OCA 2005

The appellant, an Estate Trustee, appealed an order finding him in contempt of court for filing his materials to pass accounts two weeks late.

The Court of Appeal allowed the appeal and set aside the contempt order, finding that the motion judge made a palpable and overriding error by failing to address the criminal burden of proof and ignoring evidence of the appellant's efforts to comply.

The Court reiterated that contempt powers should be exercised with scrupulous care and only when the conduct is wilful, deliberate, and contumacious beyond a reasonable doubt.

The respondent obtained summary judgment against the appellants for an alleged loan under the simplified rules.

The appellants appealed, arguing that the statement of claim only pleaded a single loan of $22,750 (U.S.), which they claimed to have repaid, rather than a revolving line of credit as found by the trial judge.

The Court of Appeal allowed the appeal and set aside the summary judgment, finding that the trial judge erred by granting judgment based on a revolving line of credit that was not properly pleaded in the statement of claim.

The appellant appealed an interlocutory order of the Superior Court of Justice.

The Court of Appeal dismissed the appeal as abandoned, noting that even if it had not been abandoned, it would have been quashed because an appeal of an interlocutory order lies to the Divisional Court with leave.

Costs were awarded to the respondent in the amount of $5,000 on a partial indemnity basis.

The appellant appealed his convictions for conspiracy to commit bodily harm and conspiracy to commit aggravated assault arising from a home invasion.

He argued that the Crown failed to disclose an interview with a witness who would have testified that the appellant was not involved, and that the verdict was unreasonable.

The Court of Appeal dismissed the appeal, finding that the fresh evidence did not meet the Palmer criteria as it was available at trial and not reasonably capable of belief.

The court also held that the verdict was reasonable, as there was evidence supporting the trial judge's conclusion that the appellant acted as a recruiter and organizer.

The defendants appealed an order striking their statement of defence for failing to comply with production orders.

The Court of Appeal allowed the appeal, finding the motions judge erred in principle by striking the pleading without reviewing all the affidavit evidence.

The Court concluded the 'ultimate litigation remedy' was not warranted given the defendants' efforts to comply, mutual delay, and limited evidence of prejudice to the plaintiff.

The defendants were ordered to produce all outstanding documents within seven days.

The appellant acquired an existing hotel and spent $39 million to gut and redevelop it, leaving only the structural elements intact.

The Municipal Property Assessment Corporation increased the property's current value assessment, treating the redevelopment as an 'alteration, enlargement or improvement' under the Municipal Act rather than the 'erection' of a new building.

The appellant appealed, arguing the retrofit should be considered an 'erection' to benefit from a statutory cap on property taxes for new properties.

The Court of Appeal dismissed the appeal, holding that based on the ordinary meaning of the words and the appellant's own characterization of the project for building permit purposes, the retrofit was an alteration and not the erection of a building.

The grievor, a nurse, was dismissed for innocent absenteeism after a non-work-related injury frustrated her employment contract.

The employer refused to pay severance pay, relying on s. 58(5)(c) of the Employment Standards Act, which exempts employers from paying severance to employees whose contracts are frustrated due to illness or injury.

The union grieved the denial as a violation of s. 15 of the Charter.

The Court of Appeal upheld the Divisional Court's finding that the provision discriminates against disabled employees by perpetuating the stereotype that they will not return to the workforce, and declared the provision unconstitutional.

The respondents, a group of neighbours, obtained an injunction from the Superior Court restraining the landlords from operating an illegal rooming house.

When the landlords failed to evict the tenants through the Ontario Rental Housing Tribunal, the neighbours obtained a Superior Court order requiring the tenants to vacate the premises.

The tenants appealed, arguing the court lacked jurisdiction.

The Court of Appeal allowed the appeal, holding that the Tenant Protection Act confers exclusive jurisdiction on the Tribunal to terminate residential tenancies and evict tenants, thereby ousting the Superior Court's jurisdiction to make such an order.

The primary insurer defended an action arising from a motor vehicle accident and sought equitable contribution for defence costs from the excess insurer.

The excess insurer was not notified of the claim until four and a half years after the accident and was not plainly at risk until shortly before trial.

The application judge ordered the excess insurer to pay a proportionate share of the defence costs.

On appeal, the Court of Appeal held that an excess insurer's obligation to contribute to defence costs is premised on the existence of a duty to defend, which only arises upon notice of a claim.

Given the late notice and the fact that the excess insurer did not sit back and benefit from the primary insurer's work, it was not fair or equitable to require contribution.

The appeal was allowed and the application dismissed.

Following an appeal decision, the parties provided a joint submission regarding the costs of the first and second trials.

The Court of Appeal issued supplementary reasons ordering that the costs of both prior trials be reserved to the judge presiding over the third trial, in accordance with the parties' agreement.

The appellant appealed his conviction and sentence for an offence involving the theft of jewellery and the alleged use of an imitation gun.

He argued the trial judge failed to distinguish between credibility and reliability, ignored his statement to police, and that the Crown's cross-examination was improper.

