OCA 2016

The appellant appealed the dismissal of her motion for increased retroactive and prospective spousal support, arguing the motion judge provided insufficient reasons and failed to apply the correct legal principles regarding post-separation income increases and her medical inability to work full-time.

The respondent cross-appealed the motion judge's refusal to award him costs.

The Court of Appeal dismissed both the appeal and the cross-appeal, finding that the motion judge's reasons, while brief, were sufficient for appellate review and that there was no error in principle or material misapprehension of evidence in denying the support increase or in the exercise of discretion regarding costs.

The moving party sought an extension of time to bring an application for leave to appeal from the Divisional Court.

Prior to the hearing, the moving party demanded the presiding judge recuse himself, alleging bias, racism, and corruption based on previous decisions.

The moving party failed to attend the teleconference hearing.

The judge declined to recuse himself, finding no air of reality to the bias claims.

The motion for an extension of time was dismissed on the merits, as the proposed appeal raised no issues of public importance and had no realistic chance of success.

The appellant, counsel for the plaintiff in an underlying action, appealed a motion judge's order requiring him to personally pay $84,000 in costs on a joint and several basis with his client under Rule 57.07.

The underlying action had been dismissed as an abuse of process and a collateral attack on prior rulings.

The Court of Appeal dismissed the appeal, finding that the appellant had adequate notice of the grounds for the costs order and that the motion judge properly exercised her discretion.

The motion judge correctly concluded that the appellant caused costs to be incurred without reasonable cause by commencing an abusive action and taking unreasonable procedural steps, such as insisting on a jurisdiction motion proceeding alongside a motion to strike.

The appellant was convicted of intentional discharge of a firearm and aggravated assault after shooting an unarmed man in his home following a drug deal gone wrong.

The appellant claimed self-defence, arguing he believed the victim was armed and part of a group that included another man carrying a shotgun.

The trial judge rejected the self-defence claim, finding the appellant's response unreasonable.

The Court of Appeal allowed the appeal and ordered a new trial, holding that the trial judge erred by holding the appellant to a standard of perfection, failing to consider the fast-paced and stressful context, and making unreasonable factual findings based on a blanket rejection of the appellant's credibility.

The respondent, a convenience store clerk, sold cigarettes to a 17-year-old test shopper after misreading the birth year on the shopper's identification due to 'human error'.

She was convicted of selling tobacco to a minor under the Smoke-Free Ontario Act, but the summary conviction appeal court overturned the conviction, finding her honest mistake satisfied the statutory defence.

The Court of Appeal allowed the Crown's appeal and restored the conviction, holding that the statutory due diligence defence requires a reasonable belief formed after exercising reasonable care in reviewing the identification, which a mere unexplained human error does not satisfy.

The appellant dentist appealed an order dismissing his motion for summary judgment, which argued that the respondent patient's dental malpractice action was statute-barred.

The respondent commenced her action within two years of her last appointment, but the appellant argued the limitation period began earlier when she first complained and threatened legal action.

The Court of Appeal upheld the motion judge's finding that the claim was not discovered until after the treatment and dentist-patient relationship ended, as the appellant had advised the respondent the issue was not his fault and he would try to repair it.

The appeal was dismissed.

The appellants appealed a trial decision finding that they had no interest in certain mining claims under an Option Agreement.

The appellants argued the agreement was an outright sale, while the respondent argued it was an option agreement requiring the appellants to fund development to earn their interest.

The Court of Appeal upheld the trial judge's interpretation, finding that the agreement was an option and that legal title reverted to the respondent because the appellants failed to fulfill their funding obligations.

The appellants appealed an order declaring a family trust invalid and vesting its assets in the respondent Trustee in Bankruptcy.

The respondent moved to dismiss the appeals, and the alleged trustee of the trust brought a cross-motion.

The Court of Appeal found significant irregularities regarding the notice provided for the original hearing, noting that the hearing proceeded in the absence of the undischarged bankrupt and any representative of the trust.

The court set aside the original order and remitted the matter for a new hearing in the Superior Court of Justice to ensure procedural fairness.

The appellants, former employees whose employment was terminated following a corporate restructuring, appealed the dismissal of their application for supplementary retirement benefits under a supplementary executive retirement plan (SERP).

Following a partial wind-up of the registered pension plan, the appellants became entitled to statutory 'grow-in' benefits, allowing them to retire at age 55 with unreduced pensions.

The dispute centered on whether the SERP's formula required excluding these grow-in benefits when calculating their supplementary entitlement.

The Court of Appeal upheld the application judge's interpretation, which relied on expert actuarial evidence to conclude that the SERP's proviso mandated the exclusion of grow-in benefits from the base calculation but not from the deduction of earned registered benefits, resulting in a nil supplementary entitlement.

The moving party, a debtor company in receivership, sought leave to appeal an order approving the sale of its assets by a court-appointed receiver.

The moving party argued that the receiver acted unfairly, that the debtor's management retained the right to negotiate a restructuring, and that the receiver failed to consult with affected Aboriginal communities.

