OCA 2001

The respondent, a public servant, was released from his employment when his position was declared surplus under s. 22(4) of the Public Service Act.

He brought an action for wrongful dismissal in the Superior Court of Justice, alleging bad faith.

The appellant employer brought a motion to dismiss the action, arguing the Public Services Grievance Board had exclusive jurisdiction, or alternatively, that the court should defer to the Board.

The motions judge dismissed the motion.

On appeal, the Court of Appeal held that while the Board and the courts had concurrent jurisdiction, the courts should not defer to the Board because the statutory grievance procedure was not mandatory and did not explicitly abrogate the employee's right to access the courts for breach of contract.

The appellants, a lawyer and his law firm, appealed a Divisional Court decision dismissing their application for judicial review.

They challenged the jurisdiction of the Ontario Securities Commission (OSC) to reprimand the lawyer for allegedly making misleading statements while representing a client.

The appellants argued that such conduct must be dealt with exclusively through quasi-criminal proceedings or by the Law Society.

The Court of Appeal dismissed the appeal, holding that the Securities Act provides the OSC with a flexible range of remedial options, including administrative reprimands under s. 127.

The Court also affirmed that the OSC has jurisdiction to reprimand lawyers acting in their professional capacity, provided that solicitor-client privilege is respected.

During a lawful strike, picketers consistently obstructed the employer's vans from entering and exiting the plant until police arrived.

The employer obtained an interlocutory injunction after police could not guarantee immediate assistance.

The union appealed, arguing the condition precedent in s. 102(3) of the Courts of Justice Act was not met because police eventually provided access.

The Court of Appeal dismissed most of the appeal, finding that reasonable efforts to obtain police assistance had failed to result in an acceptable degree of control.

However, the Court allowed the appeal in part by striking the term limiting the number of picketers to four, holding that it unreasonably restricted the employees' right of expression.

The plaintiff was injured in a motor vehicle accident and commenced an action more than two years later.

The defendants brought a motion for summary judgment, arguing the action was statute-barred.

The motions judge dismissed the defendants' motion and instead granted summary judgment in favour of the plaintiff on the limitation issue, finding it was not reasonably discoverable within the first 35 days that the plaintiff had suffered a serious impairment.

The Court of Appeal dismissed the defendants' appeal, holding that under Rules 20.04(2) and (4), a motions judge has jurisdiction to grant summary judgment against a moving party, and that the medical evidence supported the conclusion that the limitation defence failed.

The appellant corporation appealed its capital tax assessments, arguing that management fees paid to independent contractors in Alberta should be deemed salary under s. 302(7) of Reg. 183 of the Corporations Tax Act, thereby allocating more capital to Alberta (which does not levy capital tax).

The Court of Appeal dismissed the appeal, applying the plain meaning rule and the 'modus operandi' test.

The Court held that because the appellant's normal practice in Alberta was to use contractors rather than employees, the services were not 'normally performed by employees of the corporation' within the meaning of the regulation.

The plaintiff suffered severe brain damage following an unprovoked assault by his brother-in-law at the matrimonial home.

The plaintiff sued his estranged wife and her brother.

Both defendants failed to defend the action and were noted in default.

At the assessment of damages hearing, the trial judge awarded damages against the brother but dismissed the action against the wife, finding no basis for liability.

The Court of Appeal allowed the plaintiff's appeal in part, holding that under Rule 19.02(1), a defendant noted in default is deemed to admit the allegations of fact in the statement of claim, and a trial judge cannot inquire into liability during a damages assessment.

Both defendants were found jointly and severally liable.

The appellants appealed a summary judgment enforcing a mortgage guarantee.

The appellant guarantor argued he believed he was consenting to a six-month renewal rather than a 60-month renewal.

The Court of Appeal dismissed the appeal, finding that the signed renewal document clearly indicated 60 months and the appellant failed to provide sufficient evidence to establish a genuine issue for trial.

The respondent financial advisory firm was engaged by the appellant trust company to raise debt or equity financing.

The agreement permitted the appellant to sell its assets without obligation to the respondent.

After the respondent obtained a letter of interest from a bank, the appellant terminated the engagement, paid the contractual fees, and later sold its assets to the bank.

The trial judge awarded the respondent $420,000 for unjust enrichment.

The Court of Appeal allowed the appeal and dismissed the action, finding that the respondent failed to establish an enrichment, a corresponding deprivation, or the absence of a juristic reason, as the services were not freely accepted for an asset sale and the respondent had no reasonable expectation of compensation beyond the contract.

The appellant sold a surplus grain terminal to a purchaser with an agreement intended to include a restrictive covenant preventing the property's use for grain handling.

The property was later sold in a tax sale to a new purchaser who intended to use it for grain handling.

The appellant sued for a declaration that the restrictive covenant ran with the land and sought rectification of the original agreement if the covenant was found defective.

The motion judge struck out the rectification claim as disclosing no reasonable cause of action and declared the covenant did not survive the tax sale.

The Court of Appeal allowed the appeal, finding that it was not plain and obvious that the rectification claim could not succeed, and set aside the declaratory orders.

The plaintiff was involved in two separate motor vehicle accidents and sued multiple defendants, including her own insurer, State Farm, because one driver was uninsured.

At trial, one defendant, Hnatiuk, was found 100% responsible for the first accident, and the action against State Farm was dismissed.

The trial judge refused to order Hnatiuk to pay State Farm's costs (a Bullock or Sanderson order) and awarded the plaintiff solicitor-and-client costs against Hnatiuk based on an unaccepted offer to settle that included escalating costs.

