OCA 2004

The plaintiff was injured in a motor vehicle accident and sued the underinsured defendants.

The plaintiff's insurer, Zurich, was added as a defendant.

Zurich later discovered the defendant driver was delivering pizza for Pizza Nova at the time of the accident and issued a third party claim against Pizza Nova in its own name.

Pizza Nova appealed the dismissal of its motion to strike the third party claim, arguing that a subrogated claim must be brought in the name of the insured and that the limitation period had expired.

The Court of Appeal dismissed the appeal, holding that Rule 29.01 permits a subrogated insurer to issue a third party claim in its own name to avoid a multiplicity of proceedings, and that the limitation period defence raised a triable issue based on discoverability.

The appellants were convicted of offences relating to the death of their eight-month-old son, who was found to have suffered extensive physical abuse during his life.

The father was convicted of second-degree murder and assaults, while the mother was convicted of criminal negligence causing death and failing to provide the necessaries of life.

On appeal, they argued the verdicts were unreasonable because the exact medical cause of death could not be determined, and challenged the admission of demeanour evidence, evidence of injuries to their second child, and various jury instructions.

The Court of Appeal dismissed the appeals, finding that the Crown was not required to prove a specific medical cause of death, and that while there were minor errors in the admission of evidence and jury instructions, they did not occasion a substantial wrong or miscarriage of justice given the overwhelming evidence of ongoing abuse.

The appellant was convicted of first degree murder after allegedly killing a criminal associate to prevent him from exposing their involvement in a prior convenience store robbery and murder.

On appeal, the appellant argued that the trial judge erred in his instructions on reasonable doubt, that Crown misconduct deprived him of a fair trial, and that the trial judge failed to give a proper Vetrovec warning for unsavoury witnesses.

The Court of Appeal dismissed the appeal, finding that the jury instructions adequately conveyed the standard of proof, the Crown's misconduct did not irreparably prejudice the right to a fair trial, and the verdict would have been the same even with a stronger Vetrovec warning given the overwhelming evidence of guilt.

The plaintiff sued the defendants for fraudulent misrepresentation.

The defendants moved for a stay of proceedings under Rule 21, arguing the parties had an oral agreement to arbitrate disputes before the Beis Din.

The motion judge dismissed the application, finding no agreement to arbitrate.

On appeal, the defendants argued the motion judge should have directed the arbitrator to determine if an agreement existed or directed a trial of an issue due to conflicting evidence.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's exercise of discretion or her determination of the preliminary jurisdictional issue on the motion record.

The trustee in bankruptcy reached a settlement with a creditor regarding her claim to the bankrupt's property.

Another creditor opposed the settlement.

The motion judge found the settlement unreasonable because it did not preserve the opposing creditor's priority for solicitor's costs under the Bankruptcy and Insolvency Act, and he amended the settlement to protect her priority.

The Court of Appeal allowed the appeal, holding that the motion judge erred by amending and imposing a settlement on the parties, and by giving the opposing creditor's claim priority over other claims.

The Court found the original settlement reasonable given the litigation risks and directed the trustee to complete it.

The appellant, a generic drug manufacturer, appealed a Divisional Court decision dismissing its application challenging the vires of the Ontario government's drug pricing policy.

The policy imposed a price freeze on generic drugs and regulated their prices as a percentage of the equivalent brand name drug (the 70/90 rule).

The appellant argued the regulations were ultra vires the Drug Interchangeability and Dispensing Fee Act and the Ontario Drug Benefit Act, and were arbitrary and discriminatory.

The Court of Appeal dismissed the appeal, finding that the amended legislation explicitly authorized the Minister to consider the prices of other drug products when setting the drug benefit price.

The court also held that the policy was not arbitrary or discriminatory, as its purpose was to achieve the lowest prices for drug products in the public interest.

The appellant appealed his convictions for unlawful confinement and sexual assault, as well as his sentence.

He argued the unlawful confinement verdict was inconsistent with a co-accused's acquittal and unreasonable, and maintained his innocence regarding the sexual assault.

The Court of Appeal dismissed the appeal, finding the verdicts were supported by the evidence and the sentence was within the appropriate range.

The appellants appealed a trial judgment that declared a mortgage null and void based on promissory estoppel.

The Court of Appeal allowed the appeal, holding that promissory estoppel can only be used as a shield, not a sword, and the respondent had improperly used it to seek a declaration.

The Court set aside the judgment and ordered a new trial to determine whether there was consideration for the mortgage, as the trial judge had failed to make a finding on that issue.

The respondent was injured in a motor vehicle accident and settled her damages for over $2.5 million.

The at-fault driver had $300,000 in third-party limits and a $1,000,000 personal liability umbrella policy.

The respondent's insurer sought to deduct both amounts from her $500,000 OPCF 44R Family Protection Endorsement.

The Court of Appeal held that the umbrella policy did not constitute 'motor vehicle liability insurance' under the endorsement's definition.

Therefore, the insurer could only deduct the $300,000 third-party limits, entitling the respondent to $200,000.

