OCA 2005

The defendants appealed the dismissal of their motion to stay a proposed class action in favour of arbitration.

The plaintiff brought a motion to quash the appeal, arguing it was precluded by s. 7(6) of the Arbitration Act.

The Court of Appeal granted the motion to quash, finding that the motions judge's decision was interlocutory because she deferred the final determination of whether the dispute should be arbitrated to the certification stage of the class proceeding.

As the order was not final, s. 7(6) of the Arbitration Act applied to bar the appeal.

The appellant challenged the jurisdictional and constitutional validity of a City of Toronto by-law requiring restaurant operators to post the results of food premises inspections.

The appellant argued the by-law conflicted with provincial health legislation and infringed freedom of expression under the Charter.

The Court of Appeal dismissed the appeal, finding the city had jurisdiction to enact the by-law under its business licensing powers and that the by-law did not unjustifiably infringe Charter rights.

The Crown brought an application under section 680 of the Criminal Code seeking a review of an order granting judicial interim release to the respondent pending his retrial for murder.

The respondent had been in custody since 1990 and was granted bail on strict terms following a successful appeal that ordered a new trial.

The Chief Justice found that the Crown's motion had arguable merit given the unique combination of factors and directed that a panel of the Court of Appeal review the bail decision.

The appellant appealed a trial judge's decision dismissing its trust claim under the Construction Lien Act.

The trial judge had inquired into the bona fides of the appellant's invoice during the trial of an issue in family law and trust claim litigation.

The Court of Appeal dismissed the appeal, finding that the trial judge was entitled to examine the invoice and that expert evidence demonstrated the invoice was unsupportable, meaning no trust claim could arise for work not performed.

The appellants appealed a trial judgment awarding the respondent $90,000 in general damages for defamation arising from a newspaper article.

The article reported on a mistrial in a murder case, suggesting the respondent, a senior government official, had improperly pressured a forensic scientist to change his evidence.

The Court of Appeal upheld the trial judge's finding that the article was defamatory and that the defence of absolute privilege under s. 4(1) of the Libel and Slander Act did not apply because the report was not a fair and accurate account of the proceedings.

The court also dismissed the cross-appeal seeking increased and punitive damages, finding the damage award appropriate and no malice established.

The appellants appealed an order of the Divisional Court regarding a motion to set aside a noting of default and default judgment.

The Court of Appeal found no evidence to support a defence for the conceded construction costs of $336,409.34, but found evidence capable of supporting a defence for the remainder of the respondent's claims.

The Court varied the principal amount of the default judgment from $2,536,789.00 to $336,409.34 and allowed the respondent's claim for the additional amounts to proceed, while maintaining the writs of seizure and sale and registered liens pending trial.

The insured appealed a decision of the motion judge that there was no genuine issue for trial.

The Court of Appeal allowed the appeal, finding that the case raised issues relating to the interpretation of s. 9.1 of the Automobile Insurance Regulations and issues of credibility concerning the effectiveness of service and the existence and timing of a settlement.

Given the credibility issues, the motion judge did not have a proper record to interpret s. 9.1 and erred in failing to find a genuine issue for trial.

The appellants appealed a trial judgment awarding the respondent damages for the costs of correcting a stone embankment that was not erected in accordance with a site plan agreement, as well as costs of the action.

The Court of Appeal upheld the trial judge's findings on liability and damages, noting the embankment was unstable and unsafe.

However, the Court allowed the appeal regarding costs, finding the trial judge erred in her discretion, and reduced the trial costs award from $102,981.64 to $60,000.

The appellant appealed his conviction and sentence for driving offences arising from a serious collision.

He argued issues related to bolus drinking, a discrepancy in the time of the collision, and a violation of his right to be present under s. 650 of the Criminal Code.

The Court of Appeal dismissed the conviction appeal, finding the trial judge correctly addressed bolus drinking and that the appellant's absence when written reasons were delivered did not violate s. 650.

Leave to appeal the sentence was refused due to the appellant's serious driving record and the severity of the collision.

The parties divorced in 1987, with the respondent ordered to pay spousal and child support.

In 1992, the respondent's income dropped significantly when he began a medical residency, and a variation order terminated spousal support on consent.

Years later, after the respondent's income increased substantially, the appellant applied to vary the 1992 order to reinstate spousal support.

The motion judge dismissed the application, relying on previous appellate authority holding that a dismissed support claim cannot be varied.

The Court of Appeal allowed the appeal, overruling its previous decisions in light of the 1997 amendments to the Divorce Act.

