OCA 2010

The appellant appealed the dismissal of its counterclaim for professional negligence and breach of contract against the respondent accounting firm.

The motion judge dismissed the counterclaim on a summary judgment motion because the appellant failed to provide direct evidence, relying instead on an affidavit based on information and belief.

The respondent cross-appealed the motion judge's finding that there was a genuine issue for trial regarding the timing of payment of its fees.

The Court of Appeal dismissed the appeal and allowed the cross-appeal, finding no genuine issue for trial regarding the fees and granting summary judgment to the respondent.

The appellants appealed a decision rejecting their request for a declaration that an access road was a public highway and that the Township was responsible for its maintenance and repair.

The appellants argued that the road's dedication by Ontario and assumption by the Township were apparent from surrounding circumstances, including negotiations and expenditures.

The Court of Appeal upheld the application judge's findings that there was no actual dedication by Ontario and no clear and unequivocal assumption by the Township, as the Township had sought work permits and was compensated by Ontario for maintenance.

The appeal was dismissed.

The respondents were convicted of voting in a voting place where they were not entitled to vote and furnishing false information under the Municipal Elections Act.

The summary conviction appeal judge quashed the convictions, finding the Crown failed to prove the voting subdivisions and election officials were properly established under the Act.

The Court of Appeal allowed the Crown's appeal and restored the convictions, holding that the Crown did not need to prove the establishment of voting subdivisions for these specific charges, and that the written delegations to election officials were sufficient.

The Court of Appeal issued a costs endorsement based on a consent filed by the parties.

The respondent was ordered to pay trial costs of $97,000 to one appellant, and $250,000 plus GST and disbursements to the other appellants.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

The respondent was ordered to pay the appellant's costs fixed at $5,000, inclusive of GST and disbursements.

The appellant appealed his sentence and sought to introduce fresh evidence in the form of his wife's affidavit suggesting provocation.

The Court of Appeal refused to admit the fresh evidence because it was available at trial, inconsistent with the defence advanced, and the appellant himself had not claimed provocation.

The court found the sentence imposed at trial was fit and dismissed the appeal.

The applicant sought leave to appeal from a Summary Conviction Appeal Court decision upholding her conviction for assaulting an elderly patient.

She argued the trial judge erred by taking judicial notice of workplace pressures to explain a Crown witness's delay in reporting the assault, and by failing to properly apply the reasonable doubt standard.

The Court of Appeal found no error of law, noting the trial judge properly applied the W.(D.) standard and considered the totality of the evidence.

Leave to appeal was refused.

The appellant and a co-accused were convicted of aggravated assault after throwing a beer bottle and mug at the complainant in a bar.

The appellant appealed his conviction and 12-month sentence, arguing the trial judge erred in rejecting his self-defence claim and improperly used the co-accused's out-of-court statement against him.

The Court of Appeal found that while the trial judge erred in her treatment of the co-accused's statement, the error caused no harm and the verdict would have been the same.

The curative proviso was applied, and the appeal against conviction and sentence was dismissed.

The appellant pleaded guilty to attempted murder and threatening death after deliberately driving over his estranged wife and dragging her under his vehicle.

He was sentenced to 14 years' imprisonment.

On appeal, he argued the sentencing judge erred in finding he knew he dragged the victim, categorizing the offence as 'stark horror', and admitting prejudicial victim impact statements.

The Court of Appeal dismissed the appeal, finding the sentence reflected the appellant's moral culpability and the numerous aggravating features of the domestic violence offence.

The appellant appealed convictions for two sexual assaults arising from a former intimate relationship and sought to replace concurrent custodial sentences with conditional sentences.

The court held that the trial judge properly applied the W.(D.) framework, did not materially misapprehend the complainant's evidence, and did not subject the appellant's testimony to uneven scrutiny.

On sentence, the court held that the second assault properly engaged a trust-based aggravating consideration within the parties' prior intimate relationship and that the sentences imposed were not demonstrably unfit.

The conviction appeal was dismissed, leave to appeal sentence was granted, and the sentence appeal was dismissed.

The applicant, a former employee and pension plan member, sought an order compelling the employer to commence proceedings to wind up the pension plan under s. 68(1) of the Pension Benefits Act.

The employer brought a motion to strike these claims, which was dismissed by the motion judge and the Divisional Court.

On appeal, the Court of Appeal allowed the appeal and struck the claims, holding that based on the Supreme Court's decision in Buschau, the court does not have jurisdiction to compel an employer to wind up a pension plan at the request of plan members.

