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Following are the summaries of this week’s civil decisions of the Court of Appeal for Ontario. This was an interesting week.
I would first like to congratulate two of our lawyers, Margaret Rintoul and Aly Virani, on their successful appeal in Kilitzoglou v. Cure. The Court followed the reasoning that has developed in the cases following Satva Corp. v. Creston Moly Corp. primarily in terms of clarifying the “factual matrix” that a judge may apply in the interpretation of a contract. In this case, a rather broad interpretation by the trial judge of the facts surrounding the making of a domestic contract was held to be a flawed interpretation that contravened the actual language of the contract. Overall, the message from the decision is a reaffirmation that the actual clear wording of a contract trumps the factual matrix and any speculation as to an intention contrary to the wording of a contract.
In Imeson v Maryvale (Maryvale Adolescent and Family Services), the Court delivered an important decision on the difference between the evidence of fact-witness experts who participated in the events in question, and experts brought in after the fact by counsel. The former do not need to comply with Rule 53 relating to the delivery of expert reports. The latter do. This case builds upon the Westerhof v Gee Estate decision relating to expert evidence. There is also an important discussion about the admissibility of expert evidence in the context of the Mohan/White Burgess tests of necessity and reliability.
The case itself was for liability for sexual assault. The plaintiff was successful at a jury trial, partly on the basis of the evidence of the doctor who had treated him. The doctor’s evidence recounting what the plaintiff had told the doctor about the abuse was admitted into evidence. Despite a hearsay warning given to the jury by the trial judge, there was a danger that the jury would rely on the doctor’s evidence to conclude that the plaintiff’s story was credible. The Court determined that the evidence should not have been admitted. The appeal was allowed and a new trial was ordered.
In Williams v Richard, the Court opened the door for a finding of social host liability on the specific facts of that case. The motion judge had dismissed the claim by way of summary judgment, relying on the leading social host liability decision of the Supreme Court in Childs v Desormeaux. The Court set aside that dismissal and sent the case to trial.
In York University v Markicevic, York University was successful in recovering severance paid to a former employee who it later discovered had misappropriated the University’s funds. The trial judge permitted York’s action and in the process, set aside releases exchanged between the parties when the severance was paid. The former employee had claimed that the action was statute-barred. The Court of Appeal dismissed his appeal.
In Apotex v Schering Corporation, the appellants’ patent had been upheld by a prior court decision in reliance on the “promise doctrine”. The patent was upheld before the Supreme Court effectively abolished the promise doctrine in its 2017 decision in AstraZeneca Canada Inc. v Apotex Inc. In this new action, Apotex was permitted to amend its defence to effectively re-litigate the validity of the patent because the promise doctrine is no longer the law in Canada. The Court stated that the doctrines of issue estoppel, collateral attack and abuse of process were flexible enough to permit a court to refuse to apply them in an appropriate situation. Where, as in this case, the law had changed from the time of the prior decision to the time of the new proceeding, the Court determined that it would be unjust not to permit the re-litigation of the validity of the patent.
Other topics covered this week included the duty of honest performance, constructive dismissal and adverse possession.
Wishing everyone an enjoyable weekend.
The appellants were estate trustees of their late father’s Estate. The respondent was in a spousal relationship with the father and after 22 months of dating, the father made a down payment on a residence registered only in his name, but where they both cohabited. The purchase was also financed by a mortgage, in the father’s name alone.
Thereafter, the respondent and the father signed a cohabitation agreement. The agreement entitled the respondent to stay in the residence following the father’s death for three years, provided she paid the sum of $140,000 to the father’s Estate. It additionally stipulated that if the respondent did not purchase the residence but wished to continue living there, she would have the option of paying a sum to the Estate and would thereafter pay the “ordinary and reasonable costs of maintaining the said residence from her own resources”. These words ultimately became the focus of the parties’ dispute. The father died suddenly in April 2007.
She also sought damages for reach of the cohabitation agreement, and exemplary and punitive damages. The appellants took the position that the respondent was responsible for all costs of the upkeep of the residence commencing on the third anniversary of the father’s death, and counterclaimed for payments made by the Estate relating to utilities, property taxes, insurance, and maintenance after the third anniversary of their father’s death.
Referring to the Supreme Court’s decision in Sattva Corp v Creston Moly Corp, the trial judge considered the surrounding circumstances of the cohabitation agreement. In his view, the relevant portion of the agreement supported the logical inference that the father wanted to care for the respondent for the rest of her life, provided she paid the Estate $140,000. In essence, the trial judge’s finding that it was the father’s intention to take care of the respondent governed his entire interpretation of the cohabitation agreement.
Regarding capital expenses, the trial judge concluded that the Estate was responsible for all capital costs and repairs commencing on the third anniversary of the father’s death. This would give effect to the father’s intention to take care of the respondent for the rest of her life. The trial judge granted the respondent judgment to cover a list of capital repairs, while also finding that other matters were part of the ordinary maintenance for which the respondent was responsible.
The trial judge refused the respondent’s request for a declaration that the Estate was bound to pay future capital expenses, indicating that he had no doubt that the estate trustees and the respondent would not be able to agree on whether an expense was capital or non-capital. Therefore, he ordered that if the parties could not agree, they should bring a “succinct” application.
The trial judge found bad faith on behalf of the respondents on the basis that they adopted “hardball” tactics by trying to force the respondent to sell the home, characterizing their conduct as “high handed and reprehensible”. He found the use of funds from the sale of the father’s cottage to pay legal counsel and to make a distribution to the beneficiaries improper. He further found that the disbursements from the father’s holding company breached an interlocutory order from the first trial restricting disbursements without a court order. He ordered the appellants to reimburse the Estate for money distributed to the beneficiaries and for the payments made to legal counsel.
Regarding the mortgage, the trial judge found that the father failed to insure the mortgage and his failure rested with the Estate to rectify. He ordered that the Estate pay the outstanding balance of the mortgage.
Regarding the Estate’s counterclaim, the trial judge found the Estate was entitled to recoup one half of the realty taxes, insurance and any maintenance costs it had paid after the third anniversary of the father’s death. He dismissed the remainder of the counterclaim.
(1) Did the trial judge err in his determination and use of the factual matrix?
(2) Did the trial judge err in apportioning realty taxes in accordance with what he thought was “fair or reasonable”?
(3) Did the trial judge err in apportioning responsibility for capital repairs to the father’s house?
(4) Did the trial judge err in finding that the appellants acted in bad faith?
(5) Did the trial judge err in finding that the father was in violation of the cohabitation agreement by failing to obtain mortgage insurance, and that the appellants therefore improperly paid monies out of the estate while the mortgage was still outstanding?
(6) Did the trial judge err in concluding that the Estate could only recoup one half of the realty taxes and maintenance costs that it had paid after the third anniversary of the father’s death?
(1) Yes. The trial judge erred by considering the respondent’s circumstances at the time of the father’s death, which should have had no bearing on interpreting the contract that had been negotiated and signed earlier. Second, the Court of Appeal found that the trial judge committed the more fundamental error of allowing the factual matrix to overwhelm the words of the contract, pointing to several terms of the agreement that, taken together, established a dominant theme of financial independence between the parties.
(2) Yes. The trial judge committed an error of law by failing to apportion the realty taxes and insurance according to the ordinary and grammatical meaning of the contract.
(3) Yes. First, the trial judge erred by entertaining the respondent’s claims on this issue in the first place, given that the trial judge in the first trial had already adjudicated them. Accordingly, the trial judge here should have found that res judicata applied. Second, the trial judge erred by failing to provide any basis for determining who would be responsible for future repairs, thus leaving the parties’ main dispute unresolved. The Court of Appeal again emphasized that the trial judge allowed the factual matrix – and in this case, a faulty factual matrix – to overwhelm the words of the contract. As a whole, the cohabitation agreement repeatedly emphasized the parties’ intentions to remain financially independent; the contract therefore should have been read in that light.
