Janet Simmons

The appellant appealed the motion judge's dismissal of his action for delay.

The action involved a dispute over ownership of shares in a corporation with an equity interest in a property development in Windsor, Ontario.

The appellant commenced the action in February 2004, more than seven and a half years after the relevant events in June 1996.

The action experienced significant periods of inactivity, including over five years of dormancy after the appellant filed his Affidavit of Documents.

The Court of Appeal upheld the dismissal, finding that the delay was inordinate, inexcusable, and prejudicial to the defendants, creating a substantial risk that a fair trial would not be possible.

The appellant appealed his convictions for sexual offences against two young children who attended his home daycare.

The trial judge had admitted the children's unsworn statements under the principled exception to the hearsay rule and rejected the appellant's testimony.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the trial judge erred by relying on defence counsel's trial tactics to impugn the appellant's credibility and by finding the necessity criterion for hearsay met without expert evidence of psychological trauma or a proper voir dire on the children's ability to recollect.

The testator's will directed his two children, appointed as co-executors and trustees, to set aside $100,000 in a trust fund for the benefit of their brother.

The brother was to receive $500 monthly, with the remainder to the testator's grandchildren.

The co-trustees transferred the funds to a non-registered investment plan in one trustee's name, who subsequently misappropriated the funds.

The application judge found both trustees jointly and severally liable for the breach of trust.

The appellant co-trustee appealed, arguing she had no active role in the misappropriation and should be relieved of liability under s. 35(1) of the Trustee Act.

The Court of Appeal dismissed the appeal, holding that a co-trustee cannot passively acquiesce to another trustee's actions and that her failure to ensure the trust was properly established constituted an unreasonable breach of fiduciary duty.

The appellant doctor appealed a Superior Court decision that reversed a Consent and Capacity Board finding that the respondent was incapable of consenting to proposed psychiatric treatment.

Following the commencement of the appeal, the respondent's NCR verdict was overturned, he was discharged from the facility, and the proposed treatment was never commenced.

The Court of Appeal dismissed the appeal as moot, declining to exercise its discretion to hear the case as a decision would have no practical effect on the parties and the appellant's concerns regarding a prior capable wish could be addressed under section 36 of the Health Care Consent Act.

The appellant was convicted of dangerous driving causing bodily harm and assault with a weapon following a road rage incident.

On appeal, he argued his s. 10(b) Charter rights were breached when police failed to provide a second opportunity to consult counsel after informing him of the additional assault charge.

The Court of Appeal agreed, finding the new charge significantly increased his jeopardy and moral blameworthiness.

Applying the Grant framework, the court excluded the appellant's police statement under s. 24(2), allowed the appeal, and ordered a new trial.

The appellants were convicted of kidnapping, extortion, and assault following a home invasion involving sexual assault and confinement.

They appealed their respective sentences of 13 and 12 years' imprisonment, arguing the trial judge failed to consider mitigating factors and the parity principle.

The Court of Appeal dismissed the appeals, finding the sentences fit given the heinous nature of the crimes and the trial judge's proper application of sentencing principles, including denunciation and deterrence.

The appellant appealed a decision finding a secondary will invalid.

The secondary will had previously been rectified nunc pro tunc by another judge due to clerical errors, based on a finding that the testatrix had not read it but that it corresponded with her instructions.

The application judge subsequently found the will invalid based on the finding that it had not been read.

The Court of Appeal allowed the appeal, holding that the application judge's reasoning was circular and undermined the previous rectification order, which implicitly determined the will's validity.

The Crown appealed the respondent's acquittal for driving with a blood alcohol level over the legal limit.

The trial judge had excluded breath sample evidence under s. 24(2) of the Charter, finding a s. 8 breach because the police officer lacked reasonable grounds to suspect alcohol in the respondent's body, despite smelling alcohol and an admission of consumption 10 hours prior.

The summary conviction appeal court upheld the acquittal.

The Court of Appeal allowed the Crown's appeal, holding that the odour of alcohol and admission of consumption were sufficient to form reasonable suspicion, and the absence of impairment signs or the possibility of alcohol elimination did not negate that suspicion.

A new trial was ordered.

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.

Following a successful appeal of a procedural ruling regarding a contempt motion, the parties neglected to address the costs of the proceeding before the motion judge.

The appellant requested that the Court of Appeal determine those costs, seeking $20,000.

The respondent argued the matter should be remitted to the motion judge or that no costs should be awarded.

