OCA 2004

The appellant appealed the dismissal of its application for a certificate of pending litigation and specific performance of a real estate agreement.

The agreement was signed by an individual using an unregistered business name 'in trust for a company to be formed'.

The appellant, a pre-existing company, claimed status through a later assignment.

The Court of Appeal dismissed the appeal, holding that the individual violated the Business Names Act and lacked capacity to maintain a proceeding or assign benefits to circumvent the legislation.

The appellant appealed his conviction for unlawful confinement, seeking to introduce fresh evidence consisting of a divorce petition containing a claim by the complainant for the matrimonial home.

The appellant argued this evidence contradicted the complainant's trial testimony and affected her credibility.

The Court of Appeal dismissed the appeal, finding the proposed fresh evidence did not satisfy the Palmer criteria for admissibility, as it could have been available at trial with due diligence and would not have affected the result.

The plaintiff, a large gold producer, was the target of a vicious and prolonged Internet defamation campaign by the defendant.

The defendant posted hundreds of false and malicious messages on various financial message boards accusing the plaintiff of fraud, tax evasion, and other crimes.

The trial judge awarded $15,000 in general damages and dismissed claims for punitive damages and injunctive relief.

On appeal, the Court of Appeal held that the trial judge failed to appreciate the unique, instantaneous, and borderless nature of Internet defamation.

The Court increased general damages to $75,000, awarded $50,000 in punitive damages, and granted a permanent injunction restraining the defendant from publishing further defamatory statements.

The appellant appealed the sentence imposed for eight robberies of financial institutions committed while on parole for the same offence.

The Court of Appeal found that the sentence was not demonstrably unfit given the appellant's lengthy record and the circumstances of the offences.

A post-sentence report did not alter the fitness of the sentence, as much of the information was already before the trial judge.

Leave to appeal was granted, but the appeal was dismissed.

The moving parties on this costs motion sought costs for their opposition to a stay motion, an application for leave to appeal, and the costs motion itself, claiming up to $67,000.

The Court of Appeal awarded $20,000 in costs for the stay proceeding, noting that the Ministry's decision to terminate the charity's funding had been quashed.

The court declined to alter its previous costs order of $1,500 for the leave to appeal motion.

The appellant company appealed an order declaring it in breach of a redemption obligation and entitling the respondent to immediate redemption of his preference shares for $1,600,000.

The appellant had refused to pay quarterly dividends to the respondent despite having the funds, suspecting the respondent of breaching non-compete obligations.

The Court of Appeal upheld the lower court's finding that the failure to pay dividends constituted a default under the Shareholders' Agreement, triggering the respondent's unconditional right to redeem his shares.

The court rejected the appellant's argument that the default provision only applied when the company lacked funds.

The appellant father appealed an order requiring him to pay child support in accordance with the Guidelines.

He argued that the separation agreement, which gave the mother a greater share of the matrimonial property and in which he waived spousal support, constituted 'special provisions' benefiting the children.

The Court of Appeal dismissed the appeal, agreeing with the applications judge that parents cannot contract away a child's right to support and that there was no objective, child-centred evidence of a special benefit to the children from the separation agreement.

The father was ordered to pay costs of $4,500.

The appellant appealed his sentence, arguing the trial judge failed to properly credit pre-trial custody and consider his guilty plea and status as an Aboriginal offender.

The Court of Appeal dismissed the appeal, finding that the trial judge properly concluded the pre-trial custody did not relate to the charge and was aware of the mitigating factors.

Given the seriousness of the offence, the sentence was not unfit.

The appellants were convicted of possession of heroin and marihuana for the purpose of trafficking after drugs were found during a warrantless search of a family-visit trailer at Collins Bay Penitentiary.

They appealed, arguing the search violated their s. 8 Charter rights, the proceedings were unreasonably delayed, and lost videotape evidence impaired their defence.

The Court of Appeal dismissed the appeals, finding that the family-visit trailer constituted a 'cell' under the Corrections and Conditional Release Act, making the warrantless search lawful.

The court also rejected the delay and lost evidence arguments, and upheld the sentence imposed on the appellant husband.

The respondent operated a body rub parlour in the City of Brantford.

The City had passed an omnibus zoning by-law under the Planning Act that prohibited all uses except permitted ones, effectively requiring a site-specific amendment to operate a body rub parlour.

The respondent was charged with violating the by-law.

The justice of the peace and the appeal judge held the by-law was invalid as being prohibitory.

The Court of Appeal allowed the City's appeal, holding that a by-law prohibiting all uses except permitted ones is not prohibitory but a valid exercise of municipal zoning power under the Planning Act.

