Sarah E. Pepall

The appellant, Money Gate Corporation, appealed the dismissal of its motion seeking distribution of proceeds from a property sale, asserting an unregistered assignment of a second mortgage.

The motion judge found the appellant failed to provide sufficient evidence regarding the source of funds for the alleged assignment, concluding no enforceable assignment was acquired.

The Court of Appeal found no error in the motion judge's decision to dismiss the motion or in the discretionary costs order, noting the appellant's failure to file a cost outline.

The appeal was dismissed with costs awarded to the respondents.

This appeal concerned a constitutional challenge by National Steel Car Limited to the costs of Ontario's Feed-in-Tariff (FIT) Program, arguing they constituted an unconstitutional tax disguised as a regulatory charge, primarily intended for economic stimulus.

The appellant contended that the program's true purpose was not related to electricity regulation.

The Court of Appeal upheld the application judge's decision, dismissing the appeal.

The court found that the FIT Program's primary purpose was regulatory, aimed at increasing renewable energy generation, improving air quality, planning for future supply needs, and encouraging Indigenous and community participation, with economic stimulus being an incidental, not dominant, characteristic.

The court also affirmed the sufficiency of the application judge's reasons and his assessment of expert witness bias.

The appellant, Melissa Bell, appealed the summary dismissal of her action against her former lawyer, Neda Amini, for negligence, malpractice, and defamation.

The solicitor-client relationship broke down after 13 days due to the appellant's unreasonable litigation strategy and accusation of collusion.

The motion judge found the lawyer was entitled to withdraw and her communications with Legal Aid Ontario were truthful.

The Court of Appeal upheld the dismissal, finding no evidence of negligence or defamation, and affirmed the motion judge's application of summary judgment principles.

Aviva Insurance Company of Canada brought a motion to set aside its notice of abandonment of appeal, seeking leave to file a new factum or an extension of time for filing a notice of appeal.

The respondent, 8262900 Canada Inc. (CarePartners), brought a cross-motion for directions regarding its cross-appeal.

Aviva had abandoned its appeal after an application judge found partial insurance coverage but did not address apportionment of costs, an issue Aviva intended to pursue in a new application.

CarePartners' subsequent supplementary cross-appeal raised res judicata and issue estoppel, which Aviva's counsel had not anticipated when abandoning the appeal.

The court dismissed Aviva's motion, finding the abandonment was a deliberate strategic decision, not due to inadvertence, mistake, or misapprehension.

The court emphasized the importance of finality in litigation and found Aviva's proposed appeal on apportionment lacked merit as the issue was not raised before the application judge.

CarePartners' cross-motion for directions was granted.

The appellant, a judgment creditor, appealed the dismissal of its application seeking a declaration of fraudulent conveyance and damages for unlawful conduct conspiracy against the respondents.

The appellant alleged that the transfer of shares by the debtor to Capital Dentistry Group Limited was a fraudulent conveyance and part of an unlawful conspiracy.

The Court of Appeal upheld the application judge's finding that there was no fraudulent intent, noting that the transaction was initiated by an arm's length party, structured consistently with past deals, and occurred as part of a larger acquisition.

As fraudulent intent was not established, the essential element of unlawful conduct for the conspiracy claim failed.

The appeal was dismissed, and costs were awarded to the respondents.

The appellants appealed a summary judgment finding them liable for breach of a joint venture agreement (JVA) and challenging the calculation of expectation damages.

They also sought to introduce fresh evidence on appeal.

The Court of Appeal dismissed the motion for fresh evidence, finding it could have been adduced with reasonable diligence at the summary judgment motion and would not have affected the outcome.

The court upheld the motion judge's findings of a valid JVA and its breach, rejecting the appellants' argument of contractual frustration as the denial of severance was contemplated in the JVA.

The court also affirmed the calculation of expectation damages, noting the appellants' failure to adduce their own expert evidence or cross-examine the respondent's expert at the summary judgment stage.

The appellant, Amtim Capital Inc., appealed the dismissal of its claim against Appliance Recycling Centers of America (ARCA) for alleged underpayment due to improper allocation of head office expenses.

The trial judge found Amtim failed to discharge its onus of proving ARCA breached the agreements or that the expense allocation was not in accordance with U.S. GAAP.

The Court of Appeal upheld the trial judge's findings, including the refusal to draw adverse inferences against ARCA for alleged disclosure deficiencies, noting Amtim's failure to pursue further production motions or utilize contractual access rights.

The appeal was dismissed, and the appellant was ordered to pay costs.

The appellant sought to purchase a residential property under an Option to Purchase Agreement or, alternatively, the return of a $25,000 downpayment.

She appealed the dismissal of her application by the Superior Court of Justice.

The Court of Appeal dismissed the appeal, finding that the Option Agreement had clearly expired by its terms, the appellant failed to establish a causal link between the respondent's alleged failure to provide rent receipts and her inability to secure mortgage financing, and the application judge did not err in declining to convert the application into an action.

The appellant, a permanent resident, pleaded guilty to failing to remain at the scene of a fatal accident and received an 18-month imprisonment sentence, which subjected him to deportation without the right to appeal on humanitarian or compassionate grounds.

He appealed his conviction, arguing his plea was uninformed about these collateral immigration consequences and that his right to be present during his trial was violated when the trial judge conducted a post-plea inquiry with his counsel in his absence.

The Court of Appeal allowed the conviction appeal, finding a miscarriage of justice due to the appellant's improper exclusion from proceedings where his vital interests were discussed and misleading representations were made by his counsel regarding his understanding of immigration consequences.

A new trial was ordered.