(4) Yes. Part of the basis for this finding was the appellants’ failure to make the capital repairs, but the Court of Appeal reiterated that the repairs relating to the period up to the third anniversary of the father’s death had already been adjudicated (with the respondent receiving an award in this respect), while the respondent was responsible for repairs after that date. Second, the trial judge’s finding was based on a mistaken belief that the appellants acted in contravention of an interlocutory non-dissipation order, when in fact that order had ceased to have effect. Lastly, the Court of Appeal rejected the trial judge’s finding that the appellants attempted to force the respondent to sell the residence, given that their position was consistent with the agreement. The orders coming out of this finding involving punitive damages, elevated costs and personal liability fell away. Costs at the trial and of the appeal were ordered payable to the respondents.
(5) No. The trial judge properly found that the father was in violation of the cohabitation agreement and that the Estate was duty-bound to pay the mortgage together with any arrears.
(6) Yes. In light of its analysis on the other issues, the Court of Appeal concluded that the respondent was liable to compensate the Estate for all ordinary and reasonable costs the Estate had paid to maintain the residence after the third anniversary of the father’s death, other than payment of the outstanding mortgage.
The appellant was found vicariously liable for sexual assaults alleged to have been committed against the respondent. The respondent’s central witness was a mental health clinician (the “Doctor”). The Doctor provided therapy to the respondent within a correctional institution for roughly three years before he discontinued therapy. The Doctor took handwritten notes during treatment sessions. In April 2016 and in anticipation of litigation, the respondent asked the Doctor to complete summaries of the notes (the “Reports”). In accordance with the institution’s policies, the Doctor destroyed his handwritten notes after he published his summaries.
The Reports were not a verbatim record of the handwritten notes. No session dates were specified. The Reports summarized treatment sessions and included details of the history the respondent recounted about his family and childhood, the circumstances leading up to his time under the respondent’s care and foster care, the alleged sexual assaults, and the three murders that resulted in his convictions and imprisonment (the “Index Offence”). The Reports also included a number of comments and opinions, as well as recommendations for future treatment.
The trial judge held a voir dire into the Doctor’s proposed evidence. The respondent’s counsel indicated that she intended to lead the Doctor’s evidence, including the opinions expressed in the Reports, on the questions of liability (whether the sexual assaults occurred), causation (whether he suffered harm as a result), as well as damages. The appellant’s counsel opposed the admission and asserted that the Doctor’s opinions went beyond those of a participant expert and did not meet the R v Mohan criteria.
The trial judge permitted the entirety of the Reports to be filed in evidence. The trial judge concluded that the Doctor’s credentials and experience qualified him as an expert and that expertise as a mental health clinician was necessary to determine whether the respondent suffered psychological and emotional harm. The trial judge concluded that the probative value of the Doctor’s evidence outweighed its prejudicial effect and noted that as participant expert, the Doctor’s evidence could be accepted without compliance with r 53.03 of the Rules of Civil Procedure. In addition, the trial judge confirmed that the Doctor’s Reports were admitted under s 35 of the Evidence Act.
The trial judge cautioned the jury that any statements the respondent made to the Doctor were not to be taken as proof that the contents of the statements were true, but only that they were made (the “Hearsay Caution”). The jury was provided with full copies of the Reports. Three key opinions were elicited from the Doctor. First, he described problems typical of childhood sexual abuse. Second, he commented on childhood abandonment and abuse and their negative impact on the respondent. Third, he opined that in his Index Offence, the respondent “re-experienced the sense of betrayal and rage that he felt toward his earlier abuser, and then acted with disinhibited, lethal violence” (collectively, the “Opinion Evidence”).
The Doctor was asked whether the respondent’s unconscious belief systems related back to his abuse as a child, at which point the trial judge cautioned that the Doctor could not speak to causation. Appellant’s counsel objected. The jury was not instructed to disregard any part of the Doctor’s evidence, nor did the trial judge provide a direction respecting the proper use of the evidence. The trial judge solely reminded the jury of the Hearsay Caution. In the jury charge, the trial judge mentioned that the jury heard evidence about the plaintiff’s behavior while under the respondent’s care and following, “including the observations and opinions expressed by [the Doctor].” Appellant’s counsel objected to this reference and argued that the jury could not consider the Doctor’s observations and opinions in determining whether the sexual assaults had occurred. The reference was not removed.
(1) Did the trial judge err in admitting the Doctor’s Opinion Evidence on the issues of liability and causation under Westerhof v Gee (“Westerhof”)?
(2) Did the trial judge err in admitting the Doctor’s Opinion Evidence on the issues of liability and causation under R v Mohan (“Mohan”) and White Burgess Langille Inman v Abbott and Haliburton Co (“White Burgess”)?
(1) Yes, the trial judge erred in admitting the Doctor’s Opinion Evidence on the issues of liability and causation under Westerhof. The trial judge admitted opinion evidence that exceeded the scope of proper opinions to be offered by a participant expert by admitting unredacted Reports into evidence and permitting the Doctor to testify about anything that was contained in the Reports. The trial judge failed to carefully examine the opinions included in the Reports and the purpose for which they were offered for the jury’s consideration.
Participant experts may give opinion evidence without complying with r 53.03 of the Rules of Civil Procedure. The Court of Appeal in Westerhof explained that a participant expert may give opinion evidence where “the opinion to be given is based on the witness’s observation of or participation in the events at issue; and the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.” Any opinion evidence beyond these limits must comply with r 53.03.
There was no review of the specific opinions or the contents of the Reports during the admissibility voir dire. The trial judge permitted the Doctor to testify about anything that was contained in the Reports, without exception. The trial judge did not focus on the opinions in the Reports or whether any or all of the contents of the Reports exceeded the scope of proper opinions to be offered by a participant expert.
It was appropriate for the Doctor as participant expert to provide evidence about the respondent’s mental condition, the treatment that was provided, the respondent’s response to treatment, and the therapy recommendations. However, the appropriateness of giving evidence on these matters does not make the Doctor’s unredacted Reports admissible, and allow him to testify on anything contained in the Reports.
The circumstances surrounding the Reports blurred the role of the Doctor. The nature of the opinions provided and the purpose for which they were being led should have been considered. The Doctor completed the Reports roughly a year after the respondent discontinued therapy. Thematic connections were made in the Reports that were not present in the handwritten notes. The Doctor knew that the respondent commenced litigation.
The Doctor’s Opinion Evidence included evidence which fell outside the proper scope of evidence tendered by a participant expert as instructed by Westerhof. The opinion offered by the Doctor that sought to draw a causal link between the alleged sexual assaults and the respondent’s later behavior was not based on his skill, knowledge, training and experience. The opinion as to the problems typical of childhood survivors of sexual abuse was not based on his observation of, or treatment of, the respondent. Thus, these opinions went beyond the proper scope of any opinion that could have been provided as a participant expert.
(2) Yes, the trial judge erred in admitting the Doctor’s Opinion Evidence on the issues of liability and causation under Mohan/White Burgess. The trial judge correctly noted that participant witnesses are subject to the Mohan/White Burgess test for the admissibility of expert evidence. The trial judge erred in failing to apply the Mohan/White Burgess criteria to the Doctor’s specific opinions.
The first step to determining admissibility of an expert’s opinion evidence is to identify the substance and scope of an expert’s opinion. The trial judge failed to consider the specific opinions to be proffered. Mohan/White Burgess ought to have been applied with the particular opinions in mind, as well as their intended use.
As for the threshold requirements that Mohan/White Burgess mandate, the Doctor’s evidence was not necessary to the question of whether the sexual assaults occurred. This depended on an assessment of credibility. There was no need for expert evidence to help the jury decide whether the respondent was credible. The Doctor’s evidence which linked the respondent’s subsequent conduct to the alleged sexual abuse could not have been essential to assisting the jury since the Doctor was not qualified to give such evidence. None of the Doctor’s qualifications demonstrated an expertise in sexual abuse. He was neither qualified to offer an opinion about the problems typical of survivors of sexual abuse, nor the relationship between the alleged sexual assaults and the respondent’s subsequent difficulties, including the commission of his first murder.
As for the gatekeeping role under the second component of the Mohan/White Burgess criteria, the trial judge ought to have assessed the benefits of admitting the evidence against its potential risks. The Doctor’s Opinion Evidence carried a number of risks. One such risk was that the jury could conclude that the Doctor’s testimony was proof of the truth of the respondent’s narrative. This was addressed with the Hearsay Caution. However, other risks were present.
