Sarah E. Pepall

The appellant appealed his conviction for sexual assault, arguing the trial judge erred by considering a bathroom video as similar fact evidence and by curtailing his testimony based on the collateral facts rule.

The Court of Appeal dismissed the appeal, finding the excluded testimony was solely to impeach credibility and thus barred by the collateral facts rule.

The Court also held the video evidence was properly considered as circumstantial evidence of identity rather than prohibited bad character evidence.

The appellant sought leave to appeal her sentence of six years for criminal negligence causing death and impaired driving causing death, plus one year consecutive for refusing to provide a breath sample.

The offences resulted in the death of a five-month-old baby and serious injuries to the mother.

The Court of Appeal found no error in the sentencing judge's decision, noting the appellant's prior record for impaired driving and the severity of the consequences.

The appeal was dismissed, and the seven-year total sentence was upheld as fit and not offending the totality principle.

The appellant appealed his conviction for second degree murder in the death of his mother, as well as his sentence of life imprisonment with 14 years of parole ineligibility.

He argued the trial judge erred in the jury charge by failing to put forward the defence of intoxication, inadequately instructing on discreditable conduct, and failing to properly instruct on the requisite intent for murder and the elements of manslaughter.

He also appealed the period of parole ineligibility as harsh and excessive.

The Court of Appeal dismissed the conviction appeal, finding no evidentiary foundation for an intoxication defence and no reversible errors in the jury instructions.

The sentence appeal was also dismissed, as the 14-year parole ineligibility period was fit for a brutal second degree murder in a domestic context.

The appellant appealed his convictions for producing and possessing marijuana for the purpose of trafficking, and theft of electricity, as well as his nine-month sentence.

He argued the verdict was unreasonable and the trial judge improperly drew a negative inference from his failure to testify.

The Court of Appeal dismissed the conviction appeal, finding the circumstantial evidence supported the verdict and the trial judge properly applied the law regarding the accused's silence.

The sentence appeal was also dismissed, as the nine-month term was fit given the scale of the operation and the need for deterrence.

The appellants appealed an order granting the respondent's motion for summary judgment and dismissing their claim for rectification.

The appellants argued the motion judge applied the incorrect test for summary judgment and improperly made credibility determinations.

The Court of Appeal dismissed the appeal, finding that the motion judge correctly directed herself to whether the record raised a genuine issue requiring a trial.

The documentary record confirmed that the requirements for rectification could not be met, which was dispositive of the motion.

The appellant was convicted of trafficking in a controlled substance based on a police officer's observation of an alleged hand-to-hand transaction with a third party.

The third party testified that he acquired the drugs from another source prior to the encounter.

The trial judge rejected the appellant's explanation but failed to address the third party's exculpatory evidence.

The Court of Appeal held that this failure required a new trial, as the reasons did not indicate whether the evidence was rejected or considered.

The conviction was set aside and a new trial ordered.

The appellant appealed the dismissal of her action against her motor vehicle insurer for income replacement benefits.

She argued the trial judge erred by excluding the medical reports of her deceased family physician and by misinterpreting the Statutory Accident Benefits Schedule (SABS).

The Court of Appeal upheld the trial judge's decision to exclude the reports under section 52(2) of the Evidence Act, as they lacked necessity and reliability and would prejudice the respondent.

The Court also affirmed that under sections 4(1) and 5 of the SABS, an insured must establish eligibility for income replacement benefits within the first 104 weeks after the accident to qualify for benefits beyond that period.

The appeal was dismissed.

The appellant appealed a motion judge's order striking his pleadings for failure to comply with previous financial disclosure orders in a high-conflict matrimonial dispute.

The Court of Appeal allowed the appeal and reinstated the pleadings, finding that striking pleadings is a remedy of last resort and was not warranted given the substantial disclosure already made, the lack of itemized missing disclosure, the absence of wilful disobedience, and the principle of proportionality.

The appellants appealed an order dismissing their motion for partial summary judgment in an Ontario action seeking to enforce German submissions to compulsory enforcement arising from guarantees of bank loans.

The central issue was whether those instruments were foreign judgments for Ontario limitations purposes or were governed by German substantive law under conflict of laws principles.

The court held the instruments were not German judgments and that German law supplied the applicable 30-year limitation period, with the result that the claims were not statute-barred.

The court also rejected the argument that the motion judge had recast the pleadings and dismissed the motion to admit fresh evidence.

This appeal concerned ownership of a strip of land between riverfront lots and the Ottawa River, and whether the relevant subdivision plan extended the respondents' lots to the water's edge.

The court upheld the trial judge's finding of latent ambiguity and confirmed that extrinsic evidence could properly be used to interpret the deed and plan under the governing property law framework.

