ONCA 2018

An insured brought an action against international insurers for breach of an insurance contract.

The insurers moved to stay the action and refer the dispute to arbitration in London, England pursuant to an arbitration clause in the policy.

The motion judge dismissed the stay motion, finding that the "Action Against Insurer" endorsement provided an alternative method of dispute resolution allowing domestic court proceedings.

The appellate court reversed, holding that the arbitration clause was mandatory and the sole method of dispute resolution, and that the "Action Against Insurer" clause was a service of suit provision that did not conflict with the arbitration clause.

The court also clarified that the Model Law on International Commercial Arbitration applies to agreements providing for arbitration of certain disputes, not only those providing for arbitration as the sole method of dispute resolution.

A utility company and rural municipality disputed cost-sharing for gas pipeline relocation necessitated by municipal drainage works.

The utility sought 35% cost contribution from the municipality under a franchise agreement, while the municipality argued the utility should bear the full cost under section 26 of the Drainage Act.

The application judge held that section 26 of the Act overrode the franchise agreement's cost-sharing provisions.

The Court of Appeal allowed the appeal, holding that the Act does not prohibit contracting out of its cost-allocation provisions and that the franchise agreement's cost-sharing mechanism applies to drainage works undertaken by the municipality.

On appeal from a trial judgment dealing with division of property and spousal and child support following marriage breakdown.

The appellant challenged the trial judge's findings regarding imputation of income, particularly the decision to impute income to him but not to the respondent.

The Court of Appeal found that the respondent was intentionally underemployed and that income should have been imputed to both parties or neither.

The appeal was allowed in part, varying the support obligations to zero as of January 1, 2013, and modifying the review provision to allow either party to seek variation based on any relevant change in circumstances.

Application for appointment of counsel under s. 684 of the Criminal Code for an appeal of conviction and sentence.

The applicant was convicted of sexual assault causing bodily harm and forcible confinement following a two-day trial and sentenced to 48 months' imprisonment.

Legal Aid Ontario refused to fund the appeal based on lack of merit.

The applicant established lack of financial means but failed to meet the necessity threshold for appointment of counsel.

The court found that while some grounds of appeal were arguable, the applicant could effectively advance them without counsel, the record was manageable, and the court could properly decide the appeal without defence counsel assistance.

The appellant was convicted of manslaughter in the death of a fellow inmate at the Don Jail.

The Crown's case was that the appellant was part of a group that assaulted the deceased.

On appeal, the appellant challenged the trial judge's jury instructions on post-offence conduct and the failure to adequately relate evidence to the mens rea element of manslaughter.

The Court of Appeal dismissed the appeal, finding that the trial judge's instructions were proper and that the evidence was fairly presented to the jury.

The appellant appealed the dismissal of his action for damages arising from termination of employment without cause.

The appellant was employed for over 19 years and received 8 weeks' notice and severance pay consistent with statutory minimums.

The key issues were whether a termination clause must expressly state it displaces common law notice rights, whether the clause violated the Employment Standards Act by failing to reference severance pay, and whether the clause entitled the appellant to 19 weeks' notice.

The Court of Appeal allowed the appeal in part, finding that the termination clause clearly displaced common law rights without requiring express language, did not violate the ESA, and entitled the appellant to 19 weeks' notice (one week per year of service), resulting in an award of compensation for an additional 11 weeks plus interest.

A realtor appealed a motion judge's decision dismissing a summary judgment motion in a negligence and improvident sale claim.

The key issue was when a two-year contractual limitation period commenced: at the time the Agreement of Purchase and Sale was signed or at closing.

The motion judge found the limitation period began at closing because no damage occurred prior to that time.

The Court of Appeal upheld this decision, holding that while negligent acts may have occurred before the agreement was signed, damage is an essential element of negligence and did not accrue until title transferred at closing.

The appellant brought four related actions against various respondents arising from dealings that occurred primarily in the United States between 2001 and 2016.

The respondents moved to dismiss or stay the actions on the ground that Ontario courts lacked jurisdiction due to the absence of a real and substantial connection to the province.

The motion judges granted the motions and dismissed all actions.

On appeal, the Court of Appeal considered whether Ontario jurisdiction existed based on: (1) consulting contracts allegedly entered into at Toronto airport; (2) products being advertised, marketed, and distributed in Ontario; and (3) respondents carrying on business in Ontario.

The Court of Appeal upheld the dismissals, finding no real and substantial connection to Ontario and affirming that mere advertising or distribution through third-party retailers does not constitute carrying on business in the jurisdiction.

The appellant appealed his convictions for sexual assault, sexual interference, and unlawful confinement against his daughter when she was under 16 years of age.

The sole ground of appeal was that the trial judge provided insufficient reasons for meaningful appellate review.

The Court of Appeal dismissed the appeal, finding that while the trial judge's reasons were brief, they were sufficiently clear to demonstrate why the conviction was reached.

The trial judge properly assessed credibility and reliability of witnesses, accepted the complainant's evidence regarding the April 16, 2013 offences, and correctly applied the W.(D.) analysis to reject the appellant's denial and defence evidence.

The appellant imported four Hereford cattle from the United States in 1996, three of which were later discovered to be infected with anaplasmosis due to falsified American health documentation.

The Canadian government quarantined the appellant's herd and ordered the destruction of seven infected cattle.

The appellant received compensation under sections 51 and 53 of the Health of Animals Act.

The appellant subsequently sued the Crown for negligence, claiming damages for business losses and reputational harm.

The motion judge granted summary judgment dismissing the action, finding that section 9 of the Crown Liability and Proceedings Act barred the claim.

The Court of Appeal upheld this decision, holding that section 9 operates to prevent actions for additional compensation arising from the same factual basis as the compensated loss.

The appellant appealed a Superior Court decision that set aside a master's order reinstating his action to the trial list.

The action had been dismissed for delay multiple times and reinstated on consent.

The parties agreed to a fourth timetable with a consent order under Rule 48.14(4) requiring the appellant to meet an August 18, 2016 deadline for restoration.

The appellant met the deadline and the master reinstated the action.

The appeal judge allowed the respondents' appeal, but the Court of Appeal reversed, holding that the master correctly focused on delay subsequent to the consent order rather than the entire history of delay.

The court affirmed that the respondents' consent to the order was binding and that there was no relevant delay requiring explanation.

The appellant was convicted of first degree murder in the death of his wife at his second trial, following a hung jury at his first trial.

The appeal was allowed on the basis that the trial judge erred in law by refusing to remove trial counsel from the record when counsel sought removal on grounds of ethical concerns and breakdown of the client-solicitor relationship.

The trial judge's refusal to grant the removal application created an appearance of unfairness and constituted a miscarriage of justice, requiring a new trial.

The court also addressed several other grounds of appeal relating to the admissibility of third-party suspect evidence, demeanour evidence, police officer opinion evidence, and hearsay statements, providing guidance for the retrial.