OCA 2006

The appellants sought to examine a representative of the trustee in bankruptcy regarding its reports and an order permitting the assignment of thousands of leases without customer representation.

The motion judge adjourned the motion, directing the parties to exchange written questions and answers first.

The Court of Appeal dismissed the appeal, finding the motion judge correctly exercised his discretion to adjourn the motion and await the trustee's answers before adjudicating the merits, including whether an affidavit is required under s. 215 of the Bankruptcy and Insolvency Act.

The appellant appealed a motion judge's decision refusing to order repayment of an overpayment of child support.

The Court of Appeal dismissed the appeal, finding that the motion judge acted within his discretion in refusing to order repayment.

The appellant appealed an order, seeking to compel the respondent to execute a proposed agreement.

The Court of Appeal found that the proposed agreement was not executed by the required date, rendering the proposal expired and null and void.

Consequently, the court held that no purpose would be served in ordering the execution of the agreement and dismissed the appeal as moot.

The appellants, former nursing students at Loyalist College, sought to certify a class action against the college for breach of contract and negligent misrepresentation.

They alleged the college falsely promised a 'Queen's option' allowing them to obtain a nursing degree from Queen's University after completing two years at Loyalist.

The motion judge and Divisional Court dismissed the certification motion, finding no identifiable class or common issues.

The Court of Appeal allowed the appeal, holding that the lower courts erred in their application of section 5 of the Class Proceedings Act.

The Court found that the pleadings disclosed a cause of action, there was an identifiable class, common issues existed regarding the contract and representations, and a class proceeding was the preferable procedure.

The appellant appealed a trial judgment dismissing its claim on a personal guarantee.

The respondent, a bookkeeper, signed a document described to her as being for 'standard credit information' without reading the small print containing the guarantee.

The Court of Appeal upheld the trial judge's application of the Tilden v. Clendenning principle, finding that the appellant knew or ought to have known the respondent would not read the form and did nothing to bring the guarantee to her attention.

The appeal was dismissed.

The Court of Appeal for Ontario issued a correction to an earlier endorsement dated April 28, 2006.

The correction clarified that all references to the appellant in the previous endorsement should be changed to refer to the respondent.

In the context of a Reference directed by the Minister of Justice regarding a 1959 murder conviction, the Crown applied for a production order under s. 683(1)(a) of the Criminal Code against third-party journalists.

The journalists had produced a documentary about the case and interviewed several witnesses who were now providing fresh evidence.

The journalists resisted, arguing the court lacked jurisdiction to issue a production order against a third party for investigative purposes.

The Court of Appeal held it had jurisdiction to order production where it is in the interests of justice to assist in determining the admissibility of fresh evidence.

The court ordered the production of two of the three retained video recordings.

The appellant challenged convictions for sexual assault and unlawful confinement arising from a jury trial involving a co-accused who was acquitted.

The Court of Appeal held that, although it would have been preferable not to exhort the jury when the trial judge did, the instruction created no reasonable possibility of coercion or interference with free deliberation.

The court further held that the verdicts were not inconsistent because the jury could reasonably have had a doubt about the co-accused while accepting the complainant’s evidence concerning the appellant’s second act of intercourse and the related confinement.

The court also rejected the challenge to the recent complaint instruction, finding that, read in context, it properly addressed the defence attack on credibility and did not invite improper use of prior consistent statements.

The appellant appealed his convictions for sexual interference, invitation to sexual touching, and sexual assault against his stepson.

He argued that the trial judge erred in instructing the jury on the burden of proof and that his acquittal on one charge was inconsistent with the guilty verdicts.

The Court of Appeal dismissed the appeal, finding that the jury was properly instructed in accordance with W.(D). and Lifchus, and that there was a rational basis to reconcile the verdicts.

The plaintiff, former General Manager of the Ottawa Senators, sued the team's executives for misrepresentation regarding his compensation.

The appellant moved to stay the action and refer the dispute to arbitration by the NHL Commissioner, relying on the NHL Constitution and the Arbitration Act, 1991.

The Court of Appeal dismissed the appeal, finding that the plaintiff was not a party to an arbitration agreement, as the employment contract did not expressly require him to submit disputes to arbitration or bind him to the NHL Constitution's arbitration provisions.