First, there was a danger that the Doctor’s evidence would usurp the jury’s function of deciding credibility. Second, the jury had before it unedited and unredacted Reports which contained a great deal of irrelevant material and contained tremendous oath-helping potential. The trial judge failed to weigh all the risks against the possible benefits, or consider how the risks might have been mitigated other than through the Hearsay Caution. The Hearsay Caution was insufficient to address the various risks.
In the result, the appeal was allowed and a new trial ordered.
The appellant MW and the respondent JR were colleagues and friends who regularly got together to drink beer after work. They did this often enough that they had a pact to call the police if one of them was going to drive intoxicated with children in the car. One evening, MW consumed approximately 15 cans of beer at the home of JR’s mother. JR knew that MW was in no condition to drive, and became aware of his intention to drive the babysitter home with his children in the car. JR threatened to call the police if MW decided to drive, but did not do so until sometime after MW had already left the house.
MW went home (which was 500 metres down the street), loaded his children and babysitter into the car, and drove the babysitter home. After dropping off the babysitter and on his way back home, he was involved in a serious car accident which resulted in his death, and injuries to his children.
The appellants are the wife and children of the deceased MW, and have brought two actions alleging that the respondents, JR and his mother, breached their duty of care as social hosts. The first action is for damages for injuries sustained by the children, and the second action is for damages pursuant to the Family Law Act, R.S.O. 1990, c. F.3.
Both of the actions brought by the appellants were dismissed by way of summary judgment. The motion judge relied on Childs v. Desormeaux, 2006 SCC 18 (“Childs”) and John v. Flynn, 54 O.R. (3d) 774 (C.A.) (“John”) to conclude that the requisite duty of care had not been established. Further, the motion judge held that even if the duty of care had been established, it would have ended when MW arrived at home to pick up the babysitter.
(1) Did the motion judge err in her duty of care analysis regarding foreseeability and proximity?
(2) Did the motion judge err in her reliance on John?
(3) Should the Court consider the issues of whether any residual policy considerations suggest a duty of care should not exist, and whether the respondents met the applicable standard of care?
The outcome in Childs, the leading case in Canada regarding social host liability, rested on foreseeability and proximity. In terms of foreseeability, the Court was concerned with the social host’s failure to stop the intoxicated person from driving. To determine whether the plaintiff should have taken action, the plaintiff had the onus of establishing foreseeability of harm and other aspects of the relationship between the plaintiff and defendant that created a “special link” or proximity. It is not enough to simply hold a house party where alcohol is served to establish this special link.
Since the Childs decision, courts have determined foreseeability based on an analysis of the host’s knowledge of a guest’s intoxication, or future plans to engage in a potentially dangerous activity that subsequently causes harm. In the context of summary judgment motions, some courts have held that the presence of conflicting evidence about the level of a host’s knowledge of a guest’s intoxication is enough to take the action to trial. However, other courts have granted summary judgment.
Courts have determined the proximity analysis since the Childs decision based on an analysis of whether the host was inviting the guest to an inherently risky environment, or whether there was a paternalistic relationship between the parties. Courts have used the following non-exhaustive factors to determine whether a social gathering is an inherently risky environment: whether alcohol was served at the party or whether guests were invited to bring their own alcohol, the size and type of the party, and whether other risky behaviour was occurring such as underage drinking or drug use.
A duty of care analysis in the context of a social host should consist of three elements: 1) whether the injury was reasonably foreseeable; 2) whether there is sufficient proximity such that there is a duty to act; and, 3) whether the duty of care is negated by policy considerations. If the first two elements are satisfied, a prima facie duty of care has been established.
The motion judge did not follow this duty of care analysis, quickly determining the issues of foreseeability and proximity. For JR’s mother, the motion judge found that there was not enough evidence to establish foreseeability, and there were none of the features in the relationship to establish proximity. For JR, the motion judge found that foreseeability had been established because JR knew MW intended to drive to his home. Then the motion judge found that proximity had not been established because house parties where alcohol is served are not unusually risky, and party hosts do not have a paternalistic relationship with their guests.
The motion judge erred in her foreseeability and proximity analysis for both JR and his mother. Regarding the foreseeability analysis for JR, there is enough conflicting evidence about whether the risk was reasonably foreseeable to send the action to trial. Regarding proximity, this case is distinguishable from a large social gathering. This was two men engaging in a developed pattern of behaviour by drinking heavily in a garage, who even had a pact as to what to do in the event that one of them drove children after drinking. Further, the motion judge failed to consider that a host who continues to serve alcohol to a visibly inebriated person knowing they will be driving home is sufficient to give rise to a prima facie duty of care.
Regarding the foreseeability analysis for JR’s mother, the motion judge erred in finding that there was no evidence that JR’s mother knew MW would be driving while intoxicated. This is because there was conflicting evidence on that point. Regarding proximity, the awareness of JR’s mother of the general pact between JR and MW, that MW was heavily drinking on her property, and her knowledge of his intention to drive, may give rise to a duty of care. This potential duty of care creates a genuine issue requiring a trial.
The motion judge relied on a proposition from John to hold that even if the respondents owed a duty of care to MW, the duty of care expired once MW arrived at his home. The facts of John are distinguishable from this case. The individual defendant in John was an employee who had been drinking steadily before work, and was drinking during his breaks at work. The corporate defendant, who was the employer of the employee, did not provide the employee with any alcohol. The Court in John found in obiter that in the circumstances, if a duty of care existed between the employer and the employee, it would have ended when the employee returned home. This proposition from John does not extend to all circumstances. Accordingly, the motion judge erred in relying on this proposition from John.
(3) No, these issues should not be considered by the Court. Policy considerations are best addressed after a duty of care has been found to exist.
G. Gaikis and L. Ing, for the appellants, Sanofi-Aventis, Sanofi-Aventis Deutschland GmbH and Sanofi-Aventis Canada Inc.
After a series of patent disputes with the appellants, the respondent received regulatory approval and entered the market with a generic version of a drug that was subject to a number of patents held by the appellants. The appellants sued the respondent, and the Federal Court of Canada applied the “promise doctrine” to find that one of these patents was invalid (the “Invalidity Decision”). The Federal Court of Appeal upheld the Invalidity Decision.
The respondent commenced the action underlying this appeal for damages against the appellants under multiple statutes, but before it was set down for trial the Supreme Court of Canada released its decision in AstraZeneca Canada Inc. v Apotex Inc., 2017 SCC 36, which struck down the promise doctrine. The promise doctrine required a review of the entire specifications, including the patent’s claims and disclosure, to identify all promises of utility. If any identified promise of utility was not fulfilled, then the utility requirement was not met and the patent was declared to be invalid in its entirety. The Supreme Court rejected this approach, finding that a single use related to the nature of the subject-matter was sufficient to demonstrate utility and, in proving utility, even a scintilla of utility will suffice.
As a result of this decision, the appellants said that the Invalidity Decision was fundamentally flawed and moved to amend their statements of defence in the underlying action. The motion judge found that, although the respondent would suffer no non-compensable prejudice, the proposed amendments ran afoul of issue estoppel because they would inevitably require the entire re-litigation of the validity of the patent. The motion judge found that the “special circumstances” exception to issue estoppel did not apply, as there was no change in the law. The motion judge also found that the Invalidity Decision was valid and binding and could not be the subject of a collateral attack in another proceeding.
(1) Did the motion judge err in denying leave to amend the statements of defence based on issue estoppel?
(2) Did the motion judge err in denying leave to amend the statements of defence based on the doctrine of collateral attack?
(1) Yes. The strict application of issue estoppel would work an injustice on the appellants, and justice requires that the appellants be able to argue that a prior conclusion regarding the patent is no longer a valid conclusion in light of changes in the law. First, the Court of Appeal stated that the scope of the “special circumstances” exception is a question of law and the standard of review is one of correctness per Housen v Nikolaisen, 2002 SCC 33,  2 SCR 235 at para. 8.
