Allan McNiece Austin

The Crown appealed the respondent's acquittals on multiple charges of assault and sexual assault against his wife and daughter.

The Crown argued the trial judge erred by granting a Corbett application to exclude the respondent's criminal record, by ruling he had not put his character in issue under s. 666 of the Criminal Code, and by severing a mischief charge.

The Court of Appeal found that while the trial judge erred in her approach to the Corbett application and the severance order, the ultimate decisions did not warrant a new trial.

The court also held the respondent's testimony was a permissible repudiation of the Crown's case and did not put his character in issue.

The appeal was dismissed.

The appellant mortgagee appealed the dismissal of its action against a guarantor on summary judgment.

The motions judge had found that the guarantor was discharged due to a change in the principal contract.

The Court of Appeal allowed the appeal, holding that the sale of shares of the principal debtor corporation to third parties did not vary the contract between the principal debtor and the mortgagee, nor did it breach the guarantee contract.

The appellant was granted summary judgment on the guarantee in the amount of $869,091.18.

The appellants appealed the summary dismissal of their negligent misrepresentation claim against the respondent bank, and the partial judgment granted on the respondent's claim on a mortgage guarantee.

The Court of Appeal dismissed the misrepresentation appeal, finding no evidence that the bank falsely represented a third party's financial status or implied he would personally guarantee the loan.

On the guarantee claim, the Court held that the motion judge properly granted judgment but varied the order to grant the full amount of $869,091.18, while staying $246,000 of that judgment pending the determination of the appellants' counterclaim for an improvident sale.

The appellant developer appealed a summary judgment dismissing its claim for specific performance of an alleged agreement to purchase development lands for over $45 million.

The appellant argued that the respondents' negotiators had actual or ostensible authority to conclude the agreement.

The Court of Appeal dismissed the appeal, finding no evidence of actual authority and no representations by the principals to support a finding of ostensible authority.

The appellants appealed an order dismissing their action under Rule 24.01(1)(c).

The parties agreed the rule could not be invoked because the respondents had not served their affidavit of documents.

However, the Court of Appeal upheld the dismissal on the alternative ground that the action was an abuse of process, citing inordinate unexplained delay since 1996, conduct in prior related litigation, and failure to comply with a previous court order.

The appeal was dismissed with costs.

The respondent was convicted at trial of threatening his wife and possessing a weapon for a purpose dangerous to the public peace following a domestic dispute over property.

The summary conviction appeal judge quashed the convictions, finding them unreasonable.

The Crown appealed.

The Court of Appeal allowed the appeal and restored the convictions, holding that the summary conviction appeal judge erred in law by substituting his own view of the evidence.

The trial judge's findings that the respondent uttered a threat and formed the unlawful purpose to use his pocket knife as a weapon prior to its use were supported by the evidence and not unreasonable.

The mother, who was granted sole custody of the child, appealed the trial judge's refusal to permit her to relocate to Alberta with the child.

The Court of Appeal found that the trial judge erred by focusing solely on the mother's employment and the father's access, while disregarding the social, psychological, and emotional benefits of the move for the mother.

Applying the framework from Gordon v. Goertz, the Court held that the views of the custodial parent are entitled to great respect and that the move would enhance the best interests of the child by allowing the mother to regain stability and independence.

The appeal was allowed, permitting the mother to relocate to Calgary.

The appellant was convicted of first degree murder after shooting his ex-girlfriend with a sawed-off shotgun.

At trial, the Crown introduced statements made by the victim to friends shortly before her death, indicating that the appellant had threatened her.

The appellant appealed, arguing the statements were inadmissible double hearsay and that the trial judge erred in his jury instructions regarding their reliability.

The Court of Appeal dismissed the appeal, finding that the appellant's alleged threats were admissible as admissions, and the victim's statements to her friends met the threshold for reliability.

The court further held that any error in the jury instructions caused no prejudice, and alternatively applied the curative proviso given the overwhelming evidence of intent.

The appellant investor appealed the dismissal of his action against his investment advisor and brokerage firm for damages arising from advice regarding the sale and acquisition of shares, including Bre-X shares.

The appellant argued the trial judge erred in not finding a fiduciary relationship and in failing to find the advisor's conduct wrongful.

The Court of Appeal dismissed the appeal, finding the trial judge correctly applied the test for a fiduciary relationship and that the findings regarding the advisor's conduct were supported by the evidence with no palpable and overriding error.

The appellant appealed the dismissal of his action on summary judgment.

The motions judge found the action was statute-barred because the cause of action accrued more than six years before the Statement of Claim was issued.

