Appellate lawyer, Jasmine Akbarali provides a summary of Lerners' Top 5 Ontario civil appeals decisions from March, 2013.

  1. Cavanaugh v. Grenville Christian College ----- This was a proposed class action against the College, two former headmasters and the Diocese, relating to alleged abuse suffered by students at the College. The motion judge dismissed the action against the Diocese outright, and declined to certify the action against the other defendants. The Court of Appeal agreed with motion judge with respect to the claim against the Diocese. It found that whether a duty of care arose depended on the unique relationship between the Diocese, the priests and those affected by their conduct. In this case, the pleadings did not disclose significant proximity to find a duty of care so the claim was properly dismissed. The appeal from the decision not to certify the action against the remaining defendants was returned to the Divisional Court as it was decided that it should be heard by those experienced in managing class proceedings.
  2. Sam's Auto Wrecking Co. Ltd. (Wentworth Metal) v. Lombard General Insurance Company of Canada ----- This case concerned the operation of an "employee injury exclusion" clause and specifically, whether it operated to insulate the insurer from liability from having to contribute to a settlement made in respect of an employee workplace injury claim made by an executive. The Court of Appeal found that the executive was both, an executive and employee, and therefore could be covered by the exclusionary clause. It then turned to interpretation of the clause, which had to be narrowly construed. However, the clause was unambiguous and ousted liability on the part of the insurer.
  3. Lipson v. Cassels Brock & Blackwell LLP ---- This was a proposed class action where the defendant law firm was alleged to have been negligent in connection with opinions it gave with respect to a Timeshare Tax Reduction Program. The issue was whether the claim was statute barred and whether causation should have been certified as a common issue. The Court of Appeal found that the action was not statute barred. There had been test litigation around the Timeshare Tax Reduction Program, which was not settled until 2008, and it was at that time the limitation period would begin to run. The Court of Appeal also found that causation should be certified as a common issue in the class action.
  4. 1654776 Ontario Limited v. Stewart ----- This case concerned the protection of a journalist's confidential sources. The Numbered Company was seeking a Norwich Order in connection with a potential securities fraud claim in which it had allegedly suffered losses. The motion judge declined to make the Norwich Order. The Court of Appeal noted that the Wigmore test was engaged. It decided that it was in the public interest that the journalist source privilege be protected, thereby upholding the motion judge's order.
  5. Keewatin v. Ontario (Natural Resources) ----- This case concerned a treaty entered into between the Crown and the Ojibway, which included a "harvesting clause". Pursuant to this clause, the Ojibway were entitled to hunt and fish on the subject lands, subject to the Crown's right to take up the land for certain purposes. Ontario issued a forestry license in respect of these lands. The question was whether Ontario needed the permission or consent of Canada in order to take up the lands pursuant to the harvesting clause. The Court of Appeal concluded that the parties to thetreaty were the Ojibway and the Crown, not any level of government. The Crown's covenants had to be interpreted within the framework of the division of powers. As a result, Ontario did not need Canada's permission to take up the lands.

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