Dennis R. O'Connor

The appellants, who acted as real estate agents in the sale of a property for a dental office, appealed a trial judgment finding them liable in negligence after the purchaser discovered the property lacked the required parking spaces.

The trial judge apportioned 20% liability to each agent, 10% to the vendor, and 50% to the purchaser's lawyer.

On appeal, the appellants argued the vendor should bear more fault due to receiving the financial benefit of the sale, claimed unjust enrichment against the vendor, and argued the limitation period had expired based on the purchaser's lawyer's imputed knowledge.

The Court of Appeal dismissed the appeal, holding that benefit received is not a freestanding consideration for apportionment under the Negligence Act, the agents suffered no deprivation to support unjust enrichment, and the trial judge did not err in his discoverability analysis.

The young person appealed findings of guilt for three offences related to the sexual touching of a young child while babysitting.

The appellant argued the trial judge failed to properly scrutinize the complainant's evidence, improperly shifted the burden of proof by referencing the appellant's failure to testify, and failed to properly consider defence expert evidence regarding the appellant's psychological profile.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's assessment of the evidence or application of the burden of proof.

The appellant, a paralegal, acted as an agent for an accused in a Provincial Offences Act trial.

After the trial, the justice of the peace initiated proceedings under s. 50(3) of the Act and barred the appellant from appearing before him as an agent.

The appellant's application for certiorari was dismissed by the Superior Court.

On appeal, the appellant argued the justice of the peace lacked jurisdiction to make the order after the trial concluded and alleged a reasonable apprehension of bias.

The Court of Appeal dismissed the appeal, finding that the justice of the peace had jurisdiction under the second branch of s. 50(3), which relates to an agent's general conduct and understanding of their duties, and that there was no reasonable apprehension of bias.

The appellants purchased a new townhouse and discovered dampness in the basement due to a cement slab that did not meet the Ontario Building Code depth requirement.

They sued the builders and the Ontario New Home Warranty Plan after rejecting a proposed sealant solution.

The trial judge awarded $29,700 in damages against the builders but dismissed the claim against the Plan, finding the appellants failed to mitigate by refusing a reasonable solution.

The Court of Appeal dismissed the appeal and cross-appeal, upholding the trial judge's factual findings and damages assessment.

The appellant appealed an order quashing his discharge on a charge of first degree murder following a preliminary inquiry.

The preliminary hearing judge had found that the pathologist's evidence of force applied to the deceased's wrists could not support an inference of forcible confinement, weighing it against other evidence.

The Court of Appeal held that the preliminary hearing judge committed jurisdictional error by improperly weighing competing inferences.

The appeal was dismissed.

The appellants appealed convictions and penitentiary sentences arising from prolonged physical, emotional, and sexual abuse of a vulnerable complainant in a domestic setting.

The court rejected arguments that the trial judge conflated credibility and reliability, misapprehended medical and nursing evidence, rendered unreasonable verdicts, or misapplied the burden of proof under the W.(D.) framework.

Reading the reasons as a whole, the court held that the trial judge properly considered the entire evidentiary record, the defence fabrication theory, and the requirement of proof beyond a reasonable doubt.

Leave to appeal sentence was granted, but the sentence appeals were dismissed as the global sentences, including consecutive terms for one appellant, were fit.

The appellant employer appealed a trial judgment finding it had constructively dismissed the respondent by unilaterally reducing his commission from 18% to 9%.

The trial judge awarded a 15-month notice period, 3 months of Wallace damages for a toxic work environment, and 8 years of unpaid vacation and public holiday pay.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings on constructive dismissal, the Bardal factors for notice, the Wallace damages, and the respondent's entitlement to statutory holiday and vacation pay under the Employment Standards Act.

The plaintiffs brought an action including a claim for oppression under the Canada Business Corporations Act (CBCA) alongside eight other causes of action.

The defendant obtained an order for security for costs from a master, which was upheld by a Superior Court judge.

The plaintiffs sought leave to appeal to the Court of Appeal under s. 249(2) of the CBCA, arguing the CBCA governed the appeal route.

The defendant moved to quash the application, arguing the proper route was to the Divisional Court under the Rules of Civil Procedure.

The Court of Appeal granted the motion to quash, finding that the core of the action was not an oppression claim and the plaintiffs had already initiated the appeal process under the civil rules.

The appellants appealed an order confirming a Master's report that awarded compound interest on the respondent's lost profits from misappropriated trust property.

The Court of Appeal dismissed the appeal, finding no error in principle in the Master's discretionary decision to award compound interest.

