Karen M. Weiler

The applicant sought to set aside the Registrar's dismissal of his appeal for delay and requested a 30-day extension of time to perfect his appeal from Superior Court orders dated June 11 and August 7, 2013.

Justice Cronk dismissed the motion and granted the respondent's cross-motion prohibiting the applicant from bringing further motions in the proceeding, except for a motion to a full panel to review Cronk J.A.'s decision.

This panel decision confirms Cronk J.A.'s order, finding no merit to the applicant's submissions regarding lack of competent jurisdiction or denial of due process.

This is a costs endorsement following an appeal decision released on May 8, 2017.

The appellants were successful on appeal and the cross-appeal was dismissed.

The appellants sought partial indemnity costs in the amount of $38,105.67, including disbursements and HST.

The respondent did not dispute the quantum but argued that no costs should be awarded or alternatively that costs should be left to the application judge or awarded in the cause.

The court awarded costs to the appellants in the full amount requested, applying the ordinary practice that the successful party on appeal receives reasonable, fair and proportionate partial indemnity costs.

The appellant was convicted of possession of child pornography under s. 163.1(4) of the Criminal Code based on 55 images found in the temporary Internet files on a shared computer.

The trial judge misapprehended expert evidence regarding how images are automatically cached in temporary Internet files, incorrectly concluding the appellant had deliberately downloaded the images.

The summary conviction appeal judge similarly misapprehended the evidence and dismissed the appeal.

The Court of Appeal granted leave to appeal and set aside the conviction, finding that accessing child pornography is not a lesser included offence of possession, and that amending the information to charge accessing would prejudice the appellant.

This appeal concerns whether a partial stay of proceedings should be granted in favour of arbitration in a class action involving both consumer and non-consumer claims against TELUS Mobility for alleged undisclosed billing practices (rounding up calls to the next minute).

The appellants argued that the motions judge erred in refusing to stay the non-consumer claims pursuant to section 7(5) of the Arbitration Act, 1991.

The appellants contended that the Court of Appeal's decision in Griffin v. Dell Canada Inc. had been overtaken by the Supreme Court's decision in Seidel v. TELUS Communications Inc. The Court of Appeal dismissed the appeal, holding that Griffin remains binding authority in Ontario and has not been overtaken by Seidel, as the two cases were decided in materially different legislative contexts.

A minor plaintiff catastrophically injured in a motor vehicle accident in 2007 sought to add a municipality as a defendant in 2015.

The municipality argued the claim was statute-barred under the Limitations Act, 2002 and that notice was not given within the required ten-day period under the Municipal Act, 2001.

The motion judge allowed the amendment.

On appeal, the Court of Appeal held that while the two-year limitation period did not bar the claim (as it began running when the mother held herself out as litigation guardian in June 2014), the ten-day notice requirement was not satisfied.

The mother, as litigation guardian, had no reasonable excuse for failing to give notice within ten days of the accident, and the claim against the municipality was therefore barred.

An appellant found not criminally responsible on account of mental disorder for criminal harassment appealed the Ontario Review Board's disposition that he constituted a significant threat to public safety and should be transferred between secure forensic units.

The appellant had been detained in the mental health system for over ten years.

Fresh evidence from the appellant's treating psychiatrist and a clinical forensic psychologist using a stalking-specific risk assessment tool concluded the appellant no longer posed a significant threat and was entitled to an absolute discharge.

The majority allowed the appeal and remitted the matter to the Board for fresh determination.

The dissenting judge would have granted an absolute discharge directly, finding the fresh evidence uncontradicted and unequivocal.

The appellants appealed an application judge's order declaring an Order to Remedy Unsafe Building null, void, and inoperative.

The respondent cross-appealed seeking an interim injunction to prevent demolition and a declaration that the building was not unsafe.

The Court of Appeal found that the application judge made two errors: first, in finding that service of the Order to Remedy was defective when it was properly served on the owner by registered mail in compliance with the Building Code Act; and second, in finding that the Order to Remedy lacked the required specificity.

