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Lerners' Monthly Lists
April 2018
 
 
Nothing says Spring like a good ice storm. More about that in a second.
 
First, the Top 5 Court of Appeal decisions from March, as selected by this month’s Netletter author, Andrew Murray. These deal with the ability of an insurer to bring a subrogated action in the name of an insured who is bankrupt, the latest entry in the final vs. interlocutory saga (including a stern warning from the court about the costs implications of bringing purported appeals of orders that are clearly interlocutory), a lawyer’s claim of authority to take steps on behalf of an incapacitated client, the dismissal at trial of claims of misuse of confidential information during a major commercial transaction, and resolving the conflict between the Occupiers’ Liability Act and the Consumer Protection Act, 2002 in the case of waivers that are signed prior to use of recreational properties.
 
Andrew also brings you his Top 5 signs of Spring. Some late-breaking honourable mentions: bags of salt, shovels, and winter boots.

Stuart Zacharias
Editor and Chair, Lerners Appeals Group
 

In This Issue
 
 
Top 5 Civil Appeals from the Court of Appeal
 
1. Douglas v. Stan Fergusson Fuels Ltd., 2018 ONCA 192 (Hoy A.C.J.O., Rouleau, Hourigan, Benotto and Roberts JJ.A.), March 9, 2018
 
2. Benarroch v. Abitbol, 2018 ONCA 203 (Doherty, MacFarland and Paciocco JJ.A.), March 1, 2018
 
3. Ferreira v. St. Mary's General Hospital, 2018 ONCA 247 (Juriansz, Miller and Nordheimer JJ.A.), March 14, 2018
 
4. The Catalyst Capital Group Inc. v. Moyse, 2018 ONCA 283 (Doherty, MacFarland and Paciocco JJ.A.), March 22, 2018
 
5. Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA 313 (Doherty, Brown and Nordheimer JJ.A.), March 28, 2018
  
 
Top 5 Civil Appeals from the Court of Appeal
 
1. Douglas v. Stan Fergusson Fuels Ltd., 2018 ONCA 192 (Hoy A.C.J.O., Rouleau, Hourigan, Benotto and Roberts JJ.A.), March 9, 2018
 
In this appeal, a five-judge panel of the court considered the intersection of bankruptcy law and the doctrine of subrogation, and in particular whether an insurer is entitled to commence a subrogated claim in the name of its bankrupt insured.  more...
 
2. Benarroch v. Abitbol, 2018 ONCA 203 (Doherty, MacFarland and Paciocco JJ.A.), March 1, 2018
 
In the recent case of Houle v. St. Jude Medical Inc., the Court of Appeal heard a motion in what it deemed the “seemingly never ending battle over what orders are final and what orders are interlocutory”. Last month, yet another round of this battle was fought before the court, the results providing a cautionary tale on getting the distinction right.  more...
 
3. Ferreira v. St. Mary's General Hospital, 2018 ONCA 247 (Juriansz, Miller and Nordheimer JJ.A.), March 14, 2018

In December 2016, Fernando Ferreira was involved in a motor vehicle accident. He retained Georgiana Masgras in respect of his claims for compensation for neck and lower back pain and other injuries arising from the accident. 

On July 3, 2017, Ferreira was unexpectedly found in cardiac arrest at his home. He was brought to St. Mary’s General Hospital in Kitchener, where he was provided with life support. A few days later, with his condition deteriorating and no prospect of recovery, Ferreira’s family decided to remove him from life support. The withdrawal of life support was scheduled for July 8, 2017, and Ferreira’s family prepared for his death.  more...
 
4. The Catalyst Capital Group Inc. v. Moyse, 2018 ONCA 283 (Doherty, MacFarland and Paciocco JJ.A.), March 22, 2018
 
This dispute arose out of the sale of WIND Mobile Inc. The appellant, The Catalyst Capital Group Inc., and the respondent, West Face Capital Inc., both investment management firms, made separate efforts to acquire WIND in 2014. While it appeared that Catalyst and WIND had reached an agreement in early August of that year, that agreement soon fell apart. West Face, along with a consortium of other entities, came forward with a new, and eventually successful, bid for WIND. West Face and the consortium later sold WIND to Shaw Communications for a substantial profit.  more...
 
