Friday, November 26, 2010

This Week At The Ontario Court of Appeal: 10-11-26

Each week at Wise Law Blog, we review recent decisions from the Ontario Court of Appeal.

Algarvio v. Allstate Insurance. The Algarvios sued Allstate for failure to pay on an insurance claim; Allstate denied coverage based on the Algarvios' failure to notify Allstate about their 16-year-old son driving the vehicle, and at trial the jury found for the Algarvios. Allstate appealed, arguing that the jury's answer to a trial judge's question was improperly affirmative. The question at issue was whether or not the jury could find that the Algarvios had a duty to notify Allstate about their son driving the car, and whether they had fulfilled that duty.

Allstate, in its appeal, argued that there was no evidence to demonstrate that the Algarvios had fulfilled the duty. The Court of Appeal disagreed and dismissed the appeal, pointing out that at trial Ms. Algarvio testified about attempting to contact Allstate. That Allstate disputed her evidence did not, in the Court's view, mean that there was no basis for the jury to believe that evidence. Read-the-whole-case rating: 2.5 for a quick read that's a good example of a appeal based on improper evaluation of factual data rather than on improper legal reasoning.

Consulate Ventures v. Amico Contracting and Engineering. This appeal was on a motion by Consulate Ventures (the plaintiff) to remove Alan Lenczner as counsel for Amico (the defendants) on the grounds that Lenczner represented Consulate Ventures as counsel over a decade ago on this same matter. Lenczner's argument was that given that his original and only meeting with the plaintiff was over eleven years ago, and that he did not remember anything of it, he could represent the the defendant without compromising his duty of confidentiality to the plaintiffs.

The Court disagreed. Although accepting Lenczner's statement that he did not remember anything of his previous work for the plaintiffs as fact, the Court found that the duties of lawyers to former clients were too important to let slide in a matter such as this, and that Lenczner's ability to get around the duty of confidentiality did not obliviate the duty of loyalty owed to his former clients. Read-the-whole-case rating: 3.5 for a lengthy discussion of an aspect of civil representation that rarely is discussed at this level of jurisprudence.

Gentles v. Intelligard International. An appeal by two individuals who were arrested by a private security service on private property. One of the two young men arrested in fact lived on the property, so they sued the security service for false arrest, false imprisonment, assault and battery, among other charges. The judge found the security guards had reasonable and probable cause to arrest the young men, and dismissed all claims. The young men then appealed the finding on the issue of arrest and imprisonment only.

The Court allowed the appeal. They noted, firstly, that the jury's decision was inconsistent with the facts at hand (including a narrative of the young men's arrest which made no sense given the facts not at issue) and that the jury's answers to questions put to it were puzzling. Although the Court disagreed with the appellants' argument that a resident of a property could never be arrested under the Trespass to Property Act, they emphasized the need to demonstrate reasonable and proper grounds for arrest.

The following analysis of whether or not there were reasonable and proper grounds for arrest is extensive. Justice Juriansz goes through all of the factors surrounding the young men's arrest in comprehensive detail, and the decision at this point becomes extremely valuable for any attorney seeking persuasive precedents surrounding an arrest: Juriansz points out that use of vulgarity, belligerent attitude, and the high crime rate of the area in general - among other elements - do not constitute reasonable and proper grounds for an arrest. Read-the-whole-case rating: 4, for an extremely comprehensive and reasable discussion about the arrest power.

- Christopher Bird, Toronto
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