Karen M. Weiler

The College of Physicians and Surgeons appealed a Divisional Court order quashing an Amended Notice of Hearing.

During an ongoing discipline hearing against the respondent physician, the College's Registrar signed an Amended Notice of Hearing to add new allegations from a different complainant without following the statutory referral process.

The Court of Appeal dismissed the appeal, holding that professional discipline legislation must be strictly construed.

The Registrar lacked statutory authority to amend the notice or join new complaints mid-hearing, and the procedure violated the physician's right to prior notice under the Statutory Powers Procedure Act.

The appellant appealed a trial judgment regarding liability for a fire.

The trial judge found that the appellant's failure to hook up a high limit switch and failure to warn the respondent of installation problems were material causes of the fire.

The Court of Appeal found no error in the trial judge's analysis of causation or apportionment of liability and dismissed the appeal, awarding costs of $15,000 to the respondent.

The appellant appealed a trial judgment awarding the respondent $33,000 as compensation for her contribution to the family residence.

The Court of Appeal found no error in the trial judge's findings that the residence was a gift from the appellant's father to the appellant, and that the respondent had contributed to its increased value.

The appeal was dismissed with costs fixed at $20,000 for the appeal and $10,000 for the trial.

The appellant appealed the dispositions of the Ontario Review Board and the verdict of unfit to stand trial made by the trial judge.

The Crown conceded that the fitness hearing should have been conducted by a judge and jury under s. 672.26 of the Criminal Code.

The Court of Appeal set aside the verdict of unfit to stand trial, declaring the proceeding a nullity, and referred the matter back to the trial court for a fitness hearing before a judge and jury.

The Ontario Review Board's determination was also set aside.

The appellant was convicted of manslaughter in the stabbing death of a frail, vulnerable friend and sentenced to 14 years' imprisonment.

On appeal, the Court of Appeal found the trial judge erred in principle by denying two-for-one credit for pre-trial custody based on the appellant's change of counsel, and by holding that provocation could not mitigate the sentence.

The Court held the appropriate range was 8 to 12 years due to numerous aggravating factors.

Factoring in proper pre-trial custody credit and provocation, the sentence was reduced to 9 years' imprisonment.

The appellants appealed a decision upholding a municipal by-law that restricted the height of their natural garden planted on city property.

The application judge found that any infringement of the appellants' freedom of conscience, religion, or expression was justified under s. 1 of the Charter as a reasonable limit for public safety and visibility on roadways.

The Court of Appeal agreed with the application judge's analysis, concluding that the by-law's limitation on vegetation was tied to safety hazards and was not overly vague or unreasonable.

The appeal was dismissed with costs.

The franchisor, Print Three, appealed a trial judgment finding it liable for fundamental breach of a franchise agreement and breach of a duty of good faith.

The franchisee, Shelanu, had entered into a subsequent oral agreement regarding royalty rebates, which Print Three later refused to honour.

The Court of Appeal upheld the enforceability of the oral agreement despite an entire agreement clause, finding the parties had amended their written agreement by conduct.

The Court also affirmed that a duty of good faith exists in franchisor-franchisee relationships.

However, the Court found the trial judge erred in concluding that Print Three's establishment of a new franchise concept breached this duty, and further erred in finding a fundamental breach that excused Shelanu from future performance.

The appeal and cross-appeal were allowed, and damages on the franchisor's counterclaim were reassessed.

The appellant law firm appealed an order directing the assessment of all its accounts to the respondent, refusing to impose a solicitor's lien on a personal loan made to the respondent, and awarding solicitor and client costs.

The Court of Appeal allowed the appeal in part, finding no 'special circumstances' under s. 4(1) of the Solicitors Act to justify assessing accounts paid without objection more than six years prior.

However, the Court upheld the refusal to grant a charging order under s. 34(1) for a personal loan, as such orders must relate to legal services.

The costs award was also affirmed.

The appellant solicitor was called to a hospital to prepare a deathbed will for a terminally ill patient.

After interviewing the patient, who drifted in and out of consciousness, the solicitor concluded the patient lacked testamentary capacity and declined to prepare the will.

The patient died intestate.

A prospective beneficiary sued the solicitor for negligence and succeeded at trial.

On appeal, the Court of Appeal allowed the appeal, holding that the solicitor's duty was to ascertain testamentary capacity.

Finding the patient lacked capacity, the solicitor properly declined the retainer.

In the absence of a retainer, the solicitor owed no duty of care to the prospective beneficiary.

