Sarah E. Pepall

This is an appeal and cross-appeal from a Superior Court judgment concerning an oppression remedy claim.

The appellants (defendants) challenged the trial judge's valuation of shares, award of equitable damages, refusal to admit fresh evidence, and refusal to reconsider a Rule 59 motion.

The cross-appellants (plaintiffs) challenged the trial judge's findings on fiduciary duty, the 2012 share purchase agreement, quantum of equitable damages (interest), punitive damages, and transaction structure for share repurchase.

The Court of Appeal dismissed both the appeal and the cross-appeal, upholding the trial judge's decisions on all substantive issues, including the valuation, equitable damages, and the refusal to admit fresh evidence or reconsider motions.

Both parties' requests for leave to appeal costs were also refused.

The Court of Appeal for Ontario heard two motions within an ongoing appeal: one by the appellants to set aside a prior order for security for judgment and costs, and another by the respondents to dismiss the appeal for non-compliance.

The court granted the appellants' motion in part, setting aside the requirement for security for the judgment amount but affirming the order for security for trial and appeal costs.

The respondents' motion to dismiss the appeal was dismissed as moot.

The court allowed the appellants to retract a previous concession regarding the appeal's frivolousness.

The appellant appealed his conviction for sexual assault, arguing the trial judge erred in assessing the complainant's evidence, relying on stereotypes, and treating post-offence conduct.

The Court of Appeal dismissed the appeal, finding the trial judge properly addressed inconsistencies, did not rely on stereotypes but assessed plausibility in context, and correctly used post-offence conduct for credibility analysis, not propensity.

The appellant appealed his convictions for possession of cocaine for the purpose of trafficking and possession of proceeds of crime.

The Court of Appeal dismissed the appeal, finding no errors in the trial judge's assessment of evidence.

Specifically, the court upheld the trial judge's use of the appellant's general drug trafficking activities (including marijuana) as relevant to his involvement in cocaine trafficking, her holistic consideration of circumstantial evidence for constructive possession, and her rejection of speculative defence theories in the absence of the appellant's testimony.

IBM Canada Ltd. appealed a summary judgment order that dismissed its motion for summary judgment and granted summary judgment to its former employee, Vinay Nagpal, for wrongful dismissal.

IBM argued that Nagpal had resigned, abandoned his position, or that his employment contract was frustrated.

The Court of Appeal dismissed IBM's appeal, upholding the motion judge's findings that Nagpal did not resign or abandon his employment, and the contract was not frustrated.

The court also affirmed that the Short-Term Disability Policy's presumption of resignation was rebuttable by other evidence.

The issue of damages was remitted to the motion judge.

Robiel Negash, found not criminally responsible for robbery, appealed the Ontario Review Board's (ORB) conditional discharge, seeking an absolute discharge.

The Court of Appeal for Ontario found that the ORB majority erred by applying a "possibility" rather than "probability" test for significant risk to public safety and failed to address inconsistencies in the treating psychiatrist's evidence.

The appeal was allowed, and the matter was remitted to the ORB for a fresh determination.

The Law Society of Ontario investigated the appellant lawyer for failing to promptly and completely produce documents related to his firm's structure and referral fee practices, breaching Rule 7.1-1 of the Rules of Professional Conduct.

The Law Society Tribunal Hearing Division found professional misconduct, which was upheld by the Appeal Division and the Divisional Court.

The appellant argued that the lower courts erred by applying a purely objective test to "good faith" in the duty to cooperate, effectively creating an absolute liability offence.

The Court of Appeal dismissed the appeal, affirming that the test for failure to cooperate is a mixed subjective and objective one, considering all circumstances and good faith efforts, but clarified that ignorance of record-keeping obligations cannot serve as a "good faith explanation" for delay.

The moving parties (appellants) sought an order setting aside the Registrar’s dismissal of their appeal and an extension of time to perfect the appeal.

The responding party (respondent) requested an adjournment to file responding materials, which was granted.

The motion judge also addressed the arguable jurisdiction of the Court of Appeal over the appeal, noting that the underlying orders had both interlocutory and final elements, and that leave to appeal might not be required given the interrelationship of the issues, citing relevant case law.

The motion was adjourned to a new date to allow the responding party to prepare.

The appellant, Andrew Bielli, appealed his conviction for possession of proceeds of crime for the benefit of a criminal organization.

The case centered on a police ruse designed to search the appellant and his vehicle without disclosing the true nature of the investigation, leading to the seizure of evidence.

The application judge found breaches of the appellant's Charter rights under ss. 10(a) and 10(b) but admitted the evidence under s. 24(2), finding no s. 8 or s. 9 breach and police good faith.

The Court of Appeal found that the application judge erred in concluding there was a de facto arrest, thus finding a s. 8 breach.

The Court also found errors in the s. 24(2) analysis, particularly regarding the police's good faith and reliance on prior case law, as the Charter violations were planned and deliberate.

The Court concluded that the impugned evidence should be excluded under s. 24(2) of the Charter.

The Court of Appeal for Ontario refused leave to appeal a sealing order issued by a CCAA supervising judge in the Laurentian University insolvency proceedings.

The moving parties, including faculty unions, sought access to confidential documents (letters between Laurentian and the Ministry of Colleges and Universities) that were sealed to protect restructuring efforts.

The Court applied the Sierra Club test for sealing orders and the four-factor test for leave to appeal in CCAA cases, finding the proposed appeal was not prima facie meritorious, would unduly hinder the time-sensitive restructuring, and was not of sufficient significance to the action.

The court emphasized deference to the supervising judge's discretion in complex CCAA matters.

