Sarah E. Pepall

The appellant appealed from an order dismissing his motion to set aside a default judgment in a land banking fraud scheme.

The appellant was served with the Statement of Claim on March 5, 2014, but took no steps to defend and was noted in default on August 1, 2014.

After an undefended trial, judgment was rendered against him for fraudulent misrepresentation in the amount of $276,031.06 plus pre-judgment interest, punitive damages of $25,000, and costs of $25,000.

The appellant did not learn of the judgment until September 15, 2016.

The motion judge refused to set aside the default judgment, finding that the appellant provided an inadequate explanation for his default, consciously decided not to participate, had no arguable defence on the merits, and that setting aside the judgment would undermine the integrity of the justice system.

The Court of Appeal upheld this decision.

A CCAA monitor brought an oppression action under the Canada Business Corporations Act against the parent company (Essar Global) and related entities, alleging that a port transaction transferring critical assets to an Essar-controlled entity was oppressive to Algoma's stakeholders (trade creditors, employees, pensioners, and retirees).

The trial judge found the monitor had standing as a complainant, the action was properly brought as an oppression remedy rather than a derivative action, and the port transaction and its change of control provision were oppressive.

The court granted a remedy modifying the transaction to remove the change of control veto and provide Algoma with termination rights after GIP's loan was repaid.

The appellants appealed on multiple grounds, including standing, characterization of the claim, reasonable expectations analysis, and the appropriateness of the remedy.

The Court of Appeal upheld the trial judgment in all respects.

The appellant appealed his convictions for sexual assault, sexual assault causing bodily harm, and forcible confinement.

The trial judge imposed a sentence of seven years' imprisonment.

The appellant abandoned his sentence appeal and challenged only the convictions on three grounds: (1) the trial judge's instructions on the timing of complaints in sexual assault cases; (2) the trial judge's review of evidence relating to two separate incidents on both sexual assault counts; and (3) the overall fairness and balance of the jury charge.

The Court of Appeal dismissed all grounds of appeal, finding no reversible error in the trial judge's instructions when considered in the context of the trial as a whole.

The appellant husband appealed a lump sum spousal support award of $143,280 (adjusted for tax) granted to the respondent wife following a 22-year marriage.

The husband challenged the award on two grounds: (1) that compensatory support was inappropriate because the wife's career prospects were not diminished by the marriage, and (2) that the application judge failed to account for the impact of their adult son residing with the husband when calculating the support amount.

The Court of Appeal dismissed the appeal, finding that the application judge properly considered both economic disadvantage flowing from the marriage and from its breakdown.

The court upheld the compensatory support award but varied the order to properly adjust the lump sum amount for tax consequences, reducing it to $106,539.52 ($14,840.32 retroactive plus $91,699.20 prospective), and made ancillary variations regarding life insurance designation, financial disclosure requirements, and post-judgment interest.

The appellant appealed a trial judgment granting sole custody of the parties' nine-year-old son to the respondent, as well as the trial judge's decisions regarding the matrimonial home valuation, division of notional proceeds, treatment of chattels, and a $125,000 costs award.

The parties had cohabited for 14 years and separated in May 2014.

The Court of Appeal dismissed the appeal on all grounds except for a calculation error relating to child support arrears, which was corrected.

The court upheld the custody award, finding the trial judge properly applied the best interests of the child test, and upheld the property division and costs award as discretionary decisions entitled to deference.

The appellant, a 52-year-old investment advisor, was petitioned into bankruptcy in 2011 by RBC Dominion Securities Inc. after misappropriating $5 million from clients.

While in bankruptcy, he had a net monthly income of $14,600 with surplus monthly income of $12,500 but failed to make any surplus income payments.

The registrar in bankruptcy ordered that as a condition of discharge, the appellant pay $284,346 in surplus income at $5,000 per month, plus an additional $5,000 per month for six years ($360,000 total), with discharge suspended for two years.

