OCA 2005

The appellants appealed a decision interpreting a shareholders' agreement and related documents concerning rights of first refusal and first offer for shares in a publicly traded company.

The respondents had delivered selling notices offering to sell shares to the appellants on terms substantially in accordance with a draft acquisition agreement with a third party, which included a 'superior proposal' condition.

The appellants accepted the offer but argued the superior proposal condition did not apply to them.

The Court of Appeal dismissed the appeal, finding that the selling notices incorporated the superior proposal conditions and that interpreting the agreement to allow the appellants to preempt the superior proposal process would be contrary to commercial reality and the goal of maximizing share value.

The appellant, a major shareholder of Financial Models Company, moved for a stay of a Commercial List decision and an injunction preventing other shareholders from tendering their shares to a competing take-over bid by Linedata Services S.A., pending an expedited appeal.

The motion judge had ruled that the appellant's acceptance of a sell offer was invalid under the Securities Act and that the other shareholders could include a 'superior proposal' condition.

The Court of Appeal granted the stay and injunction, finding that the balance of convenience favoured the appellant, who provided an undertaking as to damages, and ordered an expedited appeal.

The applicant, who was on full parole after being convicted of child pornography offences, sought bail pending appeal to modify a parole condition restricting his access to computers.

The Crown opposed the application, arguing the court lacked jurisdiction under s. 679 of the Criminal Code because a person on full parole is not in 'custody'.

The Court of Appeal held that full parole is a form of custody sufficient to engage the court's jurisdiction under s. 679.

The court granted bail pending appeal and modified the conditions to allow the applicant to use computers and the internet for employment purposes.

The appellants appealed a trial judge's costs disposition.

Prior to trial, the appellants offered to settle the case for $85,100.

The parties later agreed on damages of $125,000, and the trial proceeded only on liability, resulting in a finding against the respondents.

The trial judge held that the agreement on damages invalidated the prior offer to settle and awarded partial indemnity costs.

The Court of Appeal allowed the appeal, finding that the offer to settle was not withdrawn and Rule 49.10 applied, entitling the appellants to substantial indemnity costs from the date of the offer.

The court remitted the quantum of costs to the trial judge and upheld the refusal to award a risk premium.

The appellant appealed his conviction and sentence.

The Court of Appeal granted leave to appeal the sentence but dismissed the appeal, finding that the trial judge was entirely justified in imposing the sentence given the gravity of the breaches, the appellant's prior record, and the need for the protection of society.

The appellants, who are Black, were convicted of robbery and related offences.

During jury selection, defence counsel were permitted to challenge prospective jurors for cause based on racial bias.

The appellants appealed their convictions, arguing that the trial judge's instructions to the triers on the challenge for cause procedure were inadequate and that the trial judge erred in his rulings regarding peremptory challenges when sworn jurors had to be replaced.

The Court of Appeal dismissed the appeal, finding that the instructions to the triers were sufficient and that, although the trial judge erred in law by initially granting extra peremptory challenges, the error caused no prejudice to the appellants.

The appellant husband appealed a divorce judgment regarding pension valuation, investment ownership, spousal support, retroactive spousal support, matrimonial home valuation, and the terms of an equalization payment.

The Court of Appeal upheld the trial judge's findings on pension valuation, investments, ongoing spousal support of $1700 per month, and the matrimonial home valuation.

However, the Court found the trial judge failed to explain the basis for awarding $30,000 in retroactive spousal support and remitted that issue to the trial judge.

The Court also set aside the terms regarding the equalization payment and non-depletion order, remitting them to the trial judge if the parties cannot agree.

The appellant appealed his convictions for production of marijuana, possession for the purpose of trafficking, mischief, and theft of electricity, as well as his 90-day intermittent sentence.

He argued the trial judge erred in finding he had control over the prohibited substance.

The Court of Appeal dismissed the conviction appeal, finding it was open to the trial judge to infer control given the obviousness of the grow operation and the appellant's 37-minute stay in the residence.

The sentence appeal was also dismissed, as the sentence was not demonstrably unfit given the size and sophistication of the operation.

The appellant appealed her conviction for attempting to obstruct justice following a guilty plea.

She sought to introduce fresh evidence demonstrating that she honestly believed the information she asked a social worker to provide to the police was true, and that her trial counsel failed to identify and investigate this defence of honest mistake of fact.

The Court of Appeal admitted the fresh evidence, finding that trial counsel's failure to investigate the defence resulted in an uninformed guilty plea.

The appeal was allowed, the conviction set aside, and a new trial ordered.

The Bank of Nova Scotia brought a motion to quash the appellant's Notice of Appeal on the basis that it was filed approximately five months late.

The appellant brought a cross-motion seeking an extension of time to serve a fresh Notice of Appeal.

The Court of Appeal granted the motion to quash and dismissed the cross-motion, finding that the appellant had been notified of the time limit, the appeal lacked merit, and the interests of justice did not warrant an extension of time.