Second, the Court stated that the requirements of, and the purpose behind, the doctrine of res judicata were canvassed in Danyluk v Ainsworth Technologies Inc., 2001 SCC 44,  2 SCR 460 (“Danyluk”). The Court of Appeal found that the three preconditions to the operation of issue estoppel were present in this case, but the decision in Danyluk also said that a court retained discretion not to apply the doctrine where to do so would work an injustice. The Supreme Court in Danyluk also said that the objective of issue estoppel is to ensure the orderly administration of justice but not at the cost of real injustice in the particular case, and that a court should take into account the entirety of the circumstances in weighing this. The Court of Appeal also reiterated the observation of Laskin J.A. in Minott v O’Shanter Development Co. (1999), 42 OR (3d) 321 (C.A.) (“Minott”) that if a decision of a court on a point of law in an earlier proceeding is shown to be wrong by a later judicial decision, issue estoppel would not prevent re-litigating the issue because it would be unfair to do otherwise.
The Court of Appeal found that the motion judge erred in adopting a narrow view of what constitutes a change in the law in determining whether or not the court had discretion not to apply issue estoppel. A change in the law is not limited just to a change in a statutory provision, and Laskin J.A. in Minott specifically noted that a change in the law included a decision of a court “on a point of law”. The Court of Appeal found that there was a decision of a court on a point of law at issue in this case. Based on the entirety of the circumstances and the centrality of the Invalidity Decision to the underlying action, the motion judge’s decision would work an injustice by not allowing the statements of defence to be amended to argue that the Invalidity Decision was suspect. Additionally, the respondent’s effort to advance a novel claim with extraordinary damages in bringing the underlying action meant that the respondent was the one effectively raising the validity of the patent for a second time. Finally, the Court of Appeal noted that there was nothing in s. 62 of the Patent Act, R.S.C. 1985, c. P-4 that would override the proper application of the special circumstances exception.
(2) Yes. Collateral attack would work the same injustice as issue estoppel and should not be applied to block the proposed proceedings. The Supreme Court of Canada in Toronto (City) v C.U.P.E. Local 79, 2003 SCC 63,  3 S.C.R. 77 described issue estoppel and collateral attack as particular applications of the broader doctrine of abuse of process, and that the discretionary factors applying to prevent issue estoppel from operating in an unjust or unfair way were equally available to prevent the doctrine of collateral attack from doing the same.
The appellant misappropriated nearly a million dollars from York University (“York”). At the time, he was the Assistant Vice President of Campus Services and Building Operations. Between 2007 and 2009, he devised a scheme to falsely invoice York for work that was not actually done at the university. York paid $374,983.50 for these invoices and the appellant and his co-conspirators pocketed the cash.
On February 1, 2010, before York was aware of the extent of the appellant’s dishonesty, it terminated the appellant’s employment without cause and negotiated and finalized a severance agreement with him that contained mutual releases. During those negotiations, the appellant denied any wrongdoing. York agreed to pay him 36 months’ gross salary, amounting to $696,166. The appellant’s continued employment had become untenable because York had to conduct an investigation into the rumours circulating about his financial impropriety and because of the complaints concerning his bullying behaviour.
As a result of the investigations undertaken after the appellant’s departure, York learned of the full extent of the appellant’s misconduct and sued to set aside the releases, recover the money stolen, and for repayment of the severance package. York issued the Statement of Claim on January 26, 2012. Following a 25-day trial, the trial judge found in favour of York and rescinded the severance agreement including the releases. The trial judge made a factual finding that January 29, 2010, was the earliest date York could have discovered its potential claim and, accordingly, its claim was not barred by the Limitations Act, 2002, S.O. 2002, c. 24, Schedule B (the “Act”).
(1) Did the trial judge err in concluding that the appellant’s misrepresentations of innocence induced York to enter into the severance agreement and to release the appellant from any claims York might have against him?
(2) Did the trial judge err in concluding that York’s claim was not barred by the Act?
(3) Did the trial judge err in concluding that York did not waive its claim against the appellant despite the broadness of the language in the mutual release?
(4) Did the trial judge err in concluding that a fiduciary, like the appellant, was bound to look after York’s interests while negotiating the severance agreement?
(1) No. The allegations of the appellant’s misfeasance came to light when several employees spoke to York’s Director of Human Rights (the “Director”), who later met with the York’s President to discuss the allegations on December 17, 2009. By January 27, 2010, the appellant had heard of the circulation of rumours that he was having work done on his personal residences by York employees. He attributed these suggestions to animus on the part of the union for York tradespersons and in a letter copied to his supervisor, described the allegations as unfounded, libelous, slanderous and “completely in line with previous unfounded accusations” emanating from the union. On January 28, 2010, the appellant wrote to his supervisor, York’s counsel, and York’s President, responding vigorously, and denying the rumours. On January 29, 2010, counsel for York met with one of the whistleblowers who had made allegations against the appellant. The whistleblower was prepared to sign a statement and also provide documents to support the allegations of financial misfeasance by the appellant.
A contracting party who is induced to enter into a contract as a result of a fraudulent misrepresentation is entitled to rescission, and restoration of the benefits conferred on the other party to the contract: S.M. Waddams, The Law of Contracts, 7th ed. (Toronto: Thomson Reuters, 2017), at para. 421. The question of whether a contracting party did in fact rely on the misrepresentation, at least in part, to enter into the contract is “a question of fact to be inferred from all the circumstances of the case and evidence at the trial”: G.H.L. Fridman, The Law of Contract in Canada, 6th ed. (Toronto: Carswell, 2011), at p. 291. The trial judge’s finding that York was induced to enter into the severance agreement by the appellant’s fraudulent misrepresentation that he was innocent of any financial dishonesty was supported by the evidence and no palpable or overriding error was shown. The Court of Appeal found it difficult to imagine a circumstance in which an employer, acting responsibly, would pay three years’ severanceto an employee it knew had misappropriated large sums of money from it.
(2) No. The question of whether a claim was discovered and the limitation period triggered is a question of mixed fact and law entitled to deference absent palpable and overriding error: Longo v. MacLaren Art Centre, 2014 ONCA 526, 323 O.A.C. 246, at para. 38. As indicated in Longo, at para. 44, certainty of a potential defendant’s responsibility for an act that caused the loss is not required. Rather, what is required are prima facie grounds to infer that the defendant did the act that caused the loss.
The appellant argued that the trial judge focused only on the date on which York knew that the loss had occurred, and that she did not consider that section 5(1) of the Act required her to consider the earliest of two dates: the date York knew the loss had occurred, and the date on which “a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known” of the loss. The Court of Appeal disagreed with the appellant’s position. Consideration of both branches of this test was implicit in the trial judge’s articulation of the appellant’s argument at trial that “York cannot meet its burden of proving that it did not know, or could not have known with reasonable diligence, of the facts giving rise to the claim”.
The appellant further argued that York knew it had a claim against the appellant as early as December 17, 2009, when the Director informed York’s President of the allegations by several employees, and at the latest, when the Director went to the President on January 19, 2010, to report in general terms, the allegations reported to him about financial misfeasance by the appellant. The Court of Appeal found that at that stage, neither the Director nor the President knew that York had suffered a loss or that the appellant was the person responsible. York only had allegations by persons unwilling to come forward publicly, which were firmly denied by the appellant.
(3) No. Even if the release was broad enough to bar any claim by York for recovery of the money misappropriated, the release was an integral part of the agreement induced by the misrepresentations as to the appellant’s honesty. Once that agreement and release were rescinded, York was no longer barred from recovery.
This appeal involved a dispute over a parking platform that was built on the respondent’s land and encroaches on contiguous property owned by the appellant. The appellant owns a piece of land, part of which serves as a private roadway. The respondent is one of 14 landowners who enjoys a right of way over this roadway. In 1994, the respondent’s predecessor in title built the parking platform. The top of the platform is level with the road. Because the land slopes away from the roadway, there are retaining walls on the other three sides of the platform, comprised of interlocking timbers. It is mostly filled in by gravel. The timbers that support the platform extend to the roadway and encroach by 1.37 meters. The encroachment is beneath the ground and only extends as far as a grassy area to the side of the traveled roadway. The other encroachment is at the rear of the platform, where the timbers meet at one of the corners. At a height of six feet, it encroaches by only .33 meters onto the unmaintained grassy drainage area of the appellant’s land.
When the parking platform was built in 1994, long before the parties were on the scene, a landowner who was building his own home across the roadway was able to pinpoint when the platform was constructed. He has images of the property taken before and after the platform was built. He also observed that, once completed, the platform was used exclusively by the respondent and his predecessors in title to park their respective vehicles, and those of their guests.
