Stephen T. Goudge

The accused appealed sexual offence convictions arising from allegations by two complainants tried together before a jury.

The Court of Appeal held that, after the trial judge refused the Crown's similar fact application, the jury had to be expressly instructed not to use the evidence across counts and not to reason from bad character or propensity.

Those limiting instructions were not given, and the court rejected reliance on the curative proviso under s. 686(1)(b)(iii) because the evidence was not overwhelming.

The appeal was allowed, a new trial was ordered on the remaining counts, and the Crown's sentence leave application was dismissed as moot.

The appellant airline appealed the dismissal of its action alleging that a wholesale travel agency retained excessive commissions from the sale of tickets issued on the airline's ticket stock.

The appeal turned on the interpretation of the passenger sales agency agreement and the incorporated travel agent's handbook, particularly whether the agency was entitled to retain 7% or 9% of the full retail fare value.

The court held that the specific commission provision in Resolution 016a governed and fixed the commission at 9%, and that the agency in fact retained less than that amount.

As a result, there was no breach of contract and the appeal was dismissed with costs.

The appellant appealed the dismissal of its negligent misrepresentation action arising from purchases of Confederation Life commercial paper through the respondent bank.

The court held that, in the context of dealings between sophisticated commercial parties, the bank's duty of care was limited to accurately supplying the specific information requested in the quoting exercise, not broader investment-related information.

The court further held that stating the D.B.R.S. rating as R1 low was not inaccurate or misleading merely because the rating had been placed under review with negative implications.

The appeal was dismissed with costs.

The appellants appealed the dismissal of a negligence action arising from a single-vehicle accident in which the driver was seriously injured after leaving a municipal roadway.

They argued the trial judge erred in describing the accident location, in finding the roadway warning signage adequate, and in concluding causation had not been proven.

The Court of Appeal held the location was well understood by the trial judge, the warning sign sufficiently communicated the sequence of curves and advisory speed, and the causation finding was entitled to appellate deference.

The appeal was dismissed with costs.

The appellant appealed convictions for conspiring to traffic in a narcotic and possession of a narcotic for the purpose of trafficking arising from a heroin shipment from Thailand to Canada.

He argued the verdicts were unreasonable and that intercepted private communications in Chinese were admitted contrary to s. 189(5)(a) of the Criminal Code because he was not served with a written transcript in the original language.

The court held the trial judge was entitled to reject the appellant's exculpatory explanation and that the findings of guilt were fully supported by the evidence.

It further held that s. 189(5)(a) is an evidentiary provision to be interpreted liberally, and that where the Crown proved the communications viva voce through a translator, service of the transcribed English translations constituted a statement setting out full particulars of the private communications.

The conviction appeal was dismissed.

The appellant challenged a trial judgment in a wills and estates dispute, arguing that the trial judge implicitly found testamentary capacity but improperly shifted the burden of proof on undue influence.

The Court of Appeal declined to comment on capacity and held that the trial judge reached the correct conclusion on undue influence.

The court further held that, even if there had been a burden-shifting error, the evidence overwhelmingly supported the finding of undue influence.

The appeal was dismissed, with all parties entitled to their costs of the appeal out of the estate.

A young person appealed a sexual assault conviction arising from a dispute over whether consent to sexual intercourse had been withdrawn.

The court held that the trial judge’s approach to the appellant’s testimony was fundamentally flawed because it was rejected in its totality on an unsupported view of inconsistency, without proper consideration of other evidence supporting that version of events.

The reasons also raised concern that different standards of scrutiny may have been applied to the accused’s and complainant’s evidence.

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

In light of that result, the court did not address the disposition appeal, while noting the Crown’s concession that the original disposition exceeded the statutory maximum under the Young Offenders Act.

The appellant appealed convictions arising from a violent kidnapping and assault connected to collection of a drug debt.

The court held that the trial judge erred by telling the jury that if it found the accused's testimony to be a fabrication, that finding could be added as positive circumstantial evidence of guilt absent independent evidence of concoction.

The court also found prejudicial Crown misconduct and related charge errors concerning the right to remain silent, improper cross-examination tied to defence counsel's failure to confront a witness under s. 11 of the Canada Evidence Act, and improper closing submissions suggesting a key Crown witness had been believed in another proceeding.

Given the credibility-driven record and the non-overwhelming Crown case, the proviso could not be applied.

A new trial was ordered.

Appeal from a Divisional Court order quashing a municipal restructuring commission’s final proposal amalgamating several municipalities and annexing unorganized territory.

The Court of Appeal held that judicial review of a restructuring commission performing a political and legislative function is narrowly confined to whether the commission acted according to law, and does not permit the court to revisit the merits of restructuring policy.

The Divisional Court erred in finding illegality, inadequate consultation with First Nations as a free-standing jurisdictional defect, failure to apply the former OMB 'three filters' test, an impermissible 'tax grab', and bias.

The cross-appeal seeking a declaration under s. 35(1) of the Constitution Act, 1982 was dismissed without prejudice because the record was inadequate for determination of the constitutional issue.

The appellant appealed both conviction and sentence arising from an armed jewellery store robbery in which he was alleged to have been the getaway driver.

The court held that handgun evidence found during a warrantless search of his residence should have been excluded because the breach of s. 8 of the Charter was deliberate, flagrant, and not justified by urgency, but applied the proviso because the accomplice evidence made the conviction inevitable.

