Top 5 Civil Appeals From The Court Of Appeal (December 2014)

1. Myers-Gordon v. Martin, 2014 ONCA 767 (MacFarland, LaForme and Lauwers JJ.A.), November 4, 2014

2. Hazelton Lanes Inc. v. 1707590 Ontario Limited, 2014 ONCA 793 (Sharpe, Simmons and Benotto JJ.A.), November 12, 2014

3. SA Horeca Financial Services v. Light, 2014 ONCA 811 (Weiler J.A. (In Chambers)), November 17, 2014

4. Terceira v. Labourers International Union of North America, 2014 ONCA 839 (Feldman, Blair and Pepall JJ.A.), November 26, 2014

5. Wilson v. Cranley, 2014 ONCA 844 (Laskin, Gillese and Pardu JJ.A.), November 27, 2014

1. Myers-Gordon v. Martin, 2014 ONCA 767 (MacFarland, LaForme and Lauwers JJ.A.), November 4, 2014 Randy Martin was driving his mother's SUV when he struck and killed two people and seriously injured two others. He pled guilty to charges including impaired driving causing death and bodily harm. He admitted that he did not have his mother's consent to drive her car at the time of the accident. Karen Martin corroborated Randy's admission. Presented with no evidence to the contrary, Kent J. granted Karen's motion for summary judgment and dismissed the action as against her. State Farm Mutual Automobile Insurance Company, one of the defendants in the action, appealed from that order. State Farm submitted that the motion judge applied the wrong test for implied consent, challenging his characterization of the test as subjective. Upon reviewing the evidence surrounding Randy's use of his mother's vehicle and assessing Randy's credibility, the motion judge concluded: "The test is subjective. It is what Randy believed at the time that is determinative." Citing the Supreme Court's decision in Palsky (Next friend of) v. Humphrey, [1964] S.C.R. 580, the appellant argued that the test is not purely subjective, but that there is an objective element to it as well. In Palsky, the Supreme Court restored the decision of the trial judge, who had concluded: It is my conception of the meaning of that statute that in dealing with the implied consent it means that one must approach the problem in a somewhat subjective fashion from the point of view of the person who was driving. That is to say whether in all of the circumstances the person, who was driving, would have been justified in deeming that he had implied consent to drive. State Farm submitted that the words "somewhat subjective fashion" and "under all the circumstances" import an objective element into the test, and that the motion judge erred in law in describing the test as subjective. The Court of Appeal disagreed, finding that the motion judge demonstrated that he considered all of the evidence, including those facts which supported a finding of implied consent. He concluded that, with Randy and Karen both stating that he did not have her consent to drive the vehicle on the night of the accident, the central issue was Randy's credibility. Nothing on the record challenged his credibility, or Karen's. The Court held that it was open to the motion judge to find that Karen had not given Randy consent to drive her car. State Farm also argued that the motion judge, who heard the motion before the Supreme Court released its decision in Hryniak v. Mauldin et al., [2014] S.C.C. 7, ought to have ordered a trial of an issue. The Court again disagreed, finding that although the motion judge relied on the more restrictive test which it outlined in Combined Air Mechanical Services Inc. v. Flesch, [2011] ONCA 764, he did not err in concluding that he could decide the issue of implied consent on a motion for summary judgment. The motion judge found that the case did not involve significant contentious facts. Karen relied on the evidence of three parties, all of whom had been examined for discovery, while the responding parties led none. The Court held that it was open to the motion judge to find that he could decide the issue of implied consent on a motion for summary judgment. The appeal was dismissed. 2. Hazelton Lanes Inc. v. 1707590 Ontario Limited, 2014 ONCA 793 (Sharpe, Simmons and Benotto JJ.A.), November 12, 2014 In this decision, the Court of Appeal considered whether the conduct of a judge during the trial of a commercial action gave rise to a reasonable apprehension of bias. The action arose from disputes between the appellants, John Faraci and 1707590 Ontario Limited, and the respondents, Stephen Chan and Hazelton Lanes Inc., over the Toronto shopping mall known as Hazelton Lanes. The trial judge did not decide this case on the merits. Rather, on day 36 of a trial that was originally estimated to last three days, he permitted the respondents to add several defendants and new causes of action, including fraud and conspiracy. He granted to the respondents an ex parte Mareva injunction against the appellants and the added parties, finding that they had all engaged in a fraudulent scheme to hide assets. The trial judge also ordered that the appellants comply within six business days with 19 directions which he had given to Faraci during his cross-examination. These directions required Faraci to obtain, produce and organize for inspection documents that had never previously been requested. The appellants produced many documents in accordance with the order; however, the trial judge found that they were in contempt of court for failing to comply fully with his 19 directions, and ordered that they post $35,000 as security for costs. When the appellants failed to comply with that order, the trial judge struck their statement of defence and counterclaim and granted partial default...