Top 5 Civil Appeals From The Court Of Appeal (January 2012)

Brisco Estate v. Canadian Premier Life Insurance Company, 2012 ONCA 854 (Rosenberg, Goudge and Feldman JJ.A.), December 5, 2012 St. Mary's Cement Inc. (Canada) v. Clarington (Municipality), 2012 ONCA 884 (Winkler C.J.O., Pepall J.A. and Smith J. (ad hoc)), December 17, 2012 Trang v. Nguyen, 2012 ONCA 885 (Simmons, Juriansz and Epstein JJ.A.), December 17, 2012 Dembeck v. Wright, 2012 ONCA 852 (Gillese, Rouleau and Epstein JJ.A.), December 4, 2012 The Canada Trust Company v. Browne, 2012 ONCA 862 (Feldman, Simmons and Cronk JJ.A.), December 7, 2012 1. Brisco Estate v. Canadian Premier Life Insurance Company, 2012 ONCA 854 (Rosenberg, Goudge and Feldman JJ.A.), December 5, 2012 In this appeal, the Court considered the admissibility and possible use of hearsay evidence - in this case, the evidence of the deceased - in an action by beneficiaries of a life insurance policy against the insurance company. Brisco died in January 2004 in an airplane crash, triggering the $1,000,000 insurance benefits for common carrier fatal accidents. At the time of his death, he held a number of insurance policies. The appellant, Canadian Premier Life Insurance Company, had insured the deceased under a group accident insurance policy but claimed that Brisco had cancelled that policy. The respondent beneficiaries of Brisco's estate submitted that the appellant cancelled the policy in error and that the deceased had intended to cancel a different policy. The respondents' claim rested on statements made by the deceased over the course of several years with respect to his insurance. At trial, Justice Tausendfreund admitted these statements under the state of mind exception to the hearsay rule. Rosenberg J.A. of the Court of Appeal agreed with the appellant that the trial judge erred in relying on the state of mind exception. The statements made by the deceased in 2003 -that he owned two million-dollar insurance policies— may demonstrate his state of mind at that time, but his state of mind in 2003 was not at issue. What was at issue were acts taken by the deceased in 1998, when the appellant claims that the policy was cancelled. The deceased's state of mind when he made the impugned statements was therefore only relevant to determining past acts, an inference prohibited under the leading state of mind exception cases R. v. Smith, [1992] 2 S.C.R. 915 and R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144. In both of those cases, the Supreme Court adopted Justice Doherty's statement in R. v. P. (R.) (1990), 58 C.C.C. (3d) 334 (Ont. H.C.) that hearsay evidence is "not admissible to establish that past acts or events referred to in the utterances occurred." Rosenberg J.A. did find, however, that the deceased's statements were admissible under the principled approach to hearsay. Citing R. v. Khelawan, 2006 SCC 57, [2006] 2 S.C.R. 787, which established that hearsay evidence may be admitted "if sufficient indicia of necessity and reliability are established," Rosenberg J.A. explained that threshold reliability in this case rested on demonstrating that, in the context in which the statements were made, there was no real concern about whether or not they were true. Considering the circumstances in which Brisco's comments were made along with the confirmatory evidence, Rosenberg J.A. held that the statements met sufficient threshold reliability to warrant admissibility. The Court further rejected the appellant's argument that the trial judge erred in holding that s. 13 of the Evidence Act was not applicable and that, regardless, there was evidence to satisfy the corroboration requirement. Considering the words "heirs, next of kin, executors, administrators or assigns of a deceased person" in the provision, Rosenberg J.A. concluded that s. 13 is limited to circumstances in which the interested party claims under one of the enumerated categories and not simply because he or she happens to fall within one of them. In this case, the Brisco children did not claim as next of kin but under a contractual right as beneficiaries of the insurance policy. Because the provision did not apply to the Brisco children, there was no need for corroboration of their evidence. Regardless, Rosenberg J.A. opined that the same evidence which rendered the deceased's statements admissible under the principled approach to hearsay was capable of satisfying the corroboration requirement in s. 13. A cumulative consideration of the evidence could corroborate that of the Brisco children and of the executor of the estate. The appeal was dismissed. 2. St. Mary's Cement Inc. (Canada) v. Clarington (Municipality), 2012 ONCA 884 (Winkler C.J.O., Pepall J.A. and Smith J. (ad hoc)), December 17, 2012 In this case, the Court of Appeal considered whether substituting alternative fuel for part of the conventional fossil fuel used in a cement manufacturing plant constituted a permissible change in land use under a municipal zoning by-law. St. Mary's Cement Inc. (Canada) ("SMC") operates a...