Michael J. Moldaver

The appellant was convicted of fraud over $5,000 after his trial counsel was removed from the record by an application judge due to unpaid legal fees.

The appellant was forced to represent himself for the remainder of the trial.

On appeal, the Court of Appeal held that the application judge erred in removing counsel absent a fundamental disagreement, serious breakdown in communications, or ethical dilemma.

The removal violated the appellant's right to counsel, and actual prejudice was not required to order a new trial, though prejudice likely existed.

The appeal was allowed and a new trial ordered.

The appellant appealed his conviction for possession of a loaded prohibited firearm found in the trunk of his car during a traffic stop.

The motion judge had ruled the search lawful, finding the appellant consented.

The Court of Appeal found the motion judge erred, as the police officer's threat to bring in a canine unit—which he had no lawful authority to do—vitiated the appellant's consent.

The appeal was allowed, the conviction set aside, and a new trial ordered to determine the admissibility of the evidence under s. 24(2) of the Charter.

The appellant brought an appeal to the Court of Appeal for Ontario.

On consent of the parties, the court determined that the first level of appeal was properly to the Superior Court of Justice, and an order was made in accordance with the draft order filed.

The appellant sought to amend its statement of claim to add a claim for breach of contractual warranty after its original claim for negligent design was dismissed by summary judgment.

The motion judge refused the amendment, finding it would cause non-compensable prejudice and require the withdrawal of an admission.

The Court of Appeal allowed the appeal, holding that the prejudice relied upon (death of witnesses, destruction of documents, alteration of the plant) existed before the action was commenced and therefore did not result from the proposed amendment.

The Court also found that the original pleading did not contain an admission precluding the amendment.

The appellants appealed a motion judge's decision declining to exercise discretion under Rule 2.01 to cure an irregularity in the proceeding.

The appellants sought to convert an improper cross-claim into a third-party claim for solicitor's negligence against the respondents, who were lawyers for the opposing parties in a previous mechanic's lien action.

The Court of Appeal dismissed the appeal, finding that despite potential legal errors in the motion judge's reasons, the decision to strike the cross-claim as an abuse of process was justified due to the convoluted history of the litigation, the contrived nature of the claim, the appellants' five-year delay in seeking to cure the defect, and the inevitable prejudice to the respondents.

The appellants appealed the dismissal of their application to declare a share valuation null and void, and the granting of the respondents' application to declare the valuation binding.

The appellants argued the valuator acted as an arbitrator and failed to follow an understanding regarding document disclosure.

The Court of Appeal upheld the application judge's findings that the valuator was not an arbitrator and had no contractual obligation to provide the requested documents.

The appeal, including an appeal on costs, was dismissed.

The appellant appealed an order determining an application in the face of conflicting evidence.

The Court of Appeal dismissed the appeal, noting that both parties were content to have the application judge determine the matters on the evidential record without requiring the trial of an issue.

The court found a clear evidential pathway to the application judge's findings and saw no basis to interfere.

The Crown appealed a Summary Conviction Appeal Court decision that had overturned the respondent's conviction for having care or control of a motor vehicle while impaired.

The trial judge had found that there was a risk of danger because the respondent might continue her journey once her vehicle was pulled from the ditch.

The Court of Appeal held that this finding was open to the trial judge on the evidence and that the Summary Conviction Appeal Judge erred in interfering with it.

The appeal was allowed and the conviction and sentence were restored.

The appellant was convicted of possession of cocaine for the purpose of trafficking and sentenced to 4 months' imprisonment and 2 years' probation.

He appealed the sentence, arguing for a conditional sentence and a reduction based on time spent on bail pending appeal.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's conclusion that a conditional sentence would not provide sufficient deterrence, and noting no evidence of undue hardship or rehabilitation while on bail.

The appellants appealed a decision of the Superior Court of Justice regarding vicarious liability.

The Court of Appeal dismissed the appeal, noting that the issue did not need to be decided in light of the court's disposition in a companion case (C50105).

