Charron

Appeal from a judgment requiring a homeowner to pay outstanding lumber invoices used in the construction of his residence after dismissal of a construction lien claim.

The appellant argued the evidence did not prove the lumber was ordered or delivered, and further argued he was merely an undisclosed principal not liable for unauthorized acts of his project manager and related entities.

The court deferred to the trial judge's factual findings on delivery and ordering, and held the appellant was liable for earlier invoices within the agents' actual authority and for later invoices through ratification once the agency relationship had become disclosed though the principal remained unnamed.

The appeal was dismissed.

The appellant appealed his sexual assault conviction and sought leave to appeal sentence.

He argued that the trial judge misapprehended evidence concerning hand holding and that reply evidence was improperly admitted.

The court rejected both grounds, finding evidentiary support for the trial judge’s findings and concluding the reply evidence was not strictly collateral and was inconsequential in any event.

Leave to appeal sentence was granted, but the sentence of two years less a day was held to be within the appropriate range.

The Crown appealed a sentence imposed following guilty pleas to multiple offences arising from prolonged domestic harassment, break and enter, threats, and related misconduct.

The Court of Appeal held that the sentencing judge erred in principle by underemphasizing denunciation and deterrence and by relying on an inaccurate understanding of the respondent's prior record.

Applying the sentencing principles emphasized in harassment jurisprudence, the court held that the absence of physical violence was not a mitigating factor for criminal harassment.

Leave to appeal sentence was granted, the appeal allowed, and the total sentence increased to four years.

The trustee appealed the dismissal of its application concerning a bankrupt's pending unjust dismissal award under the Canada Labour Code.

The court held that the unjust dismissal claim was property within the meaning of the Bankruptcy and Insolvency Act, and damages for lost wages could be characterized as wages, but the treatment of such compensation was governed by s. 68 rather than automatic vesting under ss. 67 and 71.

The court further held that the current version of s. 68 applied, that a trustee could invoke s. 68 after the bankrupt's discharge, and that failure to complete the s. 68 procedure did not bar interim protective relief.

The trustee was not entitled to intervene in the labour arbitration to pursue costs.

The appeal was allowed and the wage-related award was ordered paid into court pending determination under s. 68.

The appellant challenged marijuana possession and trafficking convictions by arguing that the former statutory prohibition violated s. 7 of the Charter, exceeded federal jurisdiction, and was not proven on the evidence.

The court held that recreational marijuana use, even in the privacy of the home, did not engage protected liberty or security interests as a matter of fundamental personal importance.

Assuming a harm principle formed part of fundamental justice, the court found a reasoned apprehension of non-trivial harm associated with marijuana use and upheld the prohibition except insofar as it failed to include a medical-use exemption.

Because the appellant was not within the class requiring that exemption and the repealed statute could still support prosecution, no stay of proceedings was warranted.

The appeal was dismissed.

The Crown appealed a trial judgment staying marijuana cultivation and possession charges against an accused who used marijuana to control severe epilepsy.

The court held that criminally prohibiting possession and cultivation of marijuana for necessary medical use deprived the respondent of liberty and security of the person, and that the deprivation did not accord with the principles of fundamental justice because the statutory scheme provided only illusory or unfettered access to lawful medical use.

The court found the ministerial exemption power in s. 56 of the Controlled Drugs and Substances Act constitutionally insufficient to save the blanket prohibition.

The trial stay was upheld, but the reading-in remedy was set aside and the possession prohibition in s. 4 was declared invalid, with the declaration suspended for one year and a personal exemption granted during the suspension.

Commercial appeal arising from a terminated joint venture funding agreement for the acquisition of Greek mines.

The Court of Appeal held that no fiduciary duty survived termination of the parties' arm's-length commercial agreement, but upheld findings that the respondent group provided confidential information, that the appellant misused that information in acquiring the property, and that the confidentiality agreement and common law duty of confidence were enforceable.

The court refused to admit fresh evidence under the Palmer test and dismissed a non-party motion to set aside the judgment based on alleged ownership of the information.

The remedy awarding a 12 per cent carried interest plus a further 12 per cent participating interest was upheld, while both the main appeal and cross-appeal were dismissed.

The Crown brought an application to revoke bail pending appeal and obtain a warrant for arrest after the accused committed further offences while on release, including indictable offences.

The respondent argued that the court lacked jurisdiction because the recognizance in force at the time of the alleged breaches had been superseded by a later release order.

The court rejected that interpretation of s. 525(5) of the Criminal Code and held that a superseded recognizance does not deprive the court of jurisdiction where the appeal remains pending and the release continues to be governed by court order.

The court found the statutory criteria met and revoked bail without prejudice to a fresh release application based on new evidence.

The appellant appealed jury convictions on multiple sexual offence counts and, in the alternative, sentence.

The Court of Appeal held that the trial was undermined by multiple charge errors, including inadequate instructions on prior inconsistent statements, prior consistent statements, consent, position of trust, similar fact evidence, reasonable doubt, and unanimity, together with an incomplete readback and problematic prosecutorial comments.

Although some individual errors might have been curable, their cumulative effect prevented application of the proviso.

The convictions on counts 3 to 6 were set aside and a new trial was ordered on those counts.

The appellant appealed a jury conviction for sexual assault, advancing grounds relating to limits on cross-examination, alleged misapprehension of evidence, the jury instruction on assessing the reliability of a young person's memory, and the admission and use of hearsay evidence.

