OCA 2003

The appellants appealed a trial judge's determination that a motel transfer was a fraudulent conveyance.

The appellants attempted to advance a secret trust argument for the first time on appeal, which the Court of Appeal rejected as unsupported by the record.

The Court upheld the trial judge's finding of a fraudulent conveyance, resulting in the motel becoming an asset of the numbered company subject to the respondent's claim.

The appeal was dismissed with costs.

The worker was injured in a motor vehicle accident during the course of her employment and elected to receive workers' compensation benefits.

She later sought to withdraw her claim to pursue a civil action against the alleged tortfeasor.

The Workplace Safety and Insurance Board required her to agree to reimburse the benefits paid to her as a condition of re-election.

The application judge held that the Board could not require reimbursement because the Insurance Act removed its right of subrogation.

The Court of Appeal allowed the appeal, holding that the arrangement between the Board and the worker was not subrogation, and the Board retained the right to require reimbursement directly from the worker to prevent double recovery.

The appellant appealed the dismissal of an action commenced approximately 25 years after the events in question.

The trial judge had dismissed the action as statute-barred by the Limitations Act and under the equitable doctrine of laches, noting that key documents were lost, parties dissolved, and witnesses deceased.

The Court of Appeal found no error of fact or law, concluding that the respondent had been substantially prejudiced by the passage of time, and dismissed the appeal with costs.

The Crown appealed the accused's acquittal on a charge of sexual assault.

The trial judge had acquitted the accused based on the defence of honest but mistaken belief in consent, relying on the complainant's equivocal conduct.

The Court of Appeal allowed the appeal, finding that the trial judge failed to consider a crucial interchange between the parties when assessing whether the accused took reasonable steps to ascertain consent under s. 273.2(b) of the Criminal Code.

The acquittal was set aside and a new trial ordered.

The appellant appealed his conviction for possession of cocaine for the purpose of trafficking.

He argued that the trial judge should have declared a mistrial when a juror expressed doubt during polling, that an adverse inference instruction should have been given for the Crown's failure to call a witness, and that the jury charge was inadequate.

The Court of Appeal dismissed the appeal, finding that the trial judge properly exercised her discretion to allow further deliberations after the jury poll, that the jury was properly instructed on reasonable doubt arising from an absence of evidence, and that the jury charge was adequate.

The appellant was convicted of aggravated assault and assault with a weapon after stabbing the complainant in a shower.

On appeal, he argued the trial judge erred by refusing to instruct the jury on self-defence and by not admitting preliminary inquiry evidence under the principled approach to hearsay.

The Court of Appeal dismissed these grounds, finding no evidentiary basis for self-defence and noting the hearsay issue was not raised at trial.

However, the court found that convictions for both offences offended the rule against multiple convictions, staying the assault with a weapon conviction and affirming the aggravated assault conviction.

The moving parties, Global Payments Direct Inc. and Global Payments Canada Inc., sought to expedite and consolidate the hearing of their motion for leave to appeal and the appeal itself from an order in Air Canada's CCAA proceedings.

The moving parties sought security for their exposure to credit card chargebacks.

The Court of Appeal held that while it had jurisdiction to consolidate the proceedings under Rule 2.03, such an order is exceptional.

The court expedited the leave motion and potential appeal but declined to consolidate them, finding the moving parties would not suffer substantial prejudice if the usual practice of separate hearings was followed.

The appellant insurer appealed a motion judge's decision finding that the respondents' newly acquired vehicle was insured as an 'additional automobile' under the Standard Ontario Automobile Policy.

On appeal, the parties agreed to a new fact that the respondent owned another operable vehicle that was not insured by any company.

The Court of Appeal held that the plain wording of section 2.2.1 requires the owner to insure all owned automobiles with the same insurer to trigger the automatic 14-day coverage for an additional vehicle.

Because the respondent owned an uninsured operable vehicle, the precondition was not met.

The appeal was allowed and the insurer was not required to defend or indemnify the respondents.

The appellant wife appealed a trial judgment dismissing her claim for unjust enrichment and challenging the calculation of the respondent husband's net family property.

The appellant argued she was unjustly enriched by advancing funds for home renovations and a basement apartment, but the trial judge found the funds and resulting income were reasonably pooled for household expenses.

The appellant also argued that real estate commissions on unclosed sales should have been valued with hindsight, excluding a failed deal.

The Court of Appeal dismissed the appeal, finding no error in the unjust enrichment analysis and upholding the valuation of the commissions without hindsight, consistent with Supreme Court of Canada precedent.

The appellant commenced two actions against the municipality regarding the removal of religious objects from his mother's grave and the administrative process concerning a monument.

The motion judge struck out most of the claims on the basis of res judicata and abuse of process, as they overlapped with previous Divisional Court litigation.

The Court of Appeal dismissed the appellant's appeal, finding no error in the application of res judicata or the setting aside of a noting in default.

The Court allowed the municipality's cross-appeal in part, striking an additional subparagraph and a jury notice, while declining to order security for costs.

