Sarah E. Pepall

Following the release of the main appeal decision, the parties reached an agreement regarding the costs of the motion before the motion judge.

The Court of Appeal ordered the respondents to pay the appellant's costs of the motion, fixed at $7,500 inclusive of disbursements and taxes, in accordance with the parties' agreement.

The appellant appealed his sentence, arguing the trial judge erred in applying Gladue principles.

The Court of Appeal dismissed the appeal, noting the trial judge took the initiative to order a Gladue report and properly considered the principles, despite the appellant only recently identifying as aboriginal.

The court commended the appellant's rehabilitation efforts but found no basis to interfere given the seriousness of the offences.

The appellant appealed a decision finding that legal aid payments to lawyers are not 'wages' under section 7 of the Wages Act.

The Court of Appeal dismissed the appeal, agreeing with the application judge that the statutory definition and relevant case law support the conclusion that such payments are not wages.

The court also found no error in the application judge's treatment of an accounting issue.

The appellant appealed an order dismissing his motion to set aside a settlement incorporated into a previous court order.

The settlement required the appellant to pay an equalization amount to the respondent.

The appellant argued the settlement should be conditional on his ability to pay without selling his property in Jamaica.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the motion judge's decision and noting that the appellant's reluctance to sell the property did not justify failing to pay the equalization amount.

The appellant appealed a summary judgment granted in an estates matter, arguing the motion judge erred in proceeding by summary judgment, interpreting an independent legal advice provision, and rejecting claims of misrepresentation.

The Court of Appeal dismissed the appeal, finding the motion judge was entitled to make necessary factual findings under Rule 20, the appellant was a sophisticated businessman who chose not to obtain independent legal advice, and there was no evidence of misrepresentation regarding the testator's wishes.

The appellant appealed an order dismissing her motion to set aside a default judgment.

The Court of Appeal found no error in the motion judge's application of the legal test, noting the appellant failed to explain her failure to respond to the proceedings and her delay in moving to set aside the judgment.

The appeal was dismissed, with the appellant permitted to pursue the issue of support as a motion to change.

The Crown appealed a sentence on the sole issue whether enhanced credit under s. 719(3.1) of the Criminal Code could be granted for pre-sentence custody based on loss of remission and parole eligibility.

The court held that the discretion to grant credit up to 1.5:1 is not confined to exceptional or unusual circumstances and may include parole and remission consequences where the record supports their relevance to the particular offender.

Applying modern statutory interpretation and the sentencing principles of proportionality and parity, the court concluded that a narrower reading would produce unjust disparities between similarly situated offenders.

The sentence appeal was dismissed.

The appellants appealed a motion judge's decision refusing to set aside a default judgment.

The Court of Appeal dismissed the appeal, finding ample evidence, including video recordings, that the appellants were personally served and consciously decided to ignore the process.

The Court noted that a conscious decision not to participate bars consideration of a defence on the merits.

The appellant appealed his sentence of six years' imprisonment for possession of crack cocaine for the purpose of trafficking, producing crack cocaine, and possession of marijuana.

He argued the trial judge failed to properly consider his youthfulness, his decision to limit the trial to a Charter application, and that the sentence was outside the appropriate range.

The Court of Appeal dismissed the appeal, finding the trial judge properly considered the principles of denunciation, deterrence, and rehabilitation, and that the sentence was fit given the appellant's age, extensive criminal record, and the large quantity of crack cocaine involved.

The appellant was convicted of second degree murder for the strangulation of a 54-year-old woman.

The Crown's case was circumstantial, relying heavily on the testimony of the appellant's girlfriend, who stated he returned home with blood on his clothes and said something terrible had happened to the victim.

On appeal, the appellant sought to introduce fresh evidence of his girlfriend recanting her trial testimony.

The Court of Appeal dismissed the motion to introduce fresh evidence, finding the recantation was fabricated and the product of collaboration between the appellant and the witness.

The Court also dismissed the conviction appeal, finding the verdict was reasonable and the trial judge made no reversible errors, and upheld the 13-year period of parole ineligibility.

The appellant, who was found not criminally responsible on account of mental disorder, appealed a disposition of the Ontario Review Board ordering her transfer to the Brockville Mental Health Centre.

She argued the order was unreasonable due to delays in the transfer and that it was not the least onerous disposition.

The Court of Appeal admitted fresh evidence showing the transfer had recently occurred, rendering the delay arguments moot.

The Court found the Board's conclusion that the transfer was the least onerous and least restrictive disposition was reasonable and supported by psychiatric evidence.

