MacFarland

The appellant and respondent reached a settlement in a copyright infringement class action, which the motion judge refused to approve.

The appellant appealed the refusal to the Court of Appeal.

The Court of Appeal quashed the appeal, holding that an order refusing to approve a class action settlement is an interlocutory order, not a final order, because the litigation continues and the merits of the case remain to be determined.

Therefore, jurisdiction to hear the appeal lies with the Divisional Court, with leave, rather than the Court of Appeal.

In an addendum to a previous decision allowing the appeal and restoring the Ontario Labour Relations Board's decision, the Court of Appeal clarified the timeline for an estoppel period.

Responding to a letter from the respondent's counsel, the court confirmed its intention that the new two-year estoppel period originally set by the OLRB would start again on the date of the court's decision.

The respondent perfected a construction lien and set the action down for trial within the two-year limitation period under s. 37(1) of the Construction Lien Act.

However, the respondent failed to file a defence to the appellant's counterclaim before setting the action down, contrary to Rule 48.01 of the Rules of Civil Procedure.

The appellant moved to discharge the lien, arguing the setting down was a nullity.

The Court of Appeal held that setting the action down while pleadings were open was a procedural irregularity curable by Rule 2.01.

Curing the irregularity did not have the effect of extending the strict two-year limitation period, as the action was factually set down within the required timeframe.

The plaintiff developer and the defendant municipality entered into a supplementary agreement regarding the enhancement of a sewage system.

The trial judge found that the municipality breached the agreement by allocating sewage capacity to a competing developer before the plaintiff's subdivision was completed, and awarded damages for lost commercial tenancies.

On appeal, the Court of Appeal held that the trial judge erred in his interpretation of the agreement.

The court found that the clause granting the plaintiff a monopoly over sewage capacity was ultra vires as it conflicted with the municipality's statutory obligation under s. 86(1) of the Municipal Act, 2001 to supply sewage services where sufficient capacity exists.

The court severed the offending clause and concluded that the municipality did not breach the revised agreement.

Furthermore, the court held that the damages claimed for lost commercial tenancies were too remote.

The appeal was allowed and the action dismissed.

The appellant unions appealed a Divisional Court decision that quashed an Ontario Labour Relations Board ruling.

The Board had admitted a photocopy of the 1958 Sarnia Working Agreement into evidence as a business record and ancient document, finding it created province-wide bargaining rights binding the respondent employer.

The Board also found the unions were estopped from enforcing the agreement for two years due to representations made in 2000.

The Divisional Court ruled the document inadmissible and substituted a permanent estoppel.

The Court of Appeal allowed the appeal, holding that the Divisional Court failed to show deference to the Board's evidentiary rulings and remedial discretion, restoring the Board's original decision.

The appellant appealed his conviction, arguing the trial judge misapprehended evidence regarding the complainant's testimony about the timing of events and whether she blacked out.

The Court of Appeal dismissed the appeal, finding the trial judge was fully alive to the timing issues and gave thorough reasons for finding the complainant credible.

The sentence appeal was abandoned.

The appellant appealed a summary judgment dismissing the action against the respondent vehicle owner.

The driver, who was impaired and caused a fatal accident, admitted he did not have the owner's consent to drive the vehicle.

The appellant argued the motion judge erred by applying a purely subjective test for implied consent and by not directing a trial of the issue.

The Court of Appeal dismissed the appeal, finding the motion judge properly considered all evidence and credibility, and correctly concluded he could resolve the dispute on summary judgment.

The appellant was convicted of sexual interference based on the testimony of his sister, who was 19 at trial but testified about abuse that occurred when she was between 7 and 17.

The appellant appealed, arguing the trial judge erred in assessing the complainant's evidence.

The Court of Appeal allowed the appeal, finding the trial judge made two principal legal errors: assessing the adult complainant's evidence as if she were a child witness, and characterizing an admitted exaggeration under oath at the preliminary inquiry as a 'badge of credibility'.

A new trial was directed.

The appellant and respondent jointly owned a property and had joint debt with an execution creditor.

After the property was sold under power of sale, a surplus remained.

The appellant had filed a consumer proposal, triggering a stay of proceedings under the Bankruptcy and Insolvency Act.

The application judge ordered the execution creditor's debt to be paid from the total surplus before dividing the remainder equally between the appellant and respondent.

The Court of Appeal allowed the appeal, holding that the stay of proceedings precluded the execution creditor from recovering against the appellant's share.

The joint tenancy was severed, and the execution creditor's debt could only be paid from the respondent's 50 percent share of the surplus.

The appellant appealed a summary judgment decision of the Superior Court of Justice.

The Court of Appeal found that it was a proper case for summary judgment and agreed with the reasons of the motion judge.

The appeal was dismissed with costs awarded to the respondents.

The appellant appealed a decision regarding the calculation of a mortgage payout rate and the validity of a prepayment clause.

The Court of Appeal dismissed the appeal, agreeing with the application judge that the prepayment clause was not void for uncertainty and that the calculation of the payout rate at 4.35 percent was substantiated by the lender's evidence given the risk-free nature of the loan.

The appellant was convicted of second degree murder after participating in the beating death of a drug dealer.

On appeal, he argued the trial judge erred by admitting a witness's videotaped out-of-court statement under the principled exception to the hearsay rule after the witness claimed no memory of the conversation at trial.

The appellant also challenged the jury instructions regarding the use of the hearsay statement, the effect of intoxication on the intent for murder, and the use of post-offence conduct.

The Court of Appeal dismissed the appeal, finding no errors in the admission of the hearsay evidence or the jury instructions.

The appellant filed a Notice of Abandonment for the appeal.

The Court of Appeal ordered costs of the abandoned appeal to the respondent, fixed at $7,500 inclusive of disbursements and taxes.

The appellant appealed the dismissal of her application for an annulment.

The parties agreed the marriage was never consummated, but the application judge required independent evidence of incurability.

The Court of Appeal allowed the appeal, holding that a reasonable inference of the respondent's psychological inability to consummate the marriage was sufficient to grant the annulment.

The appellants appealed an order permanently staying their Counter Application.

The Court of Appeal found no error in the motion judge's determination that the Counter Application had no reasonable prospect of success and dismissed the appeal.

The appellants appealed a motion judge's decision regarding amendments to their Statement of Defence, the issuance of a Third Party claim, and the discharge of Certificates of Pending Litigation (CPLs).

The Court of Appeal upheld the motion judge's rulings on the pleadings and third party claim, agreeing that the proposed limitation defence had already been rejected by the court in a prior proceeding.

However, the Court found the motion judge erred in concluding he lacked jurisdiction to consider discharging the CPLs on the ground of non-disclosure due to res judicata.

The Court held that the issue had not been squarely dealt with and permitted the appellants to bring the motion before the case management judge.

The appeal was otherwise dismissed.

The appellant appealed the dismissal of her application.

The Court of Appeal dismissed the appeal, finding no error in the lower court's decision to dismiss the application without prejudice to the appellant's right to bring an action.