OCA 2010

The appellants, out-of-province resort operators, appealed decisions dismissing their motions to stay or dismiss personal injury actions for want of jurisdiction.

The Court of Appeal convened a five-judge panel to reconsider the Muscutt test for assumed jurisdiction.

The Court modified the Muscutt test by elevating the weight given to Rule 17.02 of the Rules of Civil Procedure, creating a presumption of a real and substantial connection for most of its subrules.

The Court also collapsed the fairness factors and clarified the distinction between jurisdiction simpliciter and forum non conveniens.

Applying the revised test, the Court found a real and substantial connection between Ontario and the appellants in both cases and upheld the motion judges' decisions that Ontario was the appropriate forum.

The appellant lower-tier municipality appealed a decision finding its Mayor and Deputy Mayor had a conflict of interest under the Municipal Conflict of Interest Act (MCIA) preventing them from voting at the upper-tier municipal council on a land sale.

The application judge held that the lower-tier municipality was a 'body' under s. 2(a)(iii) of the MCIA, imputing its pecuniary interest to its representatives.

The Court of Appeal allowed the appeal, holding that interpreting 'body' to include a lower-tier municipality in this context would frustrate the legislative scheme of upper- and lower-tier municipal governance.

The representatives were not precluded from participating in the discussions and votes.

The appellant appealed a summary judgment dismissing his libel action against a magazine publisher.

The motion judge had concluded that certain excerpts were not defamatory or not capable of referring to the appellant.

The Court of Appeal allowed the appeal, finding that the motion judge erred in his application of the test for summary judgment.

The Court held that, reading the article as a whole, the excerpts were capable of being defamatory of the appellant and raised a genuine issue for trial.

The appellant appealed her conviction for fraud over $5000 against her employer and sought leave to appeal her three-year sentence.

She argued the trial judge erred in ruling her daughter an adverse witness, allowing improper cross-examination, refusing to edit her criminal record, and failing to inquire into jury observations of her driving outside court.

The Court of Appeal dismissed the conviction appeal, finding no significant prejudice or unfairness despite some procedural shortcomings.

The sentence appeal was also dismissed, as the three-year term was fit given the $50,000 fraud, her prior record for crimes of dishonesty, and the devastating effect on the victim.

The appellants appealed an order finding that amendments to a condominium declaration merely clarified existing rights rather than altering substantive rights.

The application judge found that the amendments removed inconsistencies constituting ambiguities regarding repair obligations, reflecting a 34-year history of agreement between the condominium corporation and unit owners.

The Court of Appeal held that this finding was open to the application judge and dismissed the appeal.

The appellant tenant appealed the dismissal of its action on a motion for summary judgment regarding a commercial lease termination.

The tenant argued the landlord was not entitled to terminate the lease, failed to provide proper notice of default, and that a post-termination agreement was unconscionable.

The Court of Appeal dismissed the appeal, finding the security deposit was deficient, the notice of default was sufficient under the Commercial Tenancies Act, and the post-termination agreement was not unconscionable as there was no inequality of bargaining power or unfairness.

The appellant brought a motion to extend the time to perfect his appeal from orders removing him as an estate trustee and awarding costs against him.

The appellant, initially self-represented, failed to perfect the appeal by the deadline but subsequently retained counsel and moved quickly to seek an extension.

Applying the factors for extending time, the court found the delay was brief, the explanation reasonable, and there was no specific prejudice to the respondent.

The motion was granted, allowing the appellant until February 19, 2010, to perfect the appeal.

The appellant was charged with disobeying a court order under s. 127(1) of the Criminal Code after allegedly violating an interlocutory injunction prohibiting anti-abortion protest activity.

The trial judge quashed the information, finding that the Rules of Civil Procedure provided another mode of proceeding for contempt, thereby triggering the exception in s. 127(1).

The summary conviction appeal court reversed this decision.

The Court of Appeal dismissed the appeal, holding that the authority to punish for civil contempt originates in the common law, not statute, and therefore is not 'expressly provided by law' as required to exclude the application of s. 127(1).

The appellant appealed an order that allowed her to proceed with her causes of action if properly pleaded, but also required her to disclose the name of the counsel providing her with legal advice.

The Court of Appeal found the appeal largely without merit, noting the motion judge had been generous to the appellant.

However, the court found no reason for the order requiring the disclosure of counsel's name.

