Karen M. Weiler

The appellant challenged the dismissal of an action on a livestock mortality insurance policy after a racehorse died from bismuth poisoning.

The Court of Appeal held that, once the trial judge found the malicious or intentional act exclusion inapplicable to the insured and his bailee, the poisoning constituted an accident as between the parties to the policy.

The court further held that the exclusion for administration of drugs, medication or inoculation applies to substances given for a beneficial medicinal purpose, not a lethal substance forced into the animal to injure or destroy it.

The insurer failed to prove the poison was given for medicinal purposes.

The appeal was allowed and judgment was entered for the policy amount plus prejudgment interest.

The appellant appealed convictions on multiple historical sexual offence counts arising from allegations by four complainants.

The court held that the jury instructions created a reasonable likelihood that the jury misapprehended the reasonable doubt standard by suggesting conviction could follow either proof beyond a reasonable doubt or some lesser level of satisfaction.

The court also held that the trial judge erred in refusing to entertain the self-represented appellant's attempt to obtain child welfare records, and failed in the duty to provide reasonable assistance to an unrepresented accused.

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

Appeal from a judgment requiring a homeowner to pay outstanding lumber invoices used in the construction of his residence after dismissal of a construction lien claim.

The appellant argued the evidence did not prove the lumber was ordered or delivered, and further argued he was merely an undisclosed principal not liable for unauthorized acts of his project manager and related entities.

The court deferred to the trial judge's factual findings on delivery and ordering, and held the appellant was liable for earlier invoices within the agents' actual authority and for later invoices through ratification once the agency relationship had become disclosed though the principal remained unnamed.

The appeal was dismissed.

The appellants challenged a judgment requiring payment for emergency spill cleanup following a gasoline tanker rollover.

The court held that new evidence showing there was no agreement on rates undermined the partial summary judgment premised on payment at the respondent's usual rates.

The court further held that the trial judge failed to address whether mark-ups on subcontracted work were recoverable at usual rates or were otherwise fair and reasonable.

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

The accused appealed convictions for multiple sexual assaults and sexual exploitation, arguing improper Crown cross-examination and inadequacy in the jury charge.

The court held that one line of cross-examination was unfair but caused no prejudice, and that the impugned cross-examination cumulatively did not deprive the accused of a fair trial.

The Crown separately appealed a conditional sentence as unfit for repeated sexual assaults against a vulnerable young complainant in a relationship of trust.

Although the court found an error in principle and concluded a conditional sentence should not have been imposed, it dismissed the sentence appeal after granting leave because the sentence had largely been served under strict conditions and incarceration at that stage would not be in the interests of justice.

The appellant appealed his conviction for criminal negligence causing death and sought leave to appeal a three-year penitentiary sentence with an eight-year driving prohibition arising from a fatal dirt bike collision.

The principal trial issue was the identity of the driver.

The court rejected challenges to habit evidence, expert reconstruction evidence, demonstration evidence, and hearsay use during cross-examination, holding that any concerns were adequately addressed by the trial judge’s charge and that no prejudice was shown.

The court also rejected the unreasonable verdict argument.

Leave to appeal sentence was granted, but the sentence appeal was dismissed as no error in principle was established and the sentence was fit.

The Crown sought leave to appeal from a summary conviction appeal decision upholding a trial judge’s refusal to permit viva voce evidence in response to the accused’s Charter application to exclude breath evidence.

The issue was whether rule 30.05(3) of the Rules of the Ontario Court of Justice in Criminal Proceedings required notice from the Crown where it intended to rely on such evidence.

The court held that the rule’s clear wording required compliance and that routine Crown disclosure did not eliminate the need to give notice of the basis for opposing the Charter application.

Although the trial judge had discretion under rule 2 to waive compliance, there was no error in refusing to do so in the circumstances.

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

The Crown appealed a sentence imposing a 20-month conditional sentence for impaired driving causing death, arguing that the sentencing judge gave insufficient weight to denunciation and general deterrence and erred in finding community safety could be protected.

