Earl Asher Cherniak

Following the release of reasons disposing of the appeals regarding an Indigenous land claim, the Court of Appeal determined the costs of the proceedings.

The court ordered the appellant to pay 50% of the federal and provincial crowns' costs of the appeals on a party and party basis, noting the federal crown's unsuccessful arguments regarding the validity of the land surrender.

The class representatives, including the railway company, were awarded 100% of their costs for both the summary judgment motions and the appeals on a party and party basis.

The court directed that all costs be assessed rather than fixed.

The appellant suffered severe injuries after her vehicle skidded on preferential black ice on a Highway 401 bridge.

The trial judge dismissed her action against the Ministry of Transportation, finding the Ministry lacked actual or constructive knowledge of the ice.

The Court of Appeal allowed the appeal, holding that the trial judge erred in law.

The proper test is whether the Ministry knew or ought to have known of a special and highly dangerous situation creating a risk of serious and imminent harm.

Given the weather forecasts and the known risk of preferential icing, the Ministry ought to have known of the danger and failed to take reasonable remedial steps, such as an early morning inspection.

The appellant contractor sought judicial review of an Ontario Labour Relations Board decision upholding a union grievance.

The appellant alleged a breach of natural justice because a draft decision dismissing the grievance was changed to uphold it after a full board meeting.

The Supreme Court of Canada dismissed the appeal, holding that institutional consultation does not breach natural justice provided it is limited to questions of policy and law, and the adjudicators remain free to decide.

The Court found no evidence that factual matters were improperly discussed at the full board meeting, and the change in the decision concerned a matter of law and policy regarding the abandonment of bargaining rights.

An Indigenous band appealed from a summary judgment disposition concerning reserve lands sold in the 19th century without a lawful formal surrender.

The Court of Appeal held that there had been no surrender and that the claim was not barred by statutory limitation periods, but concluded that declaratory and possessory relief should nevertheless be refused.

The court applied public law discretion and equitable doctrines, emphasizing the band's historical acquiescence, the extraordinary delay in asserting the land claim, and the reliance of innocent third-party landowners who had held and developed the properties for generations.

The band was left to pursue its damages claims against the Crown.

Several Indigenous moving parties sought leave to intervene in multiple appeals concerning Aboriginal rights and title issues.

The court held that three of the moving parties had a sufficient interest in the outcome and could usefully add to the issues, and granted intervention on strict conditions, including that the existing record would stand and a single factum be delivered.

A separate moving party seeking intervention primarily to challenge portions of Ontario's factum was refused leave because the court was not persuaded it would add anything materially new to the arguments already to be made by existing parties.

No costs were ordered.

In a commercial lending dispute arising from failed condominium project financing, the appellants challenged findings that they breached the original takeout mortgage commitment, the assignment of takeout financing, and a later amended commitment.

The Court of Appeal upheld the liability findings, concluding the appellants had no lawful basis to refuse funding in 1991 or 1992 and that the respondent was entitled to full damages from the earlier repudiation.

The court held, however, that compound interest was not available under s. 130 of the Courts of Justice Act and was not justified on equitable grounds in an ordinary breach of contract claim.

The appeal was therefore allowed only to substitute simple interest for compound interest.

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 appellants sought judicial review to quash notices of potential findings of misconduct issued by the Commissioner of the Inquiry on the Blood System in Canada.

The appellants argued the Commissioner exceeded his jurisdiction by making findings that amounted to civil or criminal liability, and that the late delivery of the notices breached procedural fairness.

The Supreme Court of Canada dismissed the appeal, holding that a commissioner may make findings of misconduct and evaluate facts according to standards of conduct, provided they do not amount to conclusions of legal liability.

The Court also found the procedural protections afforded to the parties were extensive and the timing of the notices was fair given the complexity of the inquiry.

The appeal concerned whether an accountant providing tax planning and investment advice owed fiduciary duties to a client where the advisor fostered trust and reliance while failing to disclose a financial relationship with the developers of the recommended tax shelter investments.

The majority held that a fact-based fiduciary relationship arose because the client reasonably expected independent advice given solely in his best interests, and the undisclosed conflict breached both fiduciary and contractual duties.

The Court restored the trial judgment awarding restitutionary damages equal to the client's net losses, holding the breaching advisor bore the market risk once the client proved he would not have entered the investments but for the non-disclosure.

The dissent would have confined fiduciary duties to relationships of total dependency and would have limited contract damages because the market collapse, not the non-disclosure, caused the devaluation.

The Canadian Commercial Bank (CCB) faced a solvency crisis and received a $255 million advance from a support group consisting of governments and major banks.

When CCB was subsequently ordered to be wound up, the liquidator sought advice on whether the support group's claim for the advance should rank pari passu with other unsecured creditors or be postponed as a capital investment.

