Karen M. Weiler

The plaintiffs in two class actions moved to quash appeals brought by the defendants from an order declaring that the plaintiffs shared a common interest with the Receiver of YBM, and that the Receiver could produce a report to them without waiving privilege.

The Court of Appeal held that the order was procedural and interlocutory, as it did not resolve any substantive issue in the proceedings.

The court rejected the argument that the order was final simply because it involved a non-party (the Receiver), distinguishing prior case law.

The motions to quash were granted.

The appellant appealed his conviction for aggravated assault and his sentence of 6.5 years' imprisonment (including pre-sentence credit).

He argued the trial judge erred in instructing the jury on s. 41 of the Criminal Code and in allowing the Crown to cross-examine a witness on a prior statement under s. 9(2) of the Canada Evidence Act.

The Court of Appeal dismissed the conviction appeal, finding the jury instructions benefited the appellant and the jury understood the limited use of the prior statement.

However, the sentence appeal was allowed, as the jump to a 6.5-year sentence was an error in principle given the appellant's record.

The sentence was reduced to 3 years (5 years total with 2 years' credit).

The appellant was convicted of kidnapping and sexual assault following a second jury trial.

The Crown's case relied entirely on the eyewitness identification of the two teenage complainants.

The appellant appealed, arguing the verdict was unreasonable.

The Court of Appeal allowed the appeal and entered acquittals, finding significant frailties in the identification evidence, including a mishandled photo lineup, discrepancies in descriptions, and potential contamination of testimony.

Furthermore, the timeline of events described by the complainants was irreconcilable, there was no forensic evidence linking the appellant to the crimes, and the appellant presented a corroborated alibi.

The Court concluded that no properly instructed jury, acting judicially, could have reasonably convicted the appellant on the totality of the evidence.

The trustees of a public unit trust unilaterally amended the Declaration of Trust to create a unitholder rights plan in response to a hostile takeover bid by the respondent.

The respondent, who owned 20.3% of the units, challenged the amendment.

The application judge declared the rights plan and the amendment null and void, finding they contravened the anti-dilution proviso of the Declaration.

The Court of Appeal dismissed the trustees' appeal, agreeing that the amendment violated the anti-dilution clause and required a 75% unitholder vote.

The appellant appealed an order finding her in contempt of court, striking her pleadings, declaring no child support arrears, and awarding costs to the respondent.

The appellant conceded the contempt finding and the striking of her spousal support and property claims, but argued her child support claim should not have been struck as it was in the children's best interests.

The Court of Appeal dismissed the appeal, noting the appellant had not purged her contempt and showed disdain for court orders.

However, the Court noted that the children could make a direct claim for support and directed that a copy of the order be served on the Children's Lawyer to potentially act as litigation guardian.

The insured sought a declaration that a full and final release was null and void due to lack of capacity, undue influence, and the insurer's failure to comply with statutory notice requirements.

The motion judge dealt with the capacity and undue influence issues on a Rule 21 motion, which the Court of Appeal found was an error as those issues depended on disputed facts.

However, on the cross-appeal, the insurer conceded based on recent jurisprudence that its failure to comply with the statutory requirements rendered the release null and void.

The cross-appeal was allowed and the appeal was dismissed as moot.

The appellants appealed the trial judge's calculation of prejudgment interest on the respondent's past loss of income and the deduction of no-fault benefits following a jury verdict.

The Court of Appeal found no error in the trial judge's determination that past loss of income began to accrue immediately following the accident, and upheld her treatment of the no-fault benefits deduction.

The appeal was dismissed.

The appellant challenged a municipality's sale of surplus land, arguing the sale violated a procedural by-law because the required property appraisal was obtained after public notice and tenders were received.

The trial judge upheld the sale, finding the sequence of procedures did not matter as long as all took place.

The Court of Appeal agreed, dismissing the appeal.

The Court also dismissed the argument that the appraisal was flawed for excluding chattels, and granted the municipality's cross-appeal for mortgage interest up to the closing date.

The appellant pleaded guilty to robbery and other offences and was sentenced to 30 months' imprisonment.

The Crown successfully applied for an order under s. 487.052 of the Criminal Code authorizing the taking of a bodily sample for the national DNA data bank.

The appellant appealed, arguing that the standard of 'the best interests of the administration of justice' in s. 487.052 is unconstitutionally vague and overbroad unless interpreted to require reasonable and probable grounds to believe the offender will commit a future offence.

The Court of Appeal dismissed the appeal, holding that the search warrant standard of reasonable and probable grounds is not required for DNA data bank orders, as the context, purposes, and privacy expectations differ significantly.

The court found the trial judge did not err in balancing the appellant's privacy interests against his criminal record and the circumstances of the offence.

The appellant sought solicitor-and-client costs pursuant to Rule 49.10 based on an offer to settle.

The respondent argued the offer was ambiguous regarding costs and incapable of acceptance, and that the appellant failed to obtain the relief sought.

The Court of Appeal applied recent jurisprudence holding that uncertainty in an offer is only relevant to whether the party met its burden of proof under Rule 49.10.

The court found the appellant met its burden and awarded party-and-party costs to the date of the offer and solicitor-and-client costs thereafter.

The plaintiffs brought actions for damages arising from a motor vehicle accident against the driver, owner, lessee, and two taverns (unprotected defendants).

