Gloria J. Epstein

A commercial premises was largely destroyed by fire, causing the tenant to cease operations and stop paying rent.

The landlord sought coverage for lost rental income from its insurer, who denied the claim on the basis that the tenant remained legally obligated to pay rent.

The motion judge found the lease was frustrated and ordered the insurer to pay.

On appeal, the Court of Appeal upheld the result but for different reasons, finding that the loss of anticipated rental income triggered the business interruption coverage regardless of the tenant's continuing legal obligations.

The insurer was required to pay the claim and could subsequently pursue the tenant via subrogation.

Sobeys appealed a decision finding it contractually obligated to directly fund a pension plan deficit following the termination of a warehousing and transportation agreement with Tibbett.

The Court of Appeal upheld the application judge's findings that the parties had entered into a new agreement for Sobeys to assume direct responsibility for the deficit, that Tibbett had acted with due diligence, and that the claim was not statute-barred because Tibbett was not notified of Sobeys' refusal to fund the deficit until 2013.

The appeal was dismissed.

The infant respondent was struck by a vehicle while crossing a street on his way to school.

The trial judge found the appellant municipality liable because the accident occurred during the time a crossing guard was required to be present but was absent.

The trial judge also found the infant respondent was not contributorily negligent.

The municipality appealed, challenging the trial judge's factual findings regarding the timing of the accident and the assessment of contributory negligence.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of the evidence or application of the standard of care for children.

The respondents were charged with tax offences.

During the trial, the Crown directed a stay of proceedings under s. 579 of the Criminal Code.

The respondents subsequently sought costs against the Crown under s. 24(1) of the Charter for alleged prosecutorial negligence and Charter breaches.

The Summary Conviction Court judge held he retained jurisdiction to hear the costs application, which was upheld on certiorari by the Superior Court.

The Crown appealed.

The Court of Appeal allowed the appeal, holding that once the Crown exercises its discretion to stay proceedings, the trial judge becomes functus and lacks jurisdiction to entertain a Charter costs application.

The appellants appealed an order staying their action against an Alberta hotel corporation for lack of a real and substantial connection to Ontario.

The Court of Appeal upheld the motion judge's finding that none of the presumptive connecting factors were met.

The court also rejected the appellants' argument that Ontario should assume jurisdiction under the forum of necessity doctrine due to the expiry of the Alberta limitation period, noting the appellants made a tactical decision not to sue in Alberta.

The appeal was dismissed.

The appellant appealed a jury award of zero damages and a trial judge's ruling that her claim for non-pecuniary loss did not meet the statutory threshold under the Insurance Act following a motor vehicle accident.

The appellant argued the jury verdict was perverse and the trial judge erred in his threshold analysis.

The Court of Appeal dismissed the appeal, finding it was open to the jury to conclude the appellant's post-accident difficulties were inevitable due to pre-existing osteoarthritis, and there was ample evidence supporting the trial judge's threshold ruling.

The appellant appealed a trial judgment awarding the respondents $100,000 in general damages and $75,000 in punitive damages arising from the sale of a farm property.

The Court of Appeal set aside both awards, finding that punitive damages were neither pleaded nor sought, and the general damages for harassment and mental distress were unpleaded and unsupported by expert medical evidence or adequate reasons.

The trial costs award was upheld, and the appellant was awarded costs of the appeal.

The appellant appealed his convictions for sexual assault and related offences, as well as his sentence of 13.7 years.

He argued the trial judge erred by prohibiting cross-examination of the complainant regarding a conflict in her evidence about recent sexual activity, and by granting pre-trial custody credit at a 1:1 ratio and apportioning only half of it to the current charges.

The Court of Appeal dismissed the conviction appeal, finding the appellant failed to pursue the mandatory application process under s. 276 of the Criminal Code.

The sentence appeal was also dismissed, as the trial judge's decisions on pre-trial custody credit and apportionment were discretionary and revealed no error in principle.

The appellant appealed his conviction for sexual assault, arguing that the trial judge's reasons were insufficient to justify the conviction.

The Court of Appeal found that the trial judge's reasons, read as a whole and in context, clearly showed that he accepted the complainant's evidence of forced sexual intercourse and lack of consent.

The appeal was dismissed, as the reasons were sufficient to allow the appellant to understand his conviction and to permit meaningful appellate review.

The appellant was convicted of theft under $5,000 and possession of property obtained by crime after a stolen vehicle was found abandoned with a balaclava inside containing his DNA.

The trial judge relied on the DNA evidence and the proximity of the theft to other crimes the appellant was acquitted of.

