Sarah E. Pepall

The moving parties sought an extension of time to perfect their appeal after missing the deadline set by a Notice of Intention to Dismiss Appeal for Delay.

The delay was caused by the suspension of procedural time limits due to the COVID-19 pandemic and subsequent communication issues between co-counsel.

The Court of Appeal granted the extension, finding that the moving parties had a reasonable explanation for the delay, there was no prejudice to the responding parties, and the appeal had arguable merit.

The moving parties sought an expedited appeal of an order dismissing their motion for an urgent stay of a previous order that ended the moratorium on residential evictions in Ontario.

The Attorney General indicated an intention to bring a motion to quash the appeal for lack of jurisdiction.

The motion judge directed that the motion to quash be heard in writing on an expedited basis, and adjourned the request for an expedited appeal to the panel hearing the motion to quash.

The successful appellant, Mount Pleasant Group of Cemeteries, sought costs of the appeal and the underlying application from the respondents.

The respondents argued they should be shielded from costs as public interest litigants.

The Court of Appeal accepted that the respondents were public interest litigants but held this did not excuse them from all costs consequences.

Considering the factors under Rule 57.01(1) and the respondents' public interest status, the Court ordered the corporate respondent to pay $350,000 in total costs and the individual respondent to pay $10,000.

The appellant appealed his conviction for trafficking methadone after a fellow resident at a transition home fatally overdosed on methadone supplied by the appellant.

The appellant argued the trial judge erred in dismissing his s. 11(b) Charter application for unreasonable delay and misapprehended DNA expert evidence regarding the transfer of the deceased's DNA to the appellant's methadone bottle.

The Court of Appeal dismissed the appeal, finding the trial judge correctly applied the Jordan framework, properly excluded verdict deliberation time, and reasonably concluded that a mistaken trial estimate constituted an exceptional circumstance.

The Court also found no misapprehension of the expert evidence, as the trial judge's findings were supported by the totality of the evidence.

The appellant pleaded guilty to firearms trafficking after his pre-trial application to exclude historical text messages obtained via a production order was dismissed.

On appeal, he sought to withdraw his guilty plea and argued that the production order provision was unconstitutional because it lacked an investigative necessity requirement.

The Court of Appeal dismissed the appeal, holding that investigative necessity is not a constitutional requirement for wiretaps or production orders, and that the distinction between historical and prospective text message searches is not arbitrary.

The appellant appealed his convictions for historical sexual assault, incest, sexual assault with a weapon, and mischief against his sibling.

The appellant argued that the trial judge misapprehended the evidence of a defence witness, failed to provide meaningful reasons, and applied uneven scrutiny to the evidence.

The Court of Appeal dismissed the appeal, finding that the trial judge's credibility assessments were sound, the reasons were sufficient for appellate review, and there was no uneven scrutiny of the evidence.

The appellant Bank appealed a summary judgment finding it negligently breached its contract with the respondents regarding a Canada Small Business Financing Loan and a HELOC.

The Court of Appeal allowed the appeal in part, finding the motions judge erred by treating all respondents as one entity when the loan agreement was only with the corporate respondent, 1633092 Ontario Ltd. The Court varied the judgment to reflect that the Bank only breached its contract with the corporate respondent.

The Court dismissed the Bank's request for immediate judgment on the HELOC, referring the issue of set-off and the respondents' counterclaims to trial due to the pitfalls of partial summary judgment.

The Court of Appeal previously dismissed the moving party's motions for leave to appeal and permitted the responding party to make written submissions for full indemnity costs.

The responding party failed to file its costs submissions by the extended deadline and was deemed to have abandoned its request for full indemnity costs.

The court ordered partial indemnity costs of the four motions for leave to appeal to the responding party, fixed at $1,500 inclusive.

The appellant appealed convictions for two counts each of sexual assault and sexual interference against the daughters of his former girlfriend, alleging numerous errors in the trial judge’s credibility assessments.

He argued that the trial judge applied uneven scrutiny between the complainants’ testimony and his own, misapprehended evidence, improperly relied on demeanour, and failed to properly consider delayed disclosure and alleged motives to fabricate.

The Court of Appeal held that the trial judge’s credibility findings were well supported by the evidentiary record and entitled to significant deference.

The court found no misapprehension of evidence, no improper reliance on demeanour, and no reversible error in the treatment of delayed disclosure or similar fact evidence.

The verdicts were not unreasonable and the appeal was dismissed.

The appellant sued for wrongful dismissal and moved for summary judgment, arguing the termination clause in his employment contract was void for violating the Employment Standards Act.

The respondent conceded the 'Termination for Cause' provision was void but argued the 'Termination with Notice' provision was valid and severable.

The Court of Appeal held that employment agreements must be interpreted as a whole.

Because the 'for cause' provision violated the ESA, all termination provisions in the contract were rendered unenforceable, regardless of whether the employer relied on the illegal provision or if there was a severability clause.

The appeal was allowed.

The Town of Grimsby appealed a decision declaring that a private works yard was a permitted use on the respondent's property, which was zoned as a 'Utility Zone'.

The Town argued the use must be related to a public or quasi-public utility.