The Court held that the Order to Remedy contained sufficient particularity to enable the respondent to understand the case it had to meet and the deficiencies requiring remediation.

The appeal was allowed, the cross-appeal dismissed, and the issues of interim injunction and whether the building was unsafe were remitted to another application judge.

The appellant appealed her conviction on multiple counts including fraud over $5,000, personating a police officer, transferring proceeds of crime, and criminal organization offences.

She also appealed her sentence of 32 months' imprisonment plus a fine of $225,400 or three years' imprisonment in lieu.

The Court of Appeal upheld the conviction, finding no error in the trial judge's admission of expert evidence regarding proceeds of crime and money laundering, no error in the jury charge on circumstantial evidence, and no error in principle in the sentencing.

The trial judge properly extrapolated the amount of fraud from a four-day monitoring period.

The appellant appealed a disposition of the Ontario Review Board ordering his detention on a General Forensic Unit at the Centre for Addiction and Mental Health with the ability to live in community accommodation approved by the person in charge of CAMH.

The Court of Appeal upheld the Board's decision, finding that an absolute discharge was not appropriate given clear evidence that the appellant would stop taking medication, decompensate quickly, and engage in threatening and aggressive behaviour.

The court also rejected the argument that a conditional discharge was the least restrictive appropriate order, finding that the detention order with community living possibilities was reasonable given the appellant's homelessness and ongoing risk of harm.

A police officer was convicted of 46 offences related to fraud, making false documents, breach of trust, and obstruction of justice arising from nine fraudulent motor vehicle accident reports prepared in 2010 that resulted in insurers paying over $1,000,000 in claims.

The appellant conceded the actus reus but contested whether he was a knowing participant in the fraud scheme.

The trial judge found he was and convicted him on all but six counts, imposing a five-year sentence.

On appeal, the appellant challenged the conviction on grounds of impermissible speculation, the application of the Kienapple principle, and the fitness of the sentence.

The Court of Appeal dismissed all grounds of appeal.

The appellants appealed the dismissal of their motion to set aside a noting in default and default judgment obtained by the respondent in an action for payment of outstanding invoices for subcontractor work.

The Court of Appeal found that the Registrar lacked jurisdiction to sign judgment against the individual appellants for invoices billed to the corporate appellant, as the claims against them were for breach of trust and conversion, not for a debt or liquidated demand in money.

The court also found that the Registrar erred in awarding interest at 2% per month when this rate was not pleaded.

The motion judge applied the Kisel criteria too rigidly and failed to consider whether justice required the action to proceed on its merits.

The appellants had arguable defences and the respondent suffered no prejudice from setting aside the judgment.

This is an amended endorsement from the Court of Appeal for Ontario modifying a prior costs award.

The appellants requested an increase to the costs awarded in the court's endorsement of April 21, 2017, with the respondent not opposing the modification.

The court increased the costs awarded to the appellants to $8,500 for fees plus $1,539 for disbursements plus HST.

The appellant appealed the dismissal of its motion to stay the respondents' counterclaim on grounds of lack of jurisdiction, forum non conveniens, and an arbitration clause.

The motion judge found two presumptive connecting factors establishing Ontario's jurisdiction: the tort of fraudulent misrepresentation was committed in Ontario, and the contract was made in Ontario.

The motion judge also determined that the arbitration clause in a draft agreement was never agreed upon by the parties and therefore did not oust Ontario's jurisdiction.

The Court of Appeal upheld the motion judge's decision, finding no error in the factual findings or legal conclusions.

A partner in a national accounting firm was called into a meeting and told to retire after 22 years of partnership.

The firm later invoked a partnership agreement provision allowing the policy board to request a partner's resignation if it unanimously determined it was in the partnership's best interest.

The partner sued for breach of the partnership agreement.

The motion judge granted summary judgment, finding that the firm breached the agreement because the policy board did not make an independent determination based on evidence, and the decision was predetermined by the CEO.

