OCA 2009

The appellants appealed a trial judgment finding they repudiated the respondent's consulting contract without cause by way of anticipatory breach.

The respondent cross-appealed, seeking 24 months of payments instead of 12.

The Court of Appeal dismissed the appeal, upholding the trial judge's finding that the respondent's responsibilities were implicitly taken away without warning, constituting anticipatory breach.

The court also agreed there was no duty to mitigate as the consulting agreement was part of a package deal for the sale of the respondent's business.

The cross-appeal was dismissed because the contract clearly limited payments to 12 months in the event of termination without cause.

Erie Sand and Gravel Limited entered into an oral agreement with Seres' Farms Limited to purchase land containing aggregate essential to Erie's business.

The land was subject to a right of first refusal held by Tri-B Acres Inc. Erie provided a written offer reflecting the oral agreement, which Seres' Farms presented to Tri-B. Tri-B failed to match the offer, but Seres' Farms accepted Tri-B's offer anyway.

Erie sued for specific performance.

The trial judge found a binding oral agreement existed and that acts of part performance took it outside the Statute of Frauds.

The Court of Appeal dismissed Tri-B's appeal, upholding the specific performance order because the property was unique and damages were inadequate.

The Crown appealed a conditional sentence of two years less a day imposed for robbery.

The sentencing judge had determined a penitentiary sentence was warranted but used pre-sentence custody to reduce the sentence to under two years, thereby making a conditional sentence available.

The Court of Appeal held this was an error under R. v. Fice, as pre-sentence custody should be treated as a credit against the appropriate sentence, not a mitigating factor to alter the sentence type.

The appeal was allowed, and a three-year penitentiary sentence was deemed appropriate, resulting in 16 months and two weeks remaining to be served in custody.

KJS took an assignment of National Bank's debt and security and realized on the portions provided by the appellants.

The trial judge awarded judgment to KJS for the shortfall.

On appeal, the Court of Appeal upheld the trial judge's interpretation of the share purchase agreement, finding that the appellants breached their obligations and could not claim the benefit of the KJS security.

However, the Court allowed the appeal in part to vary the damage calculation, finding that KJS was not entitled to mitigate its damages by taking an assignment of the debt instruments.

The cross-appeal was dismissed.

The appellant husband appealed a trial decision that dismissed his application to set aside a separation agreement and ordered him to pay spousal support, retroactive child support, and section 7 expenses.

The Court of Appeal found the spousal support award was appropriate, particularly given the husband's recent bankruptcy which would deprive the respondent wife of property-related costs and require her to assume joint debt.

The court also upheld the child support and section 7 expenses as they were provided for in the parties' separation agreement.

The appeal was dismissed.

The appellants appealed a motion judge's order striking their amended statement of claim, which sought relief under the Conveyancing and Law of Property Act for lasting improvements made to a property they believed they owned.

The appellants also argued the motion judge erred by hearing the motion in an anteroom rather than open court, by effectively redrafting their pleadings, and by exhibiting a reasonable apprehension of bias.

The Court of Appeal allowed the appeal, finding the motion judge erred in striking the statutory claim, as it was based on different legal grounds than the previously struck constructive trust claim.

The majority held that hearing the motion in chambers did not violate the open court principle, as no one was excluded and counsel did not object.

The appellant appealed an order striking his counterclaim in a 2008 action.

The respondents had previously brought a 2006 action against the appellant, which was settled.

The respondents then brought the 2008 action under s. 38 of the Bankruptcy and Insolvency Act, advancing overlapping claims.

The Court of Appeal allowed the appeal, finding that the appellant's counterclaim did not attempt to relitigate the 2006 action, but rather sought to prevent the relitigation of the settled claims.

The order striking the counterclaim was set aside.

The appellant appealed his conviction, arguing that the trial judge erred in admitting a loaded handgun and a statement into evidence following alleged breaches of ss. 8 and 10(b) of the Charter.

The Court of Appeal expressed reservations about the trial judge's finding of a s. 8 breach regarding the search warrant.

However, applying the Grant framework, the Court held that even if a breach occurred, it was not serious, the police acted in good faith, and the reliable evidence was needed to prove a serious crime.

The Court also upheld the admission of the appellant's statement despite a s. 10(b) breach.

The appeal was dismissed.

The moving party (appellant) sought a stay of the judgment pending appeal.

The court applied the RJR-MacDonald test and found that there were serious issues to be determined regarding the scope of a non-registration clause in an agreement of purchase and sale and its relation to a purchaser's lien.