The appeal was dismissed, except for striking the paragraph requiring disclosure of counsel.

The appellant appealed his convictions for several sexual offences, arguing that the trial judge provided inadequate reasons, failed to account for inconsistencies in the complainant's evidence, and improperly shifted the burden of proof.

The Court of Appeal dismissed the appeal, finding that while the reasons could have been fuller, the trial judge grasped the essence of the case, made essential factual findings, and properly applied the burden of proof and the W.(D.) framework.

The appellant appealed a trial judgment that dismissed both the claim and counterclaim because the trial judge could not determine where the truth lay.

The trial judge noted the absence of critical documentation and witnesses.

The Court of Appeal dismissed the appeal, finding that any misapprehension of evidence by the trial judge was not material to the outcome.

The appellants appealed an order dismissing their 1991 motor vehicle accident action for delay.

The motion judge found inordinate delay, triggering a rebuttable presumption of prejudice, which the appellants failed to rebut.

On appeal, the appellants argued the motion judge should have considered the respondents' materials to rebut the presumption.

The Court of Appeal dismissed the appeal, finding that even if the respondents' materials were considered, they were inadequate to rebut the presumption of prejudice, particularly regarding the injured appellant's medical condition and income loss.

The appellant appealed a disposition of the Ontario Review Board ordering his detention at a minimum secure unit, arguing it was too restrictive and seeking an unconditional discharge.

The appellant had been found not criminally responsible for assault, attempted sexual assault, and unlawfully being in a dwelling house, offences committed while experiencing command hallucinations.

The Court of Appeal dismissed the appeal, finding the Board's disposition reasonable given the appellant's ongoing symptoms of schizoaffective disorder and the associated risk of disinhibited and aggressive behaviour.

The appellant, a federal civil servant, brought an action in the Superior Court claiming damages for harassment and mistreatment by his supervisors, alleging this was in retaliation for his whistle-blowing activities.

The defendants successfully moved to strike the claim on the basis that the court lacked jurisdiction.

On appeal, the Court of Appeal affirmed the dismissal, holding that section 236 of the Public Service Labour Relations Act explicitly ousts the jurisdiction of the civil courts over disputes that can be grieved under the Act, regardless of whether the grievance can be referred to independent third-party adjudication.

The appellant appealed the decision of a status hearing judge who dismissed her 2004 action for delay under Rule 48.14(13) of the Rules of Civil Procedure.

The status hearing was held five years after the statement of defence was filed.

The Court of Appeal found that the status hearing judge was entitled to accept the history of the action as described in the defence affidavit and that his order dismissing the action was justified.

The appeal on the merits and leave to appeal costs were dismissed.

The appellant appealed a trial judgment finding that the respondent mortgagee was not negligent in managing a property and did not let it fall into disrepair.

The Court of Appeal dismissed the appeal, holding that the trial judge gave careful and cogent reasons for concluding the respondent complied with his obligations to reasonably maintain the property pending its sale.

The trial judge's costs award was also upheld.

The appellant appealed a motion judge's finding of contempt, a six-month custodial sentence, and an order striking his variation proceedings.

The contempt arose from the appellant's blatant and concerted attempts to hide his RRSPs to avoid paying spousal support.

The Court of Appeal dismissed the appeal, finding no error in the contempt finding and concluding the sentence was fair given the appellant's refusal to purge his contempt.

Following an appeal in which the respondents were largely successful, the Court of Appeal for Ontario issued a costs endorsement.

The court ordered the appellants to pay the respondents' costs of the appeal, fixed at $50,000 inclusive of disbursements and GST.

The appellants appealed a decision striking their claims for breach of fiduciary duty and breach of duty of care against a teacher and school boards.

The motions judge had struck the claims on the basis that the psychological damages pleaded were not reasonably foreseeable.

The Court of Appeal allowed the appeal, finding it was not plain and obvious that a teacher's alleged breach of duties towards a 13-year-old student could not cause reasonably foreseeable psychological damage.

The parents' direct claim against the school board was also permitted to proceed.

The appellant appealed the dismissal of her claim for intentional infliction of mental or emotional harm.

The Court of Appeal dismissed the appeal, finding no genuine issue for trial because the appellant failed to produce any evidence of harm or illness, which is an essential element of the tort, over the eight years the matter had been outstanding.