Jean L. MacFarland

The appellant father appealed an order determining his access to the children between 4:00 and 6:00 p.m. on 'exceptional days' when they were not in school, an issue left open by minutes of settlement.

The Court of Appeal found that the trial judge committed no error in principle in determining the issue and declining to re-open it.

The appeal was dismissed with costs awarded to the respondent.

The appellants appealed an order dismissing their claim against subsequent purchasers for arrears of common expenses accumulated during the occupancy of a mortgagee in possession.

The Court of Appeal found no error in the motions judge's conclusion that the discharge of the appellants' liens provided a complete answer to the claim.

The appeal was dismissed, subject to a minor amendment to the judgment to clarify that only specific paragraphs of the Statement of Defence and counter-claim were dismissed.

The appellant was convicted of importing cocaine after it was found in her luggage at Pearson Airport.

She appealed, arguing the trial judge made errors in the jury charge.

The Court of Appeal found two errors: the trial judge improperly instructed the jury that they could only draw inferences from evidence they accepted as fact, which shifted the burden of proof, and improperly instructed them that there was no evidence the cocaine was part of someone else's project, which undermined the core of the defence.

The appeal was allowed, the conviction set aside, and a new trial ordered.

The appellant was convicted of assault after striking a store employee who confronted him for shoplifting.

He appealed to the Summary Conviction Appeal Court, seeking to introduce fresh evidence that he was suffering from diabetic shock during the trial, which impaired his ability to participate.

The appeal judge dismissed the application and the appeal.

On further appeal to the Court of Appeal, the appellant argued the appeal judge erred in rejecting the fresh evidence and provided insufficient reasons.

The Court of Appeal dismissed the appeal, finding no error in the fresh evidence ruling and concluding the reasons were sufficient for appellate review.

The Court also declined to hear new grounds not raised below.

The appellant municipality sought to replace its full-time firefighters with volunteers and passed a by-law purporting to terminate the collective agreement.

The Court of Appeal upheld the decisions of the arbitrator and Divisional Court, finding that the collective agreement continued in effect beyond its expiry date due to the freeze provision in the Fire Protection and Fire Prevention Act, 1997.

The court held that the municipality could not unilaterally terminate the agreement, as the Act requires the consent of the Ontario Labour Relations Board on joint application, rendering the by-law of no effect.

The appellant appealed from an order of the Summary Conviction Appeal Court refusing to extend the time to appeal.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the exercise of discretion, as there was no explanation for the delay or evidence of an intention to appeal within the required time.

The Court also rejected arguments that the appellant was denied the right to speak before sentencing and that he was punished twice for the same offence contrary to s. 11(h) of the Charter.

The appellant appealed his conviction and sentence.

The Court of Appeal found that the sentencing judge's reasons reflected a 2-for-1 credit for pre-trial custody, resulting in a global sentence of 19 months, which the Crown acknowledged was outside the appropriate range.

The Court allowed the sentence appeal, reducing the sentence to time served (13 months).

The appellant failed to appear at the hearing of the appeal.

Consequently, the Court of Appeal for Ontario dismissed the appeal as abandoned.

The appellant appealed a conviction for sexual assault arising from prolonged sexual abuse of a child over several years and sought leave to appeal a three-year custodial sentence.

The court held that the trial judge's credibility analysis, while containing a minor error on one point, was substantially grounded in the evidentiary record and did not reverse the burden of proof or apply an unfairly different level of scrutiny to defence evidence.

The court distinguished authority on improper credibility reasoning and found the trial judge had carefully considered inconsistencies in the complainant's evidence in the context of the record as a whole.

On sentence, the court held that the sentencing judge properly used prior authority as guidance, recognized factual differences, and imposed a fit sentence given the position of trust and prolonged escalating abuse.

The Crown appealed a stay of proceedings granted by the trial judge based on unreasonable delay under s. 11(b) of the Charter.

The accused, a police officer, was charged with serious offences against his spouse.

The trial judge found the 19-month delay in the Ontario Court of Justice exceeded guidelines.

The Court of Appeal held the trial judge erred by including the neutral intake period in the systemic delay calculation, isolating the delay in the Ontario Court of Justice from the total time, and mischaracterizing inherent time requirements as systemic delay.

The total 23-month delay was not unreasonable given the serious charges and scheduling complexities.

The appeal was allowed, the stay set aside, and a new trial ordered.

The appellant was convicted of multiple offences, including possession of a loaded prohibited firearm and possession of marijuana for the purpose of trafficking, following a traffic stop.

He appealed his convictions, arguing the trial judge failed to give adequate reasons, improperly rejected allegations of racial profiling, and erred in evidentiary rulings.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's reasons adequate and no evidence of racial profiling.

