Lene Madsen

The appellant failed to close on a residential real estate transaction, prompting the respondent to seek damages and move for summary judgment.

After repeatedly breaching court-ordered timetables and failing to pay previously ordered costs, the appellant requested a further adjournment on a peremptory return date, which the motion judge refused.

On appeal, the Court of Appeal upheld the refusal, holding that the motion judge exercised her discretion properly in light of the appellant's contumelious delay and failure to comply with court orders, and that there was no denial of procedural fairness.

The appellant vendor entered into an agreement to sell 208 developed building lots to the respondent purchasers.

The vendor chose to build private drinking and wastewater systems and entered into municipal responsibility agreements with the township.

The purchasers refused to pay the capital costs for these private systems, arguing they were not party to the agreements and the purchase price included water services.

The application judge ruled the purchasers were not obliged to pay these costs.

On appeal, the Court of Appeal upheld the decision, finding no palpable and overriding error in the application judge's interpretation of the agreement of purchase and sale.

The appellant appealed the motion judge's decision granting summary judgment in favour of the respondent and finding the action was statute-barred.

The damage to the appellant's building was discovered on October 4, 2019, by the property manager.

The Court of Appeal upheld the motion judge's finding that the presumption under s. 5(2) of the Limitations Act, 2002 was not rebutted and that the claim was discoverable on October 4, 2019.

The appeal was dismissed.

The appellant appealed the trial judge's determination that the parties separated on June 20, 2022, rather than December 31, 2014.

The trial judge found the respondent more credible and the appellant's assertion that they separated months after marriage but continued to cohabit and maintain joint accounts for eight years implausible.

The Court of Appeal found no errors of fact or law, noting the determination of the date of separation rests on findings of fact and credibility, which are entitled to great deference.

The appeal was dismissed.

The appellant's claims to set aside a separation agreement and for support were dismissed after she failed to attend the in-person trial, despite multiple warnings.

She appealed on grounds of procedural fairness and failure to adjudicate her claims.

The Court of Appeal dismissed the appeal, noting that she should have appealed the order requiring an in-person trial rather than defying it.

The trial judge made no error in proceeding with the trial and resolving the claims based on the evidence before him.

The appellant appealed the application judge's interpretation of a clause in his mother's Will regarding the disposition of a family cottage.

The clause bequeathed the cottage to the appellant provided its value was deducted from his share of the estate residue.

The cottage's appraised value exceeded his share of the residue, and the application judge held he had to pay the shortfall to the estate to receive title, to preserve the deceased's intent to treat her children equally.

The Court of Appeal found no palpable or overriding error in this interpretation and dismissed the appeal.

Leave to appeal the costs order below was denied, and the appellant was ordered to pay the respondents' costs of the appeal on a partial indemnity basis.

The appellant wife appealed a trial decision ordering the respondent husband to pay a $55,000 lump sum for spousal support, which she argued fell outside the Spousal Support Advisory Guidelines.

The Court of Appeal upheld the trial judge's discretionary determination, finding no error in principle or misapprehension of evidence regarding the duration, form, or quantum of the non-compensatory support awarded.

The appellant was convicted of sexual assault and sexual interference relating to his partner's niece and nephew.

On appeal, he argued that the trial judge erred by permitting an adult complainant to testify under a promise to tell the truth rather than an oath or affirmation, and raised issues regarding the assessment of evidence and credibility.

The Court of Appeal found that while permitting the promise to tell the truth was an error, it caused no substantial wrong or miscarriage of justice, and the curative proviso was applied.

The court also found no reviewable errors in the trial judge's factual findings or credibility assessments.

The appeal was dismissed.

The appellants sought production of trust ledgers of the respondents' law firms and unredacted bank statements in a civil fraud action, arguing that the records were necessary to trace funds and determine if the respondents breached Mareva injunctions.

The courts below held that the trust ledgers were presumptively privileged, the presumption was not rebutted, and the crime-fraud exception did not apply.

The Divisional Court also remitted the issue of privilege over the unredacted bank statements to the motion judge.

The Court of Appeal dismissed the appeal, holding that the trust ledgers were presumptively privileged and the presumption was not rebutted.

The Court also held that while the crime-fraud exception could apply in a civil action for fraud or breach of a court order, the appellants failed to establish a prima facie case for its application.

The Court found no error in remitting the bank statements issue to the motion judge.

The moving party sought review of a motion judge's decision granting a vesting order in an action for specific performance of an agreement of purchase and sale.

The moving party argued the responding party delayed in renewing the motion and that the moving party was prejudiced by the denial of rent or use of the purchase money.

The Court of Appeal found the responding party had not breached court orders regarding rent, and that the moving party had repeatedly breached its contractual obligations.

The motion to set aside the motion judge's order was dismissed.

