OCA 2012

The parties separated after an 11-year marriage.

Shortly before separation, the respondent wife received a $200,000 gift from her father and, under pressure from the appellant husband, used $180,000 of it to pay down the joint line of credit on the matrimonial home.

The husband left the marriage two months later.

The trial judge ordered an unequal division of net family property under s. 5(6) of the Family Law Act, finding that allowing the husband to reap a $90,000 windfall from the gift would be unconscionable.

The Court of Appeal dismissed the husband's appeal, holding that the trial judge applied the correct legal test and made no palpable and overriding error in finding that an equal division would shock the conscience of the court.

The appellant nurse was terminated and her employer reported the termination to the College of Nurses.

After the College dismissed the charges, the appellant sued her employer and manager for wrongful dismissal and bad faith.

The motion judge struck the bad faith claims, ruling that s. 36(3) of the Regulated Health Professions Act, 1991 rendered all related documents inadmissible.

The Court of Appeal allowed the appeal in part, holding that documents created in the normal course of business prior to the report to the College are not protected by s. 36(3) and can be used to prove bad faith.

The appellant sought to appeal a forfeiture order regarding Hell's Angels paraphernalia seized from his residence.

During his sentencing, the appellant disavowed any interest in the property, claiming it belonged to the Hell's Angels Motorcycle Corporation.

He chose not to participate in the subsequent forfeiture proceedings.

After the Corporation's appeal of the forfeiture order was dismissed as abandoned, the appellant attempted to appeal the order himself.

The Court of Appeal dismissed the appeal, holding that it would be an abuse of process to allow the appellant to challenge an order made in proceedings he deliberately chose to ignore.

The plaintiff obtained a judgment against a hotel for unpaid marketing invoices.

When the judgment remained unsatisfied, the plaintiff commenced a second action against the hotel's owner and manager.

The motion judge dismissed the second action as an abuse of process, finding the plaintiff's president had purposely withheld evidence about the owner's liability in the first action.

The Court of Appeal allowed the appeal, holding that the motion judge's factual finding was clearly wrong.

The Court further held that in circumstances of joint and several liability, obtaining judgment against one party does not bar a subsequent action against another party, and the second action was not an abuse of process.

The appellants, a law firm and its principal lawyer, appealed a motion judge's decision denying them a fee premium and reimbursement of disbursements for their representation of a catastrophically injured client under a disability.

During the appeal, the parties reached a settlement for a reduced fee premium and full disbursements.

The Court of Appeal approved the settlement, finding it was in the best interests of the person under a disability and fairly compensated the lawyers for their services and risk.

The appellant appealed his conviction for trafficking crack cocaine.

The sole issue at trial was identity.

The trial judge was unable to identify the appellant from surveillance photographs but relied on the opinions of police officers who identified the appellant in court.

The Court of Appeal held that the trial judge erred in relying on the officers' opinions, as they had no special knowledge or advantage over the judge in comparing the photographs to the appellant.

The in-dock identification was inherently frail, and the verdict could not be supported by the evidence.

The appeal was allowed and the conviction quashed.

The appellants appealed their convictions, challenging the admissibility of certificates and the trial judge's application of the W.(D.) framework.

The Court of Appeal dismissed the appeals, finding that the trial judge's factual findings regarding the certificates were not unreasonable and that the reasons thoroughly and correctly applied the W.(D.) principles to the facts.

The Crown appealed an acquittal entered after it offered no further evidence following a ruling on a Charter motion.

The Court of Appeal stayed the appeal, finding the Crown failed to demonstrate that the Charter ruling was sufficiently important to prevent the prosecution from continuing.

The Court noted that other evidence, including a co-accused's accident report and testimony, was potentially available.

Allowing the appeal on such a sparse record would constitute an impermissible interlocutory appeal and an abuse of process.

The appellant appealed his sentence, arguing that the trial judge failed to give adequate weight to his guilty plea.

The Court of Appeal dismissed the appeal, finding no error in principle and noting that the trial judge's reasons were exemplary and the sentence was well within the range.

The trial judge had appropriately considered the guilty plea and the appellant's sincere remorse.

The appellants sought judicial review of the Chief Electoral Officer's decision not to report an alleged contravention of the Election Finances Act to the Attorney General, and his decision to register a third party during the 2007 provincial election.

The Divisional Court dismissed the application, finding the first decision was not subject to judicial review and the second was moot.

The Court of Appeal upheld the Divisional Court's decision, concluding that the Chief Electoral Officer's actions did not determine legal rights and were analogous to a police officer refusing to lay a charge.

The Court also found no error in the Divisional Court's discretionary decision to dismiss the third-party registration issue on grounds of mootness.