The Court of Appeal dismissed the appeal, finding that the application judge correctly applied the modern principles of statutory interpretation.

The zoning by-law unambiguously defined 'Works Yard' as a permitted use without restricting it to public or utility purposes, and the by-law's plain language governed.

The appellant, who was found not criminally responsible for theft and failure to comply with probation, appealed the Ontario Review Board's disposition continuing his detention in a secure forensic unit.

He argued the Board erred in finding he represented a significant risk to public safety and sought an absolute discharge.

The Court of Appeal dismissed the appeal, finding the record amply supported the Board's conclusion given the appellant's serious acquired brain injury, psychiatric issues, and history of violence and aggression.

The appellants appealed a summary judgment dismissing their action for breach of contract and solicitor's negligence against their former counsel, Gardiner Roberts LLP.

The appellants alleged errors in judgment, failure to properly advise, and failure to consider costs during the firm's representation of them in a prior action.

The Court of Appeal upheld the motion judge's finding that the firm communicated steps to the appellants, advised them of risks, and did not breach the standard of care.

The appeal was dismissed.

The respondent sued the appellants for constructive dismissal.

During a summary judgment motion, the appellants sought production of draft affidavits, which the motion judge dismissed as privileged, while also prohibiting further examinations without leave.

The appellants appealed these orders to the Court of Appeal.

The respondent brought a motion to quash the appeal, arguing the orders were interlocutory.

The Court of Appeal agreed, quashed the appeal, and directed the appellants to seek leave to appeal from the Divisional Court.

The applicant sought leave to appeal a summary conviction appeal decision upholding his conviction for care and control of a motor vehicle while impaired.

He argued the trial judge erred in assessing identification evidence and admitting his statement to police.

The Court of Appeal dismissed the motion for leave to appeal, finding no error by the summary conviction appeal judge and concluding the case lacked significance to the administration of justice.

The respondent pension fund was defrauded of millions of dollars, with $3 million diverted into a company solely owned by the appellant.

The trial judge found the appellant liable for knowing assistance in a breach of trust based on wilful blindness, ordering her to pay $3 million.

On appeal, the Court of Appeal held that the trial judge erred by applying an objective constructive knowledge standard rather than the required subjective standard for wilful blindness.

The Court also found a palpable and overriding error in the trial judge's factual finding that the appellant continued to sign cheques without due inquiry, as there was no evidence linking her to cheques involving the diverted funds.

The appeal was allowed and a new trial was ordered on the issue of knowing receipt.

The appellant, Gerard Lee, former CEO of Lalu Canada Inc., appealed the dismissal of his application for advance funding of legal costs to defend a fraud action.

The application judge denied funding, finding a strong prima facie case of fraud against Lee regarding "acquisition fees" he had received.

The Court of Appeal dismissed the appeal, upholding the application judge's interpretation of the consulting agreement and assessment of evidence regarding concealment.

The court also affirmed the application judge's application of the "strong prima facie case" test for denying advance funding, finding it commensurate with the stringent standard required.

The appellant, Wayne Laski, and the Estate of Harold Morton Laski appealed a motion judge's decision to strike their action against BMO Nesbitt Burns Inc. and Norman Yu.

The action alleged negligent misrepresentation and breach of disclosure duty related to a transfer of securities from Harold Laski to a joint account with Wendi Laski, which passed by right of survivorship outside the estate.

The motion judge struck the estate's claim for non-compliance with procedural rules and the appellant's personal claim based on issue estoppel, collateral attack, abuse of process, and lack of duty of care/damages.

The Court of Appeal dismissed the appeal, upholding the motion judge's discretionary decision to proceed with the motion in the appellant's absence due to repeated non-compliance with adjournment conditions.

The court also affirmed the striking of the personal claim, finding no error in the application of issue estoppel and noting the appellant's failure to demonstrate damages.

The appellant cemetery group appealed a decision declaring that its directors were invalidly appointed under 1849 legislation, that its funeral home and visitation centre businesses exceeded its statutory objects, and that it was a charitable purpose trust subject to the Charities Accounting Act.

The Court of Appeal allowed the appeal, finding that an 1871 Act fundamentally changed the cemetery's governance to a corporate model, displacing the pioneer public election process.

The Court also held that the ancillary funeral operations were within the cemetery's objects and that the cemetery was a statutory trust, not a charitable purpose trust.

The respondents' cross-appeal seeking an investigation by the Public Guardian and Trustee was dismissed.

The appellants, lawyers and the Attorney General of Canada, appealed a motion judge's dismissal of their motion to dismiss an action brought by an Indian Residential School survivor.

The appellants argued the survivor's action was barred by a release and cause of action bar contained in the Indian Residential Schools Settlement Agreement (IRSSA) approval order.

The survivor's action alleged psychological harm due to the initial dismissal of his Independent Assessment Process (IAP) claim, stemming from Canada's alleged failure to disclose relevant documents and the lawyers' negligence.

The Court of Appeal upheld the motion judge's decision, finding that the release did not encompass claims arising from Canada's failure to fulfill its obligations under the IRSSA, nor did it bar the survivor's claim against his former lawyers.