Sarah E. Pepall

The appellants, nieces of the deceased and remainder beneficiaries of his estate, appealed a decision declaring the Constantine Gicas Family Trust validly created.

They argued the trust lacked the three certainties and was not properly constituted.

The Court of Appeal upheld the application judge's finding that the trust was validly declared and constituted, and that specific shares were properly transferred to it.

However, the Court granted leave to appeal the costs award, finding that because the litigation was reasonably necessary to administer the estate due to the testator's conduct, costs should be paid out of the estate rather than by the appellants personally.

The appellant appealed from a motion judge's refusal to restore an action that had been dismissed for delay by the registrar.

The Court of Appeal found that the registrar had no jurisdiction to dismiss the action because the 90-day period following the status notice had not elapsed.

Furthermore, the motion judge erred in finding prejudice to the respondent based on the disposal of a fuel tank prior to the dismissal, as this was not prejudice arising from the dismissal itself.

The appeal was allowed, and the registrar's dismissal order was set aside.

The appellants appealed an order that stayed their motion, transferred the proceeding, and awarded costs to the respondents.

The respondents brought a motion to quash the appeal.

The Court of Appeal allowed the motion to quash, finding that the order appealed from was interlocutory and therefore the court lacked jurisdiction.

The court also noted that the appeal should be quashed due to the appellants' persistent failure to pay outstanding costs orders from previous proceedings.

The appellant father appealed a decision dismissing his motion to change child support for his adult disabled son, who had begun receiving Ontario Disability Support Program (ODSP) benefits.

The trial judge and Divisional Court held that the presumptive table approach under the Federal Child Support Guidelines was not inappropriate.

The Court of Appeal allowed the appeal, finding that the receipt of ODSP benefits displaced the assumptions underlying the table approach, making it inappropriate.

The matter was remitted for trial to determine the appropriate amount of support under s. 3(2)(b) of the Guidelines on a more complete factual record.

The appellant appealed a decision regarding the constitutionality of section 717 of the Criminal Code and the Attorney General's discretion.

However, the underlying charge against the appellant had been withdrawn a year prior.

The Court of Appeal found the appeal to be moot and declined to hear it, noting that the constitutional issues could be addressed in a future live controversy.

The Crown's motion to quash was allowed and the appeal was quashed.

The appellant appealed from convictions entered by a judge sitting without a jury.

The appellant tendered fresh evidence by way of an agreed statement of fact.

The Crown consented to the admission of the fresh evidence, the setting aside of the convictions, and the ordering of a new trial.

The Court of Appeal agreed and ordered a new trial pursuant to s. 686(1)(a)(iii) of the Criminal Code.

The appellant sought to enforce a $300,000 promissory note and personal guarantees against the respondents after their family company went bankrupt.

The trial judge found the family members were not liable based on the defence of non est factum.

On appeal, the Court of Appeal reversed this finding, holding that the family members were careless in signing the guarantee without reading it and that there was no misrepresentation.

The respondents' cross-appeal alleging lack of consideration was dismissed.

The appeal was allowed and judgment was granted against the family members.

The driver was injured in a single-vehicle accident while driving a rental vehicle insured by the respondent.

The rental company also held an optional death and dismemberment policy with the appellant, which the driver did not purchase.

The driver submitted a claim for statutory accident benefits to the appellant, who refused to pay.

The respondent began paying the benefits and initiated a priority dispute arbitration.

The arbitrator ruled the appellant was not an 'insurer' under the statutory regime because there was no sufficient nexus.

The application judge overturned this, finding the appellant was an insurer.

On appeal, the Court of Appeal allowed the appeal, holding that the appellant's policy was not a 'motor vehicle liability policy' and therefore the appellant was not required to pay first and dispute later under O. Reg. 283/95.

Appeal from a family law summary judgment dismissing an application to set aside a separation agreement based on alleged material misrepresentation of date-of-marriage business assets affecting equalization.

The court held that, once deliberate material misrepresentation was assumed, the motion judge erred by shifting the onus to the recipient spouse to investigate the veracity of the disclosure; the burden remained on the disclosing spouse to prove actual knowledge of the falsehood.

