OCA 2010

The appellant plastic surgeon appealed a trial judgment finding her liable for medical negligence based on a lack of informed consent.

The respondent underwent breast reconstruction surgery and suffered severe delayed wound healing.

The trial judge found that while the appellant met the standard of care in performing the surgery, she failed to adequately disclose the likelihood and consequences of delayed wound healing given the respondent's specific risk factors (obesity, smoking, and previous abdominal scarring).

The Court of Appeal upheld the trial judge's findings, concluding that the trial judge correctly applied the law of informed consent and the modified objective test for causation, finding that a reasonable person in the respondent's circumstances would not have proceeded with the surgery had adequate disclosure been made.

The appellants appealed a summary judgment enforcing an equipment financing lease, arguing the lease was illegal and void for contravening the Electrical Safety Code.

The Court of Appeal dismissed the appeal, finding that the lease contained non-recourse provisions and that not every statutory breach invalidates a commercial contract for illegality.

The court concluded there was no genuine issue for trial regarding the lease's enforceability.

The defendant supplied a helicopter engine to the plaintiff under a commercial agreement containing a forum selection clause specifying Arizona as the exclusive jurisdiction.

After the helicopter crashed in Saskatchewan, the plaintiff sued in Ontario.

The motion judge dismissed the defendant's motion to stay the action, applying a forum non conveniens analysis.

The Court of Appeal allowed the appeal, holding that the motion judge erred by treating the forum selection clause as merely one factor in a forum non conveniens analysis.

Under the strong cause test, a forum selection clause in a commercial contract must be enforced unless exceptional circumstances are shown.

The appellant appealed an order striking his claim for damages against his wife's lawyers in matrimonial proceedings.

The appellant alleged that his wife's share of the proceeds from the sale of the matrimonial home constituted trust funds, and that her lawyers were liable for knowing receipt of trust funds when they were paid from those proceeds.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the property in question was not impressed with a trust.

Following the dismissal of both the appeal and cross-appeal, the parties made written submissions on costs.

The respondent sought $15,000, arguing the appeal was more complex and time-consuming than the cross-appeal.

The appellant argued for no costs on the basis of divided success.

The Court of Appeal agreed with the appellant and ordered no costs.

The appellant appealed a summary judgment dismissing its claims against the respondents for allegedly agreeing to engage in unlawful conduct.

The Court of Appeal dismissed the appeal, finding the motion judge correctly concluded the allegations were based entirely on assumptions, speculation, and embellishment.

Leave to appeal the motion judge's costs award was denied, and the respondents were awarded costs of the appeal on a substantial indemnity scale due to the appeal being entirely meritless.

The mother brought the child from England to Canada for a vacation and subsequently refused to return.

The father applied under the Hague Convention for the child's return.

The application judge dismissed the application, finding the child was habitually resident in Ontario and that returning her to England would create an intolerable situation.

On appeal, the Court of Appeal found the application judge erred in determining habitual residence by focusing on the mother's intentions and post-retention facts.

The Court also found the application judge set the threshold for an 'intolerable situation' too low.

The appeal was allowed and the child was ordered returned to England.

The appellant was convicted of first-degree murder after his common-law wife fell to her death from a cliff.

The Crown's case was circumstantial, relying on motive (an ongoing affair), opportunity, and the appellant's statements and after-the-fact conduct.

On appeal, the appellant argued the trial judge erred in admitting hearsay statements made by the deceased to friends about her fear of the appellant, and in instructing the jury on the use of his out-of-court statements and after-the-fact conduct.

The Court of Appeal dismissed the appeal, finding no error in the admission of the hearsay evidence under the principled approach, and concluding that the jury instructions were adequate and fair.

The purchaser appealed a trial judgment finding the vendor was entitled to a purchase price readjustment of approximately $433,000.

The Court of Appeal dismissed the appeal, agreeing that a rollover credit was an adjustment to the purchase price, not a term of the contract.

The vendor cross-appealed on costs and pre-judgment interest.

The Court allowed the cross-appeal, finding the trial judge erred by applying a $100,000 settlement from the vendor's negligent solicitor entirely as a credit against damages, and instead attributed $50,000 to unrecoverable costs.

The Court also awarded pre-judgment interest from the date of closing, holding that mutual delay in commencing litigation did not justify depriving the vendor of interest.

The Crown sought leave to appeal a summary conviction appeal judge's decision upholding the respondent's acquittal for refusing to provide a breath sample.

