Top 5 Civil Appeals from the Court of Appeal (December 2012)

1. Martin v. Fleming, 2012 ONCA 750 (Sharpe, Rouleau and Hoy JJ.A.), November 6, 2012 2. Locking v. Armtec Infrastructure Inc., 2012 ONCA 774 (Armstrong, Watt and Pepall JJ.A.), November 14, 2012 3. AIM Health Group Inc. v. 40 Finchgate Limited Partnership, 2012 ONCA 795 (Feldman, Gillese and Epstein JJ.A.), November 20, 2012 4. Sino-Forest Corporation (Re), 2012 ONCA 816 (Goudge, Hoy and Pepall JJ.A.), November 23, 2012 5. Treat America Limited v. Leonidas, 2012 ONCA 748 (Goudge, Feldman and Blair JJ.A.), November 27, 2012

1. Martin v. Fleming, 2012 ONCA 750 (Sharpe, Rouleau and Hoy JJ.A.), November 6, 2012

   In this brief endorsement, the Court of Appeal settled the long standing debate as to whether a plaintiff who is injured in successive automobile accidents is subject to an individual deductible for each accident.

   The appeal turned on the interpretation of s. 267.5(7) of the Insurance Act, which specifies certain amounts to be deducted from non-pecuniary damages awards for bodily injury or death arising directly or indirectly from the use or operation of an automobile. On a Rule 21 motion, Justice Herman of the Superior Court held that where a plaintiff has been involved in two accidents and the actions are tried together to facilitate the assessment of damages, the plaintiff is subject to one deductible for each claim.

   The Court dismissed the appeal, agreeing with the motion judge that the application of individual deductibles to each accident is consistent with the wording of the provision. The Court of Appeal held that the wording of s. 267.5(7) is unambiguous: an individual deductible must be applied to the portion of the damages arising from each accident.

   The Court also upheld the motion judge's finding that the court is to determine the amount of general damages in an action by first determining the general damages in that action and then reducing that amount in accordance with the statutory deductible.

2. Locking v. Armtec Infrastructure Inc., 2012 ONCA 774 (Armstrong, Watt and Pepall JJ.A.), November 14, 2012

   This decision addresses the appropriate appeal route for appeal of a carriage order made under the Class Proceedings Act, 1992.

   Locking, represented by Siskinds LLP, commenced proceedings against Armtec Infrastructure Inc. under the Class Proceedings Act, 1992. So, however, did three other plaintiffs represented by Sutts, Strosberg LLP. On January 20, 2012, Justice Thomas of the Superior Court granted carriage of the class action to the plaintiffs represented by Sutts, Strosberg LLP, ordering that Locking's action be stayed. Locking appealed to the Court of Appeal.

   The Court declined to hear Locking's appeal, holding that it did not have jurisdiction and that the appeal lay to the Divisional Court with leave.

   The Court explained in its brief reasons that the majority of appeals under the Class Proceedings Act, 1992 are to the Divisional Court. Rights of appeal to the Court of Appeal, as set out in s. 30(3) of the Act, exist only in rare cases, such as appeals from a judgment on common issues or a final order that deals with an assessment of monetary relief.

   Where the Class Proceedings Act, 1992 is silent, the Courts of Justice Act governs the appeal route and, pursuant to s. 6(1)(b) of that Act, an appeal lies to the Court of Appeal only from a final order of a judge of the Superior Court, except an order referred to in section 19(1)(a) or an order from which an appeal lies to the Divisional Court under other legislation.

   Carriage orders are not specifically addressed in the Class Proceedings Act, 1992; therefore, the Courts of Justice Act applies and the appropriate appeal route then becomes a matter of determining whether the order below was final or interlocutory.

   Citing the decision in Hendrickson v. Kallio, [1932] O.R. 675 (C.A.), in which Justice Middleton stated that an interlocutory order is one "which does not determine the real matter in dispute...but only some matter collateral," the Court concluded that the order of the motion judge was interlocutory.

   Although this was the first time that the Ontario Court of Appeal had occasion to address this issue, the Court noted that courts in other jurisdictions in Canada had considered the matter, and had come to the conclusion that an order granting carriage of a proposed class action was interlocutory in nature. The Courts of Appeal for British Columbia and Newfoundland and Labrador held in W.(A.) (Litigation Guardian of) v. British Columbia, 2003 BCCA 448, 17 B.C.L.R. (4th) 263 and H.P. Management Inc. v. Newfoundland and Labrador (Minister of Finance), 2007 NLCA 65, 270 Nfld. & P.E.I.R. 277, respectively, that a stay...