Karen M. Weiler

The appellant appealed his conviction for aggravated assault, arguing the trial judge erred in instructing the jury on self-defence, failing to charge on s. 37 of the Criminal Code, and improperly instructing on the burden of proof under the W(D) framework.

The Court of Appeal dismissed the appeal, finding the trial judge sufficiently linked prior assaults to the appellant's apprehension of harm, correctly omitted s. 37 as it would not have assisted the defence, and properly conveyed the burden of proof when the charge was read as a whole.

The appellant appealed his conviction for abduction of a child under 14 contrary to s. 283 of the Criminal Code.

He argued the trial judge failed to adequately weigh the complainant's inconsistent evidence, reversed the burden of proof, and erred in applying the defence of consent.

The Court of Appeal dismissed the appeal, finding the trial judge was entitled to accept the complainant's explanation for inconsistencies, properly applied the burden of proof, and correctly concluded there was no air of reality to the defence of lack of intent to deprive.

The appellant was convicted of sexual touching and sexual assault against his 13-year-old sister-in-law and sentenced to 10 months' imprisonment followed by three years' probation.

On appeal, the appellant argued the trial judge erred by considering his youth record for sexual assault, contrary to s. 45 of the Young Offenders Act.

The Court of Appeal agreed this was an error in principle.

However, upon reassessing the sentence, the Court found that actual imprisonment remained the most appropriate disposition given the breach of trust, the vulnerability of the victim, and the need for general deterrence and denunciation.

The appeal was dismissed.

The appellants appealed an order finding that their original statement of claim did not cover the claims in issue and that there was no proceeding calling into question an interest in the claims prior to an amendment.

The Court of Appeal agreed with the motion judge on these two issues.

However, the appellants raised a new argument regarding a curative provision under s. 136.

Because the respondents did not have the opportunity to present evidence on whether a substantial wrong or injustice had been occasioned, the Court of Appeal remitted the s. 136 issue to the motion judge and dismissed the appeal on the first two issues.

The appellant appealed the portion of his sentence requiring him to make monthly payments of $150 towards a $5,400 restitution order as a condition of his conditional sentence and probation for fraud.

He argued the order was unduly harsh, violated parity, and he could not afford it.

The Court of Appeal dismissed the appeal, finding the sentence fit, the restitution modest compared to the loss, and noting the appellant received substantially more money from the fraud than his co-accused.

The Court advised that if the appellant is currently unable to make payments, he should apply to vary the terms of his conditional sentence and probation.

The appellant appealed an order of the Superior Court of Justice.

The Court of Appeal determined that because a statement of defence had not yet been delivered and the time for delivery had not expired, the order appealed from could only have been interlocutory, not final.

Consequently, the Court of Appeal lacked jurisdiction to hear the appeal.

The appellant appealed a trial judgment that found him 50% contributorily negligent for his loss, despite also finding the respondent liable for negligent misrepresentation regarding a mortgage life insurance policy.

The appellant argued that a finding of negligent misrepresentation, which requires reasonable reliance, precludes a finding of contributory negligence.

The Court of Appeal held that the two findings can logically co-exist at law, as the focus of each analysis is different.

However, on the facts of this case, the trial judge's finding that the appellant acted unreasonably in failing to inquire about the insurance term was inconsistent with the reasonable reliance required for negligent misrepresentation.

The appeal was dismissed.

The appellant appealed a trial judgment regarding a contract dispute over manufacturing work.

The Court of Appeal found that the trial judge's findings of fact were inconsistent with his legal conclusions.

Specifically, the trial judge found that the respondent failed to complete work in a timely manner, which constituted a breach of contract, entitling the appellant to damages subject to mitigation.

The Court of Appeal varied the trial judgment to award the appellant damages for the cost of new tools and laser cut parts, while upholding the award to the respondent for compression costs.

The appellant appealed a summary judgment granted in favour of the respondent regarding liability for payment of bills.

The Court of Appeal upheld the summary judgment, finding no error in the motions judge's conclusion that the parties intended for the respondent to look to the appellant for payment, rather than the Titan group.

The court also found no basis to interfere with the costs award.

The appeal was dismissed with costs fixed at $3,000.

The appellant appealed his conviction, arguing that his section 10 Charter rights were violated when he was questioned by police on the street.