Following an appeal where success was divided, the court issued an endorsement on costs.

The court ordered that no costs of the appeal be awarded to either party.

Furthermore, the court declined to clarify its reasons, directing the parties to settle the order in accordance with Rule 59.04 of the Rules of Civil Procedure.

The respondents on appeal submitted a bill of costs following the appeal.

They sought costs on a substantial indemnity basis, relying on the trial judge's award of solicitor-client costs.

The Court of Appeal declined to award substantial indemnity costs but recognized the complexity of the matter.

The court fixed the costs payable by the appellants to the respondents at $25,000, inclusive of disbursements and GST.

The appellants appealed the trial judge's conclusion regarding the threshold test in a motor vehicle accident claim.

The Court of Appeal found no error in the trial judge's conclusion that the threshold test was not met until after February 1994.

The appeal was dismissed with costs fixed at $17,500.

The corporate appellants appealed their convictions and sentence for offences related to a scheme selling shares of tickets in a Spanish lottery to American consumers.

The trial judge convicted them under sections 206(1) and 202(1) of the Criminal Code, entering conditional stays on all but one count based on the Kienapple principle, and imposed a $100,000 fine.

On appeal, the appellants raised issues regarding the requirement of an additional element of chance, acting as agents for buyers, the definition of betting or wagering, and the exemption under section 207(1)(h).

The Court of Appeal found no error in the trial judge's rejection of these arguments and upheld both the convictions and the sentence.

The appellant was convicted of aggravated assault and discharging a firearm with intent to wound after shooting the complainant in the neck.

He appealed his convictions, arguing the trial judge failed to give a limiting instruction on his post-offence conduct and failed to properly instruct the jury on the defence of accident.

He also appealed his 8-year sentence.

The Court of Appeal dismissed the conviction appeal, finding the post-offence conduct was relevant to intent and the jury instructions were adequate given the lack of evidence supporting an accident.

The sentence appeal was also dismissed as the sentence fell within the acceptable range.

The respondents sought to develop land subdivided via testamentary devise, a method that bypassed Planning Act controls.

When they applied for building permits, the appellant Town delayed processing and passed an interim control by-law, followed by a zoning amendment increasing minimum lot sizes, effectively halting the development.

The trial judge found the Town acted in bad faith, quashed the zoning amendment, and ordered the issuance of building permits and damages.

The Court of Appeal upheld the trial judge's findings of bad faith and the order for building permits, finding no palpable and overriding error, but allowed the appeal in part to adjust the interest rate on damages and the scale of costs.

The appellant pleaded guilty to uttering a threat to cause bodily harm to his common-law partner and was sentenced to 18 months' imprisonment and two years' probation.

At trial, the unrepresented appellant was sentenced without the trial judge allowing a female witness (either the complainant or her sister) to speak on his behalf.

The Court of Appeal found that fairness required the trial judge to hear from the witness, which may have assisted in assessing the seriousness of the offence.

The Court held that the 18-month sentence was out of proportion to the gravity of the offence and reduced the sentence to time served (over five and a half months), leaving the probation order in place.

The appellants were convicted of possession of heroin for the purpose of trafficking following a police search of an apartment and a vehicle.

They appealed their convictions on several grounds, including the validity of the search warrant, jury instructions on the burden of proof (the W.(D.) instruction), and the reasonableness of the verdicts.

The Court of Appeal dismissed the appeal of the first appellant, finding the jury instructions adequate and the verdict reasonable based on the evidence found in his vehicle.

However, the Court allowed the appeal of the second appellant, concluding that the verdict was unreasonable as there was insufficient evidence connecting him to the drugs found in the apartment, especially given his acquittal on the trafficking charge.

The young person pleaded guilty to assault simpliciter after intervening in a confrontation between his friend and a homeowner.

The trial judge imposed a disposition of 45 days secure custody and 15 months' probation.

On appeal, the Court of Appeal found that the trial judge erred by failing to explore alternative dispositions short of custody for a first-time young offender.

The appeal was allowed, and the disposition was varied to time served, with the probation order remaining in place.

The appellant appealed a disposition of the Ontario Review Board.

The Court of Appeal dismissed the appeal, finding that there was a sufficient evidentiary basis, including clear expert opinion on continuing danger, risk assessment, and the appellant's ability to manage his behaviour, to support the Board's decision.

The appellant appealed the disposition of the Ontario Review Board dated August 7, 2002.

The Court of Appeal found no basis on the record to conclude that the Board's decision was unreasonable and dismissed the appeal.