Eleanore A. Cronk

The appellants, owners of property in Wychwood Park, Toronto, challenged their obligation to pay annual levies under an 1891 trust deed governing common property in the residential community.

The appellants argued that the positive covenant to pay levies does not run with freehold land under Ontario law.

The trial judge dismissed the trustees' claim, accepting the positive covenants argument.

The appeal judge reversed, holding that both the benefit and burden exception and the conditional grant exception to the positive covenants rule apply under Ontario law.

The Court of Appeal allowed the appeal, holding that the appeal judge erred by failing to follow binding precedent in Amberwood Investments Ltd. v. Durham Condominium Corp. No. 123, which established that neither exception forms part of Ontario law.

The court found that the grants of benefit in the trust deed were not framed as conditional upon payment of the levy, and therefore the conditional grant exception did not apply.

The appellants, owners of property within Wychwood Park, a residential community in Toronto, challenged their obligation to pay annual levies for maintenance and taxes of common property pursuant to a 1891 trust deed.

The respondent trustees sought to recover unpaid levies from 2010-2013.

The appellants invoked the common law rule that positive covenants do not run with freehold land.

The Court of Appeal for Ontario held that the positive covenant obligation was not enforceable against the appellants, as neither the "benefits and burdens" exception nor the "conditional grant" exception to the positive covenant rule applied under Ontario law.

The court affirmed that the Amberwood precedent, which rejected adoption of these exceptions in Ontario, remained binding.

The appellant appealed his conviction for sexual interference involving his daughter when she was between the ages of 3 and 9.

The appellant argued that the trial judge erred in applying the R. v. W.(D.) test and provided insufficient reasons.

The Court of Appeal upheld the conviction, finding no reversible error in the trial judge's credibility assessments, her application of the proper legal test, or the adequacy of her reasons.

The trial judge's findings were entitled to deference, and the pathway to conviction was fully explained in the reasons provided.

An accounting firm filed a corporate client's tax returns after the due date, resulting in the denial of approximately $550,000 in tax credits by the Canada Revenue Agency.

The client received notices of assessment in April 2010 and pursued administrative remedies through the CRA appeal process, with the accountant's assistance, until May 2011 when the CRA advised it intended to confirm the assessments.

The client commenced a negligence action in August 2012.

The motion judge dismissed the action as statute-barred under the Limitations Act, 2002, finding the claim was discoverable in April 2010.

The Court of Appeal allowed the appeal, holding that the claim was not discovered until May 2011 when the CRA appeal process concluded, as it would not have been appropriate to commence proceedings while alternative remedies remained available.

The appellant was convicted of sexual assault and sentenced to two years' imprisonment following a trial in which the trial judge found that the complainant fell asleep and awoke to find the appellant engaged in non-consensual intercourse with her.

The appellant appealed his conviction on three grounds: (1) the trial judge erred in assessing evidence of prior sexual activity; (2) the trial judge erred in applying the rule in Browne v. Dunn; and (3) the trial judge reversed the burden of proof.

The Court of Appeal allowed the conviction appeal on the ground that the trial judge erred in finding violations of the rule in Browne v. Dunn and in drawing negative inferences about the appellant's credibility as a result.

The Court found that these errors adversely impacted the appellant's credibility and that there was a real risk the erroneous findings influenced the trial judge's assessment of the evidence and tipped the scale toward a finding of guilt beyond a reasonable doubt.

The conviction was quashed and a new trial was ordered.

The appellant appealed from a motion judge's order striking his pleading and dismissing his action as frivolous, vexatious, and an abuse of process.

The appellant had previously brought an action in contract against the respondents claiming they had guaranteed a $30,000 short-term loan.

That action was dismissed on summary judgment and the appeal was dismissed.

One month later, the appellant brought a new action arising from the same facts but framed in tort, alleging misrepresentation, fraud, and deceit.

The respondents moved to strike the second action as an abuse of process on the basis of res judicata.

The motion judge found the tort action was based on the same facts as the dismissed contract action and that the appellant should have included all causes of action in the original pleading.

The Court of Appeal upheld the motion judge's decision and dismissed the appeal with costs.

