OCA 2012

The moving parties (respondents on appeal) brought a motion to quash the appellants' appeal from an order dismissing their motion to strike a statement of claim.

The moving parties argued the order was interlocutory.

The Court of Appeal held that because the motion judge dismissed the appellants' motion to strike the entire action for lack of jurisdiction, the order finally determined a substantive right and was therefore a final order.

The motion to quash the appeal was dismissed.

The appellant appealed the dismissal of his action against his mother regarding an alleged contract for land.

He brought a motion seeking a declaration that Rule 63.01 automatically stayed the trial judge's order releasing vendor take back mortgage funds held in trust to the respondent, or alternatively, an order for a stay under Rule 63.02.

The Court of Appeal dismissed the motion, finding that an order for payment out of trust is not an order for the payment of money under Rule 63.01.

The court also declined to order a stay under Rule 63.02, as the appellant failed to establish a serious issue to be tried, irreparable harm, or that the balance of convenience favoured a stay.

The appellant sought leave to appeal a $75,000 costs award made by the lower court, arguing it was unreasonable and contrary to the parties' reasonable expectations.

The Court of Appeal dismissed the appeal, finding the costs award was not surprising given the complexity of the matter and the large sums in question.

Costs of the appeal were fixed at $9,000.

The appellant appealed a trial judgment regarding spousal support and an interest in a property registered in the respondent's name.

The trial judge found the parties separated before the property was acquired, it was never a matrimonial home, and rejected the appellant's claim of a $54,000 cash contribution.

The trial judge also found insufficient evidence to establish an entitlement to spousal support.

The Court of Appeal found no error in the trial judge's findings and dismissed the appeal with costs.

The appellant appealed his conviction and sentence, arguing the trial judge erred by failing to give a cautionary charge regarding his flight from the scene.

The Court of Appeal dismissed the conviction appeal, finding the evidence of flight was relevant to link the appellant to the apartment, and the risk of it being used for consciousness of guilt did not require a caution.

The sentence appeal was also dismissed as the sentence was entirely warranted on the facts.

The appellant association appealed a decision finding that the process for renewing the appointments of Deputy Judges of the Small Claims Court does not infringe the principles of judicial independence.

The Court of Appeal dismissed the appeal, applying the Supreme Court of Canada's decision in R. v. Valente.

The Court held that a reasonable and well-informed observer would conclude that the Deputy Judges and the Small Claims Court are sufficiently independent, as the renewal discretion rests with senior judicial officers rather than the Executive.

The appellant appealed a disposition of the Ontario Review Board.

The Court of Appeal found that the Board misunderstood the joint submission of the parties and inadvertently imposed a more restrictive condition than intended.

The appeal was allowed to correct the error by substituting the jointly submitted condition regarding community accommodations.

The appellant appealed his sentence, relying solely on fresh evidence regarding his treatment needs.

The Court of Appeal dismissed the appeal, finding that the fresh evidence would not have altered the sentence given the appellant's extensive criminal record, and noted his treatment needs could potentially be met in the federal system.

The young person appealed their custodial sentence.

The Court of Appeal admitted fresh evidence showing the young person had done well in school and had good prospects, supported by caring grandparents.

The Court allowed the appeal and commuted the balance of the custodial sentence to deferred custody, leaving the probation order intact.

The appellant was convicted of second degree murder and theft under $5,000 after stabbing his father at least 50 times.

He was sentenced to life imprisonment with no parole eligibility for 15 years.

On appeal, the appellant argued that the trial judge's rolled up instruction to the jury was deficient and that the 15-year parole ineligibility period was harsh and excessive.

The Court of Appeal dismissed the conviction appeal, finding the jury charge exemplary and thorough in instructing the jury to consider all evidence regarding the appellant's state of mind.

The sentence appeal was also dismissed, as the trial judge properly considered the appellant's character, lack of remorse, and the extreme brutality of the offence in determining the period of parole ineligibility.

The appellant appealed his convictions for drug trafficking and firearms offences.

The Court of Appeal upheld the validity of the search warrant and the trial judge's findings regarding possession of the drugs and the capability of the ammunition.

However, the Court allowed the appeal regarding the conviction for possession of a loaded prohibited firearm under s. 95(1) of the Criminal Code.

The Court held that possession of an unloaded firearm with readily accessible ammunition is not an included offence of possession of a loaded firearm, and since the Crown particularized a loaded firearm but proved an unloaded one with accessible ammunition, the conviction could not stand.

