Susan E. Lang

The appellant appealed a trial judgment awarding the respondent over $4 million in damages for the lost opportunity to develop a shopping plaza after the appellant repudiated an oral agreement to be the anchor tenant.

The appellant argued the trial judge erred in finding an independent oral agreement, assessing damages, and failing to consider post-agreement conduct.

The respondent cross-appealed the trial judge's 50% reduction of its disbursements.

The Court of Appeal dismissed both the appeal and cross-appeal, finding no palpable or overriding errors in the trial judge's factual findings or exercise of discretion.

The appellant, a lawyer, sued a judge who had submitted a complaint about him to the Law Society of Upper Canada.

The motion judge struck the action under Rule 21.01, finding the judge was protected by judicial immunity and absolute privilege, and awarded substantial indemnity costs.

On appeal, the appellant argued the complaint was motivated by racial animus.

The Court of Appeal dismissed the appeal, holding that the complaint was protected by absolute privilege and judicial immunity, and that the circumstances did not support an inference of racial profiling.

The costs award was upheld due to the unsubstantiated allegations of racial animus.

The appellants appealed a trial judgment regarding an agreement of purchase and sale and unpaid invoices for marble supplied to a development.

The appellants challenged the trial judge's findings of fact, including breach of the agreement, promissory estoppel, and the personal liability of the corporate respondents' directors and officers.

The respondents cross-appealed the trial judge's award of 24% pre-judgment interest on the unpaid invoices.

The Court of Appeal dismissed both the appeal and the cross-appeal, finding no palpable and overriding error in the trial judge's findings of fact and upholding the pre-judgment interest rate as it was stipulated in the invoices.

The applicant moved to re-open his appeal, arguing the panel failed to consider whether the curative proviso could be applied despite an alleged error of law by the trial judge regarding the W.(D.) test.

The Crown cross-moved to quash the motion.

The Court of Appeal dismissed the motion, noting the appeal had been dealt with on the merits, the issue was not raised in the original appeal materials, and the Supreme Court of Canada had already refused leave to appeal on this issue.

The appellant contractor sued the respondent bank for misrepresentation after the bank failed to advance a $150,000 loan to a mall owner to pay for renovations.

The trial judge dismissed the action, finding the bank had informed the contractor that the loan was conditional on a guarantor's signature.

The Court of Appeal allowed the appeal, finding the trial judge misapprehended the evidence.

The bank had represented that the loan was a sure thing and that the signature was a mere formality, knowing this was untrue and that the contractor would rely on it.

Judgment was entered for the contractor for the undisputed contract amount plus costs.

The appellant appealed his sentence of two years less a day and three years' probation for sexual assault and uttering threats.

He argued the sentencing judge erred in finding him a danger to the community and failing to impose a conditional sentence.

The Court of Appeal found the sentence was not demonstrably unfit given the violence of the assault and the subsequent threats, which required denunciation and deterrence.

The appeal was dismissed.

The appellants, two political candidates, were forcibly arrested by mall security guards for trespassing after soliciting in a shopping centre.

At trial, a jury found the arrest lawful but awarded damages to one appellant for excessive force.

The appellants appealed.

The Court of Appeal allowed the appeal and ordered a new trial, holding that the trial judge erred by failing to instruct the jury to consider whether a forcible arrest was a reasonable course of action in the first place, as required by the Supreme Court of Canada's decision in R. v. Asante-Mensah.

The appellant insurer appealed an order appointing an appraiser under s. 128(5) of the Insurance Act, arguing the policy was void due to a material change in risk under Statutory Condition 4.

The Court of Appeal dismissed the appeal, finding that liability remained a live issue because the insurer chose not to cross-examine the insured on her affidavit asserting a valid policy.

The court noted that even if a breach occurred, relief from forfeiture might be available, making the appraisal process appropriate for resolving valuation issues.

The appellant appealed his conviction for first degree murder of his ex-wife.

The Crown's case was circumstantial, relying on motive, eyewitness identification, DNA evidence under the victim's fingernails, and after-the-fact conduct including flight.

The appellant argued the trial judge erred in his instructions on eyewitness identification, hearsay evidence of the victim's statements, discreditable conduct, collateral evidence, consciousness of innocence, and the admission of autopsy photographs.

The Court of Appeal found no reversible errors, noting the trial judge's charge was fair and balanced, and dismissed the appeal.

The appellant challenged jury convictions for multiple sexual offences against two child complainants and appealed an eight-year penitentiary sentence.

The court rejected the unreasonable verdict argument, holding that despite material inconsistencies, the core allegations remained intact and the jury was properly instructed on credibility concerns.

The court also held that medical opinion evidence concerning vaginal penetration was relevant to one complainant but irrelevant to counts involving the other complainant; however, the evidentiary error and absence of a limiting instruction caused no substantial wrong and were cured under s. 686(1)(b)(iii) of the Criminal Code.

On sentence, the court found the trial judge had set the range too high by over-relying on a more aggravated comparator case and reduced the custodial sentence to six and a half years, in addition to pre-sentence custody.

