Karen M. Weiler

Following the dismissal of an appeal regarding a child protection application, the court considered written submissions on costs.

The court set aside the application judge's costs order against the foster parents, finding they were motivated by the children's best interests rather than self-interest.

The court noted it is not the norm to award costs against unsuccessful applicants in child protection cases.

Each party was ordered to bear their own costs for both the application and the appeal.

The appellant was convicted of possession of cocaine for the purpose of trafficking and sentenced to eight years' imprisonment.

He appealed the sentence, arguing the sentencing judge erred by treating the offence similarly to importing cocaine.

The Court of Appeal agreed, finding the sentencing judge erred in principle by using importing cases as a benchmark.

The Court allowed the appeal and reduced the sentence to six years, noting the appellant's age and criminal record.

The respondent brought a motion to enforce a prior order and to dismiss the appellant's appeal for alleged breaches.

The Court of Appeal declined to dismiss the appeal, finding the facts did not justify such a remedy.

Instead, the court ordered the appeal to be expedited and imposed strict deadlines on the appellant to pay for and file the required transcripts, failing which the respondent could move again to dismiss the appeal.

Costs of the motion were awarded to the respondent.

The appellant appealed a trial judgment ordering him to pay rent, remove his boathouse, and enjoining him from entering the respondent's property.

The trial judge found the boathouse was situated on the respondent's land and a landlord-tenant relationship existed.

The Court of Appeal upheld the trial judge's findings that the boathouse was at least partly on the respondent's land and that a landlord-tenant relationship existed.

The Court amended the trial judge's order, which was overly broad in declaring the respondent owned all the land on which the boathouse rested, but otherwise dismissed the appeal.

The appellant, now 43 years old, was charged with historical sexual offences against his sister, allegedly committed when he was between 14 and 18 years old.

The Crown successfully applied to transfer the charges from youth court to ordinary court under the Young Offenders Act.

The appellant applied for a review of the transfer order.

The Court of Appeal dismissed the application, finding that the youth court system is ill-suited to meet the rehabilitative needs of a mature offender and that placing a 43-year-old in a youth facility would pose a risk to other young offenders.

The appellant was convicted of armed robbery, use of an imitation firearm, and disguise with intent.

The Crown's case relied heavily on the testimony of the appellant's former girlfriend, who initially provided a false alibi but later recanted and testified that the appellant confessed to her.

The trial judge drew an adverse inference from the appellant's failure to testify, treating it as an exception under Noble because he found the alibi was fabricated.

The Court of Appeal held that the trial judge erred in drawing this adverse inference, as the defence did not advance an alibi at trial.

The appeal was allowed and a new trial ordered.

Following the release of the main appeal decision, the court was asked to fix the costs of the six-day trial.

As the applicant's ultimate recovery was more favourable than the respondent's offer to settle, she was awarded party and party costs throughout.

The court fixed the trial costs at $30,000 all inclusive.

Following the release of reasons on October 19, 2002, the Court of Appeal received written submissions on costs.

The Court fixed the costs of the motions before the motions judge at $6,000 all inclusive, and the costs of both appeals at $6,500 all inclusive, payable to the appellants forthwith.

The appellant was convicted of manslaughter following a stabbing incident.

At trial, the Crown introduced statements made by the appellant to third parties, which contained both inculpatory and exculpatory elements.

The trial judge instructed the jury that only the inculpatory portions of these statements could be used for the truth of their contents.

On appeal, the Crown conceded this was an error, as exculpatory portions of statements introduced by the Crown become evidence for the accused.

The Court of Appeal found the error was highly prejudicial, as it deprived the appellant of the combined defences of self-defence and accident, and declined to apply the curative proviso.

The appeal was allowed and a new trial ordered.

The Crown appealed an acquittal entered by a summary conviction appeal court judge, who had overturned the respondent's conviction for 'over 80' while having care or control of a motor vehicle.

The respondent had driven her vehicle into a ditch and subsequently consumed more alcohol before police arrived.

The trial judge rejected her evidence of post-offence drinking and found she had care or control of the operable vehicle.

The Court of Appeal allowed the Crown's appeal, finding that the summary conviction appeal judge erred by substituting his own findings of fact regarding care or control and credibility, and by faulting the trial judge's application of the W.D. test.

The conviction and sentence were restored.

The appellant appealed his convictions for possession of proceeds of crime and possession of cocaine for the purpose of trafficking.

