Finlayson

The appellant appealed a first degree murder conviction arising from the disappearance of a 14-year-old victim whose body was not found until after conviction.

The court upheld the admission of a jailhouse informant's evidence, finding the informant was not acting as a state agent when the initial inculpatory statements were elicited and therefore there was no breach of the appellant's s. 7 right to silence.

The court also rejected the proposed fresh evidence concerning the later discovery and forensic examination of the remains, holding that it did not materially undermine the informant's evidence or the Crown's theory and would not reasonably have affected the verdict.

The appeal was dismissed.

The appellants appealed an order refusing to set aside a summary judgment in favour of a bank, alleging that the record before the summary judgment judge was fraudulent and incomplete and seeking to file after-acquired documents as fresh evidence.

The court held that the motion record was neither fraudulent nor incomplete, and that the appellants' complaints were really arguments that should have been advanced on the original summary judgment motion.

Because the challenge to the primary debtors failed, there was no basis to discharge the guarantor.

The appeal was dismissed with costs.

The appellant challenged a priority ruling involving two motor vehicles, arguing its lease agreements were true leases and did not require registration under the Personal Property Security Act.

The Court of Appeal held that the agreements were open-end leases under which the lessee remained liable for any deficiency on disposition and received any surplus, making the arrangements financing agreements in substance.

Because the transactions created security interests under s. 2 of the Act, registration was required to preserve priority.

The appeal was dismissed with costs.

The appellant dentist appealed an order striking his statement of claim against counsel retained by the professional regulator in disciplinary proceedings.

The Court of Appeal majority held that novelty was not a basis to strike a malicious prosecution claim at the pleading stage and that the pleaded civil conspiracy claim should also stand.

Although the pleadings were poorly drafted, the majority concluded the matter should proceed to trial, leaving the trial judge to assess the various claims on the evidence.

The appeal was allowed, the motion judge's order was set aside, and the motion to strike was dismissed with costs to the appellant here and below.

In a secured transactions priority appeal arising from a corporate reorganization and competing claims to accounts receivable, the appellant challenged the trial judge's findings respecting the validity and extent of security interests.

The court adopted the trial judge's reasons and held there was ample evidence supporting a valid security interest and that the appellant's purchase-money security interest had priority only to the extent traceable proceeds remained identifiable.

Once receivables were paid into the debtor's general bank account, the proceeds could no longer be traced and the security interest was extinguished.

The appeal was allowed only to award pre-judgment and post-judgment interest on approximately $66,000 already recovered, and was otherwise dismissed with costs.

The appellant appealed a conviction for keeping a common bawdy house arising from the operation of a commercial house of domination offering sadomasochistic services.

The court held that the trial judge reasonably found the erotica sessions were primarily sexual in nature and constituted prostitution because they involved lewd acts for payment for the sexual gratification of clients on a frequent and habitual basis.

The court upheld the admission of a videotape corroborating the commercial services, agreed that most of the proposed expert evidence was irrelevant or insufficiently reliable under the governing expert evidence framework, and found that the search-related Charter breaches did not justify a stay.

The appeal was dismissed.

The appellant challenged a judgment finding no evidentiary basis to treat a third party as an agent authorized to make representations and warranties on behalf of one of the respondents.

The Court of Appeal held there was no evidence of any statement conferring authority and that the conduct relied upon did not raise a genuine issue of agency.

Agreeing with the motions judge, the court dismissed the appeal with costs.

The appellants challenged an order declining jurisdiction to hear their application in an immigration matter.

The Court of Appeal held that the judge properly exercised his discretion in declining jurisdiction and found no basis to interfere.

The court noted submissions concerning the proposed removal of the litigation guardian, who was also the children's caregiver, and observed that an application under s. 114(2) of the Immigration Act remained available.

The appeal was dismissed.

The appellant, a catastrophically brain-injured motor vehicle accident victim, appealed the dismissal of claims for caregiver benefits and declaratory relief under the pre-1994 Statutory Accident Benefits Schedule, while the insurer cross-appealed on accident-benefits priority against another insurer.

The majority held that s. 7(1)(a) required an incurred reasonable cost for a professional caregiver and did not compensate unpaid care provided by family members; it also refused declaratory relief concerning a future care plan as premature and insufficiently concrete.

On the cross-appeal, the court held that a dishonest broker who issued fraudulent pink slips had neither actual nor apparent authority to bind the proposed insurer, which had made no representation capable of grounding ostensible authority.

A partial dissent would have interpreted the Schedule purposively to permit compensation for family-provided care and would have granted declaratory relief.

The appellants challenged the dismissal of their claim for consequential and punitive damages arising from an insurer's delay in paying fire insurance proceeds to mortgagees after hotel fire losses.

The court held that the insurer's duty of good faith requires prompt and fair handling of claims, but rejected the argument that Statutory Condition 12 of the Insurance Act imposes an absolute 60-day payment obligation giving rise to consequential damages whenever a claim ultimately succeeds.

Although the court found a limited breach of good faith in failing to pay at least 50 percent of the amount claimed once the insurer relied only on a co-insurance position, the appellants failed to prove any resulting loss beyond interest already paid.

