L.C. Kozak

The appellant appealed an order allowing two limited partners to vote on the election of a new general partner for a limited partnership.

The appellant argued the limited partners were affiliated with and not dealing at arms length with the manager, and thus disqualified from voting under the partnership agreements.

The Court of Appeal dismissed the appeal, upholding the motion judge's finding that there was no direct or indirect control establishing affiliation, and that the parties were dealing at arms length.

The appellant appealed his conviction for sexual touching of a child under the age of fourteen.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the trial judge misapprehended the evidence on key points and overemphasized irrelevant considerations when disbelieving the appellant.

Specifically, the trial judge incorrectly stated that the appellant did not deny the conduct, incorrectly stated that the appellant confirmed he was drinking, and appeared to engage in improper propensity reasoning based on the appellant's criminal record.

The applicant moved to re-open his appeal, arguing the panel failed to consider whether the curative proviso could be applied despite an alleged error of law by the trial judge regarding the W.(D.) test.

The Crown cross-moved to quash the motion.

The Court of Appeal dismissed the motion, noting the appeal had been dealt with on the merits, the issue was not raised in the original appeal materials, and the Supreme Court of Canada had already refused leave to appeal on this issue.