Eleanore A. Cronk

Apotex appealed a trial judge's decision allowing Bayer to elect an accounting for profits as a remedy for patent infringement and directing a referee to count all infringing capsules sold by Apotex.

Apotex argued that the trial judge reversed the burden of proof, misconstrued the patent, and erred in finding a causal link between the infringement and all profits.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's exercise of discretion to award an accounting for profits or in the direction to the referee, as Apotex's product infringed the patent in its entirety.

The accused was committed for trial on multiple counts of sexual assault.

At the preliminary inquiry, defence counsel sought to cross-examine the complainant about his personal diary to lay the foundation for a subsequent production application at trial under s. 278.3 of the Criminal Code.

The preliminary inquiry judge disallowed the questions.

The accused successfully applied for certiorari, and the reviewing judge ordered the continuation of the preliminary inquiry to permit limited cross-examination.

The Crown appealed.

The Court of Appeal dismissed the appeal, holding that while questions about the actual contents of the diary are impermissible, the accused may ask general questions about the diary's existence, characteristics, and whether certain topics are covered, provided the questions do not intrude on the complainant's private or personal domain.

On an appeal from the dismissal of a rule 21.01(3) motion, the court considered whether a corporation incorporated after the vendor's repudiation of a real estate agreement could adopt a pre-incorporation contract under s. 21 of the Business Corporations Act and sue for damages.

The court held that s. 21 replaces the common law and must be interpreted as a self-contained statutory scheme.

A contract falling within s. 21(4) remains a nascent statutory contract before adoption, and after incorporation the corporation's adoption operates retroactively to the date of the agreement.

Accepted repudiation terminated only future performance, not accrued obligations, so there remained a contract capable of adoption.

The corporation adopted the contract by commencing the action and therefore had status to enforce it.

The appellant insured suffered a theft of equipment and subsequently made a claim for loss of income.

The respondent insurer denied the claim on the basis that it was barred by a one-year limitation period set out in the policy's conditions.

The appellant argued that the limitation period, which mirrored the statutory conditions for fire insurance under the Insurance Act, did not apply to theft or loss of profits, and that the late delivery of the policy prejudiced its ability to claim.

The Court of Appeal upheld the summary judgment dismissing the action, finding that the insurer was free to incorporate the one-year limitation period into the contract for all perils, and that the contractual language was clear and unambiguous.

The court also found no prejudice from the late delivery of the policy, as the appellant's adjuster had misinterpreted the policy rather than being unaware of it.

The appellant was injured in a motor vehicle accident and received statutory accident benefits until the insurer terminated them.

After an unsuccessful mediation, the appellant waited almost five years to commence an action claiming damages for the insurer's bad faith conduct in terminating the benefits.

The insurer successfully moved to strike the claim as statute-barred under the two-year limitation period in s. 281(5) of the Insurance Act.

The Court of Appeal dismissed the appeal, holding that any dispute 'in respect of' an insurer's refusal to pay no-fault benefits, including bad faith claims, must be brought within the two-year limitation period.

The appellant husband appealed a motions judge's order increasing spousal support payable to the respondent wife.

The motions judge found a material change in circumstances under s. 17(4) of the Divorce Act due to a significant, unforeseen increase in the appellant's disposable income following an arbitration award.

The Court of Appeal applied the deferential standard of review from Hickey v. Hickey and found no error in the motions judge's application of the Willick test or calculation of support.

The appeal was dismissed with costs.

The appellants appealed an order striking out their negligence claims against several police officers on the basis that the claims were initiated outside the six-month limitation period prescribed by the Public Authorities Protection Act.

The appellants argued the motions judge erred in striking the claims and in failing to grant leave to amend the pleadings to allege negligent investigation and prosecution.

The Court of Appeal dismissed the appeal, finding that the original claims were statute-barred and that leave to amend had not been requested before the motions judge.

The Court also dismissed a motion to introduce fresh evidence and directed that any motion to amend the pleadings be brought before the case management master.

The appellant sought a capacity assessment and visitation rights regarding her mother, who suffered from advanced Parkinson's disease and had consented to permanent gastrostomy tube feeding.

The motions judge dismissed the application for lack of jurisdiction under the Substitute Decisions Act and the Health Care Consent Act, and awarded solicitor-and-client costs against the appellant.

The Court of Appeal upheld the dismissal, confirming that a capacity assessment cannot be ordered absent a pending guardianship application or reasonable grounds to doubt capacity.

However, the Court granted leave to appeal the costs award and reduced it to a party-and-party scale, finding no exceptional circumstances to justify punitive costs.

The plaintiff commenced a negligence action for property damage caused by a fire shortly before the expiry of the limitation period.

During discoveries, it was revealed that the proper plaintiff was the plaintiff's corporation, not the plaintiff personally.

The plaintiff successfully moved to amend the statement of claim to substitute the corporation as the plaintiff.

The defendant appealed, arguing the amendment should not be permitted after the limitation period expired.

The Court of Appeal dismissed the appeal, holding that Rule 5.04(2) grants the court discretion to substitute a party after a limitation period expires, provided there is no non-compensable prejudice to the defendant and special circumstances exist.

The appellants appealed an order striking their third party claims against the Attorney General of Ontario for breach of fiduciary duty and malicious failure to prosecute.

