Lorne Sossin

This appeal concerned a dispute between cousins over their aunt's will, specifically regarding the Testatrix's testamentary capacity when she executed a 2007 will.

The appellant argued the application judge erred in finding capacity without sufficient evidence and challenged the costs award.

The Court of Appeal upheld the application judge's decision, finding no palpable and overriding error in the assessment of evidence regarding testamentary capacity.

The court affirmed the application judge's discretion to discount expert evidence based on a biased factual summary and found ample evidence to support the Testatrix's capacity.

The appeal on costs was also dismissed, as the appellant failed to demonstrate an error in principle or that the award was plainly wrong, noting that the absence of dockets is not an automatic bar to cost recovery.

This appeal concerned the application of s. 5(1)(a)(iv) of the Limitations Act, 2002, specifically when the respondent knew that a proceeding would be an appropriate means to seek a remedy for unpaid invoices.

The appellant, a condominium corporation, argued the action was time-barred, asserting the trial judge erred in applying discoverability principles and finding a running account.

The Court of Appeal dismissed the appeal, affirming the trial judge's finding that the limitation period began when the respondent was informed the condominium corporation was not obligated to pay invoices, rather than earlier.

The court upheld the running account finding and the application of discoverability principles, noting the defendant's assurances delayed the plaintiff's understanding of the need for litigation.

The moving party, Foreign Representative of Urbancorp Inc., sought leave to appeal a distribution order from the Supervising Judge in Companies’ Creditors Arrangement Act (CCAA) proceedings.

The order authorized a distribution to King Towns North Inc. (KTNI) related to the sale of "Bridge Geothermal Assets" and the interpretation of a "Transfer Provision" in a lease.

The core issue was whether the Transfer Provision violated the pari passu or anti-deprivation rules, particularly in light of Chandos Construction Ltd. v. Deloitte Restructuring Inc. The Supervising Judge found the provision valid, as it was triggered by a lease transfer, not insolvency, and did not violate the rules.

The Court of Appeal dismissed the motion for leave to appeal, finding no prima facie meritorious issue or error in the Supervising Judge's application of the anti-deprivation rule as clarified in Chandos, and that the appeal would unduly hinder the proceedings.

The Crown appealed the respondent's acquittals on charges relating to the sale of sexual services.

The application judge had struck down sections 286.2 (material benefit), 286.3 (procuring), and 286.4 (advertising) of the Criminal Code, enacted by the Protection of Communities and Exploited Persons Act, finding they infringed section 7 of the Charter.

The Court of Appeal allowed the appeal, holding that the provisions do not violate section 7.

The Court found that cooperative arrangements among sex workers do not constitute a 'commercial enterprise' under the material benefit provision, and that the procuring and advertising provisions are neither overbroad nor grossly disproportionate to their objectives.

The Court also rejected arguments that the provisions unjustifiably infringed sections 2(b) and 2(d) of the Charter.

The acquittals were set aside and a new trial was ordered.

The appellant, Arthur Colucci, appealed a judgment declaring that he held a land use permit in trust for himself and the respondents (his brother and brother-in-law) as beneficial owners.

The core issue on appeal was whether the trial judge erred in finding an undocumented trust agreement existed, particularly regarding the certainty of intention, given the appellant's alternate explanation.

The Court of Appeal dismissed the appeal, affirming the trial judge's application of an objective standard to ascertain intention, considering all surrounding circumstances and the parties' conduct, and deferring to the trial judge's findings of fact and credibility.

This appeal arose from a decision granting partial summary judgment in a construction lien dispute.

The appellants (Larson Properties Partnership Group and Kevin Gary Larson) challenged the motion judge's finding of no genuine issue requiring a trial and the appropriateness of partial summary judgment.

The Court of Appeal upheld the motion judge's decision, finding no error in the determination that a genuine issue did not exist and that the partial summary judgment was appropriate given subsequent resolutions of other aspects of the litigation.

The appeal was dismissed.

Winterland Airfield Holdings Ltd. appealed a Superior Court judgment that granted Collingwood Aviation Partners Ltd. (CAPL) declarations of unimpeded access to airport lands and exemption from user fees.

