OCA 2016

The appellants appealed the dismissal of their action.

The motion judge had dismissed the action because the appellants were attempting to re-litigate issues that had previously been litigated or could have been litigated in a prior proceeding against the respondent bank.

The Court of Appeal agreed that the action was frivolous, vexatious, and an abuse of process, and dismissed the appeal.

The appellant, detained under the Ontario Review Board for over 30 years, appealed the Board's disposition continuing his detention at St. Joseph's Healthcare.

He argued the Board erred in refusing an adjournment, relying on hearsay evidence, failing to address his sleep deprivation, and refusing a conditional discharge.

The Court of Appeal dismissed the appeal, finding the adjournment issue moot and no basis to interfere with the Board's substantive decisions, though it noted the Board erred in its approach to the adjournment request and urged it to address the sleep deprivation issue at the next review.

The appellants' income property was substantially damaged by fire.

They decided to demolish the site and build an eight-and-a-half-storey condominium, claiming replacement cost and building code upgrades under their insurance policy.

The insurer paid only the actual cash value, arguing the condominium was not a 'replacement' of 'like kind and quality'.

The Court of Appeal upheld the motion judge's decision, finding that the plain and ordinary meaning of the policy required any replacement to be of like kind and quality to trigger replacement cost coverage.

The appeal was dismissed.

The appellant sought to certify a global class action against an Ontario accounting firm for auditor's negligence regarding a clean audit report used in a US private placement.

The motion judge denied certification, finding no real and substantial connection to Ontario for the foreign investors and concluding that joinder was preferable to a class proceeding.

The Divisional Court upheld this decision.

The Court of Appeal allowed the appeal, holding that the motion judge erred by mischaracterizing the claim as being about the foreign financing rather than the Ontario-based audit, and by failing to properly conduct the comparative access to justice analysis required for the preferable procedure criterion.

The action was certified as a class proceeding.

The appellant appealed a motion judge's decision to change a final custody order that had granted him sole custody of his two sons and required them to attend a reunification program.

The younger son had repeatedly run away and refused to live with the appellant or attend the program.

The Court of Appeal upheld the motion judge's finding that the son's extreme resistance constituted a material change in circumstances and that it was no longer in his best interests to enforce the custody order.

The court also dismissed the son's cross-appeal seeking a declaration that he had withdrawn from parental control, finding the motion judge's order that no person had custody or access rights over him was sufficient.

The respondent, a commercial truck driver, was acquitted at trial of importing and possessing cocaine for the purpose of trafficking after 39 kilograms of cocaine were found in his trailer at the border.

The trial judge accepted the respondent's 'blind courier' defence.

The Crown appealed the acquittal.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the trial judge made speculative findings of fact unsupported by evidence and committed a legal error by applying a piecemeal approach to the evidence rather than considering its cumulative effect.

The appellant transferred two cottage properties to his former common law spouse and later claimed she held them in trust for him.

The trial judge dismissed the action, finding no written trust declaration, insufficient evidence of an express oral trust, and that the claim was barred by the parties' cohabitation agreement.

On appeal, the appellant argued the trial judge erred in interpreting the cohabitation agreement and failing to find a trust.

The Court of Appeal dismissed the appeal, holding that the trial judge's interpretation of the agreement was correct and entitled to deference, and that the evidence did not establish a trust.

The appellant, an investment advisor, appealed a trial decision dismissing his claim for additional compensation under a letter agreement.

The trial judge found the agreement ambiguous regarding its application to Capital Markets transactions and relied on the parties' subsequent conduct to conclude it did not apply.

The Court of Appeal dismissed the appeal, holding that while subsequent conduct is not part of the factual matrix, it is admissible to resolve ambiguity.

The trial judge made no extricable error of law in finding ambiguity and properly weighed the appellant's subsequent conduct, which was overwhelmingly consistent with the respondent's interpretation.

The appellants appealed a trial judgment that dismissed their claims as statute-barred and granted the respondents' counterclaim for the amount outstanding under a mortgage.

The self-represented appellant requested an adjournment to obtain counsel, which the Court of Appeal refused due to a history of delay.

The Court found no reviewable error of law or palpable and overriding error of fact in the trial judge's preference for the respondents' evidence or the calculation of the mortgage debt based on an expert report.

The appeal was dismissed with costs fixed at $5,000.

The appellant was convicted of possession of methamphetamine for the purpose of trafficking, possession of marijuana, and failing to comply with probation.

