John I. Laskin

The appellant bankrupt company appealed the dismissal of its motion to annul its bankruptcy.

The appellant argued that the assignment in bankruptcy was invalid because the statement of affairs was not properly sworn before a commissioner.

The Court of Appeal dismissed the appeal, finding that while the failure to properly swear the affidavit was improper, the company was clearly insolvent and annulling the bankruptcy would cause an injustice to the creditors.

The Crown appealed an acquittal of the respondent on a charge of discharging a contaminant under the Environmental Protection Act following a gasoline spill from a pipe failure.

The trial judge convicted the respondent, holding that the due diligence defence was unavailable because the precise cause of the pipe failure was unknown.

The appeal judge overturned the conviction, finding the defence was made out unless it was patently obvious that reasonable care was not met.

The Court of Appeal allowed the Crown's appeal and ordered a new trial, holding that while a defendant need not prove the precise cause of an event to raise a due diligence defence, the appeal judge erred in law by shifting the onus of disproving due diligence to the Crown.

The Crown appealed a decision regarding charges against the respondent under the Environmental Protection Act and the Ontario Water Resources Act.

Following further submissions, the Court of Appeal concluded that errors of law relating to the due diligence defence applied equally to both charges.

Pursuant to s. 125 of the Provincial Offences Act, the Court ordered that the OWRA charge be retried together with the EPA charge.

The appellant appealed a trial judge's costs order in a family law proceeding regarding custody.

The Court of Appeal found that the trial judge erred in upholding a previous judge's costs order that had been implicitly set aside, and in awarding an amount substantially in excess of party and party costs.

However, the Court noted that the respondent had made a reasonable settlement proposal regarding custody which the appellant rejected, justifying some costs to the respondent.

The Court granted leave to appeal costs, varied the trial judge's costs order to $4,000, and otherwise dismissed the appeal.

The appellant appealed his conviction, arguing that the conduct of Crown counsel resulted in a miscarriage of justice and that the trial judge erred in instructing the jury on self-defence and provocation.

The Court of Appeal dismissed the appeal, finding that while Crown counsel's sarcastic questions reflected badly on him, they did not result in a miscarriage of justice.

The court also found no prejudice resulting from the trial judge's instructions, noting the lack of objections to the charge.

The mother obtained a full-time teaching job in Cornwall and sought to relocate the three children from Ottawa.

The application judge granted the move.

The father appealed.

The Court of Appeal allowed the appeal, finding the application judge failed to conduct a full and sensitive inquiry into the best interests of the children, misapprehended the joint custody arrangement, and ignored an independent psychological assessment.

A new hearing was ordered.

The moving parties brought a motion to quash the appellants' appeal on the basis that the notice of appeal was served out of time.

The appellants argued that the 30-day appeal period did not begin until the trial judge released her costs judgment, which occurred months after the jury dismissed the action on the merits.

The Court of Appeal held that a merits judgment and a costs judgment are separate appealable judgments, and the time to appeal the merits judgment runs from its pronouncement, not from the subsequent costs decision.

Although the notice of appeal was served out of time, the Court granted an extension of time to appeal because the appellants had a bona fide intention to appeal, the delay was explained by counsel's mistaken belief regarding the appeal period, there was no prejudice to the moving parties, and the justice of the case warranted the extension.

The motion to quash was dismissed.

Following the release of the main appeal decision regarding child support, the parties made written submissions on costs and the disposition of a $6,000 payment into court.

The Court of Appeal ordered the $6,000 paid out to the respondent for child support arrears and stay motion costs.

The court upheld the trial judge's costs award of $15,000 to the respondent, noting her greater success and the appellant's unrealistic position on child support.

The court also awarded the respondent partial indemnity costs of the appeal fixed at $9,500, emphasizing the appellant's greater ability to pay and his failure to voluntarily pay child support.

The appellant appealed a motions judge's decision finding a concluded settlement between the parties for $12,000.

The Court of Appeal upheld the finding of a settlement, noting that correspondence confirmed the agreement and the appellant's former counsel conceded the amount.

However, the Court varied the order to direct that the $12,000 settlement amount, plus accrued interest, be paid to the appellant out of money held in court.

The respondent's cross-appeal for costs of the motion was dismissed, and no costs were awarded for the appeal.

The appellants appealed a trial judgment finding that the respondent was constructively dismissed when his employment contract was unilaterally changed from an indefinite hiring to a fixed-term contract.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings on constructive dismissal, the requirement to assign a keyman insurance policy, the calculation of damages based on the previous contract, and the award of a Wallace extension.

The court also declined to order reimbursement for lieu time payments or an accounting for pension payments.

The moving party father sought to stay a joint custody order and parenting schedule pending his appeal.

