OCA 2011

The appellant appealed a judgment dismissing its request for rectification of a definition in an Agreement of Purchase and Sale based on mutual mistake.

The dispute centered on the definition of 'Gross Floor Area' (GFA) and whether it should be rectified to correspond with a site-specific by-law rather than the City of Toronto By-law specified in the agreement.

The Court of Appeal dismissed the appeal, finding no mutual mistake because the respondent clearly intended to use the City of Toronto By-law definition to determine any increase in GFA.

The appellant appealed a judgment dismissing his application to assess two legal accounts from the respondent, delivered in 1999 and 2008.

The appellant also moved to introduce fresh evidence to seek a new assessment hearing for all accounts.

The Court of Appeal found no error in the application judge's reasons, noting a 2001 consent agreement covering the 1999 account and a lack of special circumstances for the 2008 account.

The motion to introduce fresh evidence was denied, as the appellant only sought assessment after deciding his wife's legal bills were too high.

The appeal was dismissed.

The purchaser bought a house and subsequently discovered serious latent structural and plumbing defects.

The vendors had completed a Seller Property Information Sheet (SPIS) indicating no ongoing problems, which the real estate agent, acting for both parties, passed on without verification.

The purchaser recovered under her title insurance policy but also sued the vendors and the agent.

The trial judge found the vendors liable for negligent misrepresentation but dismissed the claims against the agent.

On appeal, the Court of Appeal upheld the vendors' liability and the application of the private insurance exception to prevent deduction of the insurance proceeds.

The Court allowed the purchaser's cross-appeal, finding the real estate agent negligent for failing to verify the vendors' representations or recommend an independent inspection, and apportioned fault equally between the vendors and the agent.

The appellant appealed an order of the Superior Court of Justice.

On consent, the Court of Appeal allowed the appeal, set aside the lower court's order, and ordered no costs.

The appellant appealed his firearm convictions, arguing that the police violated his rights under sections 8 and 9 of the Charter.

The police had detained the appellant after observing suspicious movements in a parked car and recalling an officer safety alert indicating he might be armed and wearing a bulletproof vest.

After a pat-down search revealed a bulletproof vest, the police searched a bag in the vehicle and found a handgun, which the appellant had abandoned before fleeing.

The Court of Appeal dismissed the appeal, finding the investigative detention lawful, that the appellant lacked standing to challenge the search due to abandonment, and that the search of the bag was justified for officer safety.

The appellant sought to appeal a judgment and a vesting order granted following an uncontested trial, which occurred after his statement of defence was struck for failure to comply with disclosure obligations.

The respondent moved to quash the appeal.

The Court of Appeal quashed the appeal, holding that an appellant must exhaust their remedies to change, vary, or set aside a default order in the court of first instance before an appeal lies to the Court of Appeal.

The Crown appealed the respondent's acquittal for being an occupant in a motor vehicle knowing there was a firearm.

The trial judge found the respondent was in the car in an honest attempt to prevent her intoxicated boyfriend from doing something stupid.

The Court of Appeal found no reversible error given this blameless purpose and dismissed the appeal.

The appellants appealed an order dismissing their motion to dismiss or stay the respondents' action for breach of contract and misuse of confidential information.

The appellants argued the action was barred by issue estoppel due to a Pennsylvania court order, that Ontario lacked jurisdiction, and that Ontario was forum non conveniens.

The Court of Appeal dismissed the appeal, finding that the Pennsylvania court did not decide the choice of law issue, the appellants had attorned to Ontario's jurisdiction, the real and substantial connection test was met, and Ontario was the convenient forum.

The appellants appealed an order regarding rental arrears.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that any offset or deduction of rental arrears must be addressed in the related mortgage action, potentially requiring the addition of a party to that action.

The appellant appealed his convictions for perjury and attempt to obstruct justice arising from false testimony given as a proposed surety at a bail hearing.

At trial, the appellant argued he lacked the mens rea to commit perjury, claiming he did not know he had a criminal record due to his limited education, alcoholism, and belief that his record had been wiped clean.

During deliberations, the jury asked questions about whether reasonable doubt could be based on mental capacity, linguistic ability, or a misunderstanding of the law.

The trial judge answered by stating the jury was getting sidetracked, introducing the concept of a not criminally responsible defence, and advising that everyone is presumed to know the law.

The Court of Appeal held that these answers were wrong in law, unresponsive, and effectively deprived the appellant of his defence that he lacked the intent to deceive.

The appeal was allowed and a new trial ordered.

The appellant, a technical sales representative, was terminated after 17 years of employment.

He sought a declaration that a restrictive covenant in his employment contract, which prohibited him from competing with the respondent for one year by dealing with any of its customers, was unenforceable.

The application judge dismissed the application, finding the covenant reasonable.