The appellant appealed, arguing the treatment of surplus and other income was in error and that the lower court judge improperly rewrote the registrar's decision.

The Court of Appeal dismissed the appeal, finding the registrar's order was discretionary, well-supported by evidence, and reasonable given the appellant's substantial income and ability to pay.

The appellant appealed a conviction for sexual interference with a minor occurring between ages 9 and 15, involving escalating contact from touching to oral sex, vaginal intercourse, and attempted anal intercourse.

The appellant challenged the trial judge's credibility findings and argued the judge failed to consider the full context of evidence and made speculative findings of fact.

The appellate court upheld the conviction, finding the trial judge provided cogent and detailed reasons thoroughly anchored in the evidence, with the allegations powerfully corroborated by social media statements the trial judge found were made by the appellant.

The appellant appealed his conviction for sexual assault on three grounds.

The first ground challenged the trial judge's finding that the appellant's Charter s. 10(b) rights were properly advised, arguing the police officer failed to inform him of his right to consult counsel in private.

The Court of Appeal rejected this ground, finding the trial judge properly ensured the appellant understood his rights and made an informed decision to speak without counsel.

The second ground challenged a misstatement regarding drug testing of the complainant, but the Court found this immaterial as the trial judge's finding of incapacity to consent was based on overwhelming evidence of intoxication.

The third ground challenged the trial judge's credibility finding regarding the appellant's fabricated evidence about drinking, but the Court found this finding was open to the trial judge and there were other unimpeachable reasons to reject the appellant's evidence.

The appeal was dismissed.

The appellant was convicted of five carjackings, with direct evidence linking him to one incident and similar fact evidence linking him to four others.

The appellant appealed his conviction on two grounds relating to the trial judge's jury charge on similar fact evidence, arguing the judge erred in instructing the jury on how to assess such evidence and group membership.

The Court of Appeal dismissed the conviction appeal, finding the charge faithfully followed the two-step process established in R. v. Perrier and was sufficient to ensure the jury did not improperly use group activity to identify the appellant without specific linkage to the individual acts.

The Crown appealed directed verdicts of acquittal on three firearms charges.

The trial judge had granted the respondent's application for a directed verdict, concluding that the evidence was insufficient for a jury to consider whether the respondent possessed an operational firearm.

The appellate court found that the trial judge made three errors of law: applying the wrong test for directed verdicts, improperly weighing competing inferences in favour of the respondent, and assessing the respondent's credibility when she was not entitled to do so.

The court allowed the appeal and ordered a new trial.

The appellants sought to review an order of Roberts J.A. refusing to extend the time to file a motion to review and set aside a security for costs order made by Laforme J.A., and to obtain a stay of both that order and the underlying summary judgment.

The appellants had defaulted under two mortgages and obtained summary judgment against them.

The Court of Appeal found no basis to interfere with Roberts J.A.'s decision, which was based on the appeal being wholly without merit and the justice of the case not warranting the orders sought.

The motion to review was dismissed with costs.

The appellant appealed his conviction entered by the Superior Court of Justice on July 4, 2016.

The principal issue was whether the trial judge erred in finding that a reasonable person in the officer's position would have believed reasonable and probable grounds existed to arrest the appellant.

The Court of Appeal upheld the trial judge's analysis, finding that she stated the correct test, correctly examined the totality of the circumstances, and that those circumstances supported the objective reasonableness of the search.

The appeal was dismissed.

An appeal under Part XX.1 of the Criminal Code against a disposition of the Ontario Review Board dated April 6, 2017.

The appellant sought a conditional discharge and argued against residing in a group home, preferring to live with either his friend or stepfather.

The Court of Appeal found ample evidence supporting the Board's refusal to grant a conditional discharge and its requirement that the appellant continue residing in the group home.

The appeal was dismissed.

The appellant appealed a disposition issued by the Ontario Review Board that imposed additional restrictions on his community access, reducing his indirectly supervised community access to a maximum of four hours with an approved itinerary and reducing day passes from seven days indirectly supervised to three days directly supervised.

