Appellate lawyer, Cynthia Kuehl provides a summary of
Lerners' Top 5 Ontario civil appeals decisions from February,
2013.
1043 Bloor Inc. v. 1714104 Ontario Inc. -- This case turned on the
requirements for a prescriptive easement and whether or not the
appellant could have an easement over a laneway he used to get to
his parking spot. The Court denied the easement, noting that a
request for permission to use the laneway in 1987 was inconsistent
with the test for a prescriptive easement (requirement is of use of
land for 20 years under "a the claim of right"). Only 16
years then passed before the property moved into Land Titles. The
declaration of an easement was denied.
Blue Mountain Resorts Limited v. Ontario (Labour) -- In this
case, a resort guest drowned in a swimming pool that was
unattended. The main question here was if Blue Mountain had an
obligation to report injury the death under the Occupational Health
and Safety Act because it was a workplace? The Court of Appeal said
no, stating that there must be a the reasonable nexus between the
hazard that caused injury and the worker's safety.
Lavier v. MyTravel Canada Holidays Inc. -- in assessing what is
fair and reasonable for a class counsel fee, regard should be had
to the take-up rate of the settlement and not the overall
settlement to the class
Martin v. ConCreate USL Limited Partnership- Martin had a
restrictive covenant in his employment contract that precluded him
from soliciting or competing with his competition for 2 years after
the disposition of his minority interest- but he couldn't
dispose the minority interest without the approval of US general
parent, the respondent and/or lenders. The Court of Appeal agreed
with Martin that this was unreasonable because he could not control
whether he would get the third party approval or get it promptly.
The duration of the covenant could not be determined.
Moreira v. Ontario Lottery and Gaming Corporation --A group of
gamblers who had lost 2.1 million at Fallsview Casino argued that
the "floating ball rule" (which allowed a roulette dealer
to call a no-spin and void all wagers) was not approved by the
Alcohol and Gaming Commission of Ontario. As such, the gambling was
not exempt from the provisions of the Criminal Code. The Court of
Appeal disagreed, holding floating ball rule is a practice that did
not need to approved as it does not go to the fairness or integrity
of the game.
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