Stephen T. Goudge

The appellant challenged a Rule 21 declaration that a snowmobile is not an "automobile" within s. 224(1) of the Insurance Act.

The appeal court held it had jurisdiction because the order finally disposed of an issue of law and was neither an order for payment of money nor one dismissing such a claim.

On the merits, the court adopted the motion judge's reasoning that the Compulsory Automobile Insurance Act incorporates the Highway Traffic Act definition of "motor vehicle", which expressly excludes motorized snow vehicles.

As a result, a snowmobile does not fall within the statutory definition of "automobile" for Part VI of the Insurance Act, and the appeal was dismissed with costs.

The appellant challenged the dismissal of a medical negligence action arising from a surgical procedure and alleged lack of informed consent.

The Court of Appeal held that the trial judge was entitled to accept the defence expert evidence that the surgery was not negligently performed, particularly where there was no effective cross-examination on the factual assumptions and no contrary expert evidence.

The court further held that there was evidence supporting disclosure of the material risk of permanent change in sensation, and no evidence that other asserted risks required disclosure.

Applying the modified objective test, the court upheld the finding that the appellant would have proceeded with the surgery in any event.

The insurer appealed from a ruling in an action brought under s. 132(1) of the Insurance Act after the respondents obtained a negligence judgment against the insured and execution was returned unsatisfied.

The Court of Appeal held that the statutory cause of action permits recovery of the amount of the judgment, up to the face value of the policy, subject only to the same equities the insurer would have against its insured.

The insurer could not relitigate the insured's liability or the respondents' damages, nor could it allege that the original judgment was vitiated by the respondents' own fraud.

The appeal was dismissed with costs.

The appellants challenged a municipal by-law amending the designated area for adult entertainment parlours, arguing that the amendment was unlawful because the substituted area was not zoned to permit the use.

The court held that while the municipality could amend its licensing by-law to abrogate existing rights, it could not do so in a manner that effectively prohibited the licensed activity throughout the municipality.

The court rejected the argument that adult entertainment was an accessory use to a restaurant and held that the availability of rezoning, or the fact that another property had been rezoned, did not cure an otherwise prohibitory by-law.

The appeal was allowed, the injunction was set aside, and the by-law was declared void to the extent it changed area designations in a prohibitory manner.

No costs were awarded here or below.

On a motion to quash an appeal from a sale approval order in a receivership, the court held that an unsuccessful prospective purchaser had no standing to appeal because the order did not finally dispose of any legal or proprietary right of that bidder.

The court emphasized that the purpose of a sale approval motion is to determine whether the proposed sale is in the best interests of parties directly interested in the proceeds, primarily creditors, not disappointed bidders.

The court rejected arguments that the bidder acquired appeal rights through the terms of a prior negotiation order or by being heard below.

The appeal was quashed with costs to the moving party.

The appellant appealed a conviction for second degree murder arising from a fatal shooting after a house party.

The central issue was whether the trial judge's jury re-instruction on reasonable doubt improperly required jurors to articulate a logical reason for their doubt and further referred to the notion of a timid juror.

The court held that this wording was contrary to established appellate authority and inconsistent with the proper reasonable doubt framework.

In the context of a closely contested case, the error was reversible and necessitated a new trial.

Commercial appeal arising from a manufacturing contract dispute over delayed and deficient mold production for an automotive supply program.

The appellant argued that the respondent's transfer of one mold to another subcontractor constituted accord and satisfaction and challenged the reasonableness of the respondent's mitigation costs.

The court rejected those arguments, holding that there was no agreement discharging the appellant's original obligations and that subcontracting completion was a necessary mitigation step in light of the delivery pressures imposed by the end customer.

The appeal was allowed only in part to correct the accounting by crediting the appellant with the unpaid final one-third contract amount for the transferred mold.

The respondent remained substantially successful and was awarded three-quarters of its appeal costs.

This addendum to a criminal appeal judgment clarified that the court did not intend to preclude the respondent from applying for a discharge.

Relying on prior authority indicating that even a conviction would not necessarily bar a discharge, the court nonetheless amended its earlier reasons for absolute clarity.

The acquittal was set aside and replaced with a finding of guilt for common assault, thereby preserving the respondent's ability to seek a discharge.

The appellants challenged an order refusing relief from a default judgment and raised issues concerning notice of a sale and prior proceedings, as well as the interpretation of the Conveyancing and Law of Property Act.

The court held that the motion judge reasonably found one appellant had not moved promptly enough to set aside the default judgment.

It also upheld the factual finding that the other appellant had notice of both the sale and earlier proceedings.

The statutory interpretation argument was rejected, and the appeal was dismissed with costs.

The appellant sought leave to appeal a one-year sentence imposed for serious offences committed against his ex-spouse while on probation for prior violence toward the same victim.

The court noted the appellant's lengthy criminal record dating back to 1972, including numerous violent offences, and his untreated long-standing alcohol problem.

Although the panel observed that more extensive reasons from the sentencing judge would have been preferable, it was not persuaded that the sentence was unfit.

Leave to appeal sentence was granted, but the appeal was dismissed.

The appellant challenged his conviction on two grounds: the admission of expert evidence from a police detective and an alleged misapprehension of another police officer's evidence.

The court declined to articulate a general rule on admissibility, holding that such determinations must be made case by case under the governing appellate framework.

Because defence counsel had not objected at trial, there was no record to assess relevance or necessity, and the expert evidence did not appear to have unduly influenced the result.

The court also found no misapprehension of the officer's evidence and dismissed the appeal.

The appellants challenged a trial judgment arising from a slip and fall in a hospital parking lot during winter conditions.

The sole issue on appeal was whether the trial judge materially misapprehended the facts in finding that the respondent hospital had a reasonable maintenance system for plowing, salting and sanding.

The court reviewed the evidentiary record, including photographs and a video entered by the plaintiffs, and held that the findings that the area had been sanded and salted the previous day were supported by the record.

The appeal was dismissed with costs.

Appeal from a summary judgment decision in a dispute involving a former senior employee who joined a competitor after signing a Canada-wide non-competition covenant and allegedly soliciting customers and employees.

The court held the evidentiary record was insufficient to declare the restrictive covenant enforceable on summary judgment, but equally insufficient to declare it unenforceable where the responding parties had not moved for that relief and genuine issues remained regarding customer relationships and geographic scope.

The court further held that the solicitation record disclosed genuine issues for trial concerning two groups of dentist customers, but not a third group.

The costs order was varied in light of the appellant's partial success, with each side to bear its own costs of the summary judgment motions and the appeal.