OCA 2011

The appellant appealed an order dismissing its claim as time-barred.

The Court of Appeal agreed with the motion judge that the loan in question was tantamount to a loan payable on demand, and therefore the claim was time-barred.

The appeal was dismissed with costs awarded to the respondents.

The appellant appealed an order finding that the respondents were privies to a prior foreclosure proceeding against the elder Marinos.

The appellant argued the respondents were independent debtors without a community of interest.

The Court of Appeal agreed with the motion judge that the respondents were privies and that issue estoppel applied against the appellant, dismissing the appeal.

The moving party, a commercial tenant who built a store on the subject property, sought a stay of an order approving the sale and vesting of the property free and clear of its interests pending appeal.

The court granted the stay to preserve the status quo, finding the moving party would suffer irreparable harm if its appeal became moot.

To alleviate prejudice to the responding party mortgagee, the moving party was ordered to continue paying rent into trust and to deposit a $100,000 letter of credit.

The parties reached a settlement.

The Court of Appeal for Ontario dismissed the appeal and cross-appeal without costs.

The appellant appealed convictions for sexual assault, sexual interference, and breach of probation.

The Court of Appeal dismissed the appeal regarding sexual interference, finding the trial judge's reasons adequate and untainted by references to other incidents.

The court allowed the appeal regarding breach of probation, entering an acquittal because the trial judge failed to make a discrete finding concerning the date of the offences.

On consent, the court entered a stay on the sexual assault conviction.

The applicants sought directions on how to proceed with their applications for disclosure of certain First Nation Band lists in furtherance of a constitutional challenge to their criminal convictions.

The Crown argued that the issue of public interest privilege should be heard and decided before determining the disclosure process (Stinchcombe or O'Connor) and whether disclosure is required.

The Court of Appeal directed that all three issues be argued at a single hearing to proceed expeditiously.

The Court also ordered that notice encompassing all three issues be given to the affected Bands to ensure transparency and allow them to make submissions.

The appellants appealed a trial judgment that extinguished their title to two strips of land between adjoining properties due to the respondents' adverse possession, and awarded damages for trespass.

The trial judge found that a fence and sidewalk were constructed based on a mutual mistake regarding the property line.

The Court of Appeal found no basis to interfere with the trial judge's findings on adverse possession or trespass damages.

The respondents agreed to grant a permanent easement for the appellants' roof overhang.

The appeal was dismissed, and leave to appeal costs was denied.

The appellant appealed an order striking his pleadings and dismissing his motion to change a final spousal support order, as well as an enforcement order for support arrears.

The Court of Appeal dismissed the appeals, finding that the appellant's pleadings were properly struck due to his wanton noncompliance with court orders and failure to pay costs.

The court also found no error in the enforcement order or any evidence of judicial bias, noting the appellant failed to avail himself of procedural rights to demonstrate an inability to pay.

The Crown appealed the accused's acquittal on charges of possession of child pornography.

The police had obtained a warrant to search the accused's computer for evidence of fraud.

During the search, an analyst found images of child pornography and, after consulting with the Crown, continued to search video files for further evidence of child pornography without obtaining a second warrant.

The trial judge found a breach of s. 8 of the Charter and excluded the evidence under s. 24(2).

The Court of Appeal held that while the search of the video files violated s. 8, the trial judge erred in characterizing the Crown's advice as reckless and finding a systemic failure.

Applying the Grant framework, the Court of Appeal concluded that the evidence should not be excluded, allowed the appeal, and ordered a new trial.

The appellant sought leave to appeal a decision of the summary conviction appeal court dismissing his appeal from conviction.

The Court of Appeal denied leave, finding that the proposed appeal raised an issue of mixed fact and law rather than a pure question of law, and did not engage the interest of the general administration of justice.

The court also found that the trial was not unfair, as the appellant had received adequate disclosure, and the trial judge's challenged remark was merely an attempt to assist a self-represented accused.

The appellant appealed his conviction and sentence, arguing the trial judge's reasons were insufficient.

The Court of Appeal dismissed the appeal, finding that the trial judge's reasons were sufficient for appellate review and that photographic evidence supported the victim's testimony.

The appellant appealed her conviction on the basis that the trial judge erred in assessing eyewitness identification evidence.

The Court of Appeal found that the trial judge failed to distinguish the relative probative value of multiple identifications by a police officer, failed to consider a relevant physical description discrepancy despite a Crown admission, and failed to caution himself on the generic weaknesses of eyewitness identification.

The appeal was allowed and a new trial ordered.

