Marc Rosenberg

On an appeal from a Rule 21 determination in a fatal motor vehicle case, the court held that family members' independent nervous shock claims were barred by s. 266 of the Insurance Act because the claimants themselves did not meet the statutory threshold.

However, the majority held that s. 61(1) of the Family Law Act permits recovery for a family member's pecuniary loss in the form of lost income resulting from the death, and is not confined to loss of expected financial benefits from the deceased.

Because the trial judge later took the opposite view and made no necessary factual findings on causation and loss, the trial judgment was set aside and a new trial ordered on the loss of income claim.

No costs were awarded because success was divided.

Parents appealed from a trial judgment arising out of their son's death in a motor vehicle accident.

The court held that awards under s. 61(2)(e) of the Family Law Act for loss of care, guidance and companionship were low but within range and should not be disturbed.

Applying the deduction analysis under s. 267 of the Insurance Act, the court held that only statutory death benefits, and not no-fault wage-loss or disability benefits, were deductible from those awards because the death benefits were akin to the compensable loss.

The court also held, by reference to the companion appeal, that a loss of income claim under s. 61(1) could proceed and ordered a new trial on that issue.

The appellant appealed his murder conviction and sentence, relying on fresh recantation evidence from a key civilian witness and an inmate informant, as well as new DNA testing undermining aspects of the Crown's theory.

The court rejected the civilian witness recantation as incredible, but admitted the inmate recantation and the DNA evidence under the Palmer framework.

Although the fresh evidence significantly weakened the Crown case and impaired important inculpatory evidence, the court held it was not so conclusive as to justify an acquittal and the verdict was not shown to be unreasonable under the governing standard.

The conviction was set aside and a new trial ordered on second degree murder.

Leave to appeal the counselling sentence was granted and that sentence was reduced to time served.

The appellant doctor appealed an interlocutory order striking portions of his statement of defence and counterclaim, as well as portions of an affidavit.

The underlying action was brought by the respondent patient to enforce a settlement agreement.

The appellant alleged the settlement was obtained by fraud, relying on a sworn statement by the respondent recanting her allegations of sexual assault made to the College of Physicians and Surgeons of Ontario (CPSO).

The Divisional Court dismissed the appeal, holding that section 36(3) of the Regulated Health Professions Act creates an absolute bar to the admissibility of documents prepared for CPSO proceedings in civil actions, even where fraud is alleged.