Costs were also addressed in the companion case.

The appellants appealed a decision finding that their section 7 notice was insufficient to alert the Crown to a claim of vicarious liability for persons acting under the authority of the Coroner's Office.

The Court of Appeal dismissed the appeal, agreeing with the Master that the Crown should not be left to guess its possible liability, in accordance with the principles in Mattick Estate.

The appellants appealed a motion judge's decision finding that a letter and unsigned Release did not constitute an acknowledgment of debt regarding a promissory note.

The Court of Appeal dismissed the appeal, agreeing that the documents were a mere offer to settle and did not clearly and unequivocally acknowledge that any amount remained owing.

The court awarded costs of $7,500 to the respondents.

The appellant appealed a bankruptcy order granted under s. 42(1)(j) of the Bankruptcy and Insolvency Act.

The respondent, a diamond merchant, brought the petition after the appellant failed to pay for diamonds.

The appellant argued the bankruptcy judge erred in finding it had debts with other creditors.

The Court of Appeal dismissed the appeal, finding the evidence supported the conclusion that the appellant had outstanding liabilities to other suppliers.

The appellant appealed a decision upholding his committal to stand trial on a charge of manslaughter.

The Court of Appeal found no error in the reviewing judge's conclusion that a reasonable jury could find the appellant formed a common intention with a group to assault and intimidate rival gang members, and knew or should have known that bodily harm was likely to result.

The appeal was dismissed.

The appellant, a former vice-chair and major shareholder of the respondent, entered into a retirement agreement and a settlement agreement that fixed the buyout price of his shares at US$5.21.

He later sued for negligent misrepresentation, alleging the respondent failed to disclose a recapitalization plan that ultimately valued the shares at US$10.06.

The Court of Appeal dismissed the appeal, finding that the alleged misrepresentations were immaterial because the appellant's share price was contractually crystallized, he suffered no damages, and the action was barred by a full and final release.

The employer appealed a Divisional Court decision dismissing its application for judicial review of an arbitral award.

The board of arbitration had ruled that the employer's policy of random drug testing for safety-sensitive employees, absent reasonable cause, violated the collective agreement's requirement to treat employees with dignity and respect.

The Court of Appeal held that while the Divisional Court erred in applying the patent unreasonableness standard instead of reasonableness, the board's decision was reasonable.

The board did not err by referencing the 'Canadian model' of arbitral jurisprudence, nor did it improperly rely on facts outside the record or amend the collective agreement.

The plaintiffs appealed a Divisional Court decision that restored a master's order requiring them to post security for costs.

The Court of Appeal dismissed the appeal, confirming that the standard of review on an appeal from a master is the same as from a judge, as set out in Housen v. Nikolaisen.

The court found no basis to interfere with the master's analysis of the evidence or application of principles regarding security for costs.

The appellants appealed a judgment finding them in breach of a vehicle lease for failing to maintain insurance.

The Court of Appeal dismissed the appeal, holding that the respondent was entitled to act on the default and was not obligated to exercise its option to place the insurance itself or accept proposed replacement insurance, especially after learning the entities arranging the insurance were under investigation for fraud.

The appellant's vehicle was seized by police as proceeds of crime and held under a detention order.

The appellant, claiming to be an innocent third party, commenced a civil action to recover the vehicle and seek damages for its detention.

The Court of Appeal upheld the motion judge's decision to dismiss the action, agreeing that the Criminal Code provisions for innocent third party remedies constitute a complete code, precluding parallel civil proceedings absent allegations of actionable police misconduct.

The respondent bank sought a writ of possession for mortgaged residential premises.

The application judge granted the writ, finding the appellants were occupants and the appellant wife was the beneficial owner.

On appeal, the Court of Appeal set aside the order, finding the bank's application was deficient because it failed to join the named mortgagor as a party and lacked the necessary documentary evidence to establish its right to possession.

The appeal was allowed and the order set aside without prejudice to the bank's right to pursue further remedies.