David M. Goodman

The appellant, Mr. Krebs, appealed a motion judge's decision that a cohabitation agreement with the respondent, Ms. Cote, was of no force and effect.

The motion judge erred by applying the common law rule that reconciliation terminates a separation agreement to a cohabitation agreement, by misinterpreting the parties' intentions, and by concluding that a $5,000 payment exhausted the agreement's terms.

The Court of Appeal held that the common law rule for separation agreements does not extend to cohabitation agreements, as the latter contemplates cohabitation.

Interpreting the agreement holistically, the Court found it was intended to be long-lasting and apply despite separations and reconciliations.

The $5,000 payment was not a triggering event that exhausted the entire agreement.

Following a trial regarding the validity of codicils to a will, the court determined the allocation and quantum of costs.

The Objectors, who unsuccessfully challenged the codicils on grounds of testamentary capacity and undue influence, argued that costs should be paid out of the estate.

The court applied a blended costs approach, ordering the Objectors to pay the successful parties' costs incurred after a second mediation, at which point the Objectors should have reassessed their position.

The court also significantly reduced the costs claimed by some of the successful parties due to duplication of effort and excessive docketing.

This endorsement addresses compliance with a previous court order regarding rent payments and premises vacation.

The applicant alleged the respondent breached the order by contacting subtenants and sought an injunction.

The respondent claimed the applicant owed additional rent and credited subtenant payments received.

The court reaffirmed the terms of the prior endorsement, requiring the applicant to pay rent as due (less subtenant payments received by the respondent) and stating that failure to pay would release the respondent from their undertaking not to remove the applicant.

The court declined to hear the injunction request due to the lack of a formal motion and factum, noting potential issues with establishing irreparable harm.

Costs were reserved.

The applicants, estate trustees of the late Ellen Kates, sought to propound codicils executed in August 2011.

The objectors challenged the codicils on the grounds of lack of testamentary capacity and undue influence, citing the testator's diagnosis of moderate Alzheimer's disease.

The court found that despite the cognitive impairment, the testator understood the nature and effect of the codicils, the extent of her property, and the claims of those excluded.

The court also found no evidence of coercion or fraud amounting to undue influence.

The codicils were admitted to probate.

The accused, charged with firearms trafficking, sought a bail review after being detained on the tertiary ground.

The reviewing judge found no error of law in the original bail judge's decision but concluded that a material change in circumstances had occurred.

The accused presented a new release plan involving house arrest, two suitable sureties, and an ankle monitor.

The court held that this new plan was sufficient to maintain public confidence in the administration of justice and ordered the accused's release.

The appellants (vendors) appealed a Small Claims Court decision awarding the respondent (purchaser) $17,488.27 in damages for a breach of warranty in a residential real estate transaction.

The trial judge found the vendors failed to disclose an HVAC rental contract and removed fixtures prior to closing.

The Superior Court of Justice applied the palpable and overriding error standard of review and found no basis to interfere with the trial judge's findings of fact.

The appeal was dismissed with costs awarded to the respondent.

The vendors appealed a Small Claims Court judgment awarding the purchaser $17,488.27 for breach of warranty in a residential real estate transaction.

The trial judge found the vendors failed to disclose an HVAC rental lien and removed fixtures prior to closing.

The Divisional Court applied the palpable and overriding error standard of review and found no basis to interfere with the trial judge's findings of fact.

The appeal was dismissed with costs.

The appellant purchased a statue at an auction in 2006, relying on the auction house's representations that it was an authentic work.

In 2018, he discovered it was a fake and that the auction house had been warned prior to the sale.

The trial judge found the auction house liable for fraudulent misrepresentation and ordered a refund, but failed to award prejudgment interest.

On cross-appeal, the Divisional Court varied the judgment to include $6,000 in prejudgment interest, finding that the cause of action arose in 2006 and the trial judge erred by failing to exercise her discretion under the Courts of Justice Act to address the interest claim.

The Crown applied to have Derek Fellows declared a dangerous offender pursuant to section 753(1) of the Criminal Code.

The offender pleaded guilty to sexually assaulting a 10-year-old boy by luring him into a forest and attempting forced anal intercourse, possessing child pornography, and breaching two court orders prohibiting contact with children.

The offender had a prior conviction in 2005 for repeatedly sexually assaulting a 7-year-old boy and multiple convictions for possessing child pornography.

The court found that all statutory criteria for dangerous offender designation were satisfied and imposed an indeterminate sentence of imprisonment.

The Crown applied to remove the accused's counsel of record due to an alleged conflict of interest.

The accused was charged with conspiracy to import cocaine.

The accused's employer, an unindicted co-conspirator in the same investigation, had previously declined to give a statement to police and referred them to the same lawyer, claiming him as his own counsel.

The court found that a confidential relationship likely existed between the employer and the lawyer, creating a realistic risk of a conflict of interest that could adversely affect trial fairness and the integrity of the justice system.

The application was granted and the lawyer was removed as counsel.

Meron Asfaw Zere was charged with possessing 1.3 kg of heroin for trafficking following a controlled delivery.

The central issue at trial was Zere's knowledge of the package's contents.

The Crown argued Zere had actual knowledge or was wilfully blind, citing circumstantial evidence including his association with the co-accused, his role as driver, the nature of the package contents (non-North American phone chargers), and cell phone records.

