Eileen E. Gillese

This is a costs endorsement from the Court of Appeal for Ontario following an appeal from a Superior Court decision.

The appellant sought costs in the court below.

The respondent made no submissions on the costs issue.

The Court of Appeal fixed costs at $12,500, inclusive of disbursements and all applicable taxes, payable to the appellant within 30 days.

The appellant was convicted of breaking into and assaulting a 68-year-old woman and breaking into and raping a 54-year-old woman.

He was declared a dangerous offender and sentenced to an indeterminate term.

On appeal, the appellant challenged the admission of DNA evidence obtained through a saliva sample, arguing his Charter rights were violated.

He also challenged the trial judge's failure to preserve evidence and appealed his indeterminate sentence.

The Court of Appeal dismissed all grounds of appeal, finding no Charter violations in the DNA seizure, that the trial judge properly exercised her discretion regarding the destroyed evidence, and that the indeterminate sentence was appropriate given the appellant's high risk of reoffending and consistent refusal to engage in treatment.

This is a costs decision arising from an appeal of an order made under s. 490 of the Criminal Code.

The pawnbroker successfully obtained an order for return of a stolen diamond that had been seized by police during a criminal investigation.

The estate of the original owner appealed the order.

The Court of Appeal allowed the appeal.

Both parties subsequently sought costs of the appeal.

The court held that it lacked jurisdiction to award costs, as s. 683(3) of the Criminal Code expressly prohibits the allowance of costs to either the appellant or respondent on the hearing and determination of an appeal.

An employee with a disability developed arm and hand problems due to work demands and was placed on medical leave, then terminated.

The employee sued for wrongful dismissal and Human Rights Code violations.

The trial judge awarded 15 months' pay in lieu of notice and $10,000 in damages, finding the employer had accommodated the disability to the point of undue hardship and that disability was a factor in termination.

On appeal, the employee sought additional damages for lost income during the leave period, while the employer cross-appealed arguing the employment contract was frustrated.

Both the appeal and cross-appeal were dismissed, with the court finding no palpable and overriding error by the trial judge.

The Municipality of Port Hope was wholly successful on appeal and cross-appeal.

The applicants sought to avoid a costs award by arguing the matter was brought in a representative capacity on a matter of public interest involving novel legal issues.

The Court of Appeal rejected this submission, finding that the applicants acted to vindicate private financial interests and that the issues lacked significant societal impact.

The court awarded costs to the Municipality in the agreed-upon sum of $93,319.11, all inclusive.

The appellant, a personal guarantor of corporate indebtedness, appealed a summary judgment awarding the respondent lender US$3 million plus interest at 21% on his personal guarantee.

The guarantor had negotiated an amended guarantee that excluded facility and forbearance fees totaling US$2.75 million from his liability.

The lender acquired the company's assets through a receivership sale, with the purchase price calculated as total debt less US$3 million.

The Court of Appeal found that the motion judge erred by failing to consider that the amended guarantee served to reduce the company's obligations that were guaranteed.

The court held that the guarantor's liability should be calculated as the remaining debt after the credit bid (US$3 million) less the excluded fees (US$2.75 million), resulting in liability of only US$250,000.

The appellant appealed his conviction for first-degree murder, challenging the admissibility of his confession obtained through a police undercover operation styled as an insurance fraud scheme.

The operation involved undercover officers posing as a private investigator and a terminally ill man seeking to confess to the murder in exchange for insurance proceeds.

The appellant argued the confession was obtained through a "Mr. Big" operation that did not meet the admissibility criteria established in R. v. Hart and that the trial judge's jury charge was inadequate under R. v. Mack.

The Court of Appeal held that although the operation was a modified version of a classic Mr. Big scheme, the Hart test applied.

The confession met the threshold reliability requirements, the probative value outweighed prejudicial effect, and there was no abuse of process.

The jury charge adequately addressed the Hart and Mack criteria.

The appeal was dismissed.

This is a costs endorsement following the dismissal of a review motion and appeals in a family law matter involving guardianship and estate issues.

The court awarded costs to the successful party, Michael Childs, on a partial indemnity basis.

The costs were to be paid from the assets of the incapable person (Eileen Childs) through her guardian, BMO Trust Company, with the amounts to be offset against any inheritance received by the unsuccessful parties.

The applicant sought to enforce an agreement between Canada and three municipalities regarding the storage of low-level radioactive waste.

The applicant alleged that the municipality had misused income earned on a $10 million payment by failing to apply it exclusively to defray lower-tier municipal taxes for ratepayers of the former Hope Township.

The application judge found that Schedule 8 of the agreement created a non-charitable purpose trust and that the municipality had breached its trustee duties.

The Court of Appeal reversed, holding that the agreement was a contract and did not create a trust over the payment or the fund.

Two consolidated appeals concerning guardianship and personal care arrangements for an elderly woman with Alzheimer's disease.

The applications judge appointed one daughter as guardian of personal care and a trust company as guardian of property, with compensation awarded to the daughter for past care services.

A subsequent motion to vary the guardianship order was heard based on changed circumstances.

The appellants challenged the guardianship appointments, the compensation award, and alleged judicial bias and misconduct by the section 3 counsel.

The Court of Appeal dismissed all appeals, finding no error in the applications judge's decisions and rejecting allegations of bias and misconduct.

This is a costs endorsement following a partial appeal in a family law matter.

The appellant was successful in reducing the quantum of spousal support on appeal but was wholly unsuccessful on the equalization payment issue and failed on several other grounds relating to spousal support.

The court affirmed the trial costs and awarded the appellant partial costs of the appeal in a fixed sum, reflecting his limited success.

