Karen M. Weiler

The Crown appealed the sentences imposed on the respondent for extortion and impaired driving causing bodily harm.

The trial judge had departed from a joint submission and imposed a conditional sentence for extortion and 60 days' imprisonment for impaired driving causing bodily harm.

The Court of Appeal found the conditional sentence inappropriate but declined to interfere as it was nearly completed.

However, the Court held the 60-day sentence for impaired driving causing bodily harm was manifestly inadequate, noting the respondent was on bail for 'over 80' at the time.

The sentence for impaired driving causing bodily harm was increased to five months.

The Crown appealed the conditional sentence imposed on the respondent, arguing the trial judge erred by failing to include punitive conditions.

The Court of Appeal agreed that an error in principle occurred, noting the trial judge did not have the benefit of the Supreme Court's decision in R. v. Proulx.

However, the Court dismissed the appeal due to the respondent's family circumstances, his guilty plea, his testimony against co-accused, and the significant passage of time since the offence and sentencing.

The appellant appealed his conviction for robbery and his sentence of three and one-half years' imprisonment.

He argued that the trial judge's Vetrovec warning regarding an accomplice's testimony was deficient, that hearsay evidence was improperly admitted, and that the defence of intoxication should have been left to the jury.

The Court of Appeal dismissed the conviction appeal, finding the Vetrovec warning adequate, no prejudice from the hearsay evidence, and no air of reality to the intoxication defence.

The sentence appeal was also dismissed, as the trial judge properly applied the mandatory minimum for robbery with a firearm and the sentence was not excessive.

The developer of a multi-phased condominium project marketed the development as having an outdoor recreational area.

The disclosure statement and related documents provided that the recreational area might not be built.

The developer later decided to build townhouses on the recreational lands instead.

The condominium corporation opposed this and obtained a permanent injunction at trial.

On appeal, the Court of Appeal allowed the appeal, finding that the developer did not owe a fiduciary duty or a duty of good faith to prospective purchasers during the pre-contractual phase.

The developer's obligations were circumscribed by the statutory disclosure requirements, which clearly stated the developer was under no obligation to build the recreational facilities.

The appellant appealed his convictions for indecent assault male, sexual assault, and buggery, relating to historical allegations of abuse against a younger relative.

The primary issue on appeal was whether the pre-Lifchus jury charge on reasonable doubt substantially complied with the principles set out by the Supreme Court of Canada.

The Court of Appeal found that the trial judge's instructions, which told the jury that 'reasonable doubt' had no special legal meaning and could be determined using their everyday life experiences, failed to locate the standard above a balance of probabilities.

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

The Director of the Family Responsibility Office appealed a motions judge's order lifting the suspension of a defaulting payor's driver's licence, issuing a refraining order, and directing the withdrawal of any federal licence denial application.

The Court of Appeal held that the motions judge lacked jurisdiction to make a refraining order outside the 30-day statutory period.

However, because the Director failed to prove service of the First Notice regarding the driver's licence suspension, the suspension could not stand.

The Court further held that the motions judge erred in ordering the withdrawal of the federal licence denial application, as the payor had been properly served with notice and failed to take the required statutory steps to prevent it.

The appeal was allowed in part.

The respondent was in default of a child support order and his driver's licence was suspended after the Director sent a First Notice to his address on record.

The respondent brought a motion to reinstate his licence, claiming he did not receive the notice.

The motions judge ordered the reinstatement of the licence for 90 days to allow the respondent to bring a motion to vary support.

The Director appealed.

The Court of Appeal allowed the appeal, finding that the Director proved proper service of the First Notice in accordance with the legislation.

The motions judge had no jurisdiction to order reinstatement or to make a refraining order outside the statutory 30-day period.

The College of Physicians and Surgeons appealed a Divisional Court decision that set aside a Discipline Committee's finding of professional misconduct against a physician for sexual impropriety.

The Court of Appeal agreed with the Divisional Court that the Committee misapprehended crucial evidence regarding the complainants' credibility and potential collusion.

However, the Court of Appeal allowed the appeal in part to order a rehearing, noting the record contained evidence capable of supporting a misconduct finding, and to strike the Divisional Court's order that the College pay the costs of the initial Committee hearing.

The appellant was convicted of public mischief for allegedly providing false information to the police about a sexual assault.

At trial, a forensic expert testified that tests 'suggested' the buttons on the appellant's shirt were torn off when the shirt was undone.

The trial judge misapprehended this evidence, stating the expert concluded the buttons had not been ripped off while in the buttonhole space.

The Court of Appeal found this misapprehension played an essential part in the reasoning process resulting in the conviction.

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

The appellants appealed a trial judgment awarding the respondent $24,882.30, representing the return of a deposit paid for a baling system machine.

The appellants argued the trial judge erred in finding the partnership, rather than the corporation, was a party to the contract.

The Court of Appeal dismissed the appeal, finding ample evidence to support the trial judge's conclusions regarding the parties to the contract, the breach of contract, and the dismissal of the counterclaim based on credibility findings.

The appeal was dismissed with costs.

The appellant appealed a summary judgment and costs order.