The Court of Appeal dismissed the application for leave to appeal, finding that the debtor's parallel negotiations contravened the receivership order, the receiver had exclusive authority to market the assets, and the Aboriginal consultation issue was raised too late and lacked an adequate evidentiary record.

The appellant appealed his sentence, arguing it was unfit and challenging the pre-trial custody credit.

The Court of Appeal found the sentence was at the high end of the range but noted no error in principle, given the appellant's lengthy criminal record and the aggravating factor of committing the offence with his son.

The court also deferred to the trial judge's determination of pre-trial custody credit.

The appeal was dismissed.

The appellants appealed a disposition of the Ontario Review Board denying an absolute discharge and ordering a transfer to a less secure facility.

The hospital appellant argued the Board breached procedural fairness by ordering the transfer despite its objections.

The individual appellant argued the Board unreasonably rejected his treating physician's evidence that he no longer posed a significant threat to public safety.

The Court of Appeal dismissed the appeal, finding that the hospital received adequate notice but chose not to participate, and that the Board's findings regarding the individual's diagnosis and ongoing threat to public safety were reasonable.

The appellant appealed his conviction for aggravated assault and his 38-month sentence, arguing he should have been convicted of the lesser offence of assault causing bodily harm and that the sentence was out of range.

The Court of Appeal dismissed the appeals, finding the trial judge was entitled to conclude the prolonged beating and choking endangered the victim's life.

The sentence was deemed appropriate for a vicious domestic assault involving a repeat victim and breaches of court orders.

A duplicative conviction for assault causing bodily harm was stayed on consent.

The appellants appealed a summary judgment finding they had entered into a settlement agreement to pay the respondent for a load of carrots.

The appellants argued there was no consensus ad idem on the monthly payment rate.

The Court of Appeal upheld the motion judge's finding that an implied agreement had been reached based on the parties' post-negotiation conduct.

On cross-appeal, the Court found the motion judge erred by allowing the appellants' counterclaim to proceed, holding that the settlement of the main action implied an obligation to release the counterclaim.

The appellant, a personal support worker, pled guilty to assault and criminal harassment.

The Crown and defence agreed on a joint submission for an eight-month conditional sentence and one year's probation.

The sentencing judge rejected the joint submission and imposed a 90-day intermittent sentence followed by a six-month conditional sentence.

The Court of Appeal dismissed the conviction appeal but allowed the sentence appeal, finding the sentencing judge failed to explain why the joint submission was contrary to the public interest or would bring the administration of justice into disrepute.

The sentence was varied to accord with the joint submission.

The appellant was convicted of possession of fentanyl for the purpose of trafficking and sentenced to two and a half years in prison.

He appealed, arguing the trial judge misconstrued the law on agency and made factual errors.

The Court of Appeal dismissed the conviction appeal, finding the trial judge properly concluded the appellant intended to traffic the drugs regardless of whether he initially held them as an agent for his mother.

The sentence appeal was also dismissed, emphasizing that general deterrence and denunciation are paramount for fentanyl offences.

The appellants appealed a trial judgment finding them liable for breach of contract and inducing breach of contract regarding a commercial restaurant lease.

The trial judge found the appellants unreasonably refused consent to a sublease and maliciously induced a tenant to breach her contract to punish the respondent for unrelated litigation.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's factual findings, credibility assessments, or the damages award.

The appellant tenants appealed a decision denying them a rent abatement after their apartment building's elevator was out of service for 96 days due to a latent defect.

The Landlord and Tenant Board found that the landlord had acted diligently and reasonably in maintaining the elevator and replacing it, and thus did not breach its duty to maintain the residential complex in a good state of repair under s. 20(1) of the Residential Tenancies Act, 2006.

The Divisional Court affirmed the decision.

The Court of Appeal dismissed the appeal, holding that the Board's contextual interpretation of s. 20(1), which considered the reasonableness of the landlord's actions, was reasonable and did not constitute an error of law.

The appellant appealed the dismissal of his motion to extend an expired timetable in a medical malpractice action against the respondent doctors and hospital.

The motion judge applied the four-factor test from Marché d'Alimentation Denis Theriault Ltee v. Giant Tiger Stores Ltd. and found the history of delay and inactivity by the appellant's lawyers to be inexcusable.

The Court of Appeal found no error in the motion judge's assessment of the factors, including prejudice to the respondents given the passage of almost eight years since the surgery.

The appeal was dismissed.

The respondents sought to bypass the Planning Act by claiming a creek running through their property was a navigable stream under the Beds of Navigable Waters Act, which would vest the creek bed in the Crown and naturally sever their lot.

The application judge agreed, finding the creek navigable based on historical dimensions and downstream use.

The Court of Appeal allowed the municipality's appeal, holding that navigability requires not just physical capacity but also potential practical public utility, including points of public access.

As there was no evidence of public access or practical public use of the creek on the respondents' property at the time of the 1831 Crown grant, the creek was not navigable.