Karen M. Weiler

The Crown appealed a sentencing decision declining to designate the respondent a dangerous offender and instead declaring him a long-term offender following a predicate sexual assault causing bodily harm and an extensive history of violent sexual offending.

The Court of Appeal held that the sentencing judge erred in law by failing to make the required finding of substantial risk under s. 753.1(1)(b) of the Criminal Code and by selectively relying on evidence of treatability while ignoring significant contrary evidence.

The court emphasized that public protection is the governing objective and that a reasonable possibility of eventual control in the community must rest on evidence amounting to more than hope or speculation.

The appeal was allowed, the long-term offender designation was set aside, and a new sentencing hearing was ordered.

The appellant appealed an order striking its Third Party Notice.

The Court of Appeal allowed the appeal, finding that while the pleading was deficient, it contained enough information to discern possible causes of action including unconscionability, breach of the Sale of Goods Act, and negligent misrepresentation.

The appellant was granted a further opportunity to properly articulate its claims.

However, due to the 'deplorable' state of the original pleading, the successful appellant was denied costs, and the respondent was awarded costs of the appeal fixed at $5,000.

The appellant's five-year-old child started a fire in their apartment building using a cigarette lighter.

The apartment owner and an adjoining tenant sued the appellant for negligence.

A jury found the appellant negligent for failing to supervise her children, specifically by failing to warn them of the danger of fire after a neighbour reported seeing them playing with matches the night before.

The appellant appealed the jury's verdict.

The Court of Appeal dismissed the appeal, finding it was open to the jury to accept the neighbour's evidence and conclude the appellant was negligent.

The appellant appealed a judgment of the Divisional Court regarding a matter under the Construction Lien Act.

The Court of Appeal dismissed the appeal, agreeing substantially with the reasons of the Divisional Court, and awarded costs of $8,000 to the respondent.

The appellants appealed an order of the motion judge regarding an oppression motion and a bank's application.

The Court of Appeal found that the motion judge erred by failing to address the issues and arguments he was required to decide, including the factors regarding the oppression remedy and whether the bank had valid security in priority to a judgment creditor claim.

The order was set aside and the issues were returned to the Commercial List for determination.

The appellant appealed his conviction and 12-month sentence for breach of probation.

The probation order required him to complete a seven-month residential treatment program.

He checked into the facility on the day of sentencing but left the next day and never returned.

The appellant argued he had the entire 18-month probation period to complete the program.

The Court of Appeal dismissed the appeal, finding the trial judge reasonably interpreted the condition as requiring immediate commencement, consistent with the joint submission at sentencing.

The 12-month sentence was upheld due to the appellant's history of disregarding court orders.

The appellant appealed his sentence for historical offences of gross indecency and indecent assault.

He had served 4.5 months in jail and sought a conditional sentence for the balance of a one-year term.

The Crown conceded that the ten-year weapons prohibition was illegal as the provision did not exist at the time of the offences.

The Court of Appeal allowed the appeal, setting aside the weapons prohibition and ordering the balance of the one-year sentence to be served as a conditional sentence, followed by 12 months of probation, noting the appellant's age, the historical nature of the offences, and his lack of related offences in the interim.

The appellant, a taxi driver, was convicted of trafficking heroin and conspiracy to traffic heroin alongside two co-accused.

He appealed his conviction, arguing that the trial judge erred by failing to give a Vetrovec warning regarding the testimony of his co-accused and by failing to properly explain the defence's position to the jury.

The Court of Appeal dismissed the appeal, finding that the trial judge properly exercised discretion in not giving the Vetrovec caution, as the co-accused were not prosecution witnesses and trial fairness considerations were implicated.

The Court also held that the jury charge was fair, balanced, and thorough in presenting the defence's theory that the appellant did not know what his passengers were doing.

The appellants, a stockbroker and two brokerage firms, appealed a trial judgment finding them liable for negligence and breach of contract resulting in the respondents' investment losses.

The trial judge found the broker engaged in unauthorized trading and the firms failed to supervise him or warn the clients.

The respondents cross-appealed the dismissal of their claims for loss of opportunity and punitive damages.

The Court of Appeal dismissed both the appeal and the cross-appeal, upholding the trial judge's findings on liability, apportionment, mitigation, and costs.

The appellant appealed the dismissal of his claim against a discount brokerage firm for damages based on misrepresentation and negligence.

The appellant suffered significant losses after purchasing shares on margin and facing margin calls when the share value dropped.

He argued the respondent breached a duty to warn him about the risks of margin accounts.

