Karen M. Weiler

The appellant sought leave to appeal sentence following a conviction for aggravated assault causing catastrophic and permanent brain injury to the victim.

The Court of Appeal held that the sentencing judge did not err by placing significant weight on the brutal nature of the attack, the callous abandonment of the victim without medical assistance, and the devastating consequences of the assault.

The court found that the sentencing judge also properly considered mitigating background factors, remorse, prospects of rehabilitation, and pre-trial custody.

A 9-year penitentiary sentence was held to be within the appropriate range and the sentence appeal was dismissed.

The appellant was convicted of attempting to obstruct justice.

The Crown alleged in the information that the appellant directed witnesses to make a false statement, but at trial argued that knowledge of falsity was irrelevant if coercion was used.

The trial judge convicted based on coercion without finding the statements were false or the appellant knew they were false.

The Court of Appeal held that the Crown was bound by the particulars in the information, which required proving the appellant knew the statements were false.

Since the Crown conceded it could not prove this knowledge, the conviction was quashed and an acquittal entered.

The appellant appealed his convictions and sentences for sexually assaulting his three young granddaughters.

The Crown's case rested entirely on the evidence of the three complainants.

The appellant argued that the trial judge erred by failing to specifically instruct the jury that a finding of collusion among the complainants would diminish their credibility, and by improperly addressing Crown counsel's remarks regarding the absence of medical evidence.

The Court of Appeal dismissed the conviction appeal, finding no reversible error in the jury instructions.

The court also dismissed the sentence appeal, upholding the total sentence of 8 years' imprisonment given the egregious breach of trust, the severity of the assaults, and the appellant's prior conviction for a similar offence.

The appellant, TTC Insurance Company Limited, appealed a decision finding that payments made by the Toronto Transit Commission (TTC) to fulfill an indemnity obligation to the appellant were 'direct earned premiums' for the purpose of calculating the appellant's share of Facility Association costs.

The Court of Appeal dismissed the appeal, holding that the indemnity payments were a direct cost to TTC for obtaining required insurance coverage and fell within the definition of 'premium' under the Insurance Act.

The Vernon companies hired Headline, an auctioneering firm, to sell assets.

Headline breached the agreement by failing to deposit over $100,000 into a joint account and breached its fiduciary duty by attempting to secretly sell assets to its own companies.

The Vernon companies subsequently refused to allow Headline to sell the remaining assets.

The Court of Appeal held that Headline's substantial breach of contract and fiduciary duty excused the Vernon companies from further performance.

The Court restored the trial judge's award of $5,000 in punitive damages against Headline for its high-handed and arbitrary conduct.

The appellant appealed a trial judgment awarding the respondent commissions for breach of contract.

The respondent had entered into an 11-month contract with the appellant to provide customs consulting services.

The trial judge found that the contract entitled the respondent to commissions for clients he acquired, even after the contract expired.

The Court of Appeal dismissed the appeal, finding no reversible error in the trial judge's interpretation that the agreement provided for commissions beyond the fixed term.

A dissenting opinion argued that commissions should only be payable for work done during the contractual term.

The appellants, two young persons charged with manslaughter and robbery, appealed orders transferring their proceedings to ordinary court.

The youth court had concluded that the first appellant could not be rehabilitated within the three-year maximum youth disposition, and that while the second appellant could be rehabilitated, the gravity of the offence required transfer.

The Court of Appeal allowed both appeals, finding that the youth court placed undue emphasis on speculative psychological evidence for the first appellant and misapplied the statutory test for the second appellant by relying on general deterrence.

The Court ordered both youths to be tried in youth court.

Apotex appealed a Divisional Court decision upholding the provincial government's decision to list its generic drug, Apo-Sertraline, on the provincial Formulary with a limited use designation.

The limitation restricted its interchangeability with Pfizer's Zoloft to the treatment of depression, reflecting federal patent protections on other uses.

Apotex argued the province exceeded its jurisdiction under the Drug Interchangeability and Dispensing Fee Act by considering patent restrictions rather than just therapeutic equivalence.

The Court of Appeal dismissed the appeal, finding the province had clear jurisdiction to ensure the Formulary only lists drugs that are legal to sell under federal law.

The appellants were convicted of kidnapping and forcible confinement after holding a family hostage for 22 days to extract a ransom.

They appealed, arguing they acted under duress from the 'Snakeheads', a criminal organization that smuggled them into Canada.

The Court of Appeal dismissed the conviction appeals, finding no air of reality to the duress defence because the appellants voluntarily associated with the criminal organization and had multiple safe avenues of escape.

However, the sentence appeals were allowed, reducing the life sentences for kidnapping to 14 years.

The appellant appealed a trial judgment dismissing her defamation action against a newspaper and its reporters.

