Abella

The appellant challenged convictions arising from a confrontation at his estranged wife's relatives' home while attempting to locate his child.

The court refused to admit fresh evidence consisting of an affidavit cataloguing inconsistencies from earlier proceedings, holding the evidence lacked due diligence, was not compelling, and would not have affected the result.

The court held that mischief under s. 430(1)(c) or (d) is not an included offence of unlawful entry into a dwelling-house with intent under s. 349, and further held that the trial judge erred by treating intent for mischief as presumptively flowing from the appellant's acts through an objective lens.

The threatening and assault convictions were upheld, but the appeal was allowed in part: one mischief conviction was replaced with an acquittal, and the other was set aside with a new trial ordered and proceedings stayed on that count.

The appellants challenged an order declining jurisdiction to hear their application in an immigration matter.

The Court of Appeal held that the judge properly exercised his discretion in declining jurisdiction and found no basis to interfere.

The court noted submissions concerning the proposed removal of the litigation guardian, who was also the children's caregiver, and observed that an application under s. 114(2) of the Immigration Act remained available.

The appeal was dismissed.

The appellant challenged a judgment finding no evidentiary basis to treat a third party as an agent authorized to make representations and warranties on behalf of one of the respondents.

The Court of Appeal held there was no evidence of any statement conferring authority and that the conduct relied upon did not raise a genuine issue of agency.

Agreeing with the motions judge, the court dismissed the appeal with costs.

The appellant sought to appeal both the dismissal of a civil action and a substantial costs award to the Court of Appeal.

The trial judge had assessed damages at an amount below the Divisional Court monetary threshold while dismissing the action and fixing solicitor and client costs well above $25,000.

The court held that the main appeal lay to the Divisional Court under the Courts of Justice Act, and that the contingent costs appeal had to follow the main appeal rather than create Court of Appeal jurisdiction.

Both appeals were therefore transferred to the Divisional Court, with motion costs awarded to the respondents.

The appellant appealed a summary conviction appeal decision that set aside his acquittal for impaired care and control and entered a conviction on the first charge while staying the over-80 charge.

The Court of Appeal held there was ample evidence that the appellant had care and control of the vehicle, even though the keys were on the floor and he had no immediate intention to drive.

Sitting in the driver's seat with the keys readily accessible created a real risk that he could change his mind or misjudge his impairment and operate the vehicle.

The appeal was dismissed.

The appellant sought to challenge a conviction for unlawful confinement after an earlier Court of Appeal judgment had already addressed that conviction and directed sentencing following removal of a Kienapple stay.

The court held the prior panel had clearly turned its mind to the unlawful confinement count and purported to enter the conviction.

Because one panel of the court had already disposed of the issue, the present panel lacked jurisdiction to review it.

Any alleged error could only be pursued by seeking leave to the Supreme Court of Canada.

The estate appealed a ruling that the discoverability principle applied to the two-year limitation period in s. 38(3) of the Trustee Act for tort claims against estates.

The underlying negligence action arose from a motor vehicle accident in which the alleged tortfeasor died, and the plaintiff commenced the action almost five years later, asserting late discovery that the injuries met the statutory threshold under the Insurance Act.

The Court of Appeal held that the discoverability rule is only a rule of construction and does not apply where the limitation runs from a fixed event unrelated to the claimant's knowledge.

Because s. 38(3) runs from the death of the deceased, the claim was barred unless brought within two years of death.

The appeal was allowed, and the cross-appeal on costs was dismissed.

The appellant appealed convictions for indecent assault and sexual assault arising from allegations by two complainants in a blended family context.

He argued the trial judge erred by refusing an offence-based challenge for cause, declining to sever counts involving different complainants, inadequately instructing the jury on the use of evidence across counts, and refusing a missing witness adverse inference instruction.

The court held that the challenge for cause issue was governed by existing authority, that severance was properly refused given the factual nexus surrounding disclosure during a custody dispute, that the charge sufficiently guarded against propensity reasoning, and that the trial judge properly exercised discretion on the missing witness issue.

The appeal from conviction was dismissed.

