Court of Appeal

The appellant husband appealed an order refusing his application for the partition and sale of the matrimonial home and requiring him to transfer his 50 percent interest to the respondent wife for $1.

The parties separated in 1994, and the husband unilaterally stopped making agreed-upon support payments in 2001.

The Court of Appeal dismissed the appeal, finding that the husband's arrears in support payments, with interest, exceeded the value of his share of the equity in the home.

The application judge's result was upheld on the basis of this equitable set-off.

Following the release of the main appeal reasons, the Court of Appeal for Ontario issued a costs endorsement.

Costs of the appeal were awarded to the respondent on a partial indemnity basis, fixed at $11,000 inclusive of disbursements and taxes.

The Children's Aid Society apprehended the respondent mother's children and placed them in foster care.

While a child protection application was pending before the court, the mother filed a service-related complaint with the Child and Family Services Review Board regarding the Society's failure to place the children with willing family members and its refusal to provide reasons.

The Society challenged the Board's jurisdiction, arguing all matters should be heard by the court.

The Court of Appeal held that the Board correctly assumed jurisdiction, as the specific service-related complaints had not been decided by and were not before the court, interpreting section 68.1(8) of the Child and Family Services Act.

The Crown appealed the dismissal of three counts under the Occupational Health and Safety Act against a general contractor and a subcontractor following a workplace fatality.

The trial judge had dismissed the counts on the basis that they were duplicitous and failed to disclose an offence.

The Court of Appeal allowed the appeal, finding that the trial judge confused overlapping counts with duplicitous ones, and erred in collapsing the information.

A new trial was ordered on the dismissed counts.

The appellant appealed a civil forfeiture order regarding a property where police discovered a sophisticated marijuana grow operation.

The appellant claimed he had leased the property to a man he met at a casino and had no knowledge of the operation, which the application judge rejected.

The Court of Appeal dismissed the appeal, finding no error in the application judge's factual findings, his conclusion that there was no evidence to rebut the presumption of unlawful activity, or his determination that forfeiture was in the interests of justice.

The City of Hamilton appealed a trial judgment finding it liable in negligence.

The Court of Appeal dismissed the appeal, holding that the trial judge applied the correct standard of care and that her findings were supported by the evidence.

The Court also found that the trial judge correctly applied the 'but for' test for causation, noting that causation is a practical question of fact best answered by ordinary common sense.

The appellant appealed an order refusing leave to amend her Statement of Claim to add her insurer as a defendant.

The proposed amendment sought a determination of catastrophic impairment.

The motion judge held that while multiple applications for catastrophic impairment are not strictly precluded under s. 40(4) of the Statutory Accident Benefits Schedule, a subsequent application under the same sub-paragraph requires evidence of a material change in circumstances.

Finding no such change, the motion judge refused the amendment.

The Court of Appeal agreed with the motion judge's interpretation and found no error in her decision to refuse the amendment based on the record before her.

The appeal was dismissed.

The appellant appealed a trial judgment finding it breached a marketing agreement by unilaterally reassigning four counties from the respondent's territory.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the respondent had complied with its obligation to develop the market to the extent possible, that the entire agreement clause governed over prior understandings, and that extrinsic evidence properly identified the nine counties as the respondent's work zones.

The appellant was convicted of possession of cocaine for the purpose of trafficking and possession of a loaded prohibited firearm after police found drugs and a gun in his apartment while he was asleep on the balcony.

On appeal, the Court of Appeal found that the trial judge committed two reversible errors.

First, the trial judge improperly reversed the burden of proof by holding that the appellant was legally deemed to be in possession of the contraband by virtue of his tenancy.

Second, the trial judge improperly devalued the appellant's credibility by misapprehending evidence to find a breach of the rule in Browne v. Dunn and by incorrectly concluding he was fed answers during examination-in-chief.

The appeal was allowed and a new trial ordered.

The appellant hospital appealed a disposition of the Ontario Review Board granting the respondent, who was previously found not criminally responsible, a conditional discharge.

The hospital argued that the respondent's recent involuntary committal under the Mental Health Act triggered a mandatory restriction of liberty hearing under the Criminal Code, and that the Board's disposition improperly blended a conditional discharge with a detention order.

The Court of Appeal held that a Mental Health Act committal does not trigger the Criminal Code hearing requirement.

