Sarah E. Pepall

The Crown appealed a Summary Conviction Appeal Judge's decision that allowed the respondent's appeal from conviction for impaired care or control of a motor vehicle under section 258(1)(a) of the Criminal Code.

The respondent was found passed out in the driver's seat of a running vehicle with the engine on and seatbelt fastened.

He had consumed significant alcohol and provided breath samples showing readings of 210 and 200 milligrams of alcohol per 100 millilitres of blood.

The trial judge rejected the respondent's evidence that he had no intention to drive.

The Court of Appeal found that the Summary Conviction Appeal Judge erred in characterizing the trial judge's findings as palpable and overriding errors and restored the original convictions.

The appellant appealed his convictions on 11 counts of weapons offences and his sentence of eight years.

The trial judge found the appellant guilty of firing a handgun at a third party and then chasing the shooter, ultimately disposing of the weapon in a recycling bin.

The sole issue at trial was whether the pursuer was the appellant or his friend.

The Court of Appeal upheld the conviction, finding no error in the trial judge's application of the burden of proof and noting that the appellant's blood was found on the recovered handgun, his clothing matched witness descriptions, and he was the only injured party.

The court also upheld the eight-year sentence, noting it was a second firearms offence committed while subject to weapons prohibition orders, and that the mandatory minimum penalty of seven years applied under s. 244(3) of the Criminal Code.

The appellants (tenant and its successor) repudiated a commercial lease for an industrial property owned by the respondent.

The respondent was forced to sell the property and sued for damages.

The trial judge awarded $1,277,000 in damages, including lost rental profits and lost capital appreciation.

The appellants appealed, arguing the sale at fair market value fully mitigated damages and that lost capital appreciation was too remote.

The Court of Appeal allowed the appeal, finding that damages for lost capital appreciation were too remote under the Hadley v. Baxendale test, that the property was sold at fair market value, and that damages should be calculated using a discounted cash flow analysis based on the 2013 sale price with appropriate deductions for mitigation.

The appellants commenced a motor vehicle accident action in December 2010 following a collision in December 2008.

The action was administratively dismissed as abandoned in August 2011 pursuant to rule 48.15 of the Rules of Civil Procedure.

The appellants moved to set aside the dismissal in February 2014, more than two years after the dismissal order.

A master granted the motion to set aside, but the Superior Court judge allowed the respondents' appeal and reinstated the dismissal.

The appellants appealed to the Court of Appeal.

The Court of Appeal dismissed the appeal, finding that the master erred in considering the repeal of rule 48.15 as part of the contextual analysis, erred in assigning fault to the respondents for not filing a defence, erred in finding that the appellants always intended to prosecute the action without evidence to support this finding, and critically erred in failing to consider the finality principle in assessing prejudice to the respondents.

The appellant appealed the dismissal of a claim for adverse possession against the respondent property owner.

The appellant argued that the application judge erred by departing from agreed facts in concluding that adverse possession had not been established, particularly regarding whether the respondent had been excluded from the disputed property.

The Court of Appeal upheld the dismissal, finding that the application judge's findings were fully supported by the agreed facts, affidavits, and cross-examination evidence.

The court distinguished between exclusion of uninvited persons and exclusion from the owner's intended use of the property.

The Crown appealed a stay of proceedings granted on the basis of unreasonable delay contrary to s. 11(b) of the Canadian Charter of Rights and Freedoms.

The respondents, correctional officers, were charged with failing to provide the necessaries of life following the death of an inmate at the Elgin-Middlesex Detention Centre.

The application judge found the net delay exceeded the 30-month presumptive ceiling established in R. v. Jordan and that no exceptional circumstances justified the delay.

The Court of Appeal allowed the appeal, finding the application judge erred in calculating defence delay, failed to recognize a discrete event, and failed to account for case complexity.

The court concluded that the resulting delay for one respondent fell just below the ceiling and for the other fell only three weeks above, justified by case complexity and transitional exceptional circumstances.

The appellants appealed the dismissal of their motion to set aside a default judgment in a wrongful dismissal action.

The appellants' statement of defence had been struck after they failed to attend a motion hearing, and they were subsequently noted in default.

The motion judge dismissed their motion to set aside the default, finding that the circumstances leading to the default had not been adequately explained and that setting aside the judgment would prejudice the respondent and impair the integrity of the justice system.

