Peter J. Osborne

The appellant estate challenged a deathbed transfer of land changing title from tenancy in common to joint tenancy, alleging lack of capacity and undue influence.

The Court of Appeal, by majority, held that the trial judge's findings were entitled to deference and were reasonably supported by the evidence.

The majority found the deceased had the requisite disposing mind and memory and that the successful persuasion to sign appealed to fairness rather than amounting to coercion.

A dissenting judge would have found actual undue influence based on the cumulative pressure exerted in the hospital room.

The appeal was dismissed with costs to the respondent payable from the estate.

The appellant appealed a conviction for keeping a common bawdy house arising from the operation of a commercial house of domination offering sadomasochistic services.

The court held that the trial judge reasonably found the erotica sessions were primarily sexual in nature and constituted prostitution because they involved lewd acts for payment for the sexual gratification of clients on a frequent and habitual basis.

The court upheld the admission of a videotape corroborating the commercial services, agreed that most of the proposed expert evidence was irrelevant or insufficiently reliable under the governing expert evidence framework, and found that the search-related Charter breaches did not justify a stay.

The appeal was dismissed.

The appellant appealed an order dismissing her personal injury action on a pre-trial motion under s. 266(3) of the Insurance Act.

The Court of Appeal held that the motions judge improperly disregarded uncontradicted affidavit and medical evidence concerning a significant deterioration in the appellant's condition in the 18 months preceding the motion.

Applying the appellate intervention principle for disregarded evidence, the onus framework under Chilman, and the three-step analysis from Meyer v. Bright, the court concluded that the record was capable of establishing a permanent serious impairment of an important bodily function caused by continuing physical injury.

Because the entire record was documentary and the respondents had not challenged the late medical evidence by cross-examination or responding evidence, the court set aside the order and dismissed the respondents' motion.

The appellant was awarded costs of the motion and the appeal.

The appellant appealed from a directed issue trial arising out of a dispute over the right to provide cable television services to apartment buildings after the landlord terminated its long-standing arrangement and entered into an exclusive agreement with a competitor.

The Court of Appeal held that the landlord's relationship with the appellant was governed by a contract that permitted termination, and the landlord's lawful exercise of that contractual right could not ground the appellant's tort claim.

Because the contractual component was dispositive, it was unnecessary for the trial judge or the appellate court to determine the broader intentional interference with economic relations issue.

The appeal was dismissed with costs.

The appellant appealed an order dismissing its solicitor's negligence action as an abuse of process.

The Court of Appeal held that the appellant was barred from relitigating the previously determined issue that recission was unavailable in the underlying commercial action, and therefore could not maintain negligence allegations premised on the solicitor's failure to plead recission.

However, the court accepted that the statement of claim also contained distinct negligence allegations unrelated to recission.

The appeal was allowed in part, the recission-based claims remained barred, and the remaining negligence claims were permitted to proceed.

No costs were awarded because success was divided.

The appellant in a libel action challenged the refusal to strike a statement of defence that denied the pleaded defamatory meaning and asserted a different defamatory meaning said to be true.

The Court of Appeal adopted the Divisional Court's reasoning that, under the modern rule, a defendant in a libel action may plead any defamatory meaning the words are capable of bearing and may justify that meaning or plead fair comment on a matter of public interest.

Finding no basis for appellate intervention, the court dismissed the appeal and fixed costs in favour of the respondents.

Appeal and cross-appeal in a solicitor's negligence action arising from corporate and estate transactions involving an executor who became president and shareholder of a corporation in which the estate held shares.

The court held that the law firm's retainer in relation to the initial transaction was limited and did not impose a duty to warn of the risk of beneficiary claims, particularly given the sophistication and role of the client.

However, the firm did owe a duty to warn in relation to a later acquisition transaction in which it was involved in all aspects and knew the estate was excluded.

The court upheld the trial judge's lost chance analysis, apportionment of fault, and nominal damages award.