The appellant appealed a motion judge's order requiring him to pay $150,000 in lump sum child support and ordering his property to vest absolutely in the respondent if unpaid.

The respondent died prior to the appeal, and the proceeding was continued by a litigation administrator.

The Court of Appeal upheld the lump sum support order, finding it was a reasonable exercise of discretion under s. 10(1) of the Child Support Guidelines given the appellant's dissipation of capital assets and failure to pay support since 2001.

However, the court set aside the vesting order, replacing it with an order that the property stand as security for the support order.

The appellants, a debtor and his employer (the garnishee), appealed an order requiring the garnishee to remit funds to the Sheriff pursuant to a notice of garnishment.

The debtor had made an assignment in bankruptcy after the notice was issued and was subsequently discharged.

The Court of Appeal dismissed the appeals, finding that the judgment debt survived the bankruptcy under s. 178(1) of the Bankruptcy and Insolvency Act because it arose from the debtor's misappropriation of funds while acting in a fiduciary capacity.

The Court also held that the stay of execution ceased when the trustee was discharged, and no leave was required to enforce the unconditional judgment.

The appellant failed to appear for the hearing of the appeal after its counsel was removed from the record.

The Court of Appeal dismissed the appeal and awarded costs of $5,000 to the respondent.

The appellant appealed his conviction and sentence for homicide, arguing the trial judge erred in admitting evidence of a witness's guilty plea to manslaughter, refusing to put self-defence to the jury, and admitting a prior statement as a threat.

The Court of Appeal found no error in the trial judge's evidentiary rulings or jury instructions, noting there was no air of reality to the self-defence claim.

The court also upheld the 12-year parole ineligibility period, finding it was not manifestly unreasonable.

The appellant union appealed a Divisional Court decision upholding an arbitrator's dismissal of a grievance regarding an employee's termination.

The employee, who had a 20-year unblemished record, was terminated for failing to provide requested medical information by a specific deadline while on short-term disability leave.

The Court of Appeal allowed the appeal, finding that the arbitrator failed to properly apply the principle of proportionality from McKinley v. BC Tel and improperly relied on the employee's lack of candour during the arbitration process to justify the employer's prior termination decision.

The matter was remitted to a different arbitrator for reconsideration of the appropriate sanction.

The appellants, a former condominium owner and a former management company, appealed a summary judgment dismissing their action against a condominium corporation and its directors for alleged misappropriation of funds.

The Court of Appeal upheld the dismissal against the participating defendants, agreeing that the appellants lacked standing because they had no direct interest in the corporation's funds.

However, the Court allowed the appeal regarding the non-participating defendants, as they had not sought summary judgment, and set aside the costs award because it was improperly made on a full indemnity basis without allowing the appellants to respond.

The appellant tenant appealed a decision finding that work performed on the leased premises constituted leasehold improvements rather than structural repairs.

The Court of Appeal upheld the trial judge's finding, noting the premises were taken on an 'as is' basis and the tenant failed to obtain the landlord's approval as required by the lease.

The appeal was dismissed.

The plaintiff brought a proposed class action alleging that the defendant railway company misclassified first line supervisors as managerial employees to avoid paying overtime under the Canada Labour Code.

The motion judge certified the action but significantly redrafted the common issues, rejecting the plaintiff's proposed misclassification issue due to a lack of commonality.

On appeal, the Court of Appeal held that the motion judge correctly rejected the misclassification issue because individualized assessments of job duties were required.

However, the Court found the motion judge erred in certifying a reframed common issue about the minimum requirements for managerial status, as it suffered from the same lack of commonality.

The certification order was set aside.

The appellant appealed the dismissal of a motion to certify a class action on behalf of CIBC customer service employees for unpaid overtime.

The motion judge and Divisional Court had found it plain and obvious that CIBC's policy requiring pre-approval for overtime complied with the Canada Labour Code, and that individual issues predominated.

The Court of Appeal allowed the appeal, holding that it was arguable the pre-approval requirement violated the Code's mandate to pay for overtime 'required or permitted' by the employer.

The Court also found some basis in fact that CIBC's systemic practices breached employment contracts, satisfying the common issues requirement for certification.

The representative plaintiff brought a proposed class action against the defendant bank for unpaid overtime, alleging breach of contract, unjust enrichment, and negligence due to systemic policies requiring pre-approval for overtime and inadequate record-keeping.

The motion judge certified the action, and the Divisional Court upheld the certification.

On appeal, the Court of Appeal upheld the certification of most common issues and agreed that a class proceeding was the preferable procedure.

However, the Court allowed the appeal in part, striking the common issue regarding the aggregate assessment of damages under s. 24(1) of the Class Proceedings Act, finding that damages could not reasonably be calculated without proof by individual class members.