Appeal of a Divisional Court decision certifying a class proceeding brought by a former client against a personal injury law firm for alleged violations of the Solicitors Act relating to contingency fee agreements.

The applicant alleged the firm violated section 28.1(8) by including costs in its fees without court approval, charged interest contrary to section 33, and breached fiduciary duties and contracts.

The Court of Appeal dismissed the firm's appeal and allowed the applicant's cross-appeal in part, upholding certification of the class proceeding with 18 of 19 common issues (deleting one issue regarding whether the firm actually took amounts for costs) and certifying two additional common issues regarding breach of fiduciary duty and punitive damages.

The appellant was convicted of one count of indecent assault and one count of gross indecency relating to a complainant (TS) for events that occurred in 1978 when the complainant was 16 years old and the appellant was her skating coach.

He received a 12-month conditional sentence.

On appeal, the appellant challenged the trial judge's credibility findings and the admission of reply evidence from the complainant's boyfriend.

The Court of Appeal upheld the convictions, finding no palpable and overriding error in the credibility assessments and determining that the reply evidence was properly admitted as it addressed a live issue that arose from the defence case.

The plaintiff sued the estate of a deceased priest and a Roman Catholic Episcopal Corporation for damages arising from sexual assault.

The corporation cross-claimed against the estate for contribution and indemnity.

The motion judge applied section 18 of the Limitations Act, 2002, finding the two-year limitation period ran from service of the plaintiff's claim on the corporation.

The estate appealed, arguing section 38(3) of the Trustee Act applied, with the limitation period running from the priest's death.

The Court of Appeal allowed the appeal, holding that section 38(3) of the Trustee Act applies to cross-claims and prevails over section 18 of the Limitations Act, 2002 by virtue of section 19(4) of the Limitations Act, 2002.

The cross-claim was statute-barred.

A pawnbroker brought an application under s. 490(7) and (9)(c) of the Criminal Code seeking return of a diamond seized by police during a criminal investigation.

The diamond had been stolen from the deceased and pawned to the pawnbroker, from whom police seized it.

The application judge granted the order without notice to the estate of the deceased, who had an ownership interest in the diamond.

The estate appealed, arguing it was entitled to participate in the application.

The Court of Appeal allowed the appeal, finding that although the pawnbroker met the statutory notice requirements by notifying the Attorney General, the application was made on an ex parte basis and the pawnbroker failed to make full and frank disclosure of material facts, including the estate's competing claim to the diamond.

Hercules Moulded Products Inc. appealed a summary judgment dismissing its claims against Stewart Title Guaranty Company for indemnification under a Commercial Lender Endorsement title insurance policy.

The claims arose from problems with two adjacent properties in Windsor, Ontario that Hercules held as security for a mortgage.

The issues included: (1) the cost of filling an excavation ordered by the City of Windsor, added to the tax bill; (2) development agreements registered on title; and (3) an alleged encroachment.

The Court of Appeal affirmed the dismissal on two primary grounds: first, the excavation matter was excluded from coverage under the policy's non-disclosure provision as it was known to Hercules but not disclosed to Stewart before the policy date; and second, the development agreements and encroachment caused no actual loss or damage as required by the policy.

The appellant appealed a Consent and Capacity Board decision finding him incapable of consenting to antipsychotic and mood stabilizer treatment.

The board had granted an adjournment to allow the appellant to obtain counsel, but when the hearing resumed, the appellant appeared without counsel.

The majority held that the board did not breach procedural fairness because the appellant did not refuse legal representation but rather indicated he was prepared to represent himself.

The dissent argued the board failed to follow its own guidelines requiring a mini-inquiry to determine whether the appellant was making an informed decision to proceed without counsel, and that the board should have intervened when the appellant's condition deteriorated during the hearing.

A long-serving McDonald's restaurant manager was constructively dismissed when offered a demotion to first assistant with meaningfully inferior benefits or termination.

The trial judge awarded damages based on a 20-month notice period (inclusive of statutory entitlements) representing approximately 20 years of service, accounting for a service credit letter.

The Court of Appeal upheld the decision, finding constructive dismissal, no failure to mitigate by refusing the demotion, and proper calculation of the notice period.

The court clarified that employment income earned during the statutory entitlement period is not deductible as mitigation, and that supplementary employment income that could have been earned concurrently with the original employment is also not deductible.

The appellant appealed a 12-month prison sentence imposed for fraud over $5,000 contrary to s. 380(1)(a) of the Criminal Code.

The appellant, an accountant and real estate agent, had prepared 292 false tax returns using clients' personal information without consent between 2009 and 2012, obtaining $35,321 through fraudulent tax refunds while attempting to obtain $343,840.

The sentencing judge rejected a conditional sentence, emphasizing general deterrence and denunciation as paramount in fraud cases involving breaches of trust.

The appellant argued the sentencing judge erred by failing to consider his offer of restitution.

The Court of Appeal found the failure to consider restitution was an error in principle but held it did not impact the sentence imposed, as restitution must take a secondary role to deterrence and denunciation in large-scale fraud cases involving breaches of trust.

The appellant was convicted of first degree murder for driving a taxi from which a youth shot and killed the deceased.

The Crown's case relied on evidence from two witnesses: the front-seat passenger who testified that the appellant knew of the plan to kill the deceased, and the shooter himself who testified that the appellant had no knowledge of his plan.

The trial judge made numerous interventions during the shooter's testimony, expressing disparaging views about his credibility and reliability.

The trial judge also gave a Vetrovec instruction regarding the shooter's evidence, permitted re-examination of the passenger on prior consistent statements, and instructed the jury on the standard of proof.

The appellant appealed on five grounds.