OCA 2008

Mylex Ltd. appealed a trial judgment finding it liable in contract and tort for failing to meet delivery dates and providing poor quality ready-to-assemble furniture to Magnussen Furniture Inc. Magnussen cross-appealed the damages and costs awards.

The Court of Appeal found that while the trial judge erred in finding an 'overall contract' existed, this did not affect the ultimate liability finding based on breached purchase orders and negligence.

The Court upheld the trial judge's assessment of damages, which limited lost profits to a two-year period due to contingencies, and affirmed the discretionary costs award.

Both the appeal and cross-appeal were dismissed.

The appellant appealed a trial judgment ordering it to pay a real estate commission to the respondent broker for the sale of a municipal property.

The trial judge found the parties had an oral agreement that a commission was payable, but disagreed on the rate, and applied section 34(2) of the Real Estate and Business Brokers Act to set the rate at the generally prevailing community rate of 3.75 percent.

The Court of Appeal dismissed the appeal, finding ample evidence to support the trial judge's conclusion of an oral agreement and agreeing that section 34(2) was correctly applied to resolve the dispute over the rate.

The appellant appealed his sentence, arguing it was inconsistent with the parity principle compared to his co-accused.

The Court of Appeal dismissed the appeal, finding the trial judge had a basis to conclude the appellant's culpability was greater, as his identification was found in a bag containing weapons, drugs, and cash.

The respondent landlord leased commercial premises to a corporate tenant within the Brick enterprise.

The lease was subsequently assigned and sublet to other entities within the enterprise.

When the sub-tenant vacated the premises early and stopped paying rent, the landlord sued the parent corporation, arguing it was liable under a Consent and Acknowledgement agreement and the oppression remedy.

The trial judge found liability under the oppression remedy.

The Court of Appeal dismissed the appeal, finding that the parent corporation was directly liable to the landlord for the unpaid rent under the terms of the Consent and Acknowledgement agreement, making it unnecessary to rely on the oppression remedy.

A journalist was subpoenaed to testify in a civil action and refused to reveal the identity of a confidential source.

The trial judge cited the journalist for contempt and, after the source voluntarily came forward, found the journalist in civil contempt and ordered him to pay $31,600 in costs.

On appeal, the Court of Appeal set aside the contempt finding and costs order.

The Court held that the trial judge erred by failing to apply the Wigmore criteria to the privilege claim before citing for contempt, and by failing to use the contempt power cautiously and as a last resort in accordance with the Dagenais/Mentuck test to minimize the impact on Charter rights.

The 74-year-old appellant appealed an order suspending his conditional sentence and directing him to serve 21 days in custody for breaching an alcohol prohibition.

The appellant filed fresh evidence showing his health had significantly deteriorated, including a bladder cancer diagnosis.

Given his age, time already served, and worsening medical condition, the Court of Appeal allowed the appeal and varied the order to time served.

The appellant appealed a summary conviction appeal judgment that upheld her conviction.

She argued the trial judge reversed the burden of proof, ignored the requirements of R. v. W.(D.), and improperly relied on prior discreditable conduct.

The Court of Appeal dismissed the appeal, finding the trial judge provided an adequate analysis of the evidence, applied the proper burden of proof, and did not rely on prior discreditable conduct in his assessment.

The appellant challenged a conviction for a historic sexual assault and a four-year penitentiary sentence arising from a judge-alone trial that turned entirely on credibility.

The Court of Appeal held that, despite a misstatement of the third branch of the W.(D.) framework, the trial judge’s reasons as a whole demonstrated proper application of the burden and standard of proof, and the conviction appeal was dismissed.

However, the court found sentencing error where the trial judge treated the accused’s fabricated trial evidence as an aggravating factor.

Leave to appeal sentence was granted and the sentence was reduced to three years’ imprisonment.

The parties reached a settlement prior to the disposition of the appeal.

Consequently, the Court of Appeal for Ontario dismissed the appeal as abandoned.

The parties reached a settlement agreement prior to the disposition of the appeal.

The Court of Appeal allowed the appeal and set aside the lower court's judgment in accordance with the terms of the settlement.

The appellant appealed a Superior Court decision that held a perpetual right to renew a supply of 5000 horsepower of electricity at a preferential rate remained extant.