The appellant defaulted on a vendor take-back mortgage, leading the respondents to sell the property under power of sale.

The respondents obtained summary judgment for the shortfall of over $1.4 million.

On appeal, the appellant argued the respondents acted improvidently by listing the property for $750,000 despite an appraisal of $395,000.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the appellant failed to provide evidence showing a higher price would have been obtained but for the alleged breach.

The appellant was arrested for impaired driving and detained in a police cell for 11 hours with virtually no contact with police officers.

He sought a stay of proceedings, arguing his s. 9 Charter right against arbitrary detention was breached.

The trial judge and summary conviction appeal court judge dismissed the application.

The Court of Appeal found that the 11-hour detention was indeed arbitrary and breached s. 9 of the Charter.

However, the Court concluded that a stay of proceedings was not the appropriate remedy, as the breach occurred post-offence and did not impact trial fairness or the gathering of evidence.

The appeal was dismissed.

The appellant appealed his convictions, challenging the trial judge's dismissal of his application under ss. 8 and 9 of the Charter and her handling of a juror's reaction during cross-examination.

The Court of Appeal upheld the trial judge's factual findings regarding police testimony and her conclusion that no Charter violations occurred.

The Court also found that the trial judge's mid-trial instructions were a suitable response to the juror's conduct, noting that defence counsel had not sought a mistrial.

The appeal was dismissed.

The appellant appealed his conviction for a sexual offence, arguing the trial judge failed to properly apply the W.D. principles and adequately explain the reasons for conviction.

The Court of Appeal dismissed the conviction appeal, finding the trial judge properly applied the law and had ample evidence to convict.

The Crown appealed the sentence, and while the Court agreed the sentence constituted an error in principle, it declined to set it aside as the sentence had already been fully served.

Both the appeal and cross-appeals were dismissed.

The appellant was convicted of first degree murder in the deaths of a married couple.

On appeal, he argued that the trial judge interfered unduly in the trial, had improper out-of-court contact with the jury, and erred in several evidentiary rulings, including the admission of similar fact evidence and the refusal to order production of third-party records.

The Court of Appeal dismissed the appeal, finding that while the trial judge erred in failing to conduct a proper inquiry into the alleged jury contact, the error did not result in a miscarriage of justice.

The court also upheld the trial judge's evidentiary rulings, noting that the similar fact evidence was highly probative of a distinctive pattern of conduct.

The appellant appealed the motion judge's decision to strike out his claims against the Association of Professional Engineers of Ontario and the Crown defendants.

The Court of Appeal agreed with the motion judge that the claim against the Association was properly struck out.

The Court also found that the claim against the Crown defendants did not make out a cause of action outside the reach of s. 7(1) of the Public Authorities Protection Act.

The appeal was dismissed with costs.

The appellant appealed a motion judge's decision to vary a procedural consent order and order the disclosure of an audit report.

The Court of Appeal dismissed the appeal, finding that the motion judge properly varied the consent order because the respondent's counsel was unaware of material facts when consenting.

The Court also upheld the disclosure of the audit report, as there was unanswered evidence that the Trustee had already declared its existence and contents to a third party, making it unnecessary to decide the broader issue of whether a Trustee in Bankruptcy can claim litigation privilege.

The appellant appealed an order of Justice Backhouse.

The Court of Appeal found that, assuming it had jurisdiction, the appeal was moot in light of a subsequent judgment by Justice Siegel, except for the issue of costs.

The Court found no basis to interfere with the costs order and dismissed the appeal, awarding costs of $2,000 to the respondent.

The appellant insurer appealed a trial judgment finding that coverage under a homeowner's policy was not excluded by a 'trade, profession or occupation' clause.

The insured was performing casual handyman activities when a fire broke out.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's interpretation of the policy or reliance on findings from the underlying tort action that the activities were personal and fell within the grant of coverage.

The respondent suffered an ischemic stroke caused by a dissection of his left internal carotid artery while playing basketball, resulting in permanent disability.

He claimed a $200,000 benefit under his employer's group accident policy, which covered bodily injury caused by an accident.

The trial judge found that the dissection was likely caused by trauma from the respondent vigorously turning his neck during the game, and that this constituted an 'accident' because the resulting injury was unexpected.

The insurer appealed, arguing the trial judge made palpable and overriding errors in his factual findings and misapplied the law regarding accidental injuries.

The Court of Appeal dismissed the appeal, holding that deliberate acts of ordinary living can constitute an accident and that the circumstantial evidence amply supported the trial judge's findings on causation.

The appellant was convicted of multiple offences, including possession of stolen property and break and enter, based solely on his thumbprint found on a pop can inside a stolen vehicle two weeks after its theft.

The trial judge relied on the doctrine of recent possession to convict.

On appeal, the Court of Appeal held that the prerequisites for the doctrine were not met, as there was no evidence the appellant possessed the stolen goods or when the pop can was placed in the vehicle.

The convictions for the property offences were quashed and acquittals substituted.

The sentence for a breach of undertaking conviction was reduced to time served.