Kathryn N. Feldman

This is an appeal from a Superior Court decision.

The appellants sought to appeal an order of Justice Edward M. Morgan dated June 6, 2018.

The respondents were successful on the appeal.

The court determined costs payable to the successful respondents.

The appellant employer appealed the dismissal of its motion for summary judgment seeking to enforce a release signed by the respondent employee upon his dismissal.

The release purported to waive any claim for long-term disability benefits.

The motion judge found the release unconscionable and unenforceable as it related to the long-term disability claim.

The Court of Appeal allowed the appeal, finding that the motion judge erred in determining unconscionability on summary judgment.

The court held that the issue of unconscionability and enforceability of the release was a genuine issue requiring trial determination.

The appellant, a former General Manager and Vice President of the respondent's Construction and Mining Technique division, was convicted of fraud over $5,000 following a jury trial.

The sentencing judge found that the appellant's participation in a fraudulent scheme involving inflated invoices constituted a gross breach of fiduciary duty.

The respondent subsequently moved for summary judgment in its civil action for breach of fiduciary duty, seeking $20 million in damages.

The motion judge granted summary judgment relying solely on the sentencing judge's findings.

The appellant appealed, arguing that the motion judge erred in granting summary judgment based on findings made under s. 724(2)(b) of the Criminal Code that were not express or implied in the jury's verdict.

The appellants made a one-million-dollar charitable donation to a mental health hospital for a designated workplace mental health program over three years.

When dissatisfied with the program's progress and reporting, the donor sought an investigation by the Public Guardian and Trustee under the Charities Accounting Act.

The motion judge dismissed the application, finding no evidence of mismanagement or misuse of funds.

The Court of Appeal upheld this decision, finding no error in the motion judge's findings that the funds were properly spent on the designated program and that no public interest was served by ordering an investigation.

The appellant appealed a motion judge's decision dismissing his action in the Ontario Superior Court on the basis that the Canada Industrial Relations Board has exclusive jurisdiction over his claim.

The appellant sought redress for union disciplinary actions taken against him following his allegations of financial and procedural improprieties within the union.

The Court of Appeal upheld the motion judge's decision, finding that the essential character of the claim fell within the exclusive jurisdiction of the Canada Industrial Relations Board under the Canada Labour Code.

The appellant appealed a motion judge's decision dismissing her negligence action as statute-barred under the Limitations Act, 2002.

The appellant was injured by a physiotherapist on August 12, 2011, but did not know his correct name at the time.

The motion judge found that the appellant could have reasonably discovered the physiotherapist's identity through due diligence more than two years before commencing the action.

The Court of Appeal upheld this decision, finding no error in the motion judge's conclusion that the appellant failed to exercise reasonable diligence, particularly after receiving a July 25, 2012 letter from Toronto Poly Clinic indicating that no one from that clinic had treated her on the date in question.

The appeal was dismissed with costs awarded to the respondent.

The appellant appealed a summary judgment dismissing his action against his own motor vehicle liability insurer for uninsured or unidentified automobile coverage.

The appellant was struck from behind in a motor vehicle accident and argued that if the jury found neither of the two identified drivers liable at trial, he should be able to recover under the uninsured/unidentified automobile coverage.

The Court of Appeal upheld the dismissal, finding that there was no unidentified automobile involved in the accident and that the sole question at trial would be which, if either, of the two known vehicles or drivers was legally responsible.

Appeal from a trial judgment in a neighbour dispute involving counterclaims for nuisance and invasion of privacy.

The trial judge found that the respondents' use of video cameras did not constitute nuisance or invasion of privacy, and that the appellant's conduct amounted to nuisance.

The appellant, acting in person, challenged the trial judge's findings on multiple grounds, including credibility determinations and allegations of bias.

The Court of Appeal upheld the trial judgment in all respects.

The appellant appealed a summary judgment granted by the Superior Court of Justice.

The appellant's counsel withdrew one month prior to the appeal hearing, and the appellant requested an adjournment to retain new counsel.

The Court of Appeal denied the adjournment request, finding no basis to grant it.

The respondent argued the appeal lacked merit, noting that the summary judgment was granted after the appellant failed to comply with court-ordered indulgences regarding payment of costs and filing of material, and that the material would not have raised a genuine issue for trial.

The appeal was dismissed with costs.

The appellant was convicted of sexual assault under s. 271 of the Criminal Code.

The complainant was heavily intoxicated and could not recall the events.

The trial judge found the complainant incapable of consenting due to intoxication and rejected the appellant's defence of honest but mistaken belief in consent, finding he had not taken reasonable steps to determine consent.

The Court of Appeal dismissed the conviction appeal, finding the trial judge properly applied the law despite some evidentiary misapprehensions that did not affect the verdict.

The appellant appealed a summary judgment dismissal of her negligence action against a lawyer and his law firm.

The appellant alleged the respondent lawyer negligently counselled her to accept an improvident settlement of a motor vehicle accident tort claim and failed to report two other settlements to the Ontario Disability Support Program.

The motion judge found the settlement was not improvident but rather favourable to the appellant and in her best interests, and found no negligence in the failure to report the settlements to ODSP.

The Court of Appeal found no error in the motion judge's conclusions and dismissed the appeal.

