Karen M. Weiler

The appellant was acquitted at trial of failing to comply with a breath demand.

The Crown successfully appealed to the Summary Conviction Appeal Court, which ordered a new trial on the basis that the trial judge found the appellant had feigned compliance, which is tantamount to a refusal.

The appellant sought leave to appeal to the Court of Appeal.

The Court of Appeal agreed that the trial judge's findings amounted to a feigned attempt to blow and denied leave to appeal.

The appellant appealed the sentence imposed by the trial judge, arguing that the trial judge erred in principle with respect to a joint submission.

The Court of Appeal found no error, noting that the trial judge effectively applied the required test and correctly concluded that the proposed sentence, including three years of probation, would be insufficient to protect the public interest given the appellant's history of breaching probation orders on at least six other occasions.

Leave to appeal sentence was granted, but the appeal was dismissed.

The appellants, members of the Walpole Island First Nation, were convicted of hunting without a licence in the Robinson-Superior Treaty territory.

They argued they were sheltering under the treaty rights of the Michipicoten First Nation, an Ojibway community that is a signatory to the treaty.

The Court of Appeal held that while Aboriginal persons can shelter under another First Nation's treaty rights if supported by custom, the appellants failed to establish they had obtained the necessary communal consent in advance to share in the harvesting resource.

The appeal was dismissed.

The appellant, a member of the Aroland First Nation (Treaty 9), was charged with hunting moose without a licence in Treaty 3 territory.

He argued he had a constitutionally protected right to hunt there because he was married to a member of the Lac Seul First Nation (Treaty 3) and had been accepted into that community.

The justice of the peace acquitted him, but the appeal judge entered a conviction.

The Court of Appeal allowed the appeal and restored the acquittal, finding that the appellant was entitled to shelter under Treaty 3 rights as he was hunting in accordance with Ojibway custom and had been accepted by the Treaty 3 community to share in their harvest.

The appellant appealed an order allowing the respondent to access $370,000 from frozen accounts to fund legal fees for an ongoing reference.

The Court of Appeal held that while the motion judge had jurisdiction to hear the motion, she erred in granting the relief.

The respondent failed to meet the burden of establishing that he had no other assets available to pay his legal fees, particularly given his son's refusal to answer questions about family resources during cross-examination.

The appeal was allowed and the underlying motion dismissed.

The appellant and respondents engaged in negotiations and signed a letter of intent regarding a joint venture to develop a retail outlet mall and other properties.

When the respondents terminated the relationship, the appellant sued for breach of contract and, alternatively, quantum meruit for services rendered.

The trial judge dismissed the action, finding no binding joint venture agreement existed and rejecting the quantum meruit claim.

The Court of Appeal upheld the finding that no binding contract was formed, as essential terms were missing and the parties' conduct indicated further negotiations were required.

However, the Court allowed the appeal regarding the quantum meruit claim, finding the trial judge erred in law by requiring a contractual relationship for restitutionary relief.

A new trial was ordered to determine the value of the services provided by the appellant.

The appellant appealed orders striking his pleadings and allowing the respondent to obtain relief on an uncontested basis.

The respondent conceded the grounds of appeal, acknowledging that the appellant had complied with disclosure orders before his pleadings were struck.

The Court of Appeal allowed the appeals on consent, setting aside the orders in part and returning the support issues for a new hearing while maintaining custody and access provisions.

The appellant appealed an order refusing to set aside a default judgment.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that the appellant failed to demonstrate the respondent would suffer no prejudice if the default judgment were set aside.

Costs of $3,500 were awarded to the respondent.

The appellant appealed from an order of the Superior Court of Justice.

The Court of Appeal found that the motions judge did not err in his assessment of the motion in the entire context of the proceedings and dismissed the appeal.

The appellant appealed an order of the Superior Court of Justice.

The Court of Appeal dismissed the appeal, finding no error in the lower court's conclusion that disclosure had been made and there was no material change of circumstances.

The respondent patient suffered a bowel obstruction caused by a volvulus, resulting in the loss of five feet of her small intestine.

The trial judge found the appellant surgeon breached the standard of care by delaying surgery and that this delay caused the loss of the bowel.

On appeal, the Court of Appeal upheld the finding of a breach of the standard of care but allowed the appeal on causation.

The Court found there was no medical or other evidentiary basis to conclude that, but for the delay in operating, the section of the bowel would likely have been saved.

The judgment was set aside and the claim dismissed.

The appellants appealed an order striking their statement of claim and dismissing their action, which was obtained via an ex parte motion by the respondent Centrecorp.