The appellant acquired the property in 2011 and immediately declared its rights as the owner, claiming that it could do as it wished with the land, including tearing up the asphalt roadway and replacing it with grass. It was not until 2016 that a survey revealed the encroachments at issue in this litigation. As the application judge found, it would appear that the parties had been operating on the basis of a mistake about property lines.
The appellant brought an application for a declaration of trespass and for an order that the parking platform be torn down. The respondent sought a declaration vesting title in the encroached lands in his name, based on a claim of adverse possession. The application judge dismissed the appellant’s claim and allowed the adverse possession claim, subject to the existing rights of way.
(1) Did the application judge apply an erroneous test for adverse possession?
(2) Did the application judge err by ignoring the doctrine of inconsistent use, whereby it must be proved that the claimant’s use of the land is inconsistent with the true owner’s present or future enjoyment of the land?
(3) Did the application judge err by granting relief not sought by the respondent, thus rendering the proceeding unfair?
(4) If the appellant is successful on the adverse possession issue, is it entitled to injunctive relief based on its claim of trespass?
(1) No. The appellant submitted that Keefer v. Arillotta (1976), 13 O.R. (2d) 680 (C.A.) (“Keefer”) created a “modified test” when “one claims adverse possession to lands subject to others’ rights of way.” The Court of Appeal disagreed and held that the jurisprudence did not modify the requirements for adverse possession in cases involving pre-existing easements. Instead, the court in Keefer merely observed that it will be more difficult from an evidentiary perspective to establish the pre-conditions in these circumstances. As is clear, a stricter approach prevents easements from maturing into title too easily.
Moreover, there was a solid evidentiary foundation on which the application judge could find that the construction of the parking platform was not merely the excessive use of the right of way; it involved a completely different use of the land in question, different in purpose and kind from the original grant. The evidence demonstrated that the respondent and his predecessor in title unequivocally excluded the true owners and all others from the use of the encroached spaces. Over two decades of exclusive use of those spaces permitted the application judge to find the intention to exclude all others.
(2) No. Previous jurisprudence observes that inconsistent use is a “controversial element” of an adverse possession claim. This element, which was revived in Leigh v. Jack (1879), 5 Ex. Div. 264 (C.A.), at p. 273, has in more recent times been denounced by the House of Lords as “heretical and wrong”: see J. A. Pye (Oxford) Ltd. v. Graham,  UKHL 30,  1 A.C. 419, at para. 45. To the extent that it was necessary to address this issue, the Court of Appeal was satisfied that the application judge adequately dealt with inconsistent use in relation to the roadway.
(3) No. The appellant submitted that when the application judge granted the respondent possessory title subject to the same encumbrances already on title, the application judge caught the appellant by surprise and did not allow the appellant to make submissions regarding that relief. The Court of Appeal found that both parties had the opportunity to make submissions to the application judge on this issue, both orally and in writing. Moreover, there was nothing unfair or unusual about the relief granted by the application judge.
(4) No. To the extent that it was necessary to address this issue, the Court of Appeal found that this ground had no merit. The encroachments are trifling. One was underground. The fact that the encroachment is a permanent structure was irrelevant.
The appellants, a group a condominium corporations, entered into two two-year maintenance contracts with the respondent. One contract covered summer maintenance work and the other covered winter maintenance work. The winter contract contained a provision allowing for early termination by the appellants on 10 days’ notice. In the spring, the appellants decided to terminate the winter contract but did not provide notice of termination until September of that year. During the summer, the respondent had, by their own initiative, performed “freebie” landscaping work in hopes that this would act as an incentive for the appellants to renew the contracts when their terms expired. Directors of two of the condominium corporations and the members of the committee responsible for handling the contracts were aware of the “freebie” services and knew the respondent was under the impression that the contracts were likely to be renewed. The respondent sued for breach of contract, with the issue being the appellants’ delay in informing the respondent of the decision to terminate.
At trial, the trial judge concluded that the appellants had breached their contractual duty of honest performance by acting in bad faith in withholding the fact they intended to terminate the winter contract and in continuing to represent to the respondent that the winter contract was not in danger of non-renewal. The trial judge held that meeting the minimum standard of honesty would have required the appellants to address the alleged performance issues with the respondent, provide prompt notice, or refrain from any representations in advance of the notice period.
(1) Did the trial judge err in concluding the appellants had breached their contractual duty of honest performance?
(1) The actions of the appellants did not rise to the high level required to establish a breach of the duty of honest performance. The trial judge’s findings regarding the minimum standard of honesty had the effect of substantially modifying the appellants’ right to terminate, going beyond what the duty of honest performance requires or permits. The Supreme Court held in Bhasin v Hrynew, 2014 SCC 71, that good faith contractual performance is a general organizing principle of the common law of contract, and that there is a duty of honest performance requiring parties to be honest with each other in relation to the performance of their contractual duties. However, the Supreme Court emphasized that this was not to be applied so as to undermine longstanding contract law principles and create commercial uncertainty, and the same applied to the duty of honest performance.
It was clear from Bhasin that there is no unilateral duty to disclose information relevant to termination, and the appellants were free to terminate the winter contract with the respondent provided only that they informed him of their intention to do so and gave the required notice. This is all the respondent bargained for, and all they were entitled to receive. The duty of honest performance required that the parties be honest with each other concerning matters directly linked to the performance of the contract, but did not limit the appellants’ freedom concerning contracts not yet entered into. The communications between the parties did not preclude the appellants from exercising their right to terminate the winter contract. The Court concluded by noting that their recent decision in Mohamed v Information Systems Architects Inc., 2018 ONCA 428, did not alter the analysis.
The respondent was employed by the appellant as a trader. The appellant’s CEO informed the respondent that she owed the appellant money as a result of trading losses, and that she was required to post additional money to her reserve account, failing which she would be suspended.
The next day, the respondent resigned and claimed constructive dismissal. Shortly thereafter, the appellant filed a Notice of Termination (“NOT”) on the database maintained by its regulator, the Investment Industry Regulatory Organization of Canada (“IIROC”). In that filing, the appellant stated that the respondent was terminated for cause for failing to follow trading policies and engaging in unauthorized trading.
The appellant commenced an action seeking repayment of the amounts allegedly owing as a result of trading losses. The respondent counterclaimed alleging constructive dismissal and defamation. The trial judge determined that the respondent owed no money, that she was constructively dismissed, that was entitled to six months’ payment in lieu of notice, that she was entitled to damages for defamation, and that she should receive punitive damages. The trial judge also awarded costs to the respondent on a full indemnity basis.
The appellant appealed all aspects of the trial judge’s decision.
(1) Did the trial judge err in finding that the respondent did not owe the appellant any money?
(2) Did the trial judge err in finding that the respondent was constructively dismissed?
(3) Did the trial judge err in finding the appellant liable for defamation?
(4) Did the trial judge err in awarding punitive damages?
(5) Did the trial judge err in awarding costs on a full indemnity basis?
(1) No. There was no basis to interfere with the trial judge’s interpretation of the employment contract with respect to trading losses. The trial judge provided thorough and compelling reasons, which were correct and entitled to deference in any case.
(2) No. There was no error in the trial judge’s conclusion that the respondent was constructively dismissed and was entitled to six months’ payment in lieu of notice, and no serious argument to the contrary.
Further, the trial judge was correct in finding that the employment contract’s termination clause was not enforceable on the basis that it excluded the respondent’s entitlement to benefits under s. 60(1)(c) of the Employment Standards Act, 2002, S.O. 2000, c. 41. The trial judge correctly analogized the termination clause in this case to the termination clause in related case law.
(3) No. The Court found that, entirely apart from the issue of malice, the trial judge was correct to find that the defence of qualified privilege did not apply on the basis that the appellant’s statement exceeded the legitimate purposes of the duty to report all internal discipline matters to IIROC. The information submitted in the NOT was untrue and wholly unsubstantiated. Providing misleading statements to IIROC clearly exceeded the scope of the duty to report all internal discipline matters or the duty to warn of potential risks that registered individuals may create.
(4) No. The award of punitive damages was perfectly appropriate given the appellant’s conduct, including the independently actionable breach of the duty of good faith in the employment contract. Such an award was necessary to sanction the respondent for its marked departure from the ordinary standards of decent behavior.