An appeal under Part XX.1 of the Criminal Code from a disposition of the Ontario Review Board dated April 10, 2018.

The appellant, found not criminally responsible on account of mental disorder for possession of weapons dangerous, sought a conditional discharge or alternatively a new hearing.

The Board maintained a detention order in the general forensic unit at the Centre for Addiction and Mental Health with relaxed reporting requirements.

The Court of Appeal found the Board's decision unreasonable due to inadequate reasons regarding whether the appellant's risk to the public could be managed under a conditional discharge.

The court directed the Board to reconsider the disposition at its next hearing with proper consideration of relevant factors, including mechanisms for securing attendance at hospital and the timing of any intervention.

The appellant appealed a Superior Court decision dismissing his application for certiorari to quash decisions by two Justices of the Peace who refused to issue process on private informations for fraud under $5,000.

The appellant had previously commenced a civil action against the same individuals, which was dismissed and settled.

The Justices of the Peace declined to issue process on various grounds, including lack of prima facie case, expiration of limitation periods, and absence of reasonable prospect of conviction.

The Court of Appeal dismissed the appeal, finding no jurisdictional error by either Justice of the Peace and noting that the Crown would have been duty-bound to withdraw any charges issued.

The appellant appealed from a motion judge's dismissal of his action seeking a declaration of adverse possession over part of the respondents' property.

The appellant contended that the motion judge failed to consider evidence of his predecessor in title's mistaken understanding regarding the boundary location.

The Court of Appeal found no error in the motion judge's conclusion that the predecessors had no intention to use the land to the exclusion of its true owner, based on the totality of evidence including the R-Plan filed in support of conversion to the Land Titles Act regime.

The court also rejected the appellant's assertion regarding an old fence creating a boundary, finding it unsupported by evidence.

The appellant appealed a decision by the motion judge upholding a default payment of $60,000 in a settlement agreement, arguing it was unconscionable.

The Court of Appeal found no error in the motion judge's thorough analysis and conclusion that the default payment was reasonable in the circumstances.

The appeal was dismissed with costs awarded to the respondent.

The appellant appealed her conviction for possession of cocaine for the purpose of trafficking.

She raised three grounds of appeal: (1) a Sekhon error regarding inadmissible expert evidence, (2) reversal of the onus of proof regarding personal use, and (3) an unreasonable verdict.

The Court of Appeal dismissed all grounds of appeal, finding that while the Crown expert offered some inadmissible anecdotal information, the expert's ultimate opinion was well-grounded in objective facts and the trial judge did not rely on the inadmissible evidence.

The court also found no reversal of the onus of proof, as the trial judge's conclusion was supported by the amount of cocaine, its value, and its form (pressed chunk rather than powder).

The verdict was reasonable based on ample evidence supporting the inference that possession was for trafficking purposes.

The appellant appealed convictions for sexual assault causing bodily harm and unlawful confinement following a judge-alone trial.

The Court of Appeal found that while the trial judge erred in admitting certain expert evidence regarding memory and stress-induced adrenaline, this error did not undermine the conviction for sexual assault causing bodily harm, which was supported by the appellant's own admissions regarding striking the complainant and tearing her underwear with intent to engage in sexual activity.

However, the Court of Appeal allowed the appeal regarding the unlawful confinement conviction, finding that the restraint was momentary rather than for a significant period of time, and that any confinement formed an integral part of the sexual assault, triggering the Kienapple principle against multiple convictions for the same conduct.

An appeal from an Ontario Review Board disposition dated February 1, 2018, ordering the appellant's detention subject to conditions.

The appeal became moot when the Board issued a new disposition on January 14, 2019, before the appeal hearing.

The Court of Appeal declined to hear the moot appeal, applying the two-step analysis from Borowski v. Canada (Attorney General).

The court found no live controversy affecting the parties' rights and determined that the Borowski factors did not justify exercising discretion to hear the moot appeal.

The court indicated willingness to hear an appeal from the 2019 disposition at an early date.

The appellant appealed his conviction for theft from mail contrary to s. 356(3) of the Criminal Code.

Both the Crown and the appellant agreed that the guilty plea was uninformed because the appellant was not aware of the immigration consequences of a conviction for that offence.

The parties agreed that had the appellant been fully informed, he would have pled guilty to the lesser included offence of theft under $5,000 contrary to s. 334(b) of the Criminal Code.

On consent, the appeal was dismissed, the conviction for theft from mail was set aside, and a conviction for theft under $5,000 was substituted.

The sentence remained unchanged and had already been served.

The respondent appealed a motion judge's refusal to recuse himself from determining costs of a prior motion.

The motion judge had made comments about the respondent's conduct that the respondent argued gave rise to a reasonable apprehension of bias.

The respondent sought to appeal the recusal order to the Court of Appeal.

The moving party brought a motion to quash the appeal for lack of jurisdiction, arguing the recusal order was interlocutory, not final.

The Court of Appeal granted the motion to quash, finding that the recusal order did not finally determine any substantive rights of the parties and was therefore interlocutory, appealable only to the Divisional Court with leave.

The court also quashed the motion for leave to appeal the costs order, as the amount involved ($25,000) fell below the Court of Appeal's monetary jurisdiction threshold.