Kathryn N. Feldman

The appellant was convicted of second-degree murder in the drowning death of her four-year-old daughter.

On appeal, she argued the trial judge erred in admitting a paediatric pathologist's expert evidence regarding bruising and in failing to adequately instruct the jury on the included offence of manslaughter.

The Court of Appeal found no error in admitting the expert evidence but concluded the jury instructions on manslaughter were fatally flawed, as they failed to present the defence's perspective on the appellant's intent.

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

The appellant appealed the dismissal of his motion to set aside a consent order that had dismissed his action.

The original action sought the return of funds paid pursuant to a promise of marriage.

The parties had settled, but the appellant alleged the respondent failed to fulfill her obligations and committed fraud in entering the settlement.

The Court of Appeal dismissed the appeal, noting that the respondent had commenced a new action against the appellant, and all relief sought regarding the alleged breach of the settlement could be asserted in the appellant's counterclaim in that new action.

The Court of Appeal for Ontario issued an appeal book endorsement awarding costs to the respondent.

The respondent was awarded costs in the amount of $3,500, inclusive of GST and disbursements.

The appellant employer appealed a wrongful dismissal decision awarding the respondent 24 months' severance and two months' Wallace damages.

The Court of Appeal upheld the trial judge's finding that the respondent was a 23-year employee despite a two-year gap for maternity reasons.

However, applying Honda Canada Inc. v. Keays, the Court set aside the Wallace damages because the respondent's mental distress did not qualify for compensatory damages.

The Court also corrected a double-counting error regarding Employment Standards Act severance pay.

The appeal was allowed in part.

The respondent pled guilty to conspiracy to traffic in cocaine and was sentenced to two years less a day, plus probation, with 12 months' credit for pre-trial custody.

The Crown appealed the sentence, arguing the respondent played a more significant role than a mere courier.

The Court of Appeal allowed the appeal, finding the respondent was involved in the distribution of multi-kilogram quantities of cocaine and negotiating prices.

The sentence was varied to four years, with credit for pre-trial custody and time served on parole.

The appellant appealed a trial judgment that dismissed its claim for a commission and unjust enrichment.

The trial judge found there was no agreement to pay the appellant in the absence of a completed transaction, and the appellant failed to prove unjust enrichment.

The Court of Appeal found no error in the trial judge's findings or conclusions and dismissed the appeal, awarding costs to the respondents.

The appellants appealed the dismissal of their medical malpractice action against the respondent general surgeon.

The action arose from the respondent's post-operative care of the deceased following a gallbladder surgery, specifically the decision to take a 'wait and see' approach when signs of jaundice appeared.

The trial judge found the respondent's approach met the standard of care and that causation was not established, as there was no known treatment for the necrotising pancreatitis that ultimately caused the death.

The Court of Appeal found no error in the trial judge's findings of fact or application of the law and dismissed the appeal.

The appellant appealed a finding of civil contempt and a 75-day sentence for failing to deliver jewellery and artwork to the respondent pursuant to a court order.

The Court of Appeal upheld the contempt finding, noting the motion judge implicitly rejected the appellant's claim that he did not possess the items.

However, the Court varied the sentence, setting aside the 30-day term for the jewellery due to lack of clarity on the extent of the breach, and reducing the 45-day term for the artwork to 15 days, adding a coercive clause allowing the appellant to avoid or shorten the sentence by delivering the specified items.

The appellant appealed his sentence of 24 months' imprisonment for break, enter, and theft.

The sentencing judge had rejected a joint submission of 9 months, relying on the appellant's record and the mistaken belief that a stolen computer containing sentimental data was irretrievably lost.

The Court of Appeal found the sentencing judge erred in law by rejecting the joint submission without adequately considering the Crown's evidentiary concerns and relying on unproven aggravating facts.

The appeal was allowed, the sentence was reduced to time served (10 months and 10 days), and a probation condition prohibiting drug and alcohol consumption was removed.

The appellant appealed the dismissal of his application for an order compelling the City of Toronto to issue a building permit for a restaurant exceeding the size permitted by the applicable by-law.

The appellant argued he had a legal non-conforming use because his restaurant exceeded the size limit before it was destroyed by fire, and he challenged the validity of several by-laws for lack of notice.

The Court of Appeal upheld the application judge's findings that the appellant lost any legal non-conforming use when he previously reduced the restaurant's size to comply with the by-law to obtain a liquor license, and that the City had complied with the notice requirements for the by-laws.

The appeal was dismissed.