On appeal, the Court of Appeal found the verdict unreasonable, as the DNA evidence only proved the appellant wore the balaclava at some point, not that he possessed it during the theft.

The appeal was allowed, the convictions were quashed, and an acquittal was entered.

The parties appealed a trial decision regarding financial issues following their separation.

The Court of Appeal corrected the trial judge's error in imputing income to the respondent, finding she was not deliberately underemployed due to health challenges.

The court adjusted spousal support to the high end of the Spousal Support Advisory Guidelines range based on correct income figures.

The court also upheld the appellant's obligation to pay for extraordinary expenses (music lessons) despite the respondent's mother having paid for them, and maintained the trial judge's order regarding medical insurance.

The moving party, a chiropractor, sought an extension of time to file a notice of motion for leave to appeal a Divisional Court decision that upheld findings of professional misconduct and a costs award against him.

The Court of Appeal applied the test for extending time, focusing on the merits of the proposed appeal.

Finding that the proposed appeals regarding costs, liability, and penalty lacked merit and did not raise an arguable question of law or matter of public importance, the court dismissed the motion for an extension of time.

The City of Hamilton appealed a decision declaring its equipment installation by-law inoperative against Canada Post's installation of community mailboxes.

The by-law imposed a moratorium and permit fees on Canada Post.

The Court of Appeal found that while the by-law's pith and substance—regulating municipal rights of way—was within provincial jurisdiction, it conflicted with the federal purpose of the Canada Post Corporation Act and its regulations, which grant Canada Post sole decision-making power over the location of mail receptacles.

The appeal was dismissed under the doctrine of federal paramountcy.

The appellant appealed his conviction and sentence.

He argued his s. 11(b) Charter rights were infringed due to unreasonable delay.

The Court of Appeal dismissed the conviction appeal, finding the trial was completed under the 30-month ceiling established in R. v. Jordan.

On the sentence appeal, the court allowed the appeal in part, granting 1.5:1 pre-trial custody credit and reducing the sentence by three months because the trial judge improperly considered the absence of remorse as an aggravating factor.

The forfeiture and s. 161 orders were upheld.

The appellant was convicted of driving with a blood alcohol content over the legal limit.

Her summary conviction appeal was dismissed after the appeal judge refused to allow new Charter arguments that were not raised at trial.

The appellant sought leave to appeal to the Court of Appeal, arguing she was treated unfairly.

The Court of Appeal denied leave, finding the proposed appeal did not raise a question of law alone as required by s. 839(1) of the Criminal Code and did not meet the test for granting leave.

The appellant appealed his conviction and sentence, arguing that the trial judge erred by failing to order a psychological assessment in preparation for his trial.

The Court of Appeal dismissed the appeal, finding that such an assessment would not have been relevant to the factual determinations underlying his conviction.

The court also upheld the sentence as fit for the serious crimes committed.

The appellant appealed the dismissal of her action against the respondent bank for allegedly negligently negotiating a cheque for $35,518.95.

The cheque was made payable jointly to the appellant and a property management company.

The trial judge found that the bank acted properly in negotiating the cheque, which was endorsed by both payees and deposited into the account of the presenting payee.

The Court of Appeal found no error in the trial judge's findings of fact or application of the law and dismissed the appeal.

The appellant appealed a trial judgment regarding a profit-sharing agreement for construction projects.

The trial judge found no negligence on one project and that both parties were responsible for the failure to earn a profit on the other, declining to apportion liability or award compensation.

The appellant also argued the trial judge erred in excluding its expert witness for lacking impartiality.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the trial judge's findings on liability and holding that the exclusion of the expert was a discretionary decision open to the trial judge.

The appellant appealed a trial judgment under the Succession Law Reform Act that found her to be the common law spouse of the deceased, awarded her a $30,000 support order, and ordered her to pay $20,000 in costs to the respondent.

The appellant argued she should have been awarded the deceased's house, that a constructive trust should have been found, and that costs should have been paid out of the estate.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's findings of fact, credibility assessments, or discretionary costs award.

The appellant was convicted of importing and possessing cocaine for the purpose of trafficking after customs officials found 1.2 kilograms of cocaine wrapped in his t-shirt in a truck's fuse box.

On appeal, he argued the trial judge made several errors in assessing his credibility, including taking improper judicial notice, misapprehending evidence, and reversing the burden of proof.

The Court of Appeal dismissed the appeal, finding the trial judge's credibility findings were reasonably open on the evidence and any alleged errors were peripheral to the core reasoning.

An application to admit fresh evidence was also dismissed for failing the Palmer test.