Gary T. Trotter

The Court of Appeal for Ontario dismissed the appeal of Lori Gallant, who sought a court order to fix the rental rate for a renewed term of a commercial lease with Sherril Johnson and Fitzroy Johnson.

The court held that the lease’s renewal clause was merely an agreement to agree, providing no basis for the court to set a rental rate or imply a method for doing so.

The court also found no breach of good faith by the respondents in the rental negotiations.

The respondents were awarded costs.

The Court of Appeal for Ontario dismissed the appeal by the defendants, Danping Wang (also known as Linda Wang) and Shi Gang Ni (also known as Simon Ni), from a judgment awarding $555,000 to the respondent, Jamshid Nayyer, for breach of contract.

The trial judge found that the parties had a valid oral agreement entitling the respondent to a 20% interest in certain properties, which was later exchanged for a full interest in a condominium.

The trial judge’s findings on credibility and the evidence were upheld, and the appeal was dismissed with costs.

The Court of Appeal for Ontario dismissed both the main appeal and cross-appeal in a dispute over the beneficial ownership and occupation of a house acquired during a brief marriage.

The court upheld the application judge’s finding that Ms. Qu was the 100% beneficial owner of the house by way of resulting trust, rejecting Mr. Zhang’s arguments regarding the presumption of joint tenancy and the sufficiency of evidence.

The court also upheld the award of occupation rent to Ms. Qu and declined to order additional security for potential future repairs, finding no error in the application judge’s approach or findings.

The Court of Appeal for Ontario dismissed the appeal of Damodar Arapakota and the Arapakota 2006 Family Trust from the Superior Court’s order dismissing their application for delay.

The Court found no error in the motion judge’s conclusion that the delay was inordinate and inexcusable, and that the presumption of prejudice was not rebutted.

The Court also refused to admit fresh evidence, finding it could have been obtained earlier and would not have affected the outcome.

The appeal was dismissed and costs were awarded to the respondents.

The appellant, Zeljko Rajic, appealed a decision denying his entitlement to post-judgment interest following a settlement agreement with his former counsel and their law firm.

The Court of Appeal held that post-judgment interest under section 129 of the Courts of Justice Act does not apply where no court order for payment has been made, and the settlement did not expressly provide for such interest.

The appeal was dismissed, and costs were awarded to the respondents.

The Court of Appeal for Ontario dismissed Stephen Harbour’s appeal from the order of Justice William S. Chalmers, which required Harbour to indemnify Puneet Brar and Realtus Law Professional Corporation for payment of a Canada Revenue Agency lien on Harbour’s property.

The court found no error in the application judge’s findings regarding the interpretation of the indemnity agreement, the need to convert the application to an action, or the finding of unjust enrichment.

The appeal was dismissed with costs to the respondents.

The appellant, Gregory Whalen, was convicted of multiple sexual offences against his stepdaughter, V.K., and appealed his conviction.

The central issue on appeal was the admissibility of surreptitious audio recordings made by V.K.’s mother during phone calls with the appellant.

The Court of Appeal upheld the trial judge’s decision to admit the recordings, finding that their probative value outweighed any prejudicial effect and that the trial judge’s instructions to the jury were appropriate.

The appeal from conviction was dismissed.

The Court of Appeal for Ontario considered the powers of police to conduct a warrantless search of a vehicle and its occupants under s. 12(3) of the Cannabis Control Act, 2017.

The respondent, a passenger, was acquitted at trial after the judge found his Charter rights under ss. 9, 10(a), and 10(b) were infringed and excluded evidence of firearms found in the vehicle.

On appeal, the Court found the trial judge erred in concluding that the respondent’s rights under ss. 9 and 10(a) were violated, but agreed that s. 10(b) was breached.

The Court held that s. 12(3) of the CCA does not justify a general suspension of the right to counsel under s. 10(b), distinguishing the context from roadside sobriety stops.

The evidence was ultimately admitted, and a new trial was ordered.

The Court of Appeal for Ontario considered three applications related to a previous application by David Swaine, the respondent on a Crown appeal.

Swaine sought orders under sections 682 and 683 of the Criminal Code, including cross-examination of prosecuting Crowns and production of documents from the Executive Legal Officer of the Superior Court of Justice.

Two applications to intervene were brought by the Office of the Chief Justice of the Superior Court of Justice and the Ontario Superior Court Judges’ Association, both raising concerns about the administration of justice and judicial independence.

The Crown also sought a sealing order for future materials.

The Court granted leave to intervene to both proposed interveners and dismissed the Crown’s application for a sealing order, finding it inapplicable to the materials at issue.

