OCA 2009

The plaintiff landlord appealed the dismissal of its action for damages for breach of a commercial lease.

The subtenant vacated the premises before the end of the sublease term, but rent was fully paid at the time.

The landlord immediately changed the locks and issued a notice of repudiation before the next rent payment was due.

The Court of Appeal upheld the motion judge's finding that the landlord fundamentally breached the lease by acting before any default occurred, entitling the tenant to treat the lease as at an end.

The appeal was dismissed.

The appellant was convicted of sexual assault and sexual interference against his live-in girlfriend's two daughters.

He appealed the convictions, arguing the trial judge erred in permitting the jury to use the testimony of each complainant as similar fact evidence and in failing to provide limiting instructions on its use.

The Court of Appeal dismissed the appeal, finding that the trial judge did not err in admitting the evidence, as the similarities were highly probative and the issue of collusion was properly handled.

The Court also held that the requested limiting instructions were unnecessary and could have confused the jury or prejudiced the appellant.

The appellant challenged convictions for sexual assault on the basis that the trial judge met privately with counsel during the complainant's cross-examination while the appellant was absent and no record was made.

The Court of Appeal held that the in-chambers discussion formed part of the trial because the judge expressed views on witness credibility and raised the effect of the accused testifying, matters engaging the accused's vital interests.

The appellant's absence affected his ability to make full answer and defence because the discussion influenced the decision not to testify.

The court declined to apply the proviso under s. 686(1)(b)(iv), holding that the procedure also had the potential to undermine public confidence in the administration of criminal justice.

The appellants appealed an order regarding an arbitration agreement.

The Court of Appeal found that the record did not clearly show the arbitration agreement was incapable of performance.

The court varied the motion judge's order, referring the matter back to the Crown Heights Beth Din to proceed with the arbitration on a fixed timetable or clearly indicate its refusal to deal with the matter.

Costs were awarded to the respondents.

The liquidator of a credit union made a claim under a fidelity insurance bond for losses caused by the dishonest conduct of its general manager and other employees.

The motion judge granted summary judgment in favour of the credit union.

The insurers appealed.

The Court of Appeal allowed the appeal, finding that while the uncontested facts supported a finding of direct loss resulting from dishonest acts, there were genuine issues for trial regarding whether the acts constituted a single scheme, and whether the bond's termination and notice conditions applied.

The appellant appealed his conviction for robbery and his sentence of 10 years' imprisonment.

On the conviction appeal, he argued the trial judge erred in a Corbett application by admitting his 28-year-old manslaughter conviction after finding defence counsel attacked the arresting officer's character.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's application of the Corbett test.

On the sentence appeal, the Crown conceded the 10-year sentence was outside the appropriate range.

The Court allowed the sentence appeal and reduced the sentence to 5 years' imprisonment.

The appellant, a condominium unit owner, appealed an order restricting his statutory right to examine condominium records and prohibiting him from coming within 25 feet of the management office.

The application judge had found his unrelenting requests amounted to harassment.

The Court of Appeal allowed the appeal in part, finding the complete elimination of his statutory right of access and the broad injunctive relief too extreme, especially since the conduct did not amount to actionable harassment.

The court set aside the injunctive components but upheld the requirements that requests be made in writing and photocopying charges be paid in advance.

The appellant estate appealed an order directing it to deliver shares owned by the husband to the wife's counsel for preservation and safekeeping under s. 12(b) of the Family Law Act.

The shares were already subject to a prior preservation order, which the husband breached by delivering them to the appellant.

The Court of Appeal dismissed the appeal, finding that the order did not stay execution of the appellant's money judgment against the husband, nor did it constitute a collateral attack or determine priorities between the appellant and the wife.

The appellant appealed a trial judgment finding that a robotic weld cell it designed and produced for the respondent was not reasonably fit for its intended purpose.

The appellant argued the trial judge erred by failing to find an implied term in the contract requiring the respondent to provide pretacked assemblies within tolerances suitable for robotic welding.

The Court of Appeal dismissed the appeal, finding the contract documents and commercial realities placed the responsibility on the appellant, who had specialized expertise in robotic welding and knowledge of the respondent's facility.