The Court of Appeal declined to remit the issue to avoid further delay and expense, and awarded the appellant costs of the motion below fixed at $15,000 all-inclusive.

The appellants appealed a judgment requiring them to pay $30,000 to the respondents, representing the balance owing under Minutes of Settlement.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error or extricable error of law in the motion judge's interpretation of the agreement.

The court further held that the appellants could not rely on their own conduct to support a claim that the contract was frustrated.

The applicant was convicted of sexual assault and sentenced to eight months' imprisonment.

His summary conviction appeal was dismissed as abandoned after he failed to perfect it, and a subsequent application to re-open the appeal was denied.

The applicant sought leave to appeal to the Court of Appeal and to introduce fresh evidence regarding a surveillance video and a deportation order resulting from his sentence.

The Court of Appeal found it had jurisdiction under s. 839 of the Criminal Code, admitted the fresh evidence regarding the deportation order, and allowed the appeal in part, permitting the applicant to re-open his summary conviction appeal as it relates to sentence only.

The appellant insurer appealed a decision dismissing its application for a preliminary determination of whether the respondent was involved in an 'accident' under the Statutory Accident Benefits Schedule.

The insurer argued this was a coverage issue that had to be determined by a court before the mandatory dispute resolution scheme under s. 279 of the Insurance Act applied.

The Court of Appeal dismissed the appeal, holding that the s. 279 scheme is a comprehensive alternative dispute resolution process that governs all disputes concerning entitlement to statutory accident benefits, including whether a claimant qualifies as an insured person involved in an accident.

The applicant sought leave to appeal a summary conviction appeal court judge's decision dismissing his application to reopen his appeal and extend the time to file a notice of appeal.

The Court of Appeal first determined it had jurisdiction under section 839(1) of the Criminal Code to hear an appeal from a decision refusing to extend time or reopen an appeal.

However, the Court dismissed the application for leave to appeal, finding that despite the lower court applying the test for an extension of time rather than reopening an appeal, there was no injustice.

The applicant had delayed five years without reasonable explanation, and there was no merit to the proposed appeal from his convictions for assault with intent to resist arrest and carrying a concealed weapon.

The moving party sought leave to appeal an order of the Divisional Court that dismissed her appeal under Rule 2.1 of the Rules of Civil Procedure.

The Divisional Court had dismissed the appeal because the amount claimed exceeded $50,000, placing it outside its jurisdiction under section 19(1.2) of the Courts of Justice Act.

The Court of Appeal agreed that the Divisional Court lacked jurisdiction and dismissed the motion for leave to appeal under Rule 2.1 as devoid of merit.

The appellant moved for leave to appeal an order of the Divisional Court that dismissed her Judicial Review Application for want of jurisdiction.

The appellant had sought $1,800,000 in damages in her application.

The Court of Appeal agreed that the Divisional Court had no jurisdiction to grant such relief under section 2 of the Judicial Review Procedure Act.

The motion for leave to appeal was dismissed as devoid of merit under Rule 2.1 of the Rules of Civil Procedure.

The appellant appealed an order dismissing his action under Rule 2.1 of the Rules of Civil Procedure as frivolous and vexatious.

The appellant had sued the Divisional Court, the Province, and the Public Guardian and Trustee regarding prior settlements approved by the court.

The Court of Appeal found no error in the motion judge's conclusion that the claim was devoid of merit and dismissed the appeal.

The appellant trustee in bankruptcy appealed the dismissal of its motions for summary judgment and to strike portions of the respondent's claim.

The respondent, an interim receiver, sued the appellant for breach of fiduciary duty.

The appellant argued the claim was statute-barred and an abuse of process.

The Court of Appeal upheld the motion judge's finding that the limitation period did not begin until the respondent received withheld reports containing material facts, and found no error in the dismissal of the abuse of process motion.

The appeal was dismissed.

The moving party, Unifund Assurance Company, brought a motion that was scheduled to be heard by teleconference.

Due to apparent bad connections, particularly on the part of the self-represented responding party, the court found the telephone motion unworkable.

The court adjourned the motion to a later date, directing the responding party to appear in person.

Following a successful appeal, the parties agreed on appeal costs but could not agree on the costs of the underlying application or the payment of interest.

The Court of Appeal fixed the application costs at $40,000 inclusive of disbursements and taxes, taking into account the appellant's offer to settle.

The Court also ordered that interest at three percent per annum is payable on the judgment.