D.R. O’Connor

The appellants purchased a new townhouse and discovered dampness in the basement due to a cement slab that did not meet the Ontario Building Code depth requirement.

They sued the builders and the Ontario New Home Warranty Plan after rejecting a proposed sealant solution.

The trial judge awarded $29,700 in damages against the builders but dismissed the claim against the Plan, finding the appellants failed to mitigate by refusing a reasonable solution.

The Court of Appeal dismissed the appeal and cross-appeal, upholding the trial judge's factual findings and damages assessment.

The appellant appealed an order quashing his discharge on a charge of first degree murder following a preliminary inquiry.

The preliminary hearing judge had found that the pathologist's evidence of force applied to the deceased's wrists could not support an inference of forcible confinement, weighing it against other evidence.

The Court of Appeal held that the preliminary hearing judge committed jurisdictional error by improperly weighing competing inferences.

The appeal was dismissed.

The appellants appealed convictions and penitentiary sentences arising from prolonged physical, emotional, and sexual abuse of a vulnerable complainant in a domestic setting.

The court rejected arguments that the trial judge conflated credibility and reliability, misapprehended medical and nursing evidence, rendered unreasonable verdicts, or misapplied the burden of proof under the W.(D.) framework.

Reading the reasons as a whole, the court held that the trial judge properly considered the entire evidentiary record, the defence fabrication theory, and the requirement of proof beyond a reasonable doubt.

Leave to appeal sentence was granted, but the sentence appeals were dismissed as the global sentences, including consecutive terms for one appellant, were fit.

The appellant employer appealed a trial judgment finding it had constructively dismissed the respondent by unilaterally reducing his commission from 18% to 9%.

The trial judge awarded a 15-month notice period, 3 months of Wallace damages for a toxic work environment, and 8 years of unpaid vacation and public holiday pay.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings on constructive dismissal, the Bardal factors for notice, the Wallace damages, and the respondent's entitlement to statutory holiday and vacation pay under the Employment Standards Act.

The appellants appealed an order confirming a Master's report that awarded compound interest on the respondent's lost profits from misappropriated trust property.

The Court of Appeal dismissed the appeal, finding no error in principle in the Master's discretionary decision to award compound interest.

The Court noted that in cases of wrongfully misappropriated trust property, it is open to the court to presume the injured party is entitled to compound interest, and the appellants failed to adduce evidence to rebut this presumption.

The appellant appealed the dismissal of its claim for payments under a 2006 contract renewal notice.

On appeal, the appellant argued for the first time that the respondent was estopped from claiming reimbursement due to its failure to respond to the notice within thirty days.

The Court of Appeal dismissed the appeal, holding that the appellant failed to meet the test for raising a new argument on appeal, as the evidentiary record regarding detrimental reliance and fairness was not fully developed at trial.

The appellant appealed the trial judge's decision upholding his termination for cause.

The appellant had been absent from work for three months, failed to provide satisfactory medical documentation, and ignored the employer's direction to file a claim for short-term disability benefits.

Although the trial judge failed to provide reasons for concluding that this misconduct justified termination without notice, the Court of Appeal dismissed the appeal.

The Court found that the trial judge's findings of fact, including the appellant's failure to communicate with the employer and his engagement in part-time work elsewhere while medically fit to return, supported the conclusion that the employment relationship had broken down.

The appellant appealed a motion judge's refusal to declare that its default judgment against the respondent survived the respondent's bankruptcy under s. 178(1)(d) of the Bankruptcy and Insolvency Act, and the refusal to grant leave to issue a Writ of Seizure and Sale.

The Court of Appeal found the motion judge erred by applying a criminal standard of proof to the s. 178(1)(d) declaration and set that refusal aside.

However, the Court upheld the refusal to grant leave to issue the Writ of Seizure, as the respondent had detrimentally relied on the appellant's delay in asserting its claim during the bankruptcy proceedings.

The appellants appealed a trial judgment finding they wrongfully dismissed the respondent and engaged in shareholder oppression.

The trial judge ordered the appellants to purchase the respondent's shares valued as of September 30, 2005, and to pay him bonuses up to that date.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's conclusion that the respondent's conduct did not constitute cause for termination.

The Court also upheld the valuation date and bonus entitlement, noting the appellants' continued oppressive conduct and the ongoing benefits they received from the respondent's contributions.

The appellant appealed the dismissal of its claims for negligent misrepresentation and intentional interference with economic relations arising from a timber allocation dispute under an Overlapping Licence Agreement.

