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Lerners' Monthly Lists
April 2017
Ah, the coming of spring: birds; bees; lawsuits for “involuntary parenthood”.
The Court of Appeal’s decisions released in March also dealt with rescission of a condominium purchase, how proceeds of a structured settlement annuity are to be treated under the Family Law Act, further clarification of municipal road liability in the context of winter driving conditions, and resolution of competing claims for life insurance proceeds.
As of this writing, the Leafs are still in the playoffs (and in fact have a 2-1 lead in the first round series). And on that hopeful note, this month’s author, Kirk Boggs, also brings you his top 5 Stanley Cup trivia points.
Editor and Chair, Lerners Appeals Group 

In This Issue
Top 5 Civil Appeals from the Court of Appeal
1. PP v. DD, 2017 ONCA 180 (Rouleau, Hourigan and Huscroft JJ.A.), March 2, 2017
2. Moore v. Sweet, 2017 ONCA 182 (Strathy C.J.O., Blair and Lauwers JJ.A.), March 2, 2017
3. Hunks v. Hunks, 2017 ONCA 247 (Gillese, MacFarland and Pepall JJ.A.), March 27, 2017
4. Lloyd v. Bush, 2017 ONCA 252 (Rouleau, van Rensburg and Miller JJ.A.), March 28, 2017
5. Harvey v. Talon International Inc., 2017 ONCA 267 (Blair, Epstein and Huscroft JJ.A.), March 31, 2017

Top 5 Civil Appeals from the Court of Appeal
1. PP v. DD, 2017 ONCA 180 (Rouleau, Hourigan and Huscroft JJ.A.), March 2, 2017
PP and DD were set up by a mutual friend in the spring of 2014. They dated for several weeks, during which time PP understood that DD was using birth control and did not intend to conceive a child. After they broke up, PP was surprised – and unhappy – to learn that DD was pregnant. DD gave birth to a healthy baby. PP brought an action against DD for fraud, deceit and fraudulent misrepresentation, claiming that her deception and pregnancy deprived him of the choice of when and with whom he would have a child. In this appeal from a decision granting DD’s motion to strike PP’s Statement of Claim without leave to amend, the Court of Appeal weighed in on the matter of “involuntary parenthood”. more...
2.  Moore v. Sweet, 2017 ONCA 182 (Strathy C.J.O., Blair and Lauwers JJ.A.), March 2, 2017
This appeal arose from a battle over the proceeds of the life insurance policy of Lawrence Moore, between his wife of 20 years and his subsequent common law partner. more...
3. Hunks v. Hunks, 2017 ONCA 247 (Gillese, MacFarland and Pepall JJ.A.), March 27, 2017
In this decision, the Court of Appeal considered whether the proceeds of a personal injury settlement used to create a structured settlement for the injured party ought to be treated as property or income under the Family Law Act, R.S.O. 1990, c. F.3. more...
4. Lloyd v. Bush, 2017 ONCA 252 (Rouleau, van Rensburg and Miller JJ.A.), March 28, 2017

The County of Lennox and Addington and The Corporation of the Town of Greater Napanee appealed from a judgment finding them liable for damages arising from a motor vehicle accident. The appeal turned on the interpretation and application of the municipalities’ duty to clear their roads of ice and snow. more...
5. Harvey v. Talon International Inc., 2017 ONCA 267 (Blair, Epstein and Huscroft JJ.A.), March 31, 2017
The Condominium Act, 1998, S.O. 1998, c. 19 gives a purchaser the right to rescind his or her agreement of purchase and sale. The statute provides that within 10 days of receipt of a revised disclosure statement which contains a material change or notice of a change that is material, a purchaser has the right to rescind the APS. If it takes the position that no material change has occurred, the declarant may bring an application for a declaration on the issue of materiality. If no such application is made, however, the legislation requires that the declarant refund the purchaser’s money with interest within 10 days of receipt of the notice of rescission. This appeal – which arose from purchasers’ attempted rescission of their agreements to purchase units in Trump Tower – turned on the interpretation of these provisions. more...  