The Court of Appeal upheld the motion judge's decision, finding that the appellants' pattern of delay and failure to attend court proceedings justified the refusal to set aside the default judgment.

The appellants (sellers) appealed a decision granting the respondent (purchaser) rescission of an agreement of purchase and sale and return of the deposit.

The dispute concerned the interpretation of an illegal substances clause in a standard form Ontario Real Estate Association/Toronto Real Estate Board Agreement of Purchase and Sale.

The purchaser discovered after execution that the property had previously been used as a marijuana grow-operation and sought to terminate the agreement.

The application judge found the sellers had breached their representation and warranty in the clause.

The Court of Appeal reversed, holding that the sellers' representation and warranty regarding the property's prior use was limited to their knowledge and belief as it existed at the time of execution of the agreement, not at closing.

Since the sellers did not know about the prior use at execution, no breach occurred.

The appellant's property was damaged by flooding following significant rainfalls in May 2013.

The floodwaters originated from adjacent land expropriated by the respondent municipality in 2009 for a construction project.

The appellant had commenced an injurious affection claim before the Ontario Municipal Board in 2011.

Following the flooding, the appellant commenced an action in Superior Court in June 2015.

The respondent moved for summary judgment on the basis that the action was statute-barred under the Limitations Act, 2002.

The motion judge found the claim was discoverable when the flooding occurred in May 2013.

The Court of Appeal allowed the appeal, finding the motion judge erred by failing to consider whether an action in Superior Court would be an appropriate means to seek a remedy, and by misapprehending the evidence regarding the appellant's belief that the OMB had exclusive jurisdiction over injurious affection claims.

The appellant lender advanced a mortgage secured by a commercial property in Kingston, Ontario, paying off a prior first mortgage and tax arrears but not the respondent's second mortgage.

When the borrower defaulted and the property was sold under power of sale, the appellant claimed priority over the respondent's mortgage based on equitable subrogation.

The motion judge granted summary judgment in favour of the respondent, finding that the appellant knew the respondent would not postpone her mortgage and that it would be inequitable to grant subrogation for a mortgage more than double the value of the one replaced.

The Court of Appeal dismissed the appeal, upholding the motion judge's discretionary decision to deny equitable subrogation.

The appellant appealed his conviction for aggravated assault entered by the Ontario Court of Justice.

The appellant had bitten off the complainant's ear during an altercation at the complainant's residence.

The appellant raised two grounds of appeal: first, that the trial judge failed to resolve material inconsistencies in the complainant's evidence regarding the description of the attack and his drinking habits; and second, that the trial judge impermissibly speculated about the cause of the injury without expert evidence.

The Court of Appeal dismissed the appeal, finding that the trial judge properly assessed the complainant's credibility, that any inconsistencies were minor and did not undermine the core allegations, and that the trial judge did not speculate but rather accepted the complainant's uncontradicted testimony.

Crown appeal from a successful defence summary conviction appeal.

The respondent was charged with operating a motor vehicle while impaired by a drug contrary to s. 253(1)(a) of the Criminal Code.

The trial judge convicted the respondent based on circumstantial evidence including observations of impairment, prescription pill bottles found in the vehicle, and the effects of the drugs matching the respondent's behaviour.

The summary conviction appeal court set aside the conviction and entered an acquittal, finding insufficient evidence that the pill bottles contained the drugs on their labels or that those drugs were in the respondent's system.

The Court of Appeal allowed the Crown's appeal, finding the summary conviction appeal court erred in applying an incorrect standard of review and substituting its opinion for that of the trial judge.

The conviction was restored.

The appellants, a developer, appealed from a summary judgment that dismissed claims for conspiracy and negligent and fraudulent misrepresentation against appraisers, and ordered a mini-trial on claims of negligence, inducing breach of contract, and intentional interference with economic relations.

The Court of Appeal upheld the dismissal of the conspiracy and misrepresentation claims, finding no reasonable reliance and no evidence of conspiracy.

The court also set aside the mini-trial order and dismissed the remaining claims, finding they had no possibility of success due to lack of reliance, absence of unlawful conduct, and expiration of the limitation period.

The appellant was convicted of first-degree murder in the shooting death of Glen Davis in a Toronto parking garage.

