Karen M. Weiler

The parties separated in 1992 and the limitation period for an equalization claim expired in December 1998.

The appellant retained counsel in September 1998, and negotiations regarding the respondent's pension continued past the limitation period.

When negotiations failed, the appellant commenced an action and sought an extension of time under s. 2(8) of the Family Law Act.

The motions judge dismissed the motion, finding bad faith and prejudice.

The Court of Appeal allowed the appeal, holding that the motions judge erred by focusing only on the pre-1998 delay and by finding prejudice where the respondent had notice of the claim before the limitation period expired.

The appellants, secured creditors of a bankrupt company, sought to amend their statement of claim in an Ontario action to allege informal liquidation and improvident realization by the respondent bank.

The respondent argued these issues were res judicata due to a prior Quebec court decision involving another creditor, in which the appellants had intervened.

The Court of Appeal held that the appellants were privies to the plaintiff in the Quebec action due to their active involvement and shared interest.

Therefore, issue estoppel applied, and the appellants were bound by the Quebec court's findings.

The appeal was dismissed, the cross-appeal allowed, and the motion to amend the statement of claim was dismissed.

The appellants appealed a decision regarding the respondents.

The Court of Appeal dismissed the appeal, finding it had no merit with respect to the first respondent based on binding precedent, and noting no basis was advanced for the appeal against the second respondent.

Solicitor and client costs were awarded to both respondents.

The appellant school bus operator appealed the dismissal of its motion for a declaration that its insurer had a duty to defend it in the main action.

The underlying action alleged the operator failed to ensure a student was safely on board, resulting in severe weather exposure and amputation.

The Court of Appeal allowed the appeal, finding a possible duty to indemnify under the policy, which triggered the duty to defend.

The court dismissed the request for separate representation, finding no sufficient conflict on the pleadings, but awarded the appellant solicitor-and-client costs until the insurer takes over the defence.

The Court of Appeal dismissed the main appeal by British Aviation Insurance Group (Canada) Ltd., finding that the trial judge's findings were reasonably supported by the evidence.

Consequently, the respondent did not pursue its cross-appeal, which was also dismissed.

A concurrent appeal by McDonnell against the dismissal of an action against AOG was dismissed because it raised new issues not argued at trial and contradicted the evidence of its own representative.

All appeals were dismissed with costs.

The appellant appealed a conviction for possession of cocaine for the purpose of trafficking arising from a street-level police encounter initiated on mere suspicion.

The court held that the police unlawfully detained the appellant, used immigration questioning as a pretext to create grounds for arrest, and then conducted an illegal search incident to that arrest.

The court found breaches of ss. 8, 9 and 10(b) of the Charter and concluded that the seized crack cocaine would not have been obtained absent those violations.

The evidence was excluded under s. 24(2), the conviction was quashed, and an acquittal was entered.

The appellant employer challenged a wrongful dismissal award limited to quantum, arguing the trial judge erred on reasonable notice, stock option damages, and mitigation.

The majority held the trial judge effectively fixed a nine-and-one-half-month notice period, properly interpreted the stock option plan as contemplating lawful termination, and did not err by excluding mining claims staked during the notice period from the mitigation calculation.

The court found no basis to interfere with the damages assessment for lost stock option value.

A dissent would have allowed the appeal and dismissed the action.

The appellant landowner and the intervening tribunal appealed a Divisional Court decision that had set aside a review decision of the municipal tribunal concerning a ravine control by-law.

The Court of Appeal held that s. 43 of the Ontario Municipal Board Act confers broad review authority, including the power to reconsider and substitute a prior decision, and that the tribunal's internal “manifest error” guideline did not narrow the statute.

The court further held that the review panel acted within jurisdiction in applying longstanding planning policy against effectively sterilizing privately owned land without acquisition or compelling justification.

It also rejected the argument that an express finding of conformity with the official plan under s. 24 of the Planning Act was required.

The Crown appealed an acquittal entered on appeal from a provincial offences conviction for practising as a public accountant without a licence.

The court held that a Certified General Accountant who prepared a stub financial statement for a share purchaser, and financial statements knowingly used by a bank, fell outside the management-accountant exemption in s. 34 because he had actual knowledge that third parties would use and rely on the statements.

The court further held that preparation of corporate income tax returns and attached financial statements did not constitute practising as a public accountant because the representations were those of the taxpayer, not the preparer.

A vagueness challenge to the statutory scheme under s. 7 of the Charter failed.

The acquittal was set aside and the conviction restored.

The appellant appealed a second degree murder conviction arising from a fatal stabbing in an apartment where multiple persons were present, including a witness with a motive to deflect blame.

The Crown conceded several material jury charge errors, including failure to give an adequate Vetrovec warning, misdirection on after-the-fact conduct, mischaracterization of an alternative suspect’s violent record, and inadequate instructions on intoxication and the manslaughter alternative.

The Court of Appeal held the errors were serious and declined to apply the curative proviso because it could not conclude the verdict would inevitably have been the same.

The court also stated that protected statements made during a mental assessment under s. 672.21 of the Criminal Code may be used only on credibility and not as positive evidence of guilt.

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

The appellant solicitor appealed the dismissal of his third party claim for contribution against real estate agents in a negligence action arising from a commercial property purchase involving false zoning representations.

The court held, by majority, that issue estoppel did not apply because the prior mortgage proceeding did not determine the agents' independent liability to the purchaser.

However, the majority concluded that the third party claim was an abuse of process because it effectively attempted to relitigate the same misrepresentation issue that could have been advanced in the earlier proceeding.

The dissent would have allowed the appeal on the basis that the agents' duty of care had never previously been litigated.

The appellant appealed a summary judgment on a dishonoured cheque issued for delivered satellite equipment, arguing that factual disputes, legal set-off, equitable set-off, and alleged misrepresentation required a trial.

The Court of Appeal held there was no genuine issue of material fact on the respondent's claim, and that the appellant's counterclaim for commissions, rebates and warranty credits was not pleaded as a liquidated or ascertainable debt capable of legal set-off.

The court further held that equitable set-off does not apply to bills of exchange, including cheques, and rejected the alleged misrepresentation argument as not properly pleaded as a defence to the validity of the cheque.

The appeal was dismissed, but enforcement of the summary judgment was stayed on terms pending determination of the counterclaim.

The appellant appealed a second degree murder conviction arising from the killing of a close friend, arguing the jury charge inadequately addressed the alternative defence theory that mental disorder negated the mens rea for murder and manslaughter, and misstated the burden of proof.

The Court of Appeal held that the trial judge properly instructed the jury under the Hilton approach that evidence of mental disorder remained relevant to intent even if the not criminally responsible defence failed.

It further held that, read as a whole, the charge clearly distinguished the balance of probabilities burden applicable to the mental disorder defence from the Crown’s burden to prove intent beyond a reasonable doubt.

The appeal was dismissed.

Following a motor vehicle accident, the insured received statutory accident benefits until his insurer terminated payment and an arbitrator found that most of his health problems were not caused by the accident.

In the subsequent tort action against the tortfeasor, the motion judge held that the plaintiff was issue estopped from relitigating causation because the tortfeasor was a privy of the insurer.

The Court of Appeal reversed, holding that the statutory scheme under the Insurance Act creates separate alternative proceedings and does not support importing issue estoppel from SAB arbitration into the tort action.

The respondent had no right to participate in the arbitration and lacked the sufficient identity of interest required for privity.

The appeal was allowed and the arbitral findings were held not binding in the personal injury action.

The appellant appealed a sentence of six-and-a-half years' imprisonment after pleading guilty to incest.

He argued the sentence exceeded the usual 3-5 year range and that insufficient weight was given to his major depression and subsequent exemplary conduct.

The court held that the sentencing judge did not err because the offence involved a lengthy breach of trust and an aggravating circumstance not present in the comparator authority, namely pregnancies resulting from the abuse.

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

The Crown appealed a stay of proceedings entered by the trial judge on his own motion in a prosecution for criminal negligence causing death arising from a motor vehicle accident.

The Court of Appeal held that the trial judge denied the Crown procedural fairness by not giving notice or an opportunity to address the proposed remedy.

It further held that non-disclosure could not justify a stay absent evidence of irreparable prejudice to the accused or abuse of process, and that pre-trial delay was irrelevant in the absence of a proper s. 11(b) Charter application.

The stay was set aside and a trial was ordered.

The appellant appealed an 18-month custodial sentence imposed after a guilty plea to misappropriating more than $204,000 from her employer over approximately three years.

The court held that the proposed fresh evidence concerning post-arrest mental and physical health was not fresh evidence because it merely restated what had already been attributed to the doctor at trial.

While emphasizing the significant breach of trust, the extensive and repeated nature of the misconduct, and the absence of restitution, the court concluded the sentencing judge erred by treating lack of remorse as an aggravating factor rather than simply not a mitigating one.

Leave to appeal was granted, the appeal was allowed, and the sentence was reduced to 12 months in custody.

The appellant argued that delayed and incomplete disclosure led to the loss of a 9-1-1 audio tape, compromising the ability to make full answer and defence.

The court held the police conduct was reasonable and the loss of the tape was entirely inadvertent, with its existence only becoming known at trial to all parties simultaneously.

Even assuming a Charter breach, the only remedy sought was a stay, which required proof of irreparable prejudice in one of the clearest of cases.

The court upheld the finding that no irreparable prejudice was shown and dismissed the appeal.

A non-party solicitor appealed an order finding her in civil contempt and requiring her, jointly and severally with related parties, to repay into court funds mistakenly released by the sheriff despite an order that the funds be held pending resolution of competing creditor claims.

The court rejected challenges based on adjournment, jurisdiction, delay, standing, validity of the underlying order, case splitting, Charter arguments, factual findings, and costs.

It held there was overwhelming evidence that the solicitor knew of the dispute, misled the sheriff, and defeated the order requiring the funds to be held.

The contempt finding and repayment order were upheld, and the appeal was dismissed with costs.

The appellant challenged a trial judgment arising from an intended amalgamation and reverse takeover transaction designed to achieve business objectives for both corporations, including a stock exchange listing.

The Court of Appeal upheld the finding that the February 21, 1990 contract was binding and enforceable, and rejected the argument that the public float requirement operated as a condition precedent.

The court accepted the trial judge’s credibility findings that the appellant knew of the requirement, could have satisfied it, but instead failed to use best efforts and made compliance impossible through undisclosed agreements.

The appeal was dismissed with costs.