The appellant appealed a judgment ordering him to pay $1,293,734.54 owing on a private residential mortgage granted to the respondents in February 2011.

The appellant raised two grounds of appeal: that the trial judge erred in refusing to grant an adjournment requested on the trial date and in proceeding with the trial in the appellant's absence.

The appellant also sought to introduce fresh evidence.

The Court of Appeal dismissed the appeal, finding that the trial judge properly exercised her discretion in refusing the adjournment given the lengthy history of the litigation, multiple pre-trials, prior adjournment, the appellant's failure to retain counsel, and the respondents' readiness to proceed.

The court also found that the appellant's proposed defence lacked merit and that any fresh evidence would not have yielded a different outcome.

A tenant obtained summary judgment against a landlord for recovery of losses arising from a fire at leased premises under a commercial lease.

The landlord appealed, and the Court of Appeal allowed the appeal, finding that the motion judge erred in interpreting the lease by failing to apply binding appellate authority regarding contractual allocation of risk, failing to assign meaning to all contested lease terms, and ruling that the tenant's breach of its insurance covenant did not bar its subrogated claim.

The Supreme Court of Canada remanded the matter for reconsideration in light of Ledcor Construction.

On remand, the Court of Appeal affirmed its original decision, holding that the correctness standard of review applied to extricable questions of law within the motion judge's interpretation of the negotiated lease.

The appellant was convicted of possession of child pornography and making child pornography available following a trial by judge and jury.

The conviction on the first count was stayed under R. v. Kienapple.

The appellant was sentenced to 21 months in jail plus three years' probation on the second count.

On appeal, the appellant challenged his conviction on the making available count on two grounds: first, that the trial judge failed to adequately rectify the Crown's violation of the rule in Browne v. Dunn regarding cross-examination of a defence witness; and second, that the trial judge's W.(D.) instruction was improperly limited to the appellant's testimony.

The Court of Appeal dismissed both grounds and upheld the conviction.

The appellant was convicted of five counts of robbery with a firearm and five counts of theft over $5,000 following a trial by judge alone.

Following conviction, the defence advanced a not criminally responsible on account of mental disorder (NCR) plea.

Two forensic psychiatrists testified with conflicting opinions on whether the appellant knew his actions were morally wrong at the time of the offences, with their opinions based on the appellant's self-reports during interviews.

The trial judge assigned no weight to the experts' opinions because they were based on hearsay statements and the appellant had not testified.

The trial judge dismissed the NCR application.

Subsequently, defence counsel informed the trial judge that counsel had agreed before the hearing that the appellant's self-reports could be relied upon for their truth without the appellant testifying.

The trial judge declined to reopen, holding she lacked jurisdiction to do so after rendering a verdict.

The Court of Appeal allowed the appeal, finding the trial judge erred in concluding she had no jurisdiction to reopen and erred in failing to engage in proper analysis of the conflicting expert evidence.

The appellant appealed his conviction for possession of crack cocaine for the purposes of trafficking and his sentence of 18 months imprisonment.

The conviction appeal challenged whether police had reasonable and probable grounds to arrest and search the appellant.

The trial judge found such grounds existed based on police observations of the appellant's vehicle making three stops at different locations within 15 minutes, with interactions at each location involving known drug users.

The sentence appeal challenged the constitutionality of the mandatory minimum sentence provision under the Controlled Drugs and Substance Act.

Both appeals were dismissed.

The appellant was convicted of multiple drug trafficking and possession offences arising from events in spring 2011.

He appealed his convictions on the grounds that the trial judge misdirected the jury on the prohibition against applying evidence across counts in a multi-count case, failed to correct improper cross-examination and closing arguments by the Crown, and failed to properly instruct on propensity reasoning.

The Court of Appeal found that the trial judge erred by providing ambiguous instructions on cross-count reasoning, failing to correct the Crown's improper invitations to the jury to use evidence from one count to determine guilt on other counts, and providing contradictory responses to jury questions.

The court concluded that the jury's verdicts were tainted by legally impermissible reasoning and ordered a new trial.

The appellant appealed both his conviction and sentence for possession of a loaded prohibited firearm, possession of cocaine for the purpose of trafficking, and dangerous driving.