The Court of Appeal allowed the appeal, finding that the motions judge erred by concluding that the Attorney General can never owe a fiduciary duty in the prosecutorial function, as the categories of fiduciary are not closed.

The Court also held that the motions judge improperly relied on affidavit evidence on a Rule 21 motion to conclude that the malicious failure to prosecute claim was incapable of proof.

The third party claims were reinstated.

The plaintiff, an Ontario Provincial Police officer, was injured in a motor vehicle accident while driving a police cruiser.

The driver of the other vehicle was underinsured.

The plaintiff claimed under the OPCF 44 endorsement of both her personal automobile insurance policy and the police force's fleet policy.

The issue on appeal was which insurer was required to respond first.

The Court of Appeal held that the plaintiff was an 'insured person' under the fleet policy because the cruiser was provided for her 'regular use'.

The Court found that 'regular use' does not require a personal use component.

Therefore, the fleet policy was the first loss insurance.

The appellant appealed a second degree murder conviction arising from a fatal shooting during a convenience store robbery.

The Court of Appeal held that the trial judge misdirected the jury by treating intoxication as a separate defence rather than relating it to whether the Crown had proved the specific intent for murder under s. 229(a) of the Criminal Code.

Although the reasonable doubt instruction was flawed, it was held to be in substantial compliance with the governing principles, and the challenge to the jury-task instruction was rejected.

Because a properly instructed jury could have convicted of no less than manslaughter, and the Crown conceded that result, the court quashed the murder conviction and substituted a conviction for manslaughter.

The appellant, arrested for extradition to the United States on charges relating to a fraudulent loan scheme, appealed multiple rulings including habeas corpus dismissals, a committal order, and the dismissal of a release application under s. 69 of the Extradition Act.

He also sought judicial review of the Minister's surrender order.

The Court of Appeal dismissed the appeals and the application for judicial review, finding that the Minister's surrender order was valid, the superseding indictment did not invalidate the proceedings, and there was no abuse of process or procedural unfairness.

The appellant employer appealed a trial judgment awarding the respondent employee six months' salary as reasonable notice for wrongful dismissal, as well as solicitor and client costs.

The Court of Appeal upheld the notice period, finding that while six months was high, it did not justify interference.

However, the Court allowed the appeal regarding costs, holding that based on the recent decision in Rooney v. Graham, the costs should have been awarded on a party and party scale.

The husband appealed a trial decision including his early retirement incentive payments in his net family property.

He argued for the first time on appeal that the payments were a gift and should be excluded under the Family Law Act, or alternatively, that they should be pro-rated based on his years of employment during the marriage.

The Court of Appeal dismissed the appeal, finding the payments were consideration for taking early retirement, not a gift.

The court also upheld the trial judge's decision to include the full amount in the husband's net family property, as he failed to meet the onus of proving the payments were for past services.

The court further upheld the exclusion of a survivor's pension from the wife's net family property due to her health.

The appellant husband appealed a decision dismissing his application to reduce spousal support following his early retirement.

The husband argued the applications judge failed to apply the rule against double-dipping from Boston v. Boston and misapprehended the evidence regarding his income.

The Court of Appeal found that while the rule against double-dipping did not apply because the support was largely based on need, the applications judge did misapprehend the evidence regarding the husband's post-retirement income and expenses.

The appeal was allowed, and spousal support was reduced from $1,800 to $1,200 per month, indexed to the cost of living.

The appellant was convicted of importing and possessing restricted and prohibited weapons after purchasing firearms in Florida that were subsequently sold by an associate to undercover officers in Canada.

On appeal, he argued that the trial judge erred in admitting co-conspirator hearsay statements, relying on a suspect witness, and dismissing his s. 11(b) Charter application for unreasonable delay.

The Court of Appeal dismissed the conviction appeal, finding sufficient independent evidence of his participation in the common design, proper corroboration of the witness, and reasonable explanations for the delay.

The sentence appeal was also dismissed, as the four-year term was fit for a front-line principal in a firearms trafficking enterprise.

The young person appellant appealed his convictions for assault and assault causing bodily harm arising from two altercations with another youth on the same day.

The Court of Appeal quashed the simple assault conviction, finding the first incident was a consensual schoolyard scuffle and the resulting head injury was unintended.

The Court upheld the conviction for assault causing bodily harm for the second incident, as the appellant initiated the confrontation and the victim did not consent to fight.

However, the Court allowed the sentence appeal, replacing the suspended sentence with a conditional discharge and one month of probation, noting the appellant's good character and lack of criminal record.

The appellant appealed his conviction for sexual assault.

The trial judge had relied on evidence of an incident at a Christmas party seven years prior to the alleged assault to infer that the appellant had a sexual inclination toward the complainant.

The Court of Appeal held that this inference was unreasonable and central to the conviction, requiring the verdict to be quashed.

However, the Court rejected the argument that the verdict itself was unreasonable under s. 686(1)(a)(i) of the Criminal Code, as a reasonable trier of fact could have accepted the complainant's evidence.

A new trial was ordered.

The appellant appealed his robbery conviction, arguing the trial judge failed to consider the defence of intoxication.

The Court of Appeal dismissed the appeal, finding no air of reality to the intoxication defence as the appellant's conduct was clearly purposeful.

The court also held that the trial judge properly found the appellant's actions amounted to threats of violence under s. 343(a) of the Criminal Code, as they caused a reasonable apprehension of physical harm.