Top 5 Stanley Cup Trivia Points
It’s been 50 years since the Maple Leafs won the Stanley Cup. It’s been 4 years since the Leafs were last in the playoffs, losing in heartbreaking fashion to Boston in 7 games. But, in a joyful bit of surprise, the Leafs have made the playoffs this year. While their stay may not be long, in honour of that achievement here are 5 interesting facts about the Stanley Cup.
1. There are actually 3 Stanley Cups not 1
The original, created in 1892, was known as the “Dominion Challenge Cup”. In its original form it was little more than the top part of the existing Cup and a small base. The original was modified over the years to add bands which transformed it into a tall thin trophy with the original Cup on top. This came to be known as the “Stovepipe Cup”. The Cup stayed in that relatively ugly form until it was modernized into its present shape in 1958. In 1963, NHL President Clarence Campbell believed the original Cup had become too brittle to leave in the hands of winning teams so he commissioned a second Cup: the “Presentation Cup”. Until 1970 the original Cup was still presented to the winning team, however, shortly thereafter the Presentation Cup was substituted and the original was taken back to the Hockey Hall of Fame. In 1970 the original Cup was retired. It now sits on permanent display in the Vault Room at the Hockey Hall of Fame. Finally, in 1993, the “Replica Cup” was created. It sits on display in the Hockey Hall of Fame when the Presentation Cup isn’t available for viewing. One difference between the Presentation Cup and the Replica Cup is that the Presentation Cup has the Hockey Hall of Fame logo on the bottom. Another is that Basil Pocklington somehow managed to have his name engraved on the Presentation Cup when the Oilers won it in 1984. His name was later x’d out on that trophy and doesn’t appear on the Replica Cup. So look for those two differences if you get to touch the Cup!
2. The Stanley Cup isn’t only for men
There are 12 women on the Stanley Cup. The first was Marguerite Norris whose name was engraved on it after the 1954-55 season. At that time she was the President of the Detroit Red Wings. In 1988-89, Sonia Scurfield, the only Canadian female was engraved on the Cup. At that time she was a co-owner of the victorious Calgary Flames. Others female names engraved on the Cup include: Marie Denise DeBartolo York (Pittsburgh, 1991), Marian Ilitch (Detroit, 1997, 1998, 2002, 2008), Denise Ilitch Lites (Detroit, 1997, 1998, 2002, 2008), Lisa Ilitch Murray (Detroit, 1997, 1998, 2002, 2008), Carole Ilitch (Detroit, 1997, 1998, 2002, 2008), Marie Carnevale (New Jersey, 2000), Callie Smith (New Jersey, 2000), Charlotte Grahame (Colorado, 2001), Nancy Beard (Detroit, 2002) and Susan Samueli (Anaheim, 2007).
3. The names on the Stanley Cup are always changing
When the Cup was redesigned in 1958 it was designed with 5 removable bands. The new trophy has all of the original winners on it up until 1928. Thereafter, when the bottom most band has been filled the oldest band is removed and stored in the vault at the Hockey Hall of Fame. At present the names of players on winners from 1928-29 in to the 1950’s are no longer on the Cup.
4. The NHL doesn’t own the Cup
Although the NHL has acted for years like it owns the Cup and actually has registered trademarks associated with the name and likeness of the Stanley Cup, the regulations originally set down by Lord Stanley called for two trustees to have sole, joint control over the conditions of the awarding of the Cup. Initially, the Cup was a “challenge cup” where any team could issue a challenge and, if the trustees agreed, the Cup would be in play. In 1912, however, the trustees declared that the Cup would only be defended at the end of the champion team’s regular season. After that, the various professional leagues issued challenges on a yearly basis that the trustees dealt with until the NHL emerged as the “de facto” major professional hockey league in North America. In 1947 the trustees reached an agreement with the NHL to grant it control of the Cup with the power to reject challenges from other leagues that may wish to play for the Cup. In spite of that the trustees remain in existence, generally serving in these largely honourary positions until their death. The present trustees are Brian O’Neill and Ian Morrison.
5. The tradition of raising the Cup above the player’s head
Before the 1930’s it appears the Cup was rarely, if ever, awarded to the victorious team on the ice at the end of the final series. It is suggested that the first time it can be authenticated that the Cup was awarded on the ice was when it was awarded to the 1932 Toronto Maple Leafs. In spite of that, the on ice ceremony did not become an annual tradition until the 1950’s. Ted Lindsay is identified as the player who started the tradition of players raising the Cup above their heads. In 1950, after receiving the Cup as Captain of the victorious Detroit Red Wings, Lindsay raised the Cup above his head and skated around the rink. He later explained that he did it so that all Red Wing fans could have a better look at the Cup. That tradition was repeated in subsequent years and, over time, it has evolved to the point where all players now have the opportunity to raise the Cup above their heads and skate around the rink in celebration. After each player has had his turn the team then gathers at centre ice for a celebratory picture with the Cup.

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