Monday, June 6, 2011

This Week At The Ontario Court of Appeal: 11-06-03

Each week, Wise Law Blog reviews recent decisions from the Ontario Court of Appeal.

Maccaroni v. Kelly. An appeal of a summary judgment in an Ontario personal injury case where the appellant, Ms. Maccaroni, was rear-ended in a vehicular collision with Mr. Kelly. Mr. Kelly was insured by Co-operators General Insurance, while Ms. Maccaroni was insured by ING. Ms. Maccaroni sued Mr. Kelly. Co-operators, added itself as a third party and took the position that it was not liable to Mr. Kelly, who was driving with a suspended license, and that it was only liable to Ms. Maccaroni for $200,000 under the Insurance Act. As a result of this position, ING faced liability to Ms. Maccaroni for additional coverage where the tortfeasor was underinsured, to a limit of an additional $1,000,000.

Ms. Maccaroni settled with Mr. Kelly and Co-operators for the $200,000, a settlement to which ING did not consent, signed a release, and then sought to recover additional monies from ING. In response, ING moved for summary judgement on the basis that there was no issue for trial, since there had never been a legal determination of Co-operators' position and therefore their reduced limit had no basis in "operation of law," and further that there could no be no determination of that fact as Ms. Maccaroni had released both Co-operators and Mr. Kelly from the action. The motion judge accepted this argument and dismissed the case.

The Court of Appeal overturned the motion. Justice McFarlane stated that it was now incumbent upon the appellants, rather than ING, to demonstrate Co-operators' position. The fact that Co-operators and Mr. Kelly were no longer parties to the action was thus irrelevant as they could be called as witnesses. The Court also noted that there was precedent for an individual pursuing action against his or her own insurer under a similar (but not identical) fact scenario as found in this case. Read-the-whole-case rating: 2.

A.M.R.I. v. K.E.R. An appeal on an application on the Hague Convention on the Civil Aspects of International Child Abduction, the first in the Court of Appeal's history. A divorced couple had a child. The mother lived in Cancun, Mexico and the father in Toronto. The girl came to Canada to visit her father accompanied by her maternal grandmother. During the visit, the girl and her grandmother told her father that her mother was abusing her. As a result, the girl did not return to Mexico, but instead stayed with her father. She was found to be a refugee by the Immigration and Refugee Board of Canada, by reason of abuse. Shortly thereafter her father was denied refugee status and moved to Norway; the girl continued to live in Ontario with her aunt and her aunt's same-sex partner.

A year and a half later, the girl's mother brought a Hague Convention application for an order compelling her daughter's return to Mexico. Before the father's time to respond expired, the mother arranged for a hearing date without providing notice to her daughter or to her daughter's aunts. The father claimed he also did not receive timely notice of this hearing. The hearing proceeded on an uncontested basis, and the application judge found that the girl was being wrongfully retained in Ontario. She was removed one month later from her school with police assistance. The girl was at this time 14. She was not allowed to return home to retrieve her refugee papers despite asking to do so, was not allowed to communicate with her aunts, and was flown to Mexico in the care of her mother. The father appealed the application judge's decision.

The Court set aside the order and directed a new hearing. The Court first noted that the mandatory return requirements of the Hague Convention had limited exceptions, including exceptions where more than one year had elapsed and the child settled into their new environment, where the return would place the child at risk of harm and where the child was mature enough to object to returning. The Court also noted that the principle of non-refoulement - that a recognized refugee should not be returned to a territory where they would be at risk of harm - was paramount to refugee protection schemes, and recognized in s.115(1) of the Immigration and Refugee Protection Act.

The appellants charged that s.115(1) of the IRPA, by recognizing the principle of non-refoulement, had the effect of granting that principle paramountcy under Canadian law and that therefore s.46 of the Children's Law Reform Act, which incorporates the Hague Convention into Ontario law, was void under the doctrine of paramountcy.

(Normally the Court of Appeal would not rule on constitutional issues first raised on appeal, but in this case, stated that the interests of justice demanded it, due to the improperly non-contested nature of the original hearing.)

The Court of Appeal rejected the paramountcy argument, arguing that due to Canada's commitment to the Vienna Convention on the Law of Treaties, Canada's international treaty commitments are to be interpreted in good faith regarding existing international law. Canada's commitment to the Hague convention must be taken into account as one in conformance with its commitment to the United Nations Refugee Convention, as the latter predates the former. Therefore, the CLRA does not violate the paramountcy doctrine, but must instead be interpreted consistently with Canada's treaty obligations regarding refugees.

The Court interpreted this obligation under existing law, along with Canada's treaty obligations under the United Nations Convention on the Rights of the Child, by suggesting that, where a child with refugee status as determined by the Immigration and Refugee Board is targeted by a Hague Convention application, "a rebuttable presumption arises that there is a risk of persecution on return of the child to his or her country of habitual residence." The Court also suggested that in this context, there should be no burden on the child to prove that the conditions which created refugee status have since changed.

Having determined that the CLRA did not violate the doctrine of federal paramountcy and articulated the test as to how the two laws should interact, the Court of Appeal then considered how this case should be decided on its merits.

The Court found that the one-side nature of the application hearing had harmed the proceeding's merit, and further found errors in the judge's reasoning. The Court stated that the judge had not adequately considered the child's refugee status or the exceptions to mandatory return laid out in the Hague Convention, even though the transcripts showed that the judge was at least aware of these concerns. The appellate court held further that the trial judge did not adequately consider affidavit materials which "cried out for a meaningful assessment of whether and to what extent the child faced a persisting risk of persecution if she was returned to Mexico," instead simply seeming to accept all of the mother's denials of abuse at face value. This failure to properly assess the child's risks in the course of the Hague Convention application constituted a violation of her rights under s.7 of the Charter of Rights and Freedoms.

For these reasons the Court found that the order of return was improper, but further noted that the case obviously satisfied multiple exceptions under the Hague Convention itself which the judge had also not considered. Finally, the Court held that the failure of the trial court to ensure that the child was present for the hearing violated her s.7 Charter rights and denied procedural fairness to her. Read-the-whole-case rating: 4. A major decision by the Court, and although lengthy it's very readable.

- Christopher Bird, Toronto
Visit our Toronto Law Firm website: