Karen M. Weiler

Following the release of the main appellate reasons on December 24, 2002, the Court of Appeal issued an addendum granting the costs of the appeal to the appellant, fixed in the amount of $6,000.

The appellant, Union Gas Limited, appealed an order made in CCAA proceedings regarding its right to set off amounts owed by the respondent, Algoma Steel Inc., against a rebate owed to the respondent.

The motions judge had denied legal set-off and limited equitable set-off to only one of two contracts.

The Court of Appeal upheld the decision on legal set-off but allowed the appeal regarding equitable set-off, finding a close connection between the contracts that made it manifestly unjust to enforce payment of the rebate without taking into account the full cross-claim.

The appellant mother appealed an order that denied her request to seal the entire family law court file and instead only expunged certain information.

The mother, who comes from a wealthy family, argued that the entire file needed to be sealed to protect the child from the risk of kidnapping.

The Court of Appeal agreed, finding that the best interests of the child required an exception to the open court principle under s. 137(2) of the Courts of Justice Act.

The appeal was allowed and the entire file was ordered sealed.

The young offender appellant pleaded guilty to robbery and sexual assault and was sentenced to time served plus 16 months secure custody and 8 months open custody.

He appealed the sentence, arguing it was excessive and failed to account for his difficult upbringing, pre-trial custody, and progress in rehabilitation.

The Court of Appeal dismissed the appeal, finding the sentence at the upper end of the range but appropriate, and noted that the appellant's progress would be better assessed during a Youth Court sentence review.

The appellant law firm appealed the dismissal of its application to quash a search warrant and declare s. 487 of the Criminal Code unconstitutional regarding law office searches.

The Court of Appeal dismissed the appeal, holding that s. 487 is constitutional in respect of law offices provided the guidelines set out by the Supreme Court of Canada in R. v. Lavallee are followed.

The court also found no evidentiary basis to support the appellant's alternative argument that the Lavallee principles were not complied with in this case.

The young person appealed his conviction for robbery, arguing that the trial judge's interventions created the appearance of an unfair trial.

The Crown conceded the appeal.

The Court of Appeal found that the trial judge's interventions during the cross-examination of the complainant and the investigating officer impaired defence counsel's full testing of the evidence and gave the appearance of having pre-judged the credibility of the police officer.

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

The appellant appealed his conviction for sexual assault following a jury trial.

He argued that the trial judge erred by failing to leave the defence of honest but mistaken belief in consent with the jury, failing to charge the jury sufficiently on consent, giving an improper charge on reasonable doubt, and that the jury's verdicts of guilty on sexual assault and not guilty on break and enter were inconsistent.

The Court of Appeal dismissed the appeal, finding no air of reality to the defence of mistaken belief in consent, no error in the jury instructions, and no inconsistency in the verdicts given the different elements of the offences.

The parties separated after a short marriage.

Prior to the marriage, the wife contributed significantly to the renovation of a property owned by the husband, which later became the matrimonial home and was held in joint tenancy.

The trial judge found the husband was unjustly enriched by the pre-marital contributions and awarded the wife monetary compensation, allowing her to deduct this amount from her net family property.

The trial judge also stated she would have ordered an unequal division of property if unjust enrichment was not found, and dismissed the wife's claim for spousal support.

The husband appealed the property issues, and the wife cross-appealed the support dismissal.

The Court of Appeal allowed the husband's appeal, finding that the calculation of net family property must be based on the date of separation, at which point the wife held a joint interest in the home and thus suffered no deprivation.

The Court also found an equal division of property was not unconscionable and dismissed the wife's cross-appeal for spousal support.

The appellant was injured in a motor vehicle accident.

In a prior arbitration for accident benefits, the arbitrator found the appellant was uninsured at the time of the accident.

The appellant subsequently brought an action against the tortfeasor for negligence and against his insurer for breach of contract and negligence.

The motions judge dismissed both actions on the basis of abuse of process and issue estoppel.

The Court of Appeal allowed the appeal, finding that the tort action was separate from the contractual dispute, and the negligence claim against the insurer raised different issues than those decided in the arbitration.

The appellant client was awarded fixed costs in matrimonial proceedings.

Her solicitor claimed the fixed costs as its solicitor and client account, and the client applied to have the account assessed.

The motion judge ruled that the doctrine of issue estoppel applied.

On appeal, the Court of Appeal held that neither issue estoppel nor abuse of process applied, as the solicitor and client are allied in interest when costs are fixed but opposed in interest on an assessment.

The appeal was allowed, permitting the client to have the accounts assessed.

The appellant solicitor was retained by the respondent for medical malpractice lawsuits.

After a dispute over unpaid fees, the respondent granted mortgages on her properties as security.

When the respondent failed to pay, the appellant commenced power of sale proceedings.

The respondent obtained an injunction and a motions judge ordered the discharge of a $25,000 mortgage upon payment of funds into court.

The Court of Appeal allowed the appeal in part, holding that the mortgage should not be discharged unless principal, interest, and costs were paid, and clarified that the funds paid into court stand as security for the appellant.

The appellants, foster parents of three young siblings, appealed a Superior Court decision dismissing their application for an order granting them residence of the children pending the final determination of child protection proceedings.

The children had been apprehended over two years prior, but no protection finding had yet been made.

The foster parents argued that the inordinate delay created a gap in the Child and Family Services Act, justifying the Superior Court's exercise of its parens patriae jurisdiction.

The Court of Appeal dismissed the appeal, holding that the delay did not bring the matter outside the ambit of the legislation, and that the Ontario Court of Justice retained jurisdiction to determine the children's best interests, including the impact of the delay and their attachments to the foster parents.

The appellant was convicted of conspiracy to import cocaine.

On appeal, he argued that the trial judge erred during the jury selection process by failing to adequately instruct the triers on the challenge for cause process and by interfering with his peremptory challenge rights.

The Court of Appeal agreed, finding that the triers were not instructed on the standard of proof or the need for unanimity.

Furthermore, the trial judge's failure to pre-screen prospective jurors for personal hardship forced counsel to waste peremptory challenges.

The appeal was allowed and a new trial ordered.

The appellant appealed his convictions and sentences for trafficking in a substance held out to be cocaine, extortion, uttering threats, and breach of probation.

The Court of Appeal found no error in the trial judge's assessment of credibility and reliance on confirmatory evidence.

However, based on a Crown concession, the Court stayed the threatening counts as they were subsumed in the extortion count.

The appeal was otherwise dismissed and the totality of the sentences was upheld.

The mother, who was granted sole custody of the child, appealed the trial judge's refusal to permit her to relocate to Alberta with the child.

The Court of Appeal found that the trial judge erred by focusing solely on the mother's employment and the father's access, while disregarding the social, psychological, and emotional benefits of the move for the mother.

Applying the framework from Gordon v. Goertz, the Court held that the views of the custodial parent are entitled to great respect and that the move would enhance the best interests of the child by allowing the mother to regain stability and independence.

The appeal was allowed, permitting the mother to relocate to Calgary.

The Crown appealed the trial judge's refusal to grant a DNA databanking order under s. 487.052 of the Criminal Code.

The trial judge had refused the order solely because the offence was committed before the provisions came into force.

The respondent conceded this was an error but argued the matter should be remitted to the trial judge to allow the defence to present evidence.

The Court of Appeal found the evidentiary record was complete and the evidence supporting the order was overwhelming.

The appeal was allowed and the DNA databanking order was granted.

The appellants appealed their convictions for robbery and possession of a weapon for a purpose dangerous to the public peace.

One appellant argued the trial judge erred in assessing eyewitness identification evidence, while the other argued the trial judge made inconsistent findings regarding his control of the weapons and role in the robbery.

The Court of Appeal dismissed both appeals, finding that the trial judge's findings were not inconsistent and that the convictions were supported by the totality of the circumstantial and identification evidence.

The responding party sought leave to appeal a Divisional Court decision regarding a human rights complaint against a housing co-operative and a federal crown corporation.

In support of her leave application, she filed affidavits to demonstrate the public importance of the legal issues.

The moving party brought a motion to strike the affidavits.

The Court of Appeal held that while affidavit evidence on public importance cannot be filed as of right, the court may grant leave to file such evidence if it is factual and relevant.

The court struck out specific paragraphs containing legal opinions but allowed the remainder of the affidavits to be filed.

Following the release of the main judgment, the court received written submissions on costs.

The appellant achieved substantial success on the appeal and was entitled to costs.

However, the court reduced the appellant's bill of costs by $15,000 for widening the scope of the appeal with unsuccessful compensatory damages issues, by $15,000 for excessive factum preparation time, and by $4,364 for excessive counsel fees.

Costs were fixed at $56,770.77 on a partial indemnity scale.

The appellant guaranteed her husband's business loans and provided a collateral mortgage on her home.

The bank later agreed to replace the guarantee with a new conventional mortgage, but subsequently sued on the original guarantee, which the appellant settled.

When the bank sued to enforce the new mortgage, the appellant raised defences of negligence, unconscionability, misrepresentation, and undue influence.

The Court of Appeal dismissed the defences against enforcement, finding the appellant had independent legal advice and entered the transaction freely, rebutting any presumption of undue influence.

However, the Court allowed an equitable set-off against the mortgage debt for the damages the appellant suffered when the bank breached its agreement by suing on the original guarantee.