Darla A. Wilson

The appellant appealed from a summary judgment dismissing its claim for insurance coverage under a Builder's Risk Policy.

The motion judge found the roof collapse was caused by frost heaving, an excluded peril under the policy.

The Court of Appeal upheld the decision, finding summary judgment was appropriate where the respondent's expert evidence was uncontested, the frost or freezing exclusion applied, and the doctrine of nullification did not render the exclusion unenforceable because the policy still covered other perils.

The appellants appealed from a summary judgment dismissing their claim for non-vested stock options under a consulting agreement.

The motion judge found the agreement was not a fixed term contract and that entitlement to unvested options was contingent on the appellants remaining engaged with the respondents on each vesting date.

The appellants raised a new argument on appeal regarding breach of the duty of good faith, which was not advanced below.

The appellants also challenged the costs award.

The appellants appealed a trial judgment dismissing their negligence action against a school board and school officials for failing to protect their child from bullying.

Although the trial judge found that the respondents breached the standard of care by failing to investigate a prior bullying incident and misplacing related documentation, he concluded that none of these breaches caused the subsequent incident in which the child was injured.

The appellants argued that proper investigation of the earlier incident would have prevented the later injury.

The Court of Appeal upheld the trial judgment, finding no palpable and overriding error in the trial judge's causation analysis and factual findings.

The appellants sought an application for prohibition to prevent a provincial offence prosecution under the Motor Vehicle Dealers Act, 2002.

The respondent brought a motion to dismiss the prohibition application as frivolous and an abuse of process.

The motion judge granted the motion and dismissed the application.

The appellants appealed.

The Court of Appeal upheld the dismissal, finding that prohibition is a remedy for jurisdictional issues only, and the appellants' arguments were non-jurisdictional matters properly decided at trial in the Ontario Court of Justice.

The appeal was dismissed with costs to the respondent.

The appellant appealed his convictions for impaired driving causing death and criminal negligence causing death arising from a fatal ATV accident.

The appellant was towing the deceased's disabled ATV using a short fabric sling when his vehicle drifted left, causing the tow strap to become caught and the deceased's ATV to flip, resulting in her death.

The trial judge found the appellant was impaired by alcohol, engaged in an inherently dangerous towing operation without proper concentration, and that his conduct constituted a marked and substantial departure from the standard of a reasonable driver.

The Court of Appeal dismissed all grounds of appeal, finding no material misapprehension of evidence, no error in the trial judge's treatment of expert and lay evidence regarding the tow setup, and that causation was properly established for both offences.

The appellant appealed a judgment interpreting the will of Eleanor Martha Devonport.

The application judge found that a specific bequest of the Hopewell Avenue property to the testator's predeceased son passed to the son's wife pursuant to section 31 of the Succession Law Reform Act (the anti-lapse provision), rather than lapsing into the residue of the estate.

The appellant argued the will showed a contrary intention and that the solicitor's evidence should have been admitted.

The Court of Appeal dismissed the appeal, finding no error in the application judge's interpretation of the anti-lapse provision or the will's terms.

The court also upheld the occupation rent requirement, finding it was properly raised and calculated.

The appellant was convicted of sexual interference, invitation to sexual touching, sexual exploitation, and sexual assault against his stepdaughter beginning when she was 15 years old, with violations occurring over approximately 20 months.

The trial judge relied heavily on an audio recording surreptitiously captured by the complainant in her bedroom on November 3, 2019.

The appellant appealed on grounds that the trial judge unfairly amplified the audio recording during deliberations, misapprehended its contents, misapprehended evidence relating to chronology of events, erred in assessing credibility of both the complainant and appellant, and misused a prior consistent statement.

The Court of Appeal dismissed all grounds of appeal, finding no trial fairness issues, no misapprehension of evidence, and no credibility errors.

The Crown sought to cross-examine the appellant's former trial and appellate counsel, now a Superior Court judge, on his affidavit evidence submitted in support of a fresh evidence application on appeal.

