Peter J. Osborne

The appellant appealed from a trial judge's dismissal of a motion to adduce fresh evidence.

The appellant had previously sought to adduce the same evidence before the Court of Appeal, which dismissed the appeal and refused to reconsider its decision.

The Court of Appeal dismissed the current appeal, finding that the admissibility of the evidence had already been determined and that the proposed evidence did not meet the requirements for admission, as it could not reasonably be expected to have affected the result at trial.

Following the release of the appeal judgment, the parties sought to settle the form of the order regarding costs of a letter of credit and the applicable post-judgment interest rate.

The Court of Appeal held that the appellant was responsible for the costs of the letter of credit only up to the date the appeal judgment was released.

The Court declined to vary the statutory post-judgment interest rate on the trial costs, finding no exceptional circumstances to justify departing from the Courts of Justice Act scheme.

The appellant appealed a trial judgment finding it liable for a fire that destroyed a Quonset hut on the respondent's property.

The fire started in a partition wall near a furnace maintained by the appellant, through a process called pyrolysis.

The appellant argued the trial judge failed to explicitly address whether the furnace was insulated, which was necessary for pyrolysis to occur.

The Court of Appeal dismissed the appeal, finding that by accepting the respondent's expert evidence, the trial judge implicitly found the furnace was not insulated, and there was no misapprehension of evidence.

The appellant, DeGasperis Muzzo Corporation, appealed a judgment declaring that the mortgage security interests of Montreal Trust and Stadco in the SkyDome ranked in priority to its leasehold interest in a SkyBox suite.

The Court of Appeal dismissed the appeal, agreeing with the trial judge that the mortgage instruments were registered prior to the leasehold interest under the Land Titles Act, and that the appellant had agreed to subordinate its interest in the lease.

The cross-appeal was also dismissed.

Following an appeal where the appellants achieved substantial success and the trial judgment was varied, the Court of Appeal issued an addendum on costs.

The court upheld the trial judge's assessment of motion costs at $11,143.49 in favour of the respondent and awarded the respondent her trial costs on a party-and-party basis, fixed at $9,000.

The appellants were awarded their appeal costs, fixed at $4,000.

The net costs payable to the respondent were fixed at $16,143.49.

The appellant bank sought recovery of funds paid under a clean irrevocable letter of credit, alleging the respondent beneficiary’s call was fraudulent because the proceeds were applied to a different project under a cross-collateralization agreement unknown to the bank.

The court upheld the trial judge’s conclusion that there was no fraud, emphasizing the wording of the letter of credit, the legal advice obtained before the call, and the existence of formal grounds supporting the call in any event.

The related claims in mistake of fact and unjust enrichment failed because they were tied to the fraud allegation.

The respondent’s appeal from the trial costs disposition was also dismissed, including its request for solicitor-and-client costs and its effort to shift third party costs to the bank.

The appellants (tenants) appealed a trial judgment regarding a commercial lease dispute with the respondent (landlord).

The Court of Appeal upheld the trial judge's finding that a 1992 agreement was a renewal of a 1987 lease, triggering the tenants' obligation to pay property taxes and insurance premiums.

However, the Court found the trial judge erred in placing the burden of proof on the tenants to show the insurance premiums were improperly charged.

Because the landlord failed to prove the insurance coverage obtained matched the lease requirements, the Court deducted $17,116.88 from the amount owed by the tenants.

The appellants appealed an order setting aside a prior court order enforcing an arbitral interim order and declaring the arbitration terminated.

The Court of Appeal held there was no evidentiary basis for the conclusion that the arbitration board had refused to hear the respondent's variation application or that the respondent lacked the ability to pursue that remedy.

Without proof of a new material fact arising after the earlier order, the motion judge had no basis to set aside that order.

The appeal was allowed, the motion judge's order was set aside, and the earlier enforcement order was restored with costs to the appellants.

The moving party sought leave to appeal an initial order made under the Companies' Creditors Arrangement Act that authorized the debtor to obtain debtor-in-possession financing with superpriority over existing security.

The initial order was made without notice but included a comeback clause allowing interested parties to seek variations.

The Court of Appeal dismissed the motion for leave to appeal as premature, holding that the moving party should first utilize the comeback clause to have their concerns heard by the supervising judge on a full record.

The union and the employer had a collective agreement providing for a 5% wage increase on October 1, 1993.

The Social Contract Act, 1993 froze public sector compensation but allowed unions to preserve certain increases under s. 24(5), provided they were not merit, cost-of-living, or grid-based increases.

The union elected to preserve the increase.

An arbitrator ruled the increase could not be preserved.

The Divisional Court quashed the award, finding the increase was a simple pay increase that could be preserved, and ordered it paid.

The Court of Appeal upheld the Divisional Court's interpretation on a correctness standard but allowed the appeal in part to remit the matter to a new arbitrator to determine the appropriate remedy.

The appellant was convicted of sexual assault against an intellectually disabled complainant.

At trial, the Crown did not argue that the complainant lacked the capacity to consent, but the trial judge instructed the jury on capacity under s. 273.1(2)(b) of the Criminal Code.