The Court of Appeal dismissed the appeal, upholding the trial judge's finding that the appellant was not detained during the interaction, and therefore his Charter rights were not engaged.

The sentence appeal was dismissed as abandoned.

The appellant appealed a summary conviction appeal court decision regarding the validity of an 'alert' demand.

The appellant argued that the officer making the demand must know or believe the person was operating or in care and control of the vehicle.

The Court of Appeal dismissed the appeal, affirming prior authorities that such knowledge or belief is not required for an officer to make an 'alert' demand.

The appellant appealed his conviction and sentence.

He argued that the arresting officer lacked reasonable grounds for arrest because the informant did not reveal the source of their information.

The Court of Appeal dismissed the conviction appeal, holding that the trial judge correctly assessed the totality of the circumstances and that the informant's source is only one factor in that analysis.

The sentence appeal was also dismissed, as the imposition of consecutive sentences totaling 14 months was fit and revealed no error in principle.

The appellant appealed his convictions and sentence for historical sexual offences against his two step-daughters.

He argued the trial judge erred by admitting the complainants' testimony as similar fact evidence without prior notice and by failing to specifically instruct the jury on collusion.

The Court of Appeal dismissed the conviction appeal, finding no prejudice from the lack of notice and concluding the jury was adequately alive to the defence theory of collusion.

The appellant's sentence appeal seeking a conditional sentence was dismissed.

The Crown's cross-appeal was granted, varying the sentence to make one of the indecent assault terms consecutive.

The appellant appealed his robbery conviction on three grounds, primarily arguing that the trial judge's jury charge on reasonable doubt was inadequate.

The Court of Appeal dismissed the appeal, finding that although the charge did not strictly comply with Lifchus, the jury would not have misunderstood the standard of proof given the W.(D.) instruction on the alibi defence.

The court also found no merit to the argument that cross-examination was improperly curtailed.

The appellants appealed a decision regarding whether their trial should be heard by a judge rather than a justice of the peace.

The Court of Appeal dismissed the appeal, finding that while the statute recognizes complex cases may be heard by a judge, it does not require it, making the decision a matter of discretion.

The court found no reviewable error in the lower courts' decisions.

The appellant, a disbarred lawyer, appealed an injunction restraining him from the unauthorized practice of law.

The Law Society alleged he acted as a lawyer by advising a landlord on a commercial lease renewal and advising property owners in a boundary line dispute.

The Court of Appeal dismissed the appeal, finding that the appellant's conduct went beyond mere negotiation and involved giving legal advice on questions of law, which constitutes practising law contrary to s. 50(1) of the Law Society Act.

The appellants appealed a trial judgment finding them liable for various fees withheld from a deceased partner's estate.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the appellants breached their fiduciary duties, failed to make full disclosure, and were not entitled to guarantee fees, management fees, or legal retainers on a quantum meruit basis or otherwise.

The court affirmed that under the partnership agreement and the Partnerships Act, management fees could not be varied without the consent of all partners, which the estate had not provided.

The plaintiff brought a civil action against the Crown and police for malicious prosecution, abuse of process, conspiracy to injure, and intentional infliction of harm after his sexual assault conviction was overturned based on new DNA evidence.

The Crown successfully moved to strike the claims for abuse of process, conspiracy, and intentional infliction of harm on the basis that malicious prosecution is the only tort available against a prosecutor.

The Court of Appeal allowed the appeal, holding that the jurisprudence is not fully settled on whether the four elements of malicious prosecution must always be proven in every civil action against a prosecutor, and therefore it was inappropriate to strike the claims at this early stage.

The corporate defendant was charged under the Occupational Health and Safety Act following an investigation into asbestos exposure.

The trial judge granted a stay of proceedings, finding that the Crown's unexplained pre-charge delay amounted to an abuse of process, which was upheld on initial appeal.

The Court of Appeal allowed the Crown's appeal, holding that the lower courts erred in inferring prejudice to the corporate accused and improperly placed a burden on the Crown to explain pre-charge delay absent bad faith, effectively creating a judicial limitation period.

The defendants appealed an order consolidating two proposed class actions and substituting a new representative plaintiff.

The Court of Appeal quashed the appeal, holding that the order was interlocutory because it did not dispose of any substantive rights between the parties.

As an interlocutory order, the appeal properly lies to the Divisional Court with leave, not to the Court of Appeal.