Lerners' Monthly Lists
December 2016
Top 5 Civil Appeals from the Court of Appeal
1. Van Galder v. Economical Mutual Insurance Company, 2016 ONCA 804 (Laskin, MacFarland and Roberts JJ.A), November 1, 2016
2. Hamilton v. Bluewater Recycling Association, 2016 ONCA 805 (Hoy A.C.J.O., Benotto and Huscroft JJ.A.), November 3, 2016
3. VanEvery v. VanEvery-Albert, 2016 ONCA 817 (Blair, Epstein and Huscroft JJ.A.), November 3, 2016
4. Bancroft-Snell v. Visa Canada Corporation, 2016 ONCA 896 (Cronk, Blair and Pardu JJ.A.), November 28, 2016
5. McLaughlin v. McLaughlin, 2016 ONCA 899 (Simmons, Pepall and Huscroft JJ.A.), November 28, 2016

1. Van Galder v. Economical Mutual Insurance Company, 2016 ONCA 804 (Laskin, MacFarland and Roberts JJ.A), November 1, 2016
At issue in this appeal was when interest starts to accrue on amounts owing to an insured person for statutory benefits under the SABS, and, specifically, when additional catastrophic attendant care and home maintenance benefits become overdue so that interest begins to accrue on those benefits. Interest payable in statutory accident benefits disputes is significantly higher than in other types of disputes, so the timing on when interest starts to be payable can result in vastly different exposures for an insurer.
The respondent, Anna Marie Van Galder, was badly injured in a motor vehicle accident in January 2004. Since the date of the accident, Van Galder has been unable to walk. She eventually required two amputations.
The appellant paid the respondent attendant care and housekeeping/home maintenance benefits for non-catastrophic cases until January 2006, 104 weeks following the accident. The insurer took the position that the respondent’s medical documentation and assessments did not indicate that she had sustained a catastrophic impairment within the meaning of the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996, O. Reg. 403/96 under the Insurance Act, R.S.O. 1990, c. I.8. The appellant further claimed that it had no obligation to continue paying these benefits because the respondent had not made an application within the 104 weeks following her accident for a determination as to whether she was catastrophically impaired.
Although Van Galder did not make an application for a catastrophic impairment determination within the 104 week period following her accident, she did make an initial application in February 2004 for statutory benefits within the statutory deadline and submitted to numerous assessments. Later, between 2007 and 2012, she made four applications for a determination that she had suffered a catastrophic impairment as a result of the accident.
Following the fourth such application, the appellant had its medical examiners evaluate the appellant’s injuries and, pursuant to their reports, accepted that the respondent had indeed suffered a catastrophic impairment within the meaning of the SABS. The insurer accordingly paid the respondent a lump sum for the additional attendant care benefits owing retroactive to August 2005 and for housekeeping/home maintenance benefits back to January 2006. It paid some interest on these amounts but refused to pay any interest from August 2005 on the attendant care benefits and from January 2006 on the housekeeping/home maintenance benefits, claiming that the additional amounts were not overdue absent a catastrophic injury application and determination, which did not occur until July 2013.
The application judge found that the respondent had suffered a catastrophic impairment at the time of her accident and held that it would be inequitable to deprive her of interest on the additional attendant care and housekeeping/home maintenance benefits. He accordingly ordered the appellant to pay interest in the amount of two percent per month, compounded monthly, on attendant care benefits from August 2005, and on housekeeping/home maintenance benefits from January 2006 to date.
The appellant’s appeal turned on the question of when the additional catastrophic attendant care and housekeeping/home maintenance benefits that were payable to the respondent became overdue so that interest began to accrue.
Writing for the Court of Appeal, Roberts J.A. noted that under the SABS, interest is payable on overdue amounts owing to an insured person, and that an amount payable in respect of a benefit is overdue if the insurer fails to pay the benefit within the time required.
The appellant argued that the additional payments were not due – and therefore not overdue – until the respondent made an application for a catastrophic impairment determination and the appellant made the determination, in accordance with its examiners’ assessment, that she was in fact catastrophically impaired. In Justice Robert’s view, this submission disregarded the application judge’s core finding that the respondent had been catastrophically impaired since the time of the accident. This finding meant that the appellant should have paid and continued to pay the respondent attendant care benefits and housekeeping/home maintenance benefits up to the catastrophic impairment ceiling and beyond the 104 week period.