The appellant and the intervening judge opposed cross-examination, arguing that it would undermine public confidence in the administration of justice and proposing written interrogatories as an alternative.

The Court of Appeal granted the Crown's motion for cross-examination, holding that judicial immunity does not apply to conduct undertaken prior to judicial appointment and that cross-examination is the norm for affidavit evidence in appellate proceedings.

The appellant was convicted of one count of assault and one count of sexual assault relating to the same complainant and was sentenced to 7 years' imprisonment.

On appeal, the appellant raised two related grounds: first, that the trial was rendered unfair because he lacked testimonial capacity due to mental illness; and second, that the trial was unfair because the counts in the indictment were vague and failed to identify specific instances of assault and sexual assault.

The Court of Appeal dismissed the fresh evidence application regarding the appellant's psychiatric condition, finding that the evidence lacked cogency without expert opinion linking the mental illness to testimonial capacity.

The court also rejected the indictment vagueness argument, finding that the counts did not violate the single transaction rule and that the appellant received full disclosure and knew the case he had to meet.

The appeal from conviction was dismissed, and the appeal from sentence was dismissed as abandoned.

The appellant appealed from a conviction for sexual assault on multiple grounds, including alleged errors in the trial judge's application of the burden and standard of proof, an adverse inference from silence, the admission of testimony regarding the complainant's demeanour, and improper reliance on the complainant's testimonial demeanour.

The Court of Appeal dismissed all grounds of appeal, finding no error in the trial judge's application of law or consideration of evidence.

Appeal from conviction for aggravated assault of a two-year-old child.

The appellant was convicted based on medical evidence establishing that the child's severe cranial fracture and extensive bruising could not have resulted from accidental falls or self-inflicted injuries.

The appellant provided multiple inconsistent accounts of events, culminating in trial testimony that the child fell from a bed and then engaged in self-injurious conduct.

The trial judge rejected the appellant's credibility based on inconsistencies with medical evidence, the implausibility of the narrative, and the failure to mention the critical fall from the bed in earlier statements.

The appeal challenged whether the trial judge erred by rejecting credibility based on the appellant's access to disclosure and presence at trial.

The court dismissed the appeal, finding no reversible error and applying the curative proviso based on overwhelming evidence.

The appellant appealed his convictions for assault with a weapon and sexual assault against his wife.

The appellant alleged that the trial judge erred by reversing the onus of proof, failing to adequately explain credibility findings, engaging in propensity reasoning, and improperly applying the rule in Browne v. Dunn.

The Court of Appeal found no basis for intervention and dismissed the appeal, upholding the trial judge's credibility assessments and acceptance of the complainant's testimony as confirmed by a recorded conversation.

The appellant appealed a disposition order from the Ontario Review Board continuing his detention at a forensic psychiatric hospital.

The appellant sought a conditional discharge with terms requiring attendance and voluntary readmission.

The Board found that continued detention was necessary as the least onerous and restrictive disposition given the appellant's significant threat to public safety, chronic drug-induced psychosis, severe addiction, and need for supervised community reintegration.

The Court of Appeal upheld the Board's decision, finding it fell within a range of reasonable outcomes and was supported by expert evidence regarding the necessity of hospital-approved housing and the inadequacy of Mental Health Act provisions for rapid intervention.

The Crown appealed acquittals on firearms charges following a Charter breach finding.

Police executed a general warrant to seize a cellular device associated with a specific phone number during a murder investigation.

The respondent was a victim/witness to the murder.

During execution, police seized three phones and discovered firearms in a hidden door compartment.

The application judge found the search exceeded the warrant's scope, violating s. 8 of the Charter, and excluded the firearms under s. 24(2).

The majority (Miller and Wilson JJ.A.) allowed the appeal, finding no s. 8 violation and that the firearms should be admitted.