The record contained genuine issues requiring a trial regarding the extent and deliberateness of the non-disclosure, the recipient spouse's actual knowledge, and related claims concerning spousal support, undue influence, duress and unconscionability.

The only issue finally resolved against the appellant was the claim that the agreement was unenforceable for lack of proper witnessing under s. 55(1) of the Family Law Act.

The appellant appealed his conviction for a home invasion robbery, arguing the trial judge erred in admitting a recanted K.G.B. statement, relying on the witness's guilty plea, and drawing an adverse inference from the late disclosure of the recantation.

The Court of Appeal found no error in admitting the statement or using the guilty plea to assess reliability.

However, the court held the trial judge erred in law by drawing an adverse inference against the appellant for the late disclosure of the recantation, as accused persons generally have no obligation to disclose their defence.

The appeal was allowed and a new trial ordered.

The appellant appealed a disposition of the Ontario Review Board under Part XX.1 of the Criminal Code.

The Court of Appeal dismissed the appeal, finding that the Board's decision was reasonably supported by the evidence.

The applicant sought judicial review of the Minister of Justice's surrender order under the Extradition Act.

The applicant conceded that the Minister applied the correct principles regarding sections 7 and 6(1) of the Charter and section 44 of the Extradition Act.

The Court of Appeal found that the Minister's surrender decision was not unreasonable and dismissed the application.

The appellant was convicted of three burglaries based primarily on the testimony of his accomplice.

On appeal, the appellant argued that the trial judge improperly used similar fact reasoning to bolster the accomplice's credibility, despite dismissing the Crown's similar fact application.

The Court of Appeal dismissed the appeal, finding that the trial judge appropriately considered circumstantial evidence, such as the appellant's possession of a screwdriver, and the totality of the evidence without engaging in propensity reasoning.

The appellant appealed his sentence, arguing the trial judge erred in principle by failing to consider that this was his first period of incarceration and by miscalculating pre-sentence custody.

The Court of Appeal agreed, applying the Supreme Court's decision in Summers to grant 115 days of pre-sentence credit.

The appeal was allowed, the sentence was reduced to 12 months' imprisonment, and specific probation conditions were varied.

The appellant sought leave to appeal his sentence for robbery with an imitation firearm, arguing he should receive enhanced credit for his 15 months of pre-trial custody.

Following the Supreme Court of Canada's decision in R. v. Summers, the Court of Appeal granted leave and allowed the appeal, awarding enhanced credit on a 1.5 to 1 basis, reducing the remaining sentence.

The Crown appealed the conditional sentence imposed on the respondent.

The Court of Appeal allowed the appeal, set aside the conditional sentence, and substituted a sentence of 12 months' incarceration followed by two years of probation.

The appellant appealed his conviction, arguing that the trial judge's finding that he threw a flaming object onto a shopping mall roof was unreasonable.

The Court of Appeal dismissed the appeal, holding that there was an ample basis for the trial judge's conclusion and no reason to re-weigh the evidence.

The Crown appealed a conditional sentence imposed on the respondent for impaired driving causing bodily harm.

The respondent conceded the sentence was illegal, as the offence is a 'serious personal injury offence' under s. 752 of the Criminal Code, precluding a conditional sentence.

The Court of Appeal allowed the appeal and substituted an 18-month custodial sentence.

The Court granted one-for-one credit for the five months and ten days the respondent had already served under house arrest, resulting in a net sentence of 12 months.

The Crown appealed a summary conviction appeal court decision that had overturned the respondent's conviction by applying the necessity defence.

The Court of Appeal granted leave and allowed the appeal, finding that the trial judge had correctly applied the test for necessity and made factual findings that the defence was not made out.

The summary conviction appeal court judge erred in law by failing to defer to those factual findings and effectively retrying the case.

The convictions were restored.

The appellant insurer appealed a Superior Court judgment ordering it to indemnify the respondent for costs incurred in defending a slip and fall lawsuit.

The appellant argued the application judge erred in finding that issue estoppel did not bar the claim and that the underlying lawsuit triggered a duty to defend.

The Court of Appeal agreed with the application judge's conclusions and dismissed the appeal, awarding costs to the respondent.