Borins

Appeal from a declaration that a strip of land remained a public highway because a municipality had not complied with statutory requirements when confirming a road closing and later selling the land.

The court held the earlier by-law had effectively stopped up the highway and the later by-law merely corrected the description and confirmed that result, so s. 470(1) did not invalidate the road closing.

Although the municipality failed to comply with s. 487 when selling the stopped-up highway to the predecessor in title, the court had discretion to refuse declaratory relief and should have done so because of extensive delay.

The court further held that subsequent purchasers could rely on defences under the Limitations Act and the Land Titles Act.

The appeal was allowed and the underlying application dismissed.

Appeals from rule 21 motions in an action arising from a fatal police shooting and the subsequent SIU investigation.

The majority held that the tort of misfeasance in public office requires abuse of statutory or administrative power, and that an alleged failure by police officers to co-operate with an SIU investigation under s. 113(9) of the Police Services Act was a breach of duty, not an abuse of power.

The majority struck the misfeasance claim against the officers and the negligent supervision claim against Ontario, but allowed the negligent supervision claim against the police chief to proceed.

The majority also held the Board could not be liable for negligent supervision because the Act confined it to policy functions and precluded operational direction.

A dissent would have permitted the misfeasance and broader negligent supervision claims to proceed.

The appellants challenged a trial judgment arising from the breakdown of a 15-year unmarried cohabitation on a farm.

They accepted entitlement to restitution for unjust enrichment and to support, but argued the awards were excessive and that the security charge should be narrowed.

The court held the trial judge was entitled to deference in assessing the responding party's needs, the moving party's true income-generating capacity, and the appropriate quantum of support.

Finding no basis to interfere with the unjust enrichment award or the charging order, the appeal was dismissed with costs.

The appeal concerned a municipal restructuring proposal that combined a minor land transfer between neighbouring municipalities with the annexation of multiple unorganized townships, thereby avoiding the need for majority support from electors in the affected unorganized territory.

The court held that municipalities must act within both the letter and the purpose of their enabling legislation, and that a by-law inconsistent with the policy underlying the Municipal Act is ultra vires and illegal.

The impugned by-law and resolution were found to be a device to circumvent the statutory consultation and support structure contemplated by s. 25.2.

The appeal was dismissed and the quashing order upheld.

In an appeal from judgments on a passing of accounts, the court upheld a substantial reduction of an estate trustee's claimed compensation and repayment orders after findings of dishonesty, breach of fiduciary duty, and attempted self-benefit at the expense of estate assets.

The court held that the audit judge properly exercised equitable discretion under the Estates Act and Trustee Act to deny full compensation and require repayment of salary and related amounts.

Leave to appeal the solicitor-and-client costs order was granted, but the costs appeal was dismissed.

The beneficiaries' cross-appeal concerning an alleged $914,431 loss from a related transaction was dismissed because the audit judge had not clearly adjudicated a damages claim for breach of trust on the passing of accounts, though such a claim was left open for future litigation.

The appellant Crown appealed a refusal by the motions judge to withdraw her prior decision dismissing a stay motion in an employment-related proceeding brought by a former Crown employee.

The Court of Appeal held that a reasonable apprehension of bias arose because the motions judge was herself pursuing ongoing employment-related litigation against the Crown while adjudicating a similar claim advanced against the same party.

Applying the governing bias principles, the court found that a disqualifying interest is broader than pecuniary or proprietary interest and includes some relevant interest in the subject matter.

The appearance of impartiality was compromised, both orders were set aside, and the stay motion was remitted to be reheard by a different judge.

No costs were awarded.

Retired police officers, through their representative corporation, appealed the dismissal of a Rule 22 motion claiming an interest in approximately $6 million in excess pension funds arising after legislative amendments moved supplementary early retirement benefits into the basic OMERS plan.

The appeal advanced theories based on deferred wages, trust, fiduciary obligations, unjust enrichment, partial wind-up, and statutory restrictions on surplus use.

