Eleanore A. Cronk

The appellant condominium corporation and the original developer entered into a reciprocal agreement to share expenses for a recreational facility.

The developer's successor in title, the respondent, refused to pay the interim expenses.

The appellant argued that the positive covenant to pay expenses ran with the land or was enforceable under the English benefit and burden or conditional grant exceptions.

The Court of Appeal held that positive covenants do not run with freehold land and declined to adopt the English exceptions, stating that any reform to this area of property law must be undertaken by the legislature.

The appeal was dismissed.

The appellant solicitor appealed an order requiring him to fulfill a solicitor's undertaking to repay a $50,000 loan to the respondent from mortgage financing.

The appellant breached the undertaking by paying the funds directly to the debtor.

The appellant argued the debt had already been paid by the debtor but provided only an affidavit based on information and belief, contrary to Rule 39.01(5).

The applications judge refused an adjournment to summons the debtor and ordered the appellant to pay the sum plus prejudgment interest.

The Court of Appeal dismissed the appeal, emphasizing that solicitors must be strictly accountable for their undertakings and noting the lack of admissible evidence supporting the appellant's claims.

The respondent consigned a boat to a marine dealership, which sold it to the appellant for $46,000 without the respondent's authorization.

The dealership went bankrupt without remitting the proceeds.

The respondent sued the appellant for the return of the boat or its value, and was granted summary judgment.

On appeal, the Court of Appeal reversed the decision, finding that the appellant was a good faith purchaser without notice of the dealership's lack of authority.

The court held that section 2(1) of the Factors Act protected the appellant, as it does not impose a due diligence requirement on purchasers to inquire into a mercantile agent's authority.

The provincial government cancelled the Niagara Tender Fruit Lands Program and breached a contract to purchase a restrictive covenant from the respondent landowners.

The arbitrator awarded the landowners the full purchase price of the covenant plus consequential damages.

On appeal, the Court of Appeal held that awarding the full purchase price amounted to double recovery, as the landowners retained their unencumbered land and regained the freedom to sell it.

The award for the purchase price was deleted, but the award for consequential interest costs was upheld and increased.

The appellant appealed a decision of the Ontario Review Board ordering his transfer from a medium security facility to a maximum security facility (Oak Ridge).

The appellant conceded he posed a significant threat to public safety but argued the Board unreasonably assessed issues of risk and trust.

The Court of Appeal dismissed the appeal, finding the Board's decision was reasonably supported by uncontradicted expert evidence regarding the appellant's lack of progress, risk level, and need for a highly structured environment.

The appellants appealed a motions judge's finding that the respondent was forced to withdraw from their partnership, constituting a de facto expulsion.

The Court of Appeal upheld the motions judge's interpretation of the partnership agreement, finding that Articles 3.5 and 8.1 required payment of the Schedule 'A' price to the departing partner upon involuntary withdrawal or expulsion.

The appeal was dismissed with costs awarded to the respondent.

The appellant landlords leased commercial space to the respondent, who subsequently assigned the leases.

The assignee became insolvent and repudiated the leases pursuant to s. 65.2 of the Bankruptcy and Insolvency Act.

The landlords sued the original tenant for rent arrears.

The motion judge dismissed the actions, finding the repudiation terminated the leases for all purposes.

The Court of Appeal allowed the appeal, holding that a repudiation under s. 65.2 only affects the obligations of the insolvent assignee and does not terminate the lease or release the original tenant from its primary liability to the landlord.

The Vernon companies hired Headline, an auctioneering firm, to sell assets.

Headline breached the agreement by failing to deposit over $100,000 into a joint account and breached its fiduciary duty by attempting to secretly sell assets to its own companies.

The Vernon companies subsequently refused to allow Headline to sell the remaining assets.

The Court of Appeal held that Headline's substantial breach of contract and fiduciary duty excused the Vernon companies from further performance.

The Court restored the trial judge's award of $5,000 in punitive damages against Headline for its high-handed and arbitrary conduct.

The appellant appealed a motions judge's decision finding that a solicitor acted for the appellant on the entirety of a single loan transaction and that the solicitor's receipt of $90,000 was on behalf of the creditor.

The Court of Appeal upheld this finding, noting the single mortgage commitment and letters of instruction.

However, the Court allowed the appeal in part regarding costs, finding no justification for the motions judge's award of solicitor and client costs.

The costs order was varied to party and party costs fixed at $5,000.

The appeal was otherwise dismissed with costs to the respondents fixed at $5,000.

The appellant trustee in bankruptcy appealed a trial judgment finding no intention to form a debt between the bankrupt and the respondent.

The Court of Appeal dismissed the main appeal, holding that the trial judge's factual findings, which accepted the respondent's explanation for questionable book entries, could not be disturbed.

However, the Court granted leave to appeal costs and reduced the trial costs award from a solicitor and client scale to a party and party scale, noting the trustee was justified in being suspicious of the altered accounting records.

The appellant insurer failed to give the respondent insurer the required 90-day written notice of its intention to dispute liability for statutory accident benefits under O. Reg. 283/95.