The appellant also raised a new claim for breach of fiduciary duty.

The Court of Appeal dismissed the appeal, declining to hear the new fiduciary duty claim and upholding the trial judge's factual findings that the appellant did not reasonably rely on the alleged misrepresentations and that the respondent had no intention to injure the appellant's economic relations.

The appellant husband appealed an order dismissing his appeal from a motion judge's decision to accept jurisdiction over child custody and access under s. 23 of the Children's Law Reform Act.

The respondent wife had fled Dubai with the child, alleging physical and mental abuse.

The motion judge found that the child would be at serious risk of harm if returned to Dubai.

The Court of Appeal upheld the motion judge's findings of abuse and risk of harm, despite concluding that an Amnesty International report should not have been admitted into evidence.

The appeal was dismissed.

The Automotive Parts Manufacturers Association brought a motion to intervene in an appeal concerning the interpretation of the Construction Lien Act.

The proposed intervenor sought to provide evidence on the economic impact of the court's decision on the auto parts manufacturing industry.

The court dismissed the motion, finding that the proposed evidence and argument would not contribute to the understanding and determination of the legal issues under appeal.

The appellants appealed a trial judgment dismissing their insurance claim against Pembridge for late reporting and awarding only $4,000 in damages against their neighbours, the Aguiars, for nuisance causing water damage.

The Court of Appeal upheld the dismissal against Pembridge, finding the trial judge reasonably concluded the appellants breached the policy by reporting the claim four months late.

However, the Court allowed the appeal regarding damages against the Aguiars, finding the trial judge misapprehended evidence about standing water.

The Court reassessed damages at $12,500.

The appellant property owners appealed the dismissal of their action against a former property manager for alleged misappropriation of flea market revenues, negligence, and breach of fiduciary duty.

The Court of Appeal upheld the trial judge's findings that the evidence of misappropriation amounted only to suspicion and that the manager owed no duty of care regarding the flea market's operation.

The Court also affirmed the trial judge's discretionary refusal to order disgorgement of profits from the manager's undisclosed outside business activities, noting the employer suffered no damages and the manager had performed his duties satisfactorily.

The appellant held a mortgage on a property and claimed an interest in insurance proceeds as collateral security.

The property was subsequently transferred to the appellant.

The Court of Appeal upheld the application judge's finding that the transfer satisfied the outstanding mortgage debt, thereby extinguishing the appellant's interest in the remaining insurance funds.

The appeal was dismissed with costs.

The appellant trustee in bankruptcy appealed the dismissal of its motion to annul the respondent's discharge from bankruptcy.

The appellant argued that a finding in a prior proceeding established that the respondent had fraudulently concealed assets.

The Court of Appeal dismissed the appeal, holding that issue estoppel did not apply because fraud was not pleaded or necessarily bound up with the determination in the prior proceeding, and the respondent had no notice that fraud was an issue.

The court also held that a subsequent bankruptcy order against the respondent did not stay the appeal.

The appellant appealed the dismissal of its motion for summary judgment, arguing the respondents' action was statute-barred.

The respondent was injured in a motor vehicle accident and commenced an action for both pecuniary and non-pecuniary damages more than two years after discovering her pecuniary loss, but within two years of discovering her injuries met the statutory threshold for non-pecuniary damages.

The Court of Appeal held that under the Bill 59 insurance regime, the legislature created separate causes of action for different heads of damages.

Therefore, the non-pecuniary damage claim was not statute-barred, and the appeal was dismissed.

The appellant appealed the dismissal of its action against the respondent.

The trial judge found no breach of contract, as the appellant purchased the property on an 'as is where is' basis and the respondent fulfilled his obligation to deliver two reports without promising the property was contamination-free.

The trial judge also found no negligent misrepresentation, as there was no duty of care owed.

The Court of Appeal agreed with the trial judge's conclusions and dismissed the appeal.

The appellant appealed an award made by the trial judge.

The Court of Appeal found that it was open to the trial judge to make the findings she did and that there was no basis to interfere with the award.

The appeal was dismissed with costs fixed at $1,000.

The appellant appealed a summary judgment declaring that the parties had entered into a binding and enforceable settlement agreement.

The agreement required the appellant to deliver a final version of a DVD in exchange for an additional $10,000 payment.

The Court of Appeal dismissed the appeal, finding no genuine issue for trial, as the appellant's counsel had clearly and unequivocally accepted the offer via email.

The court also rejected arguments of economic duress and repudiation.