The Court of Appeal upheld the trial judge's finding that a reasonable reader would interpret the article as reporting complaints rather than asserting the truth of the allegations.

The appeal was dismissed.

The appellant appealed his conviction and sentence for sexual assault, arguing the trial judge erred in her jury charge regarding post-offence conduct and expert evidence concerning a drug associated with amnesia.

The Court of Appeal dismissed the appeal, noting the trial was brief, the factual scenario was easy to understand, and defence counsel's failure to object to the charge was significant.

The court found no merit in the other grounds raised and denied leave to appeal the sentence.

The respondents were entitled to costs of the appeal on a party and party basis.

The only outstanding issue was whether the Attorney General should be awarded costs of the cross-appeal on the section 15 issue, which the respondents had raised and lost.

The Court of Appeal awarded the respondents costs of the appeal against the Attorney General on a party and party basis, and awarded the Attorney General costs of the cross-appeal against the respondents on a party and party basis.

The Crown appealed a conditional sentence imposed after a guilty plea to indecent assault arising from historical sexual abuse of a child by an adult in a position of trust.

The Court of Appeal held that a community-based sentence could not satisfy denunciation and general deterrence for repeated and escalating sexual assaults of a vulnerable minor.

The sentencing judge was found to have overemphasized the offender's remorse and the delay-related personal consequences while giving insufficient weight to the gravity of the abuse and its lasting harm to the victim.

Leave to appeal was granted and the sentence was increased to twenty months' custody, with credit for time already served on the conditional sentence.

The respondent employer was charged under the Occupational Health and Safety Act after a worker was fatally injured by a reversing dump truck while acting as both a signaller and a spreader operator.

The trial judge directed a verdict of acquittal, ruling that the Crown could not prove a failure to provide a signaller under section 104 of the Regulation by showing the signaller failed to perform the duties prescribed by section 106.

The summary conviction appeal court dismissed the Crown's appeal.

The Court of Appeal allowed the appeal, holding that sections 104 and 106 must be read together to promote the public safety purpose of the legislation, and ordered a new trial.

The appellant appealed two conditions of his 15-month conditional sentence for sexual assault.

The Court of Appeal struck the condition requiring him to write a letter of apology to the victim.

The court held that a court-mandated expression of remorse is subjective, fruitless, and diminishes the mitigating effect of genuine remorse.

The court also varied a curfew condition on consent to allow the appellant to work and earn a livelihood.

The appeal was allowed and the conditions were varied accordingly.

The plaintiff bank mistakenly wired a duplicate payment of $60,101 USD to the corporate defendant's account due to a clerical error.

The defendants refused to return the funds, arguing the bank's client owed them money.

The motion judge granted summary judgment for the bank.

On appeal, the Court of Appeal upheld the judgment against the corporate defendant, finding it was against conscience to retain money paid under a mistake of fact.

However, the appeal was allowed with respect to the individual defendant, as there was no basis for personal liability.

The appellant was charged with extortion, conspiracy to commit extortion, and threatening death.

At the preliminary inquiry, the judge discharged the appellant by drawing an inference that he was an innocent dupe who merely facilitated a meeting without knowing its purpose.

The Crown successfully applied for certiorari to quash the discharge.

On appeal, the Court of Appeal affirmed the motions judge's decision, holding that the preliminary hearing judge committed jurisdictional error by weighing competing inferences, which is the province of the trier of fact at trial.

The appellant appealed his convictions for indecent assault and gross indecency, arguing errors in the jury charge, improper cross-examination by the Crown, and the improper admission of expert evidence regarding delayed disclosure.

The Court of Appeal agreed, finding that the trial judge departed from the Lifchus standard, failed to adequately relate the defence's position, and failed to caution against propensity reasoning.

The Court also found the Crown's cross-examination improper and the expert evidence inadmissible under the necessity requirement.

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

The respondents, operators of adult entertainment parlours, were charged with keeping a common bawdy-house contrary to s. 210 of the Criminal Code.

At trial, the charges were stayed on the basis that the terms 'acts of indecency' and 'prostitution' were unconstitutionally vague under s. 7 of the Charter.

The Crown appealed.

The Court of Appeal allowed the appeals, holding that it was bound by stare decisis, as previous Supreme Court of Canada and Court of Appeal decisions had already established that the community standard of tolerance test provides an intelligible standard and that the terms are not impermissibly vague.

The stays were set aside and the matters remitted for trial.

The appellants appealed a trial judgment, arguing the trial judge erred in concluding they waived their right to sue for damages arising from a secret $50,000 payment because the doctrine of waiver was not pleaded.

The Court of Appeal dismissed the appeal, noting the trial judge alerted the appellants to the issue prior to argument, no objection was raised, and the appellants tolerated the circumstances for three years.

The court found no substantial wrong or miscarriage of justice.