Michael J. Moldaver

The appellant was convicted of assault and sexual assault against his spouse and sentenced to a total of two years' imprisonment.

He appealed the convictions, arguing the trial judge provided inadequate reasons for credibility findings and misapplied the W.(D.) principles.

He also appealed the sentence, seeking a conditional sentence.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's reasons adequate and her application of W.(D.) correct.

The sentence appeal was also dismissed, as the overriding principles of denunciation and deterrence for serious domestic violence militated against a conditional sentence.

The appellant's appeal was dismissed as abandoned after he failed to appear at purge court and failed to provide the required transcripts.

The appellant subsequently appeared and requested that the matter be listed for a further hearing to consider rescinding the dismissal order.

The Court of Appeal heard submissions from the appellant's counsel but found no basis to rescind the order, noting the missed deadline for providing the transcript.

The appeal remained dismissed as abandoned.

The Crown appealed a summary conviction appeal court decision that had overturned the accused's conviction and ordered a new trial.

The lower appellate court had found that the trial judge disregarded a glaring inconsistency in the complainant's evidence and that the loss of a videotape exhibit prejudiced the accused.

The Court of Appeal allowed the appeal, finding that the trial judge had properly considered the inconsistency and the complainant's explanation, which was objectively reasonable.

Furthermore, the loss of the exhibit did not deprive the accused of a ground of appeal.

The conviction was restored.

The appellant appealed his sentence of two years less a day, arguing it should be reduced to time served (13 months) so his probation period would commence immediately.

He also argued that the one-year conditional sentence imposed on his co-accused created an unjustified disparity.

The Court of Appeal dismissed the appeal, finding the sentence was fit when imposed and the disparity was justified by differences in the relevant circumstances of the two cases.

The Crown appealed a Summary Conviction Appeal Court decision that quashed the respondent's conviction.

The respondent had confronted intruders on his rural farm at 4:00 a.m. and removed the keys from their vehicle, leading him to fear for his safety as the intruders could not leave without retrieving the keys.

The Court of Appeal agreed with the summary conviction appeal judge that the trial judge erred in finding the respondent lacked reasonable grounds to apprehend imminent danger, as his belief was based on objectively verifiable facts.

The Crown's appeal was dismissed.

The appellant was convicted of two counts of first degree murder and appealed both convictions, arguing the trial judge erred in the jury charge regarding the Vetrovec caution for an unsavoury witness and the instructions on manslaughter.

The Court of Appeal found that the trial judge adequately cautioned the jury about the dangers of relying on the unsavoury witness's evidence and properly identified potentially confirmatory evidence.

The Court also held that the trial judge clearly explained how the appellant could be convicted of manslaughter if the jury found he only engaged in a plan to cause bodily harm.

The appeal was dismissed.

The appellant appealed a summary conviction appeal court decision that allowed a Crown appeal.

The Court of Appeal dismissed the appeal, finding no burden on the Crown to establish reasonable and probable grounds, abundant evidence that breath samples were taken pursuant to a demand under s. 254, and that the appellant was served with a copy of the certificate.

The court also found no merit to the Charter arguments, noting the burden was on the appellant to establish a breach and no objection was taken at trial.

The appellants appealed a sentence imposed for failing to remit $750,000 in GST funds.

The Court of Appeal found that while the trial judge erred in rejecting unchallenged submissions regarding the appellants' financial circumstances without notice, a conditional sentence was not appropriate.

The court held that the massive fraud on the public ordinarily called for a penitentiary sentence, and although mitigating factors justified a reformatory sentence, general deterrence required a custodial term.

The appeal was dismissed.

The Crown appealed a stay of proceedings granted to the respondents, who were charged with first-degree murder in the death of their infant daughter.

The trial judge stayed the charges due to unreasonable delay under s. 11(b) of the Charter, largely caused by the failings of the Crown's pathologist.

The Court of Appeal found that the trial judge erred in including pre-charge delay in his calculation as a remedy for the cremation of the child's remains.

However, the Court upheld the stay, concluding that the post-charge delay of 55 months for one respondent and 42.5 months for the other was unreasonable and severely prejudiced their liberty and security interests.

The appellant appealed a disposition of the Ontario Review Board, arguing the Board's decision to deny an absolute discharge was unreasonable, reversed the burden of proof, and breached procedural fairness by rejecting a joint submission without express notice.

The hospital's doctor had recommended an absolute discharge, which was supported by both the appellant and the Crown.

