OCA 2017

The appellants, owners of property within Wychwood Park, a residential community in Toronto, challenged their obligation to pay annual levies for maintenance and taxes of common property pursuant to a 1891 trust deed.

The respondent trustees sought to recover unpaid levies from 2010-2013.

The appellants invoked the common law rule that positive covenants do not run with freehold land.

The Court of Appeal for Ontario held that the positive covenant obligation was not enforceable against the appellants, as neither the "benefits and burdens" exception nor the "conditional grant" exception to the positive covenant rule applied under Ontario law.

The court affirmed that the Amberwood precedent, which rejected adoption of these exceptions in Ontario, remained binding.

The applicant sought bail pending the Minister's surrender decision in an extradition matter.

The applicant had been convicted in absentia in Illinois in 2004 for drug trafficking and sentenced to 16 years imprisonment.

He fled to Jamaica and subsequently immigrated to Canada in 2006, becoming a Canadian citizen in 2009.

Upon attempting to renew his passport to attend his mother's funeral in 2016, he was arrested under the Extradition Act.

The court granted bail, finding that the applicant met the three-part test under section 679 of the Criminal Code as applied to extradition proceedings: the application was not frivolous, the applicant would surrender when ordered, and detention was not necessary in the public interest.

The applicant sought to review an order of a chambers judge dismissing his motion to extend the time to appeal three judgments: a default judgment against one defendant, a judgment dismissing his action against two institutional defendants arising from a jury verdict, and a costs award.

The Court of Appeal upheld the chambers judge's discretionary decision to deny the extension of time for the default judgment, finding no grounds of appeal were articulated and finality concerns favored denial.

The Court also confirmed that the appeal of the judgment dismissing the action and the incidental costs award lay to the Divisional Court based on the quantum of the jury's assessment of damages.

This is an amended endorsement from the Court of Appeal for Ontario modifying a prior costs award.

The appellants requested an increase to the costs awarded in the court's endorsement of April 21, 2017, with the respondent not opposing the modification.

The court increased the costs awarded to the appellants to $8,500 for fees plus $1,539 for disbursements plus HST.

The appellant appealed a disposition of the Ontario Review Board that detained him at the Secure Forensic Service of Ontario Shores Centre for Mental Health Sciences with restricted privileges.

The appellant advanced two grounds of appeal: that the Board's finding of significant threat to public safety was unreasonable, and that the Board erred in law by failing to apply section 14 of the Evidence Act regarding corroboration.

The Court of Appeal dismissed both grounds, finding ample evidence supported the significant threat threshold and that section 14 of the Evidence Act does not apply to Review Board proceedings as they fall under federal jurisdiction.

The appellant's collateral Charter application regarding medication was also dismissed as not cognizable on appeal.

This is a costs endorsement on appeal from a Superior Court judgment.

The appellant was awarded costs of the motions before the motion judge in the amount of $85,000 inclusive of disbursements and HST.

The appellant appealed a ten-year driving prohibition imposed following her conviction for dangerous operation of a motor vehicle causing bodily harm.

She argued the prohibition was manifestly unfit and sought a five-year prohibition, contending the trial judge erred in emphasizing general deterrence and denunciation for a young, first-time offender.

The Court of Appeal dismissed the appeal, finding that denunciation and deterrence were paramount given the seriousness of the offence, the appellant's prior poor driving record, and the devastating harm caused to the victims.

The court upheld the sentence as a whole, noting the trial judge exercised restraint by reducing the custodial sentence while lengthening the driving prohibition to protect the public.

The appellant appealed his conviction on four grounds following a jury trial where he was convicted of failing to stop after an accident, dangerous driving causing bodily harm, impaired operation of a motor vehicle causing bodily harm, and attempt to obstruct justice.

The appellant's main defense was that a third party, Derek Rego, was the driver.

The Court of Appeal dismissed all grounds of appeal, finding that the trial judge's instructions regarding the third party suspect defense, treatment of the sister's evidence, and comments concerning another witness's evidence were adequate when read as a whole.

The court also found the impaired driving conviction was reasonable based on evidence of alcohol on the appellant's breath, bloodshot eyes, unsteady gait, and erratic driving.

Both the appellant and Crown abandoned their sentence appeals.

An appeal under Part XX.1 of the Criminal Code from a disposition of the Ontario Review Board dated February 24, 2017.

The appellant sought a conditional discharge, arguing it was the least onerous and least restrictive disposition necessary to protect the public.

The Court of Appeal upheld the Board's decision to impose a detention order with community living privileges at the discretion of the hospital, finding that the Board reasonably determined this was the least onerous and least restrictive disposition given the appellant's admitted risk to public safety, history of non-compliance with medication, alcohol use, and pattern of rule violations.

The appellant, as estate trustee of the deceased's estate, appealed an order of the Superior Court of Justice.

The Court of Appeal found that the motion judge made several fact-specific discretionary determinations in an unusual factual matrix and that those decisions were entitled to deference.

The court refused leave to appeal and dismissed the appeal, awarding costs to the respondent.

The appellant appealed from an order dismissing his motion to set aside a default judgment in a land banking fraud scheme.

The appellant was served with the Statement of Claim on March 5, 2014, but took no steps to defend and was noted in default on August 1, 2014.

After an undefended trial, judgment was rendered against him for fraudulent misrepresentation in the amount of $276,031.06 plus pre-judgment interest, punitive damages of $25,000, and costs of $25,000.

