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Good afternoon.

Please find below our summaries of this past week’s civil decisions of the Court of Appeal for Ontario.

In Carleton Condominium Corporation No. 476 v. Wong, the Court issued its first decision regarding COVID-19. The appellant requested an adjournment of the appeal to the Fall, given that in-person hearings are no longer taking place. Justice Paciocco denied the request for the adjournment. He was of the view that the backlog of appeals that will inevitably be created should not be aggravated by adjourning matters that can be fairly adjudicated in writing.

Markham (City) v AIG Insurance Company of Canada is an insurance coverage dispute between AIG and Lloyd’s, dealing with the duty to defend, duty to contribute and right to control a defence where there is concurrent insurance coverage by more than one policy. The dispute related to a personal injury claim that arose during a minor hockey game in which a spectator was struck by a puck. Congratulations to former Blaneys lawyers, Marcus Snowden, and Sebastien Kamayah, on the successful result.

Peerenboom v Peerenboom is a family law dispute involving the determination of net family property and an equalization calculation in the context of a mortgage against the matrimonial home in favour of a parent of one of the spouses.

On another note, please join me and Lea Nebel at our “Top Appeals of 2019” CLE program scheduled to take place at the OBA on Wednesday, April 15, 2020, commencing at 5:45 pm. In light of COVID-19, the program will be only available via webcast. Three decisions will be featured. The first is Darmar Farms v Sygenta, which deals with the potential new tort of “premature commercialization” and pure economic loss in product liability context. Our panelists for that decision are Mike Peerless, who represents the plaintiff, and Scott Maidment, who has a depth of experience litigating product liability cases. The second is The Guarantee Company of North America v Royal Bank of Canada regarding the priority of construction trust claims in bankruptcy. Counsel who acted on that case, Miranda Spence and Scott Rollwagen, will be joining us. The third decision is Wright v Urbanek, which deals with the scope of the doctrines of abuse of process and collateral attack. John O’Sullivan, who acts for the appellant in seeking leave to the Supreme Court, will be speaking about this decision.

Finally, for anyone looking for timely and useful information regarding the ongoing crisis, please visit our firm’s COVID-19 Resource Centre. In addition please see the following links to a variety of COVID-19 resources offered by some key legal and governmental institutions:

Wishing everyone continued health.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Peerenboom v, Peerenboom, 2020 ONCA 240

Keywords: Family Law, Net Family Property, Debts, Equalization, Matrimonial Home, Domestic Contracts, Interpretation, Civil Procedure, Default Judgments, Writs of Seizure and Sale, Stay of Enforcement, Striking Pleadings, Orders, Non-Compliance, Family Law Act, RSO 1990, c F3, ss 21, 23, Courts of Justice Act, RSO 1990, c C43, s 106, Maroukis v Maroukis, [1984] 2 SCR 137, Buttarazzi v Buttarazzi (2009), 84 RFL (6th) 240 (Ont SC), Chiaramonte v Chiaramonte, 2013 ONCA 641

Markham (City) v AIG Insurance Company of Canada, 2020 ONCA 239

Keywords: Contracts, Insurance, Coverage, Primary Insurance, Excess Insurance, Duty to Defend, Carriage of Defence, Defence Costs, Family Insurance Corp. v. Lombard Canada Ltd., 2002 SCC 48, Van Huizen v. Trisura Guarantee Insurance Company, 2020 ONCA 222, Hanis v. Teevan, 2008 ONCA 678, Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33, Monenco Ltd. v. Commonwealth Insurance Co., 2001 SCC 49, Trenton Cold Storage v. St. Paul Fire & Marine (2001), 199 D.L.R. (4th) 654 (Ont. C.A.), Saanich (District) v. Aviva Insurance Company of Canada, 2011 BCCA 391, State Farm Fire and Casualty Co. v. Royal Insurance of Canada (1998), 115 O.A.C. 388 (C.A.), Carneiro v. Durham (Regional Municipality), 2015 ONCA 909, Unger (Litigation guardian of v. Unger (2004), 68 O.R. (3d) 257 (C.A.), Broadhurst & Ball v. American Home Assurance Co. (1991), 1 O.R. (3d) 225 (C.A.), Aquatech Logistics et al. v. Lombard Insurance et al., 2015 ONSC 5858, General Accident Assurance Co. of Canada v. Ontario Provincial Police Commissioner (1988), 64 O.R. (2d) 321 (H.C.), Brockton (Municipality) v. Frank Cowan Co. (2002), 57 O.R. (3d) 447 (C.A.)