The court held that the cross-examination directions were appropriate, the review of the evidence was fair and accurate, and the impugned instruction was proper when read in the context of the charge as a whole.

Although some evidence would preferably not have been elicited, the court found no reversible error and no miscarriage of justice, particularly given the absence of defence objections and the trial judge's limiting instructions.

The appellant appealed a conviction for sexual assault arising from an allegation that intercourse continued after consent was withdrawn and escalated to forced anal intercourse.

The Crown had adduced similar fact evidence from the appellant's former spouse concerning seven alleged incidents of physical and sexual abuse.

The court held that the proposed evidence lacked the necessary pattern or distinctive similarity, was weakened by credibility frailties and potential collusion, and primarily invited impermissible propensity reasoning.

Because its slight probative value was outweighed by its highly prejudicial effect, the evidence should not have been admitted.

A new trial was ordered.

The appeal concerned whether an Ontario court retained jurisdiction to vary a spousal support order made under the former Divorce Act when neither former spouse resided in Ontario and one former spouse did not attorn to jurisdiction.

The court held that the Divorce Act, 1985, including its transitional provisions, governed the variation application, and that the moving party had not commenced any variation proceeding before repeal of the former statute.

The court further held that s. 43(c) of the Interpretation Act did not preserve any acquired, accrued, or accruing right to seek variation because no steps had been taken before repeal to exercise that statutory entitlement.

As neither residency nor acceptance of jurisdiction under s. 5(1) was established, Ontario lacked jurisdiction and the variation application was dismissed.

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 moving party sought security for costs of an appeal from a summary judgment dismissing the action against him.

The court held that, although the criteria under rule 56.01(1)(d) were met, the determinative question was whether it was just to order security.

Given the appellants' insufficient assets in Ontario and the risk that appeal costs would be unrecoverable from non-resident parties, the court found it just to order further security.

The request to set security on a solicitor-client scale was refused because the appeal was not frivolous and raised a serious issue.

Security for costs of the appeal was fixed at $20,000, with costs of the motion to the moving party.

Appeal concerning priority between prior perfected PPSA security interests and a later court-ordered charge granted to a mortgagee in possession for occupancy costs incurred while warehousing the bankrupts' personal property.

The court held that the priority issue was not governed by either the Bankruptcy and Insolvency Act or the Personal Property Security Act, and instead had to be resolved under common law and equitable principles.

The majority concluded that, although the appellants' security interests were first in time, their continuing and concerted misconduct in delaying payment of occupancy costs justified postponing their priority in favour of the mortgagee's charge.

The appeals were dismissed and the mortgagee's priority was upheld.

In this medical malpractice appeal, the defendants challenged findings that negligent immobilization of a hand fracture caused permanent disability and substantial damages.

The Court of Appeal held that the trial judge applied the correct specialist standard of care, properly inferred causation under the flexible approach in medical negligence cases, and was not required to apportion between tortious and non-tortious causes once the negligent treatment materially contributed to the entire injury.

The contributory negligence argument based on discontinuing physiotherapy failed because the evidence supported that the treatment was inappropriate and the patient sought alternative care.

The appeal succeeded only on quantum, with the award for past loss of income set aside for lack of evidentiary foundation.

This appeal concerned a priority dispute under the Personal Property Security Act arising from refinancing of a printing press subject to a lease with an option to purchase.

The appellant bank discharged the original lender's security, enabling the debtor to obtain legal title, and then took its own security interest.

The court held that this financing enabled the debtor to acquire further rights in the collateral and therefore satisfied the statutory definition of a purchase-money security interest.

Because the statutory conditions for priority were met, the appellant's security interest ranked ahead of the respondent's earlier perfected general security agreement.

The appeal was allowed and priority declared in favour of the appellant.

The accused appealed convictions for criminal negligence causing bodily harm and failing to remain at the scene of an accident arising from a parking lot incident where he claimed he was fleeing an assault.

The Court of Appeal held that the trial judge erred by permitting Crown cross-examination on the accused's failure, upon surrender and arrest, to complain to police about the alleged assault.

The court found that using the accused's silence to attack credibility and support an inference of recent fabrication violated s. 7 of the Charter.

The jury's questions and the contradictory instructions on silence demonstrated the significance of the error.

The appeal was allowed, the convictions were quashed, and a new trial was ordered.

The appellant appealed a conviction for criminal harassment arising from sexually explicit comments to a 14-year-old complainant, a subsequent sexual telephone call, and several hang-up calls after the complainant told him not to contact her again and called police.

The court applied the five-element framework for criminal harassment under s. 264 and held that the full factual context, not the hang-up calls in isolation, established harassment, knowledge, fear for safety, and the reasonableness of that fear.

The complainant's age, the sexually charged nature of the prior interactions, and the explicit warning to stop contacting her supported the conviction.

The appeal was dismissed.

The appellant appealed convictions for sexual offences arising from allegations by his stepdaughter following a judge-and-jury trial.

The Court of Appeal held that Crown counsel repeatedly breached the duty of fairness by personalizing the prosecution, misstating the appellant's evidence, engaging in improper and sarcastic cross-examination, and reading a misleading excerpt from Supreme Court of Canada authority to the jury.

The trial judge compounded the unfairness by repeating an inaccurate version of the appellant's evidence and failing to correct the improprieties.

The cumulative prejudice deprived the appellant of a fair trial.

A new trial was ordered.