J.W. Morden

The appellant challenged a jury verdict in a personal injury action on the basis that the trial was unfair, relying on late service of expert reports, the applicability of a building code regulation, counsel's addresses, a Brown v. Dunn ruling, the jury charge, and cumulative unfairness.

The court held that no prejudice was shown from the timing of the reports, there was ample evidence of dangerous construction of the ramp regardless of the regulation's applicability, and the remaining complaints disclosed no reversible error.

The court also upheld the trial judge's treatment of gross-up.

The appeal was dismissed with costs.

The appellant solicitor appealed an order directing an assessment of his account for legal fees arising from a motor vehicle accident settlement obtained for an adult person under disability.

The court held that the settlement judgment, although inclusive of fees and disbursements and accompanied by a management plan referring to a specific fee amount, did not fix or approve the solicitor's account within the meaning of s. 4(1) of the Solicitors Act.

The court emphasized the usual practice on settlement approval under rule 7.08, including disclosure of intended legal fees, and the litigation guardian's duty to scrutinize the fairness and reasonableness of those fees.

Because the account had not been judicially fixed and the twelve-month bar had not arisen, the respondent was entitled to an assessment order.

The appeal was dismissed with costs.

In a long-running access road dispute, the appellant challenged an order requiring removal of gravel placed on the respondents' property.

The court held that the proposed fresh evidence did not meet the established admissibility requirements.

However, the appeal succeeded because the record was insufficient to permit summary judgment on whether the work performed complied with an earlier order governing repair and maintenance of the access road.

The order below was set aside and the underlying motion was dismissed with costs.

In a criminal conviction appeal, the self-represented appellant advised that he did not want counsel appointed to represent him but did not oppose the appointment of amicus curiae.

The court was informed that the appeal had previously been adjourned to permit preparation of the appeal book and consideration of whether amicus should be appointed.

The court appointed amicus curiae under s. 684 of the Criminal Code to assist on the appeal and adjourned the appeal to a date to be fixed by the registrar for further speaking to or hearing.

The appellant challenged only his attempted murder conviction arising from a jury trial, arguing that the trial judge improperly admitted evidence of an earlier assault complaint by the complainant and failed to give a limiting instruction respecting that evidence and the evidence on other counts.

The court held that the 1990 complaint was admissible to show the state of the marriage and rebut the appellant's claim that the marriage had been good at that time.

While a limiting instruction should have been given for that purpose, the court found the evidence supporting the attempted murder conviction overwhelming and applied the curative proviso.

The conviction appeal was dismissed, and the sentence appeal was dismissed as abandoned.

The appellants appealed the dismissal of an application to vary a spousal support term contained in a divorce judgment incorporating minutes of settlement with a non-variation clause.

The appellant relied on reduced income and the respondent’s bankruptcy as material changes in circumstances under s. 17 of the Divorce Act.

The court held that the alleged changes were either immaterial or foreseeable at the time of settlement, and that the application judge’s conclusion attracted appellate deference.

Subject to deleting one paragraph of the judgment on consent, the appeal was dismissed with costs.

The appeal concerned the interpretation of a prior judgment arising in a bankruptcy context and its effect on an equalization entitlement linked to a pension plan.

The appellant argued that the prior order converted the equalization payment into an interest in the pension plan, rendering it not exigible by the respondent.

The court accepted that interpretation and rejected the view that the pension interest served only as security for a fixed money judgment.

The appeal was allowed, the order below was set aside, and the respondent's motion was dismissed, with costs to the appellant limited to disbursements.

The appellant appealed drug trafficking and proceeds convictions on the ground that he was wrongly denied a jury trial after failing to attend on the scheduled trial date.

The court held that under s.598(1) of the Criminal Code the onus rested on the accused to establish a legitimate excuse, and the pre-trial judge was entitled to reject the illness explanation as not credible.

The court further held that the trial judge did not err in refusing to reconsider the pre-trial s.598(1) ruling on the basis that only the trial judge had jurisdiction.

The appeal from conviction was dismissed.

The Crown appealed a youth court acquittal on a charge of trafficking in a substance represented or held out to be cocaine.

The trial judge erred in holding that the Crown was required to prove that the substance was not in fact cocaine.

Applying the authorities on held-out substances, the court held that the actus reus is the sale of something represented to be a controlled substance, and that the actual identity of the substance is immaterial.

The evidence amply supported that the respondent held out the substance as cocaine.

The acquittal was set aside, a finding of guilt was entered, and a one-year probation disposition was imposed.

The appellant appealed a trial judgment awarding damages to a former chief financial officer and consultant arising from a stock option plan.

The central issue was whether a termination provision ending options when the optionee ceased to be an employee applied to a participant who was found at trial to be a consultant rather than a true employee.

The court held that, on a fair reading of the plan as a whole, the terms 'employee' and 'eligible participant' were used interchangeably, so the termination provision applied to all persons granted options under the plan.

Because the respondent did not exercise his options before ending his relationship with the company, his rights under the option agreement had terminated.

The appeal was allowed, the trial judgment was set aside, and the action was dismissed with costs.

The appellant appealed a perjury conviction arising from a false statement in an affidavit filed on an application for release pending appeal from sexual assault convictions, and alternatively appealed sentence.

The Court of Appeal held there was ample evidence to support the trial judge’s finding that the statement about prospective employers was false and made with intent to mislead the court.

Applying the totality principle, the court found the consecutive one-year custodial sentence was not demonstrably unfit, although a shorter sentence may also have fallen within the acceptable range.

The conviction appeal was dismissed, and leave to appeal sentence was granted but the sentence appeal was also dismissed.

In this occupier’s liability appeal arising from a slip and fall, the appellant challenged the jury’s findings on liability and damages as unreasonable, while the plaintiff cross-appealed the reduction of damages, the failure to award pre-judgment interest, and related matters.

The court upheld the jury’s liability finding, holding there was evidence of negligence including water on the floor, absence of mats, and absence of signs.

The court declined to interfere with the jury’s general damages award, but set aside the special damages award for lack of evidentiary foundation and reduced the Family Law Act award to the husband.

The cross-appeal succeeded to the extent that the 20 percent reduction in the plaintiff’s damages was deleted and pre-judgment interest was ordered.

No costs were awarded on the appeal or cross-appeal.

In this family property appeal arising from a fact-driven trial, the appellant challenged the trial judge’s findings, particularly concerning ownership of a triplex, and alleged reasonable apprehension of bias.

The court held that the factual findings were amply supported by the record and disclosed no palpable or overriding error.

It also rejected the bias allegation and dismissed the contingent cross-appeal, including the claim for pre-judgment interest.

A motion to admit fresh evidence was also dismissed, and appeal costs were fixed in favour of the respondent.

After a 23-year unmarried cohabitation, the appellant challenged a trial judgment that found the respondent had been unjustly enriched through her child care, household management, financial contributions, and work in the family business.

The Court of Appeal upheld the finding that the appellant was enriched, the respondent suffered a corresponding deprivation, and there was no juristic reason for the enrichment.

It also upheld a remedial award that effectively increased the respondent's asset position by $170,000 through property transfers and cash, finding the result fell within the generous ambit of reasonableness in long-term domestic unjust enrichment cases.

The respondent's cross-appeal seeking a 50 percent share of total assets was dismissed.