P.J. Monahan

The appellant railway company appealed a partial summary judgment dismissing its claims for ongoing coal tar contamination as an abuse of process.

The appellant had previously commenced an action in 1989 for historical and continuing coal tar migration, which was dismissed for inordinate delay and failure to preserve evidence.

The appellant commenced a new action in 2014 claiming damages for continuing migration since 2012.

The Court of Appeal dismissed the appeal, holding that the continuing tort claims were exhausted by the dismissal of the 1989 action, and allowing the 2014 action to proceed would undermine finality and bring the administration of justice into disrepute.

The self-represented appellant attempted to appeal a single Divisional Court judge's direction made during a judicial review proceeding concerning a freedom of information disclosure dispute.

The court held that no appeal as of right lay to the Court of Appeal from that direction.

Depending on whether the order was made on a motion, the proper route was either a motion to a panel of the Divisional Court under s. 21(5) of the Courts of Justice Act or, otherwise, a leave appeal under s. 6(1)(a).

Because the notice of appeal clearly failed to engage the court's jurisdiction, the proceeding was dismissed under r. 2.1.01 of the Rules of Civil Procedure as an abuse of process.

No costs were ordered.

A payment processing company appealed sanctions imposed after it was found in civil contempt for repeatedly obstructing a court-ordered audit obtained by mandatory injunction under a commercial services agreement.

The appellant argued the penalties were disproportionate, challenged the direction to pay audit costs into court, and sought leave to appeal the contempt-motion costs order.

The Court of Appeal dismissed the appeal, holding the arguments depended on unappealed factual findings that the appellant intentionally obstructed the audit and that no basis existed to interfere with the sanctions or the costs order.

The court allowed the cross-appeal, holding that r. 60.11(6) of the Rules of Civil Procedure is not confined to cases where the officer or director has already been found personally in contempt, and remitted the issue of joint and several liability of the sole officer and director for redetermination.

The appellant challenged only the monetary component of a summary judgment finding of copyright infringement, arguing that the profits award failed to account for expenses such as labour, taxes, and rent.

The court held that under s. 35(2) of the Copyright Act, the defendant bore the onus of proving any deductions from revenues earned through infringing sales.

Because no evidentiary foundation was provided for the claimed expenses before the motion judge, and further calculations were advanced for the first time on appeal, there was no basis for appellate intervention.

The appeal was dismissed and appeal costs were fixed at $5,000 inclusive.

The appellants appealed a summary judgment holding them jointly and severally liable for $3.76 million after the respondent investors were defrauded in a second mortgage scheme.

The investment funds were misappropriated by employees of a law firm acting as agents for the appellants' gas station development project.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's application of the summary judgment framework, his conclusion that an agency relationship existed, or his imposition of joint and several liability based on findings that the defendants worked together to deprive the investors of their funds.

Leave to appeal the substantial indemnity costs award was also denied.

The Crown appealed stays of proceedings granted to two respondents charged in a massive cross-border drug trafficking investigation.

The application judge had found the delay exceeded the Jordan ceiling and declined to deduct time for joint-trial scheduling or find the case exceptionally complex.

The Court of Appeal allowed the appeal, holding that the 107 days of joint-trial scheduling delay should have been deducted as a discrete exceptional circumstance.

Furthermore, the overarching complexity of the multi-agency project prosecution, which involved voluminous disclosure, justified the remaining modest delay above the ceiling.

The stays were set aside and the matters remitted for trial.

The appellant appealed the dismissal of his defamation action under the anti-SLAPP provisions of the Courts of Justice Act.

The action arose from a social media post by the respondent about Halal mortgages, which the appellant claimed referred to him and his former company.

The Court of Appeal upheld the motion judge's finding that the post related to a matter of public interest and that the appellant failed to show the defamation claim had substantial merit, as the impugned words did not identify him.

The appeal was dismissed with costs awarded on a partial indemnity basis.

The moving parties sought to quash the responding party's appeal of an order validating service of an application record.

The responding party, a foreign state, argued the order was final because it determined substantive rights regarding state sovereignty and the Hague Convention.

The Court of Appeal held that the order validating service was procedural and interlocutory, as it did not finally dispose of the dispute or deprive the responding party of substantive defences.

The motion was granted and the appeal was quashed.

The appellant was convicted of robbery and related offences based primarily on eyewitness identification by the complainant, who recognized the appellant as a former hotel guest.

The trial judge found the identification was corroborated by the appellant's possession of stolen sunglasses and the presence of a co-conspirator during his arrest.

On appeal, the appellant argued the trial judge misapprehended the corroborative evidence.

The Court of Appeal found that while the trial judge did misapprehend the evidence regarding the co-conspirator's presence, this error did not result in a miscarriage of justice.

The remaining corroborative evidence—the appellant's possession of the stolen sunglasses two days after the robbery—strongly supported the identification.

The appeal was dismissed.

The appellant appealed an order setting aside a separation agreement and fixing the date of separation as July 31, 2018.