The majority held that the sentencing judge carefully considered the offender’s psychiatric history, long abstinence, remorse, support structure, treatment compliance, and the statutory requirements for a conditional sentence.

Applying the appellate deference principles later articulated in the Supreme Court’s conditional sentence jurisprudence, the majority found no error in principle and no demonstrable unfitness.

A dissenting judge would have allowed the appeal and imposed 20 months’ incarceration, emphasizing the gravity of impaired driving causing death and the need for stronger external controls and denunciatory effect.

Criminal appeals from convictions for conspiracy to commit robbery arising out of a series of planned and attempted armoured car robberies, together with sentence appeals concerning compensation orders and one custodial term.

The court rejected challenges to the trial judge’s Vetrovec instruction, the use of contextual evidence under the Carter conspiracy framework, the refusal to edit a prior manslaughter conviction, the handling of alleged threat evidence, the in-court identification ruling, and the claim that the verdict was unreasonable.

However, the court held that the jury was not properly instructed on the impermissible use of bad character and propensity evidence led against one appellant by a co-accused.

The appeal of one appellant was dismissed in full, while the other appellant’s conviction was set aside and a new trial ordered; the compensation order appeal was dismissed.

Appeal from a solicitor's negligence judgment arising out of two insurance litigation files handled for an insurer.

In the Little matter, the court upheld the finding that counsel negligently failed to alert the insurer to a coverage issue revealed on discovery and that, but for that failure, the insurer would likely have denied errors and omissions coverage based on material non-disclosure in the insurance application.

In the Uniroyal matter, the court held that the trial judge erred in interpreting pollution exclusion wording as clearly excluding groundwater contamination under a 1987 umbrella policy, with the result that the insurer still had a duty to defend and suffered no compensable loss from counsel's conduct.

The appeal was therefore dismissed in part and allowed in part, with a later addendum awarding the appellant trial costs of the Uniroyal matter.

The appellant appealed both conviction and sentence after a jury convicted him of forcible confinement and acquitted him of break and entry with intent to commit an indictable offence and attempted kidnapping.

The Court of Appeal rejected arguments based on inconsistent verdicts, the admission of prior convictions on a Corbett application, and the admission of reply evidence regarding travel arrangements.

On sentence, the court held that the trial judge erred by treating the case as involving a plan to kidnap despite the jury's verdict.

The original five-year penitentiary sentence was found to be outside the appropriate range and was replaced with a sentence of two years' imprisonment plus three years' probation.

The appellant appealed jury convictions for importing cocaine and possession of cocaine for the purpose of trafficking, and also appealed a five-year penitentiary sentence.

He argued errors in the restriction of cross-examination on voluntariness, Crown cross-examination concerning omissions in his statement, jury instructions regarding an admitted lie to police, and the denial of a Corbett application.

The court held that the Corbett ruling disclosed no error in principle and that, even assuming error on the remaining grounds, no substantial wrong or miscarriage of justice occurred given the strength of the circumstantial case and the improbability of the defence evidence.

The conviction appeal and sentence appeal were both dismissed.

The trustee appealed the dismissal of its application concerning a bankrupt's pending unjust dismissal award under the Canada Labour Code.

The court held that the unjust dismissal claim was property within the meaning of the Bankruptcy and Insolvency Act, and damages for lost wages could be characterized as wages, but the treatment of such compensation was governed by s. 68 rather than automatic vesting under ss. 67 and 71.

The court further held that the current version of s. 68 applied, that a trustee could invoke s. 68 after the bankrupt's discharge, and that failure to complete the s. 68 procedure did not bar interim protective relief.

The trustee was not entitled to intervene in the labour arbitration to pursue costs.

The appeal was allowed and the wage-related award was ordered paid into court pending determination under s. 68.

The appellant appealed a conviction for assault causing bodily harm arising from multiple fractures suffered by his two-month-old child.

