I
    agree E.E. Gillese J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
Evans
    (Re), 2012 ONCA 548

DATE: 20120822

DOCKET: C53280

Feldman, Sharpe and Ducharme JJ.A.

IN THE MATTER OF:  Christopher Evans

Gavin S. MacKenzie, for the appellant

Nadia Thomas, for the respondent

Heard: August 21, 2012

On appeal against the disposition of the Ontario Review
    Board dated January 31, 2011.

APPEAL BOOK ENDORSEMENT

[1]

This appeal is quashed as moot.  The appellants NCR finding was
    reversed on appeal.


COURT OF APPEAL FOR ONTARIO

CITATION:
Export
    Packers Company Limited v. SPI International
    Transportation, 2012 ONCA 526

DATE:  20120802

DOCKET: C54536

OConnor A.C.J.O., MacPherson and Rouleau JJ.A.

BETWEEN

Export Packers Company Limited

Plaintiff

and

SPI
    International Transportation

Defendant (Appellant)

and

726509 Ontario Inc. o/a
    Transvision Logistics and
Entrepôt du Nord Cold Storage
    Inc.

Third Parties (
Entrepôt du Nord Cold Storage
    Inc. as Respondent)

Kimberly Newton, for the appellant

Shawn Faguy, for the respondent,
Entrepôt du Nord Cold Storage Inc.

Heard:  July 3, 2012

On appeal from the judgment of Justice Stinson of the
    Superior Court of Justice, dated October 5, 2011.

COSTS ENDORSEMENT

[1]

The appellant shall pay the respondents costs fixed in the amount of
    $15,000, all inclusive.

D. OConnor A.C.J.O.

J.C. MacPherson J.A.

Paul Rouleau J.A.