The Court of Appeal found it inappropriate for Centrecorp to proceed ex parte when the appellants had requested a 7-day extension to answer undertakings and asked to be advised if the extension was refused.

The appeal was allowed and the order set aside, conditional upon the appellants paying outstanding costs orders by a specified date.

The appellant appealed a judgment extinguishing its title to a triangular parcel of land based on adverse possession.

The appellant argued the trial judge failed to consider the nature of the use of the surplus land and whether the respondent's actions were sufficiently inconsistent with that use.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the respondent's predecessor in title had paved the parcel, placed curb stones, and used it constantly for parking, effectively excluding the true owner.

The appellants, former employees receiving pensions under the Bank of Canada Pension Plan, brought a proposed class action alleging the Bank improperly extracted funds from the Plan to cover administration costs.

The Bank successfully moved under Rule 21 to strike the claim for direct distribution of the extracted funds to class members and obtained a declaration that the action could not proceed under the Class Proceedings Act due to s. 37(a).

On appeal, the Court of Appeal upheld the striking of the direct distribution claim, finding that restitution to the Plan was the appropriate equitable remedy.

However, the Court allowed the appeal in part, holding that s. 37(a) does not preclude the action from being brought as a class proceeding simply because it could be brought as a representative proceeding under Rule 10 of the Rules of Civil Procedure.

Following the release of its decision on the merits, the Court of Appeal considered costs submissions.

The court noted that at first instance, the parties did not suggest that no costs should be awarded because it was a case of first impression.

The court set aside the lower court's costs order of $10,000 to the respondent and instead awarded the appellant $10,000 for the proceedings at first instance.

The appellant was also awarded $15,000 for the costs of the appeal.

The appellant father appealed an order granting retroactive child support and summary judgment enforcing a $24,000 equalization payment under a separation agreement.

The father argued his bankruptcy discharge released him from the equalization payment.

The Court of Appeal upheld the retroactive child support award, finding the father engaged in blameworthy conduct by failing to disclose significant income increases.

However, the Court set aside the summary judgment regarding the equalization payment, finding a triable issue existed as to whether the payment was actually in the nature of support, which would survive bankruptcy under s. 178(1) of the Bankruptcy and Insolvency Act.

The appellant appealed his conviction for sexual assault, arguing the trial judge lacked jurisdiction because he failed to put the appellant to his election under s. 536(2) of the Criminal Code.

The Court of Appeal agreed, finding that the record did not show substantial compliance with the section or an effective waiver by the unrepresented appellant.

As a result, the trial was a nullity.

The appeal was allowed and a new trial was ordered.

The Attorney General brought a motion to stay a Superior Court judgment that declared the threshold requirements for political parties to receive quarterly allowances under the Canada Elections Act unconstitutional and read in a one-vote threshold.

The Attorney General argued the prospective payment order was automatically stayed as an order for the payment of money, or alternatively, that a stay should be granted under the tripartite test.

The Court of Appeal held the prospective order was not an order for the payment of money.

However, applying the test for a stay pending appeal, the Court found a serious issue to be tried regarding the potential politicization of the Chief Electoral Officer, irreparable harm to the public interest, and that the balance of convenience favoured maintaining the status quo.

The motion for a stay was granted.

The appellants requested to re-open the appeal for further argument on the correct Initial Fair Market Value date for a property.

The Court of Appeal denied the request, noting that the interpretation of the agreement regarding the valuation date was not directly addressed at trial or on appeal, but arose indirectly regarding whether an enforceable agreement existed.

The Court held that the issue of the valuation date was not central to the appeal and that the record amply supported the trial judge's finding of a valid oral agreement.

The interpretation of the agreement was left to be resolved by an arbitrator.

The appellant was sought for extradition by the United States to face charges of conspiracy, wire fraud, and securities fraud.

He appealed his committal order and sought judicial review of the Minister's surrender order.

On the committal appeal, the appellant argued the extradition judge failed to weigh the evidence as required by recent Supreme Court jurisprudence; the Court of Appeal held that a limited weighing of the evidence would not have changed the result.

On the judicial review, the appellant argued the Minister lacked jurisdiction to order surrender due to a 'misalignment' between the foreign charges, the committal order, and the alleged conduct.

The Court of Appeal dismissed this argument, finding that the Extradition Act, the applicable treaty, and the principle of double criminality require only that the alleged conduct constitute an offence in Canada, not that it precisely mirror the foreign charges.

Both the appeal and the application for judicial review were dismissed.