Charles Wagman

The landlord appealed a tribunal decision, arguing the Member erred in law by finding there was no evidence that the landlord or her parents had previously resided in the unit.

The Divisional Court dismissed the appeal, concluding the tribunal Member found there was no evidence that the father had been a genuine occupant of the premises within the meaning of the statute.

The added parties appealed an order striking out their pleadings for willful failure to obey court orders.

They sought to adjourn their appeal to be heard with the husband's appeal.

The Court of Appeal declined the adjournment and dismissed the appeal on two grounds.

First, the appeal was moot because the respondent had proceeded to an uncontested trial and obtained a final judgment, and the appellants had not sought a stay of the order striking their pleadings.

Second, the appeal was dismissed due to the appellants' ongoing and deliberate refusal to comply with numerous court orders.

Costs of $20,000 were awarded to the respondent.

The appellant appealed a sentence imposing three months for contempt and an additional six months for the permanent loss of evidence.

The Court of Appeal found no basis in law for the six-month sentence for loss of evidence and struck it down.

However, the court upheld the three-month sentence for contempt, noting the trial judge's sustainable findings that the contempt was egregious and intentional.

The defendant in a civil action for damages arising from a double homicide appealed a Master's decision finding insufficient evidence that he was a person under a disability.

The defendant's former counsel had withheld psychiatric reports from the Master due to concerns about solicitor-client privilege.

On appeal, the court admitted the psychiatric reports as fresh evidence, holding that the traditional due diligence criterion for fresh evidence should yield where compelling psychiatric evidence exists and the interests of justice require its admission to protect a vulnerable person.

The appeal was allowed and the Public Guardian and Trustee was appointed as litigation guardian.

The moving party, having been committed for civil contempt and sentenced to nine months' imprisonment, brought a motion to stay the sentence pending his appeal.

The Court of Appeal granted the stay, noting that whether analyzed under the civil test for a stay or the criminal provisions for judicial release pending appeal, the moving party raised serious questions to be determined and would suffer irreparable harm if required to serve the sentence before the appeal was heard.

The stay was granted subject to strict conditions, including a requirement to surrender into custody prior to the appeal hearing.

The appellant appealed an order regarding her interest in a property located on Roncesvalles Avenue.

The Court of Appeal dismissed the appeal, finding that any interest the appellant had was compromised in minutes of settlement in July 2002, which resulted in a court order transferring the property to the respondents.

As no appeal was taken from that prior order, the appellant had no claim to an accounting of the proceeds of the sale.

The appellant, Congrès Ibéroaméricain Du Canada Inc., appealed an order denying it leave to intervene in an application challenging the constitutionality of the Radiocommunication Act under s. 2(b) of the Charter.

The Court of Appeal upheld the motion judge's findings that the appellant lacked a distinct perspective, did not have a real and substantial interest, lacked special expertise, and that its intervention would unduly delay and prejudice the proceedings.

The appeal was dismissed.

The defendant appealed a Master's order dismissing an application to appoint a litigation guardian and brought a motion to stay the order pending appeal.

The court dismissed the motion for a stay, finding that the psychiatric evidence was vague and failed to establish a serious issue to be tried.

The court also found no irreparable harm and that the balance of convenience favoured the plaintiffs due to the defendant's history of procedural delay.

Costs of $1,500 were awarded to the plaintiffs.

The appellant and respondent are neighbours involved in a property dispute over a three-foot right of way.

The application judge found that the respondent had obtained title by adverse possession to portions of the right of way based on the existence of a fence and a retaining wall.

On appeal, the Court of Appeal found that the application judge erred, as the evidence did not establish that the respondent's use was exclusive or excluded the appellant, nor did it overcome the presumption that possession referable to a lawful title is not adverse.

The appeal was allowed and the order below set aside.

The plaintiff brought a slip and fall action under the simplified procedure, capping his claim at $25,000.

The trial judge assessed damages at $34,933.14 but found the plaintiff 50% contributorily negligent, resulting in an award of $17,466.57.

The defendant appealed, arguing the 50% reduction should have been applied to the $25,000 cap rather than the assessed damages.

The Divisional Court dismissed the appeal, holding that the abandonment of a claim in excess of $25,000 under Rule 76 applies only to the final judgment amount, not the assessed damages.

The appellant appealed a summary judgment on a dishonoured cheque issued for delivered satellite equipment, arguing that factual disputes, legal set-off, equitable set-off, and alleged misrepresentation required a trial.

The Court of Appeal held there was no genuine issue of material fact on the respondent's claim, and that the appellant's counterclaim for commissions, rebates and warranty credits was not pleaded as a liquidated or ascertainable debt capable of legal set-off.

The court further held that equitable set-off does not apply to bills of exchange, including cheques, and rejected the alleged misrepresentation argument as not properly pleaded as a defence to the validity of the cheque.

The appeal was dismissed, but enforcement of the summary judgment was stayed on terms pending determination of the counterclaim.