The moving party sought a panel review of an order requiring him to post security for costs and staying his appeal.

The Court of Appeal dismissed the motion, finding no reviewable errors.

The Court noted the moving party's admission that he resides outside the province and lacks assets within it provided sufficient grounds for the order.

The appellant mother appealed an order returning her five-year-old child to Morocco under the Hague Convention.

The application judge found Morocco to be the child's habitual residence and rejected the mother's argument that returning the child would pose a grave risk of harm, despite the respondent father's criminal conviction in Morocco for assaulting the child.

The Court of Appeal allowed the appeal, finding that the application judge erred by not considering the father's assault conviction prospectively and cumulatively with the likely separation of the child from her primary caregiver, the mother, who faced significant legal barriers to returning to Morocco.

The Court held that returning the child to the father's sole care without adequate protective measures constituted a grave risk of harm.

The respondents were sued following a 2019 fire at their restaurant and issued third party claims for contribution and indemnity against the appellant architect, who had provided services during a 2001 renovation.

The appellant moved under Rule 21 to strike the third party claims, relying on the 15-year ultimate limitation period in s. 15 of the Limitations Act, 2002.

The motion judge dismissed the motion, holding that under s. 18, the ultimate limitation period did not begin to run until the respondents were served with the statements of claim.

The Court of Appeal allowed the appeal, concluding it was premature to decide the limitations defence on a pleadings motion without evidence determining the precise legal nature of the third party claims (whether derivative of duties to the plaintiffs or based on independent duties to the respondents).

The appellant was convicted of failing to stop after an accident causing bodily harm and driving while prohibited.

He appealed his convictions and sentence, arguing errors in cross-examination on Charter rights, an imbalanced jury charge, and failure to excuse a juror.

The Court of Appeal found no errors in the trial judge's rulings or jury instructions.

The sentence of 54 months was upheld as fit given the aggravating factors.

The appellant appealed his sexual assault convictions, arguing the trial judge committed legal errors by improperly bolstering the complainant's credibility based on her lack of embellishment and willingness to testify about intimate moments.

The Court of Appeal found no error of law, concluding the trial judge was merely assessing the plausibility of the complainant's narrative in response to suggestions of fabrication.

The appeal was dismissed.

The appellant homebuilder appealed a trial judgment enforcing an agreement of purchase and sale for a new home.

The trial judge had relied on the indoor management rule to find the agreement valid despite allegations that the appellant's general manager fraudulently executed it.

The Court of Appeal allowed the appeal and ordered a new trial, finding the trial judge made legal and procedural errors by excluding relevant evidence of the alleged fraud and improperly varying the pre-judgment interest rate.

The appellant was found in the driver's seat of an inoperable vehicle with a blood-alcohol concentration over the legal limit.

He was acquitted at trial on the basis that the vehicle's inoperability rebutted the presumption of operation under s. 320.35 of the Criminal Code.

The summary conviction appeal judge overturned the acquittal, holding that the presumption could only be rebutted by proving the accused did not occupy the seat for the purpose of setting the vehicle in motion.

The Court of Appeal dismissed the appeal, confirming that the plain text of s. 320.35 provides only one method of rebutting the presumption, and inoperability or lack of realistic risk of danger does not suffice.

The United States sought the extradition of the respondent for child luring offences.

The respondent successfully applied for a stay of the extradition proceedings, arguing that the failure of domestic police and Crown to disclose communications with US authorities during his prior domestic prosecution constituted an abuse of process.

The Court of Appeal allowed the appeal and set aside the stay, holding that the extradition judge exceeded his jurisdiction.

The alleged misconduct lacked a sufficient nexus to the committal hearing, and the concerns raised fell within the exclusive purview of the Minister of Justice at the surrender stage.

The appellant was convicted of human trafficking and related offences involving two young women.

He was sentenced to a global term of 14 years' imprisonment.

On appeal, he argued the sentencing judge underemphasized the mitigating factor of anti-Black racism and erred in applying the Morris framework to assess his moral blameworthiness.

The Court of Appeal dismissed the appeal, finding the sentencing judge carefully balanced the appellant's experience with systemic racism against the extreme gravity and violence of the offences.

The court held that the sentence, while at the high end of the range, was fit and proportionate.

The appellant insurer appealed a decision requiring it to defend and indemnify the respondent lessor for an automobile accident involving a leased vehicle.

The vehicle was owned prior to the effective date of the fleet policy but was not listed on the initial schedule.

It was added to a monthly fleet report after the accident occurred.

The Court of Appeal allowed the appeal, holding that under OPCF 21A (c), vehicles owned prior to the policy term but not scheduled require a specific request for coverage, and no retroactive coverage is provided.

Because coverage was never triggered, relief from forfeiture was unavailable.