On appeal, the Court of Appeal found the covenant overly broad and unworkable in practice, as the appellant had no way of knowing all of the respondent's customers over the past 17 years.

The appeal was allowed and the restrictive covenant was declared unenforceable.

The appellant, who was hearing impaired, was charged with sexual interference and sexual assault.

He consistently denied the allegations and wished to proceed to trial.

On the first day of trial, his counsel entered a plea of not guilty but informed the court the appellant would not dispute the allegations.

The Crown read the allegations, no evidence was called, and the trial judge entered a conviction without conducting a plea inquiry.

The Court of Appeal found that this procedure was the functional equivalent of a guilty plea and that the failure to conduct a plea inquiry, combined with trial counsel's pervasive lack of preparation and failure to follow instructions, resulted in a miscarriage of justice.

The appeal was allowed and a new trial ordered.

The appellant appealed his manslaughter conviction, arguing the trial judge inadequately instructed the jury on the mental element required for the offence.

The jury had asked whether deliberately pushing the deceased out of the way, without intending to push her down the stairs, constituted an unlawful act.

The trial judge instructed that any intentional application of force without consent is an unlawful act and the strength of the force is immaterial.

The Court of Appeal found this instruction wrong in law, as it failed to explain that unlawful act manslaughter requires objective foreseeability of the risk of bodily harm that is neither trivial nor transitory.

The appeal was allowed and a new trial ordered.

The plaintiff was injured in a single-vehicle accident allegedly caused by an unidentified driver.

He sought coverage under his automobile insurance policy's Family Protection Coverage Endorsement (OPCF 44R), relying on the evidence of his passenger and then-girlfriend to meet the corroboration requirement.

The insurer appealed a motion judge's ruling that the passenger's evidence could constitute 'independent witness evidence' despite her close personal relationship with the plaintiff and her own financial stake in the outcome.

The Court of Appeal dismissed the appeal, holding that the independence requirement applies to the evidence itself—meaning it must come from a source extraneous to the claimant—rather than requiring the witness to be entirely neutral.

The appellant appealed her conviction and five-year sentence for possession of a substantial amount of methamphetamine for the purpose of trafficking.

She argued the conviction was unreasonable and that the trial judge reversed the burden of proof.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's factual and credibility findings supported a reasonable verdict.

The sentence appeal was also dismissed, as five years for drugs with a street value of approximately $200,000 was not unreasonable.

The appellants appealed the trial judge's order for a re-trial, which was based on a finding that the jury's answers regarding damages were inconsistent.

The Court of Appeal allowed the appeal, finding that the jury's answers were not inconsistent and that there was evidence to support their findings on past and future wage loss and general damages.

The jury's verdict was reinstated, and the issue of costs was remitted to the trial judge.

The appellant's employment was terminated at age 52.

He sought a declaration that he was entitled to an unreduced pension at age 62 under his former employer's registered pension plan and executive supplementary pension agreement.

The motion judge dismissed his claim.

On appeal, the Court of Appeal upheld the decision, finding that the appellant did not qualify for early retirement under the plan because he was not between the ages of 55 and 65 when his employment ended.

The supplementary agreement was intended to provide benefits in excess of the plan, not to create a new substantive right at odds with the plan's conditions for entitlement.

The appellants appealed an order declining to stay the respondent's action.

The appellants argued that an arbitration clause in their agreement encompassed the issues raised in the litigation.

The Court of Appeal dismissed the appeal, finding that there was no arguable arbitration provision in the contract at the relevant time, as the written contracts containing such clauses had expired and the appellants had previously communicated their desire not to arbitrate disputes.

The court also agreed with the motion judge that the claims did not fall within the alleged clause and that Ontario was the more convenient forum.

The appellant payor appealed a trial decision awarding retroactive child and spousal support, ongoing spousal support, and costs to the respondent recipient.

The parties had a separation agreement, but the payor failed to disclose significant increases in income and negotiated reduced support payments.

The Court of Appeal upheld the retroactive child support award, finding the payor's failure to disclose income constituted blameworthy conduct.

However, the Court allowed the appeal regarding spousal support, limiting the retroactive spousal support to the period before the recipient became self-sufficient and setting aside the ongoing spousal support award due to the time-limited nature of the separation agreement.

The appellant, who was 16 years old at the time of the offence, appealed his adult sentence of life imprisonment with seven years of parole ineligibility for second-degree murder.

The appellant argued the sentencing judge erred by not considering declining pre-sentence custody credit to make a youth sentence sufficient.

The Court of Appeal dismissed the appeal, finding the adult sentence was supported by the appellant's age and the violent, unprovoked nature of the crime.

The Court also declined to alter the sentence based on fresh evidence of recent progress in custody, noting this could be addressed in future applications under the Youth Criminal Justice Act.