The appellant challenged the disposition on multiple grounds, including that it was not the least onerous and least restrictive disposition, that the Board failed to carry out its inquisitorial mandate, that the Board focused exclusively on public safety, that a treatment impasse existed requiring Board intervention, and that the Board failed to consult the complete risk assessment report.

The Court of Appeal dismissed all grounds of appeal and upheld the Board's disposition.

This is a costs endorsement following an appeal decision.

The appellant achieved only partial success on appeal.

The court reduced the respondent's costs award from $180,000 to $135,000 (a 25% reduction), finding that while the respondent remained entitled to costs of the application, some reduction was appropriate given the appellant's partial success and the disputed issues on appeal.

The court also declined to award costs to the appellant for his motion for a stay of the application judge's decision, finding the claimed costs excessive and the motion inappropriate as it sought multiple forms of relief beyond the stay order.

The appellant appealed his convictions under sections 7(1) and 5(2) of the Controlled Drugs and Substances Act for operating a marijuana grow-operation in his rental apartment unit.

The appellant challenged the convictions on grounds of misapprehension of evidence and unreasonable verdict.

The trial judge had found that the appellant maintained control of the unit and had knowledge of the grow-operation based on his tenancy, exclusive access, rent payment, and personal documents found in the unit.

The Court of Appeal upheld the convictions, finding all findings of fact were open to the trial judge and that no other rational conclusion was available on the evidence.

The appellant appealed her sentence for possession of methamphetamine for the purpose of trafficking.

She had been sentenced to 12 months' custody plus 10 months' probation based on the mandatory one-year minimum sentence under section 5(2) of the Controlled Drugs and Substances Act.

However, the sentencing judge expressed regret at being required to impose the mandatory minimum.

Subsequently, the Supreme Court of Canada struck down the mandatory minimum as unconstitutional in R. v. Lloyd.

The Crown consented to the appeal, and the Court of Appeal allowed the appeal and remitted the case for resentencing.

Two co-accused appealed their sentences imposed following guilty pleas to breaking and entering and convictions on firearm and drug offences.

The appellants argued the sentencing judge erred in characterizing the offence as a home invasion and imposed sentences that were too high and violated the totality principle.

The Court of Appeal upheld the sentences, finding the sentencing judge was entitled to find the appellants were reckless as to whether anyone was home, and that the sentences were fit given the aggravating factors including the use of a firearm, criminal records, breach of court orders, premeditation, and proximity to schools.

The court allowed Mr. Fourtounes' appeal only to award additional pre-trial custody credit of 227 days.

The appellant employer appealed a summary judgment award of $310,040.88 in damages to its former employee, representing 19 months' pay in lieu of notice plus prejudgment interest and costs.

The motion judge had found the termination clause in the employment agreement unenforceable due to lack of consideration.

The Court of Appeal allowed the appeal, finding that the employer's offer of employment to the employee upon the sale of the business constituted valid consideration for the termination clause.

The court distinguished the case from precedents involving variations to a single employment relationship, emphasizing that a new contract with a new employer was formed upon the business sale.

The court remitted the action to trial to address remaining issues regarding ESA compliance and other arguments not previously decided.

The respondent, a flooring contractor, was hired by the appellant general contractor to install sheet vinyl flooring at a long-term care facility.

When the respondent identified deficiencies in the sub-floor structure that prevented proper installation, the appellant refused to remedy the defects and instead directed the respondent to attempt a temporary fix.

After the temporary fix failed and the project architect required the flooring to be removed and replaced, the respondent refused to continue without payment for previous work and relief from warranty obligations.

The appellant hired another contractor to complete the work and counterclaimed for abandonment.

The trial judge found the respondent unable to perform due to sub-floor defects that were the appellant's responsibility to remedy, awarded damages for breach of contract, and dismissed the counterclaim.

The appellant appealed, and the respondent cross-appealed on damages assessment.