Punitive damages were also unavailable because no compensable damage flowed from the bad faith breach and the conduct was not sufficiently harsh or malicious.

On an appeal from an order refusing to add investor creditors as plaintiffs by counter-claim, the court held that a bank owed no fiduciary duty to unsecured creditors of its corporate customers merely because they shared a common debtor.

Applying the Anns/Kamloops framework, the court found no pleaded facts establishing proximity or reasonable reliance sufficient to create a prima facie duty of care in negligent misrepresentation.

The alleged statements to one guarantor did not support a relationship of reliance by a wider class of investors.

In any event, policy considerations barred recovery because recognizing such a duty would create indeterminate liability to an unlimited class.

The appeal was dismissed.

The appellants challenged judgments awarding the respondent recovery on a counterclaim and an equalization payment arising from a family farm and matrimonial property dispute.

The court held that the evidence supported the findings that amounts advanced by the respondent were repayable and that the valuation of assets and equalization calculation were supported by the record.

The court rejected a late-raised unequal division argument because it had not been pleaded and was not disputed at trial.

The order directing payment from monies paid into court from the sale of the milk quota was also upheld.

The appellant challenged a Rule 21 declaration that a snowmobile is not an "automobile" within s. 224(1) of the Insurance Act.

The appeal court held it had jurisdiction because the order finally disposed of an issue of law and was neither an order for payment of money nor one dismissing such a claim.

On the merits, the court adopted the motion judge's reasoning that the Compulsory Automobile Insurance Act incorporates the Highway Traffic Act definition of "motor vehicle", which expressly excludes motorized snow vehicles.

As a result, a snowmobile does not fall within the statutory definition of "automobile" for Part VI of the Insurance Act, and the appeal was dismissed with costs.

The appellant appealed the dismissal of its damages claim against insurance broker respondents arising from the absence of business interruption coverage at the time of a fire.

The court held that the trial judge made crucial factual findings that the need for such coverage had been discussed on multiple occasions and that the appellant's representatives knew the coverage was not in place.

The record also supported the finding that worksheets required for a quotation had not been completed before the fire.

The court found no basis to interfere with the conclusion that there was no breach of duty and dismissed the appeal with costs.

The appellants sought to overturn an assessment of a law firm's accounts and attempted at the opening of the appeal to introduce fresh evidence from a former solicitor.

The Court of Appeal refused to entertain the request because no proper fresh evidence application material had been filed.

On the merits, the court held there was no basis to interfere with concurrent findings that a retainer existed and that the assessment officer's taxation of the accounts, as varied on appeal, was supported by ample evidence.

The appeal was dismissed with costs.

The insurer appealed from a ruling in an action brought under s. 132(1) of the Insurance Act after the respondents obtained a negligence judgment against the insured and execution was returned unsatisfied.

The Court of Appeal held that the statutory cause of action permits recovery of the amount of the judgment, up to the face value of the policy, subject only to the same equities the insurer would have against its insured.

The insurer could not relitigate the insured's liability or the respondents' damages, nor could it allege that the original judgment was vitiated by the respondents' own fraud.

The appeal was dismissed with costs.

Commercial appeal arising from a manufacturing contract dispute over delayed and deficient mold production for an automotive supply program.

The appellant argued that the respondent's transfer of one mold to another subcontractor constituted accord and satisfaction and challenged the reasonableness of the respondent's mitigation costs.

The court rejected those arguments, holding that there was no agreement discharging the appellant's original obligations and that subcontracting completion was a necessary mitigation step in light of the delivery pressures imposed by the end customer.

The appeal was allowed only in part to correct the accounting by crediting the appellant with the unpaid final one-third contract amount for the transferred mold.

The respondent remained substantially successful and was awarded three-quarters of its appeal costs.

The appellants challenged a trial judgment arising from a slip and fall in a hospital parking lot during winter conditions.

The sole issue on appeal was whether the trial judge materially misapprehended the facts in finding that the respondent hospital had a reasonable maintenance system for plowing, salting and sanding.

The court reviewed the evidentiary record, including photographs and a video entered by the plaintiffs, and held that the findings that the area had been sanded and salted the previous day were supported by the record.

The appeal was dismissed with costs.

The Crown appealed an order staying historic sexual offence charges on the basis that the respondent could not make full answer and defence because key potential defence witnesses were dead or unavailable after several decades.

The court reviewed the trial judge's application of the abuse of process and fundamental justice framework under ss. 7, 11(d), and 24(1) of the Charter.

It held that the trial judge properly assessed the affidavit evidence concerning missing Children's Aid Society and foster home personnel and committed no error in law.

The appeal was dismissed and the stay remained in place.

The appellant challenged the constitutionality of s. 810.1 of the Criminal Code, arguing that the child-protection recognizance regime created a status offence, was overbroad, and was impermissibly vague, and further challenged the availability of arrest and detention procedures in such proceedings.

The Court of Appeal held that s. 810.1 is preventive, not punitive, and is directed at assessing present risk of future harm to children rather than punishing status.

The court found the regime sufficiently tailored and procedurally safeguarded, upheld the reading down of 'shall' to 'may' in s. 810.1(2), and confirmed that ss. 507(4) and 515 apply to s. 810.1 proceedings.

The appeal was dismissed.