Karen M. Weiler

The appellant trustee appealed the dismissal of an application seeking approval of three proposed assignees of leased commercial premises under s. 38(2) of the Commercial Tenancies Act.

The proposed assignees were newly incorporated numbered companies created to hold individual leases after the trustee sold the bankrupt’s assets to a related purchaser controlled by an established gas retail operator.

The court held that, although backing and guarantees from related corporations may in principle be considered when assessing a corporate assignee’s fitness, the landlords were entitled to look to the named tenants as the primary obligors under the leases.

On the evidentiary record, the motions judge was entitled to conclude that the assignees were shell corporations designed to insulate the real operators from liability and were therefore not fit and proper persons.

The appeal was dismissed with costs.

The appellants appealed an order striking their third-party claim for contribution and indemnity against a securities dealer after the respondents commenced a second action alleging damages attributable to the appellants' negligence in the loss of share certificates.

The court held that, because the statement of claim expressly limited damages to the portion attributable to the appellants' negligence, there was no basis for a claim-over under the Negligence Act or under rule 29.01.

The court also upheld the refusal to preserve the third-party claim for declaratory relief, finding no prejudice and noting the appellants were not pursuing such relief on appeal.

The appeal was dismissed with costs, rendering the cross-appeal moot.

The appellant, a catastrophically brain-injured motor vehicle accident victim, appealed the dismissal of claims for caregiver benefits and declaratory relief under the pre-1994 Statutory Accident Benefits Schedule, while the insurer cross-appealed on accident-benefits priority against another insurer.

The majority held that s. 7(1)(a) required an incurred reasonable cost for a professional caregiver and did not compensate unpaid care provided by family members; it also refused declaratory relief concerning a future care plan as premature and insufficiently concrete.

On the cross-appeal, the court held that a dishonest broker who issued fraudulent pink slips had neither actual nor apparent authority to bind the proposed insurer, which had made no representation capable of grounding ostensible authority.

A partial dissent would have interpreted the Schedule purposively to permit compensation for family-provided care and would have granted declaratory relief.

The appellants challenged the dismissal of their claim for consequential and punitive damages arising from an insurer's delay in paying fire insurance proceeds to mortgagees after hotel fire losses.

The court held that the insurer's duty of good faith requires prompt and fair handling of claims, but rejected the argument that Statutory Condition 12 of the Insurance Act imposes an absolute 60-day payment obligation giving rise to consequential damages whenever a claim ultimately succeeds.

Although the court found a limited breach of good faith in failing to pay at least 50 percent of the amount claimed once the insurer relied only on a co-insurance position, the appellants failed to prove any resulting loss beyond interest already paid.

Punitive damages were also unavailable because no compensable damage flowed from the bad faith breach and the conduct was not sufficiently harsh or malicious.

The appellant challenged a deficiency judgment arising from repossession and sale of a replacement boat delivered after the original financed boat proved deficient.

The Court of Appeal held that the replacement vessel was not "proceeds" within the meaning of the Personal Property Security Act, but concluded that the parties, by their conduct over several years, modified the original conditional sale contract so that it applied to the replacement boat.

As a result, the secured creditor was entitled to repossess the replacement boat after default and sue for the deficiency.

The appeal was dismissed with costs.

The appellant appealed an order striking part of its statement of claim that sought a declaration that the respondent airport authority lacked jurisdiction to impose fees and charges on airport users.

The court held it was unnecessary to resolve the pleaded delegation and Crown-operation issues because the respondent's authority arose from its leasehold interest and corporate capacity, as recognized by the applicable federal legislation and regulations.

The court further held Parliament did not intend to create a complete code restricting airport user charges to those set by ministerial regulation.

The appeal was dismissed with costs.

This appeal concerned a priority dispute under the Personal Property Security Act arising from refinancing of a printing press subject to a lease with an option to purchase.

The appellant bank discharged the original lender's security, enabling the debtor to obtain legal title, and then took its own security interest.

The court held that this financing enabled the debtor to acquire further rights in the collateral and therefore satisfied the statutory definition of a purchase-money security interest.

Because the statutory conditions for priority were met, the appellant's security interest ranked ahead of the respondent's earlier perfected general security agreement.

The appeal was allowed and priority declared in favour of the appellant.

The appellant challenged arson-related convictions arising from a house fire prosecuted entirely on circumstantial evidence, arguing among other things that the trial judge reversed the burden of proof by using the Hodge's case formulation to test the defence explanation for the fire.

The court held that the trial judge improperly required the accused to provide a reasonable explanation based on proven facts, rather than asking whether the Crown had proved guilt beyond a reasonable doubt.

That error required the convictions to be set aside and a new trial ordered.

Fresh evidence relating to the trial judge's earlier involvement in family proceedings was admitted but found insufficient to establish a reasonable apprehension of bias.

On an appeal from summary judgment dismissing a corporate appellant's crossclaim against a transfer agent, the court rejected the argument that the transfer agent breached either a statutory due diligence duty under s. 91(1) of the Ontario Business Corporations Act or a common law duty by issuing a share certificate after raising concerns with inside counsel.

The court held the respondent had acted in good faith and had not failed in its duty.

The appeal succeeded only to the extent of narrowing an indemnity order as premature and overly broad, limiting contribution and indemnity to the contractual provision and striking a further paragraph of the order.

Costs were awarded to the respondent on a party-and-party basis.

The appellant appealed convictions for sexual offences arising from allegations by his stepdaughter following a judge-and-jury trial.

The Court of Appeal held that Crown counsel repeatedly breached the duty of fairness by personalizing the prosecution, misstating the appellant's evidence, engaging in improper and sarcastic cross-examination, and reading a misleading excerpt from Supreme Court of Canada authority to the jury.

