Charles William Hourigan

Commercial neighbours disputed use of a shared laneway subject to a registered right of way.

On a contempt motion brought within an earlier application proceeding, the motion judge dismissed contempt but imposed detailed permanent injunctive restrictions governing future use of the laneway.

The Court of Appeal held that the judge materially changed an interlocutory order into a permanent injunction without adequate explanation, applied the wrong legal test, made factual findings not available on the conflicting motion record, and lacked jurisdiction to grant permanent injunctive relief absent an extant underlying proceeding.

The appeal was allowed, the injunctive provisions were set aside, appeal costs were awarded to the appellants, and motion costs were ordered in the cause.

The appellant challenged an order of the Superior Court of Justice in a criminal matter.

The Court of Appeal, in a brief endorsement, adopted the motion judge's analysis and conclusions and dismissed the appeal.

A Criminal Code publication restriction applicable to the preliminary inquiry evidence was ordered to continue.

The appellant appealed a sexual assault conviction, arguing that the trial judge reversed the onus, improperly resolved the case by choosing between competing versions of events, and erred in treating forensic evidence as neutral.

The Court of Appeal held that the trial judge’s reasons demonstrated a full appreciation of the burden of proof and proper application of the W.D. framework.

The court found the appellant’s evidence was reasonably rejected as incapable of raising a reasonable doubt and that the complainant’s evidence, together with supporting evidence, established guilt beyond a reasonable doubt.

The court also held the trial judge was entitled on the expert evidence to regard the forensic evidence as neutral.

The conviction appeal was dismissed.

The appellant appealed from sentence and challenged a s. 109 weapons prohibition order.

The Crown conceded that the order had been made without jurisdiction.

The Court of Appeal allowed the appeal to that limited extent and quashed the s. 109 order.

A publication ban remained in effect under the Criminal Code.

The appellant sought to appeal an interlocutory order arising from a pleadings motion in a civil action.

The Court of Appeal held it had no jurisdiction because the order was interlocutory, and emphasized that the motion judge had only determined that the pleadings survived the plain and obvious test.

The court noted that nothing in the motion judge's reasons was determinative of issues to be decided at trial.

The appeal was quashed, with agreed costs fixed at $5,000 payable in the cause.

The appellant appealed sentence after the sentencing judge declined to follow a joint submission of four months' imprisonment and instead imposed a one-year sentence for break and enter of a residence and possession of stolen property.

The Court of Appeal held that the sentencing judge erred in principle by mischaracterizing those offences as crimes of violence.

Considering the appellant's rehabilitative potential and fresh evidence showing rehabilitation was being realized, the court concluded there was no value in re-incarceration.

The appeal was allowed and the sentence was varied to time served, equivalent to four months.

The appellant challenged the dismissal of her claims arising from a property transfer and alleged monies owing, arguing trial unfairness, inadequate reasons, and errors in the rejection of resulting trust and constructive trust remedies.

The Court of Appeal held that the trial judge was entitled to restrict cross-examination on a document withheld in breach of a trial management order and that no unfairness resulted.

It further held that the trial judge gave adequate reasons and made factual findings open on the record supporting the conclusions that consideration was provided for the property transfer, no unjust enrichment was established, and the money-advanced claim failed.

The appeal was dismissed with fixed appeal costs to the respondent.

The appellants appealed an order granting summary judgment dismissing their third party claim against a lawyer.

The court held there was no genuine issue requiring a trial because the evidentiary record did not establish any ongoing retainer or solicitor-client relationship between the appellants and the respondent.

A single telephone conversation with the appellants' then-lawyer was found to be merely a request for clarification about notice, not a retainer for legal advice on whether shares could be transferred without unanimous shareholder consent.

The appeal was dismissed with costs.

The appellant challenged the motion judge’s conclusion that his claim on a $50,000 loan was statute-barred.

He argued the loan was for a specific purpose rather than a demand loan, and that the limitation period was tolled by alleged wilful concealment, misrepresentation, and incapacity.

The court held that even accepting the appellant’s evidence, he knew by June 2005 that he had a cause of action, and in any event the first written demand in May 2006 triggered the running of the two-year limitation period under the Limitations Act, 2002.

The appeal was dismissed with costs.

The appellant challenged an extradition committal order and sought judicial review of the minister's surrender order, alleging that CBSA officials breached statutory and Charter protections during the related immigration process.

The court held that the extradition judge applied the proper abuse of process analysis, including the residual category framework for a stay as a remedy of last resort, and was entitled to consider the impact of the impugned conduct on the fairness of the immigration process as part of the broader administration of justice analysis.

The court rejected arguments that bad faith was confined to deliberate misconduct and found no palpable and overriding error in the extradition judge's factual findings concerning inadmissibility, detention, the redacted s. 44(1) report, and the alleged effort to facilitate extradition through immigration mechanisms.

