Abella

The appellants challenged a motion decision permitting a broadcast libel action to proceed despite an allegedly deficient pre-action notice.

The court held that s. 5(1) of the Libel and Slander Act requires written notice before commencement of the action and that failure to comply is an absolute bar, not a mere irregularity.

Applying the governing notice standard, the court found the plaintiff's initial letter too general to specify the matter complained of, because it did not identify with sufficient clarity which statements in the broadcast were alleged to be libellous.

The appeal was allowed, the cross-appeal was dismissed, and the entire action was barred against all defendants.

Dans cet appel en diffamation portant sur un documentaire télévisé, la Cour a statué que l'avis écrit exigé par le par. 5(1) de la Loi sur la diffamation doit, avant l'introduction de l'action, préciser suffisamment les propos diffamatoires reprochés pour permettre au défendeur de corriger, rétracter, justifier ou atténuer.

La lettre initiale de la demanderesse, qui alléguait de façon générale que l'émission était diffamatoire, était trop vague pour satisfaire à cette exigence à l'égard du radiodiffuseur et de la productrice.

Quant aux autres défendeurs, l'avis détaillé leur a été signifié seulement après la délivrance de la déclaration, ce qui constituait également un défaut fatal.

L'appel principal a été accueilli, l'appel incident rejeté, et aucune ordonnance n'a été rendue quant aux frais.

In a motor vehicle tort action, the appellant sought an order compelling his automobile insurer to fund and provide an independent defence after the insurer denied coverage on the basis of alleged policy and statutory breaches, including conduct surrounding impaired driving and failure to report the accident.

The court held that no immutable rule should govern whether the duty to defend is suspended where breach of condition is alleged; the issue must be resolved contextually, having regard to the strength of the parties' positions and the need to furnish a separate defence.

On the facts, the alleged breaches were clear and uncontested, no evidentiary basis was advanced for estoppel or relief from forfeiture, and the insurer had already been added as a statutory third party under s. 258(14) of the Insurance Act and was defending liability and quantum in terms aligned with the insured's interests.

The appeal was dismissed with costs.

Criminal conviction appeal arising from a taxi robbery prosecution in which the police obtained an inculpatory statement by threatening to "trash" the accused's mother's home during execution of a search warrant.

The court held that police conduct rendering a statement involuntary at common law infringes s. 7 of the Charter, and that the resulting oral statement and diagram were conscriptive evidence that had to be excluded under s. 24(2).

The court exercised its discretion to allow the accused to advance the Charter argument for the first time on appeal because voluntariness had been fully litigated at trial and the record was complete.

The court further held that the St. Lawrence rule must be modified to recognize a discretion to exclude involuntary confessions despite confirmation by real evidence, with admission justified only in highly exceptional circumstances.

Without the confession, the remaining evidence could not support conviction, so the convictions were quashed and acquittals entered.

The appellants appealed the refusal to set aside an international commercial arbitration award under the UNCITRAL Model Law as incorporated by Ontario statute.

They argued that the arbitral procedure offended public policy and that they had been unable to present their case because of limited disclosure of agreements and the absence of foreign witnesses.

The court held that the tribunal's procedure did not offend local principles of justice and fairness in a fundamental way and that the appellants had not been deprived of an adequate opportunity to present their case.

The appeal was dismissed with costs.

This appeal concerned the interpretation of a will where the named remainderman died before the life tenant.

The court held that the devise to the sister was incapable of taking effect within the meaning of s.27 of the Wills Act and, absent contrary intention, was swept into the residue.

Reading the will as a whole, the court found the testator intended the ultimate beneficiaries to be the sister and her heirs, and not to enlarge the widow’s interest beyond a lifetime right of occupation.

The appeal was allowed and a declaration issued that the property passed to the sister’s estate.

The Crown appealed a sentence imposed for a violent offence committed by an offender with a prior record for violence, addictions, and mental health concerns.

