Michael H. Tulloch

This case involves three appeals arising from matrimonial proceedings.

The Court of Appeal addressed the validity of a stay of execution obtained by a third-party creditor (the husband's father) against the matrimonial home, the striking of the husband's pleadings for non-compliance with court orders, and the interpretation of a domestic contract concerning the wife's interest in the matrimonial home and equalization payments.

The court found that the stay of execution was justified under the Courts of Justice Act, despite not meeting the Family Law Act criteria, as the creditor's objective was to defeat the wife's claims.

The decision to strike the husband's pleadings was upheld due to his wilful non-compliance and history of defaults.

The trial judge's interpretation of the domestic contract, granting the wife a one-half interest in the matrimonial home, and the valuation of the husband's debt to his father at zero for equalization purposes were affirmed.

However, the costs award from the lower court was varied to credit the husband for interim payments already made.

The appellant, Marvin Rubner, appealed a lower court decision that found no binding settlement agreement had been reached between him and his brother, Joseph Rubner, regarding their real estate business interests.

The application judge had concluded that Joseph's counsel had limited authority to negotiate only the minutes of settlement, not the "Deal Points" and that Marvin's counsel was aware of this limitation.

The Court of Appeal dismissed the appeal, affirming that the application judge's interpretation of the agreement and application of the test for ostensible authority were questions of mixed fact and law, reviewable only for palpable and overriding error, which was not demonstrated.

The Court of Appeal allowed an appeal from a motion judge's order granting specific performance for breach of contract.

The appellate court found that the motion judge erred in law by awarding specific performance without evidence or a finding that the property was unique, which resulted in a windfall for the respondent.

The matter was remitted for trial.

This is an appeal from a trial judge's decision to discharge a mortgage.

The appellant claimed a loan was secured by a mortgage on the respondent's home, which was later re-loaned but remained secured.

The trial judge, unable to determine witness credibility, relied on documentary evidence to find the mortgage had been repaid and effectively redeemed.

The Court of Appeal dismissed the appeal, affirming the trial judge's findings that the issue of redemption was properly before the court via counterclaim, that the appellant waived technical compliance by admitting repayment, and that the trial judge was entitled to rely on documentary evidence given credibility issues.

This appeal arose from a long-standing, high-conflict family law dispute.

The appellants challenged a motion judge's order that clarified spousal support obligations, addressed the impact of bankruptcy on an equalization payment secured by a letter of credit, and apportioned trial costs.

The Court of Appeal dismissed the appeal, affirming the motion judge's clarifications that periodic support continued due to the husband's failure to exercise a lump sum option, that the letter of credit securing equalization and support created an equitable trust not extinguished by bankruptcy, and that the allocation of trial costs was appropriate.

The appellants appealed a summary judgment order.

The Court of Appeal upheld the motion judge's conclusion that the officer had subjective reasonable and probable grounds for arrest, finding it supported by evidence and objectively reasonable.

The allegation of negligent investigation was dismissed because the appellants failed to present expert evidence on the standard of care to rebut the police's evidence.

The court affirmed that summary judgment in favour of a defendant was appropriate in this case.

The appeal was dismissed with costs awarded to the respondents.

This is an appeal from orders of the Superior Court of Justice finding the appellant in contempt of various court orders.

The Court of Appeal found no error in the motion judge's decision, noting that the appellant was clearly in contempt and failed to purge it despite numerous opportunities.

The appeal was dismissed, and the contempt sentence was ordered to run concurrently with any related criminal sentence.

No costs were awarded.

The Court of Appeal for Ontario allowed an appeal concerning an award of punitive damages.

The motion judge had awarded $50,000 in punitive damages without providing any analysis or reasons for the award.

The appellate court found that this lack of analysis rendered the decision unreviewable, concluding that punitive damages are an exceptional remedy requiring proper justification.

Consequently, the appeal was allowed, and the punitive damages award was set aside.

The accused, a former army reservist, shot and killed a prowler who was breaking into his truck.

At trial, the accused claimed self-defence, arguing his military training led him to proactively confront the threat and that he believed the prowler was reaching for a gun.

The jury acquitted the accused of second-degree murder.

The Crown appealed, arguing the trial judge erred in his instructions to the jury regarding self-defence under s. 34 of the Criminal Code.

The Court of Appeal allowed the appeal and ordered a new trial, finding the trial judge failed to instruct the jury to consider the accused's conduct leading up to the shooting when assessing the reasonableness of his actions.

The appellant appealed his conviction and sentence for child luring after communicating online with an undercover police officer posing as a 14-year-old.

The appellant claimed he knew the person was not a minor and only met them for a 'gotcha' moment.

The Court of Appeal dismissed the conviction appeal, finding the trial judge properly applied the W.(D.) framework and drew logical inferences from the text messages.

The sentence appeal was also dismissed, though the victim surcharge was set aside.

