OCA 2005

The appellant, a shell company, brought a motion to review an order requiring it to post security for costs pending its appeal.

The Court of Appeal dismissed the motion, finding no error in the single judge's conclusion that the appellant had no assets to satisfy an adverse costs award and that the appeal had little to no merit.

The appellant was ordered to post security within ten days, failing which the appeal would be dismissed.

The appellant appealed the dismissal of her action.

The Court of Appeal held that a failed Rule 20 motion for summary judgment by a plaintiff does not preclude a later Rule 21 motion by a defendant, as the issues are different and no issue estoppel arises.

Furthermore, a previous panel of the court had already determined the appellant lacked legal capacity to sue the respondents.

As the current action involved the same parties and factual allegations, it was an attempt to re-litigate the issues and was barred by res judicata.

The appeal was dismissed with costs.

The Crown appealed a summary conviction appeal court decision that stayed proceedings against the respondent for domestic assault due to unreasonable delay under s. 11(b) of the Charter.

The Court of Appeal found that while the appeal judge erred by factoring personal opinions about domestic assault into the analysis, the stay was justified based on the trial judge's strong findings of actual prejudice and institutional delay bordering on the constitutionally unacceptable.

The Court of Appeal upheld the stay but allowed the appeal with respect to costs, finding no basis for the costs order against the Crown.

In a CCAA restructuring of Stelco Inc., the appellants, representing subordinated debenture holders, sought to be classified as a separate class of creditors for voting purposes on the proposed plan.

They argued their interests conflicted with senior debt holders due to a turnover payment provision requiring them to remit distributions to senior debt holders until the senior debt was paid in full.

The supervising judge dismissed the motion, finding no material distinction in their legal rights vis-à-vis the debtor company.

The Court of Appeal granted leave but dismissed the appeal, affirming that creditor classification under the CCAA is determined by the creditors' legal rights in relation to the debtor company, not their rights as creditors in relation to each other.

The appellants appealed a motion judge's decision striking their pleading under Rule 21.01(b).

The motion judge held that alleged violations of sections 4 and 42 of the Mortgages Act offered no defence to the claim for possession and the amount owing on the mortgage.

The Court of Appeal dismissed the appeal, finding no merit and refusing leave to amend the pleading to advance new causes of action.

The appellant pleaded guilty to parental abduction of a child under fourteen after taking his son to Libya and depriving the mother of contact for eleven years.

He appealed his sentence of 19 months' imprisonment and three years' probation.

The Court of Appeal found the sentencing judge erred by treating the guilty plea as a neutral factor, but concluded the sentence was fit and proper in the circumstances.

The appeal was dismissed.

The appellant appealed a trial decision regarding his entitlement to commission on a life insurance policy.

The trial judge found that the second policy was a new policy, not a replacement policy, and that the appellant was not responsible for its creation.

The trial judge also found no bad faith on the part of the respondents.

The Court of Appeal upheld the trial judge's findings, noting that the 25 percent commission received by the appellant was a realistic compromise.

The appeal was dismissed with costs.

In a CCAA proceeding regarding Stelco Inc., the Informal Independent Converts' Committee appealed an order denying them a separate class of creditors.

The Court of Appeal granted leave but dismissed the appeal, finding no legal error or error in principle in the motion judge's conclusion that the appellants lacked a different legal or practical interest from other unsecured creditors vis-à-vis the debtor.

The appellants appealed a decision granting the respondent specific performance of a right of first refusal contained in a charge on a farm property.

The application judge had found that the right of first refusal survived the balance due date of the charge.

The Court of Appeal allowed the appeal, holding that the application judge erred in interpreting the term of the charge.

The Court concluded that the right of first refusal expired on the balance due date and was not binding when the property was subsequently offered for sale.

Following an appeal, the appellants sought costs of the motion below on a substantial indemnity basis.

The Court of Appeal rejected the claim for substantial indemnity costs, noting the respondents' conduct was not unreasonable and the novel aspect of the claim.

However, as the appellants were partially successful in maintaining their right of action, the court awarded them partial indemnity costs of the motion below fixed at $10,000.

