L.C. Kozak

The appellant was convicted of possession of cocaine for the purpose of trafficking after police found crack cocaine in the bathroom of an apartment she shared with a co-occupant.

The appellant had been absent from the apartment for 32 hours prior to the search.

The trial judge convicted the appellant based on circumstantial evidence establishing constructive or joint possession.

On appeal, the appellant argued the verdict was unreasonable and the trial judge misapprehended the evidence.

The Court of Appeal (majority) dismissed the appeal, finding that the trial judge made no palpable and overriding error and that the circumstantial evidence supported the inference of knowledge and control.

Following the dismissal of the appellant's appeal regarding the right of limited partners to vote on the election of a new general partner, the parties were unable to agree on costs.

The Court of Appeal fixed costs on a partial indemnity basis, awarding $17,000 to Chalmers, $8,000 to the liquidator, and $5,000 to the respondent, plus disbursements and GST, all payable by the appellant.

The appellant appealed a custodial sentence imposed following a guilty plea to child luring arising from sexually explicit internet communications with an undercover officer posing as a 13-year-old girl.

The court held that while denunciation and deterrence will ordinarily require institutional incarceration for child luring, this was one of the rare cases where a conditional sentence was fit because the sentencing judge overemphasized punitive objectives and failed to give proper weight to uncontradicted expert evidence of negligible risk of reoffending, rehabilitation, and the devastating impact of the proceedings on the offender and his family.

Fresh evidence established the appellant's fragile mental and physical condition, prior assaults in custody, and the detrimental impact incarceration would have on his children.

Leave to appeal was granted, the sentence was varied to an 18-month conditional sentence with house arrest followed by probation, and the s. 161 order was reduced to ten years with modified terms.

The appellant appealed an order allowing two limited partners to vote on the election of a new general partner for a limited partnership.

The appellant argued the limited partners were affiliated with and not dealing at arms length with the manager, and thus disqualified from voting under the partnership agreements.

The Court of Appeal dismissed the appeal, upholding the motion judge's finding that there was no direct or indirect control establishing affiliation, and that the parties were dealing at arms length.

The appellant appealed the sentence imposed by the Ontario Court of Justice.

On consent of both the Crown and the appellant, the Court of Appeal granted leave to appeal, allowed the appeal, and varied the sentence to time served plus a 15-month period of probation.

The applicant moved to re-open his appeal, arguing the panel failed to consider whether the curative proviso could be applied despite an alleged error of law by the trial judge regarding the W.(D.) test.

The Crown cross-moved to quash the motion.

The Court of Appeal dismissed the motion, noting the appeal had been dealt with on the merits, the issue was not raised in the original appeal materials, and the Supreme Court of Canada had already refused leave to appeal on this issue.

The appellant appealed a finding of not criminally responsible (NCR) entered by the trial judge.

The Court of Appeal found that the appellant and his counsel were fully aware that an NCR hearing was being conducted, which could result in hospital confinement.

As no request was made for an adjournment to retain a defence psychiatrist, and there was no basis to interfere with the trial judge's disposition on the merits, the appeal was dismissed.

The appellant appealed his conviction for sexual touching of a child under the age of fourteen.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the trial judge misapprehended the evidence on key points and overemphasized irrelevant considerations when disbelieving the appellant.

Specifically, the trial judge incorrectly stated that the appellant did not deny the conduct, incorrectly stated that the appellant confirmed he was drinking, and appeared to engage in improper propensity reasoning based on the appellant's criminal record.

The appellant appealed his conviction, arguing that evidence obtained during a strip search should have been excluded under s. 24(2) of the Charter.

The Court of Appeal acknowledged that strip searches are inherently intrusive and should not be routine, citing Golden.

However, the Court found no error in the trial judge's exercise of discretion to admit the evidence and dismissed the appeal.

The appellant appealed a decision of the Summary Conviction Appeal Court Judge, which had dismissed an appeal from a conviction entered by the Ontario Court of Justice.

The Court of Appeal found no error in the reasoning of the Summary Conviction Appeal Court Judge and dismissed the appeal.

The appellant appealed his sentence for production of marijuana.

