C.W. Hourigan

The appellant, a judgment creditor of a beneficiary of an estate, sought to secure an interest in a house bequeathed by the deceased.

The deceased had granted the beneficiary only a life interest in the house.

The Court of Appeal upheld the application judge's dismissal of the claims, finding that the beneficiary had no proprietary interest in the house for the creditor to attach.

Furthermore, the Fraudulent Conveyances Act did not apply because the deceased was never indebted to the appellant.

The appeal and costs appeal were dismissed.

The moving party condominium corporation brought a motion to quash an appeal of an application judge's order appointing an arbitrator.

The responding parties sought to appeal the appointment, arguing the application judge erred in referring all issues to the arbitrator without assessing their arbitrability.

The Court of Appeal quashed the appeal, holding that section 10(2) of the Arbitration Act, 1991 explicitly precludes any appeal from a court's appointment of an arbitral tribunal.

The appellant landlord appealed a decision dismissing its application for a declaration that the respondent tenant's installation of an ATM violated the permitted use clause of their commercial lease.

The lease restricted the premises to use as a fast-food restaurant.

The application judge found the ATM was a business tool to keep costs low and did not change the purpose of the premises.

The Court of Appeal applied the deferential standard of review for contractual interpretation established in Sattva, finding no error of law or mixed fact and law, and dismissed the appeal.

Following a judgment awarding the respondents their costs of the appeal on a partial indemnity scale, the court reviewed the parties' written submissions.

The court fixed the respondents' costs of the appeal at $45,000, inclusive of disbursements and all applicable taxes.

The appellant condominium corporation sought to recover common expense arrears from a defaulting unit owner.

Having failed to register a certificate of lien within the statutory three-month period, the appellant lost its priority over the respondent mortgagee.

The appellant applied under s. 134 of the Condominium Act, arguing the unpaid common expenses constituted damages that could be added to the common expenses, thereby reviving its priority lien.

The Court of Appeal dismissed the appeal, holding that classifying unpaid common expenses as damages under s. 134 is contrary to the legislative purpose, scheme, and plain language of the Act, which balances the rights of condominium corporations and mortgagees.

Following a successful appeal in a complex tax case, the appellant sought costs of the trial and appeal totaling over $1.3 million.

The respondent agreed costs should follow the event but argued the amounts were excessive.

The Court of Appeal declined to apply a 25% bump-up for a non-Rule 49 settlement offer, noting the respondent's obligation to protect the public purse in a test case.

The Court awarded the appellant costs of the appeal and trial fixed at $925,000 inclusive of disbursements and HST.

The appellant appealed a decision of the Superior Court of Justice declining to entertain its s. 24(1) Charter application based on post-trial delay.

The Court of Appeal dismissed the appeal, finding no error in the application judge's exercise of discretion, as the appellant had already raised the s. 11(b) Charter issue in an appeal to the Provincial Offences Appeal Court under the Provincial Offences Act.

The defendant appealed a summary judgment decision dismissing its third-party claim for contribution and indemnity against a geotechnical consultant.

The motion judge had dismissed the claim after finding that the plaintiff's counsel made admissions during the hearing that the plaintiff had no claim against the consultant.

The Court of Appeal allowed the appeal, finding that the motion judge made a palpable and overriding error because counsel's statements were qualified and did not constitute a binding admission that no claim existed.

The dismissal of the third and fourth party claims was set aside.

The appellants appealed the dismissal of their medical malpractice claim against a family physician for alleged negligence in prenatal care that resulted in the infant appellant being born with cerebral palsy.

The appellants argued the trial judge erred in rejecting their theories that the mother suffered from pre-eclampsia or elevated blood pressure, and that the physician was negligent in failing to induce labour or refer her to an obstetrician.

The Court of Appeal found no palpable and overriding error in the trial judge's findings that the physician met the standard of care and that the appellants failed to prove causation.

The appeal was dismissed.

The appellants loaned a valuable sculpture to the respondent art centre.

Years later, the sculpture was discovered to be severely damaged.

The appellants sued for negligence, breach of contract, and bailment.

The respondent successfully moved for summary judgment on the basis that the claim was statute-barred under the Limitations Act, 2002, and also obtained judgment on a counterclaim for storage costs.

On appeal, the Court of Appeal found the motion judge made a palpable and overriding error in his factual findings regarding when the appellants first learned of the damage.

The Court set aside the summary judgment and the counterclaim judgment, allowing the action to proceed to trial.