The appellant appealed his convictions for arson and break and enter, arguing that the trial judge erred in assessing credibility, relying on post-offence conduct, and accepting the evidence of an unsavoury witness without confirmatory evidence.

The Crown's theory was that the appellant, while in custody, hired an accomplice to burn down his ex-girlfriend's chip stand and break into her home.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's application of the burden of proof, his use of a letter written by the appellant, or his reliance on the victim's testimony as confirmatory of the accomplice's evidence.

The defendant insurer was successful on a motion and sought costs.

The Court of Appeal awarded modest costs of $2,500 to the insurer, noting that the insurer had refused to pay the $97,500 it was obligated to pay until after the motion.

The appellant, a small contractor, appealed a trial judgment regarding a complex construction dispute over a marina dredging project.

The trial judge had dismissed most of the appellant's claims and awarded punitive costs against a co-defendant, along with a Bullock order.

The Court of Appeal dismissed the appeals on the merits, finding no palpable and overriding error in the trial judge's factual findings.

However, the Court allowed the appeals regarding costs, holding that the test for solicitor-and-client costs was not met and that a Bullock order was inappropriate in the circumstances.

Costs were varied to a partial indemnity scale.

The appellant appealed the trial judge's decision, which was based on the credibility of witnesses, surveillance video, and the appellant's failure to disclose relevant information to his doctors and on his CPP application.

The Court of Appeal found no palpable and overriding error in the trial judge's decision and dismissed the appeal with costs fixed at $4,500.

The appellant appealed the dismissal of its motion for a stay of action, arguing that California had exclusive jurisdiction and Ontario was not the appropriate forum.

The Court of Appeal found that the motions judge's conclusion that the appellant failed to establish exclusive jurisdiction was supported by the evidence.

The court deferred to the motions judge's discretionary finding that Ontario was the more appropriate forum and dismissed the appeal.

The appellant appealed and the respondent cross-appealed an order of the Divisional Court.

The Court of Appeal agreed with the Divisional Court's interpretation of s. 8 of the Statutory Powers Procedure Act and found no merit in the other grounds raised on the cross-appeal, including the costs order imposed by the Tribunal.

The cross-appeal was dismissed with no costs.

The Superintendent of Financial Services appealed a Divisional Court order that vacated a Tribunal's revocation of Sussman Mortgage Funding Inc.'s licence and substituted a lesser penalty with terms.

The Court of Appeal agreed that the Tribunal erred by not allowing Sussman to make penalty submissions, but found the Divisional Court erred in law by failing to provide reasons for substituting the penalty.

The Court of Appeal allowed the appeal in part, remitting the matter to a differently constituted Tribunal to assess the penalty based on the original findings of conduct.

The appellant appealed his conviction and sentence of two years less a day followed by three years' probation.

The Court of Appeal found no error in the trial judge's reasons for conviction.

On the sentence appeal, the Court found no error in principle, noting the trial judge appropriately considered the appellant's age of 78 and medical condition, which mitigated what would otherwise have been a three-year penitentiary term.

Fresh evidence regarding the appellant's medical condition was considered but did not alter the sentence, as it could be managed by prison authorities.

The appeal was dismissed.

The appellant appealed her conviction and sentence for arson.

She argued the trial judge erred in rejecting the defence expert's evidence and that the finding of exclusive opportunity to start the fire was unreasonable.

The Court of Appeal dismissed the conviction appeal, finding the trial judge properly evaluated the expert evidence and that there was ample evidence to support the finding that the fire started when the appellant was alone in the house.

The sentence appeal was also dismissed, as the trial judge did not improperly use lack of remorse as an aggravating factor and the sentence fell within the acceptable range.

The appellant appealed his conviction for drug possession, arguing that the police violated his section 8 Charter rights during a vehicle stop.

At trial, the Crown abandoned its position that there were reasonable grounds for arrest and instead argued the stop was a valid investigative detention.

The trial judge accepted this but failed to consider the duration or manner of the detention.

The Court of Appeal allowed the appeal and ordered a new trial, noting the trial judge did not have the benefit of recent Supreme Court jurisprudence on investigative detention and the record was insufficient to resolve the issue.