Susan Lang

In an addendum to a sentence appeal decision, the Court of Appeal corrected an illegal probation order it had previously imposed.

The appellant's new sentence of two years was consecutive to a previous sentence of five years and nine months.

Because the total merged sentence exceeded two years, a probation order was not legally available under the Criminal Code.

The court exercised its inherent jurisdiction to correct the accidental error and struck the probation order.

The appellant was convicted of first degree murder and his conviction appeal was previously dismissed.

He also filed an inmate notice of appeal against his sentence.

The Court of Appeal quashed the sentence appeal, noting that the sentence for first degree murder is fixed by law and therefore no appeal lies under section 675(1)(b) of the Criminal Code.

The appellants appealed a trial judgment finding that Amicone Design Build Inc. assumed the obligations of Island Cove Development Ltd. and 1078385 Ontario Limited, making it liable for the return of a $66,000 deposit.

The Court of Appeal dismissed the appeal, holding that the trial judge's conclusion was supported by evidence, including Amicone taking over the project, communicating with the respondents, and receiving the proceeds of sale.

The appellants called no evidence to rebut these reasonable inferences.

The appellants appealed a trial judgment, arguing that the trial judge's remarks during closing submissions created a reasonable apprehension of bias and that the respondent failed to mitigate damages.

The Court of Appeal dismissed the appeal, finding that the trial judge's comments were merely instructive cautions to junior counsel and did not indicate pre-determination.

Furthermore, the court upheld the trial judge's finding that the respondent's decision not to proceed with the property purchase was driven by uncertain septic system repair costs, meaning the duty to mitigate was not engaged.

The appeal was dismissed with costs fixed at $10,000.

The appellant payroll provider paid the wages of the corporate respondent's employees without first receiving sufficient funds from the corporation.

The appellant sued a director of the corporation for unjust enrichment, arguing that its payment relieved the director of her statutory liability for unpaid wages under s. 131 of the OBCA.

The Court of Appeal dismissed the appeal, holding that the primary obligation to pay wages belonged to the corporation, not the director.

The director received no direct benefit and was not unjustly enriched.

Furthermore, the appellant could not be subrogated to the employees' rights because the employees had been paid and had no claim against the director.

The appellant appealed the equalization payment, spousal support, access, and costs components of a trial judgment.

The Court of Appeal varied the equalization payment to $64,000 on consent, fixed spousal support at $500 per month for three years on consent, upheld the access order based on an assessor's recommendation, and varied trial costs to $32,000.

The parties also resolved outstanding support arrears and ongoing child support.

The appeal was allowed in part.

The appellant appealed the dismissal of its action against the City of Toronto for breach of contract and other claims arising from a public tender process.

The trial judge dismissed the action primarily because it was barred by the six-year limitation period under the Limitation Act, finding the appellant knew or ought to have known the material facts by September 1990 but did not commence the action until February 1997.

The Court of Appeal agreed with the trial judge's limitation period analysis and found no palpable and overriding error in her alternative findings dismissing the substantive claims.

The appeal was dismissed with costs.

The respondent sold goods to 'Promised Land' and sued the appellant numbered company for unpaid invoices.

The trial judge granted judgment for the respondent.

The appellant appealed, arguing the trial judge decided the case on an unpleaded basis and improperly pierced the corporate veil, as the goods were allegedly purchased by a related entity, Promised Land Inc. The Court of Appeal dismissed the appeal, finding the pleadings squarely raised the issue of the proper defendant, and the appellant and its related entity dealt interchangeably with the respondent, making both proper defendants.

The appellant appealed a summary judgment decision finding that the services it provided were real estate services under the Real Estate and Business Brokers Act.

The Court of Appeal allowed the appeal, holding that the scope of services to be provided was a matter of factual dispute requiring a trial to determine the precise services and assess them against the legislative language.

The appellant father appealed a decision setting aside a trial judgment that had granted him custody of the child and ordering a new trial.

The appeal judge had found that the trial was unfair due to the trial judge recalling the mother to the stand on her own motion, a ten-month delay in rendering a decision, and the trial judge reopening the trial on her own motion for further evidence.

The Court of Appeal found no error in the appeal judge's conclusion that neither party received a fair trial and dismissed the appeal, ordering costs of $4,000 to the respondent.

The respondent utility mistakenly underbilled the appellant for electrical consumption.

The respondent obtained judgment for the full amount of the underbilling.

The appellant appealed, arguing the trial judge erred in finding no evidence to support its estoppel defence.

The Court of Appeal dismissed the appeal, agreeing with the trial judge that the appellant failed to show the required element of detriment, as the unexpected profits from the undercharging were used for discretionary reinvestment in the business.

The appellant law firm obtained a charging order for its legal fees against funds held in court that were generated from litigation in which it represented the respondent husband.

In the underlying matrimonial proceedings, the motion judge dismissed the law firm's motion for payment out of the funds, instead ordering the funds paid to the respondent wife as retroactive spousal support.

The Court of Appeal dismissed the law firm's appeal, holding that the motion judge was entitled to treat the funds as available for spousal support and had the discretion to refuse to give the charging order priority over spousal support.

The appellants appealed an order striking out their proposed class action statements of claim for oppression against the respondents.

The claims alleged that a recapitalization plan was oppressive to minority shareholders.

The Court of Appeal dismissed the appeal, finding the claims failed to disclose a reasonable cause of action because the prospectus explicitly warned of the financial risks, the recapitalization plan benefited the company by preventing immediate collapse, and the appellants failed to plead any specific loss or damage.

The appellant appealed his convictions for sexual assault and forcible confinement, arguing the trial judge misapprehended evidence regarding his alibi and erred in refusing to allow re-examination on a driving issue.

The Court of Appeal dismissed the appeal, finding that the trial judge's reasons, read as a whole, supported the rejection of the alibi and that the compelling identification evidence rendered the re-examination issue non-determinative.

The appellant appealed his conviction and sentence for impaired driving causing death and breach of recognizance.

At trial, the central issue was whether the appellant or the deceased passenger was driving when the vehicle rolled into a ditch.

The Court of Appeal upheld the trial judge's finding that the appellant was the driver, noting it was amply supported by witness testimony and expert evidence.

On the sentence appeal, the appellant argued for a conditional sentence based on his aboriginal background and Gladue principles.

The Court of Appeal dismissed the sentence appeal, finding the 12-month sentence was not demonstrably unfit given the aggravating factors, including a high blood alcohol level and a prior drinking and driving conviction.

The appellant pleaded guilty to impersonation, fraud over $5,000, and failure to comply with a recognizance, and was sentenced to fourteen months' imprisonment and eighteen months' probation.

He appealed the sentence, arguing it was demonstrably unfit and seeking a reduction based on fresh evidence of a serious medical condition.

The Court of Appeal dismissed the appeal, finding the sentence fit given the appellant's criminal record and the commission of the second offence while on bail.

The court also declined to reduce the sentence based on the fresh evidence, noting the institution's obligation to provide adequate medical treatment and the upcoming parole hearing.