Lerners’ Appeals Netletter Video Companion – May 2013

London Appellate lawyer, Caroline Brandow,
has the Lerners’ Appellate Group’s Top 5 Appeals from the Ontario Court of Appeal for the month
of April. Well Carolyn, what is the first case on the
list? The first case is Stevens and Stevens. This
is a case involving the issue of validity of a marriage contract. The interesting part
of the decision in part deals with the ability of an appellant to ask for rectification of
a contract at appeal when the appellant had actually opposed that same relief sought by
the other side. At trial, the Court of Appeal rejected that and provided some interesting
commentary on rectification of a contract. I understand the second case is Amyotrophic
Lateral Sclerosis Society of Essex and Windsor. In this decision, the Court of Appeal looked
at a costs order made by Divisional Court to set the issues of costs of an appeal down
to a motions judge to be dealt with along with other substantive issues. The decision
is of interest because it focuses again our attention on the fact that an appeal is a
separate step distinct and apart from other steps in litigation and the costs should be
dealt with by the panel the deals with the appeal and the Court of Appeal also looks
at whether the appellants were successful and disagrees with the Divisional Court panel
on that issue. And tell us about Amato and Welsh.
Ameto and Welsh is an interesting decision on absolute privilege and this is a principle
that the Court of Appeal looks at in some detail to determine whether or not pleadings
can be struck raising allegations of statements made by lawyers in a quasi-judicial proceeding.
It’s of interest because the allegations were allowed at trial and were not found to bar
the – or the privilege doctrine – did not bar the claims going to trial which may be
a little bit surprising and may make some lawyers nervous that we have less immunity
from claims then perhaps may have been considered otherwise privilege was noted to be focused
in the roots of defamation law, rather than protecting lawyers from immunity from former
clients suing them and that’s of interest and we will see how that case develops as
it goes back to court system. The Orfus Estate and The Samuel and Bessie
Orfus Family Foundation case is the fourth. This case deals with summary judgment in the
context of an Estate litigation matter in which testamentary disposition was at issue.
This was two sisters fighting over the Estate of their mother. The one sister had been estranged
from the mother for some time. The interesting part of the decision is that testamentary
disposition cases or Estate cases frequently focus on credibility and that was raised by
the appellant but rejected by the Court of Appeal as being truly the issue and, as a
result, summary judgment was found to have been an appropriate manner to dispose of the
issues and the Court of Appeal upheld the motions judge on that.
Rounding out the list is Goodwin and Olupona. In this decision, the Court of Appeal looked
at the charge to a jury, as well as issues of findings of negligence against a hospital
and a nurse in a crossclaim between a physician, hospital and nurse, the plaintiffs having
been let out of the action or settled with part way through the trial. It was a thirty
two day trial with a jury and the jury’s conclusions were given a lot of deference by the Court
of Appeal and there’s some interesting commentary in the decision about the charge to the jury
– what is necessary to be in it and what does not have to be repeated over and over again
by a trial judge in the charge to the jury; the trial judge being allowed to simply refer
to other defendants as having the same principles of law to be applied by them by the jury and
complement the jury for their hard work during the course of the trial it meaning their duty
as jury members. Well, thank you very much.
Thank you.

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