Appellate lawyer, Carolyn Brandow provides a summary of Lerners' Top 5 Ontario civil appeals decisions from April, 2013.
Stevens v. Stevens - This case dealt with the validity of a marriage contract entered into during a reconciliation attempt. The letter sending the contract said one thing and the contract said another. The respondent argued that there was no meeting of the minds and sought rectification at trial as an alternative position. The appellant had resisted rectification at trial, but then sought it on appeal. The Court of Appeal refuses to grant rectification with some interesting commentary on rectification and when it can be sought.
Amyotrophic Lateral Sclerosis Society of Essex v. Windsor (City) - In this decision, the Court of Appeal considered whether it was an error by the Divisional Court to refuse to award costs of an appeal in two class action proceedings when the appellants had succeeded on the substantive issue they had appealed. The Divisional Court had sent other substantive issues to the motions judge and also sent the costs of the appeal to the motions judge. The nature of an appeal as a separate and distinct step, the costs of which should generally be determined by the court hearing the appeal is emphasized in the decision of the Court of Appeal.
Amato v. Welsh - In this case, the Court of Appeal considered the common law doctrine of absolute privilege in an appeal from a motion seeking to strike out paragraphs of a statement of claim. The Court of Appeal reviews in detail the history and current status of absolute privilege, from its roots in protecting against defamation claims to instances in other jurisdictions where it has been used to support lawyers' immunity. The Court of Appeal commented that the outcome of a competition between the principles of absolute privilege and a lawyer's duty of loyalty is "far from certain" in Ontario and dismissed the appeal, thereby allowing the claims to proceed to trial.
Orfus Estate v. The Samuel and Bessie Orfus Family Foundation -- The Court of Appeal considered whether a grant of summary judgment in an estate litigation matter was appropriate in this case. Two sisters were fighting over the estate of their mother. One sister had been estranged from the mother for some time and argued that the issue of whether her mother had testamentary capacity and knew and approved of the contents of her wills and a codicil should be determined at a trial, not on a motion. Credibility was raised by the appellant, but rejected by the Court of Appeal as being a genuine issue. Summary judgment was found to be an appropriate manner to dispose the issues and the motions judge's decision was upheld.
Goodwin v. Olupona - In this decision, the deference to jury verdicts underscores the dismissal of this appeal of a medical malpractice action. The jury's conclusions were given significant deference by the Court of Appeal.
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