The defendants appealed a trial judgment regarding a 1994 promissory note, arguing the trial judge failed to consider a 1983 agreement, a cancellation clause, the appropriate interest rate, and the principle of proportionality in costs.

The plaintiff cross-appealed on interest and costs.

The Court of Appeal dismissed both the appeal and cross-appeal, finding the note was clear on its face, the cancellation clause was inapplicable due to prior default, and the trial judge made no reversible error in exercising discretion over interest and costs.

The appellant appealed his convictions for invitation to sexual touching and sexual assault.

The trial judge had relied on what he characterized as admissions by the appellant to reinforce the complainant's credibility.

The Crown conceded on appeal that the trial judge misapprehended the appellant's evidence, as the appellant had not made those admissions.

The Court of Appeal held that this error vitiated the findings of guilt, allowed the appeal, and ordered a new trial.

The appellants (Daimler Chrysler) appealed a summary judgment decision that dismissed their motion to have the actions against them declared statute-barred.

The plaintiffs had relied on a police accident report that incorrectly identified the driver as the owner of the vehicle.

The true owner, Daimler Chrysler, was discovered during examinations for discovery, more than two years after the accident.

The motion judge found that the plaintiffs exercised reasonable diligence and the discoverability principle applied for the Limitations Act claims.

For the Trustee Act claims, the motion judge found special circumstances and no prejudice to the appellants.

The Court of Appeal upheld the motion judge's decision, finding no error in her application of the discoverability principle or the special circumstances test.

Following the dismissal of appeals and motions for leave to appeal regarding the appointment of a trustee for an inter vivos trust, the successful parties sought their costs.

The Court of Appeal determined that the normal loser-pays regime applied to the appeals, rather than costs being paid out of the estate, as the uncertainty regarding the trust's administration had been resolved by the application judge.

The court awarded partial indemnity costs to the successful beneficiaries and full indemnity costs to the trustee, payable jointly and severally by the appellants.

The parties settled their matrimonial litigation in 2008 with a consent order providing for $3,000 monthly spousal support with no termination date.

In 2010, the respondent sought to terminate support and obtain child support, citing a decrease in his income and the appellant's unexplained accumulation of wealth.

The trial judge found a material change in circumstances, terminated spousal support, and ordered the appellant to pay child support.

On appeal, the Court of Appeal upheld the finding of a material change but found the trial judge erred by failing to consider the circumstances at the time of the original consent order, effectively rescinding rather than varying it.

The appeal was allowed and a new trial ordered.

The appellants appealed a motion judge's order requiring them to pay an additional $528,113 pursuant to a settlement agreement.

The appellants argued the motion judge erred in accepting the evidence of the respondents' expert accountant regarding management fees, professional fees, and benefits.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's factual findings or his decision to prefer the expert's evidence over that of an interested party, especially since the appellants did not object to the report's admissibility or file their own expert report.

The respondent purchased a residential property from the appellant and later discovered it had previously been used as a marijuana grow-op and contained mould.

The respondent successfully obtained partial summary judgment on liability.

On appeal, the Court of Appeal set aside the judgment, finding that the motion judge's brief endorsement failed to provide any legal analysis or findings of fact regarding the existence of mould at the time of closing, thereby preventing meaningful appellate review.

The appellant appealed a summary judgment order requiring him to repay $195,538.98 to a joint line of credit and $10,000 to a corporate respondent, arising from funds withdrawn during matrimonial proceedings.

The appellant argued the repayment obligations had not matured and were tied to other outstanding financial issues.

The Court of Appeal dismissed the appeal, finding the repayment obligations had matured based on the clear terms of the signed documents and the availability of funds, and that no triable issue was established.

The appellant, who was found not criminally responsible for aggravated assault, appealed a disposition of the Ontario Review Board ordering his detention on a secure forensic unit.

He argued the Board erred by rejecting a hybrid disposition that would have allowed discretion to transfer him to a general forensic unit.

The Court of Appeal dismissed the appeal, finding the Board's conclusion that a hybrid disposition was premature to be reasonable given the early stages of the appellant's treatment.

Although the Board improperly relied on the appellant's request for an absolute discharge to buttress its findings, the error was of no consequence.

The appellant appealed an order dismissing her motion to extend the time to appeal a Crown wardship order regarding her 14-year-old daughter.

The Court of Appeal dismissed the appeal, finding no explanation for the lengthy delay, no merit to the appeal, and that it was not in the best interests of the child, who had been placed for adoption, to upset her current arrangements.