In an environmental class action concerning historic nickel emissions from a refinery, the appellant challenged findings of nuisance, strict liability, and aggregate damages for alleged property value stigma following public concern about soil nickel levels.

The Court of Appeal held that a mere chemical alteration of soil, without detrimental effect on the land or its use, does not constitute actual, substantial, physical damage for private nuisance.

The court also held that Ontario law does not recognize strict liability based solely on allegedly extra-hazardous activity, and that the refinery operation was not a non-natural use within the Rylands v. Fletcher framework.

The claimants further failed to prove any compensable diminution in property values on a proper analysis of the valuation evidence.

The appeal was allowed and the action dismissed.

The appellants appealed their convictions for production of marihuana, possession for the purpose of trafficking, and theft of electricity.

The primary appellant also appealed his ten-month sentence.

The Court of Appeal dismissed the primary appellant's appeals, finding ample evidence of his involvement in the sophisticated grow operation and concluding the sentence was fit.

However, the Court allowed the appeals of the primary appellant's parents, finding the circumstantial evidence of their brief presence at the house and gardening activities insufficient to prove beyond a reasonable doubt that they were parties to or aided and abetted the operation.

Their convictions were set aside and acquittals entered.

The appellants appealed a trial judgment holding them liable in negligence and nuisance for water damage to the respondent's basement.

The Court of Appeal allowed the appeal and ordered a new trial, finding the trial judge made three fatal legal errors: improperly shifting the burden of proof by finding a 'presumption of negligence', imposing a non-existent duty on the appellants to assert a claim against the city on behalf of the respondent, and applying a material contribution test for causation instead of the standard 'but for' test.

The moving party brought a motion to quash an appeal by the appellant regarding an order granting the media access to a video exhibit from the appellant's concluded bail hearing.

The moving party argued the matter was criminal in nature, meaning jurisdiction lay with the Supreme Court of Canada.

The Court of Appeal dismissed the motion, holding that because the criminal proceedings were fully concluded and the order did not affect any ongoing criminal matter or the appellant's fair trial rights, the proceeding was civil in nature and properly appealed to the Court of Appeal under the Courts of Justice Act.

The mother appealed an Ontario order enforcing a Georgia custody order that granted sole custody to the father.

Pending the appeal, the mother moved for third-party production of documents, and the father cross-moved for security for costs.

The Court of Appeal dismissed the mother's motion, finding the documents could have been requested earlier and would not meet the test for fresh evidence as they did not address the Georgia court's ability to protect the children.

The Court granted the father's motion for security for costs, finding the mother's appeal to be meritless and a waste of time, and ordered her to post $10,000.

The United Mexican States appealed a Superior Court decision dismissing its application to set aside a portion of a NAFTA Chapter 11 arbitration award in favour of Cargill, Incorporated.

The arbitral tribunal had awarded Cargill damages for both its Mexican subsidiary's lost sales and its own lost sales of high fructose corn syrup to the subsidiary ('up-stream losses') resulting from Mexico's trade barriers.

Mexico argued the tribunal lacked jurisdiction to award up-stream losses.

The Court of Appeal held that the standard of review for true questions of jurisdiction under Article 34(2)(a)(iii) of the Model Law is correctness.

However, the Court found that the tribunal correctly identified its jurisdictional limits and that the determination of whether the up-stream losses arose out of Mexico's breaches was a matter for the tribunal's expertise, not a jurisdictional issue.

The appeal was dismissed.

The applicant was convicted of driving with a suspended licence at an ex parte trial after failing to appear on an adjourned trial date.

His application for an extension of time to appeal was denied by the Ontario Court of Justice.

He sought leave to appeal that denial to the Court of Appeal.

The Court of Appeal held it lacked jurisdiction under s. 131 of the Provincial Offences Act, as that section only permits appeals from judgments made pursuant to s. 116, not s. 85.

In any event, the appeal lacked merit because the defendant bore the responsibility to ascertain his adjourned trial date.

The moving party, Lehman Brothers International (Europe), sought to stay an order refusing to permanently stay the Ontario action pending its motion for leave to appeal to the Supreme Court of Canada.

The underlying dispute involved the beneficial ownership of publicly traded securities held under brokerage contracts containing an exclusive jurisdiction clause.

The Court of Appeal dismissed the motion for a stay, finding that the moving party failed to show a serious issue to be adjudicated, irreparable harm, or that the balance of convenience favoured a stay, particularly given the responding parties' undertakings and the ongoing concurrent litigation in New York.