James J. Carthy

The appellant challenged an order holding that findings of an Umpire under the Unemployment Insurance Act barred his constructive dismissal action against his public-sector employer.

The Court of Appeal held that the Umpire had decided the same factual issue central to the civil action, namely whether the employer had just cause based on simultaneous full-time employment and duplicate expense claims.

The court further held that a discharge after a criminal preliminary inquiry does not determine the same issue because it addresses only whether sufficient evidence exists to commit for trial.

Although courts retain discretion to refuse issue estoppel where its application would cause unfairness or injustice, the appellant failed to demonstrate any actual unfairness in the procedures before the Board of Referees and the Umpire.

The appeal was dismissed with costs.

Three appellants challenged convictions for criminal harassment under s. 264 of the Criminal Code and two also appealed sentence.

The court rejected constitutional arguments that the provision was unconstitutionally vague, imposed impermissible constructive liability, or violated freedom of expression contrary to ss. 7 and 2(b) of the Charter.

The court also dismissed case-specific evidentiary, unreasonable verdict, indictment timing, and standard of proof arguments.

Leave to appeal sentence was granted to two appellants, but both sentence appeals were dismissed.

The appellant appealed a second degree murder conviction arising from an entirely circumstantial prosecution based on motive, forensic evidence, and prior statements attributed to the deceased.

The principal issue was whether the jury charge was deficient for failing to distinguish direct from circumstantial evidence and for using pre-Lifchus language on reasonable doubt.

The court held that no formulaic circumstantial-evidence instruction was required so long as the jury was clearly told that guilt had to be the only reasonable inference proven beyond a reasonable doubt.

The court also held that the Crown's speculative suggestions, the manslaughter instruction, and the cautions concerning hearsay evidence did not cause unfairness warranting a new trial.

The conviction appeal was dismissed.

The appellants appealed a judgment finding negligent criminal defence representation and awarding general and special damages to the former client.

Negligence was conceded on appeal, and the dispute concerned causation and quantification of damages.

The court held that the special damage awards relating to the respondent's mother's legal fees and Legal Aid payments were unsupported.

The majority upheld recoverability of mental distress damages in principle but reduced the award to $15,000 after finding no evidentiary basis to attribute family estrangement to counsel's negligence.

The appellants appealed only the assessment of damages following a negligence finding against criminal defence counsel arising from the handling of an abduction prosecution and plea discussions.

The Court of Appeal held that the respondent could not recover amounts paid toward his mother's legal fees or amounts paid by Legal Aid, as those losses were not legally attributable to the appellants.

The majority further held that while the trial judge erred in linking the respondent's family estrangement to counsel's negligence, the expert psychiatric evidence supported a reduced award for depression caused by the negligent conduct of the defence.

The damages award was reduced to $15,000, with prejudgment interest and trial costs preserved on the basis fixed below.

The Crown appealed from the dismissal of provincial offences charges arising from the sale of cigarettes to a 16-year-old who produced a falsified school identification card.

The central issue was whether the statutory defence in s. 3(3) of the Tobacco Control Act, 1994 permitted reliance on identification other than the five forms listed in O. Reg. 613/94.

The court held that the regulation created an exhaustive list of prescribed identification and that the lower courts erred in treating it as merely illustrative.

The statutory due diligence defence was therefore unavailable on the facts, convictions were entered, and absolute discharges were granted.

The appellant municipality challenged a trial judgment arising from a bicycle accident on a paved roadway that also formed part of a fitness path.

The court held that s. 4(1) of the Occupiers’ Liability Act did not apply because the location was regularly used for vehicular traffic and was more than a recreational trail.

The court upheld the findings of no contributory negligence and the general damages award, but set aside a $50,000 award for loss of competitive advantage because the evidence of future earning capacity loss was meagre and unquantified.

The appeal was allowed in part, the cross-appeal was dismissed, trial costs were reduced to party-and-party, and there were no costs on the appeal or cross-appeal.

In a commercial franchise and sublease dispute, the appellant challenged an order granting the respondents possession of premises.

The court held the respondents failed to establish any claim to possession under an alleged new lease because they were not parties to it and adduced no admissible evidence that it was entered into on their behalf.

The court also held the respondents failed to prove the factual foundation for any continuing month-to-month tenancy under the original lease, namely the absence of notice from the landlord.

The appeal was allowed, the judgment below set aside, and the application dismissed with costs to the appellant.