Pomerance J.A. dissented, agreeing with the application judge that the police exceeded the warrant's terms and that exclusion was appropriate.

The appellants appealed a decision of the Superior Court of Justice regarding the estate of Nadia Wyszatko.

The Court of Appeal dismissed the appeal but made a minor variation to remove Richard Wyszatko's liability for a loan, interest, and legal fees.

The respondent was successful on the appeal and sought costs.

The court awarded partial indemnity costs to the respondent and declined to hold the non-party appellant liable for costs.

The appellant appealed his conviction on charges of sexual assault and sexual interference, challenging the Ontario Court of Justice judge's refusal to permit him to re-elect trial mode without Crown consent under section 561(2) of the Criminal Code.

The appellant had initially elected trial in the Ontario Court of Justice in August 2020, but sought to re-elect to Superior Court of Justice with judge and jury in January 2021.

The central issue was the proper interpretation of "the day first appointed for the trial" for purposes of the 60-day deadline to re-elect without Crown consent.

The Court of Appeal dismissed the appeal, holding that November 19, 2020—when a section 278.3 application regarding third-party records was scheduled—constituted the day first appointed for trial, making the deadline for re-election September 20, 2020.

The appellant's January 2021 re-election was therefore untimely.

The appellant appealed a judgment awarding over one million dollars in damages to the respondents for personal injuries sustained in a motor vehicle accident.

The trial judge discharged the jury after finding that defence counsel breached the rule in Browne v. Dunn by failing to cross-examine the plaintiff on a significant piece of evidence regarding fluid leaking from his ear, which was later introduced through expert witnesses.

The trial judge found the breach irreparably tainted the jury and proceeded with a bench trial, ultimately accepting the plaintiff's evidence and rejecting the defendant's malingering theory.

The Court of Appeal upheld all aspects of the trial judge's decision, including the finding of a Browne v. Dunn breach, the discharge of the jury, the qualification of a treating physician as an expert witness, and the damages award.

The appellant sought income replacement benefits (IRBs) under the Statutory Accident Benefits Schedule following a motor vehicle accident.

The central issue was the correct interpretation of the test for post-104-week IRBs under section 6(2)(b) of the Schedule.

The appellant argued that the test requires consideration of employment in a competitive, real-world setting comparable in nature, status, and remuneration to the insured's former employment.

The respondent insurer argued that the statutory test does not include such requirements.

The Court of Appeal upheld the lower courts' decisions, holding that while factors such as competitive real-world setting, status, and remuneration are relevant considerations in the evidence-based analysis, they are not stand-alone requirements of the test.

The appellant failed to prove a complete inability to engage in any employment for which she was reasonably suited by education, training, or experience, particularly given evidence that wedding planning remained a viable option.

The moving party sought to set aside on consent a trial judgment declaring that it was not a bona fide purchaser without notice of a residential property.

The trial judge had made significant negative credibility findings against witnesses called on behalf of the moving party and its predecessor in title.

The Court of Appeal refused to allow the appeal on consent, holding that courts cannot set aside judgments based solely on party agreement without considering whether doing so would be appropriate in light of the law and facts, and whether it would bring the administration of justice into disrepute.

The court found that setting aside the judgment, which incorporated findings of misconduct, would undermine the administration of justice.

The appellant appealed his conviction for first degree murder on the sole ground that the trial judge erred in dismissing a mistrial application.

The Crown had improperly elicited inadmissible hearsay evidence regarding the appellant's connection to a residential address and inadmissible opinion evidence identifying the appellant in surveillance video from that address.

The trial judge provided a timely and forceful mid-trial corrective instruction and reinforced it in the final charge to the jury.

The Court of Appeal upheld the dismissal of the mistrial application, finding that the corrective instructions were adequate to remedy any prejudice and that a mistrial was not necessary.

The court emphasized that mistrial is a remedy of last resort and that where corrective instructions can safely repair a compromised trial, they should be employed.