The appellants appealed a declaration that an agreement of purchase and sale became null and void due to their failure to properly deliver a notice of waiver of a due diligence condition.

The appellants argued that delivering the notice to the respondents' home and to a real estate representative satisfied the general notice provision in the agreement.

The Court of Appeal dismissed the appeal, finding that the specific language of Schedule A required the waiver notice to be brought to the personal attention of the sellers, which did not occur in a timely fashion.

The appellant appealed a trial judgment denying her spousal support following a 32-year marriage.

The trial judge found that after equalization, the appellant had a net worth of approximately $1.4 million and that the parties' ability to maintain their pre-divorce lifestyle had diminished due to the respondent's job loss, not the divorce.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's application of the Divorce Act and his conclusion that spousal support was not warranted given the appellant's assets, earning capacity, and remarriage.

The appellant was convicted of robbery and sentenced to three years' imprisonment after receiving 1.5:1 credit for pre-trial custody.

He appealed the sentence, arguing he should have received 2:1 credit and that the sentence was demonstrably unfit.

The Court of Appeal dismissed the appeal, finding the sentencing judge properly considered the appellant's poor parole prospects, extensive criminal record, and defence-caused delays in reducing the pre-trial custody credit.

The court also held the sentence was fit given the circumstances of the convenience store robbery.

The appellants appealed a trial judgment finding that a Memorandum of Understanding regarding a joint property purchase was a binding contract that they had repudiated.

The appellants argued the respondent breached fiduciary duties by attempting to obtain a secret commission.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the unsuccessful attempt to gain a secret commission did not amount to a breach of fiduciary duty, especially since the issue was raised late in the trial.

The court also upheld the remedy of rescission.

The mother appealed a trial judgment that ordered equal parenting time between the parents.

She argued the trial judge failed to properly consider the status quo and the best interests of the children under section 24(2) of the Children's Law Reform Act.

The Court of Appeal dismissed the appeal, finding the trial judge's reasons were sufficient and properly addressed the statutory factors, noting that equal sharing was the goal from the outset.

The appellant lawyers represented the plaintiffs in a successful class proceeding that declared certain provisions of the Canada Pension Plan invalid, entitling class members to survivor benefits.

The lawyers sought to enforce a first charge on the monetary award for their fees under s. 32(3) of the Class Proceedings Act.

The Court of Appeal held that the award constituted a 'benefit' under the CPP, which prohibits assigning or charging benefits under s. 65(1).

The Court found that the CPP prevailed over the CPA, rendering the lawyers' charge void.

The appellant appealed his conviction and three-year sentence for the sexual assault of an 11-year-old child.

He argued the trial judge's findings were unreasonable, misapprehended DNA and medical evidence, and failed to properly apply the W. (D.) framework.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's conclusions were supported by the evidence and free of legal error.

However, the sentence appeal was allowed, and the sentence reduced to two years, because the trial judge had sentenced the appellant based on a more invasive assault than the one for which he was convicted.

The appellant appealed an order made on a motion for directions regarding the interest payable on a prior judgment.

The motion judge had concluded the judgment did not provide for post-judgment interest and denied interest for the period during which the appellant's initial appeal was outstanding before being abandoned.

The Court of Appeal found no error in the motion judge's disposition and declined to interfere with the costs award, dismissing the appeal.

The appellant appealed the order of a motion judge of the Superior Court of Justice.

The Court of Appeal agreed with the reasons of the motion judge and dismissed the appeal, awarding costs to the respondents in the amount of $5,000.

The plaintiffs in two medical malpractice actions against a hospital and nurses retained an expert witness who had previously been employed by the hospital and had received confidential solicitor-client information regarding the defence of the actions.

The hospital successfully moved to have the plaintiffs' counsel removed from the record.

The plaintiffs appealed.

The Court of Appeal dismissed the appeal, holding that the presumption that confidential information was imparted to the plaintiffs' counsel had not been rebutted, and that removal of counsel was the only appropriate remedy to protect the integrity of the administration of justice.

The appellant appealed his sentence for dangerous driving involving a police chase, arguing the trial judge erred in principle by using a three-year penitentiary term as a starting point.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's conclusion that a lower penitentiary sentence was called for given the aggravating features of the conduct.