Sarah E. Pepall

The appellant sought leave to appeal his conviction for driving over 80, arguing that a 13-minute delay in obtaining an alcohol screening device violated his right to counsel and that the failure to use a N.I.S.T. thermometer raised a reasonable doubt about the breath test results.

The Court of Appeal dismissed the application for leave to appeal, finding that the proposed grounds of appeal were case-specific, did not raise questions of general importance to the administration of justice, and lacked strong merit.

The appellant, who was found not criminally responsible for assault and suffers from treatment-resistant schizophrenia, appealed a disposition of the Ontario Review Board ordering his continued detention at a maximum security psychiatric facility.

The appellant argued the Board should have conducted its own inquiries or ordered an independent assessment due to a lack of unanimity among his treatment team regarding his placement.

The Court of Appeal dismissed the appeal, finding the Board's decision was reasonable, balanced the appellant's continuing threat to public safety with his liberty interests, and reflected the least onerous and least restrictive disposition.

The appellant appealed convictions for sexual touching and sexual assault involving young complainants subject to a publication ban.

He argued that the trial judge erred in relying on demeanour, in finding that he minimized his opportunity to offend, and in assessing the evidence of both complainants, including one child’s prior statement under s. 715.1 of the Criminal Code.

The court held that demeanour was only one non-dispositive factor in the credibility analysis, that the minimization finding was supported by the record, and that the trial judge’s treatment of the complainants’ evidence disclosed no reversible error.

The appeal was dismissed.

Following a successful appeal, the Court of Appeal determined the appellant's costs for the underlying action.

The court awarded the appellant costs of the underlying action, including summary judgment motions but excluding costs associated with a cross-claim, on a partial indemnity basis in the amount of $65,231.79.

The court declined to make an order regarding additional costs sought by the appellant's shareholders' counsel.

The appellant guaranteed a mortgage granted by his company.

After default, the respondents obtained judgment against the appellant on the guarantee.

The respondents subsequently postponed their mortgage to other mortgages held by related companies, and a foreclosure judgment was obtained.

The appellant applied to set aside the judgment against him, arguing the postponement materially altered his risk and terminated the guarantee.

The application judge dismissed the application.

On appeal, the Court of Appeal upheld the interpretation that the guarantee permitted the postponement without consent.

However, the Court admitted fresh evidence of the foreclosure judgment and remitted the issue of its effect on the enforceability of the judgment against the appellant to the application judge.

The appellant trustee in bankruptcy appealed a trial judge's decision allowing the secured claims of a nominee company controlled by the respondent.

The appellant argued that the claims were barred by a full and final mutual release previously executed by the respondent.

The Court of Appeal allowed the appeal, finding that the trial judge made an extricable error of law by failing to consider the release as a whole.

Properly interpreted, the release captured successor corporations under the respondent's control, including the nominee company, and barred the claims.

The Trustee in bankruptcy appealed the trial judge's refusal to set aside transactions arising from a settlement between an investor and a real estate developer.

The Trustee argued the payments and mortgages were transfers at undervalue, unjust preferences, fraudulent conveyances, oppressive, and an unjust enrichment.

The Court of Appeal dismissed the appeal, finding the settlement was supported by adequate consideration (forbearance from suit), the parties were at arm's length, and there was no intent to defraud creditors.

The investor's cross-appeal regarding a $471,000 payment found to be a fraudulent conveyance was also dismissed.

The appellant, acting as trustee in bankruptcy for two creditors, appealed the trial judge's partial disallowance of claims advanced in the bankruptcy of a development company.

The Court of Appeal allowed the appeal in part, correcting the quantum of an unsecured claim from $420,000 to $457,600 and ordering interest to be calculated from the date of each individual advance rather than the final advance.

The court dismissed the appeal regarding the disallowance of certain third-party payments, finding the trial judge applied the correct standard of proof.

The court also upheld the application of the Courts of Justice Act for interest on an unjust enrichment claim, but varied the end date for interest accrual to the date of receivership.

A cross-appeal by another creditor was dismissed.

The appellant pled guilty to possession of stolen property, attempted break and enter, and break and enter, receiving a 42-month sentence and a lifetime weapons prohibition under s. 109(3) of the Criminal Code.

He appealed the weapons prohibition, arguing there was no violence used, threatened, or attempted.

The Court of Appeal found that the appellant's actions, which he admitted scared the victims, constituted an implied threat of violence.

The appeal was dismissed, but the prohibition was varied to 10 years at the Crown's request.

The appellant appealed his conviction and sentence for dangerous driving causing bodily harm.

