Susan E. Lang

The appellants appealed the dismissal of their motion to certify a class action against the respondent bank for allegedly charging undisclosed and unauthorized fees on foreign currency credit card transactions.

The motion judge had refused certification on the basis that compensatory damages could not be determined on a class-wide basis, as it would require individual assessments of how each cardholder would have behaved had the fees been disclosed.

The Court of Appeal allowed the appeal, finding that the motion judge erred in applying a tort-like approach to assessing damages for breach of contract.

The Court held that an aggregate assessment of damages was possible under section 24 of the Class Proceedings Act, 1992, and that a class proceeding was the preferable procedure.

The appellant owned a cottage in a provincial park and historically accessed it by driving over beach property.

The Ministry terminated vehicular access, offering alternative parking.

The appellant sought a declaration of a legally enforceable right to drive over the beach, claiming it was a highway or she had an easement.

The trial judge dismissed the action, finding the Crown owned the beach, it was not a highway, and her prior use was by permission.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings on ownership, the application of the Public Lands Act, and the lack of an easement, as well as the trial costs award of $133,800.

The appellant appealed an order striking out his statement of claim, declaring him a vexatious litigant, and prohibiting further motions.

The Court of Appeal upheld the striking of the claim against one respondent for failing to articulate a valid cause of action.

However, the court set aside the vexatious litigant declaration because no notice was given, and set aside the prohibition on further motions as the appellant's conduct did not meet the threshold.

The court also granted the appellant leave to amend his statement of claim regarding alleged breaches of the Condominium Act and unjust enrichment, while upholding the striking of the remainder of the pleading.

The Toronto Police Association brought an application seeking a declaration that a binding agreement existed to resolve disciplinary charges against officers who wore uniforms to a union rally.

The appellants moved to dismiss the application for lack of jurisdiction, arguing the matter fell under the Police Services Act.

The motion judge found the dispute was contractual and within the court's jurisdiction.

On appeal, the Court of Appeal held that the essential character of the dispute involved police discipline and the consequences of that discipline on the officers' careers.

The court concluded it lacked jurisdiction, allowed the appeal, and dismissed the application.

The appellant employer appealed a trial judgment finding wrongful dismissal and awarding 22 months' notice, eight months' Wallace damages, and $25,000 in punitive damages.

The Court of Appeal upheld the finding of no cause for termination and the 22-month notice period.

However, the Court reduced the Wallace damages to four months, finding the employer did not act in bad faith by pursuing unproven allegations of dishonesty, withholding a reference letter, or couriering the respondent's belongings.

The $25,000 punitive damages award was upheld due to the employer's oppressive conduct in blacklisting the respondent's relatives and unlawfully deducting funds from her account at another bank.

The appeal was allowed in part.

The appellant appealed his convictions for possession of cocaine and marijuana for the purpose of trafficking, seeking to introduce fresh evidence regarding the Crown's late disclosure that a co-occupant of the searched premises was incarcerated at the time of the search.

The Court of Appeal dismissed the appeal, finding that defence counsel made a reasonable tactical decision not to challenge the search warrant based on the information available, and the late disclosure did not affect trial fairness.

The court also rejected arguments regarding the trial judge's use of documentary evidence and an error regarding unanalyzed drug residue, concluding the verdict was not unreasonable.

The appellant was convicted of four counts of sexual assault and four counts of administering a stupefying substance, receiving a global sentence equivalent to 10 years imprisonment.

He appealed the sentence, arguing the trial judge erred in finding a breach of trust and that the sentence was outside the appropriate range.

The Court of Appeal dismissed the appeal, finding it unnecessary to decide the breach of trust issue because the sentence was entirely fit given the significant aggravating features, including the 15-year span, multiple victims, and significant planning.

The appellant lawyer sued his former client to recover surplus settlement funds and unpaid legal fees for services allegedly rendered outside legal aid certificates.

The trial judge dismissed the action.

On appeal, the Court of Appeal upheld the dismissal, noting that costs recovered are the property of Legal Aid Ontario and the appellant failed to prove any agreement for surplus funds.

The appellant also abandoned his claim for outside services at trial.

The appeal and the respondent's cross-appeal for trial costs were both dismissed.

The appellant sued the respondents for damages arising from the alleged wrongful repudiation of an agreement of purchase and sale for a new home.

The respondents had originally agreed to purchase the home from a builder, but the builder's agreement prohibited assignment or sale without consent.

The appellant and her husband, an experienced real estate broker, knew of this prohibition but still entered into an agreement with the respondents to purchase the property.

The trial judge dismissed the action, finding the agreement was illegal as it was designed to defeat the builder's rights.

The Court of Appeal upheld the decision, concluding that the courts will not assist a plaintiff in recovering damages for the breach of an agreement intended to circumvent the known rights of an innocent third party.

The appellants appealed a trial judgment holding them jointly and severally liable for $105,647.98 in unpaid legal fees owed to the respondent law firm.

The trial judge found that the appellants, who were defendants in the underlying action, colluded with the plaintiffs (the law firm's clients) to reach a secret settlement designed to defeat the law firm's claim for its fees.

