Cynthia Barbara Kuehl

The appellant appealed a decision interpreting a varied trust deed.

The trust had been converted into a percentage trust (unitrust) to allow the trustee to invest for maximum returns.

Due to market downturns, the trustee had to sell capital assets to meet the mandatory minimum percentage distributions to the income beneficiaries, depleting the trust's capital.

The application judge found that the trust deed's terms made the percentage payments mandatory and ousted the trustee's duty to maintain an even hand between income and capital beneficiaries regarding distributions.

The Court of Appeal dismissed the appeal, holding that the application judge correctly interpreted the trust deed based on its clear language and the surrounding factual matrix, including the prior court approval and tax rulings.

During a case conference in a medical negligence action, the court addressed outstanding procedural steps required for trial preparation.

The plaintiffs were ordered to complete all outstanding undertakings by a specified deadline and to deliver their expert reports shortly thereafter.

The court also scheduled a pretrial conference date.

The endorsement reflects routine case management directions to advance the litigation toward trial.

The applicant sought a stay of a Master's order discharging a certificate of pending litigation over a development property pending appeal.

Applying the three‑part test for a stay, the court found the applicant failed to establish irreparable harm because the property was a commercial investment and any loss could be compensated through damages.

The court also held the balance of convenience favoured allowing the pending sale to a third‑party purchaser to proceed, noting the applicant’s weak claim to beneficial ownership and the uncertainty surrounding an alternative offer arranged by the applicant.

The motion for a stay was dismissed.

The appellant doctor sued the respondent hospital, producing emails during the litigation that the hospital suspected were fabricated.

After the action settled, the doctor applied for reappointment to the hospital's medical staff.

The hospital sought to use an affidavit obtained during the litigation, which questioned the emails' authenticity, at a Medical Advisory Committee meeting.

The application judge granted relief from the deemed undertaking rule under Rule 30.1.01(8) to permit this use.

The Court of Appeal dismissed the doctor's appeal, finding no error in the application judge's exercise of discretion, as the parties were the same and the interest of justice in denouncing potentially fabricated evidence outweighed any non-existent prejudice to the appellant.

The court issued a supplementary endorsement to address the costs of an appeal that was previously allowed.

The court fixed the costs of the appeal and the application below at $10,500, inclusive of disbursements and taxes, payable by the respondents to the appellant.

The appellant appealed an order declaring that the respondent had no legal obligation to terminate her second-trimester pregnancy to mitigate damages in a wrongful birth action.

The Court of Appeal allowed the appeal and set aside the declaration, finding that the issue was not a pure question of law suitable for determination on the pleadings under Rule 20.01(1)(a).

Instead, it was a question of mixed fact and law that required a full factual record at trial.

The appellant appealed a decision regarding a title insurance claim.

The Court of Appeal dismissed the appeal, agreeing with the application judge and finding that the claim was barred by the exclusions and exceptions relating to leases in the insurance policy.

The appellants appealed the dismissal of their medical malpractice action against a hospital, nurses, and doctors following the birth of a child who suffered severe brain damage due to oxygen deprivation prior to an emergency Caesarean section.

The trial judge dismissed the action, finding that while there were shortfalls in care, the cause of the oxygen deprivation was unknown and therefore not caused by the defendants' negligence.

The Court of Appeal allowed the appeal and ordered a new trial on liability, holding that the trial judge erred in law by deciding the issue of factual causation before determining whether the standard of care was breached, and that the trial judge's reasons were insufficient to explain why the plaintiffs' theory of liability was rejected.

The respondent successfully sued her mother for breach of fiduciary duty for failing to protect her from sexual abuse by her father during her childhood.

The mother appealed, arguing the action was barred by the equitable doctrine of laches due to the 42-year delay in bringing the claim, and that she was powerless to intervene.

The Court of Appeal dismissed the appeal on liability, finding no acquiescence by the respondent and that the mother failed to establish she was unable to protect her daughter.

However, the Court allowed the appeal in part regarding damages, reducing the award for lost income from $100,000 to $20,000 due to a lack of evidentiary foundation for the higher amount.

A cross-appeal regarding trial costs was dismissed.

The appellants appealed a trial judgment dismissing their action for damages for personal injuries sustained on an amusement park ride.

At trial, the judge refused to instruct the jury that the respondent was a common carrier subject to a higher standard of care and a reverse onus, instead charging them on ordinary negligence and occupiers' liability.

The jury found no liability.

The Court of Appeal dismissed the appeal, holding that an amusement park ride does not fall within the definition of a common carrier and the policy rationale for the higher standard of care does not apply.

The respondents, the City of Toronto and the Toronto Transit Commission, brought a motion requesting that Justice Matlow recuse himself from a judicial review panel due to a reasonable apprehension of bias arising from his prior advocacy against a City development project.

Justice Matlow, deciding the recusal issue alone, dismissed the motion, finding no reasonable apprehension of bias and that the respondents had waived their right to object by delaying.

However, the other two panel members, Justices Greer and E. Macdonald, concluded that a reasonable apprehension of bias did exist.

Because they could not order Justice Matlow to recuse himself, they stepped down from the panel to prevent a breach of natural justice, resulting in the panel being struck and the application ordered to be heard de novo.

The respondents, the City of Toronto and the Toronto Transit Commission, brought a motion for the recusal of Justice Matlow and to strike the panel that had previously granted an application for judicial review.

The moving parties argued that Justice Matlow's prior involvement in contentious issues with the City created a reasonable apprehension of bias.

Justices Greer and E. Macdonald, the other members of the panel, were unaware of the extent of Justice Matlow's involvement prior to the motion.

They concluded that an objective third party would find a reasonable apprehension of bias.

Consequently, they decided to stand down, strike the panel, and declare their previous decision null and void to ensure the matter did not proceed in breach of natural justice.

The plaintiff obtained a judgment for wrongful dismissal and unpaid commissions against his former employer, Westsun Show Systems Inc. Without attempting to execute the judgment, he brought a second action against the parent company's directors and officers, and former officers of the employer.

The trial judge found several directors liable for the wage debts and held a corporate representative personally liable for the costs of the first trial under the oppression remedy.

The Court of Appeal allowed the defendants' appeals, finding no duty on the corporate representative to disclose the lack of directors to an adverse party, and holding that the plaintiff failed to meet the strict statutory preconditions and limitation periods for directors' liability under the Manitoba Corporations Act.

The plaintiff's appeal and cross-appeal were dismissed.

The appellants appealed the dismissal of their medical malpractice action arising from the death of a child with numerous congenital health problems following a tonsillectomy and subsequent surgeries for post-operative bleeding.

The trial judge preferred the evidence of the defence expert paediatric otolaryngologist, who opined that the decision not to transfuse was a reasonable judgment call, over the plaintiffs' expert paediatric haematologist.

The Court of Appeal found no basis to interfere with the trial judge's well-reasoned findings of fact and assessment of the expert evidence, and dismissed the appeal.

The appellants, a privately appointed receiver and his company, appealed a trial judgment ordering an accounting and denying receiver's fees due to egregious breaches of fiduciary duty and self-dealing in the receivership of a horse farming operation.

The respondents cross-appealed, seeking the equitable remedy of tracing regarding a specific farm property improperly acquired by the receiver's nephew.

The Court of Appeal dismissed the appeal, finding overwhelming evidence of the receiver's complete failure to appreciate his duties, including acting in conflict of interest.

The Court allowed the cross-appeal in part, granting the respondents the right to trace the proceeds realized from the farm property and ordering the receiver to disgorge any profits.