On appeal, the Court of Appeal allowed the plaintiff's appeal, granting a Sanderson order directing Hnatiuk to pay State Farm's costs.

The Court dismissed Hnatiuk's appeal regarding the costs award, upholding the solicitor-and-client costs either under the discretion of Rule 49.13 or as a valid Rule 49 offer.

The Crown appealed a forfeiture order made during sentencing for conspiracy to traffic in a narcotic.

The trial judge ordered that out of $100,000 in seized proceeds of crime, $40,000 be paid to Legal Aid Ontario and $12,000 to defence counsel, with the remaining $48,000 forfeited.

The Crown argued this bestowed a financial benefit on the respondents by reducing their indebtedness to Legal Aid.

The Court of Appeal dismissed the appeal, finding the trial judge had discretion under the Criminal Code to make the order and did not misapprehend the facts or proceed on an erroneous principle.

The appellant appealed a custodial sentence.

The Court of Appeal found that the trial judge erred in principle by mechanically applying a two-stage process, which led to a failure to consider the appellant's extraordinary cooperation with police and significant rehabilitation.

The appeal was allowed, and the custodial sentence was varied to a 20-month conditional sentence, with the three-year probation term remaining.

The seven appellants were convicted of trafficking in heroin following an undercover police operation.

They appealed their convictions on several grounds, primarily arguing that the 44.5-month delay between their charges and trial violated their right to be tried within a reasonable time under s. 11(b) of the Charter.

The Court of Appeal agreed with respect to six of the appellants, finding the delay was largely systemic and caused prejudice, and ordered a stay of proceedings for those six.

The appeal of the seventh appellant, who was arrested much later, was dismissed on all grounds, including arguments regarding the destruction of police notes, jury instructions, and sentence fitness.

The parties separated in 1992 and the limitation period for an equalization claim expired in December 1998.

The appellant retained counsel in September 1998, and negotiations regarding the respondent's pension continued past the limitation period.

When negotiations failed, the appellant commenced an action and sought an extension of time under s. 2(8) of the Family Law Act.

The motions judge dismissed the motion, finding bad faith and prejudice.

The Court of Appeal allowed the appeal, holding that the motions judge erred by focusing only on the pre-1998 delay and by finding prejudice where the respondent had notice of the claim before the limitation period expired.

The appellant was convicted of assault, unlawful confinement, assault causing bodily harm, and sexual assault with a weapon.

He appealed on several grounds, including the defective form of the indictment and the improper conduct of Crown counsel.

The Court of Appeal found that while the indictment was improperly drafted, the Crown's particulars cured the defect for most counts, except count #10.

However, the Court held that Crown counsel's cross-examination of the appellant was highly improper, sarcastic, and abusive, and improperly attacked the appellant's character.

This misconduct, combined with an improper jury address, created a real danger of a miscarriage of justice.

The appeal was allowed and a new trial ordered.

The appellant appealed his convictions for attempted murder and assault with a weapon, arguing the trial judge erred in handling jury selection and failing to hold a fitness hearing.

The Court of Appeal agreed, finding the trial judge improperly denied the appellant's right to challenge jurors for cause regarding pre-trial publicity by instead asking a general question to the panel.

Furthermore, the trial judge erred by not directing a fitness hearing when the self-represented appellant exhibited clear signs of mental illness and an inability to understand the proceedings.

The convictions were set aside, and the appellant was declared unfit to stand trial.

The appellant appealed his conviction, arguing ineffective assistance of counsel because his trial counsel failed to apply to strike his guilty plea after learning of a second DNA test.

The Court of Appeal dismissed the appeal, finding that counsel had informed the appellant of the test and its significance.

The court held that counsel's decision not to seek to set aside the plea was within the bounds of competency, as the second DNA test would have had minimal impact given the strong independent evidence confirming the complainant's testimony.

The appellant, a bouncer, struck a patron outside a tavern, causing the patron to fall and hit his head on the concrete, resulting in death.

The preliminary inquiry judge committed the appellant for trial on a charge of murder, finding evidence that he knew his actions were likely to cause death and was reckless.

The appellant's application for certiorari to quash the committal was refused.

On appeal, the Court of Appeal dismissed the appeal, holding that while the evidence of the requisite knowledge was weak, there was a scintilla of evidence to support the committal.

The appellant appealed his conviction for break, enter and theft.

The trial judge had convicted the appellant based on circumstantial evidence, specifically that his promise to appear from an unrelated matter was found inside the premises.

The Court of Appeal allowed the appeal and quashed the conviction, finding that there was no evidence of a break-in, no evidence the appellant entered the premises, and the presence of the promise to appear did not establish that the appellant was the thief.

The circumstantial case could not reasonably support the finding that the appellant was the only reasonable inference.

The appellant was convicted of attempted murder after a second trial, the first having resulted in a hung jury on that count but a finding of guilt on the included offence of aggravated assault.

The appellant appealed the conviction, arguing autrefois convict and errors in the jury charge.

The Crown appealed the trial judge's dismissal of a dangerous offender application and the sentence imposed.

The Court of Appeal dismissed the appellant's appeals, holding that autrefois convict requires a final adjudication including a sentence.

The Court allowed the Crown's dangerous offender appeal, ordering a new hearing because the trial judge failed to properly assess the brutality threshold and the psychiatric evidence regarding the appellant's sexual sadism.

The Crown's sentence appeal was dismissed.