Janet M. Simmons

The appellant appealed the dismissal of his action against his former litigation counsel for solicitor's negligence, breach of contract, and breach of fiduciary duty.

The appellant alleged his counsel wrongly consented to default judgment and failed to respond to the bank's counsel, leading to a receivership over his farm properties.

The Court of Appeal dismissed the appeal, finding that the trial judge's factual conclusions—that the counsel acted diligently and was not negligent—were firmly anchored in the evidentiary record and free from palpable and overriding error.

The appeal regarding trial costs was also dismissed.

The appellant, a declared vexatious litigant, appealed a child support variation order that awarded lump sum child support to the respondent and dismissed his request for a retroactive reduction.

The Court of Appeal upheld the lump sum award and the dismissal of the retroactive reduction, noting the appellant's failure to pay support voluntarily, lack of financial disclosure, and protracted litigation.

However, the Court found the motion judge erred in failing to consider the appellant's motion for leave to request access to the child.

The appeal was allowed only to permit the appellant to request leave to bring a motion for access, and was otherwise dismissed.

The Greater Essex County District School Board appealed a Divisional Court decision upholding an Ontario Labour Relations Board (OLRB) ruling.

The OLRB found that the school board's construction management activities fell within the definition of 'construction industry' under the Ontario Labour Relations Act, and that receiving compensation for these activities constituted operating a business.

The OLRB also found the school board and other property owners were 'unrelated persons' under the 'non-construction employer' definition.

The Court of Appeal dismissed the appeal, finding the OLRB's decision reasonable and its reasons sufficient.

The appellant bank appealed a Divisional Court decision that overturned a Tribunal's finding that the bank was a 'customer' entitled to compensation under a travel industry scheme.

The Court of Appeal found that the Tribunal's interpretation of the relationship between the bank and the travel agency was reasonable based on the evidence.

The appeal was allowed, the Divisional Court's decision was set aside, and the Tribunal's decision was reinstated.

The appellant appealed a trial judgment that implied a term into a commercial agreement requiring the appellant to enter into a contract with QVC UK to provide the respondent's products for broadcast on the Shopping Channel.

The Court of Appeal dismissed the appeal, finding it was open to the trial judge to imply the term because the agreement made no practical sense without it, and the entire agreement clause did not preclude this implication.

The court noted the same result could have been reached through standard contractual interpretation.

The appellant was convicted of manslaughter after fatally stabbing a man in his garage.

At trial, the appellant argued self-defence, claiming the deceased was a loan shark who had threatened him.

The trial judge instructed the jury that while there is no obligation to retreat from one's own property, the failure to retreat is a factor to consider in assessing self-defence.

The Court of Appeal held this instruction was an error, as a person is not required to retreat from their own home in the face of an attack.

The appeal was allowed and a new trial ordered.

The appellant appealed from a summary judgment dismissing his action based on a finding that an oral settlement had been reached prior to the commencement of the action.

The appellant argued that because the parties had not agreed on the form of release, no binding settlement was reached.

The Court of Appeal dismissed the appeal, holding that absent a contractual stipulation to the contrary, a settlement agreement implies a promise to furnish a release.

The appellant father appealed a Superior Court order dismissing his appeal from an Ontario Court order making his child a Crown ward.

The child had been apprehended after the father allowed the mother, who posed a serious risk, to have contact with the child, breaching a supervision order.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the trial judge erred in principle by failing to balance the risk of harm to the child from exposure to the mother against the risk of disruption to the child's positive relationship with his father if a Crown wardship order were made.

The appellant, a licensed funeral director, appealed a Divisional Court decision upholding the Licence Appeal Tribunal's revocation of her licence for professional misconduct.

The appellant argued the Tribunal erred by not deferring to the Discipline Committee's penalty decision and that there was no evidence her conduct endangered the public.

The Court of Appeal dismissed the appeal, finding the Tribunal hearing was de novo under the Funeral Directors and Establishments Act, requiring no deference, and that the Tribunal's findings of deceitful conduct were well-supported by the evidence.

The appellant appealed a motion judge's decision regarding a limitation period.

The Court of Appeal allowed the appeal, finding that the motion judge erred in law by failing to address the specific requirements of section 5 of the Limitations Act, 2002, particularly section 5(1)(a)(iv).

The judgment below was set aside and costs were awarded to the appellant.

