Lois B. Roberts

This decision addresses costs of the proceedings below following a partial appeal success.

The appellants sought costs on a substantial indemnity basis, arguing they were substantially successful on the issues that drove the proceedings.

The respondents sought no costs or costs on a partial indemnity basis, arguing the success was divided.

The court found that while the appeal was allowed only in part, the appellants enjoyed greater success on the key issues and awarded costs on a partial indemnity basis, reflecting the divided success.

The appellant sought leave to appeal a 16-month global sentence imposed for trafficking in crack cocaine while on probation.

Although the sentencing judge initially misunderstood counsel's submission regarding the proposed sentence, the Court of Appeal found the sentence was fit given the nature of the offense, the quantity and type of drugs involved, and the breach of probation.

The sentencing judge appropriately declined to impose an unfit sentence to avoid adverse immigration consequences for the appellant.

Leave to appeal was granted but the appeal was dismissed.

The appellant appealed the sentence imposed by the trial judge.

The Crown conceded that an error was made in the calculation of pre-sentence custody credit.

Leave to appeal sentence was granted and the appeal was allowed.

The pre-sentence custody credit was recalculated at a 1.5 to 1 ratio, resulting in a reduction of the sentence from 10 years 290 days to 9 years 251 days, with pre-trial custody credited as 3 years 114 days instead of 2 years 75 days.

The appellant appealed his convictions for historical sexual assault and sexual exploitation of a minor who was between 13 and 16 years old during the period 1988 to 1991, when the appellant was the complainant's Big Brother.

The appellant raised two grounds of appeal: (1) the trial judge erred in admitting Big Brothers organization records as evidence of the truth of their contents when filed in reply after the close of the defence, and (2) the trial judge's reasons were inadequate because he failed to explain why he rejected corroborating evidence from the appellant's sister.

The Court of Appeal dismissed the appeal, finding no error in the admission of the records and finding the trial judge's reasons adequate when read as a whole in context.

The appellant appealed his conviction for robbery and related offences arising from a jewellery store robbery, as well as his sentence of 12 years imprisonment.

The appellant advanced three grounds of appeal on conviction: that the verdict was unreasonable as the evidence was equally consistent with him being a fence rather than a perpetrator; that the trial judge failed to provide a Vetrovec caution regarding an unsavoury witness; and that the trial judge misapprehended evidence.

The Court of Appeal rejected all three grounds, finding that the circumstantial evidence cumulatively supported only one rational inference that the appellant was one of the two masked perpetrators, that the trial judge had properly considered the witness's credibility issues without requiring a formal caution in a judge-alone trial, and that the trial judge's factual findings were sound.

The court also found the 12-year sentence was fit.

Both the conviction appeal and sentence appeal were dismissed.

The appellant appealed his conviction for robbery of a Cash in a Flash store on November 14, 2010, arguing that the jury's verdict was unreasonable because the video evidence was extremely poor and unreliable for identification purposes.

The trial judge had given strong warnings about the frailties of the video identification evidence.

The Court of Appeal upheld the conviction, finding that while the video evidence had limitations, the totality of the evidence—including distinctive identifying details visible in multiple video recordings, photographic evidence, DNA evidence from a balaclava, and physical evidence recovered from the appellant's apartment building—provided a reasonable foundation for the jury's verdict.

The appellant was convicted of first degree murder of his daughter-in-law.

At trial, he advanced a non-insane automatism defence, claiming he was in a dissociative state when he shot the victim.

The sole ground of appeal concerned Crown counsel's closing address to the jury.

The defence argued that the Crown violated the principle in Browne v. Dunn by failing to confront defence witnesses with inferences and arguments later urged to the jury.

The trial judge found one Browne v. Dunn violation and two material misstatements of evidence but rejected seven other defence arguments.

On appeal, the court upheld the trial judge's rulings, finding the corrective instructions adequate and the other Crown submissions not improper.

The appellant appealed his conviction for making a threatening gesture (throat-cutting gesture) and his sentence of eight months imprisonment followed by 18 months' probation.

The Court of Appeal found no error in the trial judge's reasoning.

The trial judge's finding that the appellant made a throat-cutting gesture was fully supported by evidence, including the complainant's testimony and the appellant's own statement.

The gesture was made with the requisite intent to threaten.

The sentence was upheld as appropriate given the seriousness of the offence, the vulnerability of the witness, and the need to protect the judicial process.

The appellant appealed his conviction for robbery, arguing that the verdict was unreasonable and that the trial judge's reasons were insufficient.

The Court of Appeal upheld the conviction, finding that the victim's identification evidence—based on his knowledge of the appellant, recognition of his voice, identification of a can of bear mace previously in the appellant's possession, and recognition of the appellant when his mask was pulled off—provided a reasonable basis for conviction.

The court also found the trial judge's reasons adequate, demonstrating a proper understanding of the evidentiary record and the dangers of identification evidence.

The appellant appealed a sentence imposed for drug trafficking.

The Court of Appeal upheld the sentence, finding that the trial judge properly emphasized denunciation and the harm caused by drug trafficking in the community.

The court noted that the trial judge appropriately gave considerable weight to the fact that the appellant had trafficked while on bail for a prior trafficking offense.

Although rehabilitation was not entirely disregarded, it played a secondary role in the sentencing decision.

The sentence was found to be fit, and the appeal was dismissed.

An appeal under Part XX.1 of the Criminal Code against a disposition of the Ontario Review Board dated May 20, 2016.

The hospital had recommended a conditional discharge, but the Board imposed a detention order with conditions.