Roberts J.A. noted that the appellant had the respondent’s initial application and assessments. That in good faith it failed to recognize earlier that the respondent was catastrophically impaired and should have received enhanced benefits did not change the fact that those benefits were owed and became overdue to the respondent from August 2005 for attendant care and January 2006 for housekeeping/home maintenance.
The appellant further argued that the application judge erred in his conclusion because the respondent was not in fact catastrophically impaired at the time of the accident, and her injuries did not deteriorate to the level of catastrophic impairment until she was assessed by its experts in 2013. Therefore, the respondent was not entitled to the enhanced level of catastrophic benefits and none were overdue until 2013 when the appellant made the determination that the respondent was catastrophically impaired.
Roberts J.A. noted that the argument was not raised before the application judge or set out as one of the enumerated grounds of appeal in the appellant’s Notice of Appeal. The Court determined in Shtaif v. Toronto International Publishing Co. Ltd., 2013 ONCA 405 that it should only receive an argument for the first time on appeal if it is persuaded that all of the facts necessary to address the point are before it as fully as if the issue had been raised at first instance, and that the party against whom the issue is raised will not be prejudiced by it. Justice Roberts held that the test was not satisfied.
Justice Roberts also rejected the appellant’s submission that the “grossly disproportionate” interest award was punitive and therefore prejudicial. Noting the compensatory nature of the SABS regime, Roberts J.A. explained that while payment does not become overdue until the insured has provided the required information in support of her claim, this does not require that the claim be established to the insurer’s or an arbitrator’s satisfaction. Only in cases where the insured acts in such a way as to prevent the insurer from assessing her entitlement will the accrual of interest be delayed. Roberts J.A. observed that there was no evidence that the respondent acted in such a manner as to prevent the appellant from assessing her entitlement to catastrophic impairment benefits.
The appeal was dismissed.
2. Hamilton v. Bluewater Recycling Association, 2016 ONCA 805 (Hoy A.C.J.O., Benotto and Huscroft JJ.A.), November 3, 2016
This case is yet another affirmation that the bar is set very high when attempting to overturn a jury verdict on appeal.
On the morning of August 11, 2010, Matthew Hamilton was driving his motorcycle in southwestern Ontario when he collided with a recycling truck. Tragically, he was rendered paraplegic. At the conclusion of a thirteen-day trial, a jury found Hamilton one hundred percent responsible for the injuries he sustained as a result of the accident. The trial judge granted judgment in accordance with this verdict.
In arriving at its conclusion that Hamilton was one hundred percent responsible for the accident, the jury found that a reasonably prudent motorist would not have decided to overtake the recycling truck as Hamilton had, and that a reasonably prudent motorist ought to have had enough control of his vehicle to navigate an unexpected situation and come to a complete stop if necessary.
The appellants, Hamilton and his spouse, submitted that the jury’s verdict was unreasonable because there was incontrovertible evidence that the driver of the recycling truck was negligent, breaching provisions of the Highway Traffic Act, R.S.O. 1990, c. H.8.
The Court of Appeal disagreed.
Citing the high threshold faced by a party attempting to overturn a jury verdict on the basis that it was unreasonable, the Court explained that the test is not whether a different conclusion could reasonably have been reached on the facts of the case, but rather whether the conclusion reached by the jury is so plainly unreasonable and unjust that no jury, reviewing the evidence as a whole and acting judicially, could have reached it.
The appellants did not challenge the trial judge’s instructions to the jury. The jurors were instructed that there was a heavy onus on the truck driver when making a left turn to ensure that his turn could be made safely, just as there was a heavy onus on Hamilton when overtaking and passing to ensure that he could pass the truck safely. The trial judge told the jury that if they were satisfied that the truck driver was negligent and that his negligence was a proximate cause of the accident, they could find in Hamilton’s favour.
In the Court’s view, the jury’s answers indicated that they deemed Hamilton “the author of his own misfortune” in deciding to pass the truck. This finding was open to the jurors. While another jury might have reached a different conclusion on the facts, it could not be said that no jury, reviewing the evidence as a whole and acting judicially, could have reached the decision that this jury did.
