Sarah E. Pepall

The moving parties sought to review an order of a single judge dismissing their motion to extend the time to perfect their appeal.

The motion judge had dismissed the extension request on the basis that the appeal lacked merit.

The Court of Appeal held that because no formal judgment had been taken out from the underlying application, it was not possible to properly assess the merits of the putative appeal.

The court set aside the single judge's order without prejudice to the moving parties' right to renew their motion for an extension of time once the formal judgment is filed.

The appellant appealed a decision granting the passing of accounts and approving compensation for the respondent as attorney for property and estate trustee.

The appellant argued the claim for compensation as attorney for property was statute-barred under the Limitations Act, 2002 and that the quantum was excessive.

The Court of Appeal dismissed the appeal, holding that an application for the passing of accounts does not constitute a 'claim' within the meaning of the Limitations Act, 2002, as it does not seek to remedy an injury, loss, or damage.

The court also found no error in the application judge's assessment of the compensation.

The testator's will directed his two children, appointed as co-executors and trustees, to set aside $100,000 in a trust fund for the benefit of their brother.

The brother was to receive $500 monthly, with the remainder to the testator's grandchildren.

The co-trustees transferred the funds to a non-registered investment plan in one trustee's name, who subsequently misappropriated the funds.

The application judge found both trustees jointly and severally liable for the breach of trust.

The appellant co-trustee appealed, arguing she had no active role in the misappropriation and should be relieved of liability under s. 35(1) of the Trustee Act.

The Court of Appeal dismissed the appeal, holding that a co-trustee cannot passively acquiesce to another trustee's actions and that her failure to ensure the trust was properly established constituted an unreasonable breach of fiduciary duty.

The appellant doctor appealed a Superior Court decision that reversed a Consent and Capacity Board finding that the respondent was incapable of consenting to proposed psychiatric treatment.

Following the commencement of the appeal, the respondent's NCR verdict was overturned, he was discharged from the facility, and the proposed treatment was never commenced.

The Court of Appeal dismissed the appeal as moot, declining to exercise its discretion to hear the case as a decision would have no practical effect on the parties and the appellant's concerns regarding a prior capable wish could be addressed under section 36 of the Health Care Consent Act.

The appellant was convicted of possession of cocaine for the purpose of trafficking and breach of recognizance after police found him with crack cocaine in a bathroom of an apartment.

He appealed the convictions, arguing that the police violated his Charter rights under sections 8, 9, 10(a), and 10(b) by unlawfully entering the apartment and detaining him.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the appellant lacked standing to assert a section 8 claim as he had no reasonable expectation of privacy in the apartment, and that his brief detention and subsequent arrest did not violate his section 9 or 10 rights.

The appellant moved to review an order refusing to restore his motion to review a previous order that refused to extend the time for a motion for leave to appeal from the Divisional Court.

The Court of Appeal dismissed the motion, finding it to be the latest in a series of frivolous and meritless interlocutory motions.

The appellant provided no reasonable explanation for his lengthy delays, and there was no merit to his underlying request for leave to appeal.

The moving party sought to review an order of a single judge of the Court of Appeal dismissing a motion to extend the time to file an application for leave to appeal from the Divisional Court.

The panel agreed with the single judge that there was no prospect of success on the merits of the proposed leave to appeal motion.

The motion to review was dismissed with costs fixed at $5,000.

The appellants' income property was substantially damaged by fire.

They decided to demolish the site and build an eight-and-a-half-storey condominium, claiming replacement cost and building code upgrades under their insurance policy.

The insurer paid only the actual cash value, arguing the condominium was not a 'replacement' of 'like kind and quality'.

The Court of Appeal upheld the motion judge's decision, finding that the plain and ordinary meaning of the policy required any replacement to be of like kind and quality to trigger replacement cost coverage.

The appeal was dismissed.

The appellants appealed the dismissal of their action.

The motion judge had dismissed the action because the appellants were attempting to re-litigate issues that had previously been litigated or could have been litigated in a prior proceeding against the respondent bank.

The Court of Appeal agreed that the action was frivolous, vexatious, and an abuse of process, and dismissed the appeal.

The appellant transferred two cottage properties to his former common law spouse and later claimed she held them in trust for him.

The trial judge dismissed the action, finding no written trust declaration, insufficient evidence of an express oral trust, and that the claim was barred by the parties' cohabitation agreement.

On appeal, the appellant argued the trial judge erred in interpreting the cohabitation agreement and failing to find a trust.

The Court of Appeal dismissed the appeal, holding that the trial judge's interpretation of the agreement was correct and entitled to deference, and that the evidence did not establish a trust.