Contrary to the appellant’s submission, there was no overlap in the damages awarded. The damages were modest and did not come close to fully compensating the respondent for the devastating consequences of the appellant’s conduct.
(5) No. The respondent made repeated generous offers to settle the case that the appellant rebuffed or ignored. It was clear that the appellant took a hardline, no-compromise position in this litigation. The Court of Appeal observed that such a tactic comes with costs consequences, and that it was not the Court’s responsibility to relieve the appellant of those consequences.
On October 15, 2012, the first complaint about the offending building structure came to the attention of the municipality. Officials attended at the property and issued compliance orders, to no avail. An information was sworn and summons issued on June 12, 2013 – about eight months following the initial complaint.
At trial, the respondents were convicted for breaches of a municipal by-law and the Building Code Act (“BCA”). The respondents appealed to the Ontario Court of Justice. The appeal judge considered an argument that was not advanced at trial. That argument related to the limitation period applicable to proceedings under the BCA.
Relying on R v Pickles, the appeal judge concluded that the one-year limitation period under the BCA ran from the date the construction of the building was finished. The appeal judge quashed the conviction because of the failure of the municipality to establish that proceedings were instituted not more than one year after the construction was completed.
(1) Did the appeal judge err in law by applying the wrong limitation period?
(1) Yes, the appeal judge erred in law by applying the wrong limitation period. On July 1, 2010, s 36(8) of the Building Code Act was amended to provide that the one-year limitation period commenced on the date that “the facts on which the proceeding is based first came to the knowledge of an officer or the chief building official.” The prosecution was instituted within one year of the municipality first gaining knowledge of the structure. There was evidence at trial about this date and it was not open to the appeal judge to interfere with the trial court’s finding on this issue.

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Difference Between Remaining Silent and Requesting Counsel?
Enough of our clients have asked us what is the difference between remaining silent and requesting counsel that we decided to simply write an article that answers this question in the most thorough manner we can muster, but in concise form.
The Gist of This Article: Requesting counsel, i.e. telling the police that you want your attorney present, is supposed to bar all questioning on any matter whereas invoking one’s right to remain silent does not stop police from asking questions about an arguably separate matter.
A suspect’s assertion of the right to remain silent only does not prevent the police from later asking the suspect questions about a separate case, as long as the police “scrupulously honor” the suspect’s wish not to discuss the original case by immediately terminating the questioning. Michigan v. Mosley (1975) 423 U.S. 96, 104, 96 S. Ct. 321; People v. DeLeon (1994) 22 Cal.App.4th 1265, 1269.
In contrast, as soon as a suspect asserts the right to counsel, all questioning must cease until an attorney is present. Minnick v. Mississippi (1990) 498 U.S. 146, 111 S. Ct. 486; Edwards v. Arizona (1981) 451 U.S. 477, 484, 101 S. Ct. 1880; Miranda v. Arizona (1966) 384 U.S. 436, 473, 86 S. Ct. 1602; People v. Ireland (1969) 70 Cal.2d 522, 537.
Once a suspect invokes his or her right to an attorney, any subsequent statements to police are presumed to be involuntary and inadmissible if obtained without counsel present. Edwards, at 451. This “Edwards Rule” is not offense specific, as some police think. It even applies if a police officer, unaware that the suspect previously requested counsel, starts questioning and the suspect provides answers. Arizona v. Roberson (1988) 486 U.S. 675, at 687, 108 S. Ct. 2093.
Once someone invokes the right to counsel, all police questioning is barred regardless of why the suspect is in custody, regardless of why the police want to ask him questions and regardless of the topic of the questioning. Roberson, supra; People v. Underwood (1986) 181 Cal.App.3d 1223, 1231.
However, if the suspect voluntarily initiates discussion about the case, or there has been a break in custody of at least 14 days, then the questioning is not considered involuntary and the statements inadmissible. Edwards, supra, at 485; Maryland v. Shatzer (2010) 559 U.S. 98, 110, 130 S. Ct. 1213.
Re-admonishing the suspect will not produce evidence that is admissible, but if the suspect does then answer questions the answers are admissible only for impeachment purposes if the statement is found voluntary. Oregon v. Elstad (1985) 470 U.S. 298, 105 S. Ct. 1285. The purpose of the is rule is to protect the suspect from badgering by the police, i.e. wearing down the defendant by repeatedly attempting to get him or her to answer questions by repeatedly giving him or her the Miranda warnings. See also People v. Boyer (1989) 48 Cal.3d 247, 270, overruled on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830 n1 (egregious example of continued questioning by overbearing police officers despite invocation of Miranda rights).
It is an academic distinction, but one that the reader may appreciate. The Fifth Amendment right to counsel attaches when a suspect requests a lawyer during a custodial interrogation. California v. Beheler (1983) 463 U.S. 1121, 1123, 103 S. Ct. 3517. This must be requested during the interrogation, not before. Bobby v. Dixon (2011) 565 U.S. 23, 28, 132 S. Ct. 26.
In contrast, the Sixth Amendment right to counsel, i.e. a public defender or an attorney of one’s choice, attached once adversarial proceedings are initiated, which is typically upon the filing of formal charges. Fellers v. U.S. (2004) 540 U.S. 519, 124 S. Ct. 1019; Massiah v. U.S. (1964) 377 U.S. 201, 84 S. Ct. 1199. It does not attach before charges are filed, which is why if someone is arrested, released and, before charges are filed, marches over to the public defender’s office to demand a consultation, the public defender’s office may tell them that they cannot help them until the complaint is filed.
If Representing Oneself, Ten Things to Never Say in Court.

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Problem’s setting. The economic rights and freedoms, namely the ownership have an important place in the economic system. Improvement of legal regulation concerning the state policy in the area of the ownership requires detailed regulation at the constitutional level, because of the high level of corruption and crime rate in economic relations. These negative consequences are primarily provoked by low level of democratic procedures’ efficiency and the mechanism of realizing economic rights.
Analysis of recent research and publications. Some aspects of this issue have been the matter of studies of a number of Ukrainian and foreign scholars. The notion of the state policy was studied in the works of: V. Tertychka, O. Kucherenko, P. Fris, etc. Issues concerning the state policy in the economic sphere were the interest of: V. Ustimenko, V. Mamutov, V. Selivanov, O. Skupinskyi, D. Zadykhailo, Yu. Bysiah, I. Kresin and others.
The objective of this paper is to determine the general principles of the state policy in the area of guaranteeing the ownership, to establish their content, place and significance for the economic system and to formulate the definition of the concept of the state policy in the area of the ownership.
The main part: Development and realization of the constructive state policy in the economic sphere will lead to the stabilization of economic relations; reduce violations of the economic rights granted by the Constitution; increase the trust of public to the state apparatus; increasing the public sense of security by the state. Constitutional acts become the major legal factor in social, state and legal development. The Constitution is a source of the state economic policy; it has the policy character and performs the predictive function. The scholars repeatedly note that there is the necessity to amend the constitutional provisions of the Main Law relating to the economic system, including the allocation of a separate section that has the same name.
In our opinion, the main principles of the economic system of Ukraine that determine the grounds of the state policy in guaranteeing the ownership are the following: legality; equality; priority of human rights; providing the guarantees and protection of these rights by the state; protection of the national economic interests; state’s non-interference in production and economic activity; realization of legal state regulation of economic relations; policy-making. These principles have their normative “embodiment” within the text of certain provisions of the Constitution, which can be related to the principles of the state policy in the area of the ownership: 1) state regulation of the economy; 2) responsibility of the state to the individual and society; 3) state protection of the economic rights; 4) social orientation of the economy.
Conclusions: Thus, the necessity to improve the constitutional regulation of the economic system of Ukraine, development of the effective procedures to prevent and protect against violations of economic rights of citizens, improvement of the mechanism of realizing the economic rights, determine the need to characterize the state policy in the area of the ownership in Ukraine.
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“A Metrics Suite for Object Oriented Design”, (with S. Chidamber) ranked as the #1 most highly cited software engineering research paper ever (1972-2015) out of nearly 72,000 papers analyzed in, “Highly-Cited Papers in Software Engineering: The Top 100”, Information and Software Technology , 2016.
