Kathryn N. Feldman

The appellants appealed an order confirming a deputy registrar's findings regarding the accounting of clinic funds, including OHIP billings and bank loans.

The Court of Appeal dismissed the appeal, finding that the deputy registrar's conclusions were supported by the evidence and authorized by the clarification order.

The appellants appealed a judgment enforcing a settlement under Rule 49.09 of the Rules of Civil Procedure.

The Court of Appeal assumed jurisdiction on consent of counsel but dismissed the appeal, finding the motion judge had jurisdiction and made no error in exercising his discretion.

The parties are neighbours who share a mutual easement for repair over a four-foot strip between their houses.

The appellants built a fence entirely on their own property, which restricted access to the easement from the front to about 26 inches.

The respondents successfully applied for an injunction to remove the fence, arguing it obstructed their use of the easement for equipment like a wheelbarrow.

On appeal, the Court of Appeal allowed the appeal, holding that the easement did not include an ancillary right to cross the appellants' unencumbered property.

Because the fence was built entirely on the appellants' own property and not on the easement itself, it could not constitute an obstruction in law.

The union brought a motion for leave to appeal an order that amended a receivership order to protect the receiver from successor employer status and denied the union leave to proceed against the receiver before the Ontario Labour Relations Board.

The Court of Appeal granted leave to appeal, finding that the legal issues regarding the relationship between bankruptcy courts and labour boards, and the status of a receiver as a successor employer, were significant to commercial practice and warranted consideration by the appellate court.

The plaintiff brought a motion to have the defendant's appeal and the plaintiff's cross-appeal heard together in the Court of Appeal.

The defendant had appealed only the $16,750 punitive damages portion of a $148,143.50 judgment to the Divisional Court.

The Court of Appeal held that under s. 19(1)(a) of the Courts of Justice Act, jurisdiction turns on the total amount of the final order, not the amount in issue on the appeal.

Because the final order exceeded $25,000, the appeal and cross-appeal were properly brought to the Court of Appeal.

The respondent, whose murder conviction was overturned and a new trial ordered, applied for judicial interim release.

The Crown brought a motion seeking direction on whether the Court of Appeal had jurisdiction under s. 679(7.1) of the Criminal Code to hear the bail application after the respondent had already appeared in the Superior Court.

The Court of Appeal held that it has concurrent jurisdiction with the trial court over bail applications pending a new trial, even after the accused's first appearance in the trial court.

However, given the anticipated length and need for viva voce evidence, the Court declined to hear the application and directed that it be heard in the Superior Court.

The appellant appealed a sentence imposed by the trial judge, who had departed from a joint submission by refusing to grant credit for pre-trial custody due to the appellant's criminal record.

The Court of Appeal held that the trial judge erred in law, as the proposed sentence in the joint submission was not contrary to the public interest and would not bring the administration of justice into disrepute.

The appeal was allowed, and the sentence was varied to three years minus 106 days of pre-trial custody credit.

The Crown appealed the sentence imposed on the respondent for a home invasion and an assault on a taxi driver.

The Court of Appeal found the sentence for the home invasion was fit, but agreed with the Crown that the six-month sentence for the unrelated assault on the taxi driver should be served consecutively.

The appeal was allowed to make the sentences consecutive.

The appellant appealed a disposition by the Ontario Review Board ordering her detention pursuant to section 672.54(c) of the Criminal Code.

The Board had found that the appellant posed a significant threat to public safety, and evidence showed her conduct had deteriorated while in hospital and the community.

The Court of Appeal dismissed the appeal, finding ample evidence to support the Board's conclusion that a detention order was the least onerous and least restrictive disposition.

The Crown appealed a trial judge's decision to stay two charges of sexual interference due to a 31-month delay between the accused's arrest and the proposed trial date.

The trial judge had attributed delays caused by the defence's difficulties in serving third-party record materials to systemic or Crown delay.

The Court of Appeal found that the trial judge erred in this characterization, determining that approximately 15 months of the delay should not be attributed to the Crown.

The remaining 16 months of systemic delay fell within the acceptable range for matters in the Superior Court of Justice.

The appeal was allowed and the stay of proceedings was set aside.

The appellant appealed his conviction and sentence.

The Court of Appeal dismissed the conviction appeal, finding that the trial judge did not misapprehend the strong circumstantial evidence and was entitled to reject the defence's evidence.

The sentence appeal was also dismissed, as the sentence fell within the appropriate range and the appellant's good behaviour on bail did not warrant interference.