The appellant, found not criminally responsible for sexual assault, appealed the Ontario Review Board's disposition ordering his continued detention.

The primary issue was whether he should be transferred to a less secure facility.

The Court of Appeal found that the Board applied the correct legal standard of "least onerous and least restrictive" and that its decision, based on the assessment of expert evidence regarding the appellant's readiness for transfer, was reasonable.

The appeal was dismissed, affirming the continued detention.

The appellant appealed convictions for sexual assault and common assault, and the imposed sentence of 45 days intermittent and two years' probation.

The appeal challenged the trial judge's assessment of the complainant's credibility and reliability, the application of the R. v. W.(D.) principles, and the consistency of the verdict.

The sentence appeal argued for restraint and a reduction due to the COVID-19 pandemic.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no basis to interfere with the trial judge's findings on credibility or the proper application of W.(D.), and upheld the sentence as appropriate and within range.

The appellant sought leave to appeal his sentence for dangerous operation, resisting arrest, breach of probation, and breach of a release order.

The Crown conceded that the sentencing judge erred by imposing a sentence exceeding the joint submission without inviting further submissions.

The Court of Appeal granted leave to appeal and to admit fresh evidence demonstrating the appellant's significant rehabilitation efforts.

The sentence was reduced to time served, while the 12-month driving prohibition was upheld as fit.

The appellant appealed his convictions for firearm-related offences (robbery, aggravated assault, prohibited possession) and sought leave to appeal his 9-year sentence.

The conviction appeal argued that the trial judge erred by not conducting a fulsome post-verdict inquiry into a juror's comments, leading to a reasonable apprehension of bias.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's determination that the record was sufficient and that the strong presumption of juror impartiality had not been rebutted.

The sentence appeal argued that the 9-year sentence was unfit and disproportionate to co-accused sentences.

The Court granted leave to appeal sentence but dismissed the appeal, finding the sentence fit given the seriousness of the home invasion, the appellant's role (shooting the victim, using a handgun, breach of prohibition), and the justified distinctions from co-accused who pleaded guilty and had lesser roles.

The appellants, Xundong Qin and Cenith Air Inc., sued the Ontario Securities Commission (OSC) and three of its employees for malicious prosecution after the OSC's allegations against them were dismissed.

The respondents moved to strike the claim, arguing issue estoppel applied due to a prior Superior Court order by Pattillo J. that continued a freeze order, finding a "serious issue to be tried." The motion judge granted the strike.

The Court of Appeal allowed the appeal, holding that the "serious issue to be tried" standard for continuing a freeze order is a lower threshold than "reasonable and probable cause" required for malicious prosecution.

Therefore, the issue of reasonable and probable cause was not "necessarily bound up" in Pattillo J.'s decision, and issue estoppel did not apply.

The matter was remitted to the Superior Court.

The accused, J.M., appealed his conviction for sexual assault.

The appeal focused on the trial judge's improper use of judicial notice, including drawing on personal experience as counsel and relying on external social science research (a magazine article and parallels to battered woman syndrome from *R. v. Lavallee*), to assess the complainant's credibility.

The Court of Appeal found that the trial judge exceeded the proper boundaries of judicial notice and violated procedural fairness by relying on information not put into evidence or subject to submissions.

The errors materially infected the credibility findings, which were central to the trial.

The curative proviso was not applicable due to the procedural unfairness.

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

The appellants (Fasco) appealed a motion judge's decision to strike their defences to claims for contribution and indemnity by the respondent (Venmar) based on res judicata and abuse of process.

The underlying dispute involved two separate house fires, six years apart, both allegedly caused by a defective heat recovery ventilation unit (HRV) manufactured by Venmar, containing a motor manufactured by Fasco.

The motion judge had found that prior Quebec litigation concerning the first fire precluded Fasco from raising certain defences in the Ontario actions.

The Court of Appeal allowed Fasco's appeal, finding that the motion judge erred by not applying the "plain and obvious" test, and incorrectly concluded that the causes of action and issues were identical between the Quebec and Ontario proceedings, particularly given the different factual contexts (e.g., Venmar's evolving knowledge of defects) and the contractual indemnity defence Fasco sought to raise.

The court also noted that the motion judge should have considered the timeliness of Venmar's motion.

The appellants appealed an order granting partial summary judgment that dismissed their action against a party host and the municipality that rented the facility.

The appellant was assaulted by another attendee at the party.

The Court of Appeal upheld the motion judge's finding that the assault was not reasonably foreseeable, as there were no prior signs of aggressive behaviour and the incident was sudden.

The court also found no error in granting partial summary judgment, as the claims against the host and municipality could be readily bifurcated from the remaining claim against the assailant.

This appeal concerned the interpretation of complex, interrelated standard form agreements common in the road construction industry.

The Court of Appeal for Ontario affirmed the application judge's interpretation of these contractual provisions, finding no error in the lower court's reasoning.

The appeal was dismissed, and costs were awarded to the respondent.

The Ontario Court of Appeal allowed an appeal concerning the enforcement of a Letter of Request (LoR) from a U.S. court.

The LoR sought confidential financial and valuation documents from Matvil Corp., a non-party, to assist Actava TV, Inc.'s damages expert in a U.S. action using a "yardstick" method.

The Court found that the application judge erred in her relevance and public policy analyses, and failed to adequately consider Canadian sovereignty.

The requested information was deemed overly broad, speculative, and not directly relevant to the material issues in the U.S. action, and its disclosure would be contrary to Canadian public policy given the sensitive nature of the data and the inadequacy of protective orders.