The appellant challenged the Board's decision on multiple grounds, including the refusal to order a conditional discharge and the failure to order a second opinion or independent assessment in light of a potential treatment impasse.

The Court of Appeal upheld the Board's decision, finding no error in the Board's reasoning regarding the appellant's non-compliance with essential drug treatment and the requirement for hospital-approved residence.

The appellant appealed the dismissal of her application to set aside minutes of settlement in matrimonial proceedings.

The parties had been in a common-law relationship from 1985 to 1999 and had two adult children.

They lived in Canada, England, and Ireland before separating.

The appellant sought to set aside a 2006 settlement agreement on grounds of non-disclosure of assets, including a Spanish property and stock options.

The trial judge found that while the respondent had failed to disclose certain assets, the agreement was fair and the non-disclosure was not material to the appellant's decision to settle.

The Court of Appeal upheld the trial judge's decision, finding no palpable and overriding error of fact.

The appellants and respondents owned adjoining properties in Ontario.

A water pipeline was buried beneath the appellants' land in the 1960s to supply water from Sturgeon Lake to the respondents' property.

Three agreements were executed regarding the pipeline: in 1966 (a licence), in 1968 (a licence), and in 1979 (an easement registered as Instrument No. R147470).

In 2014, when the pipeline leaked, the respondent entered the appellants' land without permission and installed an above-ground waterline.

The appellants sought a declaration that the respondents had no interest in their property and that the easement was invalid.

The respondents sought a declaration that the easement was valid and that they had the right to repair and replace the pipeline.

The application judge found both the 1968 and 1979 agreements granted easements and that the respondents could repair and replace the pipeline.

The appellants appealed, arguing the 1968 agreement was a licence, not an easement, and that the 1979 easement did not permit repairs or replacement without their consent.

A father appealed a declaration granted by the Superior Court that his 16-year-old daughter had withdrawn from parental control under section 65 of the Children's Law Reform Act.

The father argued that he was entitled to be a party to the application and that the court should not have granted the declaration.

The Court of Appeal held that while parents must be parties to applications under Part III of the CLRA, the court retains discretion to direct the extent of their participation.

The court also held that the factors to be considered on such an application extend beyond the child's age to include the reasons for the declaration, its utility, and the child's best interests.

The appeal was dismissed.

The appellants appealed the dismissal of their negligence claims against their former lawyer, John Cardill, following a summary judgment motion.

The motion judge had determined that Cardill was retained only to assess the accounts of their previous lawyer, Donald Good, and therefore owed no duty of care regarding a potential negligence action against Good.

The Court of Appeal found that the motion judge erred by narrowly focusing on the written retainer agreement without examining all surrounding circumstances.

The court held that where a lawyer's duty of care is alleged to extend beyond the retainer, the court must meticulously examine all relevant circumstances, including the nature of instructions and client sophistication.

The appeal was allowed and the action was directed to proceed to trial.

The appellants appealed a motion judge's order striking out their statement of claim.

The Court of Appeal allowed the appeal in part, permitting the appellants to amend their pleading.

This costs endorsement addresses the allocation of costs for both the appeal and the underlying motion.

The court found that the appellants' modest success on appeal did not warrant costs in their favour, as it represented a further indulgence to correct pleading deficiencies that multiple prior iterations and a case conference had failed to remedy.

The motion judge's costs order in favour of the respondents was varied downward by $5,000 to reflect the appellants' limited success.

The appellant wife appealed an order terminating her spousal support and life insurance obligations upon the respondent husband's retirement.

The respondent, a surgeon earning over $250,000 USD annually, sought to terminate support effective June 1, 2016, when he planned to retire with projected income of $35,000-$40,000 USD annually.

The application judge found a material change in circumstances and terminated the support.

The Court of Appeal allowed the appeal, finding the application judge erred in concluding the parties would be in financially similar circumstances post-retirement.

The court held that the support should be reduced rather than terminated, and remitted the matter for recalculation.

The appellant appealed a summary judgment dismissing her motor vehicle negligence action arising from a collision at an intersection in London, Ontario.

The appellant's vehicle struck the respondent's pickup truck after the appellant proceeded through a stop sign.

The motion judge found the respondent was not speeding and could not see the appellant's vehicle due to an intervening cement truck.

The appellant argued the respondent should have been more cautious given the presence of stopped vehicles.

The Court of Appeal upheld the summary judgment, finding no palpable and overriding error in the motion judge's conclusion that the respondent had no duty to reduce speed or take extra precautions under the circumstances.

The appellant, Invecom Associates Limited, appealed a decision forfeiting a $400,000 deposit under an agreement of purchase and sale for three properties in Waterloo, Ontario.

The agreement contained conditions of closing in favour of Invecom, which could be waived by written notice to the vendors by a specified condition date.

Invecom sent a draft extension agreement proposing to extend the condition date but did not send proper written notice that the conditions had not been satisfied or waived by the deadline.

The court found that Invecom was in default and the deposit was forfeited to the vendors.

The appeal was dismissed.

Hampton Securities Limited appealed a summary judgment decision dismissing its claim against Joseph Tassone for accumulated trading losses in an inventory account.

The motion judge found that the employment contract did not impose personal liability on Tassone for losses exceeding his personal reserve account.

The Court of Appeal upheld the decision, finding no palpable and overriding error in the motion judge's interpretation of the employment contract terms and rejection of an implied indemnity obligation.

The court distinguished the case from Refco Futures on its facts and rejected Hampton's arguments regarding industry practice and notice period issues.