James J. Carthy

The appellant appealed convictions for two counts of attempted murder arising from a gasoline-fuelled attack on his estranged spouse and her partner, and also appealed a lengthy penitentiary sentence.

The court held that expert reply evidence on accidental ignition was admissible because the ignition mechanism was only marginally relevant during the Crown's case and became a live issue after the appellant testified.

The court also rejected the challenge to the attempted murder charge, finding that, read as a whole, the instructions made clear that proof of intent to kill was essential.

Given the planned and deliberate nature of the offences and the catastrophic injuries inflicted, leave to appeal sentence was granted but the sentence appeal was dismissed.

The appellants appealed a judgment restraining use of storm-damaged lakefront property for cottage purposes after rezoning to hazard lands.

The central issue was whether a legal non-conforming use survived where the prior owners ceased occupancy after severe storm damage and decided not to rebuild.

The court held that continuation under s. 34(9) of the Planning Act requires both intention to continue the use and continuation of actual use so far as possible in the circumstances.

The prior owners had abandoned the cottage use, breaking the chain of continuity.

The appeal was dismissed, with only a formal amendment removing the word 'interlocutory' from the injunction.

In a family law appeal involving an exceptionally high-income payor, the court held that the presumptive Table amount under s. 4 of the Federal Child Support Guidelines could be displaced where clear and compelling evidence showed it was inappropriate.

The court found the child support award required a fresh hearing because the trial judge had been bound by pre-Francis authority and had made insufficient findings on the child's means, needs, and circumstances.

The cross-appeal on spousal support was also allowed because the trial judge failed to consider all objectives in s. 15.2(6) of the Divorce Act.

The court dismissed the custody and wedding gift issues, but held that the wealthy payor should ordinarily bear the costs of litigating child support where the custodial parent is forced to defend the presumptive Table amount.

The appellant doctor appealed a trial judgment finding him liable for a surgical burn suffered during routine electrocautery surgery and awarding general and special damages.

The Court of Appeal unanimously upheld the trial judge’s liability findings, holding there was evidence supporting the conclusion that pooled alcohol-based prepping solution ignited during the procedure and that the doctor breached the standard of care.

The court divided on discoverability under s. 17 of the Health Disciplines Act, but the majority held the respondent knew enough material facts immediately after the surgery to allege negligence against the surgeon and hospital without awaiting an expert opinion.

The appeal was therefore allowed and the action dismissed as statute barred.

Commercial appeal arising from a terminated joint venture funding agreement for the acquisition of Greek mines.

The Court of Appeal held that no fiduciary duty survived termination of the parties' arm's-length commercial agreement, but upheld findings that the respondent group provided confidential information, that the appellant misused that information in acquiring the property, and that the confidentiality agreement and common law duty of confidence were enforceable.

The court refused to admit fresh evidence under the Palmer test and dismissed a non-party motion to set aside the judgment based on alleged ownership of the information.

The remedy awarding a 12 per cent carried interest plus a further 12 per cent participating interest was upheld, while both the main appeal and cross-appeal were dismissed.

The appellant challenged a sexual offence conviction and sought leave to appeal a four-year penitentiary sentence.

The court held that extrinsic evidence to contradict the complainant about prior sexual conduct and alleged abuse was irrelevant to any live issue other than credibility and was therefore inadmissible under the collateral fact rule, apart from s. 276 of the Criminal Code.

The court also rejected arguments that the trial judge improperly compartmentalized the defence evidence, erred in relying on flight as consciousness of guilt, or mishandled credibility findings.

The conviction appeal was dismissed, and although leave to appeal sentence was granted, the sentence appeal was also dismissed.

The appellant challenged both the trial judgment and the costs award arising from a dispute concerning consideration for shares and obligations under minutes of settlement.

The Court of Appeal rejected the attack on the trial judge’s factual findings, holding there was evidence to support the impugned findings.

However, it held the trial judge erred in principle in awarding solicitor-client costs because the pleadings, while strongly worded, did not amount to fraud or dishonest conduct warranting elevated costs and were not pursued unreasonably.

Leave to appeal costs was granted, the appeal on costs was allowed, and party-party costs were substituted, with the respondent recovering 90 percent of the costs of the appeal.

Appeal from a trial judgment concerning interpretation of a share purchase agreement for the sale of a life insurance company.

The dispute was whether post-closing industry-wide compensation assessments, calculated using pre-closing premium income, were payable by the vendors or the purchasers.

The court held that the assessments were liabilities arising in the years they were levied, not in the years used to calculate them, and that the agreement required the purchasers to pay them.

The court further held that the negotiation evidence supported that reading and that the general indemnity clause did not displace the specific allocation in the contract.

Appeal allowed, trial judgment set aside, and the action dismissed.

The appellant inventory financier appealed a conversion judgment arising from the seizure and sale of a boat delivered to a dealer for resale.

Assuming without deciding that the dealer held the boat on consignment and lacked title, the court held that the financier could rely on s. 2(1) of the Factors Act because it took its chattel mortgage in good faith and without notice of any lack of authority.

The court rejected the trial judge's conclusion that good faith under s. 2(1) includes a due diligence requirement, holding instead that good faith means honesty, even if conduct is negligent.

The action was dismissed and the appellant received trial and appeal costs.

The appellants appealed convictions for manslaughter, conspiracy to commit robbery, possession of a weapon, and wearing a disguise arising from a fatal botched robbery.

The court held that the trial judge erred in three respects: by giving an improper deadlock exhortation that suggested the majority view was correct, by failing to give a limiting instruction on bad character evidence led by one co-accused against the other, and by failing to provide a Vetrovec warning regarding a central accomplice witness whose credibility was seriously in issue.