The Court of Appeal dismissed the appeal, affirming the application judge's interpretation of an Operating Agreement and finding of an implied easement for unimpeded access.

The court also upheld the finding that Winterland could not charge user fees for this access and that Winterland failed to prove CAPL was underinsured.

The appellant, Kevin Janeiro, appealed his convictions for robbery and having his face masked, arguing the verdicts were unreasonable and the trial judge materially misapprehended evidence, particularly regarding identity and lost security video.

The Court of Appeal found the convictions unreasonable due to material misapprehensions of evidence concerning fingerprint and DNA evidence, and the importance of the lost security video.

The court also found a Charter breach due to the negligent loss of the security video.

The appeal was allowed, convictions set aside, and verdicts of acquittal substituted.

The Canadian Imperial Bank of Commerce appealed three lower court decisions in a class action initiated by Dara Fresco on behalf of 31,000 customer service employees.

The class action alleged that the Bank's overtime policies and record-keeping practices led to uncompensated overtime, contrary to the Canada Labour Code.

The Court of Appeal for Ontario dismissed all three appeals.

It upheld the motion judge's interpretation of "permitted" overtime under s. 174 of the Code, affirming that the Bank's policies and record-keeping were "institutional impediments" to proper compensation.

The Court also confirmed the certification of aggregate damages, ruling that the Supreme Court's Pro-Sys decision allowed the trial judge to reconsider this issue despite a previous refusal at certification.

Finally, the Court upheld the motion judge's decision to defer a class-wide limitations order and a constitutional question regarding the extra-territorial application of the Class Proceedings Act, deeming them premature.

This appeal concerned the application of a limitation period to an arbitration agreement.

The parties, cousins and business partners, had a dispute over EOREI expenses that was to be referred to arbitration if negotiations failed.

The appellants (original respondents) argued the arbitration was time-barred, either by a 90-day agreement or the two-year limitation period from the Limitations Act, 2002, starting from the signing of the settlement agreement in September 2016.

The application judge found no 90-day agreement and held the two-year limitation period started when it became clear negotiations were impossible (January 31, 2018), making the arbitration timely.

The Court of Appeal upheld this decision, finding no palpable and overriding error in the application judge's interpretation of the arbitration clause as requiring an attempt at informal resolution before the limitation period began to run for arbitration.

The appellants, three sisters, appealed a trial decision that dismissed their claims of physical abuse against their aunt and breach of fiduciary duty against the Attorney General of Canada.

The trial judge had found the appellants' evidence unreliable due to the passage of several decades since the alleged abuse.

The Court of Appeal allowed the appeal, finding that the trial judge erred in principle by treating the passage of time as nearly determinative of reliability without adequately considering the context of adult testimony regarding childhood abuse, as guided by the Supreme Court of Canada in R. v. W. (R.).

The court ordered a new trial to properly assess the evidence.

The appellants appealed the dismissal of their action for delay by a motion judge, who had also dismissed their motion to extend the timetable.

The action, commenced in 2014, faced significant delays, primarily due to the appellants' failure to obtain written consent from the City of Ottawa (to whom the action was subrogated under the WSIA) for several years.

The Court of Appeal upheld the motion judge's decision, finding that the appellants failed to provide an acceptable explanation for the inordinate delay and did not rebut the presumption of prejudice to the respondents, given the lack of progress in the litigation.

The Crown appealed the four-year sentence imposed on the respondent for various drug offences, including trafficking in cocaine and fentanyl.

The Court of Appeal granted leave to appeal, finding that the trial judge made fundamental errors in sentencing.

These errors included misidentifying the sentencing range for mid-level cocaine traffickers, erroneously comparing it to fentanyl, misapprehending the gravity of the offence, and overemphasizing the mitigating effect of the guilty plea.

The appellate court emphasized that fentanyl is a more dangerous drug requiring higher penalties and that the weight of a guilty plea varies by case circumstances.

The appeal was allowed, and the sentence was increased to six years.

