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Lerners' Monthly Lists
September 2016
 
My favourite poem is the one that starts ‘Thirty days hath September’ because it actually tells you something” - Groucho Marx
 
Our September netletter also aims to actually tell you something, aside from the fact that September 8th was the 50th anniversary of the premiere of the original “Star Trek” series. To wit: over the summer the Court of Appeal released decisions addressing the extent of provincial superior courts’ jurisdiction over matters involving the federal Crown, a rare instance in which a proprietary remedy for unjust enrichment was upheld, clarification of the role of experts in relation to credibility, a “carriage dispute” over the right to represent class members in a securities class action, and the appropriateness of a class action for negligent misrepresentation.
 
While not included in the top five cases, an honourable mention goes to Spiro v. Koc, 2016 ONCA 592 which stands for the proposition that parties departing from a job and the employee lottery pool take with them only the good memories, not the proceeds realized on the lucky ticket that was bought with a prize ticket won earlier, when they were still in the lottery pool. It turns out that timing really is everything.
 
This month’s author, Bryan Smith, also brings you his timely list of the top five things about September (in Toronto, anyway).
 
Editor and Chair, Appellate Practice Group


In This Issue
 
Top 5 Civil Appeals from the Court of Appeal
 
 
 
1. Babington-Browne v. Canada (Attorney General), 2016 ONCA 549 (Laskin, Tulloch and Hourigan JJ.A.), July 8, 2016
 
2. Anderson v. McWatt, 2016 ONCA 553 (MacPherson, Cronk and Benotto JJ.A.), July 8, 2016
 
3. Mancinelli v. Barrick Gold Corporation, 2016 ONCA 571 (Strathy C.J.O., Pepall and Brown JJ.A.), July 18, 2016
 
4. Whitfield v. Whitfield, 2016 ONCA 581 (Weiler, van Rensburg and Roberts JJ.A.), July 20, 2016
 
5. Fantl v. Transamerica Life Canada, 2016 ONCA 633 (Strathy C.J.O., Blair and Lauwers JJ.A.), August 22, 2016
 

Top 5 Civil Appeals from the Court of Appeal  
 
1. Babington-Browne v. Canada (Attorney General), 2016 ONCA 549 (Laskin, Tulloch and Hourigan JJ.A.), July 8, 2016
 
Captain Ben Babington-Browne, a British soldier, was deployed to Afghanistan for a coalition mission directed by Canada’s Department of National Defence and coordinated by NATO. In July 2009, Babington-Browne was killed when the Canadian Forces helicopter in which he was a passenger crashed into a security wall upon take-off.
 
The appellants, Babington-Browne’s mother and brother, brought an action under section 61 of the Family Law Act, R.S.O. 1990, c. F. 3, against the federal Crown, represented by the Attorney General of Canada, and against the pilot, aircraft captain, and flight engineer who operated the helicopter on the day of the crash (named as John Doe defendants). They claimed that Babington-Browne died due to the defendants’ negligence. more...
 
2. Anderson v. McWatt, 2016 ONCA 553 (MacPherson, Cronk and Benotto JJ.A.), July 8, 2016
 
Helen Anderson filed for divorce from Roger McWatt in 2000. Fifteen years of bitter legal battles culminated in a trial where Anderson was awarded relief including a constructive trust against a property on the basis of unjust enrichment. In this decision, the Court of Appeal considered the appropriateness of this award. more... 
 
3. Mancinelli v. Barrick Gold Corporation, 2016 ONCA 571 (Strathy C.J.O., Pepall and Brown JJ.A.), July 18, 2016
 
Two consortia of law firms were engaged in a “carriage dispute” over the right to represent class members in a multi-billion dollar securities action against Barrick Gold Corporation over alleged misrepresentations in public filings.
 
Barrick Gold Corporation is a Canadian gold company that obtained approvals from the Chilean government to develop an open-pit mine, subject to conditions regarding the project’s environmental impact. Barrick publicly disclosed that its activities complied with Chilean regulatory requirements and that it had comprehensive environmental protection measures in place. However, in April 2013, it revealed that a Chilean court had issued an interlocutory order suspending construction of the mine. The following month, Chilean regulators closed the project due to environmental violations. The resulting plunge in Barrick’s share price led to shareholder class actions in the United States and Canada alleging violations of the Securities Act, R.S.O. 1990, c. S. 5, by misrepresenting the progress of the mine in public disclosures. more... 
 
4. Whitfield v. Whitfield, 2016 ONCA 581 (Weiler, van Rensburg and Roberts JJ.A.), July 20, 2016
 
Bryan Whitfield appealed from a 2014 judgment that found him civilly liable to his sister, the respondent Agnes Jane Whitfield, for sexual and physical assaults that allegedly occurred between forty and sixty years previously. He also appealed the dismissal of his counterclaim against his sister for defamation. The issues raised on the appeal included the permissible uses that can be made of an expert’s opinion concerning the credibility and reliability of a witness, and the application of the defence of qualified privilege.  more...  
 
5. Fantl v. Transamerica Life Canada, 2016 ONCA 633 (Strathy C.J.O., Blair and Lauwers JJ.A.), August 22, 2016
 
At issue in this appeal was whether a class action for negligent misrepresentation was the preferable procedure for resolution of the class members’ claims.

The proposed class was composed of investors in Transamerica Life Canada’s Can-Am Fund, an investment vehicle offered under insurance contracts sold by Transamerica between October 1992 and March 2001. The class action encompassed fifty-three different insurance contracts. Five of these contained an express statement that the fund would “on a best efforts basis replicate the performance of the S&P 500 Total Return Index”, while the other forty-eight contracts did not. Beginning in 1994, however, every investor in the Can-Am Fund received an information folder containing that statement. The information folder was provided pursuant to regulations under the Insurance Act, R.S.O. 1990, c. I. 8, requiring that investors receive a disclosure document containing the fund’s investment policy and objectives before investing in a segregated fund like the Can-Am Fund.  more...



 
Top 5 things about September

You might wonder why this calendar month derives its name from the Latin “septem”, meaning seven. On the ancient Roman calendar, September was the seventh of ten months. But there are other equally valid reasons to love this month. It’s been described by some parents as “the most wonderful time of the year”. A time of fresh beginnings, falling leaves, close of Q3. Depending on your perspective, here are five reasons to feel good about the ninth month in “the six” but also elsewhere.
 
1. The tranquility of mundane routine as children go back to school.
 
2. TIFF, and the end of TIFF for those who drive in and out of the downtown core during the premieres and other festivities.

3. Recovering from Olympic overload. But at least we know we’re the experts in trampoline.

4. The start of grazing season as stores provide the mandatory “one month warning” for Halloween and bite-sized chocolate bars find themselves strewn throughout the office.

5. The Blue Jays in the pennant race, followed by the Blue Jays in the World Series - wishful thinking depending on which day one looks at the standings.

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