Barbara Green

A receiver sought to defeat an appeal from a court order approving the sale of real property (a residential condominium project for seniors) to Pinnacle International One Lands Inc. The appellant, Fortress, had competed for the property through a stalking horse bidding process and subsequently submitted competing offers.

The receiver accepted Pinnacle's offer.

Fortress appealed, relying solely on section 193(c) of the Bankruptcy and Insolvency Act, which provides an automatic right of appeal if property involved exceeds $10,000 in value.

The Court of Appeal held that the approval order did not "result in a loss" within the meaning of section 193(c) because the receiver could not have obtained a better deal than Pinnacle's offer.

The court found that Pinnacle's offer had superior practical value due to a higher deposit, all-cash financing, support from the first mortgagee, and the integrity of the sale process.

Alvarez & Marsal Canada Inc., as Construction Receiver for Urbancorp entities, sought approval of its fees and its counsels' fees totaling over $3.4 million.

Terra Firma Capital Corporation, a junior secured creditor, objected to the fees of the Construction Receiver and its independent counsel (Blakes), seeking a 30% reduction, citing unreasonable hourly rates, disproportionate time spent, and duplication of services.

The court reviewed the fees based on the Belyea factors, emphasizing value provided over time spent.

The court found the receivership complex and the rates reasonable, but identified some duplication due to the excessive number of timekeepers from Blakes.

The court approved most fees but applied a minor reduction of $35,000 to Blakes' fees.

The accused was charged with impaired driving and over 80 contrary to the Criminal Code.

The Crown called three witnesses: a security guard, the arresting officer, and a qualified breath technician.

The court dismissed the over 80 charge due to insufficient proof that the first breath sample was taken within two hours as required by section 258(1)(c)(ii).

However, the court convicted on the impaired driving charge based on the totality of evidence demonstrating impairment of the accused's ability to operate a motor vehicle.

The plaintiff contractor brought a motion for summary judgment against the defendant property owner for unpaid invoices relating to balcony restoration work.

The defendant opposed the motion and brought a motion for summary judgment against the third-party engineer for contribution and indemnity, while the engineer sought summary judgment dismissing the third-party claim.

The court dismissed all motions, finding that conflicting evidence regarding whether the additional work and waterproofing were authorized created a genuine issue requiring a trial that could not be resolved without viva voce evidence and credibility findings.

During a jury trial, the Crown sought to play the defendant's entire video-recorded police statement to challenge him on prior inconsistent statements and demonstrate his demeanour.

The defence argued that parts of the statement should be edited to prevent infringing the defendant's rights to counsel and silence, as he had answered some questions and not others.

The court ruled that playing the entire statement would not prejudice the defendant or create an unfair trial, noting that the statement had previously been ruled voluntary.

With the exception of one agreed-upon redaction, the court permitted the whole video statement to be played to the jury.

The defence applied for a directed verdict for second degree murder on a first degree murder count, which was previously dismissed.

The court issued supplementary reasons to correct factual errors in the original decision regarding the evidence presented at trial.

Despite excising the incorrect references to the evidence, the court concluded there was still sufficient evidence for a properly instructed jury to find the defendant guilty of first degree murder, and the application remained dismissed.

The accused was charged with first degree murder for the stabbing death of his wife.

After the Crown closed its case, the defence applied for a directed verdict of second degree murder, arguing there was insufficient evidence of planning and deliberation.

The court reviewed the evidence globally, including the accused's journal entries expressing frustration with his wife, his delay in calling 911 after the stabbing, and his medical knowledge of vital organs.

The court concluded there was sufficient evidence for a properly instructed jury to reasonably find planning and deliberation, and dismissed the application.

The court issued supplementary reasons to a ruling that dismissed a defence motion to read the defendant's statement into the record.

The court corrected its previous observation that the defence had ambushed the Crown with the motion, noting that the defence had verbally advised the Crown prior to the close of the Crown's case.

The original decision dismissing the motion remained in place, as the re-examination question did not infer that a statement had been provided.

During a trial, the defence brought a motion requiring the Crown to produce the defendant's complete police statement to the jury.

The defence argued that the Crown's re-examination of the lead investigator left the jury with the prejudicial understanding that the defendant had provided a statement.

The court dismissed the motion, finding that the Crown's questions did not infer any statement was given to the police, and noted that the defence had improperly delayed bringing the application until after the Crown closed its case.

The applicant, Saeed Yahyavi, brought an emergency motion to restrain the sale of his home by the respondent, Nadi Inc., under power of sale.

The applicant alleged that Nadi Inc. failed to disclose and account for a $250,000 payment received from a settlement in a fraudulent conveyance action, which should have been credited against the judgment debt secured by the mortgage on his home.

The court found that Nadi Inc. knowingly misstated the amount due in the notice of sale by improperly characterizing the settlement funds as punitive damages and costs rather than a realization on the judgment.

The court declared the notice of sale void and enjoined Nadi Inc. from completing the sale.

The applicant was ordered to pay $1,100,000 into court, and the issues regarding the proper amount due were referred to a Master for accounting.

The accused pleaded guilty to Over 80 (impaired driving), Dangerous Driving Causing Bodily Harm, Fail to Stop, and Drive Suspended.

The accused, a transport truck driver, drove while impaired by alcohol on one occasion and subsequently drove while extremely fatigued, fell asleep at the wheel, and struck a victim's vehicle, causing life-altering injuries.

