Karen M. Weiler

The Crown appealed the sentence imposed on the respondent, arguing that the sentencing judge erred by imposing a concurrent rather than a consecutive sentence for a second set of offences committed two months after the first.

The Court of Appeal dismissed the appeal, citing the Supreme Court's decision in McDonnell, which establishes that a sentencing judge has considerable discretion in determining whether sentences should be concurrent or consecutive, and that appellate courts will generally defer to that discretion.

The testator left seven rental properties to his daughter, provided she pay $1,300 monthly from the rent to his widow.

The motions judge found this provision to be a void condition subsequent and an unlawful restraint on alienation, granting the properties to the daughter absolutely.

The Court of Appeal allowed the appeal, holding that the provision was an internal limit on the gift that reflected the testator's clear intention to benefit both his daughter and his widow.

The daughter is entitled to the properties subject to the requirement to make the monthly payments during the widow's lifetime.

The appellants requested that the Court of Appeal change its judgment to award post-maturity interest at 10 per cent per annum as compound interest rather than simple interest.

The Court declined the request, noting that the appellants had not previously asserted a claim for compound interest and that the governing promissory note did not provide for it.

The award of 10 per cent simple interest was maintained.

The appellant appealed a summary judgment dismissing its action for specific performance of an alleged oral agreement to purchase land.

The motion judge found no genuine issue for trial because essential terms, specifically the assumption of obligations under a Cost Sharing Agreement, were not agreed upon, and there was no written memorandum to satisfy the Statute of Frauds.

The Court of Appeal upheld the motion judge's decision, agreeing that the appellant's self-serving affidavit evidence, which contradicted its own draft agreement, was insufficient to create a triable issue.

The appellant appealed a trial judgment awarding the respondent damages for breach of an equipment rental contract.

The appellant argued the trial judge erred in calculating the hours the respondent would have worked and in failing to credit a prior payment.

The Court of Appeal found no palpable or overriding error in the trial judge's finding of 1000 hours of work, as it was supported by evidence including time cards and witness testimony.

However, the Court agreed the trial judge erred by not crediting a $2,990 payment made for preparation work.

The judgment was varied downward to correct this and a minor arithmetical error, but the appeal was otherwise dismissed.

The appellants appealed an order of the Superior Court of Justice regarding their right to recovery under a bond.

The Court of Appeal held that naming the appellants on the bond did not give them an independent right to recovery under their lending agreements.

The court declined to interfere with the motion judge's interpretation of the inter-lender agreement and dismissed the appeals with costs.

The appellants appealed a trial management order in a child protection proceeding.

The Court of Appeal dismissed the appeal, finding no error in the exercise of discretion.

The Court clarified that the statutory requirement for a child to be 'brought before the court' does not mandate physical presence in the courtroom, and confirmed that the governing legislation permits a bifurcated, non-continuous hearing.

The appellant was seriously injured in a motor vehicle accident caused by an impaired driver who had just left a BYOB party hosted by the respondents.

The appellant sued the driver and the social hosts.

The trial judge found the driver liable but dismissed the action against the social hosts, finding they owed no duty of care for policy reasons.

On appeal, the Court of Appeal upheld the dismissal against the social hosts, concluding that on the specific facts of this case—where the hosts did not serve the alcohol, did not know how much the driver drank, and did not know he was impaired when he left—no duty of care was owed to third-party users of the road.

The appeal was dismissed as to liability but allowed in part regarding costs.

The appellant appealed a partial summary judgment dismissing his claims for an accounting of partnership profits from 1990 to 2000 and damages for mental distress against two of his former law partners.

The Court of Appeal upheld the dismissal of these claims, finding no error by the motions judge, except regarding the claim for an accounting for the period from January 2000 to July 2001, which the appellant was permitted to pursue.

A cross-appeal seeking to dismiss the claim against a third partner for alleged abusive conduct was dismissed.

The appellant appealed a trial judgment finding him jointly and severally liable for over $325,000 wrongfully obtained from an elderly relative's estate.

The trial judge found the appellant knowingly assisted other family members in breaching their fiduciary duties by preparing a power of attorney and commissioning a land transfer tax affidavit while knowing the relative was incompetent.

On appeal, the appellant argued the respondents lacked standing under the Trustee Act and that his actions did not cause the loss.

The Court of Appeal dismissed the appeal, refusing to entertain the standing and limitation arguments raised for the first time on appeal, and upholding the finding of knowing assistance.

