Sarah E. Pepall

A tragic motor vehicle accident occurred on November 22, 2000, when a 20-year-old driver lost control of her vehicle on a snow-covered regional road during a winter storm and collided with an oncoming school bus, sustaining catastrophic injuries.

The plaintiff and her family sued the municipality for negligence, alleging failure to maintain the road in a reasonable state of repair under the Municipal Act.

At trial, the municipality was found 100% liable for approximately $12 million in damages.

On appeal, the municipality challenged the trial judge's findings regarding statutory defences under sections 284(1.2) and 284(1.3) of the Municipal Act and the trial judge's rejection of a contributory negligence claim.

The Court of Appeal upheld the trial judgment, finding that the municipality had actual or constructive knowledge of the risk of road refreezing and failed to take reasonable steps to prevent the hazardous conditions that caused the accident.

The appellant appealed a motion judge's order staying an action for breach of contract.

The motion judge found that the contract required disputes to be resolved by arbitration in South Carolina.

The central issue was whether the contractual rights assigned to the appellant were limited to those in a Joint Venture Marketing Agreement (JVMA) or included terms from an International Sales Agency Agreement (ISAA) containing an arbitration clause.

The Court of Appeal upheld the motion judge's findings that both agreements were assigned to the appellant and that the parties conducted themselves in accordance with the ISAA, including its arbitration clause.

A long-serving McDonald's restaurant manager was constructively dismissed when offered a demotion to first assistant with meaningfully inferior benefits or termination.

The trial judge awarded damages based on a 20-month notice period (inclusive of statutory entitlements) representing approximately 20 years of service, accounting for a service credit letter.

The Court of Appeal upheld the decision, finding constructive dismissal, no failure to mitigate by refusing the demotion, and proper calculation of the notice period.

The court clarified that employment income earned during the statutory entitlement period is not deductible as mitigation, and that supplementary employment income that could have been earned concurrently with the original employment is also not deductible.

On appeal from a damages award of $532,000 in a trespass and nuisance case, the appellants challenged the trial judge's quantification of damages, arguing the respondents failed to establish a reasonable and reliable basis for the award and should receive only nominal damages.

The Court of Appeal upheld the trial judge's decision, finding no error in her approach to damages assessment despite imperfect record-keeping by the respondent.

The trial judge properly considered gaps in evidence, the impact of the recession, and made reasonable inferences about lost productivity caused by the appellants' conduct.

The appellant appealed the dismissal of her negligence claim based on lack of informed consent following a laparoscopically assisted vaginal hysterectomy performed by the respondent surgeon, during which the appellant's left ureter was transected.

The respondent cross-appealed the trial judge's finding of negligence in post-operative care.

The Court of Appeal dismissed the appeal on informed consent, finding the trial judge properly applied the modified objective test and reasonably concluded that a reasonable person in the appellant's circumstances would have proceeded with surgery despite the risks.

The Court allowed the cross-appeal, finding the trial judge's conclusion that the respondent breached the standard of care in post-operative management was not supported by the expert evidence, as the experts acknowledged that declining to order a CT scan on July 7, 2008 was a reasonable decision within the standard of care.

The appellant appealed his conviction for sexual interference involving his daughter when she was between the ages of 3 and 9.

The appellant argued that the trial judge erred in applying the R. v. W.(D.) test and provided insufficient reasons.

The Court of Appeal upheld the conviction, finding no reversible error in the trial judge's credibility assessments, her application of the proper legal test, or the adequacy of her reasons.

The trial judge's findings were entitled to deference, and the pathway to conviction was fully explained in the reasons provided.

An employee appealed a trial judgment dismissing his claim for unpaid bonuses following termination without cause.

The employment contract contained a limitation clause stating that bonuses did not accrue and were only earned and payable on the designated pay-out date.

The trial judge found the limitation clause unambiguous and enforceable.

The Court of Appeal upheld this decision, finding that the parties had clearly agreed on how and when bonuses would be declared, earned, accrued, and paid.

The court rejected arguments based on unconscionability and public policy, noting that the bonus provisions were freely negotiated.

The appeal was dismissed with costs awarded to the respondent.

The appellant appealed a summary judgment dismissing her action against a lawyer for breach of contract and breach of fiduciary duties arising from real estate transactions in 2011.

The motion judge found the claim was statute-barred, as the appellant knew of her claim and damages by May 2012, but did not commence the action until September 2014, more than two years later.

The appellant argued the motion judge erred in analyzing discoverability and in finding no medical evidence of incompetence during the relevant period.

The Court of Appeal upheld the motion judge's findings and conclusions as available on the record and found no palpable and overriding error.

The appeal was dismissed with costs awarded to the respondent.

Appeal from a Superior Court order on motions to change custody, residency, and child support.

The father appealed the trial judge's dismissal of his motion to change the child's primary residence from the mother's home in Owen Sound to his apartment in Toronto, and to grant him final decision-making authority.

The father also challenged the retroactive child support award dating to January 2012.

The appellate court upheld the finding of no material change in circumstances regarding custody and residency, but allowed the appeal in part regarding child support, varying the retroactive date to June 3, 2014 (the date of the motion to change) and correcting the set-off calculation to reflect only 50% of the outstanding costs award.

In a 32-year marriage, the trial judge ordered equalization of net family property and spousal support.

The appellant challenged both awards.

The Court of Appeal upheld the equalization determination, finding the trial judge's use of similar multiples for two companies in the same business was reasonable and well-reasoned.