The Court of Appeal upheld the decision, applying the principle that a cause of action accrues once the plaintiff knows some damage has occurred and has identified the tortfeasor.

The court found the appellant's letter sent prior to the limitation period demonstrated his awareness of the respondents' conduct and the resulting damages.

The appellant school board appealed a decision refusing to stay the respondent's Small Claims Court action.

The appellant argued that the respondent was arguably a member of the union, and an arbitrator should determine if the collective agreement applied under s. 48(1) of the Labour Relations Act.

The Court of Appeal dismissed the appeal, finding no error in the lower courts' conclusion that the respondent was not a union member, as the appellant failed to meet its evidentiary onus.

The appellant appealed his convictions on the basis that the trial judge improperly communicated with the jury during their deliberations.

The trial judge sent an ex-parte note to the jury imposing an arbitrary deadline and suggesting they report verdicts they had reached if they were unable to agree on others.

The Court of Appeal held that this procedure was wrong as it denied the appellant due process, constituted an improper ex-parte communication, interfered with deliberations, and placed undue pressure on the jury.

The appeal was allowed, the convictions were quashed, and a new trial was ordered.

The appellant appealed his convictions for firearm offences and trafficking in cocaine.

The Court of Appeal found that the trial judge erred in excluding defence evidence that demonstrated a key Crown witness's ongoing animus towards the appellant.

This evidence was admissible under an established exception to the collateral fact rule.

Because the witness's credibility was central to the findings on both the firearm and cocaine charges, the curative proviso could not be applied.

The appeal was allowed, the convictions were quashed, and new trials were ordered on all counts.

The appellant appealed his conviction for robbery and assault.

The Court of Appeal found that the trial judge erred in admitting a witness's videotaped statement for the truth of its contents, as the witness claimed no memory at trial and the judge improperly assessed the statement's reliability.

However, the Court applied the curative proviso and dismissed the appeal, concluding that the remaining evidence against the appellant, including eyewitness testimony and the victim's blood on his shoe, was overwhelming.

The appellant appealed a trial judgment dismissing his claim for constructive dismissal.

The Court of Appeal allowed the appeal, finding the trial judge erred by not applying an objective test.

An objective review of the facts, including a substantial reduction in managerial responsibility and removal from his office, established constructive dismissal.

The Court also held the appellant had no duty to remain at the workplace while seeking other employment.

Damages were awarded in the amount of $171,269.25.

The appellants sought damages and restitution from the Government of Canada for the 'head tax' imposed on Chinese immigrants between 1885 and 1923.

They argued the legislation violated section 15 of the Charter, breached customary international law, and resulted in unjust enrichment.

The Court of Appeal upheld the motion judge's decision to strike the claim, finding that the Charter cannot apply retrospectively, customary international law did not invalidate the historical domestic legislation, and the validly enacted statutes provided a juristic reason for any enrichment.

The appellant brought a motion to introduce fresh evidence and to amend his statement of claim on appeal.

The court granted both requests, finding that the interests of justice favoured admitting the evidence, which had been read to the motions judge but not marked as an exhibit.

The court also permitted the amendment to the statement of claim, which effectively withdrew an admission, and imposed terms to address any prejudice to the respondents.

The respondent employee was seriously injured in a motor vehicle accident after leaving an office Christmas party where alcohol was served at an unmonitored open bar.

At trial, the judge discharged the jury on grounds of complexity and publicity, and found the employer 25% liable for the respondent's damages.

The employer appealed.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the trial judge erred in law by discharging the jury based on his own difficulty in explaining the law, and erred in his analysis of causation by failing to consider evidence that the respondent was not inebriated when she left the party and by failing to address the assumptions underlying the toxicologist's opinion.

In a postscript endorsement regarding costs, the Court of Appeal assessed the successful respondent's costs at $13,661, agreeing with the appellant's submissions.

The Minister of Health failed to submit their bill of costs in a timely manner despite requests, prompting the court to arbitrarily assess their costs at $4,000 inclusive of GST, noting that the court cannot function based on the time convenience of counsel.

The appellants, various book publishers, appealed a decision determining that they did not have priority over the Bank of Nova Scotia regarding accounts receivable collected by the distributor, General Distribution Services Inc. (GDS).

The publishers argued that because they retained title to the books, they had priority.

The Court of Appeal dismissed the appeal, finding that the arrangement between the publishers and GDS did not require the segregation of funds, allowing GDS to mingle the proceeds with its own money.

Consequently, the relationship was one of debtor and creditor, not trustee and beneficiary, and the publishers did not hold a priority interest.