The Court noted that in cases of wrongfully misappropriated trust property, it is open to the court to presume the injured party is entitled to compound interest, and the appellants failed to adduce evidence to rebut this presumption.

The appellant sued his former solicitor for negligence regarding the sale of a taxi business, claiming the solicitor failed to advise him of a discrepancy in interest payments under the sale agreement.

The trial judge found the solicitor negligent but dismissed the action because the appellant failed to prove damages.

On appeal, the Court of Appeal upheld the trial judge's decision, noting that without the solicitor's negligence, the sale would not have occurred, and the appellant provided no evidence that the business was worth more than the amount received.

The appellant appealed the dismissal of its claim for payments under a 2006 contract renewal notice.

On appeal, the appellant argued for the first time that the respondent was estopped from claiming reimbursement due to its failure to respond to the notice within thirty days.

The Court of Appeal dismissed the appeal, holding that the appellant failed to meet the test for raising a new argument on appeal, as the evidentiary record regarding detrimental reliance and fairness was not fully developed at trial.

The appellants purchased goods from the respondent under a contract stating the goods must be free of liens.

After accepting the goods and making payment, the appellants discovered an outstanding lien and sought to repudiate the contract.

The trial judge found the breach should be treated as a breach of warranty under s. 12(3) of the Sale of Goods Act, entitling the appellants to damages rather than repudiation.

The Court of Appeal upheld this finding, noting the appellants' actions were consistent with treating the term as a warranty.

The appeal was dismissed, but execution of the judgment was stayed up to $40,000 pending resolution of a Third Party Notice from the Ministry of Revenue.

The appellant appealed a decision denying his application to amend his statement of claim to plead illegal consideration.

The Master and the appeal judge had refused the amendment, finding it an abuse of process because a judge on a prior interlocutory injunction motion ruled the allegation did not raise a triable issue.

The Court of Appeal allowed the appeal, holding that a refusal to grant an interlocutory injunction is a preliminary decision and does not finally determine the cause of action.

The appellant was granted leave to amend his statement of claim.

Following a successful appeal regarding the right to issue third party claims, the appellants sought costs.

The parties agreed on the quantum of costs but disputed the timing of payment.

The Court of Appeal ordered costs payable forthwith, finding no special circumstances to justify a delay in payment.

The young person, charged with first degree murder, brought a motion to refer her detention order to a panel of judges for reconsideration.

She had been detained on tertiary grounds under the Criminal Code.

The motion judge found that the interim release judge correctly considered all circumstances, including the strength of the Crown's case regarding her alleged role as the instigator of the murder.

Finding no reasonable prospect of success on a reconsideration, the motion was dismissed.

Four of the fourth parties brought a motion to intervene on an appeal of a summary judgment granted in favour of the plaintiff against the defendants.

The moving parties argued that the motion judge made unanticipated and impermissible findings of credibility and fact against them, which could prejudice their position in the forthcoming trial.

The court granted the motion to intervene on conditions, finding that the moving parties had a similar interest to the appellants on some issues and that their intervention could be structured so as not to unfairly prejudice the respondent.

The appellant appealed the trial judge's decision upholding his termination for cause.

The appellant had been absent from work for three months, failed to provide satisfactory medical documentation, and ignored the employer's direction to file a claim for short-term disability benefits.

Although the trial judge failed to provide reasons for concluding that this misconduct justified termination without notice, the Court of Appeal dismissed the appeal.

The Court found that the trial judge's findings of fact, including the appellant's failure to communicate with the employer and his engagement in part-time work elsewhere while medically fit to return, supported the conclusion that the employment relationship had broken down.

The Court of Appeal issued an endorsement regarding costs following an appeal.

The appellant was ordered to pay the respondents' costs fixed at $4,000 for the proceedings in the court below and $4,000 for the appeal, inclusive of disbursements and GST.

The appellant appealed a motion judge's refusal to declare that its default judgment against the respondent survived the respondent's bankruptcy under s. 178(1)(d) of the Bankruptcy and Insolvency Act, and the refusal to grant leave to issue a Writ of Seizure and Sale.

The Court of Appeal found the motion judge erred by applying a criminal standard of proof to the s. 178(1)(d) declaration and set that refusal aside.

However, the Court upheld the refusal to grant leave to issue the Writ of Seizure, as the respondent had detrimentally relied on the appellant's delay in asserting its claim during the bankruptcy proceedings.

The respondent sought substantial indemnity costs following an appeal.

The Court of Appeal declined to award substantial indemnity costs and instead ordered the appellant to pay the respondent's costs of the appeal fixed at $15,000, inclusive of disbursements and GST.