Charles William Hourigan

On a motion to quash, the court held that orders granting leave to amend a statement of defence and adding a party defendant for limited purposes were interlocutory, not final.

The motion judge's discussion of res judicata and the Limitations Act, 2002 did not amount to a final determination of those issues on the merits, but only a preliminary assessment that the proposed defence was tenable under rule 26.01.

The court emphasized that appeals lie from orders, not reasons, and that the nature of the underlying motion governs the characterization of the order.

Because the litigation continued and no substantive right was finally determined, the Court of Appeal lacked jurisdiction.

The appeals were quashed and leave to appeal the costs award was refused.

The appellant enrolled in a private career college and was accused of plagiarism.

She complained to the Superintendent of Private Career Colleges, alleging discrimination.

After the Ministry determined it had no jurisdiction to force her readmission and found no breach of the Act, the appellant sued the Crown for negligent investigation.

The motion judge struck the statement of claim, finding no private law duty of care.

The Court of Appeal dismissed the appeal, agreeing that the governing legislation does not establish a relationship of proximity between the Superintendent and a student complainant, and no special relationship was pleaded.

The appellant father appealed a decision dismissing his appeal of an order that denied him leave to bring a Status Review Application regarding his two children, who were Crown wards placed for adoption.

The appellant argued the appeal judge made factual errors, misapprehended a letter from a community association, and that his Charter rights were breached due to a denial of Legal Aid.

The Court of Appeal dismissed the appeal, finding no reversible errors, no Charter breach, and that the appellant could not meet the test for granting leave to bring a Status Review Application.

The appellant was convicted of break and enter and theft after his blood was found on the broken door frame of a commercial store.

He appealed his conviction, arguing the trial judge misapplied the test for circumstantial evidence and relied on impermissible speculation.

He also appealed his 45-month sentence.

The Court of Appeal dismissed the conviction appeal, finding the trial judge applied the correct analytic framework and the verdict was reasonable given the fresh blood evidence and the appellant's failure to testify.

The sentence appeal was also dismissed, as the sentence was fit given the appellant's extensive criminal record.

The appellant pleaded guilty to assault and breach of probation and was sentenced to 183 days in custody based on a joint submission.

He subsequently discovered that this sentence triggered potential inadmissibility as a permanent resident.

He appealed the sentence based on fresh evidence regarding the immigration consequences.

The Crown conceded that a sentence of six months less a day would have been fit and that the fresh evidence should be admitted.

The Court of Appeal allowed the appeal and reduced the sentence to six months less a day to obviate the unforeseen immigration consequences.

The appellant appealed his global sentence of 76 months for robbery, dangerous driving, and other offences, arguing the sentencing judge failed to adequately consider his mental health issues.

The Court of Appeal dismissed the appeal regarding the length of the sentence, noting the horrific circumstances of the home invasion robbery and the appellant's extensive criminal record.

However, the Court allowed the appeal in part to recalculate pre-trial custody credit at a 1.5:1 ratio and to vary a non-communication order, permitting the appellant to communicate with his co-accused partner upon her written consent after her sentence expires.

The appellants appealed an order dismissing their defamation claims for failure to comply with the notice provision in s. 5(1) of the Libel and Slander Act.

The appellants had sent a notice to the respondent newspaper regarding articles that alleged the appellants fabricated criminal charges.

The Court of Appeal allowed the appeal, finding that the motion judge erred in law by failing to consider the notice in the context of all surrounding circumstances.

The Court held that the notice sufficiently conveyed the essence of the matter complained of, allowing the respondents to take appropriate steps to mitigate damages.

The appellant appealed a 42-month sentence imposed for a series of serious offences committed over a two-hour period while intoxicated, which included an altercation with a taxi driver and dangerous driving.

The appellant argued the sentencing judge erred by imposing five consecutive sentences and that the total sentence was too harsh.

The Court of Appeal dismissed the appeal, finding no error in the imposition of consecutive sentences for offences implicating separate legal interests, and concluding the sentence was not unduly harsh given the appellant's lengthy criminal record and the seriousness of the offences, noting the sentencing judge properly considered Gladue factors.

The appellants appealed a trial judgment declaring the respondent the beneficial owner of a half interest in a family home.

The house was purchased in 1974 with title taken in the names of two adult children, as the mother did not qualify for a mortgage.

The mother paid the deposit, mortgages, and expenses using pooled family resources and rental income.

The trial judge found the mother had no money of her own and rejected her resulting trust claim.

The Court of Appeal allowed the appeal, finding the trial judge made a palpable and overriding error by conflating the mother's money with its source.

The Court held the mother was the sole beneficial owner by way of a purchase money resulting trust.

The appellants appealed a summary judgment decision finding that the limitation period for the respondent's tort and oppression claims had not expired.