The Court of Appeal upheld the summary judgment, finding no genuine issue for trial and confirming the motions judge's jurisdiction to hear the summary judgment motion despite the appellant's motion to discontinue under Rule 23.

The Court also upheld the solicitor and client costs award.

However, the Court set aside one paragraph of the judgment regarding the costs of a prior motion, as the motions judge lacked jurisdiction to alter an existing order.

The appeal was allowed in part.

The appellant general contractor appealed the trial judge's assessment of damages for construction deficiencies and delays in building a commercial office building.

The trial judge awarded $1.7 million for diminution in value due to floor slab deficiencies and $770,000 for lost rental income from prospective tenants due to a five-month construction delay.

The Court of Appeal upheld the $1.7 million award, finding the owner did not fail to mitigate its damages.

However, the Court allowed the appeal regarding the delay damages for prospective tenants, finding the $770,000 assessment was not supported by the evidence, and reduced that portion of the award to $65,000.

The Crown sought leave to appeal from a summary conviction appeal court order setting aside a sexual assault conviction and directing a new trial.

The Court of Appeal held that the appeal judge erred by conducting a microscopic review of the evidence, reassessing credibility, and effectively retrying the case rather than showing proper deference to the trial judge's findings.

Applying the governing appellate principles on unreasonable verdicts and credibility-based findings, the court concluded the trial verdict was reasonably supported by the complainant's evidence and the rejection of the defence evidence.

Leave to appeal was granted, the appeal was allowed, the trial verdict was restored, and the sentence appeal was remitted for determination on its merits.

The appellant was convicted by a jury of importing cocaine and hashish and sentenced to seven years' imprisonment.

He appealed both his conviction and sentence.

On the conviction appeal, he argued the trial judge misapprehended the evidence, improperly turned the trial into a credibility contest, and failed to properly answer a jury question regarding reasonable doubt.

The Court of Appeal dismissed the conviction appeal, finding no errors in the jury charge or the recharge on reasonable doubt.

The sentence appeal was also dismissed, as the seven-year sentence for importing 2.13 kilograms of cocaine and 1 kilogram of hashish was not demonstrably unfit.

The appellant, a police officer, was convicted of forgery, attempt to obstruct justice, and breach of trust for issuing false traffic tickets.

On appeal, he argued the trial judge erred in his reasons, improperly admitted reply evidence, and that the offence of breach of trust required proof of personal benefit.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's reasons or admission of reply evidence.

The Court declined to resolve whether personal benefit is required for breach of trust, instead lifting the stay on the forgery convictions and staying the breach of trust conviction.

The Crown appealed an Ontario Review Board disposition granting the respondent an absolute discharge.

The respondent had previously been found not criminally responsible for offences related to harassing a former girlfriend.

The Crown argued the Board failed to obtain evidence from a staff psychiatrist and misapplied the test for determining if the respondent posed a significant threat to public safety.

The Court of Appeal dismissed the appeal, finding the Board had sufficient evidence to conclude the respondent did not pose a significant threat and that its decision was reasonable.

The appellant, a 14-year-old young offender, appealed his conditional discharge for trafficking $10 worth of marijuana to undercover police officers at a rock concert.

At trial, his application for a stay of proceedings based on entrapment was dismissed.

The Court of Appeal allowed the appeal, finding that the trial judge erred by applying an overly onerous test for entrapment from Amato rather than the correct test from Mack.

Based on the trial judge's own findings that the appellant would not have sold the drugs but for the officers' importuning, the Court concluded the police went beyond providing an opportunity and induced the offence.

A stay of proceedings was entered.

The appellant appealed his convictions for sexual assault, assault, and uttering threats, as well as his sentences.

He argued the trial judge committed a Coutts error, improperly relied on battered wife syndrome to explain delayed disclosure, and improperly used nurses' notes as corroboration.

The Court of Appeal dismissed the conviction appeals, finding no errors in the trial judge's credibility assessments or use of evidence.

However, the Court allowed the sentence appeal in part, reducing the sentence for sexual assault to three years due to an ambiguity in the trial judge's sentencing reasons.

The Crown appealed an order staying historical indecent assault and sexual assault charges against a physician based on the loss of a complainant's signed police statement.

The court held that, although it was open to the trial judge to find the statement was lost through unacceptable negligence, the prejudice analysis was flawed because the lost statement was assessed in isolation rather than in light of multiple other available statements and prior sworn testimony.

The court held that the missing statement made the defence task more difficult but did not render the trial fundamentally unfair or bring the administration of justice into disrepute.

The loss of the statement also did not amount to abuse of process in the absence of bad faith or prosecutorial misconduct.

The stay was quashed and a new trial ordered.

The appellant cleaning company appealed the dismissal of its action for breach of contract.

The respondent health club terminated its cleaning contract with the appellant and immediately hired two of the appellant's cleaners, breaching a non-solicitation clause that required payment of one year's compensation.

The trial judge found the clause was an unenforceable penalty and dismissed the action because the appellant claimed no actual damages.

The Court of Appeal allowed the appeal, agreeing the clause was a penalty but finding the appellant suffered provable damages from the loss of its investment in training the cleaners.

The Court awarded $12,600 in damages based on the appellant's lost profit during the six-month training period.