G.J. Epstein

The accused pleaded guilty to internet child luring.

Following his arrest, police issued a media release that disclosed his HIV-positive status, which they had learned from a lawful search of his vehicle.

At trial, the judge found the disclosure violated the accused's section 7 Charter rights, refused a stay of proceedings, but imposed a conditional sentence below the mandatory minimum as a section 24(1) remedy.

On appeal, the Court of Appeal upheld the refusal of the stay but found the trial judge erred in finding a section 7 breach, as the disclosure did not have a serious and profound effect on the accused's psychological integrity beyond the stress of the charges themselves.

The Court also held that a sentence reduction below the statutory minimum was not an appropriate remedy.

The Crown's sentence appeal was allowed, and the sentence was varied to one year of imprisonment, but stayed as the accused had already served the conditional sentence.

The respondent's dog bit four people, prompting the appellant medical health officer to issue an order requiring the dog to be euthanized.

After breaching an interim consent order that allowed him to keep the dog pending appeal, the respondent's appeal was dismissed and he was ordered to surrender the dog.

Instead, he sent the dog to the United States.

The appellant brought a motion for contempt, which the motion judge dismissed on the technicality that the respondent was asked to surrender the dog to the SPCA rather than the Humane Society as specified in the order.

The Court of Appeal allowed the appeal, finding it had jurisdiction because the dismissal of the contempt motion was a final order.

The Court held the motion judge erred by adopting a formalistic approach, as the respondent clearly breached the spirit and intent of the euthanasia order.

The appellant was arrested for drug trafficking and subjected to a 'bedpan vigil' search authorized by a general warrant.

He was detained for 43 hours, handcuffed to cell bars, and experienced severe withdrawal symptoms without medical supervision.

The Court of Appeal held that while a general warrant can authorize a bedpan vigil search, the warrant was defective because it purported to authorize indefinite detention, violating the requirement to bring an arrested person before a justice without unreasonable delay.

The court also found the search was conducted in an unreasonable manner, violating the appellant's Charter rights.

The evidence was excluded under s. 24(2) of the Charter, the convictions were set aside, and an acquittal was ordered.

The province issued a renewable energy approval to the respondent for a wind turbine project, which included the use of an unopened municipal road allowance.

The appellant city, opposing the project, passed a resolution refusing any request to use the road.

The Divisional Court quashed the resolution, finding it frustrated the legislative purpose of the provincial approval and was made in bad faith.

The Court of Appeal dismissed the city's appeal, confirming that the renewable energy approval was a positive entitlement and the city's resolution conflicted with it under section 14 of the Municipal Act, 2001.

The Court also upheld the finding of bad faith.

The respondents sought to bypass the Planning Act by claiming a creek running through their property was a navigable stream under the Beds of Navigable Waters Act, which would vest the creek bed in the Crown and naturally sever their lot.

The application judge agreed, finding the creek navigable based on historical dimensions and downstream use.

The Court of Appeal allowed the municipality's appeal, holding that navigability requires not just physical capacity but also potential practical public utility, including points of public access.

As there was no evidence of public access or practical public use of the creek on the respondents' property at the time of the 1831 Crown grant, the creek was not navigable.

The appellant brought an oppression remedy claim against his siblings regarding the sale of shares in a family business and the failure to provide information.

The motion judge dismissed the claim on summary judgment as statute-barred under the two-year limitation period.

On appeal, the Court of Appeal held that while summary judgment is generally not available for applications under Rule 14, the procedural defect caused no prejudice.

However, the Court found that the respondents' subsequent application for a valuator constituted a new, discrete act of oppression.

Therefore, the oppression claim was not statute-barred.

The appeal was allowed and the matter directed to trial.

The appellant was convicted of second-degree murder for killing his mother.

He raised a defence of not criminally responsible by reason of mental disorder (NCR), which the jury rejected.

On appeal, he argued the jury's verdict was unreasonable because it rejected uncontradicted expert psychiatric evidence, and he sought to introduce a new psychiatric report as fresh evidence.

The Court of Appeal dismissed the appeal, finding the jury had a rational basis to reject the expert opinion due to flaws in its factual foundation.

The court also denied the admission of fresh evidence, concluding it lacked cogency and could not reasonably be expected to have affected the verdict.

The defendants appealed a motion judge's decision dismissing their motion to stay or dismiss the action for lack of jurisdiction or forum non conveniens.

The Court of Appeal allowed the appeal, finding that the motion judge's conduct gave rise to a reasonable apprehension of bias.

The motion judge had adjourned the motion on his own initiative to help the plaintiffs, dismissed the motion without hearing oral argument on key issues, made unwarranted findings of abuse of process, repeatedly criticized the defendants' counsel, and released delayed reasons that appeared to be an after-the-fact justification for his decision.

A new hearing before a different judge was ordered.

State Farm paid statutory accident benefits to its insured motorcyclist who was injured after swerving to avoid a left-turning vehicle insured by Aviva.

State Farm sought indemnification from Aviva under the loss transfer provisions of the Insurance Act.

The arbitrator found the Aviva-insured driver 100% at fault under rule 5(1) of the Fault Determination Rules, concluding that 'ordinary rules of law' does not mean pure tort law and must be informed by Rule 3.

The application judge set aside the award and apportioned fault 50/50 based on tort law.

The Court of Appeal allowed the appeal and restored the arbitrator's award, holding that rule 5(1) does not require a pure tort law analysis and that Rule 3 applies to all fault determinations under the Rules.

The appellants blocked a laneway on their property that the respondents used to access their homes.

The right-of-way had been registered on the appellants' title until 1960 but was not renewed within the 40-year expiry period under Part III of the Registry Act.

The application judge granted an injunction protecting the respondents' use of the laneway, relying on s. 113(5)(a)(iv) of the Registry Act, which exempts unregistered rights-of-way that are openly enjoyed and used.

