John I. Laskin

The appellant appealed a trial judgment finding that she failed to rebut the presumption that a lost will was destroyed by the testator with the intention of revoking it.

The Court of Appeal dismissed the appeal, holding that the trial judge was entitled to consider the testator's intention as circumstantial evidence supporting the presumption of revocation, and that the appellant failed to provide a reasonable explanation for the loss of the original will.

Costs were not awarded to the appellant out of the estate.

The defendant appealed a motion judge's order dismissing her third-party claim for delay.

The Court of Appeal dismissed the appeal, finding the motion judge exercised his discretion reasonably, as more than eleven years had passed since the events giving rise to the litigation and the defendant offered no satisfactory explanation for the inexcusable delay.

The appellants appealed an order of the Superior Court of Justice and brought a motion to adduce fresh evidence based on ineffective assistance of counsel.

The Court of Appeal dismissed the motion for fresh evidence, finding the affidavit did not make out the case.

On the appeal, the Court allowed the appeal in part, setting aside a paragraph of the lower court's order that awarded unliquidated damages for repair costs.

The Court found that under Rule 19.05(2), the affidavit evidence supporting the repair costs was unsatisfactory as it lacked details and the deponent's qualifications.

The appeal was allowed in part without prejudice to the respondent's right to pursue the claim on proper evidence.

Costs of $4,000 were awarded to the respondent on agreement.

The appellant was convicted of first degree murder after causing the victim's death through severe internal injuries inflicted during a sexual assault.

On appeal, he argued the trial judge erred in admitting a statement made to police at the scene, in instructing the jury on the defence of accident, in failing to limit the use of post-offence conduct, and in instructing on sexual arousal and mens rea.

The Court of Appeal dismissed the appeal, finding the statement was voluntary as the appellant was not detained or a suspect.

While the trial judge erred in failing to instruct the jury that post-offence conduct could not be used to determine the level of culpability between murder and manslaughter, the court applied the curative proviso as the error caused no substantial wrong.

Following a successful appeal by the employer regarding the administration of a pension plan, the parties made written submissions on costs.

The pension committee argued that its costs should be paid out of the pension fund on a substantial indemnity basis, relying on traditional trust principles.

The Court of Appeal rejected this argument, adopting the 'pension trust approach' which limits costs from the fund to cases involving the due administration of the trust or claims advanced for the benefit of all beneficiaries.

Finding the litigation to be adversarial, the Court ordered the committee to pay the employer's costs of the appeals on a partial indemnity basis.

The appellant closed an access road leading to the respondents' landlocked cottage properties after the respondents refused to pay an increased annual user fee.

The appellant argued it could close the road without a court order under the Road Access Act because the respondents had 'alternate road access' via an unopened municipal road allowance or by paying the requested fee for the existing road.

The Court of Appeal dismissed the appeal, holding that 'alternate road access' requires an existing, different road, and neither an unopened road allowance nor the same road subject to a fee qualifies.

The parties signed a separation agreement providing for joint custody, which explicitly stated that the mother's temporary return to China would not constitute a material change in circumstances.

While the mother was in China, the father obtained an ex parte order for sole custody by misrepresenting her address and failing to bring the separation agreement to the court's attention.

The motion judge set aside the ex parte order and awarded full indemnity costs.

The father appealed.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's decision to set aside the order due to lack of proper notice, lack of material change, and failure to provide the court with all information.

The appellant appealed a trial judge's finding that the transferors of property did not intend to create a trust.

The Court of Appeal held that the intention to create a trust is a finding of fact, reviewable only for palpable and overriding error.

The court found that the mere presence of the words 'in trust' in the transfer document was not determinative, and there was evidence supporting an absolute transfer, including nominal consideration and the transferee's labour and devotion to his parents.

The appeal was dismissed.

The appellant appealed a judgment ordering him to pay the respondent the shortfall from a mortgage default and subsequent power of sale.

The appellant argued he was not properly served with the Notice of Sale because it was sent to the abandoned mortgaged property rather than his known address in the United States.

The Court of Appeal dismissed the appeal, finding that service was in accordance with the Mortgages Act and that the appellant was well aware of the default.

The court also upheld the motion judge's finding that there was no triable issue regarding whether the sale was provident.

The appellants, home renovators, appealed the dismissal of their claim against the respondent home owners and the allowance of the home owners' counterclaim.

The appellants argued the trial judge erred in placing the burden of obtaining building permits and licences on the contractor.