The appellant argued the trial judge misapprehended evidence relating to causation and arrived at inconsistent verdicts by acquitting the other driver involved in the incident.

The Court of Appeal dismissed the conviction appeal, finding the trial judge made specific factual findings supported by evidence, including that the appellant ignored repeated warnings to slow down, which distinguished his case from the co-accused.

The sentence appeal was also dismissed, as the five-month custodial sentence was deemed fit.

The appellant appealed his convictions for assault, uttering death threats, and firearm offences, as well as his nine-year sentence.

He argued the trial judge applied uneven scrutiny to the evidence of the complainant and defence witnesses.

The Court of Appeal dismissed the conviction appeal, finding the trial judge properly assessed the evidence and sought independent confirmation for the complainant's testimony.

The sentence appeal was allowed in part only to correct an error in pre-sentence custody credit, granting enhanced credit at a 1.5:1 ratio, while upholding the overall sentence length.

The appellant, who was found Not Criminally Responsible for breach of recognizance and criminal harassment, appealed the Ontario Review Board's decision to continue his conditional discharge.

He argued the finding that he posed a significant threat to public safety was unreasonable and sought an absolute discharge.

The Court of Appeal dismissed the appeal, finding the Board's decision reasonable and supported by evidence, including the appellant's lack of insight, refusal to take medication, and intended cannabis use, which experts testified would increase his risk of physical aggression.

The appellant was convicted of sexual assault and unlawful confinement and sentenced to 32 months' imprisonment.

He appealed both conviction and sentence.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's assessment of the strong Crown case, which included a 911 call recording.

The sentence appeal was also dismissed, with the court noting the 32-month sentence was lenient given the premeditated nature of the abduction and confinement.

The appellants appealed a judgment of the Superior Court of Justice.

On consent of the parties, the Court of Appeal varied the judgment to remove the Banyan defendants, leaving the judgment solely against the remaining corporate defendant.

Costs of the appeal were awarded to the respondent in the amount of $2,000.

The appellants appealed a trial judgment regarding an oral contract for a condominium.

The appellants argued the contract was unenforceable under the Statute of Frauds, void for illegality due to alleged tax avoidance, and that the amount owing should be reduced under the Limitations Act.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that part performance took the contract out of the Statute of Frauds, the contract was not illegal on its face, and the limitation period defence was not properly raised.

The appeal was dismissed with costs awarded to the respondent.

The appellant appealed his convictions for driving while disqualified and assault, as well as his sentence.

The appellant admitted he was disqualified from driving, and the trial judge found he operated a motor vehicle in a residential driveway.

However, the Court of Appeal found there was no evidence that the driveway constituted a street, road, highway, or other public place within the meaning of the Criminal Code.

The appeal from the driving conviction was allowed and an acquittal entered.

The appeal against the assault conviction was dismissed as it was supported by ample evidence.

The sentence appeal regarding a probation condition was dismissed, with the court noting it should be addressed by application to the trial judge.

The appellant appealed his conviction, arguing that the trial judge erred in drawing an inference of knowledge from circumstantial evidence and reversed the onus of proof.

The appellant also sought to tender fresh evidence.

The Court of Appeal dismissed the appeal, finding that the circumstantial evidence pointed to only one rational conclusion and the trial judge did not reverse the onus of proof.

The court declined to admit the fresh evidence due to the lack of a motion and its irrelevance.

The self-represented appellant appealed a trial judgment, arguing the trial judge should have adjourned the trial on his own initiative so the appellant could confer with counsel, given his head injury and unreasonable positions.

The Court of Appeal dismissed the appeal, finding the trial judge conducted a fair trial and repeatedly offered adjournments which the appellant refused.

The Nortel group of companies filed for insolvency protection across multiple jurisdictions.

Following the sale of Nortel's assets, approximately $7.3 billion was placed in escrow.

The trial judge ordered that these lockbox funds be allocated on a pro rata basis among the various debtor estates, finding that Nortel operated as a highly integrated multinational enterprise and that the master research and development agreement did not govern allocation upon insolvency.

Several parties sought leave to appeal under the Companies' Creditors Arrangement Act.

The Court of Appeal denied leave, finding that the proposed appeals were not prima facie meritorious, did not raise issues of significance to the practice, and would unduly hinder the progress of the proceedings.

The appellant appealed a trial judgment regarding equalization, spousal support, and vesting orders.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's rejection of an alleged debt to the appellant's brother or the imputation of income for spousal support.

The Court upheld the vesting of two condominiums in the respondent as security for the equalization and support owed, and provided directions for the sale of the matrimonial home.