The Court held that the expansive language of the amended Act provides courts with the jurisdiction to vary an earlier dismissal of spousal support.

The appellants appealed a summary judgment finding them liable on a mortgage.

They argued they were not liable because they did not sign the agreement of purchase and sale, although their son directed title to be taken in all three names and they signed the mortgage.

The Court of Appeal dismissed the appeal, agreeing with the motions judge that the defence of non est factum was answered by Marvco Colour Research Ltd. v. Harris, and that bald allegations of fraud did not raise a triable issue.

The appellant bank appealed a decision dismissing its motion to reappoint a trustee in bankruptcy and annulling a bankruptcy order, as well as the substantial indemnity costs awarded against it.

The Court of Appeal found no error in the trial judge's conclusion that there were no unrealized or undistributed assets under s. 41(11) of the Bankruptcy and Insolvency Act, noting the bank failed to adduce evidence that certain appraisals would have altered property valuations.

The Court also upheld the substantial indemnity costs orders, finding the trial judge acted within his discretion.

The appeal was dismissed with costs fixed at $15,000.

The appellants appealed a motion judge's decision striking their claims for conspiracy, breach of fiduciary duty, and breach of trust, and refusing leave to amend.

The Court of Appeal agreed that the pleadings lacked the required particularity and were deficient.

However, the Court found the motion judge erred in refusing leave to amend, as the pleading did not contain a radical defect incapable of being cured.

The appeal was allowed in part to grant leave to amend those specific claims, while a motion to introduce fresh evidence was dismissed.

The appellant appealed a decision reducing her spousal support from $1,200 to $400 per month.

The respondent had applied to terminate support after discovering the appellant was in a new common-law relationship and receiving financial support from her new partner.

The application judge found a material change in circumstances and reduced support due to the appellant's lack of effort to become self-sufficient.

The Court of Appeal dismissed the appeal, finding no error in the application judge's assessment of the appellant's efforts or the quantum of support, emphasizing the deference owed to trial judges in family law matters.

The appellant appealed a trial judgment regarding child custody, access, child support arrears, a restraining order, and costs.

The Court of Appeal upheld the trial judge's decision on custody, finding no errors that undermined the core analysis.

However, the Court set aside the trial judge's reduction of access, substituting the recommendations of the Children's Lawyer.

The Court also set aside the restraining order and the finding of child support arrears due to a lack of evidentiary basis.

Finally, the trial costs award was reduced from $20,000 to $6,000.

The appellants appealed a summary judgment dismissing their third party claim against the respondent.

The motion judge had concluded that Captain Pulley had not been designated within the meaning of an Indemnity and that a paragraph of the Indemnity applied only to claims by non-union members against union members.

The Court of Appeal found that the motion judge improperly weighed evidence and drew inferences of fact, particularly given the absence of evidence based on personal knowledge from the respondent concerning the practice of making designations.

The appeal was allowed, the summary judgment set aside, and costs of $15,000 awarded to the appellant.

The appellant appealed an order declaring him a vexatious litigant, staying his previously instituted proceedings, and requiring him to obtain leave before instituting further proceedings.

He also appealed a costs order of $21,000 and the dismissal of two other motions.

The Court of Appeal found the appeals to be without merit, noting the appellant's unfounded allegations of bias against judges.

The appeal was dismissed, the vexatious litigant order was confirmed, and costs of $5,000 were awarded to the respondents.

The appellant consented to the dismissal of the appeal on the basis that there would be no costs in the Court of Appeal or the court below.

The Court of Appeal ordered the dismissal on consent.

The appellant was convicted of criminal harassment for sending two unwanted letters to the complainant over an 18-month period.

He appealed, arguing that two communications do not meet the threshold of 'repeatedly' communicating under s. 264(2)(b) of the Criminal Code.

The Court of Appeal dismissed the appeal, holding that 'repeatedly' means more than once, and that two communications can suffice depending on the context and history between the parties.

The court also denied leave to appeal the sentence of 18 months' imprisonment, finding it manifestly fit given the appellant's extensive criminal record.

The appellant appealed an order committing him for extradition to the United States on charges of conspiracy and attempt to launder proceeds of crime obtained by trafficking in a controlled substance.

The Court of Appeal found that while the evidence supported an inference that the cash was from illicit activity, there was no evidence specifically linking it to drug trafficking.

The Court rejected the respondent's argument that the specific offence named in the Authority to Proceed was mere surplusage, holding that section 29(1) of the Extradition Act requires evidence justifying committal for the specific offence set out.

The appeal was allowed and the appellant discharged.