The Court of Appeal dismissed the conviction appeal, finding the trial judge properly assessed the evidence and that, while there were improprieties in the cross-examination, they did not destroy the appearance of a fair trial in a judge-alone proceeding.

The sentence appeal was also dismissed.

The mother brought an application for child support for the parties' child, who was over the age of majority and attending university away from home.

The application judge ordered the father to pay retroactive child support, ongoing table amounts, and a pro-rated share of extraordinary expenses.

The father appealed.

The Court of Appeal allowed the appeal, finding that the application judge failed to properly consider the factors for retroactive support, lacked sufficient evidence to justify the extraordinary expenses, and erred by not considering whether the table amount was inappropriate under s. 3(2)(b) of the Guidelines for a child attending university away from home.

The court set aside the order and directed a trial of the outstanding issues.

The appellant appealed his conviction for criminal harassment.

The Court of Appeal dismissed the appeal, finding it was open to the trial judge to reject the appellant's evidence and that his knowledge of the complainant's fear, or recklessness thereto, was self-evident.

The court also found ample evidence to support the finding of harassment and no air of reality to the defence of honest but mistaken belief.

The appellants, directors and officers of a bankrupt general contractor, appealed the dismissal of their motion to amend their statement of defence and compel further document production in a subrogated breach of trust action brought by the respondent sureties.

The Court of Appeal held that improvident underwriting was not a tenable defence to a subrogated action for breach of trust under the Construction Lien Act.

The Court also held that the limitation period in s. 45(1)(h) of the Limitations Act applies only to penal actions, whereas s. 13 of the Construction Lien Act is remedial, making the limitation defence untenable.

However, the Court allowed the appeal in part, granting leave to amend the statement of defence to plead the doctrine of laches.

The appellant wife appealed a motion judge's decision denying her request to recalculate child support for 2003 based on the respondent husband's disclosed income.

The motion judge had found that the history of litigation did not support retroactive child support.

The Court of Appeal allowed the appeal, holding that the clear language of the consent order required both a recalculation of the previous year's support with an immediate adjustment payment, and a prospective adjustment to the current year's support.

The appellants defaulted on a mortgage held by the respondent, who subsequently attorned rents, took possession of the property, and sold it under a power of sale.

The respondent sued for the deficiency, while the appellants counterclaimed for damages, alleging improper procedures and mismanagement.

The trial judge dismissed the deficiency claim and awarded the appellants reduced damages.

On appeal and cross-appeal, the Court of Appeal upheld the respondent's right to take possession and sell the property but found the trial judge erred in valuing the property based on an internal memorandum and failed to properly assess whether the respondent breached its duties as a mortgagee in possession.

The matter was remitted for a new trial on the issues of mismanagement, valuation, and the deficiency claim.

The Crown appealed the accused's acquittal on driving charges.

At arraignment, the Crown sought to amend the information to correct the make and model of the accused's vehicle.

The defence refused to consent, and the trial judge refused the amendment, citing prejudice.

The Crown offered no evidence, resulting in an acquittal.

The Court of Appeal dismissed the appeal, holding that while the trial judge erred in finding prejudice, she correctly refused the amendment because a court has no power under s. 601 of the Criminal Code to amend an information to conform to evidence before any evidence has been heard.

The appellant appealed an order enforcing Minutes of Settlement.

Under the settlement, the respondent was required to provide two quotes for hazardous waste management, and the appellant was to pay half of the lowest 'acceptable' price.

The Court of Appeal found that the quotes provided were shams, as the individuals submitting them did not carry on a legitimate hazardous waste management business and lacked the necessary licences and equipment.

The motion judge erred by focusing on whether the prices were reasonable rather than whether the quotes were acceptable.

The appeal was allowed and the order enforcing the settlement was set aside.

The appellant was convicted of three counts of criminal negligence causing death and one count of criminal negligence causing bodily harm after driving impaired the wrong way on a 400-series highway.

He appealed his convictions, arguing the trial judge erred by refusing an adjournment and forcing him to proceed unrepresented after his counsel was removed from the record.

The Court of Appeal dismissed the conviction appeal, finding the trial judge reasonably concluded the appellant was manipulating the system to delay the trial.

The sentence appeal was also dismissed, with the court upholding the nine-year imprisonment term due to the severe aggravating factors.

The appellant condominium corporation obtained a compliance order against the respondent unit owner for operating a short-term rental business.

The appellant then added its actual legal and administrative costs to the respondent's common expenses and registered a lien under s. 85(1) of the Condominium Act.

The motion judge discharged the lien, finding that 'additional actual costs' under s. 134(5) did not include legal costs beyond those awarded by the court.

The Court of Appeal allowed the appeal, holding that s. 134(5) permits a condominium corporation to recover its actual legal costs incurred in obtaining the order, including appeal costs, but not enforcement or unrelated administrative costs.

A reference was ordered to determine the proper amount of the lien.