However, the Court of Appeal found the trial judge erred in principle in determining spousal support by failing to consider the significant effect of the equalization payment on the respondent's compensatory and non-compensatory entitlement and by failing to impute investment income to the respondent based on the equalization payment.

The spousal support was varied from $28,978 per month to $21,000 per month based on an imputed income of $675,000 rather than the full $1,000,000.

The appellant appealed a summary judgment decision granting the respondent approximately $311,000 on a mortgage debt and dismissing the appellant's counter-claim for a refund of payments made.

The appellant had participated in a fraudulent transaction by allowing himself to be put forward as the mortgagor when the true owner could not qualify for a mortgage.

The appellant received $5,000 for his participation and made payments on the mortgage for seven years before it went into default.

The Court of Appeal upheld the summary judgment, finding no error in the motions judge's application of the rules and rejecting the appellant's arguments regarding the unenforceability of the mortgage.

This is a costs endorsement following the Court of Appeal's decision allowing an appeal and setting aside an order made at trial.

The appellant was awarded costs of the appeal fixed at $10,000 all inclusive.

The court declined to determine costs of the motion below, instead leaving that matter to the trial judge to decide after the trial resumes and all outstanding issues have been adjudicated upon, taking into account the result on appeal and any Rule 49 offers.

The respondents (Ontario, the Attorney General of Ontario, and the Attorney General of Canada) sought to dismiss two appeals brought by the appellant under Rule 2.1 of the Rules of Civil Procedure on the grounds that the appeals were frivolous, vexatious, or an abuse of process.

In C62801, the court found the record inadequate to assess the request for dismissal.

In C62802, the court granted the Rule 2.1 request, finding that while the appeal lacked merit, it was also abusive in nature, as the appellant had failed to perfect her appeal despite being given guidance and an extension of time to do so.

An appeal concerning whether a residential property held in joint tenancy by a mother, son, and daughter-in-law passed by right of survivorship to the daughter-in-law upon the mother's death, or whether it formed part of the mother's estate.

The daughter sought a declaration that the property should be distributed under the mother's will.

The Court of Appeal upheld the application judge's dismissal of the application, finding that the joint tenancy was not severed by a separation agreement between the son and daughter-in-law, that the mother had gifted the property to the son and daughter-in-law, and that the mother was not subject to undue influence.

The court also upheld the costs award against the daughter.

Appeal from a Superior Court judgment determining ownership of disputed shares in a family company, Mic Mac Realty (Ottawa) Ltd. The trial judge found that the appellant failed to establish that his father had gifted the shares to him inter vivos or that the gift was completed by the executors.

Accordingly, the shares fell into the residue of the estate and belonged to the respondent as residuary beneficiary.

The trial judge also found the respondent's claim was not statute barred and held that the respondent held the shares in constructive trust for the appellant.

The appeal was dismissed.

A tenant obtained summary judgment against a landlord for recovery of losses arising from a fire at leased premises under a commercial lease.

The landlord appealed, and the Court of Appeal allowed the appeal, finding that the motion judge erred in interpreting the lease by failing to apply binding appellate authority regarding contractual allocation of risk, failing to assign meaning to all contested lease terms, and ruling that the tenant's breach of its insurance covenant did not bar its subrogated claim.

The Supreme Court of Canada remanded the matter for reconsideration in light of Ledcor Construction.

On remand, the Court of Appeal affirmed its original decision, holding that the correctness standard of review applied to extricable questions of law within the motion judge's interpretation of the negotiated lease.

Hydro One appealed an application judge's decision declining to grant a general declaration that the Ontario Provincial Police must produce accident reports containing driver and owner information to parties who suffer property loss in motor vehicle accidents.

Hydro One argued that while section 200(1) of the Highway Traffic Act requires drivers to provide such information on request, this provision is unavailable when only property loss occurs and no representative is present at the scene.

The Court of Appeal quashed the appeal, finding that although it may have had jurisdiction, it was not appropriate to take jurisdiction due to the absence of an active lis, lack of necessary factual record, and absence of interested parties including the Privacy Commissioner and Attorney General.

The appellants appealed orders of the Superior Court dismissing their motions to set aside a settlement order approving a settlement of their son George Lochner's claim for damages arising from a police altercation in which he was tasered.

The appellants lacked standing to challenge the settlement order as they were not parties or persons affected by it within the meaning of the Rules of Civil Procedure.

Their second motion was an abuse of process as it attempted to re-litigate the same standing issue.

The appellants' proposed fresh evidence regarding George Lochner's taser injuries was inadmissible as it could not have affected the outcome of the motions.

The appeals were dismissed with costs awarded to the respondents and the Public Guardian and Trustee.

The appellant appealed the dismissal of her summary judgment motion in a wrongful dismissal action against her former employer.

The appellant was employed under a one-year fixed-term contract and was terminated after less than three months without notice or payment in lieu.

The motion judge dismissed the action, finding the termination valid under the contract and that the appellant was not entitled to statutory notice under the Employment Standards Act.

The Court of Appeal allowed the appeal, finding that the termination provisions in the employment contract were void as they violated the Employment Standards Act.

The court awarded the appellant damages equal to her salary for the remaining weeks of the unexpired contract term, without deduction for mitigation.

The appellant appealed a trial judge's decision that structured settlement annuity payments received by the appellant should be treated as property rather than income under the Family Law Act.

The trial judge had found that the annuity payments fell within the definition of property and were not excluded property under section 4(2)3 of the Act, and therefore should not be treated as income for spousal support purposes.

The Court of Appeal allowed the appeal, holding that structured settlement annuity payments should be treated as income, not property, for purposes of the Act.