One of the taverns brought a motion to determine whether, as an unprotected defendant, it was liable for the whole amount of the statutory deductibles applied to protected defendants under the Insurance Act.

The trial judge held that unprotected defendants were responsible for 100 percent of the deductibles.

The Court of Appeal allowed the appeal, holding that the Insurance Act restricts the application of the Negligence Act, and unprotected defendants are only liable for the amount by which their contribution under the Negligence Act exceeds their joint and several liability with protected defendants.

The appellant appealed his dangerous offender designation and indeterminate sentence, arguing the trial judge erred in admitting evidence of an escape plot and relying on it for psychiatric assessments.

The appellant also sought to introduce fresh evidence of his progress in prison to be designated a long-term offender instead.

The Court of Appeal dismissed the appeal, finding the escape plot evidence was admissible and relevant to the experts' risk assessments.

Furthermore, the fresh evidence did not establish a reasonable possibility of eventual control of the risk in the community, precluding a long-term offender designation.

The appellant appealed convictions arising from a fatal motor vehicle accident, arguing that as a self-represented accused requiring an interpreter he did not receive a fair trial.

The court held that the trial judge had a duty to provide meaningful procedural guidance and to inquire into an apparent Charter issue concerning hospital blood samples and medical records obtained without a Criminal Code demand or properly supported warrant.

Given the possible infringement of s. 8 and the need to consider exclusion under s. 24(2), together with broader failures to assist the accused and deficiencies in the treatment of the evidence, the fairness of the trial was compromised.

The convictions on the impaired driving charges were set aside and a new trial was ordered.

The appellants sought to enforce a Florida default judgment for damages arising from a real estate transaction against the respondents in Ontario.

The trial judge dismissed the action, finding the Florida judgment was obtained by fraud and its enforcement would contravene public policy.

The Court of Appeal allowed the appeal against most respondents, holding that the fraud defence requires newly discovered facts that could not have been discovered with reasonable diligence, which the respondents failed to demonstrate.

The public policy defence was also rejected.

However, the appeal was dismissed against one respondent whose absolute discharge from bankruptcy released her from the judgment debt.

The accused pleaded guilty to the attempted murder of his common-law spouse.

At the sentencing hearing, the Crown sought a life sentence based on the 'Hill principle', attempting to introduce evidence of untried and uncharged violent acts against the victim and a former spouse to demonstrate a pattern of violence.

The trial judge ruled the evidence inadmissible and, based on a joint submission, imposed an eight-year sentence.

The Crown appealed the sentence.

The Court of Appeal dismissed the appeal, holding that while evidence of untried offences can be admitted to show background and character, it cannot be used to increase a sentence beyond what is proportionate to the convicted offence.

The court found no error in the trial judge's exclusion of the evidence or the sentence imposed, particularly given the Crown's position at trial.

The plaintiffs were injured in a motor vehicle accident caused by an intoxicated off-duty employee of the defendant employer.

The employee had consumed alcohol before, during, and after his shift, but the employer was unaware of his intoxication on the night in question.

The plaintiffs argued the employer owed them a duty of care because the employee was enrolled in an Employee Assistance Program for alcoholism.

The Court of Appeal held that the employer did not owe a duty of care to the plaintiffs, as the duty to provide a safe workplace does not extend to protecting the public from an employee's off-duty conduct.

The court also held that non-protected defendants are entitled to deduct collateral benefits from damage awards under section 267(1) of the Insurance Act.

The appellant appealed his convictions for breaking and entering, kidnapping, and several sexual offences against a nine-year-old child, as well as his sentence.

The Court of Appeal found that the trial judge misapprehended the DNA evidence, which was not completely consistent with the appellant's guilt and contained exculpatory elements.

Consequently, the convictions for the sexual offences were set aside and a new trial was ordered.

The convictions for breaking and entering and kidnapping were upheld.

The sentence was reduced and the order delaying parole eligibility was set aside.

The appellant was convicted of unlawful cultivation of a narcotic and possession for the purpose of trafficking after a marijuana grow operation was found in an apartment he rented.

The Crown relied on personal documents and papers related to hydroponics seized from the apartment and another residence as circumstantial evidence of his control over the premises.

The appellant appealed, arguing the documents had no probative value.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's conclusion that the documents were admissible as circumstantial evidence of the appellant's knowledge and control of the marijuana.

The appellant appealed his convictions for aggravated assault and firearm offences, arguing that the trial judge erred by not excluding evidence from an informal line-up due to alleged breaches of his ss. 7 and 10(b) Charter rights, and by misapprehending identification evidence.

The Court of Appeal dismissed the appeal, finding no Charter breach and noting that the trial judge did not rely on the line-up evidence.

The Court also found no error in the trial judge's conclusion that the appellant was the shooter, as all witnesses agreed the shooter was the person pursued and beaten by the crowd, which matched the appellant.

The Crown appealed the accused's acquittal on charges of sexual assault, forcible confinement, and uttering threats.

The sole issue on appeal was whether the trial judge erred in excluding the hearsay statement of the parties' six-year-old child, who was present in the apartment during the alleged offences but was unable to testify due to emotional trauma.

Although the trial judge found the statement met the threshold for necessity and reliability, he excluded it under his residual discretion, concluding that its admission without the opportunity for cross-examination would be fundamentally unfair to the accused.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's exercise of discretion.