The Court of Appeal found three significant errors in the trial judge's charge to the jury: failing to properly instruct on the Carter co-conspirator exception to the hearsay rule, failing to warn the jury about the frailties of eyewitness identification, and failing to instruct the jury to disregard evidence related to a directed verdict of acquittal.

The appeal was allowed, the convictions were set aside, and a new trial was ordered.

The plaintiff was injured on a roller coaster in October 1995 and commenced an action in February 2002.

The defendants brought a motion for summary judgment, arguing the six-year limitation period had expired.

The motions judge dismissed the motion, finding the limitation period had not expired.

On appeal, the majority of the Court of Appeal allowed the appeal and dismissed the action, holding that the plaintiff knew or reasonably should have known all elements of her claim in October 1995, and the mere possibility of no causal connection did not delay the limitation period.

The appellant appealed a judgment of Justice Juriansz.

The Court of Appeal dismissed the appeal, agreeing with the lower court's conclusion and reasons.

The court also granted leave to appeal the costs decision but dismissed that cross-appeal, finding no error in principle in fixing costs based on a summary procedure quantum.

Costs of the appeal were fixed at $7,000 on a partial indemnity basis.

The appellant appealed his conviction for aggravated assault and his sentence.

The sole issue at trial was the identification of the attacker.

The Court of Appeal found that while the verdict was not unreasonable, the cumulative effect of several trial errors necessitated a new trial.

These errors included inadequate jury instructions on the frailties of eyewitness and in-dock identification, improperly allowing a prior unadopted statement to be considered for its truth, and admitting inadmissible police opinion evidence regarding the correctness of the arrest.

The appellant appealed his conviction for sexual assault, arguing that the trial judge held the complainant's evidence to a different standard and misapprehended the evidence.

The Court of Appeal found that the trial judge properly considered the reliability of the appellant's evidence, addressed the frailties in the complainant's version of events, and did not misapprehend the evidence.

The appeal was dismissed.

The appellant, executor of the estate of John F. McLennan, appealed a decision ordering the discharge of a collateral mortgage and the payment of approximately $5.7 million in property sale proceeds to the estate of John K. McLennan.

The appellant argued that a 1996 assignment agreement transferred both the collateral mortgage and the deceased's personal guarantee to the father's estate.

The Court of Appeal upheld the lower courts' findings that the assignment agreement only transferred the collateral mortgage, which was worthless without the underlying debt and personal guarantee.

The appeal was dismissed.

The 18-year-old appellant pleaded guilty to aggravated assault and firearms offences, receiving a sentence of five years and two months after credit for pre-trial custody.

On appeal, he sought to introduce fresh evidence regarding systemic racism and background factors facing black Canadians.

The Court of Appeal declined to admit the fresh evidence, finding that while such factors could be relevant in sentencing, the appellant's crimes were too serious for them to affect the result.

However, the Court allowed the appeal and reduced the sentence to four years and two months, finding the trial judge erred by focusing almost exclusively on denunciation and general deterrence for a youthful offender facing his first penitentiary sentence.

The appellant vendor agreed to sell commercial land to the respondent purchaser, conditional on obtaining severance approval under the Planning Act.

The Committee of Adjustment granted severance but required the vendor to construct and dedicate a road extension.

The vendor attempted to terminate the agreement, arguing the condition was unreasonable and frustrated the contract.

The purchaser sued for specific performance.

The Court of Appeal upheld the trial judge's decision granting specific performance, finding that the contract clearly obligated the vendor to obtain necessary consents at its expense, the doctrine of frustration did not apply as the condition was foreseeable, and the property was unique.

The appellant was convicted of counselling murder and counselling unlawful bodily harm after tape-recording conversations in which he encouraged two women to have a doctor maimed or killed.

The appellant claimed he did not intend for the crimes to be committed, but only wanted to get the women's intentions on tape to warn the doctor.

The trial judge instructed the jury that the mental element for counselling was satisfied if the appellant intended his advice to be accepted.

The Court of Appeal held that the trial judge erred; the offence of counselling requires proof that the counsellor intended the commission of the offence counselled.

As the Crown conceded there was no evidence the appellant intended the substantive offences to be committed, the appeal was allowed and acquittals were entered.

The City of Toronto appealed a decision declaring its amending by-law unlawful.

The by-law purported to retroactively and prospectively require the municipal pension plan to pay the City's internal administrative costs out of the pension fund.

The Court of Appeal dismissed the appeal, holding that the pension plan constituted a true trust in favour of the employees.

The court found that the City did not reserve a power of revocation, and a general power of amendment does not include the power to revoke.

Therefore, the by-law constituted an unlawful partial revocation and breach of trust.