The court declined to apply the curative proviso under s. 686(1)(b)(iii) of the Criminal Code.

The convictions were set aside and a new trial was ordered.

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 appellant appealed convictions for sexual offences against two child complainants and sought a proportionate sentence reduction if one conviction were overturned.

The court rejected challenges to the jury charge on reasonable doubt, held that any error in admitting two prior discreditable incidents was harmless, and found no reviewable prejudice arising from the treatment of prior statements.

On the second complainant's count, the court upheld admission of a videotaped statement under s. 715.1 of the Criminal Code notwithstanding a delay of approximately two years, relying on the evidentiary record explaining delayed disclosure by a timid child witness.

The conviction appeals were dismissed, leave to appeal sentence was granted, and the sentence appeal was dismissed.

In an intended class proceeding arising from a union seniority integration dispute following an airline merger declaration, the appellants sought damages personally against other union members for alleged breach of the union constitution.

The court held that although union constitutions may be analyzed contractually, the contractual bond runs between each member and the membership as a whole, not as one-on-one contracts supporting damages claims against individual members.

The appeal from summary judgment dismissing the contract claim was therefore dismissed.

The cross-appeal was also dismissed because the pleaded conspiracy and unlawful interference claims remained legally distinct and disclosed a genuine issue for trial.

The appellant appealed a conviction for sexual assault arising from an allegation that intercourse continued after consent was withdrawn and escalated to forced anal intercourse.

The Crown had adduced similar fact evidence from the appellant's former spouse concerning seven alleged incidents of physical and sexual abuse.

The court held that the proposed evidence lacked the necessary pattern or distinctive similarity, was weakened by credibility frailties and potential collusion, and primarily invited impermissible propensity reasoning.

Because its slight probative value was outweighed by its highly prejudicial effect, the evidence should not have been admitted.

A new trial was ordered.

The appellant municipality appealed a trial judgment in a sidewalk slip-and-fall action.

The court held that s. 47 of the Limitations Act applies to the seven-day notice requirement in s. 284(5) of the Municipal Act, but only where the plaintiff demonstrates actual incapacity amounting to being of unsound mind.

A debilitating condition, pain, medication, or failure to turn one's mind to legal rights is insufficient absent proof that the plaintiff lacked the capacity to consider, investigate, understand advice about, and direct steps to protect the claim.

Although the trial judge's findings on gross negligence and the request to admit were not disturbed, the respondent failed to prove incapacity and the action was therefore barred for late notice.

No costs were ordered.

The appellant appealed convictions for conspiring to traffic in a narcotic and possession of a narcotic for the purpose of trafficking arising from a heroin shipment from Thailand to Canada.

He argued the verdicts were unreasonable and that intercepted private communications in Chinese were admitted contrary to s. 189(5)(a) of the Criminal Code because he was not served with a written transcript in the original language.

The court held the trial judge was entitled to reject the appellant's exculpatory explanation and that the findings of guilt were fully supported by the evidence.

It further held that s. 189(5)(a) is an evidentiary provision to be interpreted liberally, and that where the Crown proved the communications viva voce through a translator, service of the transcribed English translations constituted a statement setting out full particulars of the private communications.

The conviction appeal was dismissed.

The Crown appealed an order staying proceedings on the basis that the respondent was not tried within a reasonable time under s. 11(b) of the Charter.

The Court of Appeal upheld the motion judge’s allocation of delay, including a finding of unreasonable institutional delay after accounting for defence-attributable time and inherent case requirements.

The court also upheld the finding of prejudice, including restrictive bail conditions and the effect of delay on witness memory in the context of late-discovered evidence.

Balancing the respondent’s fair trial interests against society’s interest in prosecuting a serious offence, the court held the stay was justified and dismissed the appeal.

The appellant appealed convictions and sentence arising from trafficking in large amounts of cocaine.

He argued primarily that the judge hearing the Garofoli application unfairly limited cross-examination of the police officer who swore the affidavits supporting wiretap authorizations.

The court held that leave to cross-examine on such affidavits is not automatic, informer privilege remained protected absent the innocence-at-stake exception, and the application judge properly exercised his discretion in restricting questions that risked revealing protected information.

The court also rejected a sentence disparity argument, finding the appellant played a more significant role than others in the trafficking operation.

Both conviction and sentence appeals were dismissed.

The applicant sought review of a single judge’s order refusing an extension of time to appeal the dismissal of two civil actions tried together, one arising from a motor vehicle accident and the other from an alleged solicitor negligence claim connected to earlier accident litigation.

The court gave the applicant the benefit of the doubt on delay but held there was no basis to disturb the single judge’s conclusion that the proposed appeal lacked sufficient merit.

The proposed appeal turned primarily on credibility findings and factual determinations, including the treatment of medical evidence based on incomplete or inaccurate histories.

The application was dismissed with costs.

Appeal in a mortgage priority dispute arising from the sale of a vacant lot where the purchaser granted a first construction mortgage and a second purchase money mortgage on closing.

The application judge had held that the unpaid vendor's lien took priority over the first mortgage because the first mortgagee had notice of the unpaid purchase price.

The Court of Appeal held that the equities rebutted enforcement of the vendor's lien as between the first and second mortgagees where both mortgages were placed on title on closing in a common transaction intended to finance construction and establish priority by registration.

The court further held that a vendor's lien is not an 'existing claim on the land' released by s. 5 of the Land Registration Reform Act, but limited the first mortgage's priority to the amount of the first advance.