The appellant sued her former employer for wrongful dismissal and its executive chairman for intentional and negligent infliction of nervous shock.

The motion judge struck the claim against the executive chairman, finding he was protected by a limitation of liability clause in the appellant's employment contract.

On appeal, the Court of Appeal upheld the decision, applying the London Drugs exception to privity of contract.

The Court found the parties intended the limitation clause to apply to the executive chairman, who was acting in the course of his employment when he terminated the appellant.

The Crown appealed the respondent's acquittal on a charge of robbery while armed with a firearm.

The trial judge had acquitted the respondent because she was not satisfied beyond a reasonable doubt that he was carrying a handgun.

The Court of Appeal held that the trial judge erred in law by treating the use of a firearm as an essential element of the offence of robbery under section 343 of the Criminal Code, rather than a sentencing factor under section 344.

The acquittal was set aside and a new trial was ordered.

The respondents to the appeal brought a motion to quash the appellant's appeal of a May 2, 2012 order for delay and lack of merit.

The Court of Appeal dismissed the motion, noting that the appeal was perfected prior to being dismissed for delay, and that motions to dismiss for lack of merit are generally dealt with at the hearing of the appeal.

The court also noted the appellant may have had an unconsidered motion to vary the order for appointment of a litigation guardian.

Costs of the motion were awarded to the appellant.

The appellant appealed a three-year sentence for theft of a motor vehicle over $5,000.

The appellant had presented false identification, taken a test drive with a salesman, and forced the salesman out of the vehicle on a highway.

The Court of Appeal dismissed the appeal, finding the sentence fit given the premeditated nature of the offence, the terrifying impact on the victim, and the appellant's lengthy criminal record and breaches of court orders.

The infant plaintiff sued the defendant for damages arising from a motor vehicle accident.

The defendant appealed an order striking out her third party claim against the infant plaintiff's mother.

The motion judge had struck the claim on the basis that the plaintiff's claim was limited to the defendant's proportionate degree of negligence.

The Court of Appeal amended the formal order on consent to explicitly state that the plaintiff's claim is limited to the damages apportioned to the defendant's relative degree of fault, and otherwise dismissed the appeal.

The appellant purchasers appealed the dismissal of their action regarding failed real estate transactions.

On the closing date, the vendor respondents tendered closing documents based on their interpretation of the purchase price, while the purchasers did not tender and admitted they lacked funds to close.

The Court of Appeal dismissed the appeal, finding that even if the vendors' interpretation of the purchase price was incorrect, the difference was insignificant and did not constitute a material defect in tender.

Because time was of the essence and the purchasers were not in a position to close, the trial judge did not err in dismissing the action.

The appellant appealed a summary judgment decision finding implied consent for his son to drive his vehicle.

The motions judge had drawn an adverse inference against the appellant for failing to make efforts to provide his son's evidence.

The Court of Appeal allowed the appeal, finding the motions judge erred by drawing the adverse inference without first assessing the credibility of the appellant's own evidence, which strongly suggested a lack of consent.

The summary judgment motion was dismissed.

The appellant physician was found guilty of professional misconduct involving sexual abuse of young boys.

He appealed the Discipline Committee's decision, arguing that the summons power under s. 76(1) of the Health Professions Procedural Code violated his s. 8 Charter rights against unreasonable search and seizure, and that the College's delay in prosecuting the case amounted to an abuse of process.

The Court of Appeal dismissed the appeal, holding that the summons power is constitutional in the regulatory context as it is properly constrained by relevance and privilege.

The Court also found that the delay was not inordinate given the concurrent criminal proceedings, and the appellant did not suffer significant prejudice.

Following a successful appeal that ordered a new trial limited to damages, the appellant sought its costs of the trial.

The Court of Appeal declined to defer the costs assessment until damages were quantified, citing the respondent's reprehensible conduct in rigging bids prior to the litigation.

The court awarded the appellant its trial costs on a substantial indemnity scale, fixed at $370,000, after applying a 40% reduction to account for the appellant's lack of success on certain issues.

The court declined to make a distributive costs order in favour of the respondent.

The appellant appealed a trial judgment dismissing her solicitor negligence claim against the respondent.

She argued the trial judge erred in finding the respondent was not obliged to put in writing that he was not retained for tort and accident benefit claims, and in failing to decide whether his duty of care extended to reviewing limitation periods.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the appellant understood the scope of the retainer and that the respondent had in fact reviewed the limitation periods with her.