The appellant issued a statement of claim against the provincial Crown for physical and sexual abuse she allegedly suffered between 1942 and 1956 while a ward of a children's aid society.

The Crown moved to strike the pre-1963 claims, arguing they were barred by sections 28 and 29 of the 1970 Proceedings Against the Crown Act, which preserved Crown immunity and the petition of right procedure for claims existing before September 1, 1963.

The Court of Appeal upheld the motion judge's decision, finding that sections 28 and 29 remain in effect despite their omission from subsequent consolidations, that the discoverability principle does not apply to section 29(1), and that the appellant is barred from proceeding with the pre-1963 claims by way of a statement of claim.

The appellant municipality appealed the acquittal of the respondents on a charge of breaching a zoning by-law by storing used tires on their agricultural property.

The lower courts acquitted the respondents on the basis that the tires were intended to be used as building material for fences.

The Court of Appeal allowed the appeal, finding that the accumulation of thousands of tires over a three-month period constituted 'storage' in contravention of the by-law, regardless of the eventual intended use.

The acquittals were set aside, convictions entered, and nominal fines imposed.

The appellant lawyer sued his former law firm and its managing partner for defamation based on comments published in a legal newspaper following his departure from the firm.

The defendants successfully moved to strike the statement of claim on the basis that the words were not reasonably capable of bearing the defamatory meanings alleged.

The Court of Appeal upheld the motion judge's decision, finding that the impugned words, when construed in context and according to their natural meaning, were not capable of meaning that the appellant was forced out, unable to work as a team, selfish, or unprofessional.

The appeal and a motion for leave to appeal costs were dismissed.

Three separate appeals were brought challenging a motions judge's order regarding claims related to defective breast implants.

OHIP appealed the striking of its subrogated claim, which the court dismissed, finding the claim was fully satisfied by the Dow Settlement Agreement.

The Attorney General and Dow appealed the dismissal of their motions to strike the plaintiffs' action for regulatory negligence, arguing the settlement agreements barred the claims and constituted an abuse of process.

The Court of Appeal dismissed all appeals, holding that the plaintiffs' several liability claims against the government regulator were different in nature and kind from the settled claims and were not barred by the prior agreements.

The appellant appealed a decision regarding the validity of a sworn information.

The Court of Appeal dismissed the appeal, finding it unnecessary to decide whether extrinsic evidence was admissible because the material in the information itself established the year it was sworn, proving the limitation period had not expired.

The information was not a nullity.

The appellant appealed an order staying her Ontario action.

On appeal, she raised a new issue regarding whether her claim against the respondents was barred by Quebec limitation periods, which would affect the juridical advantage analysis.

Because there was no evidentiary record on this issue, the Court of Appeal amended the lower court's order to provide for a conditional stay of the Ontario action pending the final determination of the limitation period question under Quebec law.

The appellant, ING Canada Inc., appealed a decision finding it breached warranties in a share purchase agreement regarding the funding of a pension plan.

ING had taken contribution holidays by relying on an actuarial surplus in a separate trust (the Halifax Trust) to offset deficits in the non-Halifax portion of the plan.

The Court of Appeal dismissed the appeal, holding that the clear terms of the Halifax Trust prohibited the diversion of its assets for the benefit of non-beneficiaries.

Consequently, ING was not entitled to use the Halifax Trust surplus to calculate its funding obligations for the rest of the plan.

The respondents in an appeal brought a motion to set aside an order dismissing their motion for interim costs.

They sought $5,000,000 to fund their legal expenses, arguing they could not afford to respond to the appeal and that the appellants were unfairly using corporate assets to fund their own litigation.

The Court of Appeal dismissed the motion, finding that the request for interim costs was tantamount to a motion to lift the automatic stay of the money judgment, which had already been denied.

The court held that while section 134(2) of the Courts of Justice Act provides broad jurisdiction to make interim orders to prevent prejudice pending appeal, the respondents failed to demonstrate that the appellants' use of corporate assets prevented them from effectively responding to the appeal or dissipated assets so as to undermine the effectiveness of any order on appeal.

The appellant was convicted of armed robbery based solely on the uncorroborated evidence of a single eyewitness.

The eyewitness had a limited opportunity to observe the robber, gave a problematic description, and made a tenuous identification from a photo line-up.

The Court of Appeal allowed the appeal, quashed the conviction, and entered an acquittal, finding the identification evidence too weak to safely found a conviction.

MacPherson J.A. dissented, finding no basis to interfere with the trial judge's verdict.

The appellant appealed his convictions for assault causing bodily harm and choking with intent to commit an indictable offence against his wife.

The Court of Appeal upheld the conviction for assault causing bodily harm, finding it amply supported by the evidence.

However, the court set aside the choking conviction, concluding that the choking was part of the assault itself and not done with the specific intent to enable or facilitate the assault.

The appeal was allowed in part, and an acquittal was entered on the choking count.