Karen M. Weiler

The appellant hospital appealed a jury verdict finding it liable for medical malpractice resulting in an infant's permanent brain injury (cerebral palsy) due to oxygen deprivation during birth.

The jury found the attending nurse breached the standard of care by failing to use electronic foetal monitoring and failing to properly perform intermittent auscultation.

The Court of Appeal dismissed the appeal, holding that there was sufficient expert evidence to support the jury's findings on both the breach of the standard of care and causation, and that the verdict was not plainly unreasonable.

The self-represented appellant appealed his conviction and sentence.

The Court of Appeal found no error in the trial judge's reasons regarding guilt.

The court also noted that the sentence had already been served and was reasonable.

The appeal was dismissed.

The appellant appealed the Ontario Review Board's disposition ordering that he continue to be subject to a Conditional Discharge.

The Court of Appeal found that the Board made serious errors of law, as there was no positive evidence that the appellant continued to pose a significant threat to public safety.

The appellant had been living in the community for almost five years, adhered to his medication, and had the support of his treatment team for an absolute discharge.

The appeal was allowed, and the appellant was granted an absolute discharge.

The appellant appealed his conviction for possession of a restricted firearm with ammunition, arguing that the verdict was unreasonable.

The Court of Appeal dismissed the appeal, finding that the trial judge's inference that the appellant knew there was a gun in the car he was driving was logically consistent and reasonably supported by the totality of the evidence, including the time of day, the presence of latex gloves, and the fact that the gun was not hidden.

The appellant appealed his conviction and sentence for trafficking in cocaine.

He argued that the jury verdicts were inconsistent, the trial judge failed to properly instruct the jury on aiding and abetting, and the trial judge erred in finding he was not entrapped.

The Court of Appeal dismissed the conviction appeal, finding no errors in the jury instructions or the entrapment ruling.

The sentence appeal was also dismissed, as the 14-month sentence was fit and within the appropriate range.

The appellants appealed a judgment deciding a matter by way of application, arguing that disputed facts precluded this procedure.

The Court of Appeal dismissed the appeal, finding that while peripheral facts were disputed, the facts necessary to dispose of the application were not.

The court also granted leave to appeal the initial costs award, reducing it based on the proportionality principle, and awarded costs for the stay application and the appeal to the respondent.

Following the disposition of a motion for a stay pending appeal, the court awarded costs of the motion to the responding parties, fixed in the amount of $4,625.00 inclusive of disbursements and taxes.

The respondent insured was sued for negligent construction after selling a renovated apartment building.

The appellant insurer denied coverage and a duty to defend based on a policy exclusion for property damage to 'property owned' by the insured.

The motion judge found the insurer had a duty to defend because the word 'owned' could refer to the present tense, making the exclusion ambiguous.

The Court of Appeal dismissed the insurer's appeal, agreeing that the exclusion did not clearly and unambiguously exclude coverage.

The appellant appealed an order striking his statement of defence and granting default judgment to the respondent bank for failing to pay $3,000 in costs in a $7 million fraud action.

The Court of Appeal allowed the appeal, finding that the motions judge failed to consider the proportionality of striking the defence and the possibility of an adjournment, given the appellant was out of the country.

The orders striking the defence and granting default judgment were set aside.

The moving party (appellant) sought a stay pending appeal of an order removing notices it had registered on the responding parties' land.

The moving party claimed an interest in the land based on a contingent option to purchase in a Development Management Agreement.

The Court of Appeal dismissed the motion for a stay, finding no serious question to be tried because the option likely offended the rule against perpetuities, and the moving party failed to establish irreparable harm or that the balance of convenience favoured a stay.

The appellant was convicted of sexual assault following a jury trial.

During the trial, the appellant was excluded from the courtroom twice: once briefly during his own cross-examination, and again for the entirety of the pre-charge conference held in the trial judge's chambers.

On appeal, the appellant argued these exclusions violated his right to be present under s. 650(1) of the Criminal Code.