The applicant was convicted of operating a conveyance with a blood alcohol concentration over the legal limit and received a 15-month driving prohibition and a $3,000 fine.

After his conviction was restored by the Court of Appeal, he sought leave to appeal to the Supreme Court of Canada and moved for a stay of his driving prohibition and fine pending the leave application.

The Court of Appeal dismissed the motion, holding that under s. 320.25 of the Criminal Code, it lacks jurisdiction to stay a driving prohibition unless leave to appeal has already been granted.

Furthermore, the court found that even if it had jurisdiction, the applicant failed to meet the test for a stay on the merits.

The appellant law firm appealed the dismissal of its motion for a charging order under s. 34 of the Solicitors Act.

The motion judge had found that the property in question had already been preserved by a prior order and exercised discretion to refuse the charging order.

The Court of Appeal upheld this decision, concluding that the appellant had not successfully obtained any order recovering or preserving property, and the declaratory relief sought to that effect was refused.

The appeal was dismissed.

The appellants appealed the dismissal of their motion for leave to amend their dental malpractice claim.

The motion judge found the proposed amendments constituted new, statute-barred claims, causing non-compensable prejudice to the respondent.

The Court of Appeal upheld the motion judge's decision, finding no error in the conclusion that the amendments created a new claim and that the finding of actual prejudice due to the expired limitation period was entitled to deference.

The appeal was dismissed with costs.

The appellant, Emad Beshay, appealed an order dismissing his action for delay under Rule 48.14(7)(a) of the Rules of Civil Procedure.

The action, commenced in December 2016 for breach of contract and misrepresentation related to a business purchase, had seen no significant progress for over five years.

The motion judge rejected the appellant's explanations for delay, including family deaths, mental illness, and financial problems, finding them unsupported by cogent evidence and contradicted by his business activities.

The motion judge also found the respondents would suffer prejudice due to fading memories of witnesses and lost banking records.

The Court of Appeal dismissed the appeal, affirming the motion judge's discretionary decision and finding no palpable and overriding errors in her assessment of the evidence or application of the two-part test for delay dismissal (acceptable explanation and no non-compensable prejudice).

This appeal concerned the beneficial ownership of a residential property following the separation of common-law partners who had operated successful immigration businesses.

The appellant argued the motion judge erred by isolating the property dispute from the parties' broader financial arrangements, including an agreed 60/40 profit split from their businesses.

The Court of Appeal affirmed the motion judge's finding that the respondent held a 50% beneficial interest in the property, noting the case was pleaded solely on that issue and the appellant had not advanced a counterclaim.

The appellant's motion to admit fresh evidence, alleging depression and anxiety to explain a failure to plead a claim, was dismissed for not meeting the Palmer test.

The respondents, facing multiple class actions related to the manufacture and distribution of opioids over a 20-year period, sought coverage for defence costs from their successive primary and excess liability insurers.

The application judge allowed the respondents to select a single primary insurer to fund the entire defence, permitted the exhaustion of self-insured retentions (SIRs) using payments from other insurers, granted relief from forfeiture for pre-tender defence costs, and required insurers to sign a Defence Reporting Agreement (DRA) to receive privileged defence information.

The Court of Appeal allowed the insurers' appeals in part, holding that defence costs must be allocated on a pro rata time-on-risk basis, that the insureds must exhaust each applicable SIR before an insurer's duty to defend is triggered, and that relief from forfeiture was unavailable for pre-tender costs.

The Court upheld the DRA requirement for insurers seeking to associate in the defence to mitigate reasonable apprehensions of conflict of interest.

The Missanabie Cree First Nation appealed a trial decision that determined the "crystallization date" for calculating their Treaty No. 9 reserve land entitlement was 1906, the year they adhered to the Treaty.

The Court of Appeal dismissed the appeal, affirming that the trial judge correctly interpreted the Treaty's reserve clause and the common intention of the parties, and properly distinguished other treaty cases.

The court also addressed ancillary issues, admitting fresh evidence of a settlement between Canada and MCFN, lifting a sealing order on the settlement, and dismissing Canada's abuse of process motion to dismiss the appeal against it.

The appellant, David Charizanis, appealed a 12-month custodial sentence.

The Court of Appeal found that the trial judge was entitled to conclude that the sentence was fit and appropriate, having considered all operative principles, including restraint, and appropriate weight to mitigating factors.

The appeal was dismissed.

The appellant, found not criminally responsible on account of mental disorder (NCRMD) for manslaughter and robbery, appealed his designation as a high-risk accused (HRA) under s. 672.64(1)(a) of the Criminal Code.

The Court of Appeal reviewed the trial judge's discretionary decision, considering the appellant's extensive history of severe mental disorder, repetitive violent behaviour against strangers, and treatment resistance.

The court found the trial judge's conclusion that there was a substantial likelihood of the appellant using violence that could endanger the life or safety of another person was reasonable and supported by the evidence, and therefore dismissed the appeal.

This is a costs endorsement following an appeal where success was divided between the parties.

The Court of Appeal for Ontario determined that, given the divided success, no order of costs would be made for the appeal.

The appellant, Kyle Firlotte, appealed his conviction for first-degree murder.

The victim was abducted, severely beaten, and left in a remote field in cold temperatures, leading to his death.

Firlotte argued the verdict was unreasonable, the trial judge's reasons were inadequate, the "common sense inference" was improperly applied, and the abandonment of the victim was erroneously treated as dispositive of intent.

The Court of Appeal dismissed the appeal, finding the verdict reasonable based on the totality of circumstantial evidence, the trial judge's reasons sufficient, the common sense inference appropriately used as a tool, and the consideration of abandonment as a factor in determining murderous intent was correct.