Ronald G. Slaght Q.C.

The appellant tenant appealed an order quashing its appeal from an arbitration award determining fair market rental under a 99-year ground lease.

The central issue was whether the parties' appeal rights were limited to questions of law with leave, as provided in the Arbitration Act, 1991, or whether broader appeal rights existed under the original Lease provisions referencing the Arbitrations Act, R.S.O. 1970.

The Court of Appeal upheld the motion judge's decision, finding that the Arbitration Agreement was a stand-alone agreement governing appeal rights and that the parties' appeal rights were limited to questions of law with leave under the 1991 Act.

The appellant insurer appealed a trial judgment awarding the respondent insureds US$15 million under a directors' and officers' liability policy for defence costs incurred in a US action.

The trial judge had been directed by the Court of Appeal to hear extrinsic evidence to resolve an ambiguity in a specific entity subsidiary exclusion endorsement.

The Court of Appeal upheld the trial judge's finding that the extrinsic evidence demonstrated the parties mutually intended for the policy to cover the executives for wrongful acts committed in their capacity as executives of the parent company.

The Court also upheld the finding that the insurer was not entitled to set off the amounts owing against payments made under a separate run-off policy.

In a medical negligence appeal arising from a hysterectomy that resulted in ureter injury, the Court of Appeal held that the trial judge erred in law in treating an alleged failure to disclose surgical risks as battery rather than informed consent governed by negligence principles.

Applying the informed consent framework from Reibl v. Hughes, the court found the reasons addressed only part of the subjective inquiry and failed entirely to consider the required objective test.

The court also held that the finding of negligent delayed diagnosis was unsupported because there was no evidence that the CT scan contemplated on July 7 would have revealed the ureter injury or that earlier diagnosis would have permitted immediate repair.

The appeal was allowed, a new trial ordered, and appeal costs fixed at $20,000.