Dennis R. O'Connor

Following the dismissal of two related appeals brought by groups of developers, the successful municipal respondents sought costs.

The City of Mississauga sought partial indemnity costs of $70,379.25, while the Region of Halton and City of Burlington sought full indemnity costs of approximately $176,000.

The Court of Appeal determined that costs should follow the event on a partial indemnity scale.

Considering the complexity of the issues, the prior proceedings before the Ontario Municipal Board and Divisional Court, and the consolidated hearing, the court awarded $50,000 to Mississauga and $50,000 to Halton and Burlington.

The appellant appealed the dismissal of its motion for summary judgment, arguing the respondents' action was statute-barred.

The respondent was injured in a motor vehicle accident and commenced an action for both pecuniary and non-pecuniary damages more than two years after discovering her pecuniary loss, but within two years of discovering her injuries met the statutory threshold for non-pecuniary damages.

The Court of Appeal held that under the Bill 59 insurance regime, the legislature created separate causes of action for different heads of damages.

Therefore, the non-pecuniary damage claim was not statute-barred, and the appeal was dismissed.

The appellant was convicted of driving with a blood alcohol level over 80 milligrams.

At trial, she sought to exclude her breath samples under s. 24(2) of the Charter, arguing her s. 10(b) right to counsel was breached because a video camera was present in the room where she spoke to duty counsel.

The trial judge dismissed the motion, finding no evidence the camera was on or monitored, and that the appellant failed to establish a reasonable belief that her privacy was compromised.

The summary conviction appeal court and the Court of Appeal upheld the decision, concluding the appellant did not prove her Charter rights were infringed.

The appellant appealed the dismissal of its action against the respondent.

The trial judge found no breach of contract, as the appellant purchased the property on an 'as is where is' basis and the respondent fulfilled his obligation to deliver two reports without promising the property was contamination-free.

The trial judge also found no negligent misrepresentation, as there was no duty of care owed.

The Court of Appeal agreed with the trial judge's conclusions and dismissed the appeal.

The appellant appealed an award made by the trial judge.

The Court of Appeal found that it was open to the trial judge to make the findings she did and that there was no basis to interfere with the award.

The appeal was dismissed with costs fixed at $1,000.

The Attorney General of Canada brought an application to determine which Indian Bands were the beneficial owners of the Agency One Reserve, created in 1875 pursuant to Treaty 3.

The applications judge found that the reserve was set apart solely for the use and benefit of the Rainy Lake Bands, based on historical evidence including a 1908 surrender of land.

The Rainy River Bands appealed.

The Court of Appeal upheld the applications judge's decision on entitlement, finding it supported by the evidence.

However, the Court allowed the appeal and cross-appeal regarding costs, ordering the Crown to pay the bands' costs of the application on a substantial-indemnity basis due to its fiduciary role and its responsibility for the historical uncertainty.

The appellant appealed a summary judgment declaring that the parties had entered into a binding and enforceable settlement agreement.

The agreement required the appellant to deliver a final version of a DVD in exchange for an additional $10,000 payment.

The Court of Appeal dismissed the appeal, finding no genuine issue for trial, as the appellant's counsel had clearly and unequivocally accepted the offer via email.

The court also rejected arguments of economic duress and repudiation.

The appellant tenant appealed a motions judge's decision which found that his lease did not include the basement premises of the property.

The Court of Appeal held that the motions judge ignored relevant evidence, including a note on a schedule attached to the lease and an affidavit from the original landlord confirming the basement's inclusion.

The Court of Appeal allowed the appeal, set aside the motions judge's decision, and dismissed the respondent landlord's application, concluding that the basement was part of the demised premises.

The appellant appealed a trial judgment that limited its damages for lost parking spaces to the value of 20 spaces ($40,650) and dismissed its claim for injurious affection.

The Court of Appeal dismissed the appeal, finding that the trial judge relied on acceptable expert evidence and made no palpable and overriding error in his assessment of damages.

The Crown appealed a summary conviction appeal decision that overturned the accused's conviction.

The summary conviction appeal judge had found that the trial judge erred in admitting the certificate of a qualified technician, applying the criminal standard of proof to whether the accused received a true copy under s. 258(7) of the Criminal Code.

The Court of Appeal allowed the appeal, holding that the standard of proof for admissibility under s. 258(7) is a balance of probabilities.

The arresting officer's evidence that he read through the copy to ensure it matched the original was sufficient to support the trial judge's finding.

