Charron

The estate appealed a ruling that the discoverability principle applied to the two-year limitation period in s. 38(3) of the Trustee Act for tort claims against estates.

The underlying negligence action arose from a motor vehicle accident in which the alleged tortfeasor died, and the plaintiff commenced the action almost five years later, asserting late discovery that the injuries met the statutory threshold under the Insurance Act.

The Court of Appeal held that the discoverability rule is only a rule of construction and does not apply where the limitation runs from a fixed event unrelated to the claimant's knowledge.

Because s. 38(3) runs from the death of the deceased, the claim was barred unless brought within two years of death.

The appeal was allowed, and the cross-appeal on costs was dismissed.

The appellant brokerage appealed the dismissal of its commission claim arising from an authority to sell.

The court held that the authority did not apply to a sale to a purchaser who had already been dealing with the respondents before the authority was signed, and that merely showing financial statements did not amount to showing the property in the circumstances.

The court also upheld the trial judge’s conclusion that, although the broker provided some assistance, it was not the effective cause of the sale.

The appeal was dismissed with costs and the money paid into court was ordered paid out to two of the respondents.

The appellants appealed the dismissal of their contractual claim under the S.E.F. 44 Family Protection Endorsement after they had agreed to limit recovery against the tortfeasor to the tortfeasor's policy limits.

The Court of Appeal held that, in a direct action against the insurer, the phrase 'legally entitled to recover' requires proof only that the inadequately insured motorist was at fault and that damages exceed the available limits.

The continued enforceability of the claim against the tortfeasor was held to be a non-issue, consistent with prior authority recognizing a direct contractual cause of action against the insurer.

The appeal was allowed, the Rule 21 answer was changed to 'No', and costs of the motion and appeal were awarded to the appellants.

The Crown appealed a sentence imposed after convictions for two counts of sexual assault, arguing that the trial judge unlawfully combined an intermittent custodial term with a conditional sentence.

The Court of Appeal held that s. 732(1) permits intermittent imprisonment only for sentences of 90 days or less, and that s. 742.1 requires the sentence to be served in the community rather than partly in custody and partly in the community.

Relying on the statutory wording and appellate authority, the court concluded that the blended sentence was illegal.

Leave to appeal was granted, the appeal allowed, and the weekend jail condition deleted.

On an appeal from an application judgment concerning a non-profit airport authority's refusal to appoint a municipal nominee as member and director, the court upheld the declaration that the board acted contrary to its by-law.

The appeal turned on whether the board had clear and unambiguous evidence that the nominee would not at all times act in the authority's best interests.

The court held that neither the nominee's cautious interview answers nor the board's adverse credibility finding based on his subsequent letter could reasonably satisfy that stringent anticipatory standard.

The board's rejection of the nomination therefore fell outside the scope of its authority under the by-law, and the appeal was dismissed with costs.

The appellant appealed a second degree murder conviction arising from an entirely circumstantial prosecution based on motive, forensic evidence, and prior statements attributed to the deceased.

The principal issue was whether the jury charge was deficient for failing to distinguish direct from circumstantial evidence and for using pre-Lifchus language on reasonable doubt.

The court held that no formulaic circumstantial-evidence instruction was required so long as the jury was clearly told that guilt had to be the only reasonable inference proven beyond a reasonable doubt.

The court also held that the Crown's speculative suggestions, the manslaughter instruction, and the cautions concerning hearsay evidence did not cause unfairness warranting a new trial.

The conviction appeal was dismissed.

The appellant appealed a judgment upholding a retail sales tax assessment imposed on payments made to terminate computer equipment leases after repudiation and default.

The court held the payments were negotiated settlement amounts made in the context of potential damages claims and simultaneous lease termination, not rental payments made under an ongoing lease.

Reading s. 2(1) and s. 2(6) of the Retail Sales Tax Act together, the court concluded sales tax is payable only on each rental payment while the lease remains in operation.

The assessment was vacated, the tax and interest paid were to be repaid, and no costs were ordered.

In a complex Indigenous land claim involving multiple summary judgment motions and overlapping appeals, the moving party sought to quash an appeal by one Crown respondent and a cross-appeal by another.

The court held that, because the motions below were heard together on a single record and the issues were interrelated, the provincial Crown had standing to appeal despite not bringing its own motion below.

The court also held that the federal Crown had standing to cross-appeal and that any complaint that it was advancing a new argument went to the merits, not to the validity of the cross-appeal.

Both motions to quash were dismissed with costs.

The trustee in bankruptcy appealed an order setting aside its disallowance of a secured claim based on an alleged purchase money security interest.

The court held that the general curative provision in s. 9(2) of the Personal Property Security Act cannot override the specific attachment requirements in s. 11, including the requirement that the debtor sign the security agreement.

A complete absence of execution is not a defect or omission curable under s. 9(2).

The respondent's claimed security interest was therefore not effective against the trustee.

In this wrongful dismissal appeal, the employer challenged findings respecting frustration of contract, deduction of Workers’ Compensation Benefits, aggravated damages, and costs, while the employee cross-appealed the deduction issue and the dismissal of punitive damages.

The court held the employer could not invoke frustration after abandoning justification for dismissal, and confirmed that Workers’ Compensation Benefits received during the notice period were deductible but not subject to tax gross-up.

The court set aside aggravated damages because the conduct relied upon fell outside the pleadings as particularized and lacked an adequate evidentiary foundation.

The cross-appeal was dismissed, and the trial costs award was left undisturbed.