The Court of Appeal allowed the appeal, finding that the appeal judge failed to give adequate weight to the fact that the original 1928 agreement lapsed in 1987 due to the respondent's failure to give the required renewal notice.

The Court held that subsequent agreements did not revive the perpetual renewal provision, but merely provided a preferential price for a fixed term.

The appellant appealed a summary judgment granted against her regarding a mortgage she executed.

She argued the motion judge improperly determined credibility issues and shifted the burden of proof when rejecting her defences of misrepresentation, non est factum, lack of independent legal advice, and improvident sale.

The Court of Appeal dismissed the appeal, finding the motion judge correctly applied the test for summary judgment and properly concluded the appellant's bald assertions and lack of evidence failed to raise a genuine issue for trial.

The appellant appealed his two convictions for assault and his sentence of fourteen months less four months credit for pre-trial custody.

He argued the trial judge failed to consider relevant evidence regarding credibility and failed to give adequate reasons for accepting the complainant's evidence.

The Court of Appeal dismissed the conviction appeal, finding the trial judge did not ignore material evidence and provided adequate reasons.

The sentence appeal was also dismissed as the sentence was fit.

The appellant was convicted of returning to Canada without the written consent of the Minister after being deported, contrary to s. 55(1) of the Immigration Act.

The trial judge placed an evidentiary burden on the appellant to adduce some evidence of permission to return.

On appeal, the Court of Appeal held that the lack of written consent is an element of the offence, and the burden of proof lies entirely on the Crown.

The common law rule placing the burden on the accused for certain exceptions did not apply.

As the Crown failed to adduce sufficient evidence to prove lack of consent beyond a reasonable doubt, the appeal was allowed and an acquittal entered.

The appellant was injured when improperly stored metal sheets in her apartment building's storage room fell on her leg, eventually leading to fibromyalgia.

A jury found the respondent landlords negligent but apportioned 75% of the fault to the appellant for contributory negligence.

The jury awarded damages, including $41,000 for non-pecuniary damages.

On appeal, the Court of Appeal found the trial judge erred in instructing the jury to use the upper limit (cap) for non-pecuniary damages as a scale.

The Court substituted an award of $80,000 for non-pecuniary damages but upheld the jury's findings on contributory negligence and apportionment of fault.

The appellant, a pedestrian struck by a motor vehicle, suffered severe injuries resulting in lymphedema.

At trial, liability was admitted, and a jury awarded her $290,000 in non-pecuniary damages, $30,000 for past income loss, and $43,300 under the Family Law Act, but zero for future income loss.

The appellant appealed the zero award for future income loss, arguing it was unreasonable.

The Court of Appeal dismissed the appeal, finding that the jury's verdict was supported by evidence of the appellant's successful employment and promotions post-accident, and that the jury was entitled to reject the appellant's expert evidence regarding her future loss of competitive advantage.

The self-represented appellant appealed the dismissal of his action.

The Court of Appeal found that the appellant had repeatedly failed to comply with the Rules, ignored court orders, and misused court processes.

Finding no reason to interfere with the lower court's decision, the Court of Appeal dismissed the appeal and awarded costs to the respondent.

The parties reached a settlement regarding the appeal.

The Court of Appeal for Ontario issued an endorsement dismissing the appeal without costs.

Following the dismissal of the appeal, the court received written submissions on costs from the respondent.

The appellants did not submit costs submissions.

The court awarded the respondent costs of the appeal on a partial indemnity basis, fixed at $2,630.78 inclusive of disbursements and GST.

The appellants purchased a golf course from a court-appointed receiver pursuant to a Sale Approval and Vesting Order.

After the order but before closing, the appellants learned of a pending municipal tax reassessment that would substantially increase realty taxes for the period prior to closing.

The receiver refused to readjust the purchase price.

The motion judge held that the Vesting Order did not protect the appellants from the reassessment and, alternatively, that the order should be rectified to reflect the parties' contractual intention.

The Court of Appeal allowed the appeal, finding that rectification was unavailable because the parties lacked a common intention, and that the broad language of the Vesting Order conveyed the property free and clear of the future claim for increased taxes that existed at the time of closing.