Stephen T. Goudge

Following a motor vehicle accident, the insured received statutory accident benefits until his insurer terminated payment and an arbitrator found that most of his health problems were not caused by the accident.

In the subsequent tort action against the tortfeasor, the motion judge held that the plaintiff was issue estopped from relitigating causation because the tortfeasor was a privy of the insurer.

The Court of Appeal reversed, holding that the statutory scheme under the Insurance Act creates separate alternative proceedings and does not support importing issue estoppel from SAB arbitration into the tort action.

The respondent had no right to participate in the arbitration and lacked the sufficient identity of interest required for privity.

The appeal was allowed and the arbitral findings were held not binding in the personal injury action.

The appellant appealed a sexual assault conviction on the basis that the verdict was unreasonable and sought to adduce fresh evidence.

The proposed evidence consisted of post-conviction recorded telephone conversations in which the complainant explicitly and implicitly admitted that her trial testimony was false.

The court held that, although inconsistencies in the Crown's case did not render the verdict unreasonable, the fresh evidence satisfied the Palmer requirement that it could reasonably affect the result.

The fresh evidence was admitted, the conviction was set aside, and a new trial was ordered.

The appellant sought leave to appeal sentence from a custodial sentence of 15 months followed by 18 months probation.

The court was not persuaded that the sentencing judge committed an error in principle and held the sentence was entirely fit.

However, on the Crown's concession, the court varied the probation term requiring residence on a specified First Nations reserve and substituted a condition requiring residence at a residence approved by the probation officer.

Leave to appeal sentence was granted to give effect to that variation, and the appeal was otherwise dismissed.

This appeal arose from a train collision at a private railway crossing that caused catastrophic injuries after a vehicle slid down an icy incline onto the tracks.

The court upheld findings that the railway and the provincial ministry were negligent in relation to the unsafe crossing conditions, including obstructed sight lines and excessive slope, and upheld the contractual indemnity requiring the ministry to indemnify the railway for its negligence.

The court rejected the ministry's reliance on statutory immunity under the Public Lands Act because the relevant road was on railway lands, not public lands.

The court allowed the lodge owner's appeal, holding he was neither an occupier of the crossing nor subject to a common law duty to warn of the crossing's dangers.

The judgment was amended to remove his liability and to reapportion fault between the remaining defendants.

The appellants challenged a trial judgment in a personal injury action, arguing principally that the trial judge erred in admitting CAS records and applied the wrong onus.

The Court of Appeal held that, even if the hearsay objection had merit, the adverse credibility finding was strongly supported by other evidence and no substantial wrong or miscarriage resulted.

The court also rejected the onus argument because the finding that the bus was properly brought to a stop was a complete answer.

The threshold issue did not need to be addressed.

The appeal was dismissed with costs if demanded.

The appellant challenged a jury verdict in a personal injury action on the basis that the trial was unfair, relying on late service of expert reports, the applicability of a building code regulation, counsel's addresses, a Brown v. Dunn ruling, the jury charge, and cumulative unfairness.

The court held that no prejudice was shown from the timing of the reports, there was ample evidence of dangerous construction of the ramp regardless of the regulation's applicability, and the remaining complaints disclosed no reversible error.

The court also upheld the trial judge's treatment of gross-up.

The appeal was dismissed with costs.

The appellant challenged summary judgment holding him personally liable on a countermanded cheque issued in payment of part of an account for professional services.

The court held that the cheque notation identifying a principal and using the word "per" indicated a representative signature rather than a personal one.

It further held that the trade-name liability provision did not apply because the appellant did not sign in the trade name, but as agent for the identified principal.

The appeal was allowed, the summary judgment motion was dismissed, and the cross-appeal on costs was dismissed without costs.

The appellant challenged the dismissal of an action on a livestock mortality insurance policy after a racehorse died from bismuth poisoning.

The Court of Appeal held that, once the trial judge found the malicious or intentional act exclusion inapplicable to the insured and his bailee, the poisoning constituted an accident as between the parties to the policy.

The court further held that the exclusion for administration of drugs, medication or inoculation applies to substances given for a beneficial medicinal purpose, not a lethal substance forced into the animal to injure or destroy it.

The insurer failed to prove the poison was given for medicinal purposes.

The appeal was allowed and judgment was entered for the policy amount plus prejudgment interest.

The appeal concerned the interpretation of a short-form employment agreement governing commission entitlement on contracts secured with Bell.

The appellant argued the respondent was not entitled to commissions after leaving employment before the end of 1996.

The court upheld the trial judge’s conclusion that salary compensated ongoing servicing work, while commissions were earned once the Bell contracts were secured, even though the amount could only be calculated at contract end.

The appeal was dismissed with costs.

Following an appeal declaring that the insurer owed a duty to defend, the court clarified the costs consequences of that ruling.

The insurer argued that recoverable costs should be limited to the negligence portions of the claim and should exclude intentional tort and punitive damages allegations.

The court rejected that distinction as impractical at the early stage of the action and held that the insured defendants were entitled to a defence without expense to them.

The insured were awarded solicitor and client costs for the defence of the main action and cross-claims, including the third party proceedings, the motion below, and the appeal, until the insurer filed a notice of change of solicitors and assumed the defence.

The appellant challenged historic convictions for gross indecency, indecent assault, and common assault arising from repeated sexual abuse of his younger sisters over a lengthy period.

