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. Markham (City) v. AIG Insurance Company of Canada

In Markham (City) v. AIG Insurance Company of Canada (Ont CA, 2020) the Court of Appeal addressed an interesting case where two insurers where both involved in a municipality's liability for a hockey accident. The case involved respective issues of duty to defend and to instruct counsel and required the court to exercise it's rarely used power on appeals to structure the order:
[114] However, if AIG is to retain its right to participate in the defence, a few additional terms are warranted. This court imposes these additional obligations in accordance with AIG’s acknowledgment of the “balanced screen” approach set out in PCL Constructors Canada and its powers under the Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 134(1)(a) as follows:
a) The terms of this proposal must be provided in writing to those involved in managing the defence;

b) Counsel appointed would be instructed to fully and promptly inform the City and Lloyd’s of all steps taken in the defence of the litigation against the City such that each would be in a position to monitor the defence effectively and address any concerns;

c) Defence counsel must have no discussion about the case with either coverage counsel; and

d) Counsel must provide identical and concurrent reports to the insured and both insurers regarding the defence of the main action.
UPS Supply Chain Solutions, Inc. v. Airon HVAC Service Ltd., 2015 ONSC 3104, 49 C.C.L.I. (5th) 201, at para. 31; PCL Constructors Canada, at para. 93.

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. R v Chanmany

In R v Chanmany (Ont CA, 2016) the Court of Appeal discusses the treatment of an 'uneven scrutiny' argument on appeal, being the argument that the trial judge was unbalanced in their treatment of the respective parties' evidence at trial:
[26] We begin with an observation repeatedly made in the jurisprudence of this court. This “uneven scrutiny” argument is one that is difficult to make successfully: R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at paras. 58-59. It is difficult because credibility findings are the province of the trial judge and attract a very high degree of deference on appeal. And it is difficult because appellate courts view this argument with scepticism, regarding it as little more than a thinly-veneered invitation to reassess on appeal the credibility determinations made at trial: R. v. Aird, 2013 ONCA 447 (CanLII), 307 O.A.C. 183, at para. 39.

[27] An appellant who advances an “uneven scrutiny” argument must do more than show that a different trial judge could have assessed credibility differently. Nor is it sufficient to demonstrate that the trial judge failed to say something he or she could have said in assessing the credibility of the witnesses who gave different accounts of various events. Equally inadequate is the submission that the trial judge failed to expressly articulate legal principles relevant to the credibility assessment: Howe, at para. 59.

[28] Appellate success on an argument of uneven scrutiny is achieved only by those who can point to something in the trial judge’s reasons, or elsewhere on the record, that demonstrate that the trial judge had applied different standards in assessing the competing versions: Howe, at para. 59.


On the issue of judicial speculation respecting facts, the court also stated:
[45] First, the distinction between inference and speculation. An inference is a deduction of fact that may logically and reasonably be drawn from
another fact or group of facts found or otherwise established at trial. There cannot be an inference without objective facts from which to infer the fact or facts a party seeks to establish. On the other hand, speculation involves theorizing in the absence of evidentiary support. Speculation occurs when a conclusion is reached in the absence of positive, proven, objective facts from which an inference may be drawn.

[46] Second, without more, judicial speculation, like misapprehension of the evidence, does not mandate appellate correction. The speculation, like a misapprehension, must relate to material parts of the evidence and the error must play an essential part in the reasoning process leading to a finding of guilt: see, for example, R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 541; R. v. Lohrer, 2004 SCC 80 (CanLII), [2004] 3 S.C.R. 732, at paras. 1-2.


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To appeals:
197
Evidence - Fresh Evidence

  • Mehedi v. 2057161 Ontario Inc. (Job Success) (Ont CA, 2014)

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    Evidence - Fresh Evidence on Appeal

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    . R. v. Chaly

    In R. v. Chaly (Ont CA, 2020) the Court of Appeal set out briefly the test for leave to appeal to itself:
    [4] This is not an appropriate case for leave to appeal, since there are no questions of law raised that have significance to the administration of justice and no clear errors were committed.


    --------------- appeal of order, not of reasons

    . Amphenol Canada Corp. v. Sundaram

    In Amphenol Canada Corp. v. Sundaram (Ont CA, 2019) the Court of Appeal commented as follows on the distinction between interlocutory and final orders:
    [21] Moreover, the law is clear that an appeal lies from the order, not the reasons for granting the order: Grand River Enterprises v. Burnham (2005), 2005 CanLII 6368 (ON CA), 197 O.A.C. 168 (C.A.), at para. 10. As such, the appeal is not from the reasons of Faieta J., in which he held that he accepted there was a prima facie case of fraud.


    -------------- Appeals Jurisdiction

    . Wright v. Strauss
    In Wright v. Strauss (Ont CA, 2019) the Court of Appeal


    -------------- Appeal
    . Bernard Property Maintenance v. Taylor
    In Bernard Property Maintenance v. Taylor (Ont CA, 2019) the Court of Appeal ...