The Court of Appeal dismissed the appeal, holding that s. 113(5)(a)(iv) is not restricted to prescriptive easements and protects once-registered rights-of-way that are no longer validly registered, provided the dominant tenement owners continuously and openly enjoy and use the right-of-way from the expiration of the 40-year period.

The applicant was convicted of a terrorism offence in 2010 and received a sentence functionally equivalent to over six years.

Years later, legislative amendments allowed the government to revoke the citizenship of individuals with terrorism sentences of five years or more.

Facing citizenship revocation, the applicant sought an extension of time to appeal his sentence.

The Court of Appeal granted the extension, finding that the severe collateral consequences and the retrospective nature of the legislation meant the interests of justice favoured allowing the applicant to seek a sentence reduction.

The appellant was successful in an oppression action against the respondents.

The respondents had served an offer to settle nine calendar days before trial, which technically amounted to fewer than seven days under the Rules of Civil Procedure.

The trial judge treated the offer as a valid Rule 49 offer and awarded costs accordingly.

On appeal, the Court of Appeal held that the 'no near miss' policy applies to the timing requirement under rule 49.03, meaning the offer was not a valid Rule 49 offer.

However, the Court upheld the costs award, finding that the trial judge was entitled to take the offer into account under his residual discretion pursuant to rule 49.13.

The accused was charged with impaired driving and driving over 80.

He sought disclosure of historical maintenance and usage records for the Intoxilyzer used in his breath tests.

The trial judge ordered disclosure under the first party Stinchcombe regime, and a motion judge refused to quash the order.

The Crown and the Ottawa Police Service appealed.

The Court of Appeal allowed the appeal, holding that the records were generated by and in the exclusive possession of the police service, making them third party records governed by the O'Connor regime.

The court further held that the accused failed to meet the 'likely relevant' threshold for third party production, as the request was a speculative fishing expedition.

The appellant claimed she suffered pregnancy complications after a police officer wrongfully confiscated her car in August 2009.

She pursued a police complaint and was informed of the outcome in November 2012.

She commenced a negligence action in October 2013.

The motion judge granted summary judgment dismissing the action as statute-barred.

The Court of Appeal dismissed the appeal, holding that the limitation period began to run on the date of the incident, as the appellant knew the material facts giving rise to her claim at that time.

The appellant was convicted of first degree murder, arson, and rendering an indignity to a body after he and two accomplices tortured the victim and burned down the house to conceal the crime.

On appeal, the appellant argued the trial judge erred in dismissing an application for the production of a Crown witness's third-party psychological records, and in his jury instructions regarding accomplice evidence (Vetrovec warning) and fabricated statements.

The Court of Appeal found that while the trial judge erred at the first stage of the third-party records analysis, production would not have been ordered at the second stage.

The court also found the jury instructions were adequate and dismissed the appeal.

The appellant insurer appealed a declaration that it had a duty to defend the respondent OSPCA in three separate actions alleging malicious prosecution, false arrest, and defamation arising from animal cruelty investigations.

The insurer argued that coverage was excluded by policy clauses regarding willful violation of penal statutes and by the fortuity principle, which precludes coverage for intentional harm.

The Court of Appeal dismissed the appeal, finding that the OSPCA Act is not a penal statute, exceeding a search warrant is not a Criminal Code offence, and the fortuity principle did not apply because the policies expressly covered intentional torts like malicious prosecution and the plaintiffs did not plead that the OSPCA intended the specific harm suffered.

The Crown appealed the accused's acquittal on drug production and trafficking charges.

The trial judge had excluded evidence found during a search incident to arrest and subsequent condominium searches, finding the police lacked reasonable and probable grounds for the arrest, thereby violating the accused's Charter rights.

The Court of Appeal allowed the appeal, holding that the trial judge erred in law by failing to assess the objective reasonableness of the grounds for arrest through the lens of an experienced police officer.

When viewed from that perspective, the totality of the evidence, including extensive surveillance, provided reasonable and probable grounds for the arrest.

A new trial was ordered.

The appellant was convicted of multiple counts of attempted murder for sending tampered water bottles and letter bombs.

Seventeen months after the convictions, during dangerous offender proceedings, the trial judge amended his reasons to add an alternative theory of liability for the water bottle counts.

The Court of Appeal held that the late amendment rebutted the presumption of integrity and excised it from the reasons.

Based on the original reasons, the court found the attempted murder convictions for the water bottles unreasonable and entered acquittals.

The letter bomb convictions were upheld.

A new dangerous offender hearing was ordered.

The appellant, a permanent golfing member of a share capital social club, sought to transfer to a social membership category while retaining his Class B voting share.

The club's board adopted a policy requiring members transferring out of permanent golfing categories to resign, thereby cancelling their voting shares, and reapply.

The appellant argued this policy unlawfully varied his share rights under the Corporations Act.

The court held that the policy did not vary share rights, as the appellant could keep his share by remaining in his current category, and the policy was a reasonable exercise of the board's authority.

The court also determined that the appeal properly lay to the Divisional Court, reconstituting itself to dismiss the appeal.

The appellant, acting as power of attorney for his incapacitated father, appealed an application judge's order that released frozen joint funds to the respondent wife, granted her sole authority over a jointly owned Florida property, awarded her $900 per month in spousal support, and ordered the appellant to personally pay $13,500 in costs.

The Court of Appeal allowed the appeal in part.

The court upheld the release of the joint funds and the personal costs award based on the appellant's litigation conduct.

However, the court ordered the partition and sale of the Florida property nunc pro tunc, finding the appellant had authority to sever the joint tenancy.

The court also reduced the spousal support award to $300 per month, noting the application judge failed to consider the father's capacity to pay.