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Toronto Appellate lawyer, Cynthia Kuehl, has the Lerners' Appellate Group Top 5 appeals
for February 2013. Well Cynthia, let's start with the first one
on the list. The first one is 1043 Bloor Inc. and number
company Ontario. And this case is about prescriptive easement
and whether or not the appellant could have an easement or declaration of an easement
over a laneway that he used to get to his parking spot and ultimately, the court says
no and the reason for that is because back in February 1987 his predecessor had asked
the predecessor to the respondent to execute a right of way agreement that had been drafted
by a lawyer and the respondent had said no and the court in this case said it's inconsistent
with the test for a prescriptive easement. That he had asked permission in 1987 by asking
for the right of way agreement because the test for a prescriptive easement means you
need to have used the land for 20 years under claim of right and having under claim of right
is inconsistent with the feeling that you need to ask permission to do so. Unfortunately
as well for the appellant it had been less than 20 years from 1987 to 2003 when the Land
Titles Act came into effect. So, I don't know if he is still using the laneway but he's
not doing it under a prescriptive easement. The second case Blue Mountain Resort and Ontario
has my favourite phrase of the month - Sometimes a swimming pool is just a swimming pool.
The unfortunate facts of the case is that a resort guest actually had drowned in a swimming
pool that was unattended at the time. An Occupational Health and Safety inspector said that Blue
Mountain had an obligation to report that incident because there had been a critical
death or injury at a workplace. The Board agrees. The Divisional Court says it's unreasonable
and Justice Blair says that that actually would lead to an absurd result where almost
any place can be workplace, even your home could be a workplace if you employed a nanny
and that's not what's intended by this. Rather, we're really looking at worker protection
and you should be looking for a reasonable nexus between the hazard that caused the critical
death and injury and worker safety. The third case is about money and, particularly,
class counsel fees - Lavier and MyTravel. It's really about the take-up rate versus
settlement as the basis for what's fair and reasonable for class counsel fees. In this
case, there is a settlement secured of $2.25 million. Class counsel receives $600,000,
with an opportunity to come back if not all of those settlement funds are distributed.
In fact, the take-up rate is quite low at 9% of class members, 17% of the funds overall
undistributed. Class counsel obtains from the class action judge another $395,000 in
fees. MyTravel disagrees and the Court of Appeal says that's correct. When you look
at what's fair and reasonable in the circumstances, particularly given access to justice concerns,
we want to look at the take-up rate, not the settlement and, here, the take-up rate did
not justify more class counsel fees. The fourth case I want to talk to you about
today though is in a totally different sphere - employment law and this is Martin and ConCreate
and it goes back to the issue of restrictive covenants. In this case, Martin had a restrictive
covenant in its employment contract that precluded him from soliciting or competing with the
business for two years after the disposition of his minority interests, but he couldn't
dispose of that minority interest without the approval of the US general parent, the
respondents and subsidiary lenders and the Court of Appeal agreed with Martin that this
was unreasonable, an unreasonable covenant in terms of its duration, because he couldn't
control whether he would ever get the third party approval and, if he did get it, whether
he would get it promptly. So although he had ILA before executing that contract, that covenant
was not going to be enforceable upon him. The last case is the gambling case - the floating
ball rule or practice as the court finds in roulette. This case is called Moreira and
OLGC and in this case Moreira is represented as a group of gamblers who lose $2.1 million
dollars playing roulette at Fallsview. They later sue and say that the floating ball rule,
which allows a dealer to remove the floating ball at the roulette and declare a non-spin
and void all wagers, was not approved by the Alcohol and Gaming Commission and, accordingly,
the gambling was illegal because it didn't meet the exemption under the Criminal Code.
The Court of Appeal disagrees and, in fact, agrees with the summary judgment judge and
says that the floating ball rule is not really a rule, its a practice. It did not need to
be approved and, in fact, is a non-event, in terms of it doesn't go to the fairness
of integrity of the game and the gamblers are left holding the ball or, at least in
this case, losing $2.1 million. So, those are my top 5 cases this month. If
you want more information, www.lernersappeals.ca. Thank you.