The appellant challenged both conviction and sentence following a jury trial, arguing among other things that the trial judge's charge improperly referred to the accused's criminal record and that the response to a jury question was inadequate.

The court held that the impugned reference was evidently a mistaken attribution intended for another witness and, in any event, caused no prejudice in light of the context and overwhelming evidence.

The court further found no basis to conclude the jury was confused about the causal link between the assaults and bodily harm, and held the trial judge's answer was complete.

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

In a labour appeal from a Divisional Court order quashing an arbitration award, the appellant union argued that the arbitration board had adequately resolved the retroactivity issue arising from the repeal of a statutory provision governing appointment to a provincial schools authority.

The majority of the Court of Appeal held that determination of retroactivity was essential to disposition of the grievance and that the board failed to address all relevant considerations.

The appeal was therefore dismissed and the matter remained remitted to the board for redetermination of retroactivity.

A dissent would have found the board's reasons, read as a whole, sufficient to decide the issue and would have reinstated the award.

The appellant mortgagee appealed an order staying its action against one corporate respondent after a foreclosure action had been converted to one for judicial sale.

The court held that the consent order arising from the negotiations was clear and unequivocal, and did not result from mistaken intentions or a failure to reflect the parties' agreement.

The appellant knew it had to choose which defendant would be the subject of judgment and that consequences flowed from that choice.

By signing judgment against another defendant, the appellant's right to recover against the respondent corporation was terminated by s. 20(3) of the Mortgages Act.

The appeal was dismissed with costs.

The Crown sought leave to appeal sentence following convictions for incest and indecent assault arising from historical sexual offences against the respondent's daughter and her friend.

The sentencing judge imposed a suspended sentence and probation after considering the respondent's advanced age, frailty, and medical condition.

The majority held that, although the normal sentencing range for incest involving sexual intercourse with a young child was three to five years' imprisonment, the case was unique and any additional custodial sentence might lead to the respondent's death.

A dissenting judge would have found the sentence manifestly unfit and imposed custody.

On an appeal from an application judgment concerning a non-profit airport authority's refusal to appoint a municipal nominee as member and director, the court upheld the declaration that the board acted contrary to its by-law.

The appeal turned on whether the board had clear and unambiguous evidence that the nominee would not at all times act in the authority's best interests.

The court held that neither the nominee's cautious interview answers nor the board's adverse credibility finding based on his subsequent letter could reasonably satisfy that stringent anticipatory standard.

The board's rejection of the nomination therefore fell outside the scope of its authority under the by-law, and the appeal was dismissed with costs.

The appellant appealed convictions for aggravated assault, assault with a weapon, and possession of a weapon for a purpose dangerous to the public peace.

He argued that the trial judge misapprehended the evidence and improperly imposed a duty on him to stop his co-accused.

The court held there was ample evidence supporting the convictions and interpreted the trial reasons as finding a joint venture and the requisite intent when the co-accused armed himself.

The appeal was dismissed.

The appellant, a young person, appealed a disposition totaling three and one-half years.

The court held the disposition was illegal because it exceeded the two-year maximum under s. 20(3) of the Young Offenders Act and found the trial judge erred in principle by relying on adult offender factors to the virtual exclusion of youth sentencing principles.

While the offence was very serious and had a serious impact on the complainant and her family, the court concluded that further treatment in custody remained appropriate for public protection.

The appeal was allowed and the disposition was reduced to nine months secure custody and fifteen months probation on the same terms imposed below.

Appeal from a summary judgment decision in a dispute involving a former senior employee who joined a competitor after signing a Canada-wide non-competition covenant and allegedly soliciting customers and employees.

The court held the evidentiary record was insufficient to declare the restrictive covenant enforceable on summary judgment, but equally insufficient to declare it unenforceable where the responding parties had not moved for that relief and genuine issues remained regarding customer relationships and geographic scope.

The court further held that the solicitation record disclosed genuine issues for trial concerning two groups of dentist customers, but not a third group.

The costs order was varied in light of the appellant's partial success, with each side to bear its own costs of the summary judgment motions and the appeal.