Appellate lawyer, Cynthia Kuehl provides a summary of Lerners' Top 5 Ontario civil appeals decisions from February, 2013.

1043 Bloor Inc. v. 1714104 Ontario Inc. -- This case turned on the requirements for a prescriptive easement and whether or not the appellant could have an easement over a laneway he used to get to his parking spot. The Court denied the easement, noting that a request for permission to use the laneway in 1987 was inconsistent with the test for a prescriptive easement (requirement is of use of land for 20 years under "a the claim of right"). Only 16 years then passed before the property moved into Land Titles. The declaration of an easement was denied.

Blue Mountain Resorts Limited v. Ontario (Labour) -- In this case, a resort guest drowned in a swimming pool that was unattended. The main question here was if Blue Mountain had an obligation to report injury the death under the Occupational Health and Safety Act because it was a workplace? The Court of Appeal said no, stating that there must be a the reasonable nexus between the hazard that caused injury and the worker's safety.

Lavier v. MyTravel Canada Holidays Inc. -- in assessing what is fair and reasonable for a class counsel fee, regard should be had to the take-up rate of the settlement and not the overall settlement to the class

Martin v. ConCreate USL Limited Partnership- Martin had a restrictive covenant in his employment contract that precluded him from soliciting or competing with his competition for 2 years after the disposition of his minority interest- but he couldn't dispose the minority interest without the approval of US general parent, the respondent and/or lenders. The Court of Appeal agreed with Martin that this was unreasonable because he could not control whether he would get the third party approval or get it promptly. The duration of the covenant could not be determined.

Moreira v. Ontario Lottery and Gaming Corporation --A group of gamblers who had lost 2.1 million at Fallsview Casino argued that the "floating ball rule" (which allowed a roulette dealer to call a no-spin and void all wagers) was not approved by the Alcohol and Gaming Commission of Ontario. As such, the gambling was not exempt from the provisions of the Criminal Code. The Court of Appeal disagreed, holding floating ball rule is a practice that did not need to approved as it does not go to the fairness or integrity of the game.

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