The Court of Appeal dismissed the appeal, finding that the Board's decision was not unreasonable given the appellant's lack of a track record of remission and programming for substance abuse.

The Court also found no reversal of the burden of proof and held that the Board's questioning provided sufficient notice of its concerns regarding the joint submission.

The appellant's five-year-old child started a fire in their apartment building using a cigarette lighter.

The apartment owner and an adjoining tenant sued the appellant for negligence.

A jury found the appellant negligent for failing to supervise her children, specifically by failing to warn them of the danger of fire after a neighbour reported seeing them playing with matches the night before.

The appellant appealed the jury's verdict.

The Court of Appeal dismissed the appeal, finding it was open to the jury to accept the neighbour's evidence and conclude the appellant was negligent.

The appellant appealed an order striking its Third Party Notice.

The Court of Appeal allowed the appeal, finding that while the pleading was deficient, it contained enough information to discern possible causes of action including unconscionability, breach of the Sale of Goods Act, and negligent misrepresentation.

The appellant was granted a further opportunity to properly articulate its claims.

However, due to the 'deplorable' state of the original pleading, the successful appellant was denied costs, and the respondent was awarded costs of the appeal fixed at $5,000.

The Liquidator of Shoppers Trust Corporation applied for directions regarding the distribution of unanticipated surplus funds of approximately $6 million.

The motion judge ruled that a previous order fixing an earlier interest calculation date precluded creditors from claiming interest up to the winding-up date, thereby allowing the surplus to be paid to a subordinated noteholder.

The Court of Appeal allowed the appeal, holding that the motion judge erred in treating the motion for directions as a motion to vary and in failing to apply the fundamental insolvency principle of pari passu distribution.

The Court held that creditors are entitled to prove their claims for principal and interest to the date of the winding-up in priority to subordinated noteholders.

The appellant was convicted of offences arising out of a home invasion.

At trial, two witnesses who had previously given videotaped statements to the police implicating the appellant recanted those portions of their statements.

The trial judge admitted the prior inconsistent statements for the truth of their contents under the principled exception to the hearsay rule.

The Court of Appeal upheld the trial judge's decision, finding that the videotaping of the statements and the availability of the declarants for cross-examination provided sufficient threshold reliability, despite the absence of an oath or a KGB warning.

The appellant appealed a judgment of the Divisional Court regarding a matter under the Construction Lien Act.

The Court of Appeal dismissed the appeal, agreeing substantially with the reasons of the Divisional Court, and awarded costs of $8,000 to the respondent.

The appellants, an adult entertainment parlour and its manager, appealed their convictions under a municipal by-law prohibiting dancers from touching patrons.

The trial and appeal judges had interpreted the by-law as an absolute prohibition on touching, regardless of the dancer's state of dress.

The Court of Appeal allowed the appeal, holding that the by-law must be interpreted to prohibit touching only when the dancer is nude or partially nude, otherwise the provision would be unconstitutionally vague.

Because the trial judge failed to properly resolve conflicting evidence regarding the dancer's state of dress, the convictions were set aside and a new trial was ordered.

The appellant appealed a trial judgment dismissing his claim for constructive dismissal and finding him liable for competing with his former employer using confidential information.

The Court of Appeal found no palpable and overriding error in the trial judge's conclusion that the appellant's transfer to a new position did not constitute a material change or constructive dismissal.

The Court also upheld the finding of liability for breach of duty regarding confidential information.

The appeal was dismissed with costs.

Following a successful appeal that certified the action as a class proceeding, the Court of Appeal issued a costs endorsement.

The appellants were awarded costs throughout on a partial indemnity scale.

The Court fixed the costs for the Divisional Court at $60,000 and for the Court of Appeal at $42,500, payable forthwith by the respondents jointly and severally.

The costs of the initial certification motion were referred back to the motion judge.

The appellant appealed a summary conviction appeal court decision upholding his conviction.

The trial judge found that the arresting officer had an honest but mistaken belief that the roadside screening device was properly calibrated, failing to appreciate the significance of an inaccurate calibration date.

The Court of Appeal held that the summary conviction appeal court judge did not err in upholding this finding, as the officer's mistake was objectively reasonable and the inaccurate date did not establish that the device had not been recalibrated on a timely basis.

The appeal was dismissed.

The Court of Appeal for Ontario released an addendum on costs following an appeal.

The respondents were awarded costs on a partial indemnity basis, fixed at $10,000 inclusive of GST and disbursements.