S. Borins

Commercial lease appeal concerning whether a successor landlord could re-measure leased premises and charge rent on a larger area than that fixed in a prior lease amending agreement.

The court held that the successor in title took subject to the existing lease and was bound by the stipulated square footage in the amending agreement.

The landlord failed to demonstrate any change permitting re-measurement under the original lease.

The appeal was allowed, declaratory relief was granted, and the tenant obtained a refund of excess rent paid with interest and costs.

The appellant appealed an order requiring him to re-attend and complete an examination for discovery as Pontiac's representative.

The court held that Rule 31.03(2) did not apply because the appellant was not an officer, director or employee of Pontiac.

His prior voluntary attendance did not amount to a waiver of his right not to attend.

The appeal was allowed, the motion order was set aside, and the motion was dismissed with costs.

The Crown appealed an order quashing a conviction for driving with a blood alcohol concentration over the legal limit following a single-vehicle accident.

The Court of Appeal held that under s. 254(2) of the Criminal Code, the officer need only reasonably suspect that a person operating or in care or control of a vehicle has alcohol in the body; the suspicion need not separately extend to operation or care and control.

The court further held that the trial judge was entitled on the evidence to find that the respondent had not relinquished care and control of the vehicle when the roadside screening demand was made.

The appeal was allowed, the acquittal set aside, and the conviction and sentence restored.

The appellants challenged a summary judgment dismissing their third party claim for negligent misrepresentation, the refusal to remove the third party as the plaintiffs’ solicitor of record, and an order striking portions of their statement of defence.

The court held that the motions judge applied the proper summary judgment test and correctly found no evidence on which the negligent misrepresentation claim could succeed.

Although the court expressed concern that Rule 20 was not the proper procedural vehicle to strike part of a defence absent a motion for judgment, it upheld that order because the impugned estoppel defence was based on identical factual allegations and would amount to an abuse of process.

The appeals were dismissed with costs.

The appellants challenged orders refusing to set aside a default judgment.

The Court of Appeal held that both motion judges properly exercised their discretion in assessing prejudice, delay, and procedural fairness.

The court accepted that the insurer had recourse against its insured under s. 258 of the Insurance Act and found no basis to interfere with the conclusion that setting aside the judgment would cause greater prejudice to the respondents.

The appeals were dismissed with costs.

The appellant appealed convictions for break and enter, breaking out of a house, and failure to comply, as well as a three-year sentence.

The court held that the trial judge did not err in declining to exclude shoe evidence seized in breach of s. 8 of the Charter, emphasizing the deference owed to a trial judge’s s. 24(2) determination.

The court also rejected the unreasonable verdict argument because the eyewitness testimony was supported by footprint evidence and injuries consistent with the intruder’s escape.

The sentence appeal was dismissed after the court found no failure to consider the appellant’s background as an aboriginal offender and held the sentence fit given the criminal record.

The appellant solicitor appealed an order directing an assessment of his account for legal fees arising from a motor vehicle accident settlement obtained for an adult person under disability.

The court held that the settlement judgment, although inclusive of fees and disbursements and accompanied by a management plan referring to a specific fee amount, did not fix or approve the solicitor's account within the meaning of s. 4(1) of the Solicitors Act.

The court emphasized the usual practice on settlement approval under rule 7.08, including disclosure of intended legal fees, and the litigation guardian's duty to scrutinize the fairness and reasonableness of those fees.

Because the account had not been judicially fixed and the twelve-month bar had not arisen, the respondent was entitled to an assessment order.

The appeal was dismissed with costs.

In a long-running access road dispute, the appellant challenged an order requiring removal of gravel placed on the respondents' property.

The court held that the proposed fresh evidence did not meet the established admissibility requirements.

However, the appeal succeeded because the record was insufficient to permit summary judgment on whether the work performed complied with an earlier order governing repair and maintenance of the access road.

The order below was set aside and the underlying motion was dismissed with costs.

Two appeals were heard together from summary judgment dismissing actions arising out of agreements of purchase and sale.

The appellate court held the motions judge erred by characterizing the issue of whether a condition precedent had been fulfilled within a reasonable time as a question of law under rule 20.04(4).

That issue was one of fact and constituted a genuine issue for trial.

The motions had been narrowly framed around whether the agreements created valid equitable interests in land or offended s. 50 of the Planning Act.

Both appeals were allowed, the judgments were set aside, and the actions were ordered to proceed to trial, with costs in the cause.

The appellant appealed a 16-year penitentiary sentence imposed following guilty pleas to robbery, wounding, committing an indictable offence while disguised, and possession of a stolen vehicle.

The offences involved an armed robbery by a 17-year-old offender during which the victim was shot and left permanently paralyzed.

The court held that the sentencing judge properly considered the offender's youth, limited prior record, difficult background, and pre-trial custody, but was entitled to give significant weight to poor rehabilitation prospects, public protection, and denunciation.

Leave to appeal was granted, but the sentence appeal was dismissed as the sentence, while at the high end of the range, was not unfit.

