Ian V.B. Nordheimer

The appellant sought to certify a class action against the municipality for property damage caused by pinhole leaks in copper plumbing, allegedly resulting from the addition of sodium hydroxide to the municipal water supply.

The motion judge certified the negligence claim but struck the nuisance claim, finding it barred by s. 449 of the Municipal Act, 2001, which precludes nuisance claims related to the escape of water from water works.

The Court of Appeal upheld the decision, agreeing that the nuisance claim was plainly and obviously barred by the ordinary meaning of the statute.

The Court also dismissed the appellant's argument that a breach of contract claim should have been certified, as it was not argued before the motion judge.

The appellant software company appealed the dismissal of its claim that the respondent breached a distribution agreement by copying the features and functionality of its software to create a derivative work.

The Court of Appeal upheld the trial judge's factual findings that no copying occurred and that the respondent's use of a marketing presentation was authorized.

The Court also found no error in the trial judge's evidentiary rulings, including the exclusion of an omnibus package of documents under the party admissions exception to the hearsay rule and the exclusion of an expert report that lacked necessity.

The appeal was dismissed.

The appellants, limited partners in a family-owned limited partnership, appealed the dismissal of their application seeking a declaration that they were entitled to an annual cash distribution of 100% of the partnership's net income.

They argued that section 11(1) of the Limited Partnerships Act and the Accumulations Act mandated such distributions, overriding the general partner's discretion under the limited partnership agreement.

The Court of Appeal dismissed the appeal, holding that the right to a 'share' of profits under the Act does not equate to a statutory obligation to make annual payments, and that the Accumulations Act does not apply to commercial endeavours.

The appellants, owners of a dental clinic, appealed the dismissal of their action against a former independent contractor dentist who left to start his own practice.

The appellants alleged conversion, improper solicitation of patients and employees, appropriation of confidential information, and breach of fiduciary duty.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the dentists carried on independent practices, the departing dentist only contacted his own patients to fulfill professional obligations, and the patient information accessed was not confidential.

The court also rejected claims regarding breach of fiduciary duty and the contractual duty of good faith.

The appellant appealed a trial judge's damages award arising from a failed agreement of purchase and sale for a new home, arguing that the cost of certain upgrades should have been included.

The respondent cross-appealed on the issues of mitigation and costs.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's treatment of the upgrades as a deposit.

The Court also dismissed the cross-appeal on mitigation.

However, the Court allowed the cross-appeal on costs, finding that the trial judge erred by refusing to consider the costs consequences of Rule 76.13.

Because the appellant recovered less than $100,000 and it was unreasonable to continue the action under the ordinary procedure, the appellant was denied its costs of the action.

The appellant appealed a summary judgment awarding the respondent $1,191,727.94 for a defaulted mortgage.

The appellant argued she was denied a fair hearing because her visual impairment was not adequately accommodated.

The Court of Appeal dismissed the appeal, noting the appellant had previously been granted two adjournments and did not request a further adjournment based on her disability at the hearing.

The motion judge's decision finding no triable issues was upheld.

The Crown appealed the respondent's acquittals on charges of causing death while driving with excess blood-drug concentration (THC) and dangerous driving causing death, following a fatal collision with a horse and buggy.

The trial judge had acquitted the respondent on the basis that the Crown failed to prove a causal nexus between the respondent's impairment and the collision, and failed to establish a marked departure from the standard of care.

The Court of Appeal allowed the appeal, holding that section 320.14(3) of the Criminal Code does not require proof that the impairment itself caused the death, only that the accused caused the death while committing the predicate offence.

The Court also found the trial judge erred in applying the modified objective standard for dangerous driving.

A new trial was ordered.

The moving party sought leave to appeal from a Divisional Court order that dismissed his motion for leave to appeal under Rule 2.1.

The Divisional Court had ruled it lacked jurisdiction to hear an appeal from decisions of the Information and Privacy Commissioner.

The Court of Appeal found it had no jurisdiction to hear an appeal from a dismissal of a motion for leave to appeal to the Divisional Court.

The motion for leave to appeal was dismissed as an abuse of process under Rule 2.1.

The appellant insurer appealed a partial summary judgment declaring it responsible for covering water damage to the respondent's property.

The insurer had denied coverage based on an exclusionary clause for water entering through basement walls, arguing it applied because water from a burst watermain entered via a pipe transecting the basement wall.

The Court of Appeal dismissed the appeal, finding that the plain meaning of 'wall' does not include a pipe, as they serve conflicting functions.

The court held that any ambiguity in the exclusionary clause must be resolved against the insurer who drafted the policy.

The appellant, an undischarged bankrupt, commenced an action against his former landlord for the disposal of business assets and related mental distress.

The motion judge dismissed the action as a nullity, finding that only the trustee in bankruptcy had the capacity to sue.

On appeal, the appellant argued the assets were exempt 'tools of the trade' under the Bankruptcy and Insolvency Act.

