OCA 2011

The appellant appealed the dismissal of his actions against the College of Physicians and Surgeons of Ontario.

The motion judge had dismissed the actions under Rule 21.

The Court of Appeal agreed, finding that the College's actions, including a referral to the Fitness to Practice Committee, were taken in accordance with its statutory mandate under the Regulated Health Professions Act, 1991.

The Court also held that the appellant's Charter claims were properly dismissed as there was nothing to support them.

The appeal was dismissed with costs.

The appellants appealed a trial judgment finding them liable for solicitor negligence in failing to seek instructions on whether a mortgage should be registered on all three parcels of land.

The Court of Appeal dismissed the appeal, finding that any error regarding issue estoppel had no effect on the outcome, as the measure of damages would be the same.

The Court also upheld the trial judge's award of compound interest at the mortgage rate of 8.4 percent, confirming that compound interest can be awarded as compensation in a solicitor's negligence case rooted in a mortgage transaction.

The appellant appealed his convictions for assault and unlawful confinement, as well as his 18-month concurrent sentences and a $400 restitution order.

The Court of Appeal quashed the assault conviction, agreeing with the Crown that assault is not an included offence of conspiracy to commit assault.

The court upheld the unlawful confinement conviction, finding no error in the trial judge's credibility assessments or factual findings regarding coercion.

The 18-month sentence for unlawful confinement was upheld given the appellant's criminal record and role as ringleader, but the $400 restitution order was set aside because the trial judge failed to inquire into the appellant's ability to pay.

The self-represented appellant appealed his conviction, arguing that evidence regarding the condition of a brake system was fabricated, that evidence of prior audits was improperly admitted, and that evidence from an MTO investigation was improperly obtained.

The Court of Appeal dismissed the appeal, finding that the trial judge reasonably rejected the fabrication claims, the prior audits were admissible to show a pattern of conduct, and the appellant could not raise Charter issues for the first time on appeal after failing to bring an application at trial.

The appellant appealed his conviction, arguing that the trial judge erred in instructing the jury on how to treat a witness's gratuitous personal opinions and the manner in which he gave evidence.

The appellant also argued that the Crown asked an improper question during re-examination about a trip to Windsor shortly after the killing.

The Court of Appeal dismissed the appeal, finding the jury instructions were correct and the re-examination question was proper given the defence's cross-examination.

The appellant deposited a materially altered cheque into his account at the respondent credit union as part of a wire transfer scam.

After the drawee bank dishonoured the cheque, the respondent exercised its common law right of charge-back against the appellant's accounts and sued for the unrecovered balance.

The trial judge found for the respondent.

On appeal, the appellant argued that the right of charge-back was extinguished once the respondent received funds from the drawee bank, and alternatively, that the respondent was negligent in failing to warn him that the credit was provisional.

The Court of Appeal dismissed the appeal, holding that a collecting bank does not lose its right of charge-back upon receiving payment from the drawee bank, and that the respondent owed no duty to warn the appellant in these circumstances.

The applicant, Labatt, brought an application seeking an interpretation of a renewal provision in a previous sponsorship agreement with the respondent, NHL.

The application judge found that the parties had reached a new, binding sponsorship agreement, a position that Labatt had not pleaded or advanced during the hearing.

The NHL and Molson appealed.

The Court of Appeal allowed the appeal, holding that it was procedurally unfair and contrary to natural justice for the application judge to base his decision on a novel theory of liability that was never pleaded and to which the respondents had no opportunity to respond.

The judgment was set aside and the matter remitted to a different judge.

The appellant appealed an order regarding her qualification for survivor benefits under the respondent pension plan.

The respondent confirmed before the Court of Appeal that the appellant would continue to qualify for benefits as long as her academic institution considered her to be in full-time attendance, even with a reduced course load.

Given this assurance, the appellant achieved the result she sought by way of alternative relief.

The appeal was dismissed, with costs awarded to the respondent.

The appellant, a former executive and minority shareholder, sued the respondents in Ontario for wrongful dismissal, unpaid wages, and oppression.

The motions judge denied the appellant's motion for partial summary judgment and granted the respondents' motion to stay the action based on an exclusive forum selection clause in a Shareholders' Agreement favouring England.

On appeal, the Court of Appeal upheld the denial of summary judgment but set aside the stay.

The Court found that the motions judge erred by ignoring a non-exclusive Ontario forum selection clause in the appellant's Service Agreement and by failing to consider that the respondents had attorned to Ontario's jurisdiction by defending the action on the merits and counterclaiming before invoking the English forum selection clause.

The self-represented appellant appealed a summary judgment dismissing his solicitor negligence action against the respondent.

The appellant claimed the respondent's negligence caused properties to be sold at depressed prices under power of sale, preventing him from recovering his investment.

