Douglas G. Christie

The Court of Appeal issued a costs endorsement following the dismissal of two appeals by the appellant, African Lion Safari & Game Farm Ltd. The appellant was ordered to pay costs of $100,000 inclusive of GST and disbursements to the Cowles and Balac respondents, to be allocated between them.

An additional $20,000 inclusive of GST and disbursements was awarded to Jennifer Anne Cowles for her separate representation.

In this personal injury appeal arising from a tiger attack at a drive-through safari zoo, the appellant challenged liability findings, the striking of its jury notice, the exclusion of surveillance evidence, and the treatment of contributory negligence in strict liability.

The majority held that the trial judge applied the correct jury-discharge test and was entitled to conclude that the legal, medical, actuarial, and evidentiary complexities made a judge-alone trial preferable.

Although the majority agreed that the investigator's evidence was wrongly excluded because any breach of professional conduct rules was a matter for the Law Society and not admissibility, the error was harmless because the appellant failed to show any possible effect on the result.

The majority also held it was unnecessary to decide the contributory negligence issue because the trial judge found the plaintiffs had not deliberately lowered the windows, and found no palpable and overriding error in the factual findings.

The appeal was dismissed, with a partial dissent that would have ordered a new trial on liability.

The accused, a tax protestor, was charged with making a false statement on his tax return and tax evasion after failing to report income and pay taxes based on his belief that the federal government lacked the constitutional power to impose income tax.

At trial, the jury convicted him of making a false statement but acquitted him of tax evasion.

The Crown appealed the acquittal, and the accused appealed the conviction.

The Court of Appeal allowed both appeals and ordered a new trial on both counts.

The Court held that the trial judge erred in instructing the jury that an honest belief in the unconstitutionality of the Income Tax Act could negate the mens rea for tax evasion.

Furthermore, the Court found the jury's verdicts to be irreconcilably inconsistent, as the same defence was advanced for both charges.

The tenant appealed a judgment interpreting a commercial lease.

A purchaser agreed to buy all of the tenant's shares, constituting a change in control and a 'transfer' requiring the landlord's consent.

The landlord consented while reserving its rights, and argued that under clause 11.03(b) it was entitled to an amended lease with increased rent.

The tenant argued the landlord's only option was to terminate the lease.

The Court of Appeal upheld the applications judge's finding that the change in control triggered clause 11, obliging the tenant to sign a new lease with increased rental payments, as the tenant's interpretation would render much of the clause ineffective.

Following a decision ordering a new trial, the court issued an addendum on costs.

The court clarified that the new trial would only extend to claims that formed the subject-matter of the appeal, and stayed the execution of a damages award against one respondent pending the new trial.

The costs of the first trial were reserved to the presiding justice at the new trial.

The appellant was awarded costs of the proceedings in the Court of Appeal, fixed at $36,000 on a partial indemnity basis, specifically for the motion to introduce fresh evidence.

The appellant employer appealed a trial judgment that found it had wrongfully dismissed the respondent employee and dismissed its claims for breach of fiduciary duty.

On appeal, the appellant brought a motion to introduce fresh evidence showing the respondent had been criminally charged with defrauding the appellant of over $200,000 through a secret scheme involving a third-party corporation.

The Court of Appeal admitted the fresh evidence, finding it met the Palmer criteria, including due diligence, as the evidence was largely uncovered through a subsequent police investigation.

Concluding that the fresh evidence could have decisively affected the trial judge's findings on the respondent's credibility and loyalty, the Court allowed the appeal and ordered a new trial.

A motion was brought to determine the proper appellate jurisdiction for appeals and cross-appeals arising from judgments on construction lien and breach of trust claims under the Construction Lien Act.

The Court of Appeal held that section 71(1) of the Act applies to both lien claims and trust claims, meaning all such appeals lie to the Divisional Court.

The motion was granted and the appeals were transferred to the Divisional Court.