The court accepted that the offender had posed a significant danger at the time of the offence, but emphasized the substantial rehabilitation achieved before and after sentencing.

The sentencing judge had carefully considered the authorities and tailored a conditional sentence to minimize the risk of reoffending while preserving rehabilitation prospects and community protection.

Leave to appeal was granted, but the sentence appeal was dismissed.

The appellant sought leave to appeal sentence for a very serious aggravated assault, arguing the sentence was excessive, that insufficient weight was given to the absence of prior incarceration, and that the delayed parole eligibility order was unwarranted.

The court held that long-term incarceration for public protection was the only realistic option in light of the appellant’s major mental disorder, violent record, and limited rehabilitative prospects.

Although the trial judge was mistaken about the maximum sentence for aggravated assault, the Court of Appeal found no error in principle and no clearly excessive sentence.

Leave to appeal was granted, but the sentence appeal was dismissed, including the order delaying parole eligibility until half the sentence had been served.

The appellant challenged a robbery conviction on the basis that two eyewitness identifications were too unreliable to support the verdict.

The court held that the identification evidence, independently provided by two witnesses, was not so inherently unreliable as to render the conviction unreasonable.

Although the trial judge made one factual error in reviewing the evidence, it did not taint the verdict.

The court further held that the witnesses' independent and unsolicited identification of the appellant from a newspaper photograph before photographic line-ups did not, in the circumstances, taint their later identifications.

The appellants challenged convictions for conspiracy to rob, robbery, and accessory after the fact arising from a violent pizza store robbery committed by co-accused.

The Court of Appeal held that the jury charge was materially deficient because it failed to present the defence theory, failed to relate the evidence to the issues, inadequately instructed on the three-step conspiracy analysis, and did not properly limit the use of co-accused statements and guilty pleas.

Additional errors were found in the response to a jury question, the accessory-after-the-fact mens rea instruction, and the absence of a proper after-the-fact conduct instruction.

Although the refusal of severance disclosed no reversible error, the cumulative charge errors precluded application of the curative proviso.

A new trial was ordered.

The appellant challenged a contempt order arising from non-payment of a lump-sum support-related amount ordered in dependant support proceedings under Part V of the Succession Law Reform Act.

The Court of Appeal held that rules 60.05 and 60.11(1) of the Rules of Civil Procedure permit contempt enforcement only for orders requiring an act other than the payment of money, and that this includes support orders.

The court rejected any purported family law exception and held that the Rules displaced any inherent jurisdiction to use contempt for money judgments in proceedings governed by the Rules of Civil Procedure.

The contempt order was set aside and the motion for contempt was dismissed.

Appeal in a professional negligence action against an accountant arising from a review engagement for a retail business that failed to remit over $1 million in provincial retail sales tax.

The court held the accountant owed a duty to exercise reasonable skill and care and breached the applicable standard by failing to make intelligent inquiries about glaring discrepancies between sales and remittance figures, particularly given the client's prior audit history.

A contractual exclusion clause did not shield the accountant because it operated only where the review engagement was conducted in accordance with applicable standards.

The appellant could recover losses tied to penalty, assessed interest, and non-recoverable income tax consequences, but not post-assessment borrowing costs or professional fees; damages were reduced by 50 per cent for contributory negligence.

The appellant appealed a jury conviction for counselling murder arising from an alleged arrangement with a co-accused witness to kill a prospective witness in unrelated property offences.

He argued the verdict was inconsistent with acquittals on conspiracy to commit murder and attempted murder, that the jury charge on counselling was flawed, that a prior guilty plea to possession of property obtained by crime was wrongly admitted, and that the Crown’s closing unfairly overstated the target witness’s importance.

The Court of Appeal held the verdicts were not violently at odds because the offences were separately defined and involved materially different elements, the charge as a whole could not have misled the jury, the prior guilty plea was admissible, and the closing address disclosed no reversible error.

