David H. Doherty

The appellant appealed and the respondent cross-appealed an order of the Divisional Court.

The Court of Appeal agreed with the Divisional Court's interpretation of s. 8 of the Statutory Powers Procedure Act and found no merit in the other grounds raised on the cross-appeal, including the costs order imposed by the Tribunal.

The cross-appeal was dismissed with no costs.

The Superintendent of Financial Services appealed a Divisional Court order that vacated a Tribunal's revocation of Sussman Mortgage Funding Inc.'s licence and substituted a lesser penalty with terms.

The Court of Appeal agreed that the Tribunal erred by not allowing Sussman to make penalty submissions, but found the Divisional Court erred in law by failing to provide reasons for substituting the penalty.

The Court of Appeal allowed the appeal in part, remitting the matter to a differently constituted Tribunal to assess the penalty based on the original findings of conduct.

The Crown appealed a Summary Conviction Appeal Court decision that overturned the respondent's conviction.

The trial judge had found that the respondent had no realistic opportunity to consult counsel before a roadside screening device arrived, based on the late hour and the short, anticipated delay of five to ten minutes.

The Summary Conviction Appeal Court substituted its own findings of fact, concluding the respondent had a cell phone and faced an unknown delay.

The Court of Appeal held that the Summary Conviction Appeal Court erred in substituting its findings, as the trial judge's findings were supported by the evidence.

The appeal was allowed and the conviction restored.

The appellant blocked a channel between his property and the respondents', causing water to back up.

The trial judge found the channel was a natural watercourse, not merely surface water, and ordered the appellant to remove the barrier and pay damages.

On appeal, the appellant argued the trial judge erred in classifying the partially artificial channel as a natural watercourse and in finding it maintained its character downstream.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the channel was a well-defined natural watercourse where it was blocked.

The appellants, an estate trustee and her former counsel, appealed a trial judgment finding that joint bank accounts held by the trustee and her late father belonged to the estate, and ordering the counsel to repay estate funds taken for legal fees.

The Court of Appeal dismissed the trustee's appeal, holding that while the trial judge erred in law by rejecting the presumption of advancement for adult children, the evidence clearly established the father did not intend to gift the joint accounts.

The counsel's appeal was allowed, setting aside the substantial indemnity costs order against him and directing an assessment of his legal accounts.

In a divorce proceeding, the husband's answer was struck out under Rule 14(23) of the Family Law Rules for failing to obey three prior court orders requiring him to pay the wife $54,500.

The husband appealed, arguing that the wife's ability to withdraw funds from a joint mutual fund constituted compliance.

The Court of Appeal rejected this argument and found no error in the motion judge's exercise of discretion.

However, noting that the answer included custody and access issues, the Court ordered that if the husband fully satisfied the orders by October 28, 2005, his answer regarding custody and access only would be revived.

The appeal was otherwise dismissed.

The appellant mother appealed a custody order that placed the child in the custody of the respondent father after she relocated out of the jurisdiction.

She argued the trial judge misapplied the law and failed to properly weigh the factors regarding the child's best interests.

She also sought to introduce fresh evidence regarding the father's association with an individual charged with drug offences.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's application of the best interests test or his weighing of the evidence.

The court also admitted the fresh evidence but concluded it did not warrant setting aside the custody order, noting the mother had not raised concerns with child care authorities and had elected not to return to the jurisdiction.

The Children's Lawyer appealed an order directing it to prepare an update of an earlier report.

The Court of Appeal allowed the appeal, finding that the motion judge erred by directing rather than requesting the report in accordance with s. 112(2) of the Courts of Justice Act.

The order was varied to delete the reference to the report, leaving open the question of whether a judge has jurisdiction to direct a report if a request is declined.

The appellants appealed a trial judgment dismissing their claim for conveyance of lands and granting the respondent's counterclaim for occupation rent based on unjust enrichment, trespass, and registering a certificate of pending litigation without a reasonable claim.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's refusal to allow the appellants to discontinue their action on the first day of trial, her decision to allow post-trial pleading amendments, or her assessment of damages for trespass and the aborted sale.

The appellant appealed a trial judgment regarding the interpretation of a commercial agreement and alleged misrepresentations about a liquor licence.

The Court of Appeal upheld the trial judge's finding that the terms of the liquor licence were generally known to the public and could be learned through due diligence.

The court also upheld the finding of fact that no misrepresentation was made and found no basis for granting relief from forfeiture.

