Court of Appeal

The appellant appealed a decision finding a secondary will invalid.

The secondary will had previously been rectified nunc pro tunc by another judge due to clerical errors, based on a finding that the testatrix had not read it but that it corresponded with her instructions.

The application judge subsequently found the will invalid based on the finding that it had not been read.

The Court of Appeal allowed the appeal, holding that the application judge's reasoning was circular and undermined the previous rectification order, which implicitly determined the will's validity.

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 appellant emergency room physician appealed a trial judgment finding him liable in negligence for the death of a patient from bacterial meningitis.

The trial judge found the appellant breached the standard of care by failing to consider meningitis, perform a lumbar puncture, or administer standard treatment when the patient presented with confusion, fever, and a history of decreased consciousness.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings regarding the patient's mental status, her reliance on an infectious disease specialist's standard of care evidence, or her causation analysis applying the 'but for' test.

A Sanderson costs order against the appellant was also upheld.

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.

In a multi-jurisdictional class action regarding credit card merchant fees, Class Counsel entered into a Fee Sharing Agreement with a competing law firm to resolve a carriage dispute.

The agreement provided the competing firm up to $800,000 from Class Counsel's fees in exchange for staying rival actions.

On a motion to approve a partial settlement and fees, the motion judge reduced Class Counsel's requested fees by 10%, declared the Fee Sharing Agreement unenforceable, and prohibited any payments to the competing firm.

The Court of Appeal upheld the fee reduction and the prohibition on paying the competing firm from the settlement or approved fees, finding the agreement was subject to court approval under the Class Proceedings Act.

However, the Court set aside the declaration that the agreement was entirely unenforceable from any source, as the competing firm was not given notice or an opportunity to make submissions on that specific issue.

The appellant appealed a judgment declaring valid a continuing power of attorney for property executed by his father in favour of the respondent, and the dismissal of a motion to consolidate the respondent's application with pending proceedings.

The Court of Appeal found that the application judge erred by treating the respondent's application as separate from the pending proceedings, which involved the same parties and raised identical issues of undue influence and suspicious circumstances.

The appeal was allowed, the application judge's decision was set aside, and the application was converted to an action and consolidated with the pending proceedings.

The appellant appealed a disposition of the Ontario Review Board ordering her detention in a hospital.

The appellant argued the Board's finding that she posed a significant threat to public safety was unreasonable and that her risk could be managed in the community.

The Court of Appeal dismissed the appeal, noting the appellant's history of violence, mental illness, substance abuse, and noncompliance with medication and court orders.

The Court relied on expert evidence that the appellant continued to suffer from a significant mental illness and lacked community support, justifying the detention order.

The appellants were convicted of attempted murder by a jury, based primarily on the recognition evidence of the victim.

They appealed their convictions, arguing the verdicts were unreasonable due to frailties in the identification evidence and the victim's lack of credibility.

They also argued the trial judge erred by failing to give a Vetrovec warning, providing an insufficient jury charge on eyewitness identification, and admitting cellular telephone records.

The Court of Appeal dismissed the appeals, finding the verdicts reasonable, the jury instructions adequate, and the cellphone records properly admitted as voluntary statements.

The appellant appealed his 18-month custodial sentence for driving while disqualified.

He had an extensive criminal record but also significant mental health challenges and a history of trauma.

The Court of Appeal found the sentencing judge erred in principle by treating the appellant's lack of remorse as an aggravating factor and by concluding, without evidence, that he had breached a prior conditional sentence.

Given the appellant's positive progress on bail, his engagement in treatment, and the hardship incarceration would cause his family, the Court allowed the appeal and substituted an 18-month conditional sentence followed by 12 months of probation.

The appellant appealed a manslaughter conviction arising from a fatal stabbing during a bar fight.

He argued that the trial judge erred by excluding a paramedic's statement recounting an alleged witness account said to support self-defence and to impeach a Crown witness, and by failing to leave accident with the jury.

The Court of Appeal held that the first level of hearsay was not shown to be sufficiently reliable, so the statement was inadmissible both substantively and for impeachment.