The Court of Appeal substantially adopted the motion judge’s reasoning and held that the supplementary agreement did not create a separate pension plan and that retirees under a defined benefit plan had no inherent entitlement to the excess funds.

The appeal was dismissed with costs.

The appellants challenged the trial judgment dismissing their medical negligence claim arising from a death allegedly caused by negligent treatment.

The Court of Appeal held that uncertainty as to the medical cause of death did not shift the burden of proof on causation to the defendants, and the plaintiffs remained required to establish a sufficient causal link on the whole of the evidence.

The court found no palpable basis to interfere with the trial judge’s factual findings and rejected the argument that the trial should have been reopened for further causation evidence.

The appeal was dismissed with costs.

The appellant appealed a summary judgment dismissing a medical malpractice action on limitation grounds arising from an oesophageal dilation that allegedly caused a rupture.

The court held that the governing statutory limitation provisions incorporated the discoverability rule and that the record raised a factual issue as to when the appellant knew or ought to have known the material facts underlying the negligence claim.

Because that fact-based issue could not properly be resolved on summary judgment, the appeal was allowed and the action was restored for trial.

The court further held that the respondent's summary judgment motion was unreasonable within rule 20.06(1) and awarded the appellant solicitor and client costs of both the motion and the appeal.

On an appeal from summary judgment enforcing three personal guarantees in favour of a bank, the appellant argued that representations by the bank's representative limited or altered his obligations under the guarantees.

The court held that the alleged representations concerning the $50,000 and $35,000 guarantees did not raise a genuine issue for trial because they were contradicted by the documents and the surrounding circumstances.

However, the affidavits concerning the $6,000 guarantee disclosed a genuine issue for trial because both sides acknowledged circumstances suggesting that guarantee may have been intended to apply only to a specific Visa debt.

The appeal was allowed in part and the default judgment was amended to exclude enforcement of the $6,000 guarantee pending trial.

In this wrongful dismissal appeal, the appellants challenged a trial judgment awarding damages for dismissal without cause.

The court held that the respondent was a key, valuable and trusted employee who stood in a fiduciary relationship to his employer and was required to act with loyalty, good faith, honesty, and full disclosure.

By secretly pursuing a business opportunity for his own company while employed, using employer time and equipment, and intending to compete with the employer without disclosure or consent, the respondent breached those fiduciary duties.

Pre-employment comments about an aspiration to start a future business did not satisfy the later duty of full disclosure.

The appeal was allowed, the trial judgment was set aside, and the action was dismissed with costs.

The appellants challenged a judgment enforcing liability under a guarantee arising from a commercial loan transaction.

The Court of Appeal held that, despite an inaccurate characterization of the original loan transaction by the motions judge, there was consideration for the guarantee because the loan was advanced to the numbered company formed to carry on the business.

The court also held that the lender was not required to realize on its security before demanding payment and was entitled to leave the assets to the landlord.

The appeal was dismissed with costs.

The appellant valve manufacturer appealed from a Divisional Court order upholding partial refusal of summary judgment in a product liability action arising from a propane explosion and fire.

The Court of Appeal held that on a defendant's motion for summary judgment, the responding plaintiffs bore an evidentiary burden to show their negligent design and failure to warn claims were factually supported.

Applying the design defect framework, the court found no evidence identifying any defect in the valve or any safer economically feasible alternative design.

The failure to warn claim also failed because there was no evidence of an inherent danger known or knowable to the manufacturer.

The appeal was allowed and the claims against the manufacturer were dismissed in their entirety.

The plaintiff appealed the dismissal of his defamation and wrongful dismissal actions arising from a workplace sexual assault allegation, while the defendant cross-appealed the dismissal of her sexual assault counterclaim as statute-barred.

The Court of Appeal held that the trial judge made no palpable and overriding error in accepting the defendant's evidence, rejecting the plaintiff's credibility, dismissing the plaintiff's claims, and awarding costs.