The appellant, a developer and unit owner, appealed a lower court decision that upheld certain administrative and amenity fees imposed by the condominium corporation's By-Law No. 7 on unit owners who rent their units short-term.

The appellant argued these fees were ultra vires the Condominium Act, 1998 and the condominium's declaration, and were oppressive.

The Court of Appeal dismissed the appeal, finding that the fees were consistent with the declaration's intent for rental governance and were not oppressive, as they offset costs attributable to rental activities and were supported by the historical operation and an overwhelming owner vote.

The appellant appealed a summary judgment, arguing the motion judge erred in finding the respondent met her duty to mitigate following his breach of a contract of purchase and sale, and that the motion judge's reasons were inadequate.

The Court of Appeal dismissed the appeal, finding the motion judge's reasons functionally adequate and her determination on mitigation reasonable.

The respondent was not obligated to grant further extensions or engage with the appellant's subsequent offers after his repeated failure to close the transaction.

The appellant appealed his conviction for drug trafficking, possession of proceeds of crime, and possession for the purpose of trafficking, arguing the trial judge gave deficient jury instructions regarding eyewitness identification, voice identification, and circumstantial evidence (Villaroman caution).

The Court of Appeal found that the trial judge did err in failing to provide these cautions.

However, the court applied the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, finding that the evidence against the appellant was overwhelming, making a conviction inevitable despite the errors.

The appeal was dismissed.

The appellant, R.H., appealed his conviction for sexual assault.

The complainant testified that she consented to the sexual touching, which occurred due to the appellant's drug-induced paranoid hallucinations about her infidelity.

The trial judge, despite the complainant's testimony of consent and the Crown's argument focusing on the complainant's inconsistent police statement, convicted the appellant on the basis that her consent was vitiated by the history of violence in their relationship.

This theory of vitiated consent was not advanced by either counsel during the trial, nor was it raised by the judge with the parties before the decision.

The Court of Appeal found that convicting the appellant on an unargued and uncanvassed theory constituted a fundamental unfairness and denied the appellant his constitutional right to make full answer and defence.

The appeal was allowed, the sexual assault conviction was set aside, and a new trial was ordered on that count.

The appellant, M.M., appealed his conviction for sexual interference and sexual assault, arguing that the trial judge erred in dismissing his application for a mistrial based on a reasonable apprehension of bias.

This apprehension arose from an ex parte communication between the trial judge and a justice of the peace who was related to the appellant's ex-spouse and children.

The Court of Appeal found that while the justice of the peace's conduct was a lapse of judgment, the trial judge took appropriate remedial steps by immediately putting the encounter on record, hearing submissions, and explaining his impartiality.

The Court concluded that a reasonable observer would not find the trial judge biased, and therefore, the appeal was dismissed.

The appellant, convicted of sexual assault, sexual interference, and invitation to sexual touching, sought bail pending appeal.

This was a renewed application after a previous denial.

The Crown conceded the appeal was not frivolous and the appellant was not a flight risk, but opposed bail on public interest grounds, specifically public safety and public confidence in the administration of justice.

The court found that while public safety concerns could be mitigated by strict conditions, the high enforceability interest due to the serious nature of the offences and the appellant's lack of insight into the harm caused by prior breaches outweighed the reviewability interest, which was deemed low despite arguable grounds of appeal.

The motion for bail pending appeal was denied.

The appellant, H.K., appealed convictions for various sexual assault offences, arguing the trial judge erred in assessing conflicting evidence on consent and that the global sentence of three years was excessive.

The Court of Appeal dismissed the sentence appeal at the outset.

Regarding the conviction appeal, the appellant contended the trial judge's credibility assessment was piecemeal and failed to resolve inconsistencies.

The Court, applying principles from R. v. G.F., affirmed the heightened deference owed to trial judges' credibility findings.

It found that the trial judge conducted a thorough and nuanced analysis, explaining which parts of the complainant's evidence were accepted or found unreliable, and considering corroborating evidence.

The Court concluded there was no error in the trial judge's analysis and dismissed the appeal from convictions.