OCA 2014

The appellant challenged an order of the Superior Court of Justice in a criminal matter.

The Court of Appeal, in a brief endorsement, adopted the motion judge's analysis and conclusions and dismissed the appeal.

A Criminal Code publication restriction applicable to the preliminary inquiry evidence was ordered to continue.

The appellant appealed his convictions for sexual assault and sexual interference against a child complainant, arguing the verdict was unreasonable and the trial judge misapprehended the evidence due to inconsistencies in the child's testimony.

The Court of Appeal found no error in the trial judge's application of the common sense approach to child witnesses or her credibility findings.

The appeal was dismissed.

Commercial neighbours disputed use of a shared laneway subject to a registered right of way.

On a contempt motion brought within an earlier application proceeding, the motion judge dismissed contempt but imposed detailed permanent injunctive restrictions governing future use of the laneway.

The Court of Appeal held that the judge materially changed an interlocutory order into a permanent injunction without adequate explanation, applied the wrong legal test, made factual findings not available on the conflicting motion record, and lacked jurisdiction to grant permanent injunctive relief absent an extant underlying proceeding.

The appeal was allowed, the injunctive provisions were set aside, appeal costs were awarded to the appellants, and motion costs were ordered in the cause.

The appellant challenged a trial judgment arising from an acrimonious neighbour dispute, arguing that the trial judge improperly inferred his responsibility for a threatening coyote carcass incident without direct evidence.

The Court of Appeal held that the inference was firmly grounded in the factual record, including the ongoing hostility, the prior confrontation, the absence of any other apparent motive, and evidence placing the appellant in position to observe the respondents' reaction.

Applying the deferential palpable and overriding error standard, the court declined to interfere with the trial judge's factual findings and credibility assessments.

The appeal was dismissed, and the respondents' trial success on their counterclaim remained undisturbed.

The appellant challenged an order striking his statement of claim against an employee of the statutory home warranty administrator on the basis that no reasonable cause of action was disclosed.

The Court of Appeal held that the motion was properly heard as a Rule 21 motion and that the pleading contained no material facts capable of grounding personal liability against the employee acting within the scope of employment.

The proposed amendments did not cure the deficiencies, including the absence of proper particulars for allegations such as fraud, misrepresentation, breach of trust, malice, or intent.

The court also accepted that the claim was an impermissible attempt to re-litigate issues already canvassed before the Licence Appeal Tribunal.

The appeal and the challenge to costs were dismissed.

The appellant challenged an order declaring her a vexatious litigant, arguing primarily that the respondent law firm lacked standing to bring the underlying application.

The court held that s. 140 of the Courts of Justice Act does not restrict who may bring such an application and rejected policy-based submissions seeking to narrow the provision.

The court further found no error in the application judge’s reasoning or procedure, including the conclusion that the evidentiary record met the threshold for a vexatious litigant declaration.

The motion to adduce fresh evidence was also dismissed for lack of probative value, and costs were fixed in favour of the respondent.

The appellant appealed from sentence and challenged a s. 109 weapons prohibition order.

The Crown conceded that the order had been made without jurisdiction.

The Court of Appeal allowed the appeal to that limited extent and quashed the s. 109 order.

A publication ban remained in effect under the Criminal Code.

The appellant sought to appeal an interlocutory order arising from a pleadings motion in a civil action.

The Court of Appeal held it had no jurisdiction because the order was interlocutory, and emphasized that the motion judge had only determined that the pleadings survived the plain and obvious test.

The court noted that nothing in the motion judge's reasons was determinative of issues to be decided at trial.

The appeal was quashed, with agreed costs fixed at $5,000 payable in the cause.

The appellant appealed a sexual assault conviction, arguing that the trial judge reversed the onus, improperly resolved the case by choosing between competing versions of events, and erred in treating forensic evidence as neutral.

The Court of Appeal held that the trial judge’s reasons demonstrated a full appreciation of the burden of proof and proper application of the W.D. framework.

The court found the appellant’s evidence was reasonably rejected as incapable of raising a reasonable doubt and that the complainant’s evidence, together with supporting evidence, established guilt beyond a reasonable doubt.

The court also held the trial judge was entitled on the expert evidence to regard the forensic evidence as neutral.

The conviction appeal was dismissed.

The appellant challenged a jury verdict in a motor vehicle personal injury action, arguing that the trial judge's charge inadequately corrected improper closing submissions on non-pecuniary damages and that the $200,000 award for pain and suffering was inordinately high.

The Court of Appeal held that the trial judge expressly instructed the jury not to use a mathematical extrapolation approach and provided adequate guidance on assessing general damages.

Applying the deferential standard for appellate review of jury awards, the court found no substantial wrong or miscarriage of justice and concluded the award was not so plainly unreasonable and unjust as to warrant intervention.

The appeal was dismissed with fixed costs to the respondents.

The appellant appealed sentence after the sentencing judge declined to follow a joint submission of four months' imprisonment and instead imposed a one-year sentence for break and enter of a residence and possession of stolen property.

The Court of Appeal held that the sentencing judge erred in principle by mischaracterizing those offences as crimes of violence.