The Court of Appeal dismissed the appeal, finding ample evidence that the appellants knew of the outstanding fees and that the settlement, which lacked commercial reasonableness, was structured specifically to avoid paying the law firm.

The appellant was convicted of sexual touching and invitation to sexual touching of a child.

His summary conviction appeal was dismissed.

On further appeal, the Court of Appeal found that the trial judge erred by relying solely on the 'unnaturally close' relationship between the appellant and the child to reject the appellant's evidence and find guilt beyond a reasonable doubt.

The Court held the verdicts were unreasonable, allowed the appeal, and substituted verdicts of not guilty.

The appellant pleaded guilty to second degree murder and was sentenced to life imprisonment.

He appealed his conviction, arguing that the proceedings were invalid because he did not expressly re-elect to be tried by a judge alone under s. 473 of the Criminal Code, that his Charter rights were violated by the lack of a clear waiver of a jury trial, and that he received ineffective assistance of counsel.

The Court of Appeal dismissed the appeal, finding that his consent to a judge alone trial was implicit in his guilty plea, that he waived his right to a trial by pleading guilty, and that there was no evidence to support the claim of ineffective assistance of counsel.

The appellant appealed convictions for assault, assault with a weapon, possession of a weapon, and failing to comply with a probation order.

The Court of Appeal found the trial judge erred in admitting a witness statement as past recollection recorded, as the witness could not definitively say he was telling the truth when he gave it.

Without this statement, several convictions were unreasonable or lacked corroboration.

The court also found the trial judge materially misapprehended identification evidence on another count.

The appeal was allowed, acquittals entered on some counts, and a new trial ordered for the remainder.

The appellants appealed a motion judge's decision finding that a 'Guarantee/Special Rates/Contract Addendum' was a separate and distinct agreement from the underlying tour operator agreements, and therefore not subject to their forum selection clauses.

The Court of Appeal allowed the appeal, holding that the addendum was part and parcel of the tour operator agreements.

Applying the strong cause test from Z.I. Pompey Industrie, the Court found no exceptional circumstances to justify departing from the parties' chosen forum of Aruba (and Cuba for one hotel).

The action was permanently stayed.

The appellant appealed the trial judge's award of costs for a mistrial, the quantum of trial costs, and the sequence of deducting income replacement benefits from the damages award.

The Court of Appeal upheld the costs awards as discretionary decisions entitled to deference.

However, the Court allowed the appeal regarding the deduction of income replacement benefits, holding that under the former s. 267(1) of the Insurance Act, the deduction must be made from the damages actually awarded after the reduction for contributory negligence, and from the global award for loss of income.

The net damages award was varied to $205,985.

The appellant challenged the legal effectiveness of a transfer of shares in a closely held corporation by a bankrupt shareholder's trustee in bankruptcy to another corporation.

The appellant argued the transfer did not comply with share transfer restrictions.

The Court of Appeal dismissed the appeal, finding that equitable title had passed for good consideration and that any defect in the original transfer was cured by a subsequent confirming transfer by the trustee.

The appellant purchased contaminated property at a reduced price.

The respondent, who caused the contamination, agreed to remediate the property to a specified standard and indemnify the purchaser for any loss arising from the contamination.

The appellant later sold the property at a profit but claimed damages under the indemnity for reduced profit due to 'contamination stigma'.

The Court of Appeal dismissed the appeal, finding the appellant suffered no loss as the reduced purchase price already accounted for the stigma, and the indemnity agreement did not cover this diminution in value.

The appellant appealed a trial judgment in a matrimonial dispute, arguing that the trial judge's conduct exhibited a reasonable apprehension of bias and compromised trial fairness.

The Court of Appeal dismissed the appeal, finding that the trial judge's credibility findings were supported by the evidence and his comments fell far short of meeting the test for reasonable apprehension of bias.

The court also upheld the custody and access order, noting it was grounded in the specific needs and best interests of the children and consistent with the position of the Children's Lawyer.

The appellants appealed a motion judge's decision dismissing their motion to stay or dismiss the respondent's action on the basis of forum non conveniens.

The appellants argued that the motion judge misplaced the evidentiary burden by failing to require the respondent to show why the action should be heard in Ontario, given an exclusive jurisdiction clause favouring Quebec or New York.

The Court of Appeal dismissed the appeal, finding that while the motion judge may have erred in principle regarding the burden of proof under the forum selection clause, order and fairness overwhelmingly favoured Ontario as the appropriate forum due to the existence of multiple related proceedings already before the Ontario courts.

The insurers, having been successful on appeal, sought costs for both the appeal and the lengthy trial.

The Court of Appeal awarded the insurers their costs of the proceedings on a partial indemnity scale, fixed at $135,000.

The court also awarded the insurers their costs of the trial on a partial indemnity scale, fixed at $510,000, noting that the trial involved complex factual and legal issues and that the claimed fees were reduced to reflect an appropriate partial indemnity recovery rate of approximately 65%.