Lerners LLP appellate lawyer, Jasmine
Akbarali, provides a summary of Lerners Top 5 Ontario civil appeals
decisions from November 2012.
1.) Treat America Limited v. Leonidas: In this case, the appellant
appealed the enforcement of a letter of request requiring him to
give deposition evidence in the United States. The evidence related
to an ongoing criminal investigation against him in Canada. He was
concerned that the enforcement of the LOR would violate his
privilege against self-incrimination. The Court of Appeal held that
s. 13 of the Charter provides use immunity only. It upheld the
letter of request subject to certain conditions that it found were
sufficient to protect his right not to incriminate himself.
2.) Sino-Forest Corporation (Re): In this case, decided under the
Companies' Creditors Arrangement Act, shareholders had
commenced claims against a company in respect of their equity
interests in it, and included claims against the company's
auditors and underwriters. The auditors and underwriters in turn
claimed contribution and indemnity against the company. The issue
before the court was whether the claims for contribution and
indemnity were equity claims for purposes of the Act. The court
concluded, based on the wording of the relevant section, that they
were equity claims. This was also consistent with the policy behind
the Act, which provides that the assets of the company not be
diminished until the general creditors' claims are satisfied in
full. If claims for contribution or indemnity were not equity
claims, that would result in diminishment of the assets of the
company that would be available to satisfy the general
creditors' claims.
3.) Locking v. Armtec Infrastructure Inc.: This decision considered
the appropriate appeal route from a carriage motion. The court
looked at the provisions of the Class Proceedings Act, 1992, and
noted that, although a number of appeal routes were set out in that
Act, it was silent with respect to carriage motions. Thus, the
appeal route for a carriage motion had to be determined by the
Courts of Justice Act. It concluded that a carriage order is an
interlocutory order, such that the appropriate appeal route is to
the Divisional Court with leave.
4.) AIM Health Group Inc. v. 40 Finchgate Limited Partnership: This
case involved the interpretation of an overholding provision in a
lease. A tenant did not exercise a renewal provision in the lease
but advised its landlord that it needed to remain in possession
beyond lease term. The landlord did not agree. When the tenant
failed to vacate at the end of the lease term, litigation ensued.
The tenant argued that because the overholding clause did not
explicitly require consent of the landlord, it was validly in
possession of the premises pursuant to the clause. This position
was accepted by Gillese J.A. in dissent. However, Feldman J.A.,
writing for the majority, disagreed, finding that the
landlord's consent is required even though the overholding
provision did not say so explicitly. This was consistent with
judicial authority and commercial reasonableness. Consent is most
normally evidenced by the payment and acceptance of rent.
5.) Martin v. Fleming: In this case, the insured was injured in two
separate automobile accidents and the claims arising out of those
accidents were being tried together to facilitate the assessment of
damages. The Insurance Act provides for a statutory deductible in
the case of non-pecuniary damage awards arising out of auto
accidents. The question before the court was, given that these were
two separate claims tried together, were they subject to one
deductible or one deducible each, or one deductible? The Court
concluded, based on the wording of the provision, that they were
subject to one deductible each, or two deductibles in total.
Originally published on 19 December 2012
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