Considering the appellant's rehabilitative potential and fresh evidence showing rehabilitation was being realized, the court concluded there was no value in re-incarceration.

The appeal was allowed and the sentence was varied to time served, equivalent to four months.

The appellant challenged an order refusing to stay an Ontario application for spousal support and a beneficial ownership declaration respecting Ontario cottage properties.

Applying the real and substantial connection framework, the court held that Ontario had jurisdiction because the property was located in Ontario and the parties were ordinarily resident in Ontario as well as Florida during the final years of the relationship.

The court further held that the appellant failed to establish that Florida was clearly the more appropriate forum, including because the respondent would lose a legitimate juridical advantage on support under Florida law.

Ontario law was also properly applied to both the unjust enrichment and support claims.

The appellants appealed from an order dismissing claims arising from the alleged creation of individual employment contracts after expiry of a collective agreement.

The Court of Appeal substantially agreed with the motion judge's reasons and held that the Employment Standards Act claim, advanced on the same contractual premise as the other claims, was no more tenable on the pleaded facts or in law.

The court noted that the motion judge had not determined any specific statutory entitlement under the Act.

The appeal was dismissed with agreed costs to the respondent.

The appellant appealed an order staying its Ontario action for negligent tax advice arising from the settlement of a Quebec action.

The Court of Appeal held that the motion judge applied the correct forum non conveniens principles and properly concluded that Quebec was clearly the more appropriate forum.

The court rejected the submission that reliance on the retainer agreement was erroneous, because the claim was pleaded in both tort and contract.

The appeal was dismissed with agreed costs to the respondents.

The appellant operated travel-related kiosks at a major airport and challenged municipal realty tax liability on the basis that its agreement with the airport authority created only a licence, not a tenancy, under the Assessment Act.

The Court of Appeal held that the issue was one of pure contractual interpretation and legal characterization, reviewable on a correctness standard, and that the agreement as a whole unambiguously created a landlord-tenant relationship.

The court further held that the appellant's leased premises did not qualify as "eligible property" under s. 331 of the Municipal Act, 2001 because the appellant could not bring the premises within any enumerated statutory category.

The appeal was dismissed with agreed costs.

The appellant secured creditor appealed an order permitting the respondent lien claimant to realize on proceeds from the auction sale of horses despite giving less than the two weeks' newspaper notice required by the Innkeepers Act.

The Court of Appeal held that estoppel by convention was available as a matter of law and was compatible with the statutory purpose of preserving a lien for unpaid horse-care charges.

The owner had notice and an opportunity to redeem, no public complaint arose, and the appellant knew of and was content with the sale proceeding as scheduled while intending to claim excess funds.

In those circumstances, the notice defect did not nullify the respondent's lien and the appeal was dismissed.

The appellant challenged summary judgment dismissing her statutory accident benefits action for non-earner benefits as out of time.

The court held that a clear and unequivocal denial of benefits triggered the two-year limitation period, even though the insurer gave an incorrect legal reason for ineligibility.

The limitation period ran from the initial refusal of non-earner benefits, not from the later termination of income replacement benefits.

The court further held that neither the Insurance Act nor the SABS required the insurer to give renewed notice of a possible entitlement to a previously denied benefit upon termination of another benefit.

The appeal was dismissed with costs.

Appeal from an application decision concerning the effect of dissolution of a two-person accounting partnership on a restrictive covenant in the partnership agreement.

The application judge held that the appellant had withdrawn, thereby triggering a capital-account reduction tied to clients transferring to the departing partner, and directed a trial on damages.

The Court of Appeal held that, on a general dissolution of a two-member firm, the firm ceased to exist and absent an express surviving contractual restraint, the parties were free to pursue their own practices.

The finding that the appellant had withdrawn so as to trigger the covenant was set aside, the impugned paragraphs of the judgment were deleted, and the cross-appeal was unnecessary to decide.

Following a 20-year traditional marriage, the appellant challenged a trial judgment concerning spousal support, equalization, a 1998 estate freeze, and costs.

The court upheld the trial judge's findings that the shares received in the estate freeze were a gift, that the appellant could not withdraw her admission to that effect late in the trial, and that the estate freeze did not amount to a fraudulent conveyance under s. 2 of the Fraudulent Conveyances Act because she was neither a creditor nor an "other" person with standing at the relevant time and fraudulent intent was not established.

The court also held that admitting the father's prior affidavit did not render the trial unfair.

However, the court varied the support order by removing the ten-year limit and making spousal support indefinite, subject to variation or termination on a material change in circumstances, and reduced the monthly rate for payment of the costs award.

The appellant municipality appealed from the dismissal of its application for an injunction enforcing a by-law prohibiting the feeding of bears and from the granting of a counter-application quashing that by-law.

The court held that municipal by-laws are presumed valid and enacted in good faith, and that the onus on a challenger to prove bad faith is high.

The respondent's evidence, focused on the absence of investigation, research, or analysis supporting the by-law, did not establish bad faith and instead improperly invited judicial review of the wisdom of the by-law.

The appeal was allowed, the order quashing the by-law was set aside, a permanent injunction issued, and appeal costs were awarded to the municipality.