Carleton Condominium Corporation No. 476 v. Wong , 2020 ONCA 244

Keywords: Civil Procedure, Appeals, Adjournments, COVID-19

Criminal Decisions

R. v. B., 2020 ONCA 241

Keywords: Criminal Law, Evidence, Expert Opinion, Admissibility, Jury Charge, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, R. v. Abbey, 2017 ONCA 640, R. v. J.-L.J., 2000 SCC 51, R. v. Biddersingh, 2015 ONSC 6063, Inquiry into Pediatric Forensic Pathology in Ontario (Toronto: Ontario Ministry of the Attorney General, 2008), R. v. Huard, 2013 ONCA 650, leave to appeal refused, [2014] S.C.C.A. No. 13, R. v. Nette, 2001 SCC 78, R. v. Manasseri, 2016 ONCA 703, leave to appeal refused, [2016] S.C.C.A. No. 513, R. v. Fontaine, 2004 SCC 27

R. v. K. (Publication Ban), 2020 ONCA 242

Keywords: Criminal Law, Evidence, Identity, Criminal Code s. 715.1, R. v. Nikolovski, [1996] 3 S.C.R. 1197

R. v. H., 2020 ONCA 243

Keywords: Criminal Law, Evidence, Admissibility, Hearsay, Spontaneous Utterance, Res Gestae, Expert Evidence, Fresh Evidence  Kienapple Principle, Ineffective Assistance of Counsel, Delay, Gladue Report, Sentencing, Canadian Charter of Rights and Freedoms, ss. 10(b), 11(b), Criminal Code, s. 718.2(a), White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, R. v. Palmer, [1980] 1 S.C.R. 759, R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, R. v. Khan (1988), 27 O.A.C. 142, R. v. Nicholas (2004), 70 O.R. (3d) 1 (Ont. C.A.), R. v. Dakin (1995), 80 O.A.C. 253, R. v. Prebtani, 2008 ONCA 735, 243 O.A.C. 207, R. v. Cherrington, 2018 ONCA 653, R. v. Girn, 2019 ONCA 202, R. v. G.B.D., 2000 SCC 22, R. v. Charley, 2019 ONCA 726, R. v. Gladue, [1999] 1 S.C.R. 688, R. v. Rahey, [1987] 1 S.C.R. 588, R. v. MacDougall, [1998] 3 S.C.R. 45, R. v. Cooper (No.2) (1977), 35 C.C.C. (2d) 35 (Ont. C.A.), R. v. Bosley (1992), 59 O.A.C. 161


CIVIL DECISIONS

Peerenboom v. Peerenboom, 2020 ONCA 240

[Tulloch, van Rensburg, and Zarnett JJ.A.]

Counsel:

S. Zucker, for the appellant HP

N.J. Tourgis and L. Paddock, for the appellant RP

D.Z. Frodis, for the respondent

Keywords: Family Law, Net Family Property, Debts, Equalization, Matrimonial Home, Domestic Contracts, Interpretation, Civil Procedure, Default Judgments, Writs of Seizure and Sale, Stay of Enforcement, Striking Pleadings, Orders, Non-Compliance, Family Law Act, RSO 1990, c F3, ss 21, 23, Courts of Justice Act, RSO 1990, c C43, s 106, Maroukis v Maroukis, [1984] 2 SCR 137, Buttarazzi v Buttarazzi (2009), 84 RFL (6th) 240 (Ont SC), Chiaramonte v Chiaramonte, 2013 ONCA 641

facts:

RP and NP married in 2002 and separated in 2013. In October 2003, Mandrake Properties Inc. (“MPI”), a company controlled by RP’s father, HP, purchased a home (the “Matrimonial Home”) for $1.3 million. RP and PP moved into the home in April 2004. For the first several years, they rented the Matrimonial Home from MPI. The house was transferred from MPI to RP on October 30, 2008 at a price of $1.2 million, with title taken in RP’s name. HP paid the down payment of $250,000, and the balance was provided by a bank loan, secured by a $950,000 mortgage. In February 2015, HP advanced RP $200,000, secured by a mortgage on the Matrimonial Home. NP consented to the mortgage. In October 2017, the Matrimonial Home was appraised at $2.93 million.