The Court also rejected the appellants’ submission that opinion evidence was improperly adduced by defence counsel during cross-examination of the appellants’ two expert witnesses. The appellants argued that these witnesses answered questions concerning their opinion as to the cause of the accident that were unrelated to their expertise and went directly to the ultimate issue for the jury. They submitted that there was a risk that the jury was overwhelmed by inadmissible opinion evidence.
The Court noted that there is no longer a general prohibition on the admission of expert evidence concerning the ultimate issue and that the failure to object to the admission of evidence at trial is not determinative on appeal. However, even if the evidence was wrongly admitted, it could not be said that its admission occasioned a substantial wrong or a miscarriage of justice.
The appeal was dismissed.
3. VanEvery v. VanEvery-Albert, 2016 ONCA 817 (Blair, Epstein and Huscroft JJ.A.), November 3, 2016
The trial judge awarded general damages in the amount of $100,000 and punitive damages in the amount of $75,000 to the respondents in a dispute arising out of the sale of a farm property on the Six Nations of the Grand River reserve. In this decision, the Court of Appeal considered whether these awards ought to be set aside.
In a brief endorsement, the Court noted that an award of punitive damages was neither pleaded by the respondents nor sought by their counsel in argument at trial. Moreover, the trial judge’s reasons provided no indication as to how or on what basis he arrived at the sum of $75,000, an amount that, in the Court’s view, was not justified in the circumstances.
With respect to the award of general damages, the Court observed that it appeared as though the trial judge awarded them for harassment and mental distress. The Court noted, however, that as with punitive damages, no claim for damages for mental distress was pleaded. In support of their claim for an order restraining the appellant from harassing them, the respondents relied on allegations that they experienced “anxiety and stressors”; however, they led no expert medical evidence to support a link between their experiences and the effects claimed.
In the Court’s view, the trial judge mischaracterized the basis for the respondents’ claim. The respondents sought to support the general damage award on the basis of the value of the chattels removed from the farm by the appellant but they made no claim for damages for conversion of the chattels. The Court observed that the trial judge was upset about the appellant’s conduct toward the respondents, and found that his damage award – which was based on the appellant’s alleged harassment of the respondents and not the removal of chattels – reflected that view.
The Court noted that the only pleaded claim that might apply was a claim for damages of $40,000 – considerably less than the damages awarded – for loss of use and enjoyment of the lands and premises. However, the Court found that the conduct alleged did not pertain to the type of claim which relates to a proprietary interest in title.
The Court agreed with the appellant that the trial judge’s reasons did not permit an effective review of the damage claim: they did not reveal how or why he arrived at his findings against the appellant, or how or why he arrived at his calculation of the quantum of damages.
The Court concluded that both awards must be set aside. The appeal was allowed.
4. Bancroft-Snell v. Visa Canada Corporation, 2016 ONCA 896 (Cronk, Blair and Pardu JJ.A.), November 28, 2016
In this decision the Court of Appeal affirmed the broad discretion afforded to the court when approving (or rejecting) a proposed fee to class action counsel in a class proceeding under Ontario’s Class Proceedings Act, 1992, S.O. 1992, c. 6. It also demonstrates the ability and willingness of the court to reject fee sharing arrangements reached by competing law firms, at least in terms of having such payments made from the settlement proceeds.
Class Counsel entered into a Fee Sharing Agreement with the Merchant Law Group in settlement of a carriage dispute involving competing multi-jurisdictional class proceedings launched across Canada. The agreement provided that the Merchant Law Group was to receive up to an $800,000 share of the fees recovered by Class Counsel from the proceedings, in exchange for agreeing to stay its rival proceedings in two provinces.
When asked to approve Class Counsel’s fees in conjunction with a subsequent motion to approve a partial settlement of the actions in all jurisdictions, Perell J. reduced the requested fees of approximately $3.4 million by ten percent to reflect his negative view of and refusal to approve the Fee Sharing Agreement. He also declared the agreement unenforceable and ordered that Class Counsel not pay the Merchant Law Group “any sums from the settlement proceeds or from any other source now or in the future … on account of the Fee Sharing Agreement”.
Class Counsel and the Merchant Law Group sought to set aside this disposition.