The appeal was dismissed.

The Crown appealed a sentence imposed after a manslaughter conviction arising from the death of the accused's mother by ligature strangulation.

The court reiterated the deferential appellate standard for sentence appeals and held that a conditional sentence for manslaughter is not, in itself, an error in principle.

In light of the offender's remorse, rehabilitation, psychiatric evidence, lack of risk to the community, and the trial judge's careful consideration of the sentencing objectives in the Criminal Code, the majority found no basis to interfere.

Leave to appeal sentence was granted, but the appeal was dismissed, with a dissent concluding that denunciation and general deterrence required custody.

The appeal concerned whether a Board of Inquiry lost jurisdiction over an employment discrimination complaint after the Commission ceased participating following referral.

The court held that the complainant retained independent party status under the Human Rights Code, that the Commission's role changed upon referral, and that the Board of Inquiry was an autonomous tribunal required to conduct the hearing.

The phrase granting the Commission carriage of the complaint was interpreted as procedural rather than substantive.

The Divisional Court's contrary ruling was set aside and the matter was remitted for further hearing.

In a winding-up of a charitable corporation facing extensive institutional abuse claims, the liquidator sought appellate clarification on whether assets allegedly held on special purpose charitable trusts were shielded from tort creditors whose claims arose elsewhere within the charity’s operations.

The court held that Canadian law recognizes no charitable immunity from tort liability and rejects any trust-fund theory that would immunize charitable assets from execution.

In the winding-up context, all assets of the charitable corporation, whether beneficially owned or held on trust for charitable purposes, were available to satisfy legitimate tort claims.

The court also struck out a paragraph of the order suggesting it was not intended to affect related British Columbia proceedings, while confirming that the British Columbia court remained free to make its own factual findings on ownership issues.

The appeal concerned whether an insured who rescinded an accident benefits settlement under s. 9.1(4) of the Automobile Insurance Regulation had to first repay settlement funds before the rescission became effective.

The court held that the statutory rescission right was consumer protection legislation and operated upon delivery of written notice where the insurer had failed to provide the notice required by s. 9.1(2).

Repayment of funds was not a condition precedent to rescission, but the funds became immediately due and owing once rescission was effected.

The insured could therefore pursue a statutory accident benefits claim, while the insurer was entitled to an order declaring its right to repayment.

The appeal was allowed in part, with no order as to costs.

The respondents to the motion sought to quash an appeal on the basis that an order transferring a statutory proceeding under the Mining Act to the Superior Court of Justice was interlocutory.

The Court of Appeal held that the transfer order finally disposed of the application brought under s. 107 of the Mining Act and was therefore a final order within s. 6(1)(b) of the Courts of Justice Act.

Applying the reasoning in Buck Bros. and the Hendrickson line of authority, the court concluded that the real matter in dispute in the court proceeding was whether the statutory proceeding should be transferred.

The motion to quash was dismissed with costs.

The appeal concerned whether a pre-1986 marriage contract removed designated property from the equalization regime under the Family Law Act.

The court held that the agreement, read as a whole, clearly provided that the property would remain the wife's alone and would prevail over the Family Law Reform Act or any successor legislation.

The court distinguished prior authorities where contractual wording was materially different.

Applying s. 70(3), the court concluded that the contract deemedly excluded the property from s. 5 equalization.

The appeal was allowed with costs throughout.

The appellant dentist appealed an order striking his statement of claim against counsel retained by the professional regulator in disciplinary proceedings.

The Court of Appeal majority held that novelty was not a basis to strike a malicious prosecution claim at the pleading stage and that the pleaded civil conspiracy claim should also stand.

Although the pleadings were poorly drafted, the majority concluded the matter should proceed to trial, leaving the trial judge to assess the various claims on the evidence.

The appeal was allowed, the motion judge's order was set aside, and the motion to strike was dismissed with costs to the appellant here and below.