The court awarded expectation damages for lost profits and retirement benefits, plus aggravated damages for reputational harm.

The firm appealed, but the appeal was dismissed.

The appellant appealed his conviction on several drug trafficking charges arising from Project Dolphin, a joint forces investigation into drug trafficking in Thunder Bay.

The central issue concerned the admissibility of evidence extracted from the appellant's Blackberry device, which was seized incident to an arrest that was later found to be arbitrary.

The trial judge found Charter breaches but admitted the evidence under section 24(2).

The Court of Appeal upheld the convictions, finding no error in the trial judge's application of the Grant framework for admissibility of constitutionally-tainted evidence.

The court also upheld the admission of hearsay evidence from a deceased co-conspirator and evidence from a co-conspirator's guilty plea under the co-conspirators' exception to the hearsay rule.

This is a costs decision supplementary to the Court of Appeal's February 3, 2017 judgment allowing in part an appeal from an application judge's order regarding spousal support and insurance benefits.

The appellant sought to set aside the application judge's costs award to the respondent and obtain costs for both the application and appeal.

The respondent sought to maintain the costs award and obtain additional costs for the appeal.

The Court of Appeal found that unusual circumstances existed because the appropriate reduction to the respondent's obligations remained open for determination by another application judge, warranting a departure from the general principle that the successful party on appeal receives costs below.

The Court reserved costs of the application and any further application to the application judge and awarded the appellant costs of the appeal in the amount of $13,000.

The appellant was convicted of arson under sections 433 and 434 of the Criminal Code for deliberately setting fire to his two-storey building in Espanola with the intent to collect insurance proceeds.

The Crown's case relied on evidence of motive, planning, preparation, forensic evidence linking the appellant to the fire, and testimony from a disreputable witness who was likely an accomplice.

The appellant appealed on four grounds: that the trial judge improperly used neutral evidence to confirm the accomplice's account, misused the appellant's exculpatory statements as evidence of guilt, improperly excluded relevant evidence through misapplication of the collateral fact rule, and engaged in speculative reasoning inconsistent with the burden of proof.

The Court of Appeal dismissed the appeal, finding that while the trial judge made some errors, they were not material to the conviction given the overwhelming evidence of guilt.

The appellant was convicted of sexual assault for anally penetrating a 19-year-old co-worker at a workplace Christmas party without consent.

The trial judge sentenced him to nine months' imprisonment followed by two years' probation.

The appellant, a permanent resident of Canada, appealed on the basis that the sentence was unfit, particularly given that a sentence of six months or more would trigger immigration consequences under the Immigration and Refugee Protection Act, resulting in loss of the right to appeal a removal order.

The Court of Appeal dismissed the appeal, finding the sentence fit and holding that the trial judge did not err in first determining an appropriate sentence and then considering whether immigration consequences warranted reduction.

The appellants appealed a trial judgment awarding moral damages of $60,000 for breach of the implied contractual obligation of good faith in the manner of dismissal, along with general damages of ten months' salary in lieu of notice and $25,000 for sexual harassment under the Human Rights Code.

The appellants contended the moral damages award should be reduced to $20,000, arguing the trial judge considered irrelevant factors and that the award duplicated the sexual harassment damages.

The Court of Appeal dismissed the appeal, finding the trial judge properly considered the manner of dismissal holistically, including pre- and post-termination conduct that constituted bad faith.

The court held that moral damages and Human Rights Code damages serve different purposes and do not constitute double recovery.

The appellant appealed the dismissal of her application to set aside minutes of settlement in matrimonial proceedings.

The parties had been in a common-law relationship from 1985 to 1999 and had two adult children.

They lived in Canada, England, and Ireland before separating.

The appellant sought to set aside a 2006 settlement agreement on grounds of non-disclosure of assets, including a Spanish property and stock options.

The trial judge found that while the respondent had failed to disclose certain assets, the agreement was fair and the non-disclosure was not material to the appellant's decision to settle.

The Court of Appeal upheld the trial judge's decision, finding no palpable and overriding error of fact.