On October 15, 2007, at a time when there were difficulties in the marriage, RP and MP entered into a domestic contract (the “Domestic Contract”). The parties subsequently disagreed about whether the effect of the Domestic Contract was to provide NP with a one-half interest in the Matrimonial Home on marriage breakdown.

HP subsidized the couple’s lavish lifestyle with both gifts and loans documented by promissory notes between 2008 and 2015. On August 22, 2014, NP registered a matrimonial home designation on title to the Matrimonial Home. On March 31, 2015, HP sent RP a notice of demand for payment, and RP signed an acknowledgment of the debts he owed his father. HP commenced an action against RP on June 3, 2015, and obtained default judgment for $948,840 on August 27, 2015. A writ of execution was issued on August 31, 2015.

NP commenced a civil action in 2016 (the “Civil Action”) to determine the validity of the default judgment obtained by HP. The trial judge dismissed the Civil Action, concluding that the default judgment was not a sham and there was insufficient evidence that HP and RP had an agreement to deprive NP of her spousal rights.

There is no appeal from the dismissal of the Civil Action and the award of costs against NP.

The second trial was in the matrimonial proceedings (the “Matrimonial Trial”) commenced by NP. NP added HP as a respondent to the matrimonial proceedings. Ultimately, the trial judge granted an order in favour of NP, staying enforcement of the writ of execution HP obtained under his default judgment against the matrimonial home. HP appealed that order.

At the commencement of the matrimonial trial, the trial judge made an order, on NP’s motion, striking RP’s pleadings. RP appealed that order.

issues:

1) HP Appeal

a) Did the trial judge err in staying the writ of execution under ss 21 and 23 of the Family Law Act because it was not an “encumbrance”?

b) Do the circumstances warrant relief under s 106 of the Courts of Justice Act?

c) Was the trial judge’s decision to stay the writ of execution in the Matrimonial Trial inconsistent with the finding in the Civil Trial that the promissory notes were bona fide so as to be a palpable and overriding error?

2) RP Appeal

a)Did the trial judge err in striking RP’s pleadings?

b) Did the trial judge err in his interpretation of the Domestic Contract that awarded NP half of the proceeds of the Matrimonial Home?

c) Did the trial judge err in valuing RP’s debts at zero for the purpose of equalization?

d) Did the trial judge err in his costs award, including the failure to direct that costs were net of two interim costs orders?

holding:

HP Appeal dismissed. RP Appeal allowed in part.

reasoning:

1) HP Appeal

a) Yes. The requirements of s 23(d) of the FLA were not met because HP’s writ of execution was not an encumbrance of the matrimonial home by RP. While a writ of execution may be an “encumbrance” within the meaning of that term in ss 21 and 23(d) of the Family Law Act, the court may set aside a transaction encumbering an interest in a matrimonial home under s 23(d) only if it is contrary to the prohibition against a spouse encumbering the interest without the consent of the other spouse under s 21. Therefore, to engage this section, the spouse must have done something to directly encumber the interest in the matrimonial home. Accordingly, the Court found that this provision does not apply to executions by third-party creditors like HP: see Maroukis v Maroukis.

b) Yes. The stay of execution of HP’s judgment was justified under s 106 of the Courts of Justice Act. The Court found that while the trial judge expressly relied on the Family Law Act provisions when granting the stay, he adverted to the authority under s 106 of the Courts of Justice Act when referring to Buttarazzi v Buttarazzi. The trial judge did in fact articulate and apply the appropriate test: a stay of execution of a judgment may be granted in rare circumstances where the conduct of the judgment creditor is oppressive or vexatious or an abuse of process of the Court, and where the stay would not cause an injustice to the plaintiff. The Court held that in this case, although HP had legitimate claims against RP that he was entitled to pursue, and had obtained a valid judgment, there was no question that HP’s objective in enforcing the judgment by filing the writ of execution against the Matrimonial Home was to put the equity in the home beyond the reach of NP. HP was not entitled to pursue NP for the debts, as his judgment was against RP only, who had signed the promissory notes. Therefore, filing a writ of execution against the home would permit him to do indirectly what he could not do directly.

c) No. The Court found no contradiction between the trial judge’s finding in the Civil Action that the debts behind the promissory notes were “legitimate marital debts”, and his conclusions in the Matrimonial Trial that the transactions in creating the promissory notes were “not commercial transactions” and that the default judgment had “everything to do with ensuring that the equity in the home was put beyond NP’s reach”.