The trial judge compounded the unfairness by repeating an inaccurate version of the appellant's evidence and failing to correct the improprieties.

The cumulative prejudice deprived the appellant of a fair trial.

A new trial was ordered.

Criminal appeal arising from a conviction for criminal negligence causing death following a police shooting during a land claim protest.

The principal issue was whether the trial judge was required to hold a voir dire before permitting cross-examination on statements allegedly made by the accused to a superior officer, including whether that superior was a person in authority and whether the statements were voluntary.

A dissenting judge would have ordered a new trial, holding that the inquiry obligation was triggered and the curative proviso could not be applied.

The majority dismissed the conviction appeal, finding the absence of a voir dire caused no substantial wrong and did not affect the verdict; the mistrial appeal, fresh evidence motion, and Crown sentence appeal were also dismissed.

The appellants appealed the dismissal of their contractual claim under the S.E.F. 44 Family Protection Endorsement after they had agreed to limit recovery against the tortfeasor to the tortfeasor's policy limits.

The Court of Appeal held that, in a direct action against the insurer, the phrase 'legally entitled to recover' requires proof only that the inadequately insured motorist was at fault and that damages exceed the available limits.

The continued enforceability of the claim against the tortfeasor was held to be a non-issue, consistent with prior authority recognizing a direct contractual cause of action against the insurer.

The appeal was allowed, the Rule 21 answer was changed to 'No', and costs of the motion and appeal were awarded to the appellants.

In a labour appeal from a Divisional Court order quashing an arbitration award, the appellant union argued that the arbitration board had adequately resolved the retroactivity issue arising from the repeal of a statutory provision governing appointment to a provincial schools authority.

The majority of the Court of Appeal held that determination of retroactivity was essential to disposition of the grievance and that the board failed to address all relevant considerations.

The appeal was therefore dismissed and the matter remained remitted to the board for redetermination of retroactivity.

A dissent would have found the board's reasons, read as a whole, sufficient to decide the issue and would have reinstated the award.

The appellant, a young person, sought leave to appeal and appealed a summary conviction appeal decision upholding the constitutionality of the Criminal Code offence of being an occupant of a motor vehicle known to have been taken without the owner's consent.

The court held that the provision did not create liability for morally blameless conduct because the Crown must prove knowledge beyond a reasonable doubt.

It further held that the summary conviction appeal court erred in treating s. 794(2) as applicable to the defence in s. 335(1.1), since that provision concerns exceptions and qualifications, not ordinary defences, which at most impose an evidentiary burden.

Leave to appeal was granted, the appeal was dismissed, and the matter was remitted to Youth Court for trial.

Three appellants challenged convictions for criminal harassment under s. 264 of the Criminal Code and two also appealed sentence.

The court rejected constitutional arguments that the provision was unconstitutionally vague, imposed impermissible constructive liability, or violated freedom of expression contrary to ss. 7 and 2(b) of the Charter.

The court also dismissed case-specific evidentiary, unreasonable verdict, indictment timing, and standard of proof arguments.

Leave to appeal sentence was granted to two appellants, but both sentence appeals were dismissed.

The appellant mortgagee appealed an order staying its action against one corporate respondent after a foreclosure action had been converted to one for judicial sale.

The court held that the consent order arising from the negotiations was clear and unequivocal, and did not result from mistaken intentions or a failure to reflect the parties' agreement.

The appellant knew it had to choose which defendant would be the subject of judgment and that consequences flowed from that choice.

By signing judgment against another defendant, the appellant's right to recover against the respondent corporation was terminated by s. 20(3) of the Mortgages Act.

The appeal was dismissed with costs.

The appellant appealed a jury conviction for aggravated assault arising from a violent neighbour dispute involving an iron bar.

The main issue was whether the trial judge properly instructed the jury on self-defence.

The Court of Appeal held that, although the trial judge charged the jury under s. 34(1) of the Criminal Code, the evidence also required an instruction under s. 34(2) because the appellant's version raised a reasonable apprehension of death or grievous bodily harm.

The court further held that the jury should have been told that a mistaken belief about the degree of danger could still support the defence if based on reasonable grounds.

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

The Crown appealed an order staying historic sexual offence charges on the basis that the respondent could not make full answer and defence because key potential defence witnesses were dead or unavailable after several decades.

The court reviewed the trial judge's application of the abuse of process and fundamental justice framework under ss. 7, 11(d), and 24(1) of the Charter.

It held that the trial judge properly assessed the affidavit evidence concerning missing Children's Aid Society and foster home personnel and committed no error in law.

The appeal was dismissed and the stay remained in place.

The appellants challenged a trial judgment awarding damages for breach of a woodcutting contract after they removed the respondent from their property.

The central issue was whether the contract required selective cutting of cedar trees or permitted clear cutting, and whether extrinsic evidence could be used to support the appellants' interpretation.

The court held that the written contract was clear, accepted evidence of trade custom as available to interpret the contract, and upheld the conclusion that selective cutting applied only to hardwood and softwood trees.

The refusal to consider parol evidence on the appellants' defences was not erroneous, the damages award was reasonable, and the appeal was dismissed with costs.

The trustee in bankruptcy appealed an order setting aside its disallowance of a secured claim based on an alleged purchase money security interest.

The court held that the general curative provision in s. 9(2) of the Personal Property Security Act cannot override the specific attachment requirements in s. 11, including the requirement that the debtor sign the security agreement.

A complete absence of execution is not a defect or omission curable under s. 9(2).

The respondent's claimed security interest was therefore not effective against the trustee.