He argued that the trial judge misapprehended the medical and timing evidence and that, at most, the facts supported criminal negligence causing bodily harm because parental implied consent to caregiving force had not been vitiated.

The court rejected both arguments, holding there was evidence supporting the finding that the appellant caused the injuries within the charged period and that the force used was not for legitimate caregiving purposes and was, in any event, clearly excessive.

The court held that implied parental consent is strictly limited to force used for the child's care and within ordinary parental norms.

The conviction was affirmed.

The appellant appealed an order setting aside a civil jury verdict and directing a new trial after the trial judge concluded there was no evidence to support the jury's finding.

The dispute arose from a creditor's claim, authorized under s. 38 of the Bankruptcy and Insolvency Act, to recover from settlement proceeds allegedly attributable to the respondent's pre-bankruptcy wage loss claim in motor vehicle litigation.

The Court of Appeal held there was some evidence from which the jury could infer that part of the settlement compensated pre-bankruptcy income loss, such that the trial judge erred in invoking the 'no evidence' rule under Rule 52.08(1)(c).

The appeal was allowed, judgment was entered for the appellant, and the respondent's cross-appeal was dismissed.

The appellant appealed an order staying his defamation action against a school board and related individuals.

The Court of Appeal held the essential character of the claim arose from disciplinary and termination-related matters governed by a collective agreement containing grievance and binding arbitration provisions.

Applying the labour arbitration exclusivity jurisprudence, the court found the appellant could not avoid arbitral jurisdiction by framing the claim as defamation.

The constitutional argument under s.96 was also rejected, and the appeal was dismissed.

This appeal arose from a cottage purchase involving an alleged septic system defect and a warranty that the system had operated satisfactorily and, to the best of the vendors’ knowledge, was installed according to local health authority requirements.

The court upheld the trial judge’s finding that there was no breach of warranty and no negligence by the real estate brokerage in failing to obtain or draft a broader warranty.

The court allowed the solicitor’s appeal, holding that where counsel is retained after a binding agreement of purchase and sale has been signed, there was no duty on these facts to advise the purchaser to attempt to negotiate a price abatement for a concluded deal.

The claim against the solicitor was dismissed, and the purchaser’s appeal against the other respondents was dismissed.

The appellant, a Minnesota resident injured in an Ontario motor vehicle accident, sued her Minnesota insurer in Ontario for statutory accident benefits.

The appeal turned on the effect of a power of attorney and undertaking signed under the reciprocal interjurisdictional automobile insurance scheme.

The Court of Appeal held that the undertaking required the insurer to accept service and appear in Ontario, and that the motions judge erred by failing to give effect to that agreement when granting a stay on forum non conveniens grounds.

Because a stay could deprive the appellant of the juridical advantage of Ontario statutory accident benefits, the stay was set aside and the appeal allowed.

The appellant challenged an order requiring it, as an income source for a support payor, to remit support enforcement funds to the respondent.

The appellant accepted that the evidentiary findings against it were supported but argued that the court should nonetheless have made a reasonable estimate of income despite missing disclosure.

The Court of Appeal held that, given the appellant's knowledge of the substantial claim and its failure to produce documents that could resolve the dispute, the judge was entitled to draw an adverse inference and accept the amount claimed.

The appeal was dismissed with costs.

The appellants challenged a substantial personal injury judgment arising from an automobile accident involving catastrophic injuries, including findings on liability, future care, damages, and costs.

The Court of Appeal held that, apart from the statutory issue under s. 116 of the Courts of Justice Act and costs, the appeal was an impermissible attempt to re-try fact-driven issues and adopted the trial judge’s reasons.

On the s. 116 issue, the court held that periodic payments could only be ordered in relation to the award as calculated, and the provision did not authorize the appellants’ proposed item-by-item structured annuity that would reduce the present value award.

The court also declined to interfere with the trial judge’s discretionary costs ruling.

The appeal was dismissed with costs.