The appeal was dismissed with costs.

The appellant appealed his convictions on the ground that the trial judge failed to properly consider whether the Crown had disproved unconscious influence among the three complainants when admitting similar fact evidence.

The Court of Appeal found that the trial judge properly addressed the potential effect of contact on the probative value of the evidence and concluded that the testimony was not tainted.

The appeal was dismissed.

Following an appeal, the successful appellants sought costs.

The Court of Appeal awarded partial indemnity costs to the appellants for both the motion and the appeal.

The costs awarded to two of the appellants were made payable only upon their satisfaction of a prior judgment, while the costs awarded to the third appellant were made payable within thirty days.

The appellant appealed his convictions for rape and indecent assault, seeking to introduce fresh evidence of a letter authored by the complainant which she denied writing at trial.

The Court of Appeal admitted the evidence, finding that trial counsel exercised due diligence and the interests of justice compelled its admission.

The court held the evidence could have affected the verdict on all counts by impacting the complainant's credibility.

The court also noted the trial judge failed to provide an adequate limiting instruction regarding moral prejudice reasoning between the counts.

The appeal was allowed, convictions quashed, and a new trial ordered.

The appellant appealed an order committing him for extradition to the United States on charges of conspiracy and attempt to launder proceeds of crime obtained by trafficking in a controlled substance.

The Court of Appeal found that while the evidence supported an inference that the cash was from illicit activity, there was no evidence specifically linking it to drug trafficking.

The Court rejected the respondent's argument that the specific offence named in the Authority to Proceed was mere surplusage, holding that section 29(1) of the Extradition Act requires evidence justifying committal for the specific offence set out.

The appeal was allowed and the appellant discharged.

The appellant appealed his conviction for impaired driving, arguing he did not have care and control of the vehicle.

The trial judge applied the law from R. v. Toews and found a real risk that the extremely impaired appellant could have woken up and driven the vehicle.

The summary conviction appeal court judge upheld this finding as not unreasonable.

The Court of Appeal found no error of law and dismissed the appeal.

The Crown appealed an acquittal entered after the trial judge refused an adjournment.

A subpoenaed witness had left the courthouse.

The Court of Appeal held that the refusal to allow the adjournment was arbitrary and calculated to bring the administration of justice into disrepute.

The appeal was allowed, the acquittal set aside, and a new trial ordered.

The appellant appealed their conviction and sentence for possession of heroin.

The Court of Appeal dismissed the conviction appeal, finding ample evidence supported the trial judge's conclusion that the appellant possessed the heroin.

However, the Court allowed the sentence appeal, finding that the disparity between the appellant's five-year sentence and the co-accused's four-year sentence constituted an error in principle.

The appellant's sentence was varied to four years.

The appellant appealed her conviction for possession of heroin, arguing the verdict was unreasonable and that she was improperly cross-examined on a conditional discharge.

The Court of Appeal dismissed the appeal, finding the verdict was open to the trial judge based on the evidence.

Although the cross-examination on the conditional discharge was improper, the court concluded it played no role in the trial judge's rejection of the appellant's incredible evidence.

The appellant appealed his conviction for second-degree murder and his sentence of life imprisonment with 16 years of parole ineligibility.

He argued that his statements to police, which led to the discovery of his wife's cremated remains and forensic evidence in his home, were obtained in violation of his Charter rights under s. 10(b) and s. 7.

He also challenged the trial judge's use of his after-the-fact conduct to infer murderous intent and the assessment of expert bloodstain evidence.

The Court of Appeal dismissed the conviction appeal, finding no Charter breaches and no errors in the trial judge's reasoning.

However, the sentence appeal was allowed, and the parole ineligibility period was reduced to 13 years to accord with the parity principle for domestic murders.

The plaintiff brokerage firm sued a competing firm and several former employees for breach of fiduciary duty, breach of confidence, and wrongful interference with economic interests after the defendants aggressively recruited the plaintiff's employees.

The defendants sought to plead the plaintiff's own past recruiting practices as a defence.

The Court of Appeal held that the defendants could not rely on the plaintiff's past practices as a defence to the claim for equitable relief under the clean hands doctrine, as there was no direct connection to the transaction at issue.

However, the defendants were permitted to plead the plaintiff's recruiting practices as a defence to the claim for punitive damages, as the plaintiff's similar conduct could diminish the outrage associated with the defendants' actions.