The appellant sought leave to appeal from a summary conviction appeal decision upholding a sexual assault conviction.

The only issue was whether the defence should have been permitted to cross-examine the complainant about a prior sexual assault complaint made against another person.

Applying the rule that such collateral cross-examination is unavailable absent proof that the earlier complaint was recanted or demonstrably false, the court held the summary conviction appeal judge correctly found no basis to interfere.

Leave to appeal was granted, but the appeal was dismissed.

The appellant municipality appealed a slip and fall judgment arising from an icy pedestrian walkway leading to and from a recreation complex.

The central issue was whether the higher statutory standard under s. 284 of the Municipal Act governed, or whether the ordinary occupier's duty under s. 3(1) of the Occupier’s Liability Act applied.

The court held that the dominant purpose of the walkway was access to the complex, not use as a public sidewalk or highway, and therefore the Occupier’s Liability Act governed.

The finding of negligence was supported by the evidence, and the appeal was dismissed with costs.

The appellant challenged multiple jury convictions arising from offences involving explosives, a bank explosion, and threats against a judge and police headquarters, and also sought to challenge sentence.

The court rejected alleged errors respecting the jury instructions on assessment of evidence, unanimity, reasonable doubt, and recent possession, and held the verdicts on the threatening counts were reasonable.

Although the trial judge erred in limiting consideration of the entrapment application to trial evidence, the court found no prejudice, concluded entrapment was not established, and would in any event apply the proviso.

Leave to appeal sentence was granted, but the 12-year sentence was upheld.

The appellant appealed a family law judgment denying spousal support.

After commencing divorce proceedings, the respondent argued that s. 36(1) of the Family Law Act automatically stayed the appeal, while the appellant sought to adduce fresh evidence concerning post-judgment deterioration in her economic circumstances.

The court held that s. 36(1) did not extinguish or stay an appeal from an already adjudicated support claim, and refused the proposed evidence because it was new evidence arising after trial rather than fresh evidence capable of affecting the original adjudication.

On the merits, the court found no reversible error in the trial judge’s assessment of the evidence regarding economic disadvantage and upheld the denial of spousal support.

The appellant employer appealed a wrongful dismissal judgment awarding a twenty-seven month notice period.

The Court of Appeal held that, although the notice period was at the extreme upper limit of what was appropriate, it was still supportable on the facts and did not justify appellate intervention.

The court also upheld the trial judge's finding that the respondent employee made reasonable efforts to mitigate his damages.

The appeal was dismissed with costs.

The appellant sought a declaration of professional competence and an order requiring a bank to place him on its list of lawyers qualified to act for it.

The court held there was no evidentiary foundation on the summary judgment record to connect the bank's internal competence manual to a by-law under s.158(2) of the Bank Act, and no other basis to compel the bank to retain the appellant.

The court further held it had no jurisdiction to grant a declaration respecting the appellant's competence as a lawyer.

The dismissal of the action on summary judgment was affirmed and the appeal was dismissed with costs.

The appellant employer appealed liability only from a wrongful dismissal judgment, arguing the trial judge applied the wrong legal test for constructive dismissal.

The court held that constructive dismissal is not confined to unilateral changes to a specific fundamental contractual term and may also arise where the employer's conduct objectively repudiates the entire employment relationship.

On the factual findings, a series of unjustified criticisms, warning letters, and probation made continued employment intolerable.

The appeal was dismissed with costs.

The appellant challenged a Commercial List order refusing an adjournment and dismissing its appeal from the disallowance of a proof of claim in a winding-up proceeding for want of prosecution.

The Court of Appeal held that the motion judge was aware of the full context, including the appellant's prolonged inaction, failure to file responding materials, and failure to explain either the asserted conflict with counsel or the delay.

The court rejected the appellant's procedural fairness argument and found no error in the exercise of discretion.

The appeal was dismissed with costs.

The appellant appealed from a directed issue trial arising out of a dispute over the right to provide cable television services to apartment buildings after the landlord terminated its long-standing arrangement and entered into an exclusive agreement with a competitor.

The Court of Appeal held that the landlord's relationship with the appellant was governed by a contract that permitted termination, and the landlord's lawful exercise of that contractual right could not ground the appellant's tort claim.

Because the contractual component was dispositive, it was unnecessary for the trial judge or the appellate court to determine the broader intentional interference with economic relations issue.

The appeal was dismissed with costs.

The appellant challenged the dismissal of a personal injury action arising from a bicycle fall followed by a truck running over his hand.

The appeal raised alleged misstatements in the jury charge, admissibility and pre-trial disclosure of post-accident statements, treatment of accident reconstruction opinion evidence, adequacy of Highway Traffic Act instructions, and the reasonableness of the jury verdict.

The court held that any alleged misstatement was immaterial, the challenged statements were properly left to the jury, no disclosure or pleading obligation had been established, and the expert evidence was properly limited where the subject matter was within ordinary experience.

The jury verdict and trial costs disposition were upheld, and the appeal was dismissed with costs.