The Supreme Court of Canada held that the advance was in substance a loan, not a capital investment, despite having some equity features like warrants.

The Court also held that the loan did not fall within the postponement provision of the Partnerships Act because the lenders were not receiving a share of the profits, but rather repayment of a fixed debt out of profits.

Finally, the Court declined to apply the doctrine of equitable subordination, finding no inequitable conduct by the support group.

The Crown appealed a decision of the Ontario Court of Appeal which had struck down a reverse onus provision in the Occupational Health and Safety Act.

The Supreme Court of Canada allowed the appeal, applying its recent decision in R. v. Wholesale Travel Group Inc. The Court held that while the requirement for the accused to establish due diligence on a balance of probabilities restricts the presumption of innocence under s. 11(d) of the Charter, it is a justifiable limit under s. 1.

The case was remitted to the Court of Appeal to dispose of the remaining grounds of appeal.

The respondent was seriously injured when he slipped and fell on the icy parking area of a rural farmhouse rented by the appellants.

The parking area had not been salted or sanded, which the appellants argued was consistent with local custom.

The respondent sued for damages under the Occupiers' Liability Act.

The trial judge found the appellants liable, and the Court of Appeal dismissed their appeal.

The Supreme Court of Canada dismissed the appeal, holding that the appellants breached their statutory duty of care under s. 3(1) of the Act by doing nothing to make the premises reasonably safe.

The Court further held that the respondent's mere knowledge of the icy conditions did not mean he willingly assumed the legal risks under s. 4(1) of the Act, which preserves the strict volenti non fit injuria doctrine.

The appellants suffered severe injuries in a motor vehicle accident caused by an underinsured driver.

They sued their government-owned insurer for the shortfall, alleging the insurer failed to inform them about the availability of underinsured motorist coverage (UMC).

The Supreme Court of Canada held that a public insurer owes a duty of care to inform its customers of all available optional coverages, their purpose, and their cost.

The Court found the insurer breached this duty by providing inadequate and confusing information, and restored the trial judge's award of damages for the shortfall and costs on a solicitor and client basis.

The appellants challenged a provincial commission of inquiry into alleged dealings between named private individuals, a corporation, and public officials.

The majority held that, in pith and substance, the inquiry functioned as a substitute police investigation and preliminary inquiry into a specific Criminal Code offence, thereby intruding on Parliament's exclusive jurisdiction over criminal law and criminal procedure under s. 91(27) of the Constitution Act, 1867.

The naming of private individuals, the close mirroring of s. 121 of the Criminal Code, and the inquiry's coercive powers were found cumulatively to render the Order in Council ultra vires.

The Court therefore allowed the appeal and did not decide the remaining Charter issues.

Appeal involving failed arm's length negotiations between mining companies over possible joint development of gold properties in the Hemlo area.

The respondent disclosed confidential geological information and its acquisition plans for an adjacent patented property during negotiations; the appellant then used that information to acquire the property for itself.

A majority held that the appellant breached a duty of confidence, and the Court upheld the constructive trust remedy requiring transfer of the property, subject to compensation for improvements.

The decision contains major reasons on the distinction between breach of confidence and fiduciary duty, and on the availability of constructive trust as a restitutionary remedy.

The appellants sought compensation for injurious affection after the respondent Minister acquired adjoining land and constructed a public highway.

No part of the appellants' land was taken, but they claimed damages for loss of prospect and privacy.

The Supreme Court of Canada held that to recover under the Expropriations Act, the damage must be actionable at common law.

The Court found that the loss of amenities, such as prospect and privacy, does not constitute an actionable nuisance, and the Minister's use of the land for a highway was not unreasonable.

The appeal was dismissed.

The sole surviving executor of an estate improperly loaned estate money to his own company and executed a debenture that was not registered.

After the executor died, the new administrators applied for late registration of the debenture under the Corporation Securities Registration Act.

However, a petition in bankruptcy had already been filed against the debtor company.

The Supreme Court of Canada held that while the executor's misconduct constituted 'sufficient cause' for late registration, the bankruptcy petition vested the company's assets in the trustee.

Section 75 of the Bankruptcy Act did not operate to elevate the estate's unsecured claim to a secured claim after the bankruptcy commenced.

The appeal was dismissed.

The appellant's husband, a police officer, was struck and killed by a vehicle while investigating an accident on a well-lit highway.

The trial judge found the driver solely responsible and awarded $195,000 in damages under the Fatal Accidents Act.

The Court of Appeal found the officer 25% contributorily negligent and reduced the damages by applying a fixed 7% discount rate based on recent Supreme Court jurisprudence.

The Supreme Court of Canada allowed the appeal, restoring the trial judge's findings on liability and damages.

The Court clarified that the discount rate is a factual issue to be determined on the evidence in each case, not a fixed rule of law, and found no palpable and overriding error in the trial judge's assessment.