Below are the summaries for this week's civil decisions of the Court of Appeal. Perhaps the most interesting decision was Shewchuk v. Blackmont Capital Inc. in which the court discussed the admissibility of subsequent conduct of the parties for the purposes of determining the intent of the parties in a contract interpretation case. The court explained that subsequent conduct is not part of the factual matrix (which only includes the surrounding circumstances up to and including the signing of the agreement). It went on to caution that subsequent conduct evidence is dangerous for a number of reasons, and should only be used when there is an ambiguity in the contract and the factual matrix itself is not enough to resolve the ambiguity. Subsequent conduct can also be used to assess credibility.

There was also an interesting class action decision, Bancroft-Snell v Visa Canada Corporation, in which the court upheld the motion judge's decision to declare unenforceable as against the settlement funds or costs award, a fee splitting agreement between primary class counsel having carriage of the matter and competing class counsel who had agreed not to engage in a carriage fight in exchange for entering into the fee splitting arrangement. The court held that such side deals should be paid for out of class counsel's pocket as a cost of doing business.

Other topics covered included appeal routes in bankruptcy and corporate oppression matters, family law (striking pleading for failure to comply with disclosure orders and interpreting cohabitation agreements), will and estates (rectification of a will and property claims of common law spouse as against deceased spouse's estate), motions to strike pleadings for no cause of action (piercing corporate veil), medmal, property insurance, and wrongful dismissal.

Thank you to all the attendees and panelists at yesterday's CLE that I chaired at the OBA entitled "Top Appeals of 2015-6 from the Ontario Court of Appeal" for making it an interesting and enjoyable program.

As always, we welcome your comments and feedback. Please feel free to share this blog with anyone whom you think may be interested.

Have a nice weekend.

Court Of Appeal Summaries (November 28-December 2, 2016)

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