Stephen T. Goudge

The appellants appealed a defamation judgment arising from a series of newspaper articles alleging that a municipal engineering commissioner arranged an improper land payment to a developer friend while withholding planning information from council.

The Court of Appeal upheld the rejection of justification, fair comment and qualified privilege, finding ample support for malice based on a sensationalized, one-sided reporting purpose undertaken without regard for the facts, although one branch of the trial judge’s malice reasoning was set aside because the journalist had been unfairly restricted from explaining his intended meaning.

The court also upheld special damages for loss of employment and substantial general damages, finding a sufficient causal link between the defamatory publication and the respondent’s dismissal.

Punitive damages were set aside because the compensatory award was already sufficient to punish and deter.

The cross-appeal seeking increased damages was dismissed.

The appellant challenged his conviction for operating a motor vehicle with an excessive blood alcohol level on the basis that police exceeded their authority under s. 48 of the Highway Traffic Act, resulting in arbitrary detention contrary to s. 9 of the Charter.

After a speeding and weaving stop, the officer directed the appellant from his vehicle to the police cruiser because of an overwhelming smell of cologne, uncertainty about the source of any alcohol odour, the presence of a passenger, and the officer's cold.

The Court of Appeal held that s. 48 authorized reasonable investigative steps at the roadside to determine whether grounds existed for a breath demand, and that the brief movement to the cruiser was minimally intrusive and reasonable in the circumstances.

The detention was lawful, the resulting evidence was properly admitted, and the appeal was dismissed.

The appellant appealed both conviction and sentence for breach of probation arising from the issuance and service of civil court proceedings against the complainants.

The court held that, given the substance of the statement of claim and the surrounding background, the proceedings were a communication with the complainants intended to further harass them, and therefore constituted a breach of the probation order.

The court also rejected an abuse of process argument based on the re-laying of the charge after a simple mistake, finding the procedure entirely appropriate.

The conviction appeal was dismissed, and leave to appeal sentence was granted but the sentence appeal was dismissed.

The appellant parents appealed the dismissal of their summary judgment motion seeking a declaration that their tenant's liability insurer owed them a defence and indemnity in an action arising from an assault committed by their sons.

Although the sons' intentional assault claims fell within the bodily injury exclusion, the court held the parents were separately insured under the policy and the negligence claim against them for failing to supervise and properly raise their children was a distinct, non-excluded claim.

The court distinguished the Supreme Court of Canada's duty-to-defend analysis in sexual assault pleadings because the negligence allegations here constituted a separate tort against different parties rather than a relabelling of intentional wrongdoing.

The insurer was therefore required to defend the parents and indemnify them for any covered judgment, costs and interest.

The Crown appealed a youth court acquittal on a charge of trafficking in a substance represented or held out to be cocaine.

The trial judge erred in holding that the Crown was required to prove that the substance was not in fact cocaine.

Applying the authorities on held-out substances, the court held that the actus reus is the sale of something represented to be a controlled substance, and that the actual identity of the substance is immaterial.

The evidence amply supported that the respondent held out the substance as cocaine.

The acquittal was set aside, a finding of guilt was entered, and a one-year probation disposition was imposed.

The appellant challenged his conviction and sentence, arguing that the trial judge erred in admitting weapon evidence following a search.

The court applied the Collins framework under s. 24(2) of the Charter and held that the trial judge did not err in her treatment of the second and third categories of factors.

Although the trial judge did not expressly address the degree of departure from reasonable and probable grounds, the court found any departure was not significant in light of officer safety concerns, limited opportunity for further investigation, and the matching informant description.

The finding of good faith was reasonably supported by the evidence, and the appeal was dismissed.

In an intended class proceeding arising from investor losses in a fraudulent gold scheme using a lawyer's trust account, the appellants alleged the regulator negligently failed to properly investigate and intervene after receiving a complaint about the lawyer's conduct.

The Court of Appeal applied the Anns/Kamloops framework and held that, even assuming sufficient proximity, statutory and judicial immunity, together with compelling policy considerations, negated any private law duty of care in negligence in relation to the regulator's investigatory and disciplinary functions.

Those functions were characterized as inherently judicial or quasi-judicial, and absent pleaded bad faith or malice no negligence action could lie.

The Rule 21 order striking the claim was upheld, as were the costs orders.

In an appeal arising from Rule 20 and 21 motions, the appellants challenged an order dismissing their action against the executors of a deceased solicitor's estate arising from losses in a gold delivery contract investment scheme.

The court held that claims fitting within ss. 43 and 44 of the Limitations Act, including pleaded fraud, fraudulent breach of trust, recovery of trust property, accounting, and tracing relief, were not barred by the two-year limitation in s. 38(3) of the Trustee Act.

The court further held that the doctrine of plene administravit could not be determined against the appellants at this stage because it was not plain and obvious that the estate had no assets beyond $7,138, given possible insurance coverage and tracing remedies.

The appeal was allowed on the main dismissal issue, but dismissed as to two related interlocutory orders striking parts of the reply and refusing to strike an affidavit.

The appellants challenged amendments to Bill 160 that removed principals and vice-principals from teacher bargaining units, excluded them from the provincial labour relations regime, and ended their statutory membership in teachers' organizations.

They argued the amendments were a reprisal for participation in a province-wide protest against education reform legislation and therefore infringed freedom of expression and freedom of association under ss. 2(b) and 2(d) of the Charter.

The court held that the appellants failed to prove, on a balance of probabilities, that the legislative purpose was punitive rather than corrective, and further held that exclusion from a statutory collective bargaining scheme and removal of mandatory statutory union membership did not violate s. 2(d).