The appellant was convicted of historical sexual assault and sexual interference against a complainant over whom he held a position of trust.

He appealed the conviction, arguing the trial judge erred in failing to reconcile inconsistencies, overemphasizing his demeanour during a police interview, and assigning too much weight to the complainant's youthfulness.

The Court of Appeal dismissed the appeal, finding the trial judge's credibility assessments and findings were open to him.

The appellant appealed his conviction for sexual assault, arguing the trial judge erred in assessing credibility, engaging in stereotypical reasoning, and failing to appreciate his motive theory.

The Court of Appeal dismissed the appeal, finding the trial judge's conclusions that the complainant did not consent and was incapable of consenting were sound and entitled to deference.

The appellants appealed their custodial sentences for production and possession for the purpose of trafficking in marijuana.

They sought a suspended sentence or an intermittent custodial sentence.

The Court of Appeal found no error in principle by the sentencing judge and held that the sentences were fit.

The appeals from sentence were dismissed, except that the victim surcharges were set aside.

The appellant appealed his convictions for robbery, unlawful confinement, and breach of recognizance, as well as his 4.5-year sentence, arising from a home invasion.

He argued the unlawful confinement conviction violated the Kienapple principle as it was not a separate delict from the robbery.

The Court of Appeal dismissed the conviction appeal, finding sufficient evidence of domination and coercive restraint distinct from the robbery.

The sentence appeal was also dismissed, as the 4.5-year sentence reflected no error in principle and fell within the fit range, though the victim surcharge was set aside.

The appellant was convicted of several offences arising out of an armed home invasion and sentenced to 10 years' imprisonment.

He appealed his convictions and sentence, and his counsel pursued production of records to advance an alibi and alternate suspect defence.

However, the appellant was subsequently found inadmissible to Canada for serious criminality and deported.

As he was no longer amenable to the court's jurisdiction, the appeal was dismissed as abandoned.

The appellant appealed his conviction for first degree murder, challenging the constitutionality and retrospective application of legislative amendments that abolished peremptory challenges and substituted the presiding judge for lay triers in challenges for cause.

The Court of Appeal held that the amendments did not violate the appellant's rights under ss. 7, 11(d), or 11(f) of the Charter.

However, the Court found that while the change to the challenge for cause procedure was purely procedural and applied retrospectively, the abolition of peremptory challenges affected substantive rights and applied prospectively.

Because the appellant's right to a jury trial vested before the amendments came into force, the abolition of peremptory challenges should not have applied to his trial.

The appeal was allowed and a new trial ordered.

The appellants appealed their convictions for drug and weapons offences based on fresh evidence.

The evidence revealed that an essential police witness was the adoptive brother of one of the appellants, who had previously alleged he sexually assaulted her.

The Crown conceded that the failure to disclose this relationship and the resulting impact on the appellant compromised the fairness of the trial.

The Court of Appeal admitted the fresh evidence, set aside the convictions, and ordered a new trial, noting the Crown's undertaking not to re-prosecute.

The appellant appealed his convictions for possession and distribution of child pornography, arguing that his Charter rights under ss. 7 and 10(b) were infringed regarding statements made to police.

The trial judge had found the statements admissible, concluding no detention occurred.

The Court of Appeal found that the appellant was psychologically detained when questioned at his home without being informed of his right to counsel, constituting a serious Charter breach.

The subsequent statement at the police station was also tainted.

Applying the s. 24(2) analysis, the Court determined that admitting the evidence would bring the administration of justice into disrepute due to the willful disregard of Charter rights and the significant impact on the accused, despite the evidence's reliability.

The appeal was allowed, convictions quashed, and a new trial ordered.

The Crown appealed the acquittal of the respondent on charges of assault with a weapon, breaking and entering, robbery, and aggravated assault.

The Crown argued that the trial judge erred in law by assessing the evidence piecemeal rather than considering it holistically, thereby failing to appreciate how the cumulative evidence built the strength of the Crown's case.

While the appellate court found that the trial judge did commit an error of law in her approach to the evidence, the appeal was dismissed because the victim—a Crown witness who knew the respondent well—testified with certainty that the attacker was not the respondent.

This independent exculpatory evidence raised a reasonable doubt that could not be overcome by the trial judge's error.

The Crown appealed the acquittal of a respondent charged with committing indictable offences for the benefit of, at the direction of, or in association with a terrorist group under section 83.2 of the Criminal Code.

The respondent was the sole member of his own terrorist group.

The trial judge found the respondent not guilty of the section 83.2 offences but found him not criminally responsible on account of mental disorder (schizophrenia) for the underlying predicate offences.

The Court of Appeal upheld the trial judge's interpretation that section 83.2 does not apply to a lone wolf terrorist acting as the sole member of a terrorist group, as the provision contemplates a bilateral relationship between the principal committing the offence and a separate terrorist group.

The court dismissed the appeal.