David H. Doherty

The appellant employee was terminated for cause after misappropriating company resources to renovate his home.

The employer sued for breach of fiduciary duty, and the employee counterclaimed for unpaid bonuses.

An arbitrator awarded damages to the employer for the misappropriation but also awarded the employee his unpaid bonuses, finding they were an integral part of his employment contract.

The Superior Court overturned the bonus award, holding that a fiduciary is not entitled to compensation during a period of wrongdoing.

The Court of Appeal allowed the employee's appeal and restored the arbitrator's award, finding no absolute rule disentitling an errant fiduciary to bonus compensation, and holding that the arbitrator's decision reasonably achieved the goals of restitution and deterrence.

The appellant appealed his convictions and sentence for break and enter and breach of probation.

He argued the trial judge misapprehended evidence, misapplied the W.D. principle, and that the verdict was unreasonable.

The Court of Appeal dismissed the appeal, finding the fingerprint evidence on the point of entry window was sufficient to support the conviction.

The consecutive sentence for breach of probation was also upheld given the appellant's lengthy related record.

The appellant appealed his conviction for first degree murder, arguing that the finding of murder during forcible confinement under s. 231(5) of the Criminal Code was unreasonable.

The appellant contended that the act of killing was not discrete from the act of confinement.

The Court of Appeal dismissed the appeal, finding ample evidence from which the jury could reasonably infer that the appellant confined the victim by tying him up, beat him, and subsequently strangled him, taking advantage of the dominance gained through the confinement.

The appellant appealed the sentence imposed for assault with a weapon.

The Court of Appeal found that the trial judge misapprehended the evidence by characterizing the incident as an attack on a stranger, when it actually occurred during a drug transaction.

This misapprehension constituted an error in principle, requiring a fresh assessment of the sentence.

The Court varied the sentence to two years, in addition to four months of pre-trial custody, noting the seriousness of the assault and the appellant's lengthy criminal record.

The appellant appealed a dangerous offender designation, arguing that the Crown must show evidence of untreatability to sustain the order.

The Court of Appeal rejected this submission and dismissed the appeal, holding that the trial judge correctly focused on whether there was a reasonable possibility of eventual control of the appellant's risk in the community.

The appellant pleaded guilty to importing and trafficking large amounts of cocaine and was sentenced to 14 years' imprisonment.

He appealed his sentence, arguing that his potential deportation could affect his eligibility for day parole.

The Court of Appeal dismissed the appeal, holding that speculation regarding the effect of immigration status on day parole eligibility is irrelevant to determining the appropriate sentence.

The appellant was convicted of manslaughter and robbery with a firearm.

On appeal, he argued the trial judge erred by admitting hearsay evidence of a witness's prior testimony identifying him from a photo array, and by misdirecting the jury on the use of evidence regarding a black man fleeing the scene.

The Court of Appeal allowed the appeal, finding the hearsay evidence lacked threshold reliability because the witness's professed memory loss prevented meaningful cross-examination.

The court also held the jury instruction on flight was misleading.

The curative proviso could not be applied, and a new trial was ordered.

The appellant appealed a trial judgment awarding spousal support to the respondent, challenging the trial judge's credibility findings and factual determinations regarding the respondent's immigration status and employment prospects.

The trial judge had found the appellant to be untruthful and accepted the respondent's evidence that she would suffer reduced career opportunities in South Korea due to the cultural stigma of a failed interracial marriage.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the trial judge's credibility assessments and concluding that the trial judge fully explained why the severe economic disadvantage suffered by the respondent justified a support award outside the Spousal Support Advisory Guidelines.

The young person appealed their conviction and sentence.

The appellant argued the trial judge erred in assessing the identification evidence of a teller and in admitting time and date stamps on school photographs.

The Court of Appeal dismissed the conviction appeal, finding the trial judge was alive to the frailties of the identification evidence and that defence counsel had agreed to the admission of the photographs.

The sentence appeal was also dismissed, as the sentence was reasonable and revealed no error in principle.

The appellant appealed sentences imposed by three different Superior Court judges, with the primary focus on the sentence imposed by Ducharme J. The Court of Appeal found no error in principle, noting that protection of the public was the paramount consideration given the appellant's record and psychiatric evidence.

The court agreed that the totality principle was entitled to little weight because rehabilitation was not a factor in this case.

The appeal was dismissed.

The appellant appealed his conviction, arguing the trial judge erred in his treatment of a witness's evidence.