Ranked Top 12 in the world in authorship of highly cited papers, by livari, J.,“ Making Sense of the History of Information Systems Research 1975-1999: A View of Highly Cited Papers”, Communication of the AIS, v. 36, 2015.
“A Metrics Suite for Object Oriented Design”, (with S. Chidamber) ranked in the Top 10 most highly cited IS research papers worldwide (1993-2010) by N. Hassan, “Who else is Reading Our Research? An Exploratory Scientometric Method of Assessing IS Relevance Outside the Allied Management and Computing Fields”, Univ. of Minnesota working paper, 2011.
Ranked Top 10 in the world in terms of research publications, by Athey S. and Plotnicki, J. “An Evaluation of Research Productivity in Academic IT”, Communication of the AIS, v.3, March 2000.
University of Pittsburgh Chancellor’s Distinguished Research Award Nominee, 1999-2000, 2012-2013.
Ranked Top 25 in the world in terms of research publications and productivity, by Im, K.S., Kim, K. Y., and Kim, J. S. “An Assessment of Individual and institutional research productivity in MIS”, Decision Line, January 1998.
Singh, S. P., C. Kemerer and N. Ramasubbu,“Dominant Design in Complex-Assembled Digital Products: Longitudinal Analysis of Television Components”, working paper, May 2018.
“Winners-Take-Some Dynamics in Digital Markets: A Reexamination of the Video Game Console Wars”, (with B. K. Dunn and S. Janansefat), working paper, January 2017.
Ramasubbu, N. and C. Kemerer, “Integrating Technical Debt Management and Software Quality Management Processes: A Normative Framework and Field Tests”, IEEE Transactions on Software Engineering, in press, 2017.
Ramasubbu, N. and C. Kemerer, “Technical Debt and the Reliability of Enterprise Software Systems: A Competing Risks Analysis”, Management Science, vol. 62, no. 5, pp. 1487-1510, May 2016.
"Managing Technical Debt in Enterprise Software Packages", (with N. Ramasubbu), IEEE Transactions on Software Engineering, vol. 40, no. 8, pp. 758-772, August 2014.
Ramasubbu, N. and C. Kemerer, “Towards a Model for Optimizing Technical Debt in Software Products”, International Conference on Software Engineering (ICSE) Workshop on Technical Debt, San Francisco, CA, May 2013.
“Strategies for Tomorrow’s ‘Winners-Take-Some’ Digital Goods Markets”, (with C. Liu and M. Smith), Communications of the ACM, vol. 56, no. 5, pp. 76-82, May 2013.
Ramasubbu, N., C. Kemerer and J. Hong, “Structural Complexity and Team Task Strategy on Object-Oriented Software Maintenance: An Experimental Test”, IEEE Transactions on Software Engineering, vol. 38, No. 5, pp. 1054-1068, September/October 2012.
Liu, C., C. Kemerer, S. Slaughter, M. Smith, “Standards Competition In the Presence of Conversion Technology: An Empirical Analysis of the Flash Memory Card Market”, MIS Quarterly, vol. 36, no. 3, pp. 921-942, September 2012.
Harter, D., C. Kemerer and S. Slaughter, “Does Software Process Improvement Reduce the Severity of Defects? A Longitudinal Field Study”, IEEE Transactions on Software Engineering, vol. 38, no. 4, pp. 810-827, July/August 2012.
Jiang, Y., J. Shang, C. Kemerer and Y. Liu, “Optimizing E-Tailer Profits and Customer Savings: Pricing Multistage Customized Online Bundles”, Marketing Science, vol. 30, pp. 737-752, July-August 2011.
Liu, C., E. Gal-Or, C. Kemerer, M. Smith, “Compatibility and Proprietary Standards: The Impact of Conversion Technologies in IT-Markets with Network Effects”, Information Systems Research, vol. 22, no. 1, pp. 188-207, March 2011.
Swanson, B., J. King, I. Benbasat, C. Kemerer, “The Early Years of ISR: Recollections of the Editors”, Information Systems Research, vol. 21, no. 4, pp. 665-674, December 2010.
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“The Impact of Design and Code Reviews on Software Quality: An Empirical Study Based on PSP Data”, (with M. Paulk), IEEE Transactions on Software Engineering, vol. 35, no. 4, pp. 534-550, July-Aug. 2009.
Ramasubbu, N., Mithas S., Krishnan M.S., and C. Kemerer, “Work Dispersion, Process-Based Learning and Offshore Software Development Performance”, MIS Quarterly, v. 32, n. 2, pp. 437-458, June 2008.
“Network Effects in the Flash Memory Market: A Preliminary Analysis” (with C. Liu, S. Slaughter, and M. Smith) accepted at the Workshop on Information Systems and Economics (WISE), Montreal, Canada, December 2007.
“How Software Process Automation Affects Software Evolution: A Longitudinal Empirical Analysis”, (with E. Barry and S. Slaughter), Journal of Software Maintenance and Evolution, v. 19, n. 1, pp. 1-31, January-February 2007.
“Environmental Volatility, Development Decisions and Software Volatility: A Longitudinal Analysis”, (with E. Barry and S. Slaughter), Management Science, v. 52, n. 3, pp. 448-464, March 2006.
“The Structural Complexity of Software: An Experimental Test” (with D. Darcy, S. Slaughter, and J. Tomayko), IEEE Transactions on Software Engineering, v. 31, n. 11, pp. 982-995, November 2005.
“OO Metrics in Practice”, (with D. Darcy), IEEE Software, v. 22, n. 6, pp. 17-19, November/December 2005.
Cusumano, M, MacCormack, A., Kemerer, C., Crandall, B., “Software Development Worldwide: The State of the Practice”, IEEE Software, v. 20, n. 6, pp. 28-34, November/December 2003.
Selected as one of IEEE Software’s 25th Anniversary’s best peer-reviewed full length articles.
MacCormack, A., C. Kemerer, M. Cusumano, and B. Crandall, “Trade-offs between productivity and quality in selecting software development practices” IEEE Software, v. 20, n. 5, pp. 78-85, September/October 2003.
E. Barry, C. Kemerer, and S. Slaughter, “On the Uniformity of Software Evolution Patterns”, Proc. of the 25th International Conference on Software Engineering, Portland, Oregon, May 2003.
R. Fichman and C. Kemerer, “Activity Based Costing for Component-based Software Development ”, Information Technology and Management, v. 3, nos. 1/2, pp. 137-160, January 2002.
R. Banker, S. Datar, C. Kemerer, and D. Zweig, “Software Errors and Software Maintenance Management”, Information Technology and Management, v. 3, nos. 1/2, pp. 25-41, January 2002.
R. Fichman and C. Kemerer, “Incentive Compatibility and Systematic Software Reuse ”, Journal of Systems and Software, v. 57, n. 1, pp. 45-60, April 2001.
“Empirical studies of evolving systems” (with K. Bennett, E. Burd, M. Lehman, M. Lee, R. Madachy, C. Mair, D. Sjoberg, and S. Slaughter), Empirical Software Engineering, v. 4, n. 4, December 1999.
“An Empirical Analysis of Software Evolution Profiles and Outcomes”, (with E. Barry and S. Slaughter), Proc. of the 20th International Conference on Information Systems, December 1999.
“The Illusory Diffusion of Innovations: An Examination of Assimilation Gaps”, (with R. Fichman), Information Systems Research, v. 10, n. 3, pp. 255-275, September 1999.
“An Empirical Approach to Studying Software Evolution” (with S. Slaughter), IEEE Transactions on Software Engineering, v. 25, n. 4, pp. 493-509, July/August 1999.
“Managerial Use of Object Oriented Software Metrics”, (with S. Chidamber and D. Darcy), IEEE Transactions on Software Engineering, v. 24, n. 8, pp. 629-639, August 1998.
“A Longitudinal Empirical Analysis of Software Evolution”, (with S. Slaughter), International Workshop on Principles of Software Evolution, Kyoto, Japan, April 20-21, 1998.
“Future Markets: Information Technology’s Impact on Market Structure” Chapter 1 in Information Technology and Industrial Competitiveness: How IT Shapes Competition, C. F. Kemerer (ed.), Kluwer Academic Press, 1998.