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    . Ting (Re)

    In Ting (Re) (Ont CA, 2019) the Court of Appeal set out the test for staying it's own judgment pending an application for leave to appeal to the Supreme Court of Canada:
    [15] The test for granting a stay pending an application for leave to appeal to the Supreme Court of Canada is well-established. The moving party must demonstrate that: (i) there is a serious issue to be adjudicated on its proposed appeal, including that the appeal raises an issue of public or national importance; (ii) it will suffer irreparable harm if the stay is not granted; and (iii) the balance of convenience favours granting the stay. These three components are interrelated in that the overriding question is whether the moving party has shown that it is in the interests of justice that the court grant a stay: Iroquois Falls Power Corporation v. Ontario Electricity Financial Corporation, 2016 ONCA 616 (CanLII), at paras. 14 and 15; Livent Inc. v. Deloitte & Touche, 2016 ONCA 395 (CanLII), 131 O.R. (3d) 784, at para. 7.


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    . Lee v. Lalu Canada Inc

    In Lee v. Lalu Canada Inc (Ont CA, 2019) the Court of Appeal states once again on the distinction between final and interlocutory orders:
    [3] In order for an order to be a final order for the purpose of appellate jurisdiction that order “must deal with the substantive merits as opposed to mere procedural rights, no matter how important the procedural rights may be”, see Sun Life Assurance Co. v. York Ridge Developments Ltd. (1998), 1998 CanLII 4519 (ON CA), 116 O.A.C. 103 at para. 13.

    ----------------

    --------------

    In Hamill Re (Ont CA, 2019) the Court of Appeal articulated the criteria for the hearing of an appeal despite the death of the appellant:
    [5] It is well-settled that, as a general rule, an appeal abates with the death of the appellant. Despite this general rule, an appellate court retains jurisdiction to proceed to hear the appeal if the court considers it in the interests of justice to do so. It is a discretion which should be sparingly exercised: R. v. Smith, 2004 SCC 14 (CanLII), [2004] 1 S.C.R. 385, at paras. 11 and 20.

    [6] To determine whether there are special circumstances that make it in the interests of justice to proceed to hear and determine an appeal despite the death of an appellant, an appellate court must consider all the circumstances. Among, but not dispositive of the factors relevant for consideration are these:

    i. the presence of a proper adversarial context;

    ii. the strength of the grounds of appeal;

    iii. the existence of special circumstances that transcend the death of the individual appellant, such as a legal issue of general public importance, a systemic issue related to the administration of justice or collateral consequences to the deceased’s family, other interested persons or the public;

    iv. the expenditure of limited judicial resources; and

    v. the likelihood that continuing the appeal would go beyond the judicial function of resolving concrete disputes and involve the court in freestanding legislative-type pronouncements more appropriately the role of the legislative branch.

    See Smith, at para. 15.

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    In Lafontaine v. Grant (Ont CA, 2019) the Court of Appeal enumerates the four criteria for extending time to appeal:
    [2] The test applicable on a motion to extend the time to appeal is set out in Reid v. College of Chiropractors of Ontario, 2016 ONCA 779 (CanLII), at para. 14. The governing principle is whether the “justice of the case” requires that an extension be given. To that end, courts consider four factors, as applied to the circumstances of the case, together with the overall interests of justice.

    ------------

    [3] In the present case, there is no dispute that Mr. LaFontaine formed the intention to seek leave to appeal within the prescribed period of time and has a reasonable explanation for his delay. Prejudice is not a factor. The factor in contention is the merits of Mr. LaFontaine’s motion for leave to appeal.


    In R. v. M.C. (Ont CA, 2019) the Court of Appeal .... [para 61-63] ... appeals


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    In Donovan v. Sherman Estate (Ont CA, 2019) the Court of Appeal considered granting a stay of it's order pending a party filing a motion for leave to appeal before the Supreme Court of Canada:
    [8] The test on a motion for a stay of an order of this court pending an application for leave to appeal to the Supreme Court of Canada, was set out by Strathy C.J.O. in Livent Inc. v. Deloitte & Touche, 2016 ONCA 395 (CanLII), 131 O.R. (3d) 784 (in Chambers), at paras. 4-5. The factors to be considered are: (1) whether there is a serious question to be determined; (2) whether the moving party will suffer irreparable harm if the stay is not granted; and (3) whether the balance of convenience favours a stay. The factors are not to be treated as watertight compartments and the strength of one factor may compensate for weaknesses of another. The overarching consideration is whether the interests of justice call for a stay. See also BTR Global Opportunity Trading Limited v. RBC Dexia Investor Services Trust, 2011 ONCA 620 (CanLII), 283 O.A.C. 321 (in Chambers), at para. 16.