The Court further found that the Board's disposition was a valid conditional discharge and was reasonable given the respondent's history and the risk management concerns.

The appellant appealed the dismissal of his motion to set aside two previous orders under Rule 25(19)(b) of the Family Law Rules.

He argued the motion judge failed to take a contextual approach to setting aside a default judgment and that the previous judge lacked jurisdiction.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that alleged legal errors or jurisdictional issues are not 'mistakes' correctable under Rule 25(19)(b), but rather appealable errors.

The appellant appealed his fraud conviction, arguing the verdict was unreasonable due to unreliable bookkeeping by a witness.

The Court of Appeal dismissed the appeal, finding the bookkeeping irrelevant to the fraud finding.

The trial judge was entitled to rely on other witness evidence and the defence's admission that the appellant received the money from the joint venture.

The appellant was convicted of abducting his two daughters in contravention of a custody order.

On appeal, he argued that he mistakenly believed the order was not a custody order, that the order was not actually a custody order, and that the trial judge failed to consider the defence of necessity.

The Court of Appeal dismissed the appeal, finding that the appellant did not testify to the mistaken belief, the order clearly governed the lawful care of the children, and the evidence did not support a defence of necessity.

The appellant appealed his conviction, arguing the trial judge misapprehended his evidence and misapplied the W.(D.) framework.

The Court of Appeal found the trial judge erred by misapprehending the appellant's testimony regarding whether intercourse occurred and by requiring the appellant's evidence to establish a finding of fact rather than merely raising a reasonable doubt.

The appeal was allowed, the conviction set aside, and a new trial ordered.

The appellant appealed a decision finding that the respondent's submission to arbitration was not time-barred.

The Court of Appeal upheld the application judge's interpretation of the commercial agreement, agreeing that the parties were obliged to attempt to resolve the dispute over information delivery and costs before proceeding to arbitration.

The appeal was dismissed with costs.

The accused was involved in a motor vehicle accident and made a statutorily compelled statement to a police officer under the Highway Traffic Act, admitting he was the driver and had been drinking.

The officer used this statement to make an approved screening device demand, which the accused failed, leading to a breath demand and an 'over 80' charge.

The trial judge excluded the breath results under s. 24(1) of the Charter, finding the admission of the compelled statement violated the accused's s. 7 right against self-incrimination, and acquitted the accused.

The summary conviction appeal court affirmed the acquittal.

The Court of Appeal dismissed the Crown's appeal, confirming that statements compelled under the Highway Traffic Act cannot be used to establish reasonable grounds for a breath demand.

The appellant appealed his conviction and sentence.

He argued the trial judge erred by not treating the admission of a BlackBerry text as late disclosure and by erroneously referring to a witness as an alibi witness.

The Court of Appeal dismissed the conviction appeal, finding the issue was admissibility, not late disclosure, and the trial judge's rejection of the witness's evidence was well-founded.

The sentence appeal was also dismissed, as the sentence was fit given the seriousness of the offences and the appellant's lengthy criminal record.

The appellant commenced two actions in the Superior Court of Justice regarding a decision of the Social Benefits Tribunal requiring her to repay $1,314 in benefits received under the Ontario Works Act.

The motion judge struck out the statements of claim on the basis that the Superior Court has no jurisdiction by way of action over decisions of the Tribunal.

The Court of Appeal dismissed the appeal, confirming that the proper procedure is to appeal the decision on a question of law to the Divisional Court or seek judicial review.

The appellant tenant was evicted and his belongings disposed of while he was out of the country, due to a rent arrears dispute arising from a prematurely deposited post-dated cheque.

After the Landlord and Tenant Board (LTB) upheld the eviction and found no illegal conduct by the landlords, the appellant sued the landlords in Superior Court for damages.

The motion judge struck the statement of claim as an abuse of process because the issues had already been decided by the LTB.

The Court of Appeal dismissed the appeal, confirming that the LTB had exclusive jurisdiction over the matter and the proper route was to appeal the LTB decision to the Divisional Court.

The appellants appealed a trial judgment that awarded a remedy based on misrepresentation.

The appellants argued that the trial judge erred by making findings of fraudulent misrepresentation after the respondents' counsel expressly stated at the outset of trial that they were not claiming fraud.

The Court of Appeal dismissed the appeal, finding that while a remedy could not be based on fraud, the trial judge properly characterized the misrepresentations as negligent, which fully justified the remedy awarded.