The court also found that the moving party would suffer irreparable harm without a stay, as the responding party no longer had the $4.3 million deposit and intended to sell the property.

The balance of convenience favoured the moving party.

The motion for a stay was granted.

The appellant appealed a decision granting summary judgment.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's decision and concluding that the appellant had already put its best foot forward on the issues identified.

The appellant appealed his convictions for domestic assault and his designation as a dangerous offender.

The Court of Appeal dismissed the conviction appeals, finding ample evidence to support them.

However, the Court allowed the sentence appeal, finding the trial judge erred in concluding there was no reasonable possibility of eventual control of the appellant in the community.

The trial judge based this on the appellant's lack of motivation to change, directly contradicting unanimous expert psychiatric evidence that strict external controls would be effective regardless of motivation.

The dangerous offender designation was set aside and a new hearing ordered.

The appellants appealed a summary judgment decision, arguing there was a genuine issue for trial regarding whether the franchisor and the respondent bank had a sufficiently close connection to make the bank responsible for the franchisor's faults.

The Court of Appeal agreed with the motion judge that no such genuine issue existed.

The appeal was dismissed with costs.

The appellant vendor appealed an order granting specific performance of a real estate contract to the respondent purchaser.

The appellant argued the respondent was disentitled to equitable relief due to 'unclean hands' for swearing a false affidavit regarding his status as a nominee, and that the property was not objectively unique.

The Court of Appeal dismissed the appeal, finding the respondent's conduct did not prejudice the appellant and the property was uniquely suited to the intended commercial use, making damages an inadequate remedy.

The plaintiffs in a medical malpractice action mistakenly named the wrong emergency room doctor in their statement of claim due to confusing hospital records.

Years later, after discovering the treating doctor's true identity, the plaintiffs moved to amend the statement of claim to substitute the correct doctor's name.

The motion judge granted the amendment, finding it was a case of misnomer because the treating doctor and her representatives would have known she was the intended defendant.

The Court of Appeal dismissed the defendants' appeal, holding that the motion judge did not err in finding a misnomer and properly exercised his discretion to allow the correction despite the delay.

The Crown appealed the conditional sentence imposed on the respondent for a cocaine-related offence, as well as the trial judge's failure to make mandatory DNA and weapons prohibition orders.

The respondent conceded the error regarding the orders.

The Court of Appeal noted that the conditional sentence was manifestly unfit given the amount of cocaine involved.

However, based on compelling fresh evidence regarding the deteriorating health of the respondent and the terminal illness of his son, the court declined to alter the custodial sentence.

The appeal was allowed only to impose the DNA and s. 109 orders.

The appellant appealed a trial judgment that found no wrongdoing or improper conduct by the respondents.

The Court of Appeal dismissed the appeal, holding that the trial judge properly applied the relevant legal test and that the factual findings did not support the application of s. 178(1)(d) of the Bankruptcy and Insolvency Act.

Costs were awarded to the respondents.

The appellant appealed a summary judgment granted in favour of the respondents.

The Court of Appeal found no error, noting there was no legal relationship between the appellant and the respondent contractor to support a claim.

Furthermore, the respondent municipality was statutorily authorized to add the contractor's bill to the appellant's tax bill, and the appellant failed to provide more than a bald statement to challenge the amount.

The appeal was dismissed.

The appellant appealed a decision regarding a Rowbotham application for state-funded counsel.

The Court of Appeal dismissed the appeal, finding it unnecessary to decide the issue because a new trial was ordered in a companion appeal.

The court noted the appellant could seek a new Rowbotham order at his new trial.

The appellant appealed a summary judgment dismissing her solicitor negligence claim against her former lawyers.

The Court of Appeal upheld the motion judge's finding that there was no genuine issue for trial regarding discoverability.

The court noted that the appellant knew or ought to have known of the material facts giving rise to the claim when she signed a settlement agreement with the benefit of new counsel, yet she waited more than six years to commence the action.

The appeal was dismissed as statute-barred.

Following a successful appeal by the Estate that dismissed the respondent's constructive trust action, the parties made submissions on the costs of the trial.

The Estate sought costs on a partial or substantial indemnity scale.

The respondent argued she was impecunious and noted the trial judge's undisturbed finding that the deceased intended to benefit her.

The Court of Appeal exercised its discretion to make no costs award for the trial, citing the respondent's financial position and the deceased's unfulfilled but legally unenforceable promise.