OCA 2009

Class counsel appealed an order fixing their fees at $6.3 million plus GST, which was approximately half the amount agreed upon in their contingency fee agreements.

The motion judge had reduced the base fee by 25% and applied a multiplier of 2.6, finding the requested $12 million fee excessive in relation to the $40 million settlement recovery.

The Court of Appeal dismissed the appeal, holding that the motion judge applied the proper test, considered all relevant factors, and made no palpable and overriding error in determining a fair and reasonable fee.

The Registrar of the Alcohol and Gaming Commission of Ontario appealed a decision of the Divisional Court.

Prior to the hearing, the respondent voluntarily surrendered its licence.

Consequently, the Court of Appeal dismissed the appeal as moot.

The appellant appealed his conviction for breach of recognizance.

The parties agreed that the charges giving rise to the recognizance had been withdrawn prior to the alleged breach.

As a result, the appellant was not bound by a recognizance when he consumed alcohol, and the appeal was allowed.

The appellant appealed a motion judge's order finding that Ontario had jurisdiction over the action and was the more convenient forum.

The Court of Appeal upheld the motion judge's application of the real and substantial connection test from Muscutt v. Courcelles.

The Court also found no error in the motion judge's weighing of factors, including the location of witnesses and avoidance of multiplicity of proceedings, to conclude that Ontario was the more convenient forum.

The appeal was dismissed with costs.

The appellants appealed the dismissal of their medical malpractice action following the death of their infant son from a bowel obstruction shortly after being discharged from the emergency room.

The trial judge had made adverse credibility findings against the appellants, accepted the respondent physician's evidence, and relied on the respondent's expert opinion that the standard of care was met.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings or his assessment of the expert evidence regarding the standard of care.

The appellant operated a sports bar and attempted to circumvent the Smoke-Free Ontario Act by designating it as a private club where patrons paid a small membership fee to smoke indoors.

He was convicted of several offences under the Act.

On appeal, he argued the premises were not an 'enclosed public place' because the public was not ordinarily invited or permitted access.

The Court of Appeal dismissed the appeal, holding that the Act is public welfare legislation designed to protect the public from second-hand smoke, and that members of the club were still members of the public.

The court found the definition of 'enclosed public place' was not vague or ambiguous.

The appellant purchased a vacant lot and hired a builder recommended by a co-worker real estate agent to build a custom home with a walk-out basement apartment.

After the builder encountered financial difficulties and failed to complete the project, the appellant sued the co-worker for negligent misrepresentation and breach of fiduciary duty.

The trial judge awarded damages for negligent misrepresentation regarding the legality of the basement apartment and punitive damages for breach of fiduciary duty.

On appeal, the Court of Appeal dismissed the appellant's appeal to increase damages, finding she failed to mitigate.

The Court allowed the respondent's cross-appeal in part, setting aside the punitive damages award because no fiduciary relationship existed between the parties.

The appellant appealed a trial judgment granting specific performance of a share purchase agreement.

The appellant argued the letter agreement lacked certainty regarding the mortgage amount, interest payments, and reporting requirements, amounting only to an agreement to agree.

The Court of Appeal upheld the trial judge's findings that the agreement's terms were clear and capable of enforcement when read in the context of the surrounding factual matrix.

The appeal was dismissed.

The appellant appealed a judgment dismissing his motion to vary a consent divorce order.

The motion judge had ordered the appellant to continue paying $600 per month in spousal support for life, $150 per month for medical coverage until the respondent turned 65, and to maintain $100,000 in life insurance.

The appellant argued that fundamental changes in both parties' financial situations after age 65 warranted a variation.

The Court of Appeal dismissed the appeal, finding that the anticipated changes were uncertain and speculative, and that the current order was fair to both parties.

The respondent settled litigation with his former business partner and subsequently brought a motion under Rule 57.07 of the Rules of Civil Procedure seeking costs personally against the partner's former lawyer.

The lawyer brought a motion to strike the costs motion, arguing it was barred by the two-year limitation period in s. 4 of the Limitations Act, 2002 and was an abuse of process.

The motion judge dismissed the motion to strike.

The Court of Appeal upheld the decision, finding that a motion within an existing action is not a 'proceeding' under s. 4 of the Limitations Act, 2002, and that the abuse of process arguments were matters to be determined on the merits of the Rule 57.07 motion.

The appellant hospital appealed a disposition of the Ontario Review Board placing a young person, who was found not criminally responsible, in medium security at its facility.

All parties had jointly submitted that the young person should be placed at a youth mental health facility.