The trial judge had awarded joint custody despite the parents' conflict, relying on parallel parenting principles.

The Court of Appeal dismissed the motion for a stay, finding that the father failed to show irreparable harm to the child or that the balance of convenience favoured a stay.

The court noted the mother's historical role as primary caregiver and the minimal differences between the trial judge's parenting schedule and the previous interim order.

In an addendum regarding costs following an appeal, the Court of Appeal held that the appellant was entitled to partial-indemnity costs up to the date of a settlement offer and substantial-indemnity costs thereafter to the conclusion of the trial.

The court noted that a Rule 49 offer made before trial does not apply to proceedings in the Court of Appeal.

Trial costs were referred for assessment, and the appeal costs were fixed at $15,000 plus disbursements and GST.

The respondents appealed to the Ontario Municipal Board after the City of London failed to address their applications for zoning amendments and site plan approval for two apartment buildings.

The Board allowed the appeal in part, approving one building instead of two.

The City appealed to the Divisional Court, which dismissed the appeal.

On further appeal, the Court of Appeal held that while the Divisional Court erred in applying a patent unreasonableness standard of review rather than correctness or reasonableness, the result was correct.

The Court also rejected the City's argument that it was denied natural justice, finding that section 88 of the Ontario Municipal Board Act provided adequate notice that the Board could grant partial relief.

The appellant was convicted of first degree murder after the deceased was found strangled in his apartment building.

At trial, the Crown introduced similar fact evidence of a prior sexual assault committed by the appellant against a prostitute four years earlier to prove identity.

The appellant appealed the conviction, arguing the similar fact evidence was improperly admitted and challenging the jury instructions on reasonable doubt and DNA evidence.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the similar fact evidence lacked the high degree of similarity required to prove identity and was highly prejudicial.

The interveners appealed a trial judgment concerning a dispute over the assets of The Holy Virgin Church.

The Court of Appeal upheld the trial judge's finding that proposed by-law amendments were governed by the approval requirements in the Normal Parish By-laws, noting that the dispute was fundamentally religious and outside the court's purview.

However, the Court allowed the appeal in part, finding that the trial judge improperly exercised his discretion under s. 106 of the Canada Corporations Act to order a meeting, as the power struggle between factions did not constitute extraordinary circumstances making a meeting impracticable.

The appellant appealed a trial decision regarding retroactive child support.

The Divisional Court found the trial judge erred in concluding there was no evidence that a portion of the respondent's personal injury settlement was attributable to income replacement.

To avoid further expense, the court determined a fair amount for retroactive child support based on the circumstances and the amount clearly attributable to income.

The appeal was allowed, and the respondent was ordered to pay $10,000 in retroactive child support plus costs.

The appellant appealed a trial judgment regarding retroactive child support.

The trial judge had concluded there was no evidence that a portion of the respondent's personal injury settlement was attributable to income replacement.

The Divisional Court found this was an error, as correspondence and statutory accident benefits clearly indicated some amount was for income loss.

To avoid further expense, the court fixed retroactive child support at $10,000.

The self-represented applicant filed a notice of motion to review an order refusing leave to extend the time for bringing an appeal, but failed to perfect the motion.

The respondents sought to have the motion dismissed for delay.

The Court of Appeal declined to dismiss the motion, noting the lack of time limits in the Rules for perfecting such a motion, the applicant's unrepresented status, and the respondents' failure to bring a formal motion to dismiss.

The court scheduled the motion for a full hearing and set strict deadlines for perfection.

The appellant employer sought to partially wind up its defined benefit pension plan following a corporate reorganization and plant closure, without distributing the $3.1 million pro rata share of the actuarial surplus to the affected members.

The Superintendent of Financial Services refused to approve the report, but the Financial Services Tribunal ordered its approval, relying on the doctrine of legitimate expectations and its interpretation of the Pension Benefits Act.

The Divisional Court overturned the Tribunal's decision.

On appeal, the Court of Appeal affirmed the Divisional Court, holding that section 70(6) of the Pension Benefits Act requires the distribution of surplus on a partial wind up, and that the doctrine of legitimate expectations cannot be used to create substantive rights or override statutory obligations.

The mother, who was granted sole custody of the child, appealed the trial judge's refusal to permit her to relocate to Alberta with the child.

The Court of Appeal found that the trial judge erred by focusing solely on the mother's employment and the father's access, while disregarding the social, psychological, and emotional benefits of the move for the mother.

Applying the framework from Gordon v. Goertz, the Court held that the views of the custodial parent are entitled to great respect and that the move would enhance the best interests of the child by allowing the mother to regain stability and independence.

The appeal was allowed, permitting the mother to relocate to Calgary.