The application for judicial review and the motion to admit fresh evidence were also dismissed.

In a youth criminal appeal from a conviction for possession of child pornography, the appellant argued that the search warrant was invalid because the information to obtain was sworn before a commissioner of oaths rather than a justice.

The court rejected that submission, holding that s. 487(1) of the Criminal Code requires only that a justice issue the warrant, not that the oath be sworn before a justice.

Relying on the statutory provisions permitting non-substantive deviations from prescribed forms and variation of Criminal Code forms to suit the case, the court held the local warrant application practice was appropriate.

The alleged s. 8 Charter breach was therefore not made out and the conviction appeal was dismissed.

On consent, the appellant sought leave to appeal and to admit fresh evidence concerning the value of the property underlying a possession of property obtained by crime conviction.

The court granted leave and admitted the fresh evidence.

The court dismissed the appeal but amended the indictment to substitute a conviction for possession of property obtained by crime under $5,000.

The sentence remained unchanged.

The appellant appealed a conviction for fraud over $5,000 arising from a fundraising scheme that solicited donations for seriously ill children while paying canvassers commissions and remitting only a small fraction of funds to charitable causes.

The Court of Appeal rejected the factual challenge to the finding that canvassers were instructed to mislead donors about being paid.

Applying Supreme Court of Canada authority, the court held that non-disclosure of the paid status of canvassers could constitute 'other fraudulent means' where the omission concealed a fundamental aspect of the fundraiser-contributor relationship and would mislead a reasonable donor.

The court also upheld the 15-month custodial sentence, fine, restitution order, and victim surcharge, emphasizing that custodial sentences are the norm in large-scale fraud cases.

In a medical negligence appeal arising from a hysterectomy that resulted in ureter injury, the Court of Appeal held that the trial judge erred in law in treating an alleged failure to disclose surgical risks as battery rather than informed consent governed by negligence principles.

Applying the informed consent framework from Reibl v. Hughes, the court found the reasons addressed only part of the subjective inquiry and failed entirely to consider the required objective test.

The court also held that the finding of negligent delayed diagnosis was unsupported because there was no evidence that the CT scan contemplated on July 7 would have revealed the ureter injury or that earlier diagnosis would have permitted immediate repair.

The appeal was allowed, a new trial ordered, and appeal costs fixed at $20,000.

The appellant challenged a family law order concerning foreign property and child support.

The Court of Appeal held that the Family Law Act contemplates equalization of net family property rather than sale and division of individual assets, and there was no evidentiary basis for equitable relief concerning property located in China.

The court also held that the foreign property was not a matrimonial home because the parties were not ordinarily residing there on the date of separation.

The appeal from the child support findings failed, including the imputation of income and allowance of extraordinary expenses, although the parties were referred back to the trial judge to settle the amount already paid toward arrears.

In a child protection appeal, the appellant mother challenged the dismissal of her appeal from an order denying leave to bring a status review application.

The court held that the applicable analysis was discretionary and required consideration of the child's best interests.

Although the mother had made positive changes in her life, the court concluded that the appeal judge properly considered the broader context, including the child's age, limited contact with the mother, and the child's wish that the adoption proceed while preserving some ability to communicate.

The appeal was dismissed.

The appellant employer appealed a summary judgment granting the respondent employee damages for wrongful dismissal.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusions that an alleged amending agreement lacked evidentiary support, that 18 months' notice was appropriate, and that the employee was entitled to damages for her lost bonus.

The court also upheld the motion judge's imposition of a trust regarding mitigation income.

The appellant co-signed a vehicle lease as a principal debtor.

At the end of the lease term, the lessor and the lessee entered into two extension agreements without the appellant's knowledge or consent.

The vehicle was subsequently stolen and not returned.

The lessor sued the appellant for the vehicle's residual value.

The Court of Appeal held that the extension agreements constituted material alterations to the lease that increased the appellant's financial burden and risk.

Because the appellant did not consent to these material alterations, he was released from his obligations under the lease.

The appellant pleaded guilty to two counts of possession of cocaine for the purpose of trafficking.

The second offence was committed while he was on release awaiting trial for the first offence.

He was sentenced to consecutive terms of 18 months and 30 months imprisonment.

On appeal, the Court of Appeal upheld the sentence, emphasizing that general deterrence and denunciation must be given more significance when an accused re-offends while on release.

The appeal was dismissed.

The appellant appealed a judgment dismissing her application for a declaration that she was the sole owner of a boundary tree.

She sought to cut down the tree without her neighbours' consent, arguing that under previous jurisprudence, the trunk at ground level was entirely on her property.

The Court of Appeal upheld the application judge's interpretation of section 10(2) of the Forestry Act, finding that 'trunk' should be given its ordinary dictionary meaning, encompassing the part of the tree from its roots to where it branches out, not just at ground level.

The appeal was dismissed.