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Lerners' Monthly Lists
December 2016
 
 
As 2016 draws to a close and we move into the “winter of our discontent”, the Court of Appeal has given us a festive assortment of decisions dealing with the validity of a will, when interest becomes payable on statutory accident benefits for catastrophic impairment, the propriety of awarding damages that were not pleaded, class action counsel fees, and a re-affirmation of the onerous test for overturning a jury verdict as unreasonable.
 
To further add to the joy of the season, this month’s author, Andrew Murray, also brings you his top 5 list of Compounds for Snow and Ice Melting. Spoiler alert: who knew beet juice was so versatile?
 
Happy Holidays and best wishes to all for 2017.

Stuart Zacharias
Editor and Chair, Lerners Appeals Group

 

In This Issue
 
 
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  
 
  
 
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
 
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. more...
 
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.  more...
 
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. more...
 
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.  more...
 
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.  more...
 

Top 5 Compounds for Snow and Ice Melting
This being the December Netletter, and with snow squall season upon us, it seems appropriate – with the proviso that it does not constitute legal or other advice! – to review the top 5 ways to melt the coming snow and ice.

1. Good old salt, sodium chloride (NaCl) is a longstanding, cheap and effective ice melting compound and probably the first thing most people think of when they need to melt ice. It lowers the freezing point of water so that at 0 degrees Celsius, water no longer freezes. Salt is so popular because it is easily available, and cheap, while also very effective. The knock against salt is the damage it can cause to the environment, such as killing vegetation and running off into ponds and streams. Most of us are familiar with the sight of a salt burned shrub or lawn.

2. Calcium Chloride (CaCl2) - This is commonly applied to roads in Ontario as a brine solution. Like sodium chloride, this salt also lowers the point at which water freezes, but it has the additional advantage of releasing heat when it dissolves in water, aiding a melting effect. It is more effective at lower temperatures than NaCl and can be used right down to -32 degrees Celsius. It is also preferred because it is less detrimental to plants and soil.

3. Beet juice compounds - The high sugar content in beet juice is actually an effective ice melting compound, and it has the advantage of being natural and organic in terms of its impact on the environment. Beet juice added to salt mixtures reduces the amount of salt that is otherwise required, so it is easier on concrete, reduces the corrosive effect of salt, and it reduces the likelihood that the salt will simply "bounce" off the road.

4. Potassium Chloride (KCl) - a common theme in most of these de-icers is chloride. This synthetic compound is probably what you are picking up when you grab a shaker bottle or bag of white crystals from your local hardware store to apply on your front steps or walkway. It is favoured because it is safe for pets and plants. It melts ice down to temperatures of -11 Celsius, so is not as effective as calcium chloride, but is still handy for spot applications.

5. Ethylene or propylene glycol (C2H6O2 or C3H8O2) - We don't just need our roads and walkways cleared of ice. If you've ever taken a flight from a cold location you are probably familiar with the process of de-icing the plane. A liquid glycol solution mixed with other agents is sprayed on the plane to prevent ice from forming, which could seriously impact the safety of the flight if not removed/prevented from forming. While highly effective, indeed essentially so, glycol is rough on the environment, so research continues to find effective and affordable alternatives that are easier on the environment. A more effective strategy to date has been better collection of used fluid to prevent its escape into waterways and the land.
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