The Court of Appeal dismissed the appeal, upholding the trial judge's finding that the respondent satisfied its duty to warn through the various documents provided to the appellant before he purchased the shares.

The appellant landlord appealed a trial judgment awarding the respondent tenant damages for rent paid and the return of a mistaken payment.

The tenant had agreed to terminate its commercial lease early but continued paying rent until the termination date.

Before that date, the landlord leased the premises to a new tenant.

The trial judge found this constituted an eviction, entitling the tenant to the return of rent paid for the overlapping period.

The trial judge also ordered the return of a mistaken payment, rejecting the landlord's claim for set-off as the alleged tax liabilities had not crystallized.

The Court of Appeal agreed with the trial judge on both issues and dismissed the appeal.

The appellant municipality appealed the trial judge's dismissal of its third-party claim for contribution and indemnity against a subdivision developer following a judgment for a homeowner whose basement flooded.

The trial judge found the developer negligent in constructing an asphalt pad without surface water management, but held the municipality's failure to respond reasonably was the proximate cause.

The Court of Appeal allowed the appeal, holding that the trial judge erred by failing to apportion negligence.

The Court apportioned negligence equally between the municipality and the developer, ordering the developer to indemnify the municipality for 50% of the damages and costs.

The appellant appealed his conviction and sentence.

The Court of Appeal granted leave to appeal the sentence but dismissed the appeal, finding that the trial judge was entirely justified in imposing the sentence given the gravity of the breaches, the appellant's prior record, and the need for the protection of society.

The appellants sought to lift a stay of proceedings under the CCAA to terminate long-term gas supply contracts with the insolvent respondent.

They argued the contracts were 'eligible financial contracts' (EFCs) under s. 11.1(1) of the CCAA, which would exempt them from the stay.

The Court of Appeal upheld the motion judge's dismissal, finding the contracts lacked the hallmarks of financial risk management required to be EFCs.

Furthermore, the court held that even if the contracts were EFCs, the appellants could not terminate them because the contract terms only allowed termination for non-payment, and the respondent was not in default.

The appellant was convicted of possession of crack cocaine for the purpose of trafficking.

He appealed his conviction, arguing the trial judge erred in instructing the jury that evidence of his demeanour upon arrest had no value in proving guilt or innocence.

The Court of Appeal agreed, finding the demeanour evidence was reasonably capable of supporting an inference favourable to the accused and should not have been taken away from the jury.

The appeal was allowed and a new trial ordered.

The appellant appealed her conviction for uttering a threat to cause death or bodily harm, arguing that the Crown failed to prove her identity as the caller and that the trial judge reversed the burden of proof.

The Court of Appeal dismissed the appeal, finding it was open to the trial judge to rely on the complainant's voice recognition evidence to establish identity.

The Court also found no reversal of the burden of proof and that the trial judge properly applied the reasonable doubt standard.

The appellant appealed his convictions for production of marijuana, possession for the purpose of trafficking, mischief, and theft of electricity, as well as his 90-day intermittent sentence.

He argued the trial judge erred in finding he had control over the prohibited substance.

The Court of Appeal dismissed the conviction appeal, finding it was open to the trial judge to infer control given the obviousness of the grow operation and the appellant's 37-minute stay in the residence.

The sentence appeal was also dismissed, as the sentence was not demonstrably unfit given the size and sophistication of the operation.

The appellant appealed her conviction for attempting to obstruct justice following a guilty plea.

She sought to introduce fresh evidence demonstrating that she honestly believed the information she asked a social worker to provide to the police was true, and that her trial counsel failed to identify and investigate this defence of honest mistake of fact.

The Court of Appeal admitted the fresh evidence, finding that trial counsel's failure to investigate the defence resulted in an uninformed guilty plea.

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

The appellant, a unionized employee, sued his former employer and union executive for allegedly misrepresenting the terms of an early retirement agreement.

The employer and union successfully moved to dismiss the action for lack of jurisdiction.

On appeal, the Court of Appeal affirmed the dismissal, holding that the dispute arose from the interpretation and application of the collective agreement and the union's duty of fair representation.

Under the Weber principle and the Labour Relations Act, such disputes fall within the exclusive jurisdiction of an arbitrator or the labour relations board, not the courts.

The appellant brought a motion for summary judgment to enforce its security in convertible subordinated debentures against the respondent Brookfield, a wholly owned subsidiary of the issuer BCED.

The motion was dismissed, and the appellant appealed.

The Court of Appeal upheld the motion judge's interpretation of the trust indenture, finding that the term 'Company' in Article VII, section 7.01 referred only to BCED and its successors, not its wholly owned subsidiaries.

The appeal was dismissed.