The trial judge had accepted the respondent's evidence regarding why he ran from the police, a factual finding the Crown acknowledged could support an acquittal.

The Crown appealed the reasoning rather than the result.

The Court of Appeal denied leave to appeal, noting the issue was primarily factual, the legal question would not create problems in other cases, and there had been extensive delay by the Crown in perfecting the appeal.

The appellants appealed a motion judge's refusal to reinstate their third party claim after it was dismissed by the registrar.

The Court of Appeal allowed the appeal, finding that the motion judge failed to attach sufficient weight to the fact that the progression of the third party claim was entirely dependent on the main action, which was still pending.

Furthermore, the form of the registrar's dismissal order had misled counsel, and the motion judge's finding of prejudice was overtaken by the appellants' decision to discontinue claims against the minor third parties.

The appellant was convicted of robbery with a firearm and related weapons offences following a home invasion, and was sentenced to 12 years' imprisonment.

He appealed his conviction and sentence, arguing that his sentence offended the parity principle because his co-accused received a 5-year sentence.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's assessment of witness credibility.

The sentence appeal was also dismissed, as the disparity was justified by the co-accused's early guilty plea and the appellant's extensive criminal record for violent offences.

The plaintiffs appealed the trial judge's assessment of damages arising from a motor vehicle accident, arguing the judge erred in finding the main plaintiff failed to mitigate her damages.

The defendants cross-appealed the damages assessment and appealed the order adding the Police Services Board as a defendant, as well as the trial costs order.

The Court of Appeal dismissed the appeals regarding the addition of the Board and the damages assessments.

However, the Court allowed the defendants' costs appeal, finding the trial judge erred by comparing the defendants' settlement offers to the gross damages assessment rather than the net judgment after statutory deductions.

The costs order was varied to award the plaintiffs their disbursements throughout but no legal fees after the date of the defendants' second offer.

The appellants appealed a motion judge's order approving a court-appointed receiver's recommendation to sell a contaminated property to the polluter and settle related damage claims.

The appellants argued the property and claims were undervalued and sought to introduce fresh evidence alleging the motion judge was pressured into releasing his decision.

The Court of Appeal dismissed the appeal, finding the receiver acted providentially and the settlement was commercially reasonable.

The Court allowed the receiver's cross-appeal, setting aside the motion judge's order granting the appellants leave to sue the receiver, as the motion judge applied the wrong legal test.

The appellant appealed a finding of Not Criminally Responsible to the Court of Appeal.

The Court quashed the appeal, holding that because it was a summary conviction matter, the appeal must be directed to the Summary Conviction Appeal Court under section 813 of the Criminal Code.

The appellant declined an offer to have the appeal heard by a panel member sitting as a Superior Court justice.

The appellant appealed his conviction and sentence for contempt of court, which arose from his refusal to testify at a first-degree murder trial.

He argued that the trial judge erred in the procedure followed and in rejecting his defence of duress.

The Court of Appeal dismissed the appeal, finding that the procedure was fair, the duress defence lacked merit because the appellant failed to pursue a safe avenue of escape by going to the police, and the sentence was fit given the impact of his refusal on the murder trial.

The moving party sought to set aside three orders made by the Deputy Registrar dismissing his appeals for failing to perfect them.

The underlying orders had struck out the moving party's claims against various defendants, including the Ontario Human Rights Commission, former employers, and their lawyers, for disclosing no reasonable cause of action.

The Court of Appeal dismissed the motions, finding that the moving party's delay contributed to the failure to perfect and that the proposed appeals had no reasonable prospect of success, as the OHRC cannot be sued, responses to OHRC complaints are protected by absolute privilege, and the pleadings failed to disclose known causes of action.

The appellant appealed a motion judge's decision denying it interest on a mortgage for allegedly contravening s. 6 of the Interest Act.

The Court of Appeal allowed the appeal, finding that s. 6 did not apply because the mortgage did not involve a sinking fund plan, blended payments, or an allowance of interest on stipulated repayments.

The court also rejected the respondent's argument that the appellant failed to prove its prime rate, finding the affidavit evidence sufficient.

Judgment was granted in favour of the appellant for $67,140.83.

The appellants appealed an order of the Superior Court of Justice.

The Court of Appeal found no error in the motion judge's conclusion and dismissed the appeal, awarding costs of $7,000 to the respondent.

The appellant appealed an order of the Superior Court of Justice in a family law matter involving the Office of the Children's Lawyer.

The Court of Appeal issued an order in terms of the consent filed by the parties.

No costs were awarded.