2) RP Appeal

a) No. First, the trial judge cited and applied the correct test that striking pleadings is a remedy of last resort, which is justified only in exceptional circumstances and where no other remedy would suffice: Chiaramonte v Chiaramonte. Second, the trial judge carefully considered the evidence with respect to RP’s history of non-compliance with costs orders and disclosure obligations and his determination that they were willful was entitled to deference.

However, the Court exercised its discretion to consider RP’s appeal notwithstanding his pleadings remaining struck. The Court rationalized its decision because the grounds of appeal were confined to issues in respect of which RP’s position was before the court below. RP did not seek to reopen the proceedings and he accepted the record in its current state.

b) No. Based upon a plain reading of the Domestic Contract, the trial judge concluded that NP was entitled to a one-half interest in the Matrimonial Home and that this was the result that RP and NP would have reasonably expected at the time the contract was signed. The Court held that the trial judge’s conclusion was reasonable and revealed no error.

c) No. Notwithstanding the trial judge’s findings in the Civil Action regarding the validity of the judgment and debts, the Court held it was open to him to conclude that there was no reasonable prospect that HP would pursue RP for the repayment of the debt based upon the evidence and therefore this contingent liability should not be factored into an equalization calculation.

d) Yes. On a plain reading of the trial judge’s reasons, it was apparent to the Court that he overlooked the $130,000 interim costs advance by RP when he awarded $285,000 in costs to NP. The Court, therefore, varied the costs award in the court below to award NP costs of $155,000, after credit for the sum of $130,000 RP had already paid under the interim costs orders.


Markham (City) v AIG Insurance Company of Canada, 2020 ONCA 239

[Doherty, Brown and Thorburn JJ.A.]

Counsel:

M. Snowden and S. Kamayah, for the appellant

D.Boghosian and S. Taylor, for the respondents

Keywords: Contracts, Insurance, Coverage, Primary Insurance, Excess Insurance, Duty to Defend, Carriage of Defence, Defence Costs, Family Insurance Corp. v. Lombard Canada Ltd., 2002 SCC 48, Van Huizen v. Trisura Guarantee Insurance Company, 2020 ONCA 222, Hanis v. Teevan, 2008 ONCA 678, Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33, Monenco Ltd. v. Commonwealth Insurance Co., 2001 SCC 49, Trenton Cold Storage v. St. Paul Fire & Marine (2001), 199 D.L.R. (4th) 654 (Ont. C.A.), Saanich (District) v. Aviva Insurance Company of Canada, 2011 BCCA 391, State Farm Fire and Casualty Co. v. Royal Insurance of Canada (1998), 115 O.A.C. 388 (C.A.), Carneiro v. Durham (Regional Municipality), 2015 ONCA 909, Unger (Litigation guardian of v. Unger (2004), 68 O.R. (3d) 257 (C.A.), Broadhurst & Ball v. American Home Assurance Co. (1991), 1 O.R. (3d) 225 (C.A.), Aquatech Logistics et al. v. Lombard Insurance et al., 2015 ONSC 5858, General Accident Assurance Co. of Canada v. Ontario Provincial Police Commissioner (1988), 64 O.R. (2d) 321 (H.C.), Brockton (Municipality) v. Frank Cowan Co. (2002), 57 O.R. (3d) 447 (C.A.)

facts:

The City of Markham (the “City”) rented a hockey rink (the “Rink”) to the Markham Waxers Hockey Club, the Markham Waxers Minor Hockey Association, and the Markham Minor Hockey Association (collectively “Waxers”). A young boy who was watching a game at the Rink was injured when a hockey puck struck him in the face. The plaintiff sued the City, who is insured by Lloyd’s Underwriters (“Lloyd’s”) and Hockey Canada, which insures the Waxers through AIG Insurance Company of Canada (“AIG”). The City is also an additional insured to Hockey Canada’s policy with AIG.

This case involves the dispute between AIG and Lloyd’s regarding the duty to defend the claim brought against the City, and the rights and responsibilities that arise from that duty. AIG accepts responsibility to defend the action, but claims that Lloyd’s has a concurrent duty to defend and must pay an equitable share of the City’s defence costs. AIG also claimed it has a right to participate in the defence, including the right to retain and instruct counsel, alongside Lloyd’s.