The appellant argued that a letter from the insured's counsel to the respondent constituted sufficient notice, and alternatively, that a subsequent change in case law justified an extension of the notice period.

The Court of Appeal dismissed the appeal, holding that a third-party letter does not satisfy the strict notice requirements of the Regulation, that courts cannot grant equitable relief from forfeiture to bypass the statutory scheme, and that evolving jurisprudence does not render the 90-day period insufficient to make a liability determination.

The 80-year-old appellant pled guilty to tax evasion for failing to remit over $600,000 in GST.

He was sentenced to a 12-month conditional sentence, a mandatory fine equal to the tax evaded, and 9 months' imprisonment in default of paying a portion of the fine.

On appeal, the appellant argued he lacked the ability to pay and that a conditional sentence should be available for the default period.

The Court of Appeal upheld the finding on ability to pay but, applying its recent decision in R. v. Wu, allowed the appeal to substitute a 9-month conditional sentence in default of payment of the fine.

The purchasers (respondents) entered into an agreement to buy a residential property from the vendor (appellant), conditional upon a satisfactory home inspection in the purchasers' sole and absolute discretion.

After receiving an inspection report identifying several deficiencies, the purchasers decided not to waive the condition and requested the return of their deposit.

The vendor refused, arguing the purchasers did not act reasonably or in good faith.

The Court of Appeal upheld the trial judge's decision ordering the return of the deposit, finding that the inspection condition imported both objective and subjective elements, and that the purchasers exercised their discretion honestly, in good faith, and reasonably based on the inspection report.

The appellant appealed a trial judgment finding that the vendor had given written consent to the lease of the premises.

The Court of Appeal dismissed the appeal, holding that there was ample evidence to support the trial judge's finding and that the vendor's purported withdrawal of consent was ineffective.

The appellant was convicted of the first degree murder of his brother.

The Crown's case relied heavily on circumstantial evidence and the testimony of a jailhouse informant who claimed the appellant confessed to the murder.

On appeal, the appellant argued the trial judge erred in failing to give a Vetrovec warning regarding the informant, misdirected the jury on after-the-fact conduct, and provided an inadequate charge on reasonable doubt.

The Court of Appeal agreed, finding that the informant's severe credibility issues necessitated a Vetrovec warning, the trial judge improperly left equivocal demeanour evidence to the jury as consciousness of guilt, and the pre-Lifchus reasonable doubt charge failed to properly locate the standard above probability.

The appeal was allowed and a new trial ordered.

The accused was charged with sexual assault and other offences.

At his third trial, the Crown sought to introduce his personal diary as part of its case-in-chief.

The trial judge excluded the diary, ruling its admission would violate the accused's Charter rights against self-incrimination by tactically compelling him to testify.

The Crown called no further evidence, resulting in an acquittal.

The Court of Appeal allowed the Crown's appeal, holding that the diary was created prior to state intervention and its admission did not create a legal compulsion to testify.

The Court also found no abuse of process in the Crown's decision to call no evidence.

The landlord consented to the assignment of a commercial lease to an assignee, with the original tenant remaining jointly and severally liable.

An interim receiver was later appointed for the assignee under the Bankruptcy and Insolvency Act, with the power to terminate existing agreements.

The receiver purported to terminate the original lease, which would have freed the original tenant from liability.

The Court of Appeal held that the receiver's power to terminate agreements was limited to those in furtherance of the insolvency proceedings.

The receiver had the authority to terminate the assignment agreement, but not the original lease between the landlord and the original tenant.

The appellant brought an action for foreclosure on a mortgage given by the respondents as security for a guarantee of their son's company's debts.

The trial judge granted judgment for the mortgage amount but allowed the respondents' counterclaim for breach of fiduciary duty based on alleged collateral assurances, awarding a set-off.

The Court of Appeal allowed the appeal, holding that while the trial judge correctly found the guarantee valid and collateral assurances inadmissible to contradict it, he erred in finding those same assurances created a fiduciary relationship.

The counterclaim was dismissed and costs awarded to the appellant.

The appellant submitted the lowest acceptable bid in response to a Request for Proposals for a computer cabling project.

Due to a budget reduction, the respondent school board negotiated with the three lowest bidders instead of solely with the appellant, ultimately awarding the contract to another bidder.

The appellant sued for breach of the duty of fairness and good faith.

The trial judge dismissed the action, finding the board was permitted to conduct wider negotiations and that any differing treatment during negotiations did not affect the outcome.

The Court of Appeal upheld the trial judge's decision and dismissed the appeal.

The respondent, a young offender, was charged with wilfully failing to comply with a probation order.

At trial, the charge was dismissed because the youth court had failed to provide a copy of the disposition to the respondent's counsel, as required by s. 20(6)(a) of the Young Offenders Act.

The summary conviction appeal judge dismissed the Crown's appeal.

The Court of Appeal dismissed the Crown's further appeal, holding that the requirement in s. 20(6)(a) is imperative.

The failure to provide counsel with a copy of the disposition deprived the young person of the opportunity to obtain legal advice regarding the probation order, rendering it unenforceable.