Austin

The appellants challenged a trial judgment requiring repayment of money advanced by the respondents for the purchase of land intended for a matrimonial home, arguing the transfer was a gift rather than a loan.

The Court of Appeal upheld the trial judge's credibility findings and conclusion that the funds were advanced as a loan repayable when the appellants became financially able to do so.

Although the trial judge had not expressly addressed when that repayment condition was satisfied in the main reasons, the appellate court relied on the later finding made in fixing pre-judgment interest and granted an amendment to the statement of claim to conform to the issue actually litigated.

The limitation defence failed because the cause of action arose only when the appellant became financially able to repay.

The appellant physician appealed the refusal to replace the future care and gross-up components of a personal injury judgment with periodic payments under s. 116 of the Courts of Justice Act.

The Court of Appeal held that where a plaintiff seeks gross-up, periodic payments are presumptively required unless the plaintiff shows they are not in the plaintiff's best interests, having regard to all the circumstances.

The trial judge properly treated the inquiry globally, accepted that the plaintiff's financial plan need not be confined to future care spending, and was entitled to consider the lack of a guarantee period, the structure's inflexibility, and concerns about prosthetic innovation and medical-cost inflation.

The appeal was dismissed with costs.

The appellant employer appealed a wrongful dismissal judgment awarding a twenty-seven month notice period.

The Court of Appeal held that, although the notice period was at the extreme upper limit of what was appropriate, it was still supportable on the facts and did not justify appellate intervention.

The court also upheld the trial judge's finding that the respondent employee made reasonable efforts to mitigate his damages.

The appeal was dismissed with costs.

The appellant housing co-operative appealed from a Divisional Court decision that had decided the merits of a settled dispute concerning termination of a member's membership and occupancy rights.

The Court of Appeal held the matter was moot because the parties had fully settled and neither retained any live legal interest in the outcome.

Applying the mootness framework, the court declined to hear the appeal on the merits, finding the issues were not uniquely evasive of review and did not raise broad questions of public importance.

The Divisional Court should not have entertained the moot appeal.

Its order was set aside and the appeal was dismissed as moot, without costs.

The appellants challenged a trial judgment ordering the winding up of a corporation and joint venture arising from a deadlocked commercial dispute over an apartment building.

The appeal also attacked findings of fiduciary breach, incidental damages, the scheme for distribution of remaining assets, and a solicitor-and-client costs award.

The Court of Appeal held that the trial judge's credibility findings, acceptance of evidence that the property sold at fair market value under power of sale, and conclusions on fiduciary misconduct were amply supported by the record.

The appeal was dismissed with costs.

The appellant appealed the dismissal of its motion seeking to strike an action brought by a debenture trustee and assignee arising from an alleged failure to perform duties undertaken during a corporate restructuring and bankruptcy context.

The court held it had not been demonstrated that the respondent could not succeed at trial on the issue of capacity, accepting that the floating charge over the debtor's assets, including choses in action, could crystallize on bankruptcy and support the trustee's standing.

Assuming without deciding that leave was required to sue the appellant in its role as monitor, the absence of leave was treated as an irregularity and leave was granted nunc pro tunc because there was a proper basis for the claim and no demonstrated prejudice.

The argument that individual debentureholders had to be added as parties was also rejected, and the appeal was dismissed with costs.

The appellant sought a declaration of a prescriptive right-of-way over adjoining lands used for cottage access.

The appeal turned on whether the claimed easement accommodated the dominant tenement and whether some degree of necessity was required despite long, non-permissive use.

The court held that the trial judge erred in concluding the use did not accommodate the appellant's land and further erred in importing a necessity requirement into a prescriptive easement analysis.

The appeal was allowed, a declaration of easement was granted, ancillary relief concerning obstructing posts was ordered, and costs were awarded to the appellant.

The appellant challenged a Commercial List order refusing an adjournment and dismissing its appeal from the disallowance of a proof of claim in a winding-up proceeding for want of prosecution.

The Court of Appeal held that the motion judge was aware of the full context, including the appellant's prolonged inaction, failure to file responding materials, and failure to explain either the asserted conflict with counsel or the delay.

The court rejected the appellant's procedural fairness argument and found no error in the exercise of discretion.

The appeal was dismissed with costs.

The appellant challenged the dismissal of a personal injury action arising from a bicycle fall followed by a truck running over his hand.

The appeal raised alleged misstatements in the jury charge, admissibility and pre-trial disclosure of post-accident statements, treatment of accident reconstruction opinion evidence, adequacy of Highway Traffic Act instructions, and the reasonableness of the jury verdict.

The court held that any alleged misstatement was immaterial, the challenged statements were properly left to the jury, no disclosure or pleading obligation had been established, and the expert evidence was properly limited where the subject matter was within ordinary experience.

The jury verdict and trial costs disposition were upheld, and the appeal was dismissed with costs.

The appellant insurer appealed from summary judgment granted in favour of a bankruptcy trustee under an errors and omissions policy issued to the bankrupt insured.

The court held there were genuine issues for trial regarding the insured's state of mind when placing insurance with an unregistered offshore insurer and regarding whether the policy extended coverage although the insured was not a registered insurance broker.

Because the exclusion clause turned on whether the insured committed an intentional wrongful act, error or omission, the evidentiary record was insufficient to justify summary judgment.

The appeal was allowed, the summary judgment was set aside, and the action was directed to proceed to trial.

The appellant sought to pursue a personal claim against a municipality for loss of income arising while he was employed by a now-bankrupt company.

The court held that, as pleaded, the appellant had no cause of action against the municipality in his personal capacity, even though he was not purporting to advance a claim on behalf of the bankrupt corporation.

While the court did not fully agree with the motion judge's reasons, it agreed with the result.

The appeal was dismissed with costs and the cross-appeal was quashed without costs.

The respondent challenged the constitutionality of the Criminal Code DNA warrant provisions authorizing seizure of bodily substances for forensic analysis.

The Court of Appeal held that the challenge was properly resolved under s. 8 of the Charter, and that if the regime satisfied s. 8 scrutiny it could not be contrary to the principles of fundamental justice under s. 7 on the self-incrimination theory advanced.

The court found the statutory scheme contained substantial judicial and privacy safeguards, upheld the ex parte warrant structure, and rejected the lower court's attempt to read in a notice requirement.

Fresh evidence concerning updated DNA technology undermined the basis for striking down the hair-sample provision, which was reinstated.

The cross-appeal was dismissed and the declaratory application was dismissed.