The conviction appeal challenged the trial judge's s. 24(2) Charter analysis regarding the admissibility of evidence obtained following a police take-down.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's application of the Grant factors.

However, the Court allowed the sentence appeal on the basis that the trial judge failed to adequately consider the appellant's exceptional physical condition and the disproportionate impact of incarceration on him.

The sentence was varied to make the dangerous driving sentence concurrent rather than consecutive to the firearm sentence.

The appellant was convicted of assault, possession of a weapon (a knife), aggravated assault, and breach of probation following an incident with her then-boyfriend.

She was sentenced to two years' imprisonment on the aggravated assault conviction and 30 days concurrent for breach of probation.

On appeal, the appellant challenged the trial judge's rejection of her self-defence claim.

The Court of Appeal upheld the conviction, finding that the trial judge properly considered and rejected the self-defence argument on the merits based on the evidence she accepted.

The appellant failed to demonstrate any palpable and overriding error in the trial judge's factual findings or inferences.

An appeal of an Ontario Review Board disposition ordering that a person found not criminally responsible on account of mental disorder remain on the secure forensic unit of a hospital.

The appellant sought an absolute or conditional discharge.

The Board found the appellant posed a significant risk to public safety based on his lack of insight into his mental illness, likelihood of non-compliance with medication, and psychological testing indicating high risk of psychotic relapse and violent behaviour.

The Court of Appeal upheld the Board's disposition as reasonable and dismissed the appeal.

On appeal, the court concluded the appellant should have been successful at trial and awarded damages of $438,113 in addition to other relief.

The appellant had made a pre-trial Rule 49 offer to settle for $180,000.

The court determined the appellant was entitled to partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter.

However, because a significant portion of the trial involved testing claims the appellant made which the trial judge found to be untrue, and many of those findings were undisturbed on appeal, the costs award was adjusted to reflect that the trial was not an unqualified success for the appellant.

The moving party sought to review a decision of Justice Brown of the Court of Appeal dated November 24, 2015, which dismissed his motion for an extension of time to file a Notice of Appeal from a May 20, 2014 order of the Superior Court of Justice in a matrimonial case.

The moving party also requested an adjournment on grounds of illness and inability to obtain counsel.

The panel denied the adjournment request due to lack of proper medical evidence, unconfirmed legal aid status, and unexplained delay in bringing the review motion.

On the merits, the panel found no basis to interfere with the original decision, as Justice Brown had properly applied the governing legal principles, reviewed the evidentiary record, and reached a reasonable conclusion.

The review motion was dismissed, and costs of $1,000 were awarded to the respondent.

The appellant was convicted of conspiracy to import and importing heroin following a jury trial.

He received concurrent sentences of 16 years in penitentiary, less 4 months pre-disposition credit.

On appeal, the appellant challenged his convictions on six grounds, including issues relating to the admissibility of hearsay evidence under the co-conspirators' exception, post-arrest statements, travel history evidence, and jury instructions regarding a Vetrovec witness.

The appellant also sought leave to appeal his sentence.

The Court of Appeal dismissed all grounds of appeal from conviction and, while granting leave to appeal sentence, dismissed the sentence appeal as well.

The appellant appealed the summary dismissal of a medical malpractice action arising from the death of his common law spouse from terminal brain cancer.

The appellant alleged that the defendant physicians breached the standard of care by terminating the drug dexamethasone without tapering and by failing to obtain informed consent.

The motion judge dismissed the action after finding that the appellant's expert evidence was insufficient to establish a genuine issue requiring trial.

The Court of Appeal upheld the dismissal, finding that the appellant failed to provide qualified expert evidence on standard of care and causation, and that the evidence supported informed consent had been obtained.

This is a costs endorsement following a Court of Appeal decision that allowed an appeal in part.

The appellant sought costs in the court below on a partial indemnity basis up to the date of its offer to settle, and on a substantial indemnity basis thereafter.

The Court of Appeal rejected the appellant's reliance on an offer to settle made in the context of its own application, which had been dismissed.

The court found the result on appeal was mixed and awarded costs to the appellant in the amount of $28,565.99, the same amount originally awarded to the respondent in the court below.