The appellant's nephew orchestrated the murder and recruited the appellant and others to carry it out.

The appellant's defence was that he had a last-minute change of heart and did not shoot Davis, but rather his co-accused did.

The appeal raised three grounds: that the trial judge unjustifiably curtailed cross-examination of key Crown witnesses; that the trial judge erred in giving a Browne v. Dunn instruction; and that the trial judge erred in his charge regarding post-offence conduct.

The appellate court dismissed all grounds of appeal, finding that despite some questionable interventions, the trial was fair and the conviction was supported by compelling evidence.

The respondent challenged the Court of Appeal's jurisdiction to hear the appeal, arguing that the order was interlocutory and therefore required leave to appeal to the Divisional Court.

The appellant contended that the Court of Appeal had jurisdiction because the parties had reached a settlement agreement that the motion judge lacked authority to decline to enforce, making it a final decision.

The Court of Appeal found the cases relied upon by the appellant distinguishable and determined that the order was interlocutory as it did not finally dispose of the action or finally determine any claim, defence, or substantive right.

The appeal was quashed for lack of jurisdiction.

The appellant, Broadgrain Commodities Inc., sold sesame seeds to Beidahuang Grain Group Co. Ltd. under a CIF contract.

The goods were damaged during transit.

The appellant obtained marine insurance from the respondent, Continental Casualty Company, but the respondent denied coverage.

The motion judge granted summary judgment dismissing the appellant's action, finding that although the appellant had an insurable interest, it sustained no loss as it was paid in full by Beidahuang.

The appellant appealed, arguing it suffered loss through subsequent short-payments from Beidahuang.

The Court of Appeal upheld the dismissal, finding the appellant failed to provide any credible evidence of loss and that a self-serving affidavit without supporting documentation was insufficient to create a triable issue.

The appellant appealed a summary judgment decision dismissing its claim against the City of Markham and Markham Public Library.

The trial judge found that the operative contract terms permitted the respondents to terminate the agreement without cause on 30 days' notice, and that the respondents exercised this right in good faith.

The Court of Appeal found no error in the trial judge's contractual interpretation or factual findings and dismissed the appeal.

The court also rejected allegations of procedural unfairness and declined to grant leave to appeal the costs order.

Capcorp Planning (2003) Inc. sold a health and welfare plan (HWP) that provided coverage for health, dental, vision, and hearing care, as well as protection against income loss due to illness or accident.

The plan was particularly attractive to owner-managers of small businesses who could not obtain equivalent coverage through traditional insurance due to pre-existing medical conditions.

The Minister of Revenue assessed Capcorp for failure to collect and remit retail sales tax (RST) on amounts paid by employers under the HWP, imposing a penalty of $278,625.31 including interest.

The Superior Court of Justice quashed the assessment, finding that the HWP was not subject to RST because participants could not obtain equivalent insurance coverage.

The Court of Appeal reversed, holding that the HWP constitutes an "unfunded benefits plan" under the Retail Sales Tax Act and is therefore subject to RST.

The court found that the statutory definition focuses on whether protection against risk "could otherwise be obtained" through insurance generally, not whether specific individuals could obtain such coverage.

This is a costs endorsement on appeal from a Superior Court judgment.

The unsuccessful appellants (Essar entities and GIP entities) were ordered to pay costs to the successful respondents (the Monitor and Algoma Steel).

The parties agreed on the quantum of costs but disagreed on whether liability should be several or joint and several.

The court awarded costs on a several basis, allocating 25% to GIP and 75% to Essar, finding that GIP had a more limited role with different issues and less oral argument time than Essar.

The appellants appealed a trial judgment on three grounds: the trial judge's credibility assessments, alleged collusion by one respondent with witnesses, and prejudice from a five-month trial adjournment.

The Court of Appeal found that the trial judge's credibility findings were adequately explained within the context of the entire judgment and were warranted on the evidence.

The court found no evidentiary support for the collusion allegation, noting that the witnesses' trial testimony was inconsistent with the "will-say" statements allegedly prepared by the respondent, making collusion implausible.

The court rejected the adjournment argument, holding that absent demonstrated actual prejudice or a request for an earlier date at trial, a five-month adjournment does not presumptively require a new trial.

The appeal was dismissed with costs awarded to the respondents.