The Court of Appeal dismissed the appeal, finding no error in the trial judge allowing the witness to use a document to refresh her memory and giving the evidence the weight he deemed appropriate.

The appellants commenced a medical malpractice action in 1995 following a motorcycle accident in 1994.

Fifteen years later, the respondents successfully moved to dismiss the action for delay under Rule 24.01.

The appellants appealed, arguing the motion judge erred in finding inexcusable delay and presumed prejudice, particularly given the availability of medical records.

The Court of Appeal dismissed the appeal, upholding the motion judge's findings that the 15-year delay was inordinate and inexcusable, and that the appellants failed to rebut the presumption of prejudice given the potential loss of evidence from unrecorded team discussions.

The appellant real estate company sued the respondents for oppression under the Business Corporations Act and for breach of contract after being locked out of a condominium project following a corporate restructuring.

The trial judge found oppression and awarded compensation but did not address the breach of contract claim.

The Divisional Court reversed the oppression finding and dismissed the entire action.

On appeal, the Court of Appeal upheld the dismissal of the oppression claim, finding the restructuring was not unfairly prejudicial because the appellant was indemnified.

However, the Court found the Divisional Court erred in dismissing the unadjudicated breach of contract claim and remitted it for trial.

The Crown appealed a stay of proceedings entered after a finding of guilt for child luring, where the trial judge held the accused had been entrapped by an undercover officer posing as a 13-year-old girl on MSN Messenger.

The Court of Appeal held that the trial judge erred by failing to determine whether the officer's initial contact actually provided an opportunity to commit the offence.

The initial request to be added as a friend, the neutral photograph, and innocuous conversation were investigative steps only, not an inducement or opportunity to commit child luring.

The accused initiated and led the sexually explicit communications after learning the purported age of the child.

The stay was set aside, a conviction was substituted, and the matter was remitted for sentencing.

The appellant appealed a finding that he breached a consent order prohibiting him from maintaining outside storage in his rear yard exceeding 75% lot coverage.

The appellant argued that 'lot coverage' included the area covered by a garage and sheds, meaning he could use 100% of the remaining open area for storage.

The Court of Appeal upheld the motions judge's interpretation that the order restricted the appellant to using 75% of the open areas of the lot as a whole for outside storage.

The appeal was dismissed.

The appellant mother appealed a trial judgment awarding sole custody and sole decision-making of their child to the respondent father, with equal parenting time.

The appellant also challenged the trial judge's decision to credit the respondent for certain household expenses.

The Court of Appeal dismissed the application to admit fresh evidence and dismissed the appeal, finding ample evidence to support the trial judge's conclusions on custody and financial arrangements.

The appellant was convicted of robbery with a firearm and related offences.

The Crown's case relied heavily on a co-accused who recanted his preliminary inquiry testimony at trial, providing exculpatory evidence for the appellant.

The trial judge admitted the preliminary inquiry testimony for the truth of its contents but failed to properly distinguish between the exculpatory and inculpatory portions in her Vetrovec warning to the jury.

The Court of Appeal found that the trial judge erred by instructing the jury to seek confirmatory evidence for both the exculpatory and inculpatory portions of the testimony, rather than tying the exculpatory evidence to the reasonable doubt standard.

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

The appellants sued the respondent for breach of confidence, alleging the respondent misused ticket booking data provided to it for billing and settlement purposes to create a competing data product.

The trial judge dismissed the claim, finding that the information was not communicated in confidence, largely due to the absence of a confidentiality clause in favour of the appellants in the relevant agreements.

The Court of Appeal upheld the trial judge's decision, finding no error in his assessment of the factual matrix and the reasonable person standard.

The Crown appealed an acquittal entered after the trial judge excluded evidence under s. 24(2) of the Charter.

The trial judge found that an untested informant tip and a brief, neutral observation of a meeting in a vehicle did not provide reasonable grounds for arrest.

The Court of Appeal upheld the trial judge's findings that the arrest, subsequent searches of the respondent, his vehicle, and his residence, as well as a breach of the right to counsel, were unconstitutional.

The appeal was dismissed.

The appellants appealed a motion judge's refusal to set aside an order striking their statement of defence under Rule 37.14.

The motion judge found that counsel's non-attendance at the initial motion was not due to mistake or accident, but was part of a pattern of delay and stonewalling.

The Court of Appeal upheld this factual finding and dismissed the appeal, awarding costs to the respondent.