The appellant was convicted of importing cocaine after arriving at Pearson International Airport with liquor bottles containing the drug.

He claimed a man he met in Antigua asked him to deliver the bottles to an unknown person in Canada.

On appeal, he argued that evidence of his nervous demeanour at customs should not have been admitted and that the trial judge erred in leaving wilful blindness with the jury.

The Court of Appeal dismissed the appeal, finding the demeanour evidence was contemporaneous with the offence and did not render the trial unfair, and that the inherently suspicious circumstances provided an air of reality to the wilful blindness instruction.

The appellant appealed a decision dismissing its oppression claim regarding the sale of a debtor's assets and the refusal to permit redemption of shares.

The Court of Appeal assumed jurisdiction without deciding the issue.

The Court dismissed the appeal, finding that the appellant was a participant in the prior receivership proceedings where the sale was approved and chose to take no position.

The proper time and place to protest the unfairness of the sale was during the motion to approve the sale in the receivership proceedings.

The appellants appealed a motion judge's decision, arguing that the binding precedent of Karakas was at odds with the Supreme Court's decision in Heredi v. Fensom and attempting to distinguish their case.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the case could not be distinguished from Karakas and that the automobile was not merely ancillary to the damage caused.

The appellants appealed a trial judgment, arguing the trial judge erred in excluding the viva voce evidence of their medical expert because no report was filed.

The Court of Appeal held that even if this was an error, it would not have affected the trial judge's decision on the threshold question, as she had the expert's detailed notes and found the appellant lacked credibility.

However, the Court of Appeal allowed the appeal regarding pre-offer costs.

The trial judge had awarded no costs for proceedings prior to the defendants' settlement offer without providing reasons.

Applying Rule 76.13, the Court found it was reasonable for the plaintiffs to commence the action under the ordinary procedure and awarded them partial indemnity costs up to the date of the offer.

The appellant was acquitted at trial after the trial judge excluded evidence under s. 24(2) of the Charter, finding the appellant had a realistic opportunity to consult counsel during the delay in obtaining an approved screening device.

The summary conviction appeal judge overturned the acquittal.

On appeal, the Court of Appeal held that the summary conviction appeal judge erred by retrying the case, as the trial judge applied the correct test and her findings were entitled to deference.

The appeal was allowed and the acquittal restored.

The appellant was convicted of criminal negligence causing bodily harm and failing to remain at the scene of a boating accident after his boat collided with another vessel at night.

He appealed the convictions, arguing the trial judge erred in instructing the jury on the standard for criminal negligence, the knowledge requirement for failing to remain, the presumption of intent to escape liability, and post-offence conduct.

The Court of Appeal dismissed the appeal, finding no errors in the jury instructions and upholding the sentence as fit.

The appellants appealed a summary judgment dismissing their action and allowing the respondent's counterclaim on a promissory note arising from a share purchase agreement.

The appellants had alleged unconscionability, economic duress, and oppression.

The Court of Appeal allowed the appeal, finding that the motion judge erred in law by deciding which competing inferences should be preferred from primary facts in evidence on a motion for summary judgment.

The court concluded there were genuine issues of material fact requiring a trial.

The appellant appealed a trial judgment concerning a share purchase agreement.

The trial judge had found that a $31,000 payment was on account of a promissory note, awarded $35,000 in damages for misrepresentation regarding a submerged waste oil tank, and ordered the parties to split accounting fees.

The Court of Appeal upheld the findings regarding the promissory note and the waste oil tank, finding them supported by the evidence.

However, the Court allowed the appeal regarding the accounting fees, finding no legal or contractual basis to order the defendants to pay half of the fees incurred by the purchased corporation.

The moving party brought a motion to quash the appeal.

On consent, the Court of Appeal quashed the appeal.

The moving party was awarded $5,000 in costs, inclusive of disbursements and GST, payable solely by the appellant Berg Mesrop.

The appellant appealed his conviction, arguing the trial judge erred in finding he intended to mislead the court at his bail hearing.

The Court of Appeal dismissed the appeal, holding that the trial judge's finding that the appellant presented evidence he knew was dishonest to advance his position was supported by the evidence, and that the evidence did not need to be on a material point.