The City of Windsor appealed a Divisional Court decision upholding an Ontario Municipal Board (OMB) award for the expropriation of the respondents' lands.

The OMB had determined the market value of the expropriated lands and awarded injurious affection damages for the remaining lands based on an expropriation scheme dating back to 1983.

The Court of Appeal allowed the appeal, finding that the OMB unreasonably failed to consider the negative impact of the 1996 Provincial Policy Statement (PPS) on the lands' market value, as the PPS was not part of the expropriation scheme.

Furthermore, the OMB erred in law by assessing injurious affection damages based on the entire expropriation scheme rather than limiting them to the diminution in value caused specifically by the City's acquisition of the lands.

A new hearing was ordered.

The appellants appealed a summary judgment dismissing their counterclaim as statute-barred under the Limitations Act, 2002.

The appellants argued that the limitation period was suspended under s. 52 of the Arbitration Act, 1991, because an arbitration had been commenced via correspondence, or alternatively, that the respondent was estopped from pleading a limitations defence.

The Court of Appeal dismissed the appeal, finding that the parties' correspondence merely proposed an arbitration agreement and did not commence an arbitration under s. 23 of the Arbitration Act, 1991.

The court also found no evidence to support an estoppel claim.

The insured was sued for negligent misrepresentation in a seller property information statement, with the plaintiff claiming damages for repair costs and health consequences.

The insurer appealed an application judge's finding that it had a duty to defend the entire action under the insured's homeowner's policy.

The Court of Appeal upheld the finding that the health consequences constituted 'Bodily Injury' triggering a duty to defend, rejecting the argument that the claim was merely derivative of the economic loss claim.

However, the Court allowed the appeal in part, holding that the insurer should not be responsible for 100 per cent of the defence costs since the covered claims represented only a small portion of the total damages claimed.

The respondent applied for a police records check and discovered it included a withdrawn assault charge.

After the police service refused to remove the reference, the respondent successfully brought an application before the Superior Court under Rule 14.05 to have the reference removed.

The Court of Appeal allowed the police service's appeal, holding that the application judge lacked jurisdiction.

The court found that the police service's decision was an administrative decision subject to the Judicial Review Procedure Act, and therefore the challenge had to be brought by way of an application for judicial review to the Divisional Court, not via a Rule 14.05 application.

The Court of Appeal issued an addendum to clarify the costs and interest awarded in its previous decision (2012 ONCA 143).

The appellants were awarded costs of the appeal fixed at $6,700, costs of the trial to be agreed upon or assessed, and pre- and post-judgment interest in accordance with the Courts of Justice Act.

The plaintiff was injured when she was dragged by a car and then struck when the driver reversed.

The driver's insurer denied coverage, arguing the driver's actions were intentional and thus excluded under s. 118 of the Insurance Act.

The motion judge granted summary judgment, finding the insurer had a duty to defend and indemnify the driver and his parents, and awarded full indemnity costs to the insureds.

The Court of Appeal dismissed the insurer's appeal, holding there was no genuine issue requiring a trial regarding the driver's intent, as the evidence showed the harm was not intentional.

The court also upheld the duty to defend and the costs awards.

The appellant employee was terminated without cause and was entitled to six months' pay in lieu of notice under his employment agreement.

The agreement was silent on the duty to mitigate.

The employee found new employment after two weeks, and the employer ceased paying the salary continuance.

The application judge held the employee had a duty to mitigate.

The Court of Appeal allowed the appeal, holding that where an employment agreement contains a stipulated entitlement on termination without cause, the amount is either liquidated damages or a contractual sum, and mitigation is irrelevant unless expressly required by the contract.

The appellant appealed a trial judgment finding that the respondent had loaned her a significant amount of money.

The appellant argued the trial judge erred in accepting parts of the respondent's evidence while rejecting others, reversed the burden of proof, and provided inadequate reasons.

The Court of Appeal dismissed the appeal, finding the trial judge's factual findings were reasonable, the burden of proof was correctly applied, and the reasons were adequate.

Costs of $6,000 were awarded to the respondent.

The appellant appealed an order requiring it to deliver a signed release.

The motion judge had held that releasing an individual partner's 'agents' also released his law firm from vicarious liability for his conduct.

The Court of Appeal disagreed, finding that while a partner is an agent of the firm under the Partnership Act, the firm is not generally an agent of the individual partner.

The appeal was allowed in part to permit the appellant to plead that the law firm was vicariously liable for the partner's conduct.