The Court of Appeal dismissed the appeal, noting the exemption limit was only $11,300, the claim sought damages rather than the return of property, and the mental distress claim was inextricably linked to the property claim belonging to the bankrupt estate.

The appellant, a defendant in an ongoing Superior Court action, commenced a separate action against the opposing counsel and their law firm, alleging negligence, misrepresentation, fraud, and conspiracy.

The motion judge dismissed the action under Rule 2.1 of the Rules of Civil Procedure as frivolous, vexatious, and an abuse of process.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's decision, as opposing counsel owed no duty of care to the appellant and the statement of claim failed to particularize any valid causes of action.

The appellant was convicted of possessing a loaded prohibited firearm found in the trunk of a vehicle he was driving.

At trial, the appellant brought applications alleging breaches of his s. 8 and s. 11(b) Charter rights, which the trial judge dismissed by largely adopting the Crown's submissions without providing independent analysis or factual findings.

On appeal, the Court of Appeal found the trial judge's reasons on both Charter applications were insufficient to permit meaningful appellate review.

The appeal was allowed, the conviction set aside, and a new trial ordered.

The respondent sought to rectify corporate resolutions after an accounting error resulted in an unintended tax liability under Part III of the Income Tax Act.

The application judge granted rectification, finding that the objective was to pay a tax-free capital dividend.

The Court of Appeal allowed the appeal, holding that rectification is not available to correct an agreement that failed to achieve an intended fiscal objective, as the executed documents accurately reflected the parties' agreement to pay a $1.4 million dividend.

The appellant appealed his convictions for firearms offences arising from a traffic stop.

He argued the stop and subsequent search were the result of racial profiling, violating his Charter rights, and that the trial judge erred in admitting the firearm under s. 24(2) despite finding a s. 10(b) breach.

The Court of Appeal upheld the trial judge's findings that the stop was based on driving behaviour, not racial profiling, and that the subsequent investigative steps were lawfully based on observations made during the stop.

The court found no error in the trial judge's Grant analysis and dismissed the appeal.

The appellant was found not criminally responsible for several offences committed during an acute episode of delirium.

The Ontario Review Board subsequently issued a detention order, finding he posed a significant threat to public safety.

On appeal, the Court of Appeal found the Board's decision unreasonable, as it failed to identify evidence meeting the high threshold for a significant threat and failed in its inquisitorial duty to probe the equivocal evidence.

The appeal was allowed, the detention order was set aside, and an absolute discharge was granted.

The appellant appealed his robbery convictions, arguing the trial judge erred in dismissing his application to adduce unknown third-party suspect evidence regarding a subsequent attempted carjacking.

The Court of Appeal found that even if the trial judge erred by referring to certain witness testimony, her core reasoning applying the Grant framework was sound.

The trial judge correctly concluded the two incidents were not sufficiently similar to suggest the same individuals committed both offences.

The appeal was dismissed.

The appellant sought leave to appeal his sentence of two years less a day for break and enter and careless storage of firearms, seeking the substitution of a conditional sentence.

The Court of Appeal found the sentence was not manifestly unfit and rejected claims of reasonable apprehension of bias.

However, the Court allowed the appeal in part to reduce the sentence by 41 days to account for pre-sentence custody credit.

The appellant, Toronto Wholesale Produce Association (TWPA), appealed a trial judgment finding it breached a Sale and Maintenance Agreement (SMA) with the respondent, ID Inc., regarding the conversion of a billboard to a digital sign.

The trial judge had awarded ID Inc. damages for lost profits, finding the SMA had not expired and that TWPA had waived or was estopped from relying on the expiry provision.

The Court of Appeal allowed the appeal, holding that the trial judge erred in her contractual interpretation by injecting a fault concept into the plain language of the SMA, which clearly stated the agreement would terminate if a permit was not obtained within 360 days.

The Court also found no evidence to support waiver or estoppel.

ID Inc.'s cross-appeal regarding an alleged separate oral agreement was dismissed, as the trial judge correctly applied the objective test for contract formation.

The action against TWPA was dismissed.

Following the dismissal of the appeal, the court received written submissions on costs.

The court ordered the appellant to pay the respondents' costs fixed at $25,000, plus disbursements and applicable HST.

The respondents purchased a motel and gas station from the appellants.

The trial judge found the appellants fraudulently misrepresented the condition of the underground fuel tank system and breached the Agreement of Purchase and Sale by failing to provide a required safety compliance report.

The trial judge awarded damages based on the cost to replace the tank system.

On appeal, the appellants argued the trial judge erred by not granting an adjournment due to late disclosure of a Pierringer agreement, misapprehending evidence about compliance alternatives, and using the wrong measure of damages.

The Court of Appeal dismissed the appeal, finding the appellants never requested an adjournment or stay at trial, and the trial judge made no palpable and overriding errors in her assessment of damages or contractual interpretation.