The appellant did not learn of the judgment until September 15, 2016.

The motion judge refused to set aside the default judgment, finding that the appellant provided an inadequate explanation for his default, consciously decided not to participate, had no arguable defence on the merits, and that setting aside the judgment would undermine the integrity of the justice system.

The Court of Appeal upheld this decision.

Minority shareholders in a family-owned company appealed a trial judgment dismissing their oppression and conspiracy claims.

The appellants alleged that the director diverted property interests to his benefit through a series of transactions and that respondents conspired to allow the company to default on a mortgage so that a controlled company could acquire the property.

The trial judge rejected all claims, finding that the appellants' conduct was unclean and that the director's actions were justified to protect the company's interests.

The appellants failed to establish reasonable expectations or damages.

The appeal was dismissed with costs awarded to the respondents.

The appellant husband appealed a trial judgment in a matrimonial property dispute.

The trial judge found that a declaration of trust and a $300,000 second mortgage were sham documents designed to defeat the respondent wife's interest in the matrimonial condominium.

The trial judge awarded the respondent an equalization payment of $100,500 and rejected an unequal division of property.

The Court of Appeal upheld the trial judge's findings, finding no basis to interfere with the credibility assessments or the detailed reasons for finding the documents to be shams.

The appeal was dismissed with costs awarded to the respondent.

The appellant, a minor injured when a barista poured scalding hot water on her hands at a Starbucks location, appealed the motion judge's decision striking the Statement of Claim against the individual defendants (the barista and store manager).

The motion judge had struck the claim on two grounds: that it did not disclose a reasonable cause of action and that suing the individuals constituted an abuse of process.

The Court of Appeal allowed the appeal, holding that employees can be personally liable for their own negligence while acting within the scope of employment, and that naming individual defendants for discovery purposes does not constitute an abuse of process when a proper cause of action has been pleaded against them.

The respondent appealed a Superior Court judgment that granted the applicant's application to enforce her rights under a Governance Agreement concerning the replacement of Board members of Spectrum Health Care.

The appellants argued the application judge erred in interpreting the contract, should have stayed the application pursuant to an arbitration clause in the shareholders' agreement, and erred in alternative findings regarding oppression remedy and interim injunction.

The Court of Appeal upheld the lower court decision, finding no palpable and overriding error in the application judge's interpretation of the Governance Agreement or his analysis of the alternate remedies.

A CCAA monitor brought an oppression action under the Canada Business Corporations Act against the parent company (Essar Global) and related entities, alleging that a port transaction transferring critical assets to an Essar-controlled entity was oppressive to Algoma's stakeholders (trade creditors, employees, pensioners, and retirees).

The trial judge found the monitor had standing as a complainant, the action was properly brought as an oppression remedy rather than a derivative action, and the port transaction and its change of control provision were oppressive.

The court granted a remedy modifying the transaction to remove the change of control veto and provide Algoma with termination rights after GIP's loan was repaid.

The appellants appealed on multiple grounds, including standing, characterization of the claim, reasonable expectations analysis, and the appropriateness of the remedy.

The Court of Appeal upheld the trial judgment in all respects.

The appellant appealed his convictions for sexual assault, sexual assault causing bodily harm, and forcible confinement.

The trial judge imposed a sentence of seven years' imprisonment.

The appellant abandoned his sentence appeal and challenged only the convictions on three grounds: (1) the trial judge's instructions on the timing of complaints in sexual assault cases; (2) the trial judge's review of evidence relating to two separate incidents on both sexual assault counts; and (3) the overall fairness and balance of the jury charge.

The Court of Appeal dismissed all grounds of appeal, finding no reversible error in the trial judge's instructions when considered in the context of the trial as a whole.

This is a costs endorsement following an appeal where the Court of Appeal set aside the order of the application judge dated October 5, 2015.

The parties had contested two issues on the application with divided success.

The application judge had reduced the respondent's costs from an agreed amount of $42,500 to $30,000 due to partial success.

On appeal, the Court of Appeal determined that the appellant succeeded on both issues argued at the application and therefore was entitled to the full agreed costs amount of $42,500 for the application below, in addition to $20,000 for the costs of the appeal.

The respondent bank sought indemnity under an insurance policy for losses arising from a Ponzi scheme operated by a customer.

The bank obtained partial summary judgment on the interpretation of the "direct financial loss" element of the fidelity coverage section.

The appellants (insurers) appealed, arguing the motion judge erred in granting partial summary judgment on a constituent element of a claim rather than on the claim itself, failed to interpret the policy as a whole, adopted a theory of liability not advanced by the parties, and misconstrued the relief sought by the appellants.

The Court of Appeal allowed the appeal, set aside the order, and directed the action to proceed to trial.

The appellant appealed the trial judge's decision denying probate of a 2012 will and dismissing the probate application.

The trial judge found suspicious circumstances surrounding the preparation and execution of the will, determined that the appellant failed to prove the testator's testamentary capacity, and held that the appellant failed to establish the testator's knowledge and approval of the will's contents.

The Court of Appeal upheld the trial decision on all grounds, finding that the suspicious circumstances displaced the presumption of testamentary capacity, placing the burden on the appellant to prove capacity.

The court also rejected the appellant's application to admit fresh evidence on appeal, finding the due diligence requirement was not met.