The court rejected arguments that the trial judge improperly focused on the original subdividers' intention, made a palpable and overriding factual error, or relied on immaterial evidence.

On the cross-appeal respecting costs, the court held that most individual defendants were properly treated as nominal parties, but found that one individual was sufficiently involved in the litigation to justify a costs award against him personally.

The appellants appealed orders arising from a franchise rescission dispute under the Arthur Wishart Act, 2000.

The respondents had obtained partial summary judgment on rescission-related claims, and a Master fixed compensation under s. 6(6).

The appellants also sought to amend their pleading to assert equitable set-off, but the appeal court upheld the interpretation that any such amendment was confined to the still-outstanding s. 7 claims and could not reopen the already-adjudicated s. 6 claims.

The court further held that the Master's factual findings attracted deference and disclosed no misapprehension, error in principle, or palpable and overriding error.

The appeals were dismissed with fixed costs to the respondents.

The appellant appealed the dismissal of his action against his former lawyer alleging solicitor’s negligence and breach of fiduciary duty, and also sought leave to appeal a substantial trial costs award.

The court held that the appellant had led no expert evidence on the standard of care, did not fall within recognized exceptions, failed to prove causation or damages, and did not establish any fiduciary breach.

The court further upheld the trial judge’s finding that the claim was discovered no later than February 9, 2006 and was therefore barred by the applicable limitation period when commenced on July 10, 2008.

The appeal was dismissed, leave to appeal costs was refused, and appeal costs were fixed at $28,000 on a partial indemnity basis.

The appellant challenged a judgment enforcing an employment contract that provided for 15 days’ notice of termination.

The Court of Appeal held the contractual termination provision was clear and that pay in lieu had been provided in accordance with the agreement.

Finding no error in the motion judge’s conclusions, the court dismissed the appeal and fixed appeal costs in favour of the respondent.

The appellant appealed a Superior Court judgment.

On consent of the parties, the Court of Appeal allowed the appeal, set aside the order under appeal, and directed a new trial on the terms set out in the filed consent order.

The endorsement contains no substantive merits analysis.

The appellant appealed a decision regarding an agreement reached by the parties, reflected in a special case, concerning the review of a decision by the majority executors of an estate.

The Court of Appeal dismissed the appeal, declining to interfere with the agreement.

The court noted that the agreement entitled the appellant to a review of the majority executors' decision, meaning the court's jurisdiction was not ousted, and left the determination of the appropriate standard of review to the judge hearing the review application.

The appellant sought to appeal an order of the Superior Court of Justice.

The Court of Appeal determined that the order in question was interlocutory.

Consequently, the appeal was quashed for lack of jurisdiction, with no order as to costs.

The appellant, an Ontario mining company, sued American engineering consultants for negligent misrepresentation regarding studies for a Costa Rican gold mine.

The defendants successfully moved to stay the action for lack of jurisdiction.

On appeal, the Court of Appeal found that the tort of negligent misrepresentation was committed in Ontario, as the studies were received and relied upon at the appellant's Toronto head office.

This established a presumptive real and substantial connection that the defendants failed to rebut.

The appeal was allowed and the matter remitted to determine forum non conveniens.

The appellant appealed a disposition of the Ontario Review Board, arguing that the majority of the Board misapprehended the expert evidence of a doctor.

The Court of Appeal found no misapprehension of the evidence and held that the Board's decision was reasonable.

Giving deference to the Board's analysis, the appeal was dismissed.

The appellant appealed his conviction for sexual assault and his designation as a long-term offender.

At trial, the complainant's mother testified about a phone call during which the complainant stated the appellant was touching her.

The trial judge found it would be dangerous to convict on the complainant's evidence alone but used the mother's hearsay evidence as confirmatory.

The Court of Appeal held that while the prior consistent statement was admissible to rebut an allegation of recent fabrication, the trial judge erred by using it for the truth of its contents to confirm the complainant's allegations.

The appeal was allowed, the conviction set aside, and a new trial ordered.

The appellant appealed an application judge's decision finding that a 1998 gas storage lease replaced earlier oil and gas agreements, leaving the appellant without gas storage rights after the 1998 lease terminated.

The respondent raised a preliminary objection that the Court of Appeal's jurisdiction was ousted by a subsequent Ontario Energy Board order designating the lands as a gas storage area.

The Court of Appeal dismissed the preliminary objection, holding that the Board's order did not oust the court's jurisdiction to hear an appeal from a final order interpreting contractual rights.

On the merits, the Court upheld the application judge's interpretation that the 1998 lease was intended to replace, rather than supplement, the earlier agreements regarding gas storage rights.