    -------------------

    In V Hazelton Limited v. Perfect Smile Dental Inc. (Ont CA, 2019) the Court of Appeal held that it did have jurisdiction to here an appeal case where jurisdiction over multiple issues was split:
    (i) Jurisdiction of this Court

    [20] Perfect Smile raised a threshold issue about this court’s jurisdiction to hear the appeal. It submitted that where a judge grants or refuses a writ of possession over leased premises, any appeal lies to the Divisional Court, pursuant to s. 78 (1) of the CTA, which provides:
    78. (1) An appeal lies to the Divisional Court from the order of the judge granting or refusing a writ of possession.
    [21] During oral argument this jurisdictional objection was dismissed with reasons to follow. It may be dealt with summarily.

    [22] The application judge refused an order for delivery of vacant possession, which is arguably captured by this section. However, he also refused declaratory relief and declined to order that an arbitrator be appointed. These aspects of the decision are beyond the ambit of s. 78.

    [23] Pursuant to s. 6(2) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, this court retains the discretion to combine and hear all the issues raised on this appeal. I would exercise that discretion, given the interconnected nature of the issues and the resultant risk of inconsistent judgments.


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    Appeals - Credibility - Standard of Review

    R v J.E. (Ont CA, 2018)

    Appeals - Appeal of Order Not Reasons

    Brunning v. Canada (Attorney General) (Ont CA, 2018)

    Appeals - Grounds - Failure to Make Findings of Credibility

    Appeal - Misapprehension of Evidence

    Appeals - Misapprehension of Evidence

    Appeals - Divisional Court - Monetary Limit

    Appeals - New Issues on Appeal

    Appeals - Misapprehension of Evidence

    Appeals - Stay Pending Appeal

    Appeals - Practice - Order Below Must be Taken Out

    Appeals - Practice - Appeal is of Order, not Reasons

    Appeals - Grounds - Objections at Trial

    Appeals - Extending Timeline to Commence

    Appeals - Final versus Interlocutory Orders

    Appeals - Conflict in Statutory Appeal Route

    Appeals - Dismissal for Delay



    Appeals - Jury Finding - Set Aside

    Appeals - New Issues

    Appeals - Final versus Interlocutory Orders

    Appeals - Standard of Review



    Appeals - Formal Orders - When Necessary on Motions

    Appeals - Re-Opening

    Appeals - Standard of Review - Fact-findings

    Appeals - New Legal Arguments on Appeal

    Appeals - Standard of Review - Contractual Interpretation - Standard Form Contracts

    Appeals - Fact-findings

    Appeals - Stay Pending

    Appeals - Final or Interlocutory Orders

    Appeals - Stay Pending Appeal

    Appeals - Grounds - Inadequate Reasons

    Appeals - Fresh Evidence

    Appeals - Grounds - Fact-finding Error

    Appeals - Misapprehension of Evidence

    Appeals - Automatic Stay - Lifting

    Appeals - Grounds - Inadequate Reasons



    Appeals - Stay Pending

    Appeals - Security for Costs - Where Appeal is Frivolous and Vexatious

    Appeals - Leave to Appeal - Extension of Time

    Appeals - Stay Pending Appeal

    Appeals - Extension of Time to Commence

    Appeals - Grounds - Misapprehension of Evidence

    Appeals - Interlocutory v Final Orders

    Appeals - Are From Order not from Reasons

    Appeals - Where Orders Breached

    Appeals - Leave to Appeal to Supreme Court of Canada - Stay Pending

    Appeals - Fresh Evidence

    Appeals - Raising Fresh Legal Issues in Appeal

    Appeals - Standard of Review - Dunsmuir

    Appeals - Final versus Interlocutory - Jurisdiction Where Appeal Combines Both

    Appeals - Stay Pending

    Appeals - Re-opening

    Appeal - Natural Justice

    Appeals - Standard of Review - Negligence

    Appeals - Contracts - Standard of Review


    Appeals - Stay
    Thunder Bay (City) v. Canadian National Railway Company (Ont CA, 2018)



    Appeals - Written Hearing Below

    THMR Development Inc. v. 1440254 Ontario Ltd. (Ont CA, 2018)



    ------------------ Appeals

    - an extensive consideration of case law bearing on the issue of whether a reference in statutes to 'decisions' and their appealability, applied to final decisions or included interlocutory [it didn't]: Sazant v. R.M. and C.I.C.B., 2010 ONSC 4273 (CanLII)

    -------------------------- Appeals

    Setia v. Appleby College, 2013 ONCA 753 (CanLII)

    - Quashing an Appeal: [40] Relying on this court’s decision in Schmidt v. Toronto-Dominion Bank (1995), 1995 CanLII 3502 (ON CA), 24 O.R. (3d) 1, the Society argues that the threshold for the granting of an order quashing an appeal is high and that the demonstration of even a minimal level of merit to an appeal will defeat a motion to quash where it is alleged that the proposed appeal lacks merit. I agree.

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