However, the Court allowed the sentence appeal, reducing the two-year sentence to two years less 20 days to preserve the appellant's right to appeal his deportation under the Immigration and Refugee Protection Act.

The appellant appealed his conviction for criminal harassment.

He argued that evidence of his criminal record should not have been admitted, that the trial judge erred in instructing the jury on 'repeatedly communicated' instead of 'engaged in conduct', and that the reasonable doubt instruction was flawed.

The Court of Appeal dismissed the appeal, finding that the criminal record evidence was relevant to the complainant's reasonable fear, that communicating constitutes conduct, and that the jury was properly instructed on reasonable doubt.

The 70-year-old appellant, a career criminal, pleaded guilty to robbery after threatening bank staff with a fake bomb.

The trial judge imposed a life sentence primarily to give the parole board flexibility in managing his release.

On appeal, the Court of Appeal found the trial judge erred by imposing a maximum sentence without considering a fixed penitentiary term that would achieve the same goals of specific deterrence and public protection.

The appeal was allowed, and the life sentence was substituted with a 16-year term with parole eligibility delayed for seven years.

The appellants, private couriers providing outbound international mail services, appealed a motion judge's decision interpreting s. 14 of the Canada Post Corporation Act.

The motion judge held that Canada Post's exclusive privilege of 'collecting, transmitting and delivering letters' applies to any one or more of those activities within Canada, including for letters destined abroad.

The Court of Appeal dismissed the appeal, finding that the French version of the statute clearly granted an exclusive privilege for each activity independently.

The Court rejected the appellants' argument that the activities constituted a single indivisible process, noting that such an interpretation would conflict with other provisions of the Act.

The appellant appealed his convictions for choking, assault causing bodily harm, uttering a death threat, forcible confinement, and sexual assault, as well as his sentence.

He argued the trial judge misdirected the jury regarding the complainant's delayed disclosure of the sexual assaults, the Crown's failure to call the complainant's daughter as a witness, and the rejection of his Corbett application.

The Court of Appeal found no reversible errors in the jury instructions, noting that the trial judge properly warned against stereotypical assumptions regarding delayed disclosure.

The appeal from conviction was dismissed, and leave to appeal the sentence was denied.

The plaintiff brokerage firm sued a competing firm and several former employees for breach of fiduciary duty, breach of confidence, and wrongful interference with economic interests after the defendants aggressively recruited the plaintiff's employees.

The defendants sought to plead the plaintiff's own past recruiting practices as a defence.

The Court of Appeal held that the defendants could not rely on the plaintiff's past practices as a defence to the claim for equitable relief under the clean hands doctrine, as there was no direct connection to the transaction at issue.

However, the defendants were permitted to plead the plaintiff's recruiting practices as a defence to the claim for punitive damages, as the plaintiff's similar conduct could diminish the outrage associated with the defendants' actions.

The appellants, construction lien claimants, appealed a decision holding that the proceeds of a court-approved asset sale by a company under CCAA protection did not constitute trust funds under ss. 7 and 9 of the Construction Lien Act.

The Court of Appeal dismissed the appeals, finding that the statutory prerequisites for a trust were not met, as the sale proceeds were not 'received by' or 'in the hands of' the owner, but were instead paid to a court-appointed monitor and stood in substitution for the company's fully secured assets.

The appellant franchisors appealed a trial judgment granting the respondent franchisees rescission of their franchise agreement and damages under the Arthur Wishart Act.

The franchisors argued they had substantively complied with disclosure requirements by providing information piecemeal over several months.

The Court of Appeal dismissed the appeal, holding that the Act strictly requires disclosure in a single document delivered at one time.

The Court also found that the franchisees did not affirm the contract by continuing to operate the business briefly to mitigate losses after serving the notice of rescission, as statutory rescission operates differently from equitable rescission.

The appellant franchisor failed to provide the required disclosure document to the respondent franchisee under the Arthur Wishart Act.

Days before the two-year limitation period expired, the franchisee rescinded the agreement and immediately set up a competing business servicing the same customers.

The application judge upheld the rescission and dismissed the franchisor's counter-application for an accounting and injunctive relief.

On appeal, the Court of Appeal held that while the franchisee has an absolute right to rescission under s. 6(2), the franchisor retains the right under s. 9 to pursue an action for the franchisee's post-rescission conduct.

The Court set aside the dismissal of the franchisor's application and converted it into an action due to material facts in dispute.

The Crown appealed the disposition of a conditional discharge imposed on a young person.

The Court of Appeal noted it did not agree with all of the trial judge's reasons or disposition, but refused leave to appeal the sentence because a year had passed and the young person had complied with all terms of the conditional discharge.