The court admitted cell phone records under common-law exceptions to the hearsay rule, finding them reliable and necessary.

However, the court found reasonable doubt that Zere was the person sending or receiving the incriminating phone calls and text messages, or that his police interview statements unequivocally demonstrated knowledge or willful blindness.

Consequently, the court dismissed the charges against Zere and entered an acquittal.

The appellants appealed a motion judge's decision dismissing their action for delay and refusing to restore it to the trial list.

The underlying action concerned alleged breach of contract by the respondent lawyer and his law firm regarding a beer supply contract with Labatt.

The action was commenced in 2005 but proceeded slowly, with examinations for discovery not completed until 2010.

The motion judge applied the two-part test from Nissar v. Toronto Transit Commission and found no acceptable explanation for the delay and non-compensable prejudice to the respondents, particularly due to the death of a key witness.

The Court of Appeal upheld the motion judge's decision, finding no error in law or discretion.

The accused, Michael Toussaint and Felicia Chapman, were tried together on multiple counts of gasoline theft and possession of stolen license plates.

The Crown relied on affidavit evidence from gas station managers and video surveillance showing heavy-set black individuals driving Nissan Altimas with stolen plates stealing gas.

The court admitted the similar fact evidence across counts due to striking similarities in the perpetrators' physical characteristics, clothing, vehicles, and methods.

Relying on circumstantial evidence, including the accused's possession of identical vehicles and the stolen plates, the court found both accused guilty of almost all charges, concluding there was no reasonable possibility of innocence.

The Crown prosecuted two accused for a series of gasoline thefts and possession of stolen license plates occurring between April 2016 and January 2017.

The accused were charged on separate informations but tried together.

The Crown relied on affidavit evidence from gas bar managers, closed-circuit video footage of the thefts, and circumstantial evidence linking both accused to the vehicles and stolen plates used in the offences.

Neither accused testified.

The court found both accused guilty of the theft charges (with one exception due to video distortion) and guilty of possession of stolen license plates based on the striking similarities in the methods of operation, physical characteristics, vehicles, and stolen plates used across all incidents.

The plaintiff was entirely successful on a motion for summary judgment for specific performance of an agreement of purchase and sale for a residential property.

The court determined the quantum of costs to be awarded to the plaintiff.

Finding the plaintiff's claimed fees and disbursements to be fair, reasonable, and proportional, the court awarded costs of $51,886.75 on a partial indemnity scale.

The plaintiff purchaser brought a motion for summary judgment for specific performance of an Agreement of Purchase and Sale for a residential property.

A dispute had arisen over easements, leading to negotiations for an abatement.

The defendant vendor's lawyer faxed a written offer for a $20,000 abatement, which the plaintiff's lawyer accepted in writing before the deadline.

The defendant argued the offer was verbally rejected or withdrawn during a phone call.

The court found no genuine issue for trial, concluding the offer was validly accepted in writing and never repudiated.

The court granted specific performance, finding the property unique to the plaintiff, and awarded damages for costs thrown away.

The appellant purchased an agreement of purchase and sale for a property containing a pub-style restaurant, golf course, residential apartments, and other amenities.

A dispute arose regarding whether the residential apartments constituted a legal non-conforming use under applicable zoning by-laws.

The appellant refused to close, claiming the deficiency was not remedied.

The motion judge dismissed the appellant's motion for summary judgment and the action, finding the appellant had waived its objection through conduct.

The Court of Appeal reversed, holding that the appellant had not communicated an unequivocal and conscious intention to abandon its right to rely on the deficiency, and therefore was entitled to return of deposits.

The moving party sought an extension of time to appeal from a decision dismissing his motion to set aside a consent order made in 2009.

The consent order had dismissed the moving party's action against the respondent, the executor of an estate.

The moving party alleged fraud and subsequently discovered facts as grounds for setting aside the order, claiming the executor falsely represented that estate assets remained.

The motion judge found no misrepresentation and that the moving party had failed to prove fraud or demonstrate after-acquired facts warranting the order's rescission.

The Court of Appeal dismissed the motion for extension of time, finding no bona fide intention to appeal within the relevant period, no adequate explanation for the delay, and no merit to the proposed appeal.

The plaintiff sought the return of deposits paid for a property, bringing a motion for summary judgment on the basis that the property's residential tenancy use could not be lawfully continued.

The defendant argued that the plaintiff had waived this objection.

The court dismissed the plaintiff's motion and granted summary judgment to the defendant, finding that the plaintiff had, through its conduct and amendments to the Agreement of Purchase and Sale, communicated an unequivocal intention to abandon its right to terminate the agreement based on the use objection.

The applicant, Mr. Su, brought a motion under Rule 59.06(2)(a) to set aside a consent order that dismissed his property claims against the estate of Gab Yi Lam, alleging fraud or newly discovered facts regarding the estate's assets.

The court found that Mr. Su had access to information revealing the lack of estate assets prior to agreeing to the consent order.

Any misleading information about the estate's value was provided after the consent order was made and was subsequently corrected.

The court concluded that Mr. Su failed to prove fraud or demonstrate any after-acquired facts that would warrant setting aside the consent order.

The motion was dismissed.