Commercial Litigation lawyer, Jason Squire provides a summary of Lerners Top 5 Ontario civil appeals decisions from December, 2012.
1) Canada Trust v. Browne - This case involves the
interpretation and application of a trust set up for the
grandchildren and great grandchildren of the founder of Primo
Foods. The trust was set up as a "percentage trust" or
"unitrust," which allowed income beneficiaries to receive
a set amount every month. Because of the set amount for income
beneficiaries, the potential conflict of interest between the
income beneficiaries and capital beneficiaries is reduced. Because
of recent eroding markets, there was a concern that the payments to
the income beneficiaries would erode the capital of trust. The
Trustee sought direction from the court; the Children's Lawyer
represented the interests of the capital beneficiaries, who were
minors, unborn and unascertained. The Court of Appeal found that
the Trustee did not have to apply an "even hand" as
between the interests of the income and capital beneficiaries. The
trust documents allowed for the capital beneficiaries to bear the
risks of the declining market.
2) Dembeck v. Wright - This case involved a husband who was
terminated from his job and was paid a severance payment as part of
his termination package. Three days later, he and his wife
separated. The question in this case was whether the severance
payment was an asset that the husband brought to the marriage, for
purposes of the calculation of Net Family Property. The Court of
Appeal held that it was not an asset that he brought to the
marriage, since it would not crystallize until the husband was
actually terminated from his position.
3) Trang v. Nguyen - Canada Revenue Agency applied liens to
properties owned by a taxpayer who was in arrears. His wife and
sister asserted equitable interests in the land which were never
registered, and commenced litigation. The CRA was asking whether
those unregistered equitable interests could take priority over
registered liens. The Court of Appeal held that unregistered
equitable interests, if proven, could take priority over the
CRA's liens.
4) St. Mary's Cement Inc. (Canada) v. Clarington
(Municipality) - St Mary's Cement wanted to adopt alternative
fuel (post-recyling and post-composisting materials) in its
manufacturing of cement; Clarington opposed because it believed
that it would effectively turn the cement factory into a waste
disposal site. On interpretation of the applicable zoning by-law,
the Court of Appeal held that the use of alternative fuel
(notwithstanding that that alternative fuel was "waste")
did not change the use of the cement factory into a new land
use.
5) Brisco Estate v. Canadian Premier Life Insurance Company - This
case deals with the use of hearsay evidence in court. Mr. Brisco
had ordered life insurance from the defendant (and always told his
family that he had life insurance). After Mr. Brisco died, Canadian
Premier Life Insurance took the position that he had long ago
cancelled the life insurance. At trial before a jury, his family
sought to rely on Mr. Brisco's statements that he believed he
had the life insurance as evidence that he had not cancelled it.
The Court of Appeal concluded that it was proper to use that
evidence to infer that the defendant had made a mistake in
cancelling his insurance. The case is a unique, modern primer on
the proper admission and use of hearsay statements.
Originally published on 22 January 2013
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