Doing so would circumvent the statutory scheme and usurp the authority of the Superintendent of Financial Services.

The appellant appealed the dismissal of his application for declaratory relief under the Charter and the award of substantial indemnity costs against him.

The Court of Appeal dismissed the appeal on the merits, agreeing with the application judge that the doctrine of collateral attack was a complete answer to the application.

However, the Court granted leave to appeal the costs award and allowed that portion of the appeal, finding no basis for substantial indemnity costs.

The costs award was reduced to partial indemnity, and the respondents were awarded $5,000 in costs for the appeal.

The appellant municipality appealed a decision quashing a by-law that authorized a licence agreement for a jet boat tour operator to use a municipal dock.

The application judge had found the by-law contravened the Planning Act because the use did not conform to the Official Plan's 'Conservation' designation and was not a legal non-conforming use.

The Court of Appeal allowed the appeal, finding that the jet boat operation was a legal non-complying use under the Official Plan, as it was lawfully established by a prior by-law before the Plan was adopted.

The Court also found the licence agreement was not an unlawful disposition of land and did not create an illegal monopoly.

The respondents, estate trustees, sought to be removed due to personal hardship and a conflict of interest arising from a mortgage they registered against the estate's sole asset to cover litigation costs.

The motion judge removed them without appointing a replacement or providing for the estate's administration.

The Court of Appeal allowed the appeal, holding that while a court has inherent equitable jurisdiction to remove a sole trustee without appointing a replacement, it must ensure the orderly administration of the estate.

The matter was remitted to the Superior Court to reconsider the removal application alongside a motion for directions.

The Minister assessed the respondent for unremitted retail sales tax on the basis that she was a director of her brother's company.

The respondent was never a director and had no involvement with the company, but missed the time limits to object to the assessment under the Retail Sales Tax Act.

She obtained a declaration from the Superior Court that she was not a director and not liable for the tax.

The Court of Appeal allowed the Minister's appeal, holding that the respondent could have raised a due diligence defence under the Act and that disputes concerning the validity of an assessment must be resolved within the statutory framework, not through an application for declaratory relief.

The appellant appealed the dismissal of his claim for possessory title over a family cottage property and sought an increase in an $18,000 unjust enrichment award for improvements made to the land.

The respondents cross-appealed the unjust enrichment award.

The Court of Appeal held that the appellant's parents occupied the property as licensees under a family arrangement, not as tenants at will, meaning the limitation period under s. 5(7) of the Real Property Limitations Act was never triggered.

The Court upheld the unjust enrichment award, finding the application judge reasonably assessed the value of the improvements.

Both the appeal and cross-appeal were dismissed.

The young person appealed the sentence imposed by the Ontario Court of Justice.

The Court of Appeal dismissed the appeal, finding that the sentence was not clearly disproportionate to the offence and that there was ample evidence to support the trial judge's determination that the sentence served the purposes and goals of the Youth Criminal Justice Act.

The appellant, a young offender, appealed a 90-day sentence for assault causing bodily harm.

He argued the sentencing judge erred by failing to credit 101 days of pre-trial custody served for separate robbery charges that were later withdrawn.

The Court of Appeal allowed the appeal, finding the sentencing judge erred in law by not considering the pre-trial custody.

The 90-day sentence was set aside, as the pre-trial custody credit would have fully absorbed it.

The appellant condominium developer appealed a trial judgment finding it liable for failing to disclose sufficient information regarding an HVAC equipment lease in a disclosure statement provided to prospective purchasers.

The trial judge held that the failure to include the lease term, total cost, interest rate, and purchase option price violated s. 52(5) of the Condominium Act.

The Court of Appeal allowed the appeal, finding that the disclosure statement accurately disclosed the existence and first-year cost of the lease, which was sufficient to meet the statutory requirements.

The failure to provide further details was not a material omission, and the condominium corporations did not suffer a loss in reliance on the statement.

The respondent bank moved for judgment to enforce Minutes of Settlement.

The appellants requested an adjournment to obtain alternate legal counsel, which the motion judge denied, granting judgment in favour of the bank.

The appellants appealed, arguing the denial was contrary to the interests of justice.

The Court of Appeal dismissed the appeal, finding the decision to grant an adjournment is discretionary and the appellants failed to demonstrate prejudice or provide evidence of a defence, particularly given they had acknowledged liability in the Minutes of Settlement.