The application judge set aside the agreement under s. 56(4) of the Family Law Act because the appellant failed to disclose a pending $4,000,000 investment in his company.

The Court of Appeal found no error in the application judge's conclusion that the non-disclosure warranted setting aside the agreement on fairness grounds.

The Court also upheld the application judge's factual determination of the separation date, finding it was supported by the evidence of the parties' ongoing interactions.

The appeal was dismissed.

Following an appeal, the court issued a costs endorsement.

The appellant was ordered to pay costs to the respondent in the amount of $5,748.88, inclusive of disbursements and applicable taxes.

The appellant appealed an order dismissing his application to challenge the validity of his deceased mother's will.

The motion judge dismissed the application because the appellant failed to comply with a previous order requiring him to serve a notice of change of solicitor or a notice of intention to act in person within 30 days.

The Court of Appeal held it had jurisdiction to hear the appeal, as the dismissal was a final order.

The Court found no error in the motion judge's exercise of discretion to dismiss the proceeding under Rule 15.04(9) given the appellant's pattern of delay and non-compliance.

The appeal was dismissed.

The appellants appealed a summary judgment dismissing their action against the respondent builder.

The appellants had purchased a newly built home but failed to transfer the closing funds until 9 minutes past the 5:00 p.m. deadline on the extended closing date.

The respondent terminated the agreement relying on a 'time is of the essence' clause, but subsequently offered to revive the agreement for an additional $113,000, which the appellants paid.

The Court of Appeal dismissed the appeal, upholding the motion judge's findings that the 5:00 p.m. deadline was unambiguous, the termination was not unconscionable, the revival fee was part of a new contract rather than an impermissible penalty, and the appellants did not act under economic duress.

The appellant appealed his convictions for firearms offences, arguing the trial judge erred in failing to exclude a handgun under s. 24(2) of the Charter.

The handgun was discovered during a lawful search incident to arrest, but police subsequently breached the appellant's s. 10(b) right to counsel and s. 8 privacy rights through warrantless entries into his apartment.

The Court of Appeal found the trial judge erred by failing to consider the breaches cumulatively.

Conducting a fresh s. 24(2) analysis, the Court concluded that while the breaches were serious, their impact was minimal as they occurred after the lawful discovery of the handgun, and society's interest favoured admission.

The appeal was dismissed.

The appellant and his ex-spouse jointly owned two abutting parcels of land.

They executed a charge on one parcel in favour of the respondent bank, and later transferred the other parcel without a severance.

The respondent successfully applied to have the transfers declared void under the Planning Act.

On appeal, the appellant argued that section 44(1) of the Land Titles Act and notations on the register insulated the transactions from the Planning Act.

The Court of Appeal dismissed the appeal, holding that the 'Land Titles Conversion Qualified' notation only guaranteed against Planning Act contraventions up to the date of conversion, and did not oust the operation of the Planning Act for subsequent transactions.

The appellant father appealed a trial decision that altered a consent order regarding decision-making responsibility for his daughter.

The trial judge found a material change in circumstances due to ongoing parental conflict and assigned sole decision-making responsibility for schooling, health care, and extracurricular activities to the respondent mother.

The Court of Appeal dismissed the appeal, finding no evidence that the trial judge relied on improperly admitted documents and concluding that her factual findings were supported by the record and entitled to deference.

The appellant sought to appeal an order resulting from a reference under Rule 54 of the Rules of Civil Procedure directly to the Court of Appeal.

The respondent moved to quash the appeal for lack of jurisdiction.

The Court of Appeal granted the motion to quash, holding that there is no direct right of appeal from a reference order; a dissatisfied party must first exhaust the remedies provided under Rule 54, such as opposing confirmation of the report in the Superior Court, before appealing to the Court of Appeal.

The appellant sought a declaration of beneficial ownership of a condominium owned by the estate of the deceased, claiming an express or resulting trust.

The application judge dismissed the application, finding insufficient evidence of a trust agreement or gratuitous payments, and noting that oral evidence alone cannot create an interest in land under the Statute of Frauds.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's assessment of the evidence.

The moving party, a surgeon whose hospital privileges were not renewed in 2016, brought a motion to set aside a single judge's order dismissing his motion to set aside a Registrar's dismissal for delay.

The responding hospitals requested a dismissal under Rule 2.1 of the Rules of Civil Procedure.

The Court of Appeal found the moving party exhibited hallmarks of a vexatious litigant by exhausting all rights of review and attempting to re-determine settled issues.

The motion was dismissed as an abuse of process and a collateral attack on underlying decisions, with costs awarded to the responding parties.

The appellant appealed his conviction for second-degree murder of his intimate partner, arguing he lacked the capacity to form the requisite intent due to a cocaine-induced psychosis.

The trial judge rejected the defence psychiatric expert's opinion, finding it lacked objectivity and was inconsistent with the appellant's purposeful actions before, during, and after the shooting.

The Court of Appeal found no reversible error in the trial judge's assessment of the expert evidence and dismissed the appeal.