The conviction and sentence were restored.

The applicant, a municipal councillor convicted of criminal offences, was granted bail pending appeal with a condition prohibiting him from performing his duties for the balance of his term.

The Crown sought an additional condition prohibiting him from running in the upcoming municipal election.

The court dismissed the Crown's request, finding no statutory bar under the Municipal Elections Act and little risk of reoffending, concluding that it should be left to the electorate to decide whether to elect someone with his criminal record.

The applicant sought leave to appeal under s. 131 of the Provincial Offences Act following a summary conviction appeal court decision.

The appeal judge had overturned the trial judge's finding that delay caused irremediable prejudice to the applicant's fair trial rights due to missing inspector notes.

The Court of Appeal agreed with the appeal judge that the finding of prejudice was speculative and not linked to the delay.

The motion for leave to appeal was dismissed.

The moving parties sought a stay pending an application for leave to appeal to the Supreme Court of Canada from an order of the Court of Appeal refusing leave to appeal a Divisional Court decision.

The Divisional Court had upheld the revocation of the moving parties' motor vehicle inspection licences.

Applying the RJR-MacDonald test, the court found that the moving parties failed to demonstrate a serious question to be tried or that the balance of convenience favoured a stay, given the public safety concerns.

The motion for a stay was dismissed with costs.

The appellant was arrested for impaired driving and asked to speak to a specific lawyer.

After waiting over an hour for the lawyer to return the call, the police offered the appellant the opportunity to speak with duty counsel, which he refused.

He subsequently provided breath samples.

The trial judge excluded the breathalyzer results, finding a breach of the appellant's s. 10(b) Charter rights, and acquitted him.

The summary conviction appeal judge set aside the acquittal and ordered a new trial.

The Court of Appeal dismissed the appellant's appeal, holding that the availability of duty counsel is a crucial factor in determining reasonable diligence, and the appellant failed to exercise his right to counsel diligently when he refused duty counsel.

The appellants were convicted of first degree murder, kidnapping, aggravated sexual assault, and other offences arising from the confinement and fatal beating of the deceased.

On appeal, they challenged the admission of a witness's prior statement to police under the past recollection recorded exception to the hearsay rule, the jury instructions on the co-conspirator's exception to the hearsay rule, and several other aspects of the jury charge.

The Court of Appeal dismissed the appeals, finding that the witness's statement was properly admitted under both the traditional past recollection recorded criteria and the principled approach to hearsay, and that the trial judge's instructions to the jury were adequate and correct in law.

The Court of Appeal for Ontario issued a procedural endorsement consolidating three appeals involving the respondents Hamilton, Mason, and Spencer.

On consent, the court granted leave to intervene to several organizations, including the African Canadian Legal Clinic, the Native Women's Association of Canada, and Aboriginal Legal Services of Toronto.

The endorsement also established the timetable for perfecting the appeals, filing factums, and the allocation of time for oral arguments.

Wildlands League brought a motion for leave to intervene as a friend of the court on a motion for leave to appeal brought by the Minister of Natural Resources, and on the appeal if leave is granted.

The underlying dispute involves a company's right to use a road through Lake Superior Provincial Park for forestry operations.

The court granted the intervention, finding that Wildlands League could provide a useful perspective on the environmental assessment issues without causing injustice to the parties, subject to conditions including not adding to the evidentiary record.

The respondent sued the appellant doctor for negligently administering a spinal anaesthetic, which she alleged caused sensory loss and pain in her buttock and right thigh.

A jury found the appellant liable.

The appellant appealed the finding of liability, arguing that there was insufficient evidence of causation, that the trial judge's charge to the jury was defective, and that the trial judge erred in answering a jury question.

The Court of Appeal dismissed the appeal, finding that there was sufficient evidence to support the jury's verdict on causation, the jury charge was adequate and did not cause a miscarriage of justice, and the trial judge properly answered the jury's question.

The appellant appealed a motion judge's decision that its $4 million unliquidated damages claim for defective bottles did not qualify as a 'CCAA claim' under an April 3, 2002 Order.

The Court of Appeal dismissed the appeal, finding the motion judge's interpretation of his own order was reasonable and deserving of deference.

The Administration Fund was intended to protect suppliers who extended credit during the stay period, not to establish a preference for unliquidated damages claims.

In an addendum to a previous decision, the Court of Appeal for Ontario determined the issue of costs for the application and the appeal.

Agreeing with the submissions of the respondent Director, the court ordered that each party bear its own costs.