The appeal was dismissed.

The appellants were convicted of breaking into a motel and robbing the occupants.

They appealed their convictions, arguing the trial judge erred in his jury instructions regarding in-dock identification evidence, the use of a nickname, Vetrovec warnings for unsavoury witnesses, and a prior inconsistent statement.

The Court of Appeal found no errors in the jury charge, noting that the instructions adequately warned of the dangers of in-dock identification and correctly applied the law on corroboration between Vetrovec witnesses.

The appeals were dismissed.

The appellant municipality discovered an 1854 by-law purporting to establish a public road along the shoreline of Georgian Bay.

It registered the by-law in 2007 and sought a declaration that the road was a public highway owned by the municipality.

The respondents, who own cottage properties on the purported road, successfully moved for summary judgment dismissing the action.

The Court of Appeal upheld the dismissal, finding that summary judgment was appropriate, the 1854 by-law lacked sufficient certainty to establish a road, and the unregistered by-law was void against the respondents who had no actual notice of it.

The appellant, a judgment creditor, appealed an order granting partial summary judgment dismissing his claims to an interest in a property and shares in a company.

The motions judge had found that the transfer of shares in a bare trustee company effectively transferred the beneficial interest in the property it held.

The Court of Appeal allowed the appeal, finding that the motions judge improperly conflated the transfer of shares with the transfer of the beneficial interest in the land, failing to consider the requirements of the Statute of Frauds and the lack of land transfer tax payment.

The partial summary judgment was set aside, a certificate of pending litigation was granted, and the matter was directed to trial.

The respondent moved to quash the appellant's appeal from an order dismissing a motion to set aside a default judgment, arguing the appeal lay to the Divisional Court because the monetary judgment was under $50,000.

The Court of Appeal dismissed the motion to quash, holding that because the default judgment also included an order to deliver up personal property, the appeal properly lay to the Court of Appeal, as the Divisional Court's jurisdiction under s. 19 of the Courts of Justice Act is strictly monetary and does not extend to the recovery of personal property.

The appellants appealed an order dismissing their motion challenging the jurisdiction of the Ontario court.

The action concerned entitlement to the assets of a Chinese company.

The Court of Appeal dismissed the appeal, finding that the Ontario court had jurisdiction because the personal defendants resided and were served in Ontario, and had attorned to the jurisdiction by filing a statement of defence and taking other steps in the action.

The issue of forum non conveniens was deemed irrelevant.

The appellant was convicted of production, conspiracy to produce, and possession of marijuana for the purpose of trafficking in connection with two rural grow operations.

On appeal, the appellant argued that the trial judge erred by admitting hearsay evidence from a Ministry of Transportation database, admitting real estate documents protected by solicitor-client privilege, and failing to exclude search evidence obtained under invalid general warrants pursuant to section 24(2) of the Charter.

The appellant also argued the verdicts were unreasonable.

The Court of Appeal dismissed the appeal, finding no error in the admission of the evidence and concluding that the cumulative circumstantial evidence reasonably supported the convictions.

The appellant, a third mortgagee, appealed a summary judgment dismissing its action for damages for an alleged improvident sale and for an accounting under s. 27 of the Mortgages Act.

The appellant argued the motion judge applied the wrong test, the sale was improvident, and the second mortgagee was not entitled to add the first mortgage payout to its claim.

The Court of Appeal dismissed the appeal, finding that while the wrong test was applied, the respondent took reasonable precautions to obtain the true market value of the property.

The court also held the respondent was entitled to the payout amount under the doctrine of equitable subrogation.

The appellant appealed an order imposing a $500,000 administrative monetary penalty for misleading business practices under the Competition Act.

He argued he was deprived of a fair hearing due to ineffective counsel and sought to adduce fresh evidence.

The Court of Appeal dismissed the appeal, finding the application judge had no independent obligation to adjourn the hearing to allow the appellant to adduce evidence.

The court also upheld the quantum of the penalty and refused to admit the fresh evidence, as it would not have affected the result.

The appellants, custom kitchen distributors, sued the respondent manufacturer for breach of contract after the respondent closed its business in 2008.

The respondent successfully moved to dismiss the action under Rule 21.01(1)(a) on the basis that the two-year limitation period had expired before the claim was issued in July 2011.

The Court of Appeal upheld the motion judge's decision, agreeing that the pleadings and particulars established the cause of action arose no later than the end of 2008 and discoverability was not an issue.