The appellant was convicted of sexual exploitation and sexual assault against his stepdaughter.

At trial, the judge refused to allow the appellant to cross-examine the complainant on extracts from her diary that were in his possession, and refused to order the production of the entire diary for inspection under s. 278.5 of the Criminal Code.

On appeal, the Court of Appeal found that the trial judge erred in both rulings.

The complainant's privacy interest was diminished because she knew the appellant read her diary, and the extracts were relevant to her credibility.

The convictions were set aside and a new trial was ordered.

Following the release of the court's reasons for judgment in the appeal, the parties were unable to agree on the quantum of costs.

The Court of Appeal reviewed the written submissions and fixed the respondents' costs of the appeal at $50,000 for fees, plus disbursements and GST.

The appellant husband appealed a divorce judgment ordering him to pay an equalization payment of over $7 million and $35,000 monthly in spousal support.

He challenged the trial judge's findings regarding the ownership of the matrimonial home, the quantum of spousal support, unconscionability under the Family Law Act, and the disbursement of funds held in court.

He also brought a motion to admit fresh evidence.

The Court of Appeal dismissed the appeal and the motion, finding no error in the trial judge's factual findings or legal conclusions, and noting the fresh evidence could have been discovered with due diligence.

The Crown appealed a fourteen-year effective sentence imposed for possession of child pornography and multiple sexual assaults against children and a teenage victim, arguing the sentence was demonstrably unfit and should be increased to eighteen years.

The Court of Appeal held that appellate intervention on sentence is available only where the sentence reflects a substantial and marked departure from sentences customarily imposed for similar offenders committing similar crimes.

The court found no error in principle, accepted that the sentencing judge properly weighed the gravity of the offences, the offender's position of trust, the profound impact on the victims, mitigation, and totality, and declined to vary the sentence.

The court also refused to intervene regarding an alleged four-month error in calculating pre-trial custody.

The appellant appealed his convictions for sexual offences against his stepdaughter, arguing the trial judge erred in defining reasonable doubt, misused prior inconsistent statements, and improperly assessed witness credibility.

The Court of Appeal dismissed the appeal, finding the trial judge adequately instructed himself on the burden of proof, properly handled the prior inconsistent statements, and reasonably assessed the evidence and credibility of the witnesses.

The appellant pharmaceutical company sued the respondents for defamation arising from radio and internet broadcasts, as well as statements made in the House of Commons.

The appellant failed to serve a notice of defamation prior to commencing the action, as required by s. 5(1) of the Libel and Slander Act.

The Court of Appeal upheld the striking of the defamation claims, confirming that the notice requirement applies to non-media defendants and that failure to provide notice is an absolute bar to the action.

The Court also upheld the striking of claims based on statements made in Parliament due to absolute parliamentary privilege.

The appellant was convicted of discharging a firearm with intent.

At trial, the appellant's girlfriend recanted her videotaped police statement implicating him, and then absconded before cross-examination before the jury.

The trial judge admitted the videotaped statement under the principled exception to the hearsay rule, finding necessity and threshold reliability.

The Court of Appeal upheld the admission, finding the trial judge correctly applied the legal criteria and that the transcript of the voir dire cross-examination adequately compensated for the inability to cross-examine before the jury.

The appeal was dismissed.

The appellant appealed his convictions for assault causing bodily harm and related offences, arguing that the trial judge erred in relying on palm print evidence found on the victims' car and improperly shifted the burden of proof.

The Court of Appeal dismissed the appeal, finding that the trial judge was entitled to conclude the circumstantial palm print evidence was consistent with guilt and inconsistent with any other rational conclusion.

The Court also held that the trial judge properly analyzed and rejected the defence's speculative explanations without shifting the burden of proof.

The appellant was convicted of three counts of criminal negligence causing death and one count of criminal negligence causing bodily harm after driving impaired the wrong way on a 400-series highway.

He appealed his convictions, arguing the trial judge erred by refusing an adjournment and forcing him to proceed unrepresented after his counsel was removed from the record.

The Court of Appeal dismissed the conviction appeal, finding the trial judge reasonably concluded the appellant was manipulating the system to delay the trial.

The sentence appeal was also dismissed, with the court upholding the nine-year imprisonment term due to the severe aggravating factors.

The plaintiff suffered catastrophic brain injuries when her vehicle struck the rear of a tractor-trailer that was blocking the roadway.

The trial judge awarded approximately $4.9 million in damages and substantial costs, including a premium.

The defendants appealed the quantum of damages, the non-deductibility of statutory non-earner benefits, the modified discount rate, and the costs award.

The Court of Appeal dismissed the appeal regarding damages, non-earner benefits, and the discount rate, finding the trial judge's conclusions were supported by the evidence.

However, the court allowed the appeal in part regarding costs, setting aside the portion of counsel fees that exceeded the maximum permitted under the costs grid and setting aside the costs premium awarded against the no-fault insurer.