The drugs were found hidden behind a recessed light fixture in a basement closet of a residence where the appellant was sleeping.

The trial judge found the appellant in constructive possession based on circumstantial evidence, including his wallet and a letter in the bedroom.

The Court of Appeal held that the circumstantial evidence could not reasonably support an inference that the appellant had knowledge of the hidden drugs.

The appeal was allowed and acquittals were entered on all charges.

The appellant appealed a motion judge's order striking his pleadings for failing to comply with multiple court orders regarding financial disclosure and the deposit of rental income.

The Court of Appeal dismissed the appeal, finding the appellant's willful non-compliance to be exceptional and egregious, particularly in the context of strict family law financial disclosure obligations.

The court also upheld the motion judge's decision to allow the respondent to amend her application to include a claim for constructive trust, noting no prejudice to the appellant.

The respondent successfully brought an application to enforce payment of $263,600 on a promissory note.

The appellant appealed, arguing the application judge erred by refusing to consider the broader factual matrix, including a side-agreement that allegedly converted the demand note into one payable from future profits.

The Court of Appeal allowed the appeal, finding that the matter involved material facts in dispute regarding the interpretation of the broader transaction and could not be resolved by application under Rule 14.05(3).

The judgment was set aside and the matter directed to proceed as a trial of an action.

The appellant sought leave to appeal an order approving a bankruptcy trustee's second auction process for the sale of assets of two bankrupt corporations, and refusing an adjournment.

The Court of Appeal dismissed the motion for leave to appeal, finding that the proposed appeal did not raise an issue of general importance, lacked prima facie merit, and would unduly hinder the progress of the bankruptcy proceedings, as the sale had already been completed.

The moving party brought a motion to quash the appellant's appeal from two interlocutory orders.

The Court of Appeal granted the motion, finding that it lacked jurisdiction because appeals from interlocutory orders of a Superior Court judge lie to the Divisional Court with leave.

The appeal was quashed and the appellant's cross-motion was dismissed.

The appellants appealed an order dismissing their motion for leave to commence a derivative action under the Business Corporations Act (OBCA) as statute-barred.

The Court of Appeal determined it lacked jurisdiction to hear the appeal, as section 255 of the OBCA directs appeals of orders made under the Act to the Divisional Court.

The appeal was transferred to the Divisional Court.

The appellants appealed the dismissal of their action for indemnity under their home insurance contract for water damage.

The motions judge had found the damage was caused by ongoing seepage of ground or surface waters due to pre-existing wear and tear and construction defects, which was expressly excluded under the policy.

The Court of Appeal upheld the motions judge's decision, noting it was open to him to accept the expert evidence regarding the cause of the damage.

The court also dismissed a preliminary motion for recusal of one of the appellate judges.

The appellants appealed an order striking out most of their causes of action without leave to amend.

The action arose from a consulting agreement and alleged breach of trust and fraudulent diversion of funds by the respondents.

The Court of Appeal allowed the appeal in part, permitting the appellants to amend their statement of claim to include a breach of trust claim against the corporate owner of the properties and a personal liability claim against the individual respondents for fraudulent diversion of funds, finding the motions judge erred in restricting the piercing of the corporate veil to sham corporations.

The trustee in bankruptcy moved for an order requiring the responding party to obtain leave to appeal an order approving an auction process.

The responding party argued that leave was not required under s. 193(c) of the Bankruptcy and Insolvency Act because the property involved exceeded $10,000.

The Court of Appeal held that the order was procedural in nature, did not bring into play the value of the debtor's property, and did not determine entitlement to sale proceeds.

Therefore, the responding party requires leave to appeal, which may be sought from the panel scheduled to hear the appeal.

The appellant, previously found not criminally responsible for setting a bus on fire, appealed an Ontario Review Board disposition imposing a detention order with community living.

He argued that a conditional discharge was the least onerous and least restrictive disposition.

The Court of Appeal dismissed the appeal, finding that the Board reasonably concluded the appellant continued to pose a significant threat to public safety due to his schizophrenia and substance use disorder, and that a detention order was necessary to manage his risk.

The appellant appealed his conviction for sexual assault, arguing the trial judge reversed the burden of proof on consent, failed to adequately scrutinize the complainant's evidence, and erred in assessing his police statement.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error.

The trial judge correctly applied the burden of proof, reasonably assessed credibility, and properly concluded the complainant was asleep during the sexual encounter.