The accused fled the scene and provided a false account to her employer.

The court imposed a global custodial sentence of 23.5 months, probation, driving prohibitions, DNA order, and victim surcharge, emphasizing the enhanced duty of care owed by commercial truck drivers and the need for general deterrence and denunciation.

In a first-degree murder trial, the Crown sought to admit autopsy, hospital, and clothing photographs of the deceased.

The defence objected, arguing the photographs were excessive, unnecessary, and unduly prejudicial.

The court applied the test of relevance and probative value versus prejudicial effect, finding the photographs highly probative for the jury to understand the nature of the injuries and the defendant's statements, and not unduly prejudicial.

The court ruled to admit all vetted photographs, emphasizing their necessity to assist the pathologist's testimony and provide context beyond diagrams.

The accused, charged with first-degree murder, brought an O'Connor application seeking the production of the deceased's OHIP records.

The court found no foundation that the records were likely relevant to the issues at trial, noting that the best evidence of the deceased's mental health was an existing psychologist's report.

The court concluded the application was based on speculation and sought to enlarge collateral issues.

The first stage test was not met, and the application was dismissed.

The Crown sought to introduce a statement made by the accused, whose first language is Pashto, during a murder investigation.

The defence argued the statement was involuntary and obtained in violation of sections 7, 10(a), and 10(b) of the Charter due to a language barrier.

The court found that the accused understood English sufficiently, was provided with an interpreter and duty counsel, and gave the statement voluntarily without any police oppression or inducements.

The statement was ruled admissible.

The accused was charged with one count of over 80 (impaired driving with a blood alcohol level exceeding 80 milligrams per 100 millilitres of blood) arising from a motor vehicle accident on January 30, 2014.

The Crown presented evidence of an overturned vehicle, police observations of alcohol odour, a failed approved screening device, and breath test readings of 190 and 180 milligrams.

The defence raised the issue of post-driving bolus drinking, arguing that the accused consumed alcohol after the accident while walking to seek assistance.

The court found the accused's testimony regarding post-driving consumption to be internally inconsistent and undermined by statements made to police.

However, the court ultimately found reasonable doubt based on the toxicologist's evidence that the accused's drinking pattern (one beer before driving, followed by post-driving consumption of mini bottles and a mickey of liquor) would be consistent with zero blood alcohol at the time of driving if the accident occurred at midnight.

The accused was acquitted.

The accused pleaded guilty to sexual interference with an adopted daughter under 16 years of age, committed between January 26, 2008 and September 20, 2013.

The abuse was prolonged, involving multiple forms of sexual intercourse, resulted in pregnancy which the accused arranged to be terminated, and was concealed through manipulation of the victim's vulnerabilities.

The court imposed a sentence of seven years imprisonment, applying a starting point of ten years and adjusting downward for the guilty plea, counselling, remorse, first offender status, and pre-trial custody.

The moving parties sought dismissal of a will challenge brought by a beneficiary alleging lack of testamentary capacity and undue influence in relation to two wills.

The court held that the claim was barred by the two‑year limitation period under the Limitations Act, 2002 because the claimant knew or ought to have known of the material facts shortly after the testator’s death yet commenced proceedings more than two years later.

The claimant had received substantial benefits under the wills and actively participated in estate administration, including sale of assets and receipt of distributions.

The court further held that the doctrines of estoppel by convention and estoppel by representation independently barred the challenge because the parties had proceeded on the shared assumption that the wills were valid and the estate trustees relied on that assumption in administering the estate.

The will challenge was therefore dismissed.

The Crown applied to adduce evidence under s. 540(7) of the Criminal Code at a preliminary inquiry for a second degree murder charge.

The Crown sought to introduce various evidence including photographs, statements from ambulance attendants, victim statements to her lawyer and mother, video and audio recordings, cell phone records and text messages, forensic reports, and pathology reports.

The defence opposed admission of the victim's statements to her lawyer and mother.

The court admitted most of the Crown's proposed evidence, finding it credible and trustworthy under the s. 540(7) threshold.

The court also admitted the victim's statements to her mother and lawyer, finding they met the threshold test and that the witnesses had sufficient reliability despite potential credibility issues.

The defendant was charged with committing an indecent act and criminal harassment.

The sole issue at trial was the identity of the culprit.

The complainant, a 17-year-old retail worker, identified the defendant as the man who exposed himself to her in her store and subsequently appeared at the mall wearing glasses.

The complainant made a photo line-up identification with 85-90% certainty and testified she was 100% certain the defendant was the man captured on mall security camera footage.

The defendant denied the charges and testified he only wears glasses for reading purposes.

Three defence witnesses corroborated that the defendant does not wear glasses except when reading.

The court found that while the Crown's case would have resulted in conviction if unanswered, the defence evidence regarding the defendant's glasses-wearing habits raised sufficient reasonable doubt to warrant acquittal.

Following a Rule 57.07 motion concerning potential personal liability of counsel for costs, the law firm and a lawyer sought recovery of their legal costs incurred in defending the motion.

The responding party had sought to impose more than $100,000 in costs against counsel personally.

The court held that the requested full indemnity costs were excessive and that the responding party’s conduct was not reprehensible.

However, given the seriousness of the allegations and the work required to defend the motion, the court awarded partial indemnity costs.

Costs of the Rule 57.07 motion were fixed at $15,000 payable by the responding party, and no additional costs were awarded between the original litigants for the costs hearing.