The moving party brought a motion to quash the appellant's appeal from two interlocutory orders.

The Court of Appeal granted the motion, finding that it lacked jurisdiction because appeals from interlocutory orders of a Superior Court judge lie to the Divisional Court with leave.

The appeal was quashed and the appellant's cross-motion was dismissed.

The appellant appealed a decision finding a secondary will invalid.

The secondary will had previously been rectified nunc pro tunc by another judge due to clerical errors, based on a finding that the testatrix had not read it but that it corresponded with her instructions.

The application judge subsequently found the will invalid based on the finding that it had not been read.

The Court of Appeal allowed the appeal, holding that the application judge's reasoning was circular and undermined the previous rectification order, which implicitly determined the will's validity.

The appellant appealed his 18-month custodial sentence for driving while disqualified.

He had an extensive criminal record but also significant mental health challenges and a history of trauma.

The Court of Appeal found the sentencing judge erred in principle by treating the appellant's lack of remorse as an aggravating factor and by concluding, without evidence, that he had breached a prior conditional sentence.

Given the appellant's positive progress on bail, his engagement in treatment, and the hardship incarceration would cause his family, the Court allowed the appeal and substituted an 18-month conditional sentence followed by 12 months of probation.

The appellant appealed a judgment granting the respondent lawyers their claim for unpaid legal fees and dismissing his counterclaim for solicitor's negligence.

The appellant argued the trial judge erred in his findings regarding the necessity of the legal services and the lawyers' alleged negligence in handling settlements and a Mareva injunction.

The Court of Appeal dismissed the appeal, finding that the trial judge's conclusions were fully supported by the evidence and there was no error in principle.

The appellant was convicted of sexual interference and sexual assault against two five-year-old girls for whom he occasionally babysat.

He appealed his convictions on the grounds of unreasonable verdict, prejudicial interruption of closing submissions, and failure to give a propensity warning to the jury.

He also appealed his sentence of two years consecutive on each count.

The Court of Appeal dismissed the conviction appeals, finding the verdicts reasonable, no prejudice from the trial judge's intervention, and that the jury instructions adequately warned against cross-pollinating evidence between counts despite the lack of a specific propensity warning.

The sentence appeal was also dismissed.

The appellants appealed an order of the motion judge.

The motion judge found that the appellants had not paid the $300,000 required to extend a grace period, there was no evidence a lender was prepared to advance the balance of funds under a settlement agreement, and the respondent reasonably refused to sign a consent to lift a Mareva injunction.

The Court of Appeal found these findings were fully supported by the record, rejected the proposed fresh evidence, and dismissed the appeal with costs.

The applicant was convicted of sexual assault and sentenced to eight months' imprisonment.

His summary conviction appeal was dismissed as abandoned after he failed to perfect it, and a subsequent application to re-open the appeal was denied.

The applicant sought leave to appeal to the Court of Appeal and to introduce fresh evidence regarding a surveillance video and a deportation order resulting from his sentence.

The Court of Appeal found it had jurisdiction under s. 839 of the Criminal Code, admitted the fresh evidence regarding the deportation order, and allowed the appeal in part, permitting the applicant to re-open his summary conviction appeal as it relates to sentence only.

The appellant landlord appealed an order granting the respondent tenant relief from forfeiture of a commercial sublease.

The appellant had issued notices of termination alleging the tenant permitted stolen hardwood flooring to be stored on the premises, constituting criminal activity.

The application judge found no admissible evidence of criminal activity by the tenant and granted relief from forfeiture for a minor breach regarding storage by a related company.

The Court of Appeal dismissed the appeal and a motion to admit fresh evidence, finding no palpable or overriding error in the application judge's assessment of the evidence.

The applicant sought leave to appeal a summary conviction appeal court judge's decision dismissing his application to reopen his appeal and extend the time to file a notice of appeal.

The Court of Appeal first determined it had jurisdiction under section 839(1) of the Criminal Code to hear an appeal from a decision refusing to extend time or reopen an appeal.

However, the Court dismissed the application for leave to appeal, finding that despite the lower court applying the test for an extension of time rather than reopening an appeal, there was no injustice.

The applicant had delayed five years without reasonable explanation, and there was no merit to the proposed appeal from his convictions for assault with intent to resist arrest and carrying a concealed weapon.

The appellant appealed from two orders: one striking his statement of claim for disclosing no reasonable cause of action, and another declaring him a vexatious litigant.

The Court of Appeal dismissed both appeals, finding that the statement of claim lacked factual underpinnings and that the appellant's history of numerous lawsuits supported the vexatious litigant declaration.

Costs of $7,000 were awarded to the respondents.