However, the court allowed the cross-appeal because the plaintiff had not pleaded the limitation defence under s. 45(1)(j) of the Limitations Act, and a trial judge should not decide the case on an unpleaded affirmative defence that may cause prejudice.

The defendant was therefore awarded $100,000 in damages on the counterclaim.

The appellant insurer appealed a declaration requiring payment of life insurance proceeds to the respondent, who was the named beneficiary under a policy maintained pursuant to a separation agreement.

The insured died accidentally from cocaine intoxication after ingesting narcotics, and the insurer argued both an implied contractual exclusion for criminal acts and a public policy bar against recovery flowing from criminal conduct.

The Court of Appeal held the policy was unambiguous, the insured did not intend to cause his own death, and the respondent claimed as an ordinary beneficiary rather than through the insured's estate.

Applying prior authority on the crime-profit rule, the court held that public policy did not bar recovery by an innocent beneficiary and dismissed the appeal.

The appellant municipality appealed the dismissal of its third party claim against residential owners and occupants after a pedestrian allegedly slipped on a snow-covered public sidewalk.

The court held that the summary judgment motion was not premature because the third party respondents were entitled to challenge the legal sufficiency of the pleadings at the outset.

Applying the common law duty analysis and the framework governing statutory breach, the court held that owners of property adjacent to public sidewalks owe no common law duty to clear snow and ice absent special circumstances such as assumed control over the sidewalk or hazards emanating from their property.

The municipal by-law requiring snow clearing did not impose civil liability or displace the municipality's statutory duty under the Municipal Act.

The appeal was dismissed with costs.

In a tobacco liability appeal, the estate challenged an order striking portions of a statement of claim alleging intentional spoliation of evidence by tobacco manufacturers.

The Court of Appeal held that the novel spoliation claim should not be struck on an interlocutory motion because it was not plain and obvious that it could not succeed, and questions about recognition of the tort should be determined at trial on a full record.

The court further held that omnia praesumuntur contra spoliatorem is a rule of evidence, not a point of law that must be pleaded, so that paragraph was properly struck.

The appeal was allowed in part, the cross-appeal was dismissed without costs, and the appellant received costs of the motion and appeal.

The appellants challenged a judgment holding the mortgagor and certain original guarantors liable for a mortgage deficiency after sale under power of sale.

The central dispute concerned whether an extension agreement entered into with a subsequent purchaser discharged the guarantors, including under s. 9(4) of the Land Registration Reform Act and principles of novation.

The majority dismissed the appeal, holding the extension agreement did not extinguish the guarantors' liability, but allowed the lender's cross-appeal by restoring the $75,000 reduction and awarding solicitor and client costs.

A partial dissent would have allowed the guarantors' appeal on the basis that the extension discharged them.

The appellant appealed his aggravated assault conviction arising from a group attack in which the Crown relied on party liability under s. 21(1)(b) of the Criminal Code.

During deliberations, the jury asked when any accused had first told police that the complainant had grabbed a co-accused by the testicles, and the trial judge answered only that there was no evidence on that point.

The Court of Appeal held that, in the circumstances, the answer was inadequate because it failed to explain that the accused had no obligation to speak to police on arrest or testify at the preliminary hearing, and that no adverse inference could be drawn from silence.

The omission undermined the right to silence and may have materially affected the jury's assessment of the co-accused's defence, which in turn affected the appellant's conviction as a party.

The appeal was allowed, the conviction was set aside, and a new trial was ordered.

The appellants appealed the dismissal of an application for certiorari seeking to quash a search warrant.

The court held that the reviewing judge properly applied the governing certiorari standard, which asks whether there was evidence upon which the justice of the peace could issue the warrant rather than reweighing the information.

Any alleged non-disclosure regarding an informant's antecedents would not have affected issuance, and the remaining information disclosed ample grounds.

The court further held that certiorari is discretionary and found no basis to interfere with the application judge's judicial exercise of discretion.