The Court of Appeal found the Board's disposition unreasonable, as there was no evidentiary foundation for its conclusions regarding medical treatment availability or family support logistics.

The appeal was allowed and the matter remitted to the Board for an expedited new hearing.

The appellants appealed a trial judgment finding their conduct oppressive under s. 241 of the Canada Business Corporations Act and ordering the cancellation of certain shares.

The dispute centered on the interpretation of a performance escrow agreement and whether 'cash flow' referred to the parent company or its subsidiary.

The Court of Appeal held that the trial judge erred in finding the agreement unambiguous, as an unappealed interlocutory order had already determined it was ambiguous.

Interpreting the agreement in its factual context, the Court concluded 'cash flow' referred to the parent company, meaning the shares were properly released from escrow.

The appeal was allowed and the oppression application dismissed.

The appellant, a dual status offender under the authority of the Ontario Review Board, was convicted of manslaughter for killing a fellow inmate.

The Crown applied to have him declared a dangerous offender.

The sentencing judge found the statutory criteria met and imposed an indeterminate sentence.

On appeal, the appellant argued procedural flaws regarding notice and the Attorney General's consent, and that the judge erred in not exercising residual discretion given the Review Board's concurrent jurisdiction.

The Court of Appeal dismissed the appeal, finding the procedural requirements were met and the appellant's high risk of violent recidivism justified the dangerous offender designation.

The appellant pleaded guilty to threatening death, breach of probation, and breach of recognizance arising from a dysfunctional domestic relationship.

He was originally sentenced to four years in custody.

On appeal, the Court of Appeal found the sentence manifestly unfit given the unusual circumstances, noting the appellant had attempted to extricate himself from the relationship but the victim repeatedly followed him.

The appeal was allowed and the sentence was reduced to time served, equivalent to 35 months.

The appellants appealed their convictions and sentences for trafficking marijuana.

The Court of Appeal dismissed the conviction appeals, rejecting arguments regarding hearing impairment, freedom of religion, lack of a search warrant, and ineffective assistance of counsel.

However, the court allowed the sentence appeals, finding the original sentences of two years and one year imprisonment manifestly excessive for the small amounts of marijuana involved.

The sentences were reduced to five months and three months.

The court also varied the full forfeiture order of the appellants' property to a partial forfeiture of half the equity, as the second floor was used solely as a personal residence.

The Town of Newmarket appealed a decision declaring it breached its Contract A obligations to the respondent contractor by accepting a non-compliant bid from another bidder.

The accepted bid contained a discrepancy between the stipulated price, the GST, and the total cost of the work.

The Court of Appeal upheld the application judge's finding that the price was uncertain, rendering the bid non-compliant and incapable of acceptance.

The Court distinguished previous case law where price discrepancies were mere clerical errors, finding that in this case, the intended price was unclear on the face of the bid.

The appeal was dismissed.

The appellant appealed an order requiring him to vacate the respondent's property, where he had been living and working without legal right.

The trial judge had granted a grace period for the appellant to remove his personal property, which he failed to do.

The appellant argued his property and Charter rights were breached.

The Court of Appeal dismissed the appeal, finding no error by the trial judge and noting the appellant's problems were of his own making.

Costs of $5,000 were awarded to the respondent.

The appellant brought an action against the lawyer who represented his child's mother in a custody dispute, alleging the lawyer committed criminal acts including perjury and fraud.

The motion judge struck the statement of claim as frivolous, vexatious, and an abuse of process.

The Court of Appeal agreed with the motion judge and dismissed the appeal.

The appellant was convicted of fraud over $5,000 after his trial counsel was removed from the record by an application judge due to unpaid legal fees.

The appellant was forced to represent himself for the remainder of the trial.

On appeal, the Court of Appeal held that the application judge erred in removing counsel absent a fundamental disagreement, serious breakdown in communications, or ethical dilemma.

The removal violated the appellant's right to counsel, and actual prejudice was not required to order a new trial, though prejudice likely existed.

The appeal was allowed and a new trial ordered.

The appellant appealed a jury verdict dismissing her action for malicious prosecution and negligent investigation against the police.

She argued the trial judge erred in his jury instructions regarding the exact words spoken, the police's duty to get her version of events, and the assessment of reasonable and probable grounds.

The Court of Appeal found no error in the charge, noting it fairly focused the jury on whether the officer had reasonable and probable grounds to lay the charge.

The respondents cross-appealed the trial judge's decision to deny them costs based solely on the appellant's impecuniosity.

The Court allowed the cross-appeal, holding that impecuniosity cannot be the only factor considered, and awarded the respondents $40,000 in trial costs and $7,500 for the appeal.