“Object Technology and Software Reuse: Lessons from Longitudinal Case Studies of Early Adopters”, (with R. Fichman) IEEE Computer, v. 30, n. 10, pp.-47-59, October 1997.
Translated into Japanese and reprinted in Nikkei Computer, pp. 145-153, April 13, 1998.
Translated into Japanese and reprinted in a “Best of” collection of papers, Nikkei Computer Books, ISBN 4-8222-0771-4, 1998.
“Determinants of Software Maintenance Profiles: An Empirical Investigation” (with S. Slaughter) Journal of Software Maintenance, v. 9, pp. 235-251, 1997.
“The Assimilation of Software Process Innovations: An Organizational Learning Perspective”, (with R. Fichman) Management Science, v. 43, n. 10, pp. 1345-1363, October 1997.
“Reusable Asset” InformationWeek, September 22, 1997, pp. 64-66.
“Methodologies for Performing Empirical Studies: Report from the International Workshop on Empirical Studies of Software Maintenance” (with S. Slaughter) Empirical Software Engineering, v. 2, n. 2, pp. 109-118, 1997.
“A Longitudinal Analysis Of Software Maintenance Patterns”, (with S. Slaughter) 18th International Conference on Information Systems, research in progress, Atlanta, Georgia, December 1997.
“Network Externalities in Microcomputer Software: An Econometric Analysis of the Spreadsheet Market”, (with E. Brynjolfsson) Management Science, v. 42, n. 12, pp. 1627-1647, December 1996.
“Software Complexity and Software Maintenance: A Survey of Empirical Research”, Annals of Software Engineering, v. 1, n. 1, pp. 1-22, August 1995.
“A Metrics Suite for Object Oriented Design”, (with S. Chidamber), IEEE Transactions on Software Engineering, v. 20, n. 6, pp. 476-493, June 1994.
“Evidence on Economies of Scale in Software Development”, (with R. Banker, and H. Chang) Information and Software Technology, v. 36, n. 5, pp. 275-282, 1994.
“Software Complexity and Software Maintenance Costs”, (with R. Banker, S. Datar and D. Zweig), Communications of the ACM, v. 36, n. 11, pp. 81-94, November 1993.
“Toward a Theory of the Adoption and Diffusion of Software Process Innovations”, (with R. Fichman) IFIP Working Conference on Diffusion, Transfer and Implementation of Information Technology, Pittsburgh, Pennsylvania, October 1993.
“Reliability of Function Points Measurement: A Field Experiment”, Communications of the ACM, v. 36, n. 2, pp. 85-97, February 1993.
“Adoption of Software Engineering Process Innovations: The Case of Object-Orientation” (with R. Fichman), Sloan Management Review, vol. 34, n. 2, pp. 7-22, Winter 1993.
Translated into Dutch and reprinted as “Acceptatie van programmeertechnische procesinnovaties: de objectorièntatie” in Management en Organisatie van Automatiseringsmiddelen, Kluwer Bedrijfswetenschappen, Netherlands, March 1995.
“Bridging the Gap between Research and Practice in Software Engineering Management: Reflections on the Staffing Factors Paradox”, pp. 116-120 in Experimental Software Engineering Issues: Critical Assessment and Future Directions, Rombach, H. D., V. R. Basili and R. W. Selby (eds.), Springer-Verlag, Berlin, (1993).
“Staffing Factors in Software Cost Estimation Models” (with M. Patrick) Chapter 11 in the Handbook of Software Engineering Productivity, J. Keyes, (ed.), McGraw-Hill, New York, NY, pp. 175-190, 1993.
“Performance Evaluation Metrics for Information Systems Development: A Principal-Agent Model”, (with R. Banker) Information Systems Research, v. 3, n. 4, pp. 379-400, December 1992.
“Improving the Reliability of Function Point Measurement: An Empirical Study”, (with B. Porter) IEEE Transactions on Software Engineering, v. 18, n. 10, pp. 1011-1024, November 1992.
“Object-Oriented and Conventional Analysis and Design Methodologies: Comparison and Critique” (with R. Fichman), IEEE Computer, v. 25, n. 10, pp. 22-39, October 1992.
Reprinted in Readings in Object-Oriented Systems and Applications, D. Rine (ed.), IEEE Computer Society Press, 1993.
Reprinted in High-Integrity System Specification and Design, J. Bowen and M. Hinchey, (eds.), Springer-Verlag, Berlin, 2000.
Reprinted in Computer-Aided Software Engineering (CASE), E. Chikofsky (ed.), 2nd edition, pp. 154-159, IEEE Computer Society Press, 1993.
“Cyclomatic Complexity Density and Software Maintenance Productivity”, (with G. Gill), IEEE Transactions on Software Engineering, v. 17, n. 12, pp. 1284-1288, December 1991.
“Recent Applications of Economic Theory in Information Technology Research” (with J. Y. Bakos), Decision Support Systems, v. 8, n. 5, pp. 365-386, September 1992.
“Software Cost Estimation Models”, Chapter 28 in The Software Engineer’s Reference Book, Butterworth-Heinemann Ltd., Oxford, England, UK. (1991).
“Systems Development Risks in Strategic Information Systems”, (with G. Sosa), Information and Software Technology, v. 33, n. 3, pp. 212-223, April 1991.
Translated into Dutch and reprinted as “Risico’s bij systeemontwikkeling van strategische informatiesystemen” in Management en Organisatie van Automatiseringsmiddelen, Kluwer Bedrijfswetenschappen, Netherlands, October 1993.
“A Model to Evaluate Variables Impacting Productivity on Software Maintenance Projects”, (with R. Banker and S. Datar), Management Science, v. 37, n. 1, pp. 1-18, January 1991.
“An Agency Theory View Of The Management Of End-User Computing”, (with V. Gurbaxani), Proceedings of the 11th International Conference on Information Systems (ICIS), Copenhagen, Denmark, pp. 279-289, December 1990.
“A Quantitative Analysis of US and Japanese Practice and Performance in Software Development”, (with M. Cusumano), Management Science, v. 36, n. 11, pp. 1384-1406, November 1990.
“Instrumenti per la Rilevazione ed il Recupero della Produttivita’ nella Manutenzione del Software” in Sistemi & Impresa (Italian), v. 2, March 1990.
Translated from “Tools for Measuring and Improving Software Maintenance Productivity: Results from Empirical Research on Software Complexity” Proceedings of the Software Engineering Symposium 90. Milan, Italy, February 1990.
“An Agent-theoretic Perspective on the Management of Information Systems”, (with V. Gurbaxani), Proceedings of the 22nd Hawaii International Conference on System Sciences, v. III, pp. 141-150, January 1989.
Awarded “Best Paper”, Economics of Information Systems Management Minitrack.
“An Agenda for Research in the Managerial Evaluation of Computer-Aided Software Engineering Tool Impacts”, Proceedings of the 22nd Hawaii International Conference on System Sciences, v. II, pp. 219-228, January 1989.
“Scale Economies in New Software Development” (with R. Banker), IEEE Transactions on Software Engineering, v. 15, n. 10, pp. 1199-1205, October 1989.
“Barriers to Successful Strategic Information Systems”, (with G. Sosa), Planning Review, Special Issue on Strategic Information Systems, v. 16, n. 5, September / October 1988, pp. 20-46.
“Software Production Economics: Theoretical Models and Practical Tools”, ACM 27th Technical Symposium Proceedings, Gaithersburg, Maryland, June 1988.
“Factors Affecting Software Maintenance Productivity: An Exploratory Study”, (with R. Banker and S. Datar), Proceedings of the 8th International Conference on Information Systems (ICIS), Pittsburgh, Pennsylvania, pp. 160-175, December 1987.
“Discovering the Profiles and Patterns of Software Evolution”, National Science Foundation #9988315 & #9988227, co-Principal Investigator with S. Slaughter, July 1, 2000 through December 30, 2002, $316,165.
“Economics of Software Maintenance as part of Total Cost of Ownership”, IBM Faculty Awards Program Maximum Award.
“Standards Competition in the Presence of Conversion Technology: An Empirical Analysis of the Flash Memory Card Market”, (With C. Liu and M. Smith), NET Institute, New York University.
“Consumer Welfare in Two-Sided Digital Content Markets", (with B.K. Dunn), BNY Mellon Faculty Fellowship, 2011-2013.

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