The appellant sued his former spouse's divorce lawyer, alleging the lawyer maliciously advised the spouse to fabricate criminal charges against him to gain an advantage in matrimonial litigation.

The motion judge struck the statement of claim under Rule 21 for failing to disclose a reasonable cause of action.

The Court of Appeal allowed the appeal, holding that the pleaded facts were capable of supporting claims for intentional torts such as false imprisonment, malicious prosecution, abuse of process, and civil conspiracy, which are not defeated by the rule that a lawyer owes no duty of care to an opposing party.

The appellants, a secured creditor and an interim receiver, appealed a decision granting priority to carriers over funds collected by a bankrupt freight broker.

The broker had failed to maintain a separate trust account for carriers' charges as required by provincial regulation, instead co-mingled the funds while tracking them in an accounting system.

The Court of Appeal held that provincial statutory deemed trusts do not exclude property from a bankrupt estate unless they satisfy general trust principles, which require strict segregation.

Consequently, the co-mingled funds collected before the receivership lost their trust character and were subject to the secured creditor's interest.

However, the interim receiver was obligated to hold funds collected after its appointment in trust for the carriers.

The appellant, an inmate, was convicted of second-degree murder for stabbing a fellow inmate and was sentenced to life imprisonment with 18 years of parole ineligibility.

He appealed the conviction, arguing errors in the jury instructions regarding self-defence, manslaughter, after-the-fact conduct, and character evidence.

The Court of Appeal dismissed the conviction appeal, finding no errors in the jury charge.

However, the Court allowed the sentence appeal, finding the trial judge erred by allowing the jury to hear evidence of the appellant's prior attempted murder conviction before making their parole ineligibility recommendation.

The parole ineligibility period was reduced to 16 years.

The appellants were convicted of second degree murder and manslaughter, respectively, following the fatal beating of a homeless man.

They appealed their convictions, and one appealed his sentence.

The Court of Appeal dismissed the appeals, finding no error in the trial judge's refusal to grant an adjournment for a challenge for cause, upholding the constitutionality of the peremptory challenge allocation in s. 634(2) of the Criminal Code, and finding the jury instructions regarding co-accused testimony, the failure to testify, and the review of evidence to be balanced and legally correct.

The sentence of life imprisonment with 12 years parole ineligibility was also upheld.

The appellants sought to lift a stay of proceedings under the CCAA to terminate long-term gas supply contracts with the insolvent respondent.

They argued the contracts were 'eligible financial contracts' (EFCs) under s. 11.1(1) of the CCAA, which would exempt them from the stay.

The Court of Appeal upheld the motion judge's dismissal, finding the contracts lacked the hallmarks of financial risk management required to be EFCs.

Furthermore, the court held that even if the contracts were EFCs, the appellants could not terminate them because the contract terms only allowed termination for non-payment, and the respondent was not in default.

The appellant pleaded guilty to tax evasion and was fined $100,000.

After failing to pay, the Crown applied for a warrant of committal under s. 734.7 of the Criminal Code.

The appellant argued that s. 734.7 could not apply retrospectively to an offence committed before the provision came into force.

The Court of Appeal dismissed the appeal, holding that s. 734.7 is a procedural enforcement mechanism rather than a substantive punishment, and therefore applies retrospectively.

The appellant was convicted of possession of crack cocaine for the purpose of trafficking.

He appealed his conviction, arguing the trial judge erred in instructing the jury that evidence of his demeanour upon arrest had no value in proving guilt or innocence.

The Court of Appeal agreed, finding the demeanour evidence was reasonably capable of supporting an inference favourable to the accused and should not have been taken away from the jury.

The appeal was allowed and a new trial ordered.

The appellant appealed her conviction for uttering a threat to cause death or bodily harm, arguing that the Crown failed to prove her identity as the caller and that the trial judge reversed the burden of proof.

The Court of Appeal dismissed the appeal, finding it was open to the trial judge to rely on the complainant's voice recognition evidence to establish identity.

The Court also found no reversal of the burden of proof and that the trial judge properly applied the reasonable doubt standard.

The appellants appealed a summary judgment enforcing a mortgage guarantee, arguing the cause of action was barred by the 10-year limitation period under the Limitations Act because the mortgage fell into default in 1991.

The Court of Appeal dismissed the appeal, finding that a 1994 mortgage renewal brought the mortgage into good standing and that subsequent payments by the debtor restarted the limitation period.

Although the motion judge erred in her treatment of the appellant's signature evidence, this did not affect the correctness of the disposition.

The appellants appealed an order rectifying a mortgage to include interest and costs.

The Court of Appeal dismissed the appeal, finding convincing evidence that rectification was required to reflect the parties' prior agreement, specifically a guarantee where the appellant agreed to secure the principal amount along with interest and costs.

The notation 'nil' on the mortgage was contrary to this prior agreement.