The court held the trial judge's characterization of the appellant as violent and vindictive was reasonably grounded in the evidence and was admissible as narrative context explaining delayed disclosure, not as propensity proof.

The court further held that the convictions rested on a proper credibility assessment, including rejection of the fabrication theory, and that improper Crown cross-examination caused only minimal prejudice.

Leave to appeal sentence was granted, but the 44-month concurrent custodial sentence was upheld as fit given the prolonged abuse, force, threats, and enduring harm.

The appellants appealed the dismissal of a medical negligence action arising from gynecological surgery in which sutures injured the patient’s ureter.

The court held that the trial judge misapprehended the evidence concerning the surgeon’s final inspection and failed to apply the only expert evidence addressing the precise operative circumstances, with the result that negligence should have been found.

The court upheld the trial judge’s rejection of causation between the surgery and the patient’s long-term fibromyalgia, but increased general damages for pain and suffering from $20,000 to $28,000 by using the date of the first surgery as the start of compensable harm.

The appeal was allowed, judgment for the plaintiffs was substituted, and the appellants were awarded trial and appeal costs on a party-and-party basis.

The appellants challenged a judgment requiring payment for emergency spill cleanup following a gasoline tanker rollover.

The court held that new evidence showing there was no agreement on rates undermined the partial summary judgment premised on payment at the respondent's usual rates.

The court further held that the trial judge failed to address whether mark-ups on subcontracted work were recoverable at usual rates or were otherwise fair and reasonable.

The appeal was allowed, the summary judgment and trial judgment were set aside, and a new trial was ordered.

The Minister appealed an order rectifying a corporate reorganization involving the division of a family business.

The respondents had transferred shares to a holding company in exchange for promissory notes based on mistaken accounting advice, triggering immediate tax liability under the Income Tax Act instead of a tax-deferred rollover.

The court held that rectification was available where the written transaction failed to reflect the parties' true agreement, which from the outset was to complete the restructuring without immediate tax consequences.

The application judge's findings of a primary and continuing tax-neutral objective were upheld, and the appeal was dismissed with costs.

The appellant appealed the dismissal of his occupiers' liability action arising from injuries sustained when he rode his bicycle into ropes strung across a driveway.

He argued that the jury charge was fatally defective because it misstated the relevance of unusual use of the premises and effectively removed from the jury the role of a neighbouring for sale sign as an attraction to the property.

The court held that, read as a whole, the charge correctly focused the jury on whether the respondents maintained the premises in a reasonably safe condition and did not create reversible error.

The appeal was dismissed with costs, and the contingent cross-appeal on damages was dismissed without costs.

The appellant appealed convictions for obtaining and attempting to obtain for consideration the sexual services of a person under eighteen, and also appealed sentence.

The court upheld the admission of a prior police statement, finding it relevant and not unfairly prejudicial in a judge-alone trial.

The court dismissed an extensive fresh evidence application alleging appearance of unfairness arising from comments by a provincial court judge to defence counsel and a chambers discussion during a pre-trial motion, holding there was no interference with the defence and no prejudice.

The sentence appeal was also dismissed because the trial judge properly weighed the appellant's personal mitigation against the seriousness of sexual exploitation offences involving young persons and the need for deterrence.

This appeal concerned a priority dispute between two automobile insurers over statutory accident benefits payable to a truck driver injured while driving his employer's vehicle.

The court held that the driver was deemed a named insured under the employer's policy by virtue of s. 91(4) of the Statutory Accident Benefits Schedule, with the result that the employer's insurer had priority under s. 268 of the Insurance Act.

The court rejected the argument that the regulation impermissibly altered the statutory meaning of “named insured”, holding that entitlement and priority must be read together.

It further held that s. 91(4) was authorized by the Act's broad regulation-making power.

The moving parties sought to vacate a stay pending appeal after the Divisional Court held that the regulatory definition of "spouse" under social assistance legislation violated s. 15 of the Charter and was not saved by s. 1.

The Court of Appeal held that the governing test for a stay required the party seeking the stay to establish irreparable harm if relief was refused.

Because the prior motion judge had found, on evidence reasonably supporting that conclusion, that the Crown would not suffer irreparable harm, the Crown was not entitled to a stay pending appeal.

The motion to vary was granted, the stay was set aside, and costs were awarded to the moving parties.

The appellant oral surgeon appealed a trial judgment enforcing a handwritten non-competition clause that barred him from practising within five miles of the respondent's office for three years after leaving an associate position.

The Court of Appeal held that although the respondent had some proprietary interest in regular referring dentists, this was not an exceptional employment case justifying a broad non-competition covenant.

Applying the governing framework for restrictive covenants in employment contracts, the court emphasized that non-competition clauses will generally not be enforced where a non-solicitation clause would adequately protect the employer's legitimate interests.

The appellant's role was that of a junior associate, he did not personify the practice, and no confidential information or trade secrets justified the broader restraint.

The appeal was allowed, the action dismissed, and costs awarded to the appellant.

The appellant appealed a jury conviction for first degree murder arising from the death of a young child in his care following an admitted sexual assault and repeated blows to the head.

He argued the trial judge inadequately charged the jury on the intent required for murder and erred in refusing an offence-based challenge for cause.

The court held the evidentiary record overwhelmingly supported the requisite intent and the jury charge, read as a whole, was legally sufficient.

It also held that offence-based challenge for cause was unavailable absent evidence connecting attitudes about the crime to prejudice against the accused.

The appeal was dismissed.