The appellant husband was seriously injured in a motor vehicle accident, rendering him unable to continue providing caregiving services to his wife, who suffered from a pre-existing medical condition.

The husband elected to receive income replacement benefits rather than caregiver benefits under the Statutory Accident Benefits Schedule.

The wife brought a derivative claim under s. 61 of the Family Law Act for the cost of hiring a substitute caregiver.

The Court of Appeal held that the substitute caregiver expenses were not 'health care' expenses under the Insurance Act, meaning the defendants were not protected from liability.

Furthermore, the court held that the wife's claim was her own statutory cause of action and was not barred by her husband's election of benefits.

The Canadian Imperial Bank of Commerce appealed a trial judgment setting aside postponement agreements that had elevated its mortgage to first priority over Maple Valley Acres Limited's mortgages.

The trial judge found the agreements were induced by a misrepresentation made by a sub-agent acting within the scope of his authority for the Bank.

The Court of Appeal upheld the trial judge's findings, confirming the rescission of the agreements and the restoration of mortgage priorities based on misrepresentation and unjust enrichment.

The Court also upheld a Sanderson costs order against the Bank but allowed a cross-appeal by third-party solicitors who had been improperly denied their costs at trial.

The appellants appealed a finding of liability in a medical malpractice case, seeking to introduce fresh evidence that the respondent's trial expert witness had subsequently pleaded no contest to professional misconduct.

The Court of Appeal declined to decide whether to admit the fresh evidence, finding that even without the expert's testimony, the other evidence on record—including the respondent's own testimony and other medical evidence—supported the trial judge's conclusions on causation and informed consent.

The appellants called no evidence at trial to refute this.

The court also upheld the quantum of damages and dismissed the appeal with costs.

The Crown sought a review of an order granting judicial interim release to a 17-year-old charged with first degree murder.

The motion judge had considered the youth's detention conditions, including the lack of a local youth facility and the resulting impairment of his ability to instruct counsel, under the tertiary grounds for bail.

The Court of Appeal confirmed the release order, holding that detention conditions can be a relevant consideration when assessing whether detention is necessary to maintain confidence in the administration of justice.

The appellant appealed an order dismissing its action for delay.

The Court of Appeal found that the motions judge erred in principle in finding prejudice due to inexcusable delay, as the prejudice alleged was general in nature and there was no evidence of missing or incapacitated witnesses.

The appeal was allowed and the order set aside, but without prejudice to the respondent to move again if the appellant failed to answer undertakings within thirty days.

Costs of the appeal and motion were awarded to the respondent.

The Liquidator of the Christian Brothers of Ireland in Canada appealed a motions judge's refusal to approve a $495,495 premium on the legal fees of its counsel, WeirFoulds LLP.

The law firm had acted on a contingency-like basis when the estate became insolvent, successfully recovering $19 million for the estate to compensate victims of child abuse.

The Court of Appeal allowed the appeal, finding that the motions judge erred by failing to consider the significant financial risk assumed by the law firm, the Liquidator's business decision to approve the premium, and the non-opposition of the victims' representative counsel.

The premium was deemed reasonable and approved in full.

The appellant was convicted of first degree murder after DNA evidence linked him to the 1986 killing of an eleven-year-old girl.

On appeal, he argued that his right to silence under section 7 of the Charter was violated during an eight-hour police interview following his arrest, and that his statements should have been excluded under section 24(2).

The Court of Appeal dismissed the appeal, upholding the trial judge's finding that the appellant had an operating mind, understood his rights, and made a strategic choice to speak to the police rather than exercising his right to silence.

The Crown appealed a stay of proceedings granted by the trial judge on the basis that a 61.5-month delay from the date of arrest to the trial date violated the respondent's right to be tried within a reasonable time under s. 11(b) of the Charter.

The Court of Appeal found that the delay, particularly the 16 months taken to complete the preliminary inquiry, was clearly unacceptable.

The court emphasized the duty of all participants to recognize when a case is in jeopardy of a s. 11(b) violation and to take proactive steps to expedite the proceedings.

The appeal was dismissed.

The appellant appealed a spousal support order, arguing the trial judge relied on an erroneous income figure from a Support Mate calculation entered on consent.

The Court of Appeal agreed, finding the error patent on the face of the record, as the appellant's actual employment income was $10,026 per year, not $16,500.

The court varied the spousal support to $400 a month to equalize the parties' net disposable income, declining to depart from the equalization approach due to an inadequate evidentiary basis.