Janet Simmons

The appellant was convicted of second degree murder of his wife following a judge alone trial and sentenced to life imprisonment with no eligibility for parole for twelve years.

On appeal, the appellant challenged the conviction on grounds of material misapprehension of evidence, specifically regarding a police demonstration video concerning the time required for a wheelchair-bound person to reach an alarm keypad.

The appellant also raised arguments regarding DNA cross-contamination and alternate explanations for gunshot residue.

The Court of Appeal found that while the trial judge erred in stating no video recording existed, this error did not constitute material misapprehension warranting intervention, as the trial judge had fully considered the demonstration evidence and concluded it did not raise a reasonable doubt.

The conviction and sentence appeals were dismissed.

The appellant appealed a trial conviction, raising three issues regarding the trial judge's reasons.

The appellant argued that the trial judge improperly relied on evidence of a prior consistent statement to corroborate the complainant's evidence, failed to adequately explain why he accepted the complainant's evidence despite inconsistencies, and that the complainant's evidence regarding the appellant's statement about getting "his boys to come down" was insufficient to constitute a threat.

The Court of Appeal rejected all three submissions and dismissed the appeal.

The appellant appealed his sentence imposed following a guilty plea to possession of a prohibited firearm.

The trial judge had described an accidental blast from a sawed-off shotgun as narrowly missing the complainant as an aggravating factor, despite the appellant's qualification of the facts during his guilty plea that the blast was accidental.

The Court of Appeal found that the trial judge failed to give effect to the appellant's factual qualification and that this mis-description factored into the sentence imposed.

The appeal was allowed in part, and the sentence on the possession of a prohibited firearm charge was reduced from five years and thirty-four days to four years, seven months and four days.

The balance of the sentence appeal was dismissed.

The appellant appealed his conviction, arguing that the trial judge erred in her jury charge by failing to sufficiently caution the jury that items linking the appellant to a particular address were relevant only to his relationship with the vehicle's passenger and did not directly support his identification as the driver.

The Court of Appeal dismissed the conviction appeal, finding that the trial judge's instructions clearly identified the relevance of the evidence and that the jury was sufficiently instructed on identification and circumstantial evidence.

The appellant also appealed his sentence, but as he had served the custodial portion, that issue was moot.

Leave to appeal sentence was granted but the sentence appeal was dismissed.

The appellant appealed his conviction for aggravated assault and his sentence.

Duty counsel raised three issues: that the trial judge misapprehended the evidence regarding who instigated the dispute, erred in finding excessive force was used in the jail cell context, and erred in assessing Officer Chen's observations of the altercation.

The Court of Appeal found no error in the trial judge's factual determinations and dismissed the conviction appeal.

The court also found the sentence, imposed for a serious aggravated assault in the context of interference with a justice system participant, to be entirely fit and dismissed the sentence appeal.

The appellant appealed his conviction, challenging the trial judge's decision not to formally self-instruct in accordance with the Vetrovec warning regarding the credibility of a co-accused who testified.

The Court of Appeal found no basis to conclude the trial judge erred in exercising his discretion.

The trial judge had properly considered the co-accused's status and motivation to fabricate, found her evidence honest and supported by corroborating evidence, and provided ample reasons for rejecting the defence theory of evidence planting.

The appeal was dismissed.

The appellant appealed both his conviction and sentence.

On the conviction appeal, the appellant failed to identify any error made by the trial judge, and the court found no basis to interfere with the conviction.

On the sentence appeal, duty counsel argued that the trial judge failed to give sufficient weight to mitigating factors, but the court rejected this submission, finding that the trial judge had carefully considered the mitigating factors and imposed a sentence within the range suggested by defence counsel.

Both appeals were dismissed.

The appellant appealed his sentence of two years less one day imprisonment plus two years' probation following his guilty plea to assault causing bodily harm.

The Court of Appeal found no error in principle in the sentencing judge's reasons and determined the sentence was not demonstrably unfit.

The court noted that the appellant, then 23 years old, had sucker-punched a 55-year-old victim causing significant injury, and that such conduct must be both deterred and denounced.

The appeal was dismissed and the warrant of committal was amended to reflect the lesser but included offence.

The appellant appealed his conviction, arguing that there were no objective grounds for his arrest and that the gun found in his possession should not have been admitted into evidence.

The Court of Appeal upheld the trial judge's finding that there were both subjective and objective grounds for arrest based on a constellation of factors observed by the officers.

The conviction appeal was dismissed, and the sentence appeal was abandoned.

The appellants appealed a summary judgment order dismissing their action against their former lawyer for professional negligence.

The appellants alleged the respondent failed to protect their interests in settlement negotiations, failed to account for funds paid towards legal bills, and misappropriated funds secured by a mortgage.

The motion judge found the appellants had put forward no evidence to support their claims, that they were fully informed of and agreed to the settlement terms which benefited them, and that there was no evidence of inappropriate or excessive billings.

The Court of Appeal upheld the dismissal, finding no genuine issue for trial and rejecting all three grounds of appeal raised by the appellants.

The appellants appealed a motion judge's decision granting a stay of proceedings on forum non conveniens grounds.

The motion judge had characterized the claim as one for oppression under the Canada Business Corporations Act and found that Ontario was forum non conveniens because the core dispute involved shareholders' dissatisfaction with internal management decisions of a Quebec-based company.