The respondent was convicted.

The appellants appealed an order striking their counterclaim, which sought punitive damages based on an independent actionable wrong akin to defamation arising from allegations in the respondent's statement of claim.

The Court of Appeal dismissed the appeal, affirming that allegations in a statement of claim are absolutely privileged and cannot form the basis of such a counterclaim.

The appeal was dismissed with costs fixed at $5,000.

The plaintiff's personal injury action was settled before trial, and the trial proceeded solely to determine liability between the two defendants following a motor vehicle accident.

During the jury trial, the trial judge repeatedly intervened during the cross-examination and re-examination of the investigating police officer, expressing strong opinions that the officer had failed to conduct a thorough investigation.

The trial judge reiterated these criticisms in his charge to the jury.

The Court of Appeal held that the trial judge's interventions and expressions of opinion crossed the line, usurped the role of counsel, and created an appearance of unfairness.

The appeal was allowed and a new trial ordered.

The plaintiffs initially sued for repayment of loans and on a guarantee.

At trial, the plaintiffs argued breach of contract for the purchase of shares.

The trial judge granted judgment to the plaintiffs based entirely on provisions of the Ontario Business Corporations Act (OBCA) relating to share transfers, despite the plaintiffs expressly disavowing any remedy under the OBCA.

The Court of Appeal allowed the appeal, finding it was a breach of natural justice to grant judgment on a basis not pleaded or argued.

A new trial was ordered because the Court of Appeal could not make the necessary findings of fact regarding the contract terms or damages.

The creditor union obtained an order for damages against a corporate debtor for violating a collective agreement.

The debtor subsequently incorporated a new company to evade the debt.

The creditor served notices of garnishment on a garnishee who owed money to the debtor.

The garnishee continued to pay the debtor under its new corporate name, claiming it owed no money to the specific entities listed on the garnishment notices.

The motions judge ordered the garnishee to pay the creditor, finding the garnishee knew the new company was the same debtor.

The Court of Appeal dismissed the garnishee's appeal, holding that under Rule 60.08(16), the court has broad discretion to determine the rights and liabilities of a garnishee and prevent unjust evasion of garnishment obligations.

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

The Court of Appeal found that the trial judge erred in concluding there was no section 8 Charter violation, as the appellant was detained and should have been given his section 10(b) rights before consenting to the search.

However, the Court held that the evidence should not be excluded under section 24(2).

The Court also found the verdict was reasonable given the overwhelming evidence that the appellant and his companion were drug couriers.

The appeal was dismissed.

The appellant appealed the dismissal of his motion for certiorari regarding his committal for trial on a charge of first degree murder.

The Court of Appeal dismissed the appeal, finding that there was a basis upon which the preliminary inquiry judge could conclude that a reasonable jury properly instructed could find the appellant guilty under section 231(5)(e) of the Criminal Code.

The appellants, members of the Progressive Conservative Party of Canada, sought a declaration that the party could not merge with the Canadian Reform Conservative Alliance Party without the unanimous consent of all its members.

The application judge dismissed the application, finding that the Canada Elections Act governed the merger.

On appeal, the Court of Appeal upheld the decision, ruling that the common law requirement for unanimous consent in voluntary associations does not apply to registered political parties, which are governed by a sophisticated statutory regime.

Furthermore, the Canada Elections Act explicitly outlines the requirements for a merger, which do not include unanimous consent.

The appellant appealed an order dismissing his solicitor negligence action for delay under Rule 24.01(1).

This was the appellant's third action dismissed for delay, stemming from a 1956 construction contract dispute.

The Court of Appeal found no error in the motion judge's findings that the appellant was responsible for the delay, that there was no justifiable excuse, and that the defendants suffered prejudice.

The appeal was dismissed.

The appellant appealed his conviction and sentence for aggravated assault.

The Court of Appeal upheld the conviction, finding that the appellant was trespassing and engaged in an unlawful assault when he and the victim went over a balcony, establishing causation.

However, based on fresh evidence of the appellant's significant progress during his 18 months in custody, the Court allowed the sentence appeal and varied the sentence to time served plus two years of probation.

The Crown appealed the sentences imposed on the respondents.

The Court of Appeal upheld the sentence for the first respondent based on his degree of complicity and personal circumstances.

For the second respondent, the Court noted the sentence should have been custodial, but declined to interfere given the passage of time, completion of an extensive community service order, and personal circumstances.

The Court also declined to set out sentencing principles for the criminal organization charge due to the unique circumstances and joint submission of the parties.

The appeals were dismissed.