The appeal was dismissed with costs.

The appellant doctor appealed a trial judgment finding him liable for a surgical burn suffered during routine electrocautery surgery and awarding general and special damages.

The Court of Appeal unanimously upheld the trial judge’s liability findings, holding there was evidence supporting the conclusion that pooled alcohol-based prepping solution ignited during the procedure and that the doctor breached the standard of care.

The court divided on discoverability under s. 17 of the Health Disciplines Act, but the majority held the respondent knew enough material facts immediately after the surgery to allege negligence against the surgeon and hospital without awaiting an expert opinion.

The appeal was therefore allowed and the action dismissed as statute barred.

A minority shareholder appealed from a Divisional Court order directing that an oppression application proceed to trial, arguing that a deceased shareholder reasonably expected the corporation to use life insurance proceeds to buy out the holding company's shares on death.

The Court of Appeal held that the application record was sufficient to resolve the matter and that the alleged expectation was inconsistent with the parties' joint investment structure, draft shareholders’ agreements, and evidence of the shareholder compact.

The court dismissed the oppression claim, allowed the corporation's cross-appeal, and held that a related holding company appeal should succeed on the basis that the surviving business associate had ostensible authority to bind the deceased shareholder's holding company.

The court also ordered severance of the jointly held share block so each holding company would own one-half.

Two related appeals arose from disputes in a closely held corporation after the death of one member of a jointly held shareholder block.

The court held that the minority shareholder failed to prove a reasonable expectation, within the shareholders' compact, that corporate life insurance proceeds would be used to buy out its interest on death; the oppression claim was therefore dismissed without the need for a trial.

The court further held that the surviving joint investor had ostensible authority to bind the deceased shareholder's holding company to a post-death shareholders' agreement and a special shareholder loan arrangement.

Because a deadlock had developed in the management of the jointly held shares, the joint block was severed so that each holding company became the sole owner of half.

The appellants challenged findings that they had retained a law firm to prepare and file a prospectus and that the firm's general authority extended to retaining a printer.

The Court of Appeal held there was ample evidence supporting both factual findings and no basis to interfere.

The court upheld the conclusion that the law firm had authority to commit the appellants to pay for the printing.

The appeal was dismissed with costs.

Appeal in a professional negligence action against an accountant arising from a review engagement for a retail business that failed to remit over $1 million in provincial retail sales tax.

The court held the accountant owed a duty to exercise reasonable skill and care and breached the applicable standard by failing to make intelligent inquiries about glaring discrepancies between sales and remittance figures, particularly given the client's prior audit history.

A contractual exclusion clause did not shield the accountant because it operated only where the review engagement was conducted in accordance with applicable standards.

The appellant could recover losses tied to penalty, assessed interest, and non-recoverable income tax consequences, but not post-assessment borrowing costs or professional fees; damages were reduced by 50 per cent for contributory negligence.

The appellant appealed convictions entered after guilty pleas to three counts of first degree murder and sought to withdraw those pleas.

He advanced a fresh evidence application alleging the pleas were not voluntary and that he had been deprived of effective assistance of counsel, and also sought to adduce evidence from an unrelated matter involving the same defence counsel.

The court held that the record did not support involuntariness or ineffective assistance, and that the pleas were voluntary, unequivocal, and informed.

The proposed collateral affidavits from the unrelated matter were found to have no probative value.

The fresh evidence application and the appeal were dismissed.

The appellants sought to challenge an order directing that an assessment proceed without consideration of negligence and failure to follow instructions.

The Court of Appeal held that, because leave to appeal from the earlier order had been denied, it was not open to revisit the merits of that order on this appeal.

The assessment officer was therefore bound to proceed on the basis set by the prior order.

The appeal was dismissed with costs, although the court expressly stated it was not endorsing the proposition that no solicitor-client relationship existed.

In this human rights appeal, the court clarified the scope of the leave endorsement and held that the appeal did not extend to a review of the finding of systemic discrimination.

The only issue properly before the court was the effect, if any, of an arbitration award on the jurisdiction and power of the Board of Inquiry to grant reinstatement, in light of the jurisprudence such as Weber v. Ontario Hydro.

The matter was adjourned to permit the parties to file fresh factums addressing that sole jurisdictional question.

No costs were awarded for the attendance.

The appellant appealed the dismissal of an action against a judge arising from conduct alleged to have occurred while hearing and deciding the appellant's earlier civil proceeding.

The Court of Appeal held that the pleaded allegations concerned acts done in the execution of judicial duties and therefore could not found a valid cause of action.

The court further held that the respondent's response to a complaint to the Canadian Judicial Council was also undertaken in the course of judicial office.

The appeal was dismissed with costs.

The appellants appealed an order refusing to set aside a summary judgment in favour of a bank, alleging that the record before the summary judgment judge was fraudulent and incomplete and seeking to file after-acquired documents as fresh evidence.

The court held that the motion record was neither fraudulent nor incomplete, and that the appellants' complaints were really arguments that should have been advanced on the original summary judgment motion.

Because the challenge to the primary debtors failed, there was no basis to discharge the guarantor.

The appeal was dismissed with costs.

In an intended class proceeding arising from a union seniority integration dispute following an airline merger declaration, the appellants sought damages personally against other union members for alleged breach of the union constitution.

The court held that although union constitutions may be analyzed contractually, the contractual bond runs between each member and the membership as a whole, not as one-on-one contracts supporting damages claims against individual members.

The appeal from summary judgment dismissing the contract claim was therefore dismissed.

The cross-appeal was also dismissed because the pleaded conspiracy and unlawful interference claims remained legally distinct and disclosed a genuine issue for trial.