The appellants argued the motion judge erred by misconstruing their claim as purely oppression and failing to recognize a common law claim for fraudulent misrepresentation with connections to Ontario.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's characterization of the claim or his forum non conveniens analysis.

The appellants appealed a trial judgment concerning a business purchase agreement that was terminated before completion.

The trial judge found that a $100,000 deposit paid by the appellant toward a $500,000 purchase price was to be retained by the respondent pursuant to a termination agreement entered into by the parties.

The trial judge found no legal fault on either side and concluded that the parties' intention in the termination agreement was that the deposit remain with the respondent.

The Court of Appeal found no palpable and overriding error in the trial judge's interpretation and dismissed the appeal.

The appellants appealed a motion judge's order granting the respondents leave to amend their statement of claim to substitute the names of three doctors for "Dr. John Doe Anesthesiologist." The motion judge relied on the doctrine of misnomer and applied the "litigating finger" test, finding that the doctors would have known the claim was directed at them based on the notice of action, medical records, and their status as anesthesiologists.

The Court of Appeal upheld the motion judge's decision, finding no error in principle or palpable and overriding error in the alternative finding based on the notice of action served within the limitation period.

This is a costs endorsement following an appeal of a trial judgment in an employment law matter.

The appellant challenged the trial judge's costs award of $82,600 to the respondent, arguing for either no costs or a reduced amount of $20,000.

The respondent sought to maintain the trial judge's award.

The Court of Appeal allowed the appeal on the merits but reduced the costs award to $40,000, considering that while the respondent succeeded on the constructive dismissal claim, the trial was significantly lengthened by unsuccessful claims and the respondent failed to proceed under the simplified procedure despite being eligible to do so after other claims were struck out.

A motor vehicle accident occurred at an intersection where a stop sign was positioned between 8.4 and 9.4 metres behind a faded stop line.

The driver of the westbound vehicle failed to see a northbound vehicle and T-boned it, causing serious injury to a passenger.

The trial judge found the driver negligent and also found the municipality breached its duty of repair by failing to repaint the faded stop line, apportioning 50 per cent liability to the city.

The Court of Appeal allowed the city's appeal, finding the trial judge misapplied the ordinary reasonable driver standard by focusing on precise stopping distances rather than considering that reasonable drivers would stop at a point providing sightlines in both directions, as required by the Highway Traffic Act.

An employee who began working for a predecessor company in 1995 with an arrangement to work from home three days per week was informed in January 2017 that she could no longer work from home effective March 1, 2017.

The employee took the position that she had been constructively dismissed.

The motion judge found constructive dismissal based on two grounds: the breach of an essential term regarding work-from-home arrangements and the arbitrary setting of the employee's fourth quarter 2016 bonus.

The motion judge awarded 20.5 months of salary (less a 10% contingency), compensation for the underpaid bonus, and lost benefits.

The employer appealed; the employee cross-appealed regarding bonus entitlements during the notice period.

The appellant appealed a trial judgment awarding the respondent damages for constructive dismissal in the amount of $75,723.64, punitive damages of $100,000, and costs of $82,600.

The respondent, a Security Shift Supervisor at a casino, was suspended without pay after being investigated for alleged theft from the casino's lost and found facilities.

The Court of Appeal found that while the suspension itself was justified, the suspension without pay was not reasonably justified at the time it was imposed.

The court determined that the appropriate notice period was seven months, not the 17 months the trial judge had awarded.

The court also set aside the punitive damages award, finding that the trial judge failed to properly analyze whether compensatory damages were inadequate to achieve the objectives of retribution, deterrence, and condemnation.

A homeowner appealed a lower court decision that upheld a greenhouse operator's use of storing and grinding wood on-site as an accessory use under the local zoning bylaw.

The homeowner sought a declaration that the wood storage and grinding operations violated the zoning bylaw.

The Court of Appeal upheld the lower court's decision, finding that storing and grinding wood for heating greenhouses constitutes a natural and normal incident of operating a greenhouse and therefore qualifies as an accessory use under the bylaw definition.

The court rejected the homeowner's argument that a restrictive interpretation of "naturally and normally incidental" was required.

The appellants appealed from a Superior Court order that set aside a Master's decision permitting amendment of the Statement of Claim to substitute the Regional Municipality of York and Brennan Paving and Construction Ltd. for the originally named defendants based on misnomer.

The original claim arose from an accident allegedly caused by a pothole on McCowan Road.

The Court of Appeal dismissed the appeal, finding that the Master's inference that the substituted defendants would have known they were the intended defendants was not available on any reasonable view of the evidence.

The Notice of Claim and Statement of Claim, even when read together, were not capable of supporting such an inference without further inquiry.

The appellants appealed the dismissal of their claim for a mandatory order requiring the respondents to relocate the venting of a furnace and hot water heater from the side to the top of the respondents' house.

The appellants had claimed that emissions from the side venting were obnoxious, caused fumes and vapours that made one appellant ill, caused ice buildup on their walkway, and posed potential future danger to their siding.

The trial judge found that the appellants' complaints did not constitute a substantial interference with their enjoyment of property under the law of nuisance, as the expert evidence was insufficient, health claims were unsupported by medical evidence, ice buildup was insignificant, and future damage claims were speculative.

The appellants did not appeal the dismissal of their damages claim but only the dismissal of the mandatory order claim.

The Court of Appeal found no merit in the appeal.