The appellants argued the limitation period began when the respondent knew the corporate defendant vacated the premises and consulted a lawyer.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the respondent did not have, and could not have reasonably discovered, information about the transfer of the corporate defendant's business and contracts to another corporation at that time.

The appellant appealed an order dismissing his motion.

The Court of Appeal found that the motion judge erred in concluding the appellant had requested numerous extensions prior to default judgment being signed.

The motion judge also erred by failing to consider whether the counterclaim raised a set-off when declining to grant the appellant an opportunity to file a motion to set aside the default judgment.

The appeal was allowed, and the appellant was granted 15 days to deliver a motion to set aside the default judgment.

The appellants appealed a motion judge's decision striking their statement of claim without leave to amend.

The claim sought to set aside a transfer of real property to the respondent, alleging an oral promise by their parents to gift the property to the appellants' company.

The Court of Appeal found the motion judge's reasons sufficient and agreed with the characterization of the claim as a promise to make a gift.

However, the Court held that the motion judge erred by failing to grant leave to amend the pleading under Rule 26.01 of the Rules of Civil Procedure.

The appeal was allowed, and the appellants were granted leave to amend their statement of claim to plead an oral agreement concerning the property.

The appellant was convicted of second degree murder based entirely on circumstantial evidence.

At trial, the defence relied heavily on the absence of any forensic evidence linking the appellant to the brutal killing.

The trial judge directed defence counsel not to submit that the absence of forensic evidence made it impossible for the appellant to be the killer, and gave the jury a 'CSI instruction' warning that real-life forensic evidence is not as definitive as portrayed on television.

On appeal, the appellant argued these actions resulted in an unfair trial.

The Court of Appeal dismissed the appeal, finding that while the 'CSI instruction' was unwarranted, it did not affect the result when considered in the context of the entire jury charge, which properly instructed the jury on reasonable doubt and the absence of evidence.

The appellant law firm appealed the dismissal of its action for unpaid legal fees under a contingency fee retainer agreement.

The client had accepted the law firm's repudiation of the agreement and directed the firm to take no further steps.

The Court of Appeal held that by accepting the repudiation and directing the firm to stop work, the client cancelled the services within the meaning of the agreement's termination provision, thereby becoming liable to pay the value of services performed to date.

The appeal was allowed and judgment granted for the law firm.

The appellant brought an oppression remedy claim against his siblings regarding the sale of shares in a family business and the failure to provide information.

The motion judge dismissed the claim on summary judgment as statute-barred under the two-year limitation period.

On appeal, the Court of Appeal held that while summary judgment is generally not available for applications under Rule 14, the procedural defect caused no prejudice.

However, the Court found that the respondents' subsequent application for a valuator constituted a new, discrete act of oppression.

Therefore, the oppression claim was not statute-barred.

The appeal was allowed and the matter directed to trial.

The appellant appealed a summary judgment dismissing her claim for an accidental death benefit after her son died from a fall from a balcony.

The motion judge used fact-finding powers under Rule 20.04(2.1) to conclude the appellant could not prove the death was accidental rather than suicide.

The Court of Appeal upheld the dismissal against the insurer, finding no error in the motion judge's assessment of the evidence.

However, the Court set aside the dismissal against the employer, as the claim against it was based on misrepresentation and it had not participated in the motion.

The appellant mother appealed a trial judge's order granting joint custody of their three-year-old son in the form of a parallel parenting arrangement.

She argued that joint custody was inappropriate given the parties' inability to communicate.

The Court of Appeal dismissed the appeal, finding the trial judge's decision reasonable and necessary to preserve the respondent father's relationship with his son, especially given findings that the mother overstated her fear and refused to cooperate.

The appellants appealed a summary judgment order, arguing the motion judge erred by granting it despite a viable set-off defence and inconsistently allowing the counterclaim to proceed.

The Court of Appeal dismissed the appeal, finding the motion judge reasonably exercised his discretion.

The appellants had failed to provide evidence of their damages claim after being given a year to do so, leaving only an unsubstantial punitive damages claim.

The appellants, unsecured creditors, sought to appeal a motion judge's order approving an amended proposal under the Bankruptcy and Insolvency Act and refusing to adjourn the approval motion to allow further examination of the debtor's president.

The Court of Appeal held that leave to appeal was required because the issues were procedural and did not directly involve property exceeding $10,000.

The Court denied leave, finding the proposed appeal lacked merit, raised no issues of general importance, and the motion judge's conclusions on the reasonableness and good faith of the proposal were unassailable.

The appellants appealed a motion judge's order granting summary judgment against them in a debt collection matter.

The motion judge had set aside an initial summary judgment and granted a second one after the appellants failed to file responding materials and were denied a further adjournment.

The Court of Appeal found no error in the motion judge's refusal to grant an adjournment or in the calculation of the amounts owing.

The appeal was dismissed with costs.