A cross-appeal seeking occupation rent from the appellant was also dismissed.

Following the release of the appeal decision, the parties disagreed on the settlement of the formal order regarding whether it should specify the date of termination of the commercial lease.

The Court of Appeal held that the omission of the termination date could be rectified under Rule 59.06 and determined by the remaining justices under s. 123(3) of the Courts of Justice Act.

The Court declared the lease was effectively terminated on November 19, 2001, noting this does not inhibit the trial judge's discretion on relief from forfeiture.

The appellant sued the respondent accountant and his firms for negligent misrepresentation, alleging she lost approximately $825,000 invested in a company based on his advice.

The trial judge dismissed the action, finding no accountant-client relationship existed when the initial investment was structured, and that the appellant did not rely on the accountant's representations when making further investments despite knowing the company was in financial difficulty.

The Court of Appeal upheld the dismissal of the action but allowed the appeal on costs on consent, reducing the trial costs awarded to the respondents.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

Based on the submissions of the parties, the court fixed the total costs at $8,000.

The appellants appealed a trial judgment finding that an oral retainer existed between the appellant Mauro and the respondent law firm.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the heavy onus on the solicitor to establish an oral retainer was met.

The Court also rejected the argument that an oral retainer is void unless in writing under the Solicitors Act, noting that there was no dispute as to the amount of compensation.

The appellant tenant terminated a commercial lease, arguing the landlord failed to complete the building in accordance with the schedule.

The trial judge found the tenant acted unreasonably and not in good faith by failing to consider other contractual options, such as completing the work itself and deducting the cost from rent.

The Court of Appeal upheld the liability finding but allowed the appeal on damages in part, reducing the damages award by the $50,000 it would have cost to complete the building.

The cross-appeal on damages was dismissed due to the landlord's failure to mitigate.

The plaintiff fell on a municipal sidewalk and served notice of her claim on the City ten days later.

The City moved for summary judgment, arguing the claim was barred by the seven-day notice requirement under s. 284(5) of the Municipal Act.

The motions judge dismissed the motion, applying Rule 3.01(1)(b) to exclude holidays from the computation of time.

The Court of Appeal allowed the City's appeal, holding that the Interpretation Act, not the Rules of Civil Procedure, governs statutory time limits.

Under s. 28(h) of the Interpretation Act, holidays are not excluded from the calculation unless the final day falls on a holiday.

As the seventh day was not a holiday, the notice was out of time and the action was dismissed.

The appellant vendor appealed a trial judgment finding that its failure to construct a cathedral ceiling in a new home was a fundamental breach of the agreement of purchase and sale.

The Court of Appeal upheld the trial judge's conclusion, noting that the cathedral ceiling was a crucial feature of the contract and the vendor's unilateral change provision did not apply to fundamental changes.

The court also rejected the argument that the purchasers affirmed the contract by delaying their rescission, finding that they rescinded within a reasonable time after learning of the change.

The appeal was dismissed and the purchasers were entitled to the return of their deposit.

The appellant, unrepresented at his summary conviction appeal, attempted to argue that the trial judge improperly handled numerous witness subpoenas he had served.

The summary conviction appeal judge repeatedly interrupted and declined to hear submissions on this issue.

The Court of Appeal held that the summary conviction appeal judge erred by refusing to hear the appellant's submissions regarding the trial subpoenas, as this went to the fairness of the trial.

The conviction appeal was allowed and a new hearing was ordered.

The appellant, an off-duty police officer, was convicted of dangerous driving following a road rage incident on a major highway where he aggressively passed the complainant, stopped his vehicle in the passing lane, and flashed his police badge.

He appealed his conviction and 30-day custodial sentence.

The Court of Appeal dismissed the conviction appeal, finding the trial judge correctly applied the modified objective test for dangerous driving.

The sentence appeal was allowed in part only to credit the appellant for 10 days of pre-sentence custody, reducing the sentence to 20 days.

The court upheld the custodial nature of the sentence, emphasizing the appellant's abuse of authority and the danger posed to the public.

The appellant appealed a trial judgment that upheld a separation agreement.

The Court of Appeal assumed without deciding that the trial judge erred regarding the limitation period, but dismissed the appeal on the basis that the separation agreement was not unconscionable.

The uncontradicted evidence showed the respondent had assumed $112,000 in joint debts, resulting in a monthly deficit, justifying the agreement's terms.