It further held that the accident defence lacked an air of reality because there was no evidentiary foundation explaining how the deceased could have been stabbed multiple times accidentally.

The appeal was dismissed.

The appellant appealed his conviction and sentence for possession of child pornography.

He argued that his inculpatory statement to the police was involuntary due to an unrecorded period at the station and his utterances regarding bail.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's conclusion that the statement was voluntary and not induced by police promises.

The sentence appeal was also dismissed, as the trial judge had appropriately considered the appellant's strict pre-trial bail conditions as a mitigating factor.

The appellant, a bank employee, pleaded guilty to fraud over $5,000 after disclosing clients' personal financial information to fraudsters, causing significant losses.

He appealed his sentence of two years less a day and a DNA order, seeking a conditional sentence or a reduction to 18 months.

The Court of Appeal dismissed the appeal, finding the sentencing judge properly weighed mitigating factors, gave sufficient reasons, and appropriately prioritized general deterrence and denunciation for a large-scale fraud involving breach of trust.

The appellant was convicted of sexual interference and sexual assault against two five-year-old girls for whom he occasionally babysat.

He appealed his convictions on the grounds of unreasonable verdict, prejudicial interruption of closing submissions, and failure to give a propensity warning to the jury.

He also appealed his sentence of two years consecutive on each count.

The Court of Appeal dismissed the conviction appeals, finding the verdicts reasonable, no prejudice from the trial judge's intervention, and that the jury instructions adequately warned against cross-pollinating evidence between counts despite the lack of a specific propensity warning.

The sentence appeal was also dismissed.

The appellant appealed orders requiring him to pay retroactive and prospective spousal support based on a material change in circumstances.

The parties had entered into a separation agreement that suspended support after the appellant lost his job, but allowed for a review upon a material change.

The trial judge found a material change when the appellant obtained new employment and their daughter ceased to be a child of the marriage.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's interpretation of the agreement, her assessment of the evidence, or her application of the Spousal Support Advisory Guidelines.

The appellant appealed a judgment granting the respondent lawyers their claim for unpaid legal fees and dismissing his counterclaim for solicitor's negligence.

The appellant argued the trial judge erred in his findings regarding the necessity of the legal services and the lawyers' alleged negligence in handling settlements and a Mareva injunction.

The Court of Appeal dismissed the appeal, finding that the trial judge's conclusions were fully supported by the evidence and there was no error in principle.

The appellant appealed an order of the Divisional Court.

On consent of the parties, the Court of Appeal dismissed the appeal as abandoned.

The appellant appealed a decision granting summary judgment in favour of the respondent, arguing the motion judge erred in denying a second adjournment.

The motion had previously been adjourned and marked peremptory to the appellant, with instructions to either retain counsel or seek leave for a director to represent the corporation.

On the return date, the appellant had not retained counsel and provided no evidence to contradict the summary judgment motion.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's exercise of discretion to deny the adjournment and grant summary judgment.

In this addendum to a previous judgment, the Court of Appeal amended its declaration regarding the duty to defend under commercial general liability policies.

The court removed Royal & Sunalliance Insurance Company of Canada from the declaration, as it had settled prior to the appeal.

The court also removed a stipulation regarding a Professional Services Exclusion, which the insurers had withdrawn reliance upon.

Finally, based on a prior agreement between the parties, the court vacated its previous costs award and directed submissions for full indemnity costs.

The appellant brought an application under Rule 14 for a mandatory order enforcing an undertaking to pay money related to construction bonds.

The application judge dismissed the application on procedural grounds, finding it was not properly brought under Rule 14.

The Court of Appeal allowed the appeal, holding that the application was properly founded under subrules (d), (g), and (h) as there were no material facts in dispute and the interpretation of the contract was conceded.

The matter was remitted to the application judge for a decision on the merits.

The appellants appealed a trial judgment, conceding that all grounds of appeal depended on the trial judge's finding that there was no fourth lease dated October 31, 2007, with Nemesis Entertainment as a tenant.

The Court of Appeal found that the trial judge's rejection of the lease's existence was well anchored in the evidence and contained no palpable and overriding error.

The appeal was dismissed with costs awarded to the respondents.