J.J. Carthy

The appellant appealed an order staying her main action after she had signed a release in settling an earlier negligence action against one participant in a dental implant procedure.

In the subsequent action against another dentist and her former lawyer, both defendants commenced third party proceedings against the settling defendant, who then obtained a stay of both the third party proceedings and the main action as an abuse of process.

The Court of Appeal held there was no proper basis to stay the main action, particularly where any reliance on the release by non-parties would require adjudication of the privity exception discussed in Fraser River.

The appeal was allowed, the stay of the main action was set aside, and the appellant was held to her undertaking not to pursue claims that could trigger contribution or indemnity claims against the released party.

Following further written representations on costs and funds in court, the Court of Appeal amended its order in a commercial appeal.

The court directed that funds paid by the appellant on account of land transfer tax relating to a registered instrument be released from prior orders and paid to the appellant.

The remaining issues of costs and the balance of money in court were left to the assessment officer, with the remaining funds to stay in court pending a final order of assessment.

The appellant appealed a second degree murder conviction arising from a jury trial following a shooting death.

She argued that the jury charge was deficient on intent because it did not refer to her use of prescribed anti-depressants, that the reasonable doubt instruction was inadequate, and that Crown counsel’s cross-examination created trial unfairness.

The court held that the charge on intent was adequate, the pre-Lifchus reasonable doubt instruction did not create a reasonable likelihood of jury misunderstanding when the charge was read as a whole, and the complained-of Crown conduct did not deprive the appellant of a fair trial.

The appeal was dismissed.

This appeal concerned competing claims by a landlord, an equipment vendor, and a financing company to restaurant equipment left in leased premises after the tenant abandoned them.

The court held that the priority dispute was governed by s. 31(2) of the Commercial Tenancies Act, not by the priority provisions of the Personal Property Security Act.

Because the tenant never had title to the equipment, the landlord could not invoke the statutory exception for title derived from the tenant and could only distrain against whatever equity the tenant may have acquired under the lease arrangement.

The appeal was dismissed with costs.

The appellant challenged a trial judgment finding it liable for an eye injury caused during repair of a heat pump, arguing the injury was not caused by the alleged design defect.

The respondents cross-appealed the finding of contributory negligence for failure to wear safety glasses.

The court held both the appeal and cross-appeal were entirely fact-driven and found no palpable and over-riding error in the trial judge’s acceptance of the plaintiff expert’s evidence on design defect and causation.

The finding of 15 percent contributory negligence was also upheld.

Both the appeal and cross-appeal were dismissed with costs.

This was a costs endorsement following the dismissal of an appeal in a municipal election Charter challenge.

The successful respondent did not seek costs either in the Court of Appeal or on the motion for leave to appeal.

Applying the ordinary rule that costs follow the event, the court nevertheless made no order as to costs because the successful respondent did not ask for them.

The costs order in the Divisional Court was left undisturbed.

Appeal from an application judgment reducing the voting rights attached to 18 commercial condominium basement units from 18 votes to three.

The court held that condominiums are creatures of statute and that the voting scheme mandated by the Condominium Act could not be altered by unilateral undertakings, by-laws inconsistent with the declaration, settlement arrangements, or equitable doctrines absent compliance with the statutory amendment process.

The court further held that proprietary estoppel was unavailable because there was no inducement, reliance, or detriment as between the relevant parties, and any prior representation was not made to the respondent owner nor binding on successors in title.

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

The Crown sought an extension of time to serve and file a motion for leave to appeal from a summary conviction appeal judgment that had set aside a sexual assault conviction and ordered a new trial.

The proposed appeal concerned the application of s. 278.1 of the Criminal Code to a psychiatrist’s records of joint counselling sessions involving the complainant and the accused.

The court held that, although the Crown’s diligence in locating and serving the respondent before the filing deadline was open to criticism, the Crown had formed an intention to appeal within time, no undue prejudice was shown, and the proposed appeal was arguable.

Given the significance of the legal issue and the interests of justice, the extension was granted.

The appellant union appealed from the dismissal of an application for judicial review of a labour arbitration award.

The dispute concerned whether an employee’s claim for weekly indemnity benefits under an insurance policy required by a collective agreement fell within the exclusive jurisdiction of a labour arbitrator where the employer had complied with its obligation to provide and pay for the policy.

The court, relying on its reasons in a companion appeal, held that the claim against the insurer was not arbitrable in those circumstances.

Applying curial deference on a patent unreasonableness standard, the court found the arbitrator’s interpretation of the collective agreement was open to him and upheld the dismissal of the grievance.

The appeal concerned whether a labour arbitrator had exclusive jurisdiction to determine an employee’s entitlement to long term disability benefits payable under an insurance policy maintained pursuant to a collective agreement.

The court held that recent jurisprudence, including Pilon, did not extend arbitral jurisdiction to a dispute between an employee and an insurer over policy benefits where the issue was the insurer’s liability under the policy.

The arbitrator also erred in joining the insurer as a party defendant where no dispute properly implicating the insurer was before him.

The appeal was dismissed and the Divisional Court’s order quashing the award was upheld.

The appellant employer appealed the refusal to dismiss a proposed class action seeking recovery of employee benefits allegedly tied to employment insurance premium reductions after collective agreement language was removed.

The Court of Appeal held that the core dispute—whether the employer actually satisfied its undertaking to share the benefit of the premium reduction—was not a question reserved exclusively to the statutory Commission under the governing Act and regulations.

The court further held that an officer's ruling did not create issue estoppel because it was not a determination made within the decision-maker's statutory jurisdiction on the question sought to be litigated.

The appeal was dismissed with costs.

On an appeal in a construction lien proceeding, the court considered whether expiry of a perfected lien under s. 46(1) of the Construction Lien Act automatically required dismissal of the entire action, including joined contract claims.

The court held that s. 46(1) mandates dismissal of the action to enforce the lien, but that s. 47(1)(d) preserves discretion to dismiss or allow continuation of non-lien claims within the same action.

Applying that interpretation, the court found the Master had exercised the discretion to dismiss the whole proceeding and that, given four years of inactivity and the absence of responding evidence, there was no arguable basis to interfere.

The appeal was allowed, the Divisional Court order was set aside, and the Master's dismissal order was reinstated.

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.

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 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 appellant challenged his conviction on evidentiary and credibility-assessment grounds.

The court held that evidence relating to a stolen Nintendo and a note left by the appellant was admissible, provided it was not used as propensity evidence, and found no such misuse on the record.

However, the trial judge's reasons showed a failure to assess whether disbelief of the appellant's testimony nonetheless left the court with a reasonable doubt in a case turning on credibility.

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

The Crown sought leave to appeal from a summary conviction appeal decision that had granted a Charter application and awarded $5,000 in costs after an unsuccessful firearm storage prosecution.

The Court of Appeal held that the summary conviction appeal court had jurisdiction because a Charter claim had been raised and either determined or left undecided at trial, engaging the appeal right under s. 830(1) of the Criminal Code.

However, the court found no evidentiary basis for concluding that the Crown's conduct in proceeding to trial was egregious, oppressive, or high-handed so as to constitute a breach of s. 7 or justify a remedy under s. 24(1).

The court also held that the record could not support an award of costs under s. 809(1), and set aside the costs order.

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 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.