This was an appeal of the application judge’s decision that (1) AIG must defend the action; (2) AIG must pay the cost of defending the action subject to indemnification of costs, if any, from Lloyd’s upon final resolution of action; but (3) AIG may not participate in the defence by retaining or instructing counsel.

issues:

1) Does Lloyd’s owe the City a concurrent duty to defend?

2) Must Lloyd’s pay an equitable share of the City’s defence costs?

3) Does AIG have the right to participate in the defence, including the right to retain and instruct counsel?

holding:

Appeal allowed.

reasoning:

1) Yes. An insurer has a duty to defend where there is a “mere possibility” that the true nature of the pleaded claim, if proven at trial, falls within coverage and would trigger the insurer’s duty to indemnify. Where there is primary insurance coverage, liability attaches immediately upon the happening of the occurrence that gives rise to the liability. An excess policy, on the other hand, is one that provides that the insurer is liable for the excess above and beyond that collected on primary insurance. Where there is both primary and excess insurance coverage, the limits of the primary insurance must be exhausted before the primary carrier has a right to require the excess carrier to contribute to a settlement.

There was no dispute that the AIG policy covers the City against all liability with respect to the operations of Hockey Canada and the Waxers, that the AIG policy is a primary insurance policy, and that AIG has a duty to defend the City against claims which fall within the scope of its policy. However, AIG argued that Lloyd’s is also a primary insurer on the claims covered by the AIG policy and the only insurer who is liable to indemnify the City against other claims in the action. As a result, Lloyd’s also owes a duty to defend. In response, Lloyd’s and the City argued that AIG is the primary insurer on all of the claims in the action and that Lloyd’s is an excess insurer only. They submit that the language in AIG’s policy – “only in respect of the operations of the named insured” – is broad enough to cover all claims alleged against the City. Further, since the claimed amount in the underlying action is $150,000, well within AIG’s policy limit, they claim there is no duty to indemnify under the Lloyd’s policy and therefore no duty to defend.

The Lloyd’s policy covers the City for all claims of bodily injury, personal injury or property damage “caused by an Occurrence during the Policy Period”. It contains a limitation which provides that if, at the time of the accident the claim is covered by the Lloyd’s policy and another insurance policy would have been attached to cover all or part of the claim had the Lloyd’s policy not been in place, Lloyd’s is not liable except as an excess insurer such that it has an obligation to contribute only after all other insurance has been exhausted.

In this case, at the time of the accident, the claim was covered by the Lloyd’s policy, and the AIG policy would have attached to cover part of the claim had the Lloyd’s policy not been in place. Therefore, to the extent, but only to the extent that claims would be covered by the AIG policy, Lloyd’s would be an excess insurer with respect to those claims. In this case, there were some claims in the underlying action which may not be covered by the AIG policy and may only be covered by the Lloyd’s policy. Based on this analysis, the Court of Appeal concluded that Lloyd’s has a duty to defend the City against those claims in the action that are not covered by the AIG policy.

Lloyd’s has a duty to defend the City in respect of all claims of bodily injury, personal injury or property damage caused by “an Occurrence”. The AIG policy only covers the City for “liability in respect of [Hockey Canada and Waxers’] operations”. AIG expressly limited its obligation as “[n]o other obligation or liability to pay sums or perform acts or services is covered unless explicitly provided for”. All other occurrences that cause bodily injury, personal injury or property damage are not covered by the AIG policy but are covered by the Lloyd’s policy. As a result, both AIG and Lloyd’s have a duty to defend.

Lloyd’s and the City attempted to argue that there is an exclusion in the Lloyd’s policy that absolves Lloyd’s duty to defend. However, this argument failed. The words in the policy: “This Policy does not apply directly or indirectly to … any liability of the Insured [City] … to any obligation to share damages with or repay someone else who must pay damages because of Bodily Injury” refer to the City assuming an obligation for a third party’s actions, not a third party (Waxers) agreeing to indemnify the City for the third party’s actions.

Finally, while the $100,000 deductible in the Lloyd’s policy may affect the sum Lloyd’s is required to pay out to the insured City upon final resolution of the claim, the deductible does not affect the duty to defend the action based on the wording of the policy.