The Court of Appeal upheld the motion judge's finding that the appellant knew of the power of sale proceedings but took no steps to protect his unsecured investment.

The court confirmed there was no legal basis for the respondent to register a lien on the properties, and the appeal was dismissed.

The appellants appealed a motion judge's decision refusing their request to amend their pleading to correct an alleged misnomer in naming a defendant.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's application of the Ormerod test or her exercise of residual discretion under Rule 5.04(2).

The motion judge properly considered the appellants' significant, unexplained delay and the prejudice to the respondent, who had no notice of the potential claim for about five years.

The appellant brought a tort claim against his former wife following the final settlement of their matrimonial litigation.

The motion judge dismissed the claim, finding the appellant was precluded from proceeding.

The Court of Appeal upheld the decision, noting the appellant knew all necessary facts at the time of the matrimonial settlement and failed to pursue the claim or reserve his right to do so.

The appeal was dismissed with costs.

The appellants appealed a summary judgment dismissing their medical malpractice action against a doctor and hospital.

The action arose from a delayed diagnosis of testicular torsion, resulting in the removal of the affected testicle.

The motion judge found that even if the doctor had properly diagnosed the condition when he first saw the patient, there was at most a 10 per cent chance of saving the testicle.

The Court of Appeal upheld the motion judge's conclusion that the 'but for' test for causation was not met and dismissed the appeal.

The appellant was convicted of careless storage of a firearm and ammunition after police, assisting sheriff's officers with an eviction, opened gun cases found in the apartment without a warrant.

The summary conviction appeal court upheld the convictions.

On appeal, the Court of Appeal found that the appellant retained a reasonable expectation of privacy in his home and belongings despite the eviction order.

The court held that the police breached s. 8 of the Charter by opening the gun cases without a warrant or exigent circumstances.

Applying the Grant framework, the court excluded the evidence under s. 24(2) of the Charter, allowed the appeal, and entered acquittals.

The appellant appealed his conviction for the sexual assault of a 15-year-old complainant.

He argued the trial judge erred by relying on hearsay evidence, permitting improper cross-examination about whether he found the complainant attractive, and failing to properly apply the W.D. principles for assessing credibility.

Both parties also sought to introduce fresh evidence.

The Court of Appeal dismissed the applications to introduce fresh evidence, finding it did not meet the Palmer test.

The Court dismissed the appeal, holding that the hearsay evidence was properly used to infer state of mind, the cross-examination was permissible to rebut the appellant's assertion of good character, and the trial judge correctly applied the burden of proof.

The appellant tenant entered into an agreement to rent an apartment and paid a deposit equal to one month's rent.

Six weeks before taking possession, the appellant repudiated the agreement and sought the return of the deposit under s. 107(1) of the Residential Tenancies Act.

The landlord refused and retained the deposit.

The Court of Appeal held that s. 107(1) does not grant an automatic return of a deposit when a tenant unilaterally repudiates the agreement.

However, the court ordered the return of the deposit in this case because the landlord's rental application contained an illegal forfeiture clause and the landlord improperly treated the deposit as a penalty rather than security for rent.

The appellant and his co-accused were convicted of counselling murder and conspiracy to commit murder after planning to hire a hitman to kill the appellant's wife.

The trial judge sentenced the appellant to 6 years' imprisonment and the co-accused to 3.5 years.

The appellant appealed his sentence, arguing for parity with his co-accused.

The Court of Appeal dismissed the appeal, finding the appellant was the prime mover, motivated by greed, and that the intended victim being his wife justified a higher sentence.

The appellants appealed a summary judgment order dismissing claims against the respondent, Toivonen, arising from a motor vehicle accident.

The Court of Appeal allowed the appeal, finding there was some evidence upon which a trier of fact could conclude that the plaintiffs' vehicle struck the respondent's vehicle before being struck by the appellants' vehicle.

The summary judgment was set aside and costs were awarded to the appellants.

Two sets of proposed interveners sought to be added as parties to two separate criminal appeals in order to cross-examine witnesses and tender evidence regarding the jury panel selection process.

The court dismissed the motions to add them as parties, noting that adding strangers as parties to a criminal appeal is inappropriate.

However, the court granted the applicants intervener status as friends of the court and, exceptionally, exempted them from the usual condition of accepting the record as it exists, allowing them to potentially augment the record and cross-examine witnesses.

The appellant credit union appealed a Superior Court decision which held that the provincial two-year limitation period did not apply to a trustee's fraudulent preference claim under s. 95 of the Bankruptcy and Insolvency Act due to the doctrine of paramountcy.

The Court of Appeal allowed the appeal, finding no operational conflict or frustration of federal purpose between the provincial Limitations Act and the federal bankruptcy statute.

The court reinstated the Registrar's original order dismissing the trustee's claim as statute-barred.