The Court of Appeal dismissed the appeal, finding that the trial judge's factual findings regarding the contract, scope and quality of work, extras, and the cost of remedial work were supported by the evidence, including the finding that the home owners were incorrectly told a permit was not necessary.

The appellant employer appealed a trial judgment finding it wrongfully dismissed the respondent employee.

The employer had terminated the employee alleging sexual harassment of co-workers.

The trial judge found the conduct was non-sexual, alcohol-induced harassment that warranted progressive discipline, not dismissal.

The Court of Appeal upheld the trial judge's findings on just cause, the exclusion of a deceased witness's hearsay statement, the modest Wallace extension, and the award for lost benefits.

The appeal was dismissed.

The appellant hospital appealed a motion judge's order refusing to approve a 1998 infant settlement and granting the plaintiff's motion to amend the claim for damages.

The plaintiff sought the amendment based on new expert evidence indicating her life expectancy had increased by 30 to 35 years since the settlement was reached.

The Court of Appeal dismissed the appeal, finding the motion judge correctly focused on the best interests of the child under Rule 7.08 of the Rules of Civil Procedure and reasonably relied on the uncontradicted expert evidence regarding life expectancy.

The appellant appealed a trial judgment finding that she was an independent contractor rather than an employee.

The Court of Appeal dismissed the appeal, holding that there was ample evidence to support the trial judge's finding.

Costs of $10,000 were awarded to the respondents.

The appellant appealed an order striking his claim against a court-appointed trustee.

The Court of Appeal dismissed the appeal, finding that the allegations related to the trustee's conduct in its appointed capacity and the appellant had failed to seek leave to sue as required by section 215 of the Bankruptcy and Insolvency Act.

The appellant was convicted of first degree murder.

The Crown's case relied heavily on the testimony of the deceased's wife, with whom the appellant was having an affair, who claimed the appellant confessed to the murder.

The appellant appealed his conviction on several grounds, including the trial judge's instructions on forensic testing, the admission of intercepted phone calls, the admission of video re-enactments and lay opinion evidence, the adequacy of the Vetrovec warning, and instructions on after-the-fact conduct.

The Court of Appeal dismissed the appeal, finding no reversible errors in the trial judge's rulings or jury instructions.

The appellant appealed his convictions, arguing the trial judge erred in ruling the proposed opinion evidence of a psychologist inadmissible and in admitting a child's out-of-court statement.

The Court of Appeal held that the trial judge correctly concluded the expert evidence was unnecessary as it did not fall outside the experience of a trial judge.

The Court also found no error in admitting the out-of-court statement, as the hearsay dangers were overcome by the opportunity for cross-examination, videotape evidence of demeanour, and the child's understanding of truth and falsehood.

The appeal was dismissed.

The appellant appealed a conviction for manslaughter by criminal negligence in connection with the death of a foster child.

The child died from blunt force trauma inflicted by the appellant's spouse.

The appellant was acquitted of a second count of manslaughter by failing to provide the necessaries of life.

The Court of Appeal held that the two verdicts were inconsistent and unreasonable because the evidence and legal elements underlying both charges were inextricably wound up, relying on the same failure to protect the child.

The appeal was allowed and a new trial was ordered.

The appellants moved under Rule 49.09 for judgment in the terms of an alleged settlement agreement.

The motion judge dismissed the motion, stating that he could not determine on the affidavit evidence whether a binding settlement had been reached, but concluded by stating the proceeding would continue as if there had been no accepted offer.

The appellants appealed to the Court of Appeal.

The Court of Appeal quashed the appeal, holding that the motion judge's order was interlocutory because he did not make a final determination that no settlement existed, but rather found he could not decide the issue on the record before him.

As the order was interlocutory, the Court of Appeal lacked jurisdiction.

The appellant's conviction for first degree murder was previously substituted with a conviction for second degree murder by the Court of Appeal.

The parties agreed the Court should fix the period of parole ineligibility.

The Crown sought 15 years, while the appellant sought 12 years.

The Court considered the aggravating circumstances of the cold-blooded shooting over a drug debt, balanced against the appellant's significant rehabilitation during eight years in custody.

The Court fixed the period of parole ineligibility at 12 years.

The appellant appealed his robbery conviction, arguing the trial judge failed to address material inconsistencies in the complainant's evidence and misapplied the burden of proof.

The Court of Appeal found that the trial judge's failure to address key inconsistencies in the complainant's testimony, particularly regarding whether a robbery actually occurred, deprived the appellant of a fair trial.

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