2) Yes. Each of AIG and Lloyd’s has a duty to defend at least some of the claims in the action so each is responsible to contribute to the defence costs of the City. As there is no contract between them with respect to the defence, their respective obligations should be governed by the principles of equity. The usual deference does not apply to the application judge’s decision in this case as her analysis was premised on the faulty assumption that Lloyd’s has no duty to defend and her analysis does not address the central issue of fairness and equity. The Court of Appeal held that, in these circumstances where there are two primary insurers, the Lloyd’s policy is more comprehensive than AIG’s, and there is a concurrent duty to defend, the fairest and most equitable allocation of defence costs would seem to be to require each of AIG and Lloyd’s to pay an equal share of the defence costs pending final disposition of the action and the final determination of the allocation of defence costs.

3) Yes. An insurer who has a duty to defend an action has a prima facie right to control the conduct of that defence. In order to remove the insurer’s contractual right to defend and control the defence of the litigation, there must be a reasonable apprehension of conflict of interest on the part of counsel appointed by the insurer.

Counsel defending the action should have the confidence of the insurer who is obliged to pay the legal fees and may have to pay a substantial judgment on behalf of the insured. Counsel must also meet their legal and ethical obligation to represent and protect the interests of the insured. The onus is on the insured to establish a reasonable apprehension of conflict of interest on the part of the insurer. Lloyd’s and the City were represented by the same counsel on the appeal.

It would appear that each of AIG, Lloyd’s and the City have conflicting interests as follows: (i) AIG has an interest in having liability determined on the basis of the City’s actions alone so that AIG is not responsible for paying any damages. This is because its policy only covers the incidents that arise out of the operations of Hockey Canada or the Waxers, and because it is also defending Hockey Canada and the Waxers in the main action; (ii) Lloyd’s has an interest in having liability determined on the basis that the claim arose from the operations of Hockey Canada or the Waxers, and not from the actions of the City to minimize its exposure to the losses; and (iii) the City also has an interest in having liability determined on the basis that the claim arose from the operations of Hockey Canada or the Waxers, so that the City’s premiums do not rise and so that they do not have to assume the full $100,000 deductible in the Lloyd’s policy.

The court must endeavour to balance the insured’s right to a full and fair defence of the civil action with the insurers’ right to control the defence such that AIG does not abuse its right to defend and settle the claim to the detriment of Lloyd’s and/or the City. The application judge erred when she determined that there were no measures that could alleviate the City’s concerns short of removing AIG from the defence entirely. There is no reason to believe that appropriate counsel who has an ethical obligation to defend the insured properly, will not conduct the defence in the best interest of the insured. There is also no evidence that any of the handlers have misused any confidential information or, with appropriate disciplinary measures put in place, will misuse confidential information. The Court of Appeal noted that one of the key reasons cited by the application judge for not accepting the proposed protocol was that no disciplinary measures would be taken against persons at AIG who contravened the protocol. However, the AIG handler confirmed that any person contravening the protocol would be met with disciplinary action that could lead to dismissal.

AIG suggested implementing a “split file” verbal protocol to lessen the concerns and provide protection to the insured and Lloyd’s. This would ensure that potentially conflicting interests insured by one policy are handled separately and that the separate claims be dealt with by separate counsel. The Court of Appeal accepted this proposal to enable all three parties to participate, but imposed additional obligations. The Court was of the opinion that this proposal with the added obligations adequately recognizes the legitimate interests of both the insured and the insurers and addresses the concerns that AIG may abuse its right to defend and settle to the prejudice of the insured.


Carleton Condominium Corporation No. 476 v. Wong, 2020 ONCA 244

[Paciocco J.A. (In Chambers)]

Counsel:

NW, acting in person

C. Wood, for the respondent

Keywords: Civil Procedure, Appeals, Adjournments, COVID-19

facts:

This appeal was scheduled for April 9, 2020, but oral in-person appeal hearings were suspended for the week of April 6, 2020, as a result of the COVID-19 health crisis. The appellant sought an adjournment until the fall of 2020. The respondent requested the appeal to proceed in writing with an opportunity for the parties to respond to panel questions either by teleconference or videoconference on April 9, 2020.

issues:

1) Should the appellant’s adjournment request be granted?

holding:

Adjournment request denied.

reasoning:

1) No. The Court noted that, by its nature, the appeal could be fairly adjudicated in writing. The appellant is self-represented but is a lawyer and presented the issues with clarity in his written materials. The issues presented are, by their nature, capable of being adequately addressed in writing. The statutory interpretation questions raise narrow technical considerations that have been well delineated in the written materials. The sufficiency of the notice of lien can be easily calculated once the statutory arguments are resolved. The alleged misapprehension of evidence can be decided on the face of the record. The basis for the challenge to the limitation period finding, and the response, are also set out clearly. The delay of the appeal would be prejudicial. Moreover, it is not in the interests of justice to overburden the court by adjourning matters that can be dealt with fairly, as scheduled. The backlog that will be created by cases that must be adjourned to protect the public and ensure fair hearings will be imposing and it should not be unnecessarily aggravated.


CRIMINAL DECISIONS

R. v. B., 2020 ONCA 241

[Feldman, Tulloch and Jamal JJ.A.]

Counsel:

L. Beechener and A. Ostroff, for the appellant

L. Joyal, for the respondent

Keywords: Criminal Law, Evidence, Expert Opinion, Admissibility, Jury Charge, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, R. v. Abbey, 2017 ONCA 640, R. v. J.-L.J., 2000 SCC 51, R. v. Biddersingh, 2015 ONSC 6063, Inquiry into Pediatric Forensic Pathology in Ontario (Toronto: Ontario Ministry of the Attorney General, 2008), R. v. Huard, 2013 ONCA 650, leave to appeal refused, [2014] S.C.C.A. No. 13, R. v. Nette, 2001 SCC 78, R. v. Manasseri, 2016 ONCA 703, leave to appeal refused, [2016] S.C.C.A. No. 513, R. v. Fontaine, 2004 SCC 27

R. v. K. (Publication Ban), 2020 ONCA 242

[Doherty, Watt and Benotto JJ.A.]

Counsel:

M. Pasquale, for the appellant

A. Wheeler, for the respondent

Keywords: Criminal Law, Evidence, Identity, Criminal Code s. 715.1, R. v. Nikolovski, [1996] 3 S.C.R. 1197

R. v. H., 2020 ONCA 243

[Benotto, Paciocco and Thorburn JJ.A.]

Counsel:

D. Robitaille, for the appellant

C. Webb, for the respondent

Keywords: Criminal Law, Evidence, Admissibility, Hearsay, Spontaneous Utterance, Res Gestae, Expert Evidence, Fresh Evidence  Kienapple Principle, Ineffective Assistance of Counsel, Delay, Gladue Report, Sentencing, Canadian Charter of Rights and Freedoms, ss. 10(b), 11(b), Criminal Code, s. 718.2(a), White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, R. v. Palmer, [1980] 1 S.C.R. 759, R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, R. v. Khan (1988), 27 O.A.C. 142, R. v. Nicholas (2004), 70 O.R. (3d) 1 (Ont. C.A.), R. v. Dakin (1995), 80 O.A.C. 253, R. v. Prebtani, 2008 ONCA 735, 243 O.A.C. 207, R. v. Cherrington, 2018 ONCA 653, R. v. Girn, 2019 ONCA 202, R. v. G.B.D., 2000 SCC 22, R. v. Charley, 2019 ONCA 726, R. v. Gladue, [1999] 1 S.C.R. 688, R. v. Rahey, [1987] 1 S.C.R. 588, R. v. MacDougall, [1998] 3 S.C.R. 45, R. v. Cooper (No.2) (1977), 35 C.C.C. (2d) 35 (Ont. C.A.), R. v. Bosley (1992), 59 O.A.C. 161


The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.

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Photo of John Polyzogopoulos John Polyzogopoulos

John has been the editor of Blaneys Appeals since the inception of the blog in the Summer of 2014. He is a partner at the firm with almost two decades of experience handling a wide variety of litigation matters. John assists clients with…

John has been the editor of Blaneys Appeals since the inception of the blog in the Summer of 2014. He is a partner at the firm with almost two decades of experience handling a wide variety of litigation matters. John assists clients with matters ranging from appeals, to injunctions, to corporate, breach of contract, construction, environmental contamination, product liability, debtor-creditor, insolvency and other business litigation. He also handles professional discipline and professional negligence matters, as well as complex estates and matrimonial litigation. In addition, John represents amateur sports organizations in contentious matters, and advises them in matters of internal governance. John can be reached at 416-593-2953 or jpolyzogopoulos@blaney.com.