The respondent was acquitted at trial of having care or control of a motor vehicle while impaired.

The trial judge found that the respondent had started his car with a remote starter, was scraping ice off the window, had the keys in his pocket, and intended to drive away, but concluded there was no present danger because he had not entered the vehicle.

The Summary Conviction Appeal Court upheld the acquittal.

The Court of Appeal allowed the Crown's appeal, holding that the trial judge's findings of fact compelled the legal conclusion that the respondent was in care or control, as his conduct created an obvious risk of danger.

The Crown appealed a sentencing decision that designated the respondent as a long-term offender rather than a dangerous offender.

The respondent had a serious criminal record for sexually-motivated offences and was diagnosed with Fetal Alcohol Spectrum Disorder (FASD).

The sentencing judge accepted defence expert evidence that the respondent's FASD symptoms could be treated, allowing him to participate in sex offender programs and reducing his risk of re-offending to an acceptable level in the community.

The Court of Appeal dismissed the Crown's appeal, finding no error in the sentencing judge's preference for the defence expert's evidence or her exercise of discretion.

The appellants, representing unionized and non-unionized former employees of Nortel, appealed a decision dismissing their motions for directions to compel Nortel to pay severance, termination, and retirement benefits during its CCAA restructuring.

The appellants argued that the payments were protected under s. 11.3(a) of the CCAA as compensation for ongoing services, and that the CCAA stay could not override provincial Employment Standards Act obligations.

The Court of Appeal dismissed the appeals, holding that the payments were for past services and that the doctrine of federal paramountcy allowed the CCAA stay to suspend the immediate payment obligations under the provincial legislation to facilitate the restructuring.

The applicant sought judicial review of the Minister of Justice's decision ordering his surrender to the United States for prosecution.

The applicant argued that the surrender unjustifiably infringed his section 6 Charter rights, that the Crown's conduct regarding plea bargains and stayed charges constituted an abuse of process under section 7, and that the Minister failed to properly consider extenuating family circumstances.

The Court of Appeal dismissed the application, finding the Minister's decision reasonable and no abuse of process by the Crown.

Following a successful appeal by the St. Clair Region Conservation Authority, the court determined the quantum of trial costs.

The parties had previously agreed that the Township's costs of $51,539.81 would be paid by the unsuccessful party.

The Region sought $50,000 for its trial costs.

The court reduced the Region's trial costs to $18,000, noting that the appeal clarified a novel issue under the Occupiers' Liability Act and that the total costs burden on the respondents would otherwise be disproportionate.

The appellant appealed a disposition of the Ontario Review Board ordering his detention in a medium secure unit.

The appellant and amicus curiae argued the Board erred by not ordering a hybrid disposition that would allow the hospital to move him to minimum security at its discretion, as recommended by psychiatrists.

The Court of Appeal held the Board was entitled to reject the psychiatric evidence and require an early review hearing instead.

The appeal was dismissed, but the Board was ordered to convene the requested early review hearing forthwith.

Following the release of an endorsement in this appeal, the parties sought clarification regarding paragraph two and the disposition of costs for the proceedings below and the motion for leave to appeal.

The Court of Appeal clarified that paragraph two applied only to respondents who advanced claims against the appellant in the 2006 action.

The court remitted the issue of costs for the proceedings below to the motion judge, as other parties not involved in the appeal had participated and could be affected.

The court ordered no costs for the two earlier motions in the Court of Appeal.

The appellants appealed the dismissal of their motion to add two further plaintiffs to the action.

The Court of Appeal upheld the motion judge's finding that the two-year limitation period had expired and that this was an attempt to add new parties rather than correct a misnomer.

The appeal was dismissed, though the court noted that the validity of an assignment agreement between the appellants and a third party remained undetermined.

The appellants appealed the dismissal of their professional negligence action against the respondent lawyer on a summary judgment motion.

The appellants alleged the respondent negligently conducted a property transfer by naming improper vendors.

The motion judge found no genuine issue for trial because, even if the respondent was negligent, the appellants suffered no damages as no person with the right to sell the properties would have done so for the proposed price.

The Court of Appeal agreed that without damages, there is no sustainable action in negligence, and dismissed the appeal.

The appellant insurer appealed a motion judge's decision regarding the quantum of housekeeping expenses under section 22 of the Statutory Accident Benefits Schedule.

The motion judge had found that the defence was weak and did not raise a serious issue for trial, relying on a previous finding that housekeeping and home maintenance would exceed the statutory maximum of $100 per week.

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