The Court of Appeal held that while expert evidence is not strictly required to assess capacity, the trial judge erred by leaving the issue with the jury when it was not raised by the Crown, prejudicing the defence.

The conviction was set aside and a new trial ordered.

The drawee bank certified a forged cheque drawn on its customer's account.

The collecting bank accepted the cheque for deposit into an account with a similar name to the payee, without obtaining an endorsement.

The drawee bank sued the collecting bank for the unrecovered proceeds, arguing the collecting bank was liable under the Canadian Payments Association Clearing Rules for failing to provide the missing endorsement.

The Court of Appeal allowed the collecting bank's appeal, holding that the fictitious payee rule in s. 20(5) of the Bills of Exchange Act applied, making the cheque a bearer instrument that could be negotiated by delivery alone.

The Court further held that the Bills of Exchange Act prevails over the CPA Clearing Rules.

The appellant, a black man, was convicted of first-degree murder and attempted murder of two white police officers.

On appeal, he argued that the trial judge erred in limiting his challenge for cause regarding racial bias to a single 'rolled-up' question, rather than allowing multiple questions about racial attitudes.

He also argued the trial judge erred in excusing a prospective juror when the triers could not agree, that the Crown improperly used peremptory challenges to exclude black jurors, and that evidence of his immigration status and criminal record should have been excluded.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's exercise of discretion during jury selection or in the admission of evidence.

The Court held that the peremptory challenge issue could not be raised for the first time on appeal.

The appellant employer appealed a decision setting aside a directed verdict of acquittal on charges under the Occupational Health and Safety Act following a fatal workplace accident.

The employee was killed by an unguarded moving part of a crown press.

The trial judge had acquitted the employer on the basis that the Crown failed to prove the employer knew of the hazard.

The Court of Appeal dismissed the appeal, holding that OHSA offences are strict liability offences and the Crown is not required to prove a mental element or knowledge of the hazard as part of the actus reus.

Lack of knowledge is only relevant to a due diligence defence.

The appellants sought a stay of a declaration that their restaurant and lounge violated the City's zoning by-law, pending their appeal of that decision.

The effect of the stay would be to adjourn an expedited trial on remedy issues (whether to permanently enjoin the operation).

The Court of Appeal dismissed the motion, finding the appellants failed to establish a serious issue to be adjudicated or irreparable harm, as their business operations had not changed and any harm would be purely economic.

The balance of convenience favoured proceeding with the expedited trial so all issues could be heard in a single appeal.

The mother and two children travelled from Greece to Ontario for a vacation.

The mother subsequently decided to remain in Ontario and commenced a custody application.

The father brought an application under the Hague Convention for the return of the children to Greece, their habitual residence.

The mother argued that the father had consented to or acquiesced in the children's retention in Ontario under Article 13(a) of the Hague Convention.

The applications judge found that the father had not consented or acquiesced, and ordered the children returned to Greece.

The Court of Appeal dismissed the mother's appeal, affirming that acquiescence requires clear and cogent evidence of unequivocal subjective consent, which was not established on the facts.

The applicant hospital administrators moved under s. 672.76 of the Criminal Code to suspend a disposition of the Ontario Review Board ordering the transfer of the respondent accused from a maximum to a medium secure hospital facility, pending their appeal.

The court dismissed the motion, noting that the accused was fourth on the waiting list for the medium secure facility and it was highly unlikely he would be transferred before the appeal was heard in 13 days, making the suspension order unnecessary.

The appellant unions appealed an order dismissing their motion to vary an earlier order that appointed an interim receiver for Royal Oak Mines Inc. The original order explicitly directed the interim receiver not to make contributions to any employee pension plan without court authority.

The unions argued this was illegal as it undermined the collective agreement.

The Court of Appeal dismissed the appeal, finding that the interim receiver was not the employer and had no funds to pay the benefits, and that the court had jurisdiction under s. 47(2) of the Bankruptcy and Insolvency Act to make the order.

The court also rejected the unions' claim that the interim receiver was liable for termination pay under the Employment Standards Act.

The City of Kingston moved for leave to intervene in an appeal between the City of Sudbury and Union Gas Limited regarding the interpretation of a franchise agreement and the jurisdiction of the Ontario Energy Board under s. 10 of the Municipal Franchises Act.

Kingston argued there was a common question of law with its own pending appeal involving Union Gas.

The court dismissed the motion, finding that the factual and legal contexts of the two proceedings were significantly different and that the disadvantages of permitting the intervention outweighed the advantages.

An Indigenous band appealed from a summary judgment disposition concerning reserve lands sold in the 19th century without a lawful formal surrender.

The Court of Appeal held that there had been no surrender and that the claim was not barred by statutory limitation periods, but concluded that declaratory and possessory relief should nevertheless be refused.

The court applied public law discretion and equitable doctrines, emphasizing the band's historical acquiescence, the extraordinary delay in asserting the land claim, and the reliance of innocent third-party landowners who had held and developed the properties for generations.

The band was left to pursue its damages claims against the Crown.