The trial judge had more than doubled the custodial sentence originally sought by the Crown because the appellant failed to attend his sentence hearing and was arrested on another drug possession charge in the interim.

The Court of Appeal found that the trial judge overreacted to these post-conviction circumstances and failed to adequately apply the parity principle respecting the sentencing of co-accused.

Leave to appeal was granted and the sentence was reduced to twelve months plus pre-trial custody.

The appellant was convicted of assault and received a conditional discharge.

Her summary conviction appeal was dismissed.

She appealed to the Court of Appeal, arguing that the trial judge failed to provide adequate reasons for rejecting her testimony and accepting the complainant's version of events.

The Court of Appeal dismissed the appeal, finding that while the trial judge's reasons were brief, they demonstrated a firm grasp of the evidence, correctly applied the burden of proof and the W.(D.) test, and met the functional requirement for adequate reasons.

The Crown appealed a stay of proceedings ordered by the trial judge.

The Court of Appeal dismissed the appeal, finding no error in principle in the trial judge's exercise of discretion, despite the societal interest in having criminal cases proceed to trial.

Addendum regarding costs following an appeal in a child protection matter.

The Divisional Court considered the submissions of the parties and the factors set out in Rule 57.01 of the Rules of Civil Procedure and Rule 24 of the Family Law Rules.

The court concluded that this was an appropriate case to not require the unsuccessful party to pay costs.

No costs were ordered.

The Children's Lawyer appealed a trial judge's decision to return two children to their mother under a strict 12-month supervision order, rather than making them Crown wards without access.

The appellant argued the trial judge failed to apply the paramount 'best interests of the child' test and made palpable and overriding errors in fact-finding regarding the parents' ability to protect the children from the father, who had been diagnosed with pedophilia.

The Divisional Court dismissed the appeal, finding the trial judge was acutely sensitive to the risks, properly balanced the children's best interests with maintaining the family unit, and made no palpable or overriding errors.

The plaintiff brought a motion for leave to appeal an order requiring it to pay $175,000 into court as security for costs.

The underlying action involved a claim for damages for breach of a franchise agreement.

The motions judge had found that the plaintiff failed to establish impecuniosity.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the order and that the issue of whether the merits of the case should be considered even if impecuniosity is not established transcends the interests of the parties and involves conflicting decisions.

The Children's Lawyer for Ontario (CLO) acted as litigation guardian and legal representative for a minor.

When the minor reached the age of majority, she requested her file.

The CLO treated the request under the Freedom of Information and Protection of Privacy Act (FIPPA) and refused to disclose portions of the file, claiming exemptions under s. 19 (Crown counsel litigation privilege) and s. 13 (advice to government).

The Information and Privacy Commissioner ordered disclosure.

On judicial review, the Divisional Court held that the Commissioner had standing to participate.

The Court dismissed the application, finding that the CLO is not 'Crown counsel' when acting for a minor and that s. 13 does not apply to advice given for the benefit of a private client.

The CLO's fiduciary duties to the client precluded withholding the file.

The tenant brought a motion to vary an order that set conditions for his appeal, specifically the requirement to pay rent arrears and ongoing rent.

The tenant had not paid any arrears and his appeal had previously been dismissed for non-compliance.

As the tenant continued to refuse to pay the arrears he admitted were owing, the Divisional Court found no merit in the motion and dismissed it, awarding costs to the landlord.

The appellant appealed a jury verdict assessing her general damages at $35,000 and future loss of income at zero following a rear-end motor vehicle collision.

The appellant argued that questions posed by the jury during deliberations showed they considered irrelevant matters, and sought a new trial or reassessment of damages.

The Divisional Court dismissed the appeal, finding that the trial judge's recharge cured any potential issues with the jury's questions, and that the jury's verdict on damages was not so unreasonable and unjust as to warrant appellate intervention.

The appellants appealed a decision of the Licence Appeal Tribunal directing the revocation of their motor vehicle inspection station and mechanic's licences.

The Director alleged that false statements were made in numerous safety standards certificates and that inspections were incompetently performed.

The Divisional Court dismissed the appeal, finding that the evidence accepted by the Tribunal provided clear and cogent proof to support the Director's proposed action.