Gabrielle K. Kramer

The Crown sought leave to appeal a decision of the Ontario Court of Justice that overturned the respondent's conviction under the Endangered Species Act for damaging Blanding's turtle habitat.

The appeal judge had entered an acquittal after finding the circumstantial evidence of turtle sightings from prior and subsequent years insufficient to prove the land was habitat at the time of the offence.

The Court of Appeal held that while the appeal judge's conclusion raised a question of law alone, the Crown failed to demonstrate that granting leave was essential in the public interest or for the due administration of justice.

The decision below was highly fact-specific and unlikely to establish a binding precedent requiring direct evidence of habitat use.

Leave to appeal was denied, and the respondent's request for costs was dismissed.

The plaintiff purchased property from the defendant church to build social housing.

Prior to the sale, the church retained the defendant environmental consultant to conduct a Phase I Environmental Site Assessment.

The consultant's report, which contained a standard disclaimer clause limiting liability to third parties, was provided to the plaintiff by the church without the consultant's knowledge or consent.

After closing, the plaintiff discovered soil contamination and sued the church and the consultant for negligent misrepresentation.

The consultant moved for summary judgment.

The court granted the motion, finding that the disclaimer clause effectively excluded any duty of care owed to the plaintiff, and dismissed the action and crossclaims against the consultant.

The defendant brought a motion to set aside a noting in default and a default judgment of $278,821.41.

The defendant's insurance adjuster had inadvertently missed communications from the plaintiffs' counsel, leading to the default.

Applying the five-part test from Mountain View Farms, the court found the failure to defend was due to inadvertence, the defendant moved promptly upon learning of the judgment, and there was an arguable defence on the merits.

The motion was granted and the default judgment was set aside.

The applicants sought a declaration that a right-of-way agreement over a mutual driveway was void, while the respondent brought a cross-application seeking rectification of the agreement and an injunction against interference.

The court found that the right-of-way agreement was valid despite lacking a formal enurement clause, as the intention to create an easement running with the land was clear.

The court granted the respondent's application for rectification of the agreement and the parcel registers to correct a drafting error regarding the commencement point of the right-of-way.

The court also declared the respondent's right to vehicular access and ordered the applicants to remove encroachments, including a shed and fence, that substantially interfered with the right-of-way.

The respondent purchased a hobby farm from the appellant.

The appellant failed to disclose an underground waterline supplying water to his adjacent property and other neighbours, and instead provided a statutory declaration on closing stating he was unaware of any adverse claims.

The respondent discovered the waterline later, causing business interruption.

The trial judge found the appellant liable for negligent misrepresentation and awarded damages.

The appellant appealed, arguing the trial judge erred in finding negligent misrepresentation despite an entire agreement clause, and in calculating damages.

The respondent raised a preliminary issue regarding the Court of Appeal's jurisdiction, arguing the appeal of a $25,500 damages award belonged in the Divisional Court.

The Court of Appeal held it had jurisdiction because 'final order' in the Courts of Justice Act refers to the whole order, not just the appealed portion.

The Court dismissed the appeal, upholding the trial judge's findings on negligent misrepresentation and damages.