The court also held that the trial judge erred in treating the rejected alibi as concocted absent sufficient extrinsic evidence of fabrication, though that error likewise caused no substantial wrong or miscarriage of justice.

The conviction appeal was dismissed, but the sentence appeal was allowed because the trial judge failed to adequately account for parity, differing criminal records, and the appellant’s lesser role in the violence.

In a commercial lending dispute arising from failed condominium project financing, the appellants challenged findings that they breached the original takeout mortgage commitment, the assignment of takeout financing, and a later amended commitment.

The Court of Appeal upheld the liability findings, concluding the appellants had no lawful basis to refuse funding in 1991 or 1992 and that the respondent was entitled to full damages from the earlier repudiation.

The court held, however, that compound interest was not available under s. 130 of the Courts of Justice Act and was not justified on equitable grounds in an ordinary breach of contract claim.

The appeal was therefore allowed only to substitute simple interest for compound interest.

The appellant appealed an order striking part of its statement of claim that sought a declaration that the respondent airport authority lacked jurisdiction to impose fees and charges on airport users.

The court held it was unnecessary to resolve the pleaded delegation and Crown-operation issues because the respondent's authority arose from its leasehold interest and corporate capacity, as recognized by the applicable federal legislation and regulations.

The court further held Parliament did not intend to create a complete code restricting airport user charges to those set by ministerial regulation.

The appeal was dismissed with costs.

On an appeal from an order refusing to add investor creditors as plaintiffs by counter-claim, the court held that a bank owed no fiduciary duty to unsecured creditors of its corporate customers merely because they shared a common debtor.

Applying the Anns/Kamloops framework, the court found no pleaded facts establishing proximity or reasonable reliance sufficient to create a prima facie duty of care in negligent misrepresentation.

The alleged statements to one guarantor did not support a relationship of reliance by a wider class of investors.

In any event, policy considerations barred recovery because recognizing such a duty would create indeterminate liability to an unlimited class.

The appeal was dismissed.

The appellant challenged a summary conviction appeal order on the basis that his right under s. 11(b) of the Charter had been infringed by delay.

The court held that the primary consideration was the appellant's lack of reasonable diligence in seeking special disclosure, and the police disclosure delays could not be treated as running consecutively for the s. 11(b) analysis.

In light of the limited prejudice shown and the nature of the charge, the court found no constitutional breach.

The appeal was dismissed.

On an appeal from summary judgment dismissing a corporate appellant's crossclaim against a transfer agent, the court rejected the argument that the transfer agent breached either a statutory due diligence duty under s. 91(1) of the Ontario Business Corporations Act or a common law duty by issuing a share certificate after raising concerns with inside counsel.

The court held the respondent had acted in good faith and had not failed in its duty.

The appeal succeeded only to the extent of narrowing an indemnity order as premature and overly broad, limiting contribution and indemnity to the contractual provision and striking a further paragraph of the order.

Costs were awarded to the respondent on a party-and-party basis.

The appellants challenged a trial judgment rejecting a claimed prescriptive easement over a commercially developed parcel of land.

The Court of Appeal held the use of the alleged easement was permissive, not adverse, because the relevant knowledge and consent resided in the same individual personally and as the directing mind of the corporate owner during the relevant period.

The court further held no easement could arise by permission because any such permission ended when ownership of one of the properties changed in 1983.

The appeal was dismissed with costs.

The appellant challenged a judgment in an insurance benefits dispute concerning whether a proposed rehabilitation expenditure was a reasonable expense.

The court accepted that a significant-benefit threshold would be erroneous, but interpreted the trial reasons as finding only that the evidence showed no more than an insignificant benefit in the circumstances.

It held that the trial judge was entitled on the record to conclude the proposed expenditure was not a reasonable expense.

Leave to appeal costs was granted, and the trial costs order was varied so that there would be no order as to costs of the trial; the appeal was otherwise dismissed without costs.

The appellants challenged judgments awarding the respondent recovery on a counterclaim and an equalization payment arising from a family farm and matrimonial property dispute.

The court held that the evidence supported the findings that amounts advanced by the respondent were repayable and that the valuation of assets and equalization calculation were supported by the record.

The court rejected a late-raised unequal division argument because it had not been pleaded and was not disputed at trial.

The order directing payment from monies paid into court from the sale of the milk quota was also upheld.

The appellant appealed the dismissal of its damages claim against insurance broker respondents arising from the absence of business interruption coverage at the time of a fire.

The court held that the trial judge made crucial factual findings that the need for such coverage had been discussed on multiple occasions and that the appellant's representatives knew the coverage was not in place.

The record also supported the finding that worksheets required for a quotation had not been completed before the fire.

The court found no basis to interfere with the conclusion that there was no breach of duty and dismissed the appeal with costs.

The appellants sought to overturn an assessment of a law firm's accounts and attempted at the opening of the appeal to introduce fresh evidence from a former solicitor.

The Court of Appeal refused to entertain the request because no proper fresh evidence application material had been filed.

On the merits, the court held there was no basis to interfere with concurrent findings that a retainer existed and that the assessment officer's taxation of the accounts, as varied on appeal, was supported by ample evidence.

The appeal was dismissed with costs.