5. Schnarr v. Blue Mountain Resorts Limited, 2018 ONCA 313 (Doherty, Brown and Nordheimer JJ.A.), March 28, 2018
  
The Court of Appeal heard these two appeals together, considering whether occupiers of recreational properties such as ski resorts are entitled to include limitation of liability clauses in their agreements with guests. The specific issue was whether the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A (CPA) took precedence over the Occupiers’ Liability Act, R.S.O. 1990, c. O.2 (OLA) in this context.  more...
 

Top 5 signs of Spring
I grew up in the small hamlet of Turkey Point, on the shores of Lake Erie.  There is no question that my awareness of the natural world around me was shaped by the rural, lakeside environment in which I was raised.  To this day I remain very attuned to nature, something which inspires the following list.

5.  PLANTS – There is no better sign that Spring is around the corner than seeing the maple sugar bushes report that the sap is running.  I feared this year would be a poor syrup year when we had unseasonably warm weather in February, but it was just short enough in duration not to upset the natural order of things.  We ultimately settled back into an extended period of excellent maple syrup weather, with nights that are several degrees below freezing and days that are several degrees above freezing.  This should be an excellent year for syrup when it wraps up.  Based on the maple syrup season, I would say that we should have a fairly normal year in terms of the arrival of Spring.  The red buds on the maples are swelling up, getting ready to burst into leaf, which tells me that we’ll see some buds emerge in a couple of weeks.  I’ve seen some outdoor crocuses in bloom and some tulip and daffodil shoots pressing upwards from the soil, both of which are pretty traditional signs of Spring.  The next sign – and an unlikely one for most – that I’ll be watching for is the emergence of skunk cabbage.  It grows in marshy areas and the wetter parts of our forests.  It can be found along stream banks.  I haven’t seen any yet, but when I do, I’ll know that there is no turning back….Spring will be here.
 
4.  BIRDS – For many people, spotting a robin is a traditional sign of Spring, but my list of birds is much more expansive.  The first bird I listen for, rather than look for, is the cardinal.  Cardinals don’t fly south, so you can spot them at feeders or in a hedge row all winter, but one magical day in February, male cardinals will decide to start signing (the unmistakeable call of Theodore, Theodore, Theodore), staking out their territory.  I don’t think I recall an earlier date than the cardinal I heard this year which was on February 10, 2018.   Soon after hearing a cardinal, I would next expect to be hearing the plaintive song of the mourning dove and it unfolded exactly like that this year. Ten days later we had a real influx of warm air blow into Ontario from the south, which brought with it birds I don’t usually expect to see until March, namely red-winged blackbirds and robins.  There is a ground nesting bird, called a killdeer, which possesses an eponymous song, which I also don’t expect to hear until March, but this year I heard my first killdeer on February 27, 2018.  As we head into March, I always look for the returning tundra swans, typically seeing them arrive back to Southern Ontario around March break.  This year I heard and saw my first swans a little later, about March 20th.  From the reading I’ve done, I understand it relates to their harsh overwintering conditions experienced in the Chesapeake Bay area, which has experienced a series of Nor’easters.
 
3.  MAMMALS – I don’t live in bear country, so I’ve never included bears emerging from hibernation on my Spring list, but racoons and skunks fit in nicely in and around London, Ontario as two mammals that slow down and stay in a den during the coldest and snowiest parts of winter.  With skunks, in particular, there will be no sign of them during the winter, until there is a warm spell and suddenly you will smell their presence and likely see some skunk roadkill.  I can report that I saw and smelled skunks during the February thaw and have had to deal with raccoons at my garbage bin at the end of my driveway, so we are on track!
 
2.  MISCELLANEOUS – Each year, these things tell me that Spring is upon us: 
  • Children skipping in the playground at school
  • Nowruz – Persian New Year – which we celebrate in my home    
  • The smell of wet earth thawing and then drying out, after a winter’s worth of snow
  • Opening day for the Blue Jays
  • Observing new potholes on the street
1.  FROGS – By far, my personal top sign of Spring is hearing the frogs peeping, usually after a warm thunderstorm.  A quick search through my emails to my mother, where I often report the first peeping of frogs, reveals that in both 2014 and 2015 I first noted frogs filling the nighttime air with their peeping on April 9th.  Last year, it was earlier, coming on March 24, 2017.  So far, as at the time of preparing this top five list during the first week of April, I am still waiting for my number one sign of spring to emerge…..no frogs yet so even though the calendar says it is Spring, we aren’t really there yet! 

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