The Court of Appeal held that while the brief exclusion during cross-examination caused no prejudice and could be saved by the proviso in s. 686(1)(b)(iv), the exclusion from the entire pre-charge conference was a serious breach of the open court principle that impaired the appearance of fairness.

The proviso could not save this breach.

The appeal was allowed and a new trial ordered.

The appellant appealed his conviction, arguing that the trial judge failed to consider the violation of his s. 10(b) Charter right to counsel when assessing whether his s. 8 right was violated during the collection of a DNA sample.

He also argued that the s. 10(b) breach tainted his consent to provide the sample.

The Court of Appeal dismissed the appeal, finding that the trial judge implicitly considered the s. 10(b) violation under s. 24(2).

Furthermore, the appellant's signed waiver and consent, obtained after a reiteration of his right to counsel, broke the connection between the earlier s. 10(b) breach and the giving of the DNA sample.

The appellant was convicted by a jury of dangerous driving and flight from a pursuing police officer.

She appealed, arguing the trial judge misdirected the jury on the essential elements of the offences, provided inadequate answers to jury questions, and that the guilty verdict for dangerous driving was inconsistent with her acquittal for dangerous driving causing bodily harm.

The Court of Appeal dismissed the appeal, finding no errors in the jury instructions or responses to questions, and concluding that the verdicts were reasonably reconcilable on the evidence.

The youth appellant, who was unrepresented and mentally ill, pleaded guilty to break and enter with intent.

The Youth Court judge accepted the plea without a proper inquiry and subsequently found the appellant not criminally responsible (NCR) based on expert evidence that failed to address the legal test for criminal responsibility.

The Court of Appeal found fatal procedural errors, including the failure to ensure a valid plea, lack of evidence for the NCR verdict, and denial of trial fairness.

The appeal was allowed, the NCR verdict set aside, and based on the appellant's fresh acknowledgement of guilt, a conviction was entered with a sentence of one day's imprisonment.

The appellant appealed a motion judge's discretionary decision to dismiss his action for delay at a status hearing.

The Court of Appeal found no basis to interfere, noting the appellant failed to provide an acceptable explanation for the delay or demonstrate an absence of prejudice to the respondent regarding his claim for long-term disability benefits.

The appeal was dismissed, and leave to appeal the costs award was denied.

The insurer appealed an application judge's decision declaring it had a duty to defend the insureds (a mother and her son) in two actions arising from a motor vehicle accident.

The son, a G2 driver, had a blood alcohol concentration greater than zero at the time of the accident, prima facie contravening s. 6(1) of O. Reg. 340/94.

The insurer denied coverage based on a statutory condition prohibiting operation by an unauthorized driver.

The Court of Appeal dismissed the appeal, upholding the application judge's findings that s. 6(1) is a strict liability offence, that the son had a reasonable belief his blood alcohol was zero after sleeping for several hours, and that the mother did not know or ought to have known her son was unauthorized to drive when she permitted him to use her vehicle.

The appellant appealed an order regarding the adequacy of pleadings and whether the respondent was immune from suit.

The Court of Appeal noted that pending judicial review applications in the Divisional Court raised many of the same procedural errors alleged in the pleadings.

The Court adjourned the appeal to await the Divisional Court's decision, as it could impact whether the appellant's pleading could survive based on issue estoppel or res judicata.

The appellants appealed an order of the Superior Court of Justice.

The Court of Appeal found no reversible error in the motion judge's exercise of discretion and dismissed the appeal, awarding costs of $5,000 to the respondents.

The appellant appealed an order finding that the respondents were privies to a prior foreclosure proceeding against the elder Marinos.

The appellant argued the respondents were independent debtors without a community of interest.

The Court of Appeal agreed with the motion judge that the respondents were privies and that issue estoppel applied against the appellant, dismissing the appeal.

The moving party, a commercial tenant who built a store on the subject property, sought a stay of an order approving the sale and vesting of the property free and clear of its interests pending appeal.

The court granted the stay to preserve the status quo, finding the moving party would suffer irreparable harm if its appeal became moot.

To alleviate prejudice to the responding party mortgagee, the moving party was ordered to continue paying rent into trust and to deposit a $100,000 letter of credit.