Canada: Court Of Appeal Summaries (March 29-April 1, 2016)

Last Updated: April 10 2016
Article by John Polyzogopoulos

There was only one civil decision released by the Court of Appeal this week long enough to summarize. The rest were very short endorsements and criminal decisions.

Civil Decision

Hordo v. State Farm Mutual Automobile Insurance Company, 2016 ONCA 238
[Doherty, Cronk and Pepall JJ.A.]

Robert Besunder, for the appellant
Mark Gelowitz and Karin Sachar, for the respondents

Keywords: Torts, Breach of Privacy, Insurance, Statutory Accident Benefits, Fresh Evidence

The appellant, Hordo, appealed the motion judge's decision to strike the application for declaratory relief against the respondent insurers as an abuse of process. The appellant claimed statutory accident benefits. In claiming the benefits, the appellant alleges the respondent wrongfully transmitted her confidential and private health-related information to persons outside Ontario without her knowledge or consent.

The appellant made similar complaints under the Insurance Act and the Personal Information protection and Electronic Documents Act ("PIPEDA"). Both statutes have their own dispute resolution schemes. The respondents argued that declaratory relief should not be granted where it will not resolve the dispute when there are other reasonably effective procedures.

(1) Did the motion judge err in denying the appellant declaratory relief?
(2) Can the appellant file fresh evidence?

Holding: Appeal dismissed.

(1) No. There is clear overlap between the appellant's application for declaratory relief and the other action. Furthermore, the dispute resolution procedures under the Insurance Act and PIPEDA provide appropriate resolution mechanisms. The appellant's application is misconceived and designed to circumvent the mandatory statutory schemes.

(2) No. The appellant cannot introduce the fresh evidence because it is irrelevant to the core issues in dispute.

Civil Endorsements

Midwest Properties Ltd. v. Thordarson, 2016 ONCA 230
[Feldman, Hourigan and Benotto JJ.A.]

Evert Van Woudenberg, for the appellant
Frank Zechner and Christopher Du Vernet, for the respondents
Sandra Nishikawa and Isabelle O'Connor, for the intervener Minister of the Environment and Climate Change

Key Words: Endorsement, Costs, Disbursements, Environmental Assessment Reports, In Contemplation of Litigation

2249740 Ontario Inc. v. Morguard Elgin Ltd., 2016 ONCA 233
[Feldman, Simmons and Miller JJ.A.]

J. Scott Maidment and Stephen Brown-Okruhlik, for the appellants
Ronald F. Caza and Anne M. Tardif, for the respondent

Key Words: Addendum, Summary Judgement, Quantification of Damages, Remittal to Different Judge

Ibrahim v. Toronto Transit Commission, 2016 ONCA 234
[Feldman, Gillese and Brown JJ.A.]

Samir Ibrahim, acting in person
Andrew Davidson, for the respondent

Key Words: Civil Procedure, Motion to Strike, Rules of Civil Procedure, Rule 21, Frivolous and Vexatious

Criminal Decisions

R  v. McCracken, 2016 ONCA 228
[Doherty, Laskin and Tulloch JJ.A.]

Philip Campbell and Saman Wickramasinghe, for the appellant
David Lepofsky, for the respondent

Key Words: Criminal Law, Second Degree Murder, Reasonableness of Verdict, Jury Charge, Mens Rea,  Identification Evidence, Exculpatory Effect of Testimony, R. v. W. (D.). Instruction

R  v. Wilson, 2016 ONCA 235
[Strathy C.J.O., Lauwers and Benotto JJ.A.]

Dena Bonnet, for the appellant
Ariel Herscovitch, for the respondent

Key Words: Criminal Law, First Degree Murder While Committing Sexual Assault, Criminal Code, S. 231(5)(b), Consent, Evidence, Inference, Preliminary Inquiry, Committal to Stand Trial, Certiorari, Appeal Allowed

R  v. Boone, 2016 ONCA 227
[Sharpe, Benotto and Huscroft JJ.A.]

Jonathan Shime and Benjamin Elzinga Cheng, for the appellant
Stacey Young, for the respondent

Key Words: Criminal Law, Aggravated Sexual Assault, Failure to Disclose HIV-Positive, Criminal Code, S 276, Jury Charge, Vetrovec Warning, Miller Error, Bad Character Evidence

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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