The central issue on appeal was whether – and to what extent – the motion judge was entitled to take into account and otherwise deal with the Fee Sharing Agreement in the course of determining the quantum of fees that was fair and reasonable for the class members to pay and for Class Counsel to receive as a result of the settlements.
Writing for the Court of Appeal, Justice Blair held that the court did have authority pursuant to s. 32 of the Class Proceedings Act, 1992, and, alternatively, under s. 12, to review the Fee Sharing Agreement and its effect, and to grant relief accordingly. He also noted that whether or not to give effect to the Fee Sharing Agreement in the context of the fee approval process, and in conjunction with the settlement approval process, and on what terms, was a matter of discretion.
The motion judge was held to be entitled to “considerable deference” in the exercise of that discretion.
In Justice Blair’s view, the motion judge did not err in exercising his discretion to reduce Class Counsel’s fees and order that no payments be made to the Merchant Law Group out of the fees approved or the settlement funds. The ten percent reduction reflected his view of legal services that were not earned, and was well within his discretion. Nor did he err in holding that the Fee Sharing Agreement was unenforceable insofar as it obliged Class Counsel to make the shared fee payment out of the fees it recovered in the class proceedings.
Blair J.A. found that the motion judge did err, however, in ordering that the agreement was otherwise unenforceable as between the parties and in prohibiting Class Counsel from making any payments pursuant to it from “any other source” whatsoever. If competing class counsel wish to enter into an agreement respecting fees as a way to persuade one or the other to back away from pursing the action, they should pay the fees out of their own pockets as part of their variable costs of doing business and not expect that the counsel walking away will have direct access to payment out of the contingency fee. To hold otherwise would defeat the purpose of attempting to discourage competing actions that provide little or no benefit to class members.
The Court accordingly upheld Perell J.’s decision to reduce Class Counsel’s fees by ten percent and that part of the order enjoining Class Counsel from paying any sums to the Merchant Law Group from the settlement funds or the fees approved in relation to the settlements. However, it set aside the part of the order declaring the Fee Sharing Agreement otherwise unenforceable and prohibiting Class Counsel from making payment on account of the Fee Sharing Agreement from “any other source”.
5. McLaughlin v. McLaughlin, 2016 ONCA 899 (Simmons, Pepall and Huscroft JJ.A.), November 28, 2016
Elizabeth Anne McLaughlin died on April 23, 2012. Two years prior to her death, she executed a primary and secondary will, the latter dealing with her house and the former with the balance of her estate.

Unfortunately, the secondary will contained some errors: it included a revocation clause revoking all other wills, including the primary will; it repeated specific bequests contained in the primary will; and it did not contain a disposition of the residue of the estate such that an intestacy would be created.
Lemon J. of the Superior Court of Justice made an order rectifying McLaughlin’s secondary will nunc pro tunc such that the revocation clause was amended to exclude the primary will from its operation, the duplicated bequests were deleted, and the intended residue clause was included. He was satisfied that McLaughlin had not read the will when she signed it but that the rectified will corresponded with the instructions she gave to her long-time solicitor.
Justice Lemon’s order was not appealed.
On a subsequent application to remove an objection to the appointment of an estate trustee for the primary will, however, Justice Price undertook on an examination of the validity of the secondary will, and concluded that it was invalid based on Justice Lemon’s finding that the testatrix did not read it or have knowledge of or approve of its contents.
In a brief endorsement, the Court of Appeal held that Justice Price’s ruling could not stand.

The Court found that it was implicit in Lemon J.’s order for rectification of the secondary will that he had determined that the will was indeed valid. The application judge’s decision undermined that of Lemon J., disregarded both Lemon J.’s and his own findings of McLaughlin’s intentions, and improperly created an intestacy where the evidence supported an opposite conclusion. The Court also noted that Lemon J.’s decision to rectify the secondary will was premised on his finding that McLaughlin had not read it, and emphasized that that finding could not then be used to conclude that the secondary will as rectified was invalid.

The application judge also ordered a mini-trial to address proof of the primary will in solemn form. In light of the fact that no one challenged McLaughlin’s capacity before Justice Lemon and his finding of the absence of suspicious circumstances, the Court questioned the need for further proceedings.
The Court allowed the appeal and substituted the application judge’s order with one declaring the secondary will valid.

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