The appellant, Cody Cuthbertson, appealed his conviction, arguing that the trial judge erred in not classifying a Charter breach as more serious.

The Court of Appeal found no error in the trial judge’s assessment of the seriousness of the breach or in the balancing of factors under R. v. Grant.

The appeal was dismissed.

The appellants, Dorinda Nana Afriyie and Adusei Kwame, appealed the dismissal of their motion to set aside a default judgment and writ of possession in a mortgage action brought by Rume Ezomo.

The Court of Appeal found no error in the motion judge’s application of the criteria for setting aside a default judgment, as set out in Mountain View Farms Ltd. v. McQueen.

The court held that the motion judge properly considered the relevant factors, including promptness, explanation for default, arguable defence, prejudice, and the integrity of the administration of justice.

The appeal was dismissed, and costs were awarded to the respondent.

The Court of Appeal for Ontario dismissed Michelle Botosh’s appeal from the order striking out her 2023 action against members of the defence team from her earlier personal injury litigation.

The court found the new action was a collateral attack on the 2013 judgment and an abuse of process.

The court also upheld the motion judge’s findings regarding witness and lawyer immunity, the absence of a privacy claim, and the reasonableness of the costs award.

The Court of Appeal for Ontario dismissed the Crown’s appeal from a stay of drug charges entered under section 11(b) of the Charter.

The Crown argued that the trial judge should have deducted 92 days as a discrete exceptional circumstance due to a co-accused’s discharge of counsel.

The Court found no error in the trial judge’s approach or conclusion, holding that the Crown could have proceeded separately against the respondent, as it had with other co-accused.

The stay was upheld.

The appellant, Gaurav Tewari, appealed the decision of the motion judge who permanently stayed his action as a duplicative pleading and an abuse of process.

The motion judge also struck the claim under rules 21.01(3)(c), 21.01(3)(d), and 25.11 of the Rules of Civil Procedure, finding it contained no reasonable cause of action and was frivolous, vexatious, and an abuse of process.

Leave to amend was refused.

The Court of Appeal found no error in the motion judge’s decision and dismissed the appeal, awarding costs to the respondent.

The appellant, Shiu Yiu Kong, appealed the dismissal of his application for an oppression remedy under the OBCA and CBCA.

The Court of Appeal found no error in the application judge’s consideration of the statutory provisions, legal principles, or factual findings.

The court held that the appellant’s criticisms of the companies’ books and records did not amount to oppressive conduct, especially as the supporting evidence was inadmissible opinion evidence.

The real dispute was over the price and method of share purchase, which did not warrant court intervention.

The appeal was dismissed, and costs were awarded to the respondents.

The Court of Appeal for Ontario dismissed Osama Filli’s appeal from his conviction for manslaughter in the stabbing death of Nahom Berhane.

Filli, who was found not criminally responsible on account of mental disorder after trial, challenged the trial judge’s findings on self-defence, the use of mental health evidence, and the reasonableness of the verdict.

The appellate court found no error in the trial judge’s assessment of the threat, the opportunity to retreat, or the use of mental health evidence, and held that the verdict was supported by the evidence and reasoning.

The appellant appealed a motion judge's order, arguing the judge misapprehended evidence regarding the interpretation of a quitclaim deed and its tax consequences.

The Court of Appeal dismissed the appeal, finding that the interpretation of the deed was a matter of law and intention, not evidence, and that the motion judge correctly considered the tax consequences without misapprehending the evidence.

The self-represented appellant appealed an order of the Superior Court of Justice.

The Court of Appeal found no errors in the motion judge's decision and dismissed the appeal, awarding costs of $3,000 to the respondents.

The moving party sought a panel review of a decision dismissing her motion for an extension of time to perfect her motion for leave to appeal from the Divisional Court.

The Divisional Court had previously dismissed her appeal of five Licence Appeal Tribunal decisions.

The Court of Appeal dismissed the motion, agreeing with the motion judge that despite meeting the first four factors for an extension of time, the justice of the case weighed against granting leave because the proposed appeal lacked merit and general public importance.

The appellant was convicted of manslaughter and sentenced to eight years' imprisonment after shooting an intruder outside his home.

He appealed the conviction, arguing the trial judge erred in leaving manslaughter with the jury, and challenged the jury instructions on self-defence and out-of-court statements.

The Court of Appeal dismissed the conviction appeal, finding an air of reality to manslaughter based on the appellant's testimony and upholding the jury instructions.

On the sentence appeal, fresh evidence revealed the trial judge misspoke and intended to impose a six-year sentence.

The Court allowed the sentence appeal, finding the trial judge erred in failing to correct his mistake immediately, and sentenced the appellant afresh to six years' imprisonment.