OCA 2000

The appellants challenged a judgment requiring payment for emergency spill cleanup following a gasoline tanker rollover.

The court held that new evidence showing there was no agreement on rates undermined the partial summary judgment premised on payment at the respondent's usual rates.

The court further held that the trial judge failed to address whether mark-ups on subcontracted work were recoverable at usual rates or were otherwise fair and reasonable.

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

In a securities-related class proceeding arising from alleged fraudulent statements about Indonesian gold reserves, the appellants challenged the refusal to certify negligent misrepresentation while conspiracy, fraudulent misrepresentation, and Competition Act claims had been certified.

The court held that there was no principled basis to distinguish fraudulent from negligent misrepresentation at the certification stage, given the overlap in common factual and legal issues and the low threshold for common issues under the Class Proceedings Act, 1992.

The court further held that, where three related claims were already proceeding as a class action, it was sensible and efficient to include negligent misrepresentation on the same litigation track.

The appeal was allowed and the certification order amended accordingly.

The appellants appealed the dismissal of a medical negligence action arising from gynecological surgery in which sutures injured the patient’s ureter.

The court held that the trial judge misapprehended the evidence concerning the surgeon’s final inspection and failed to apply the only expert evidence addressing the precise operative circumstances, with the result that negligence should have been found.

The court upheld the trial judge’s rejection of causation between the surgery and the patient’s long-term fibromyalgia, but increased general damages for pain and suffering from $20,000 to $28,000 by using the date of the first surgery as the start of compensable harm.

The appeal was allowed, judgment for the plaintiffs was substituted, and the appellants were awarded trial and appeal costs on a party-and-party basis.

The appellant Crown appealed a refusal by the motions judge to withdraw her prior decision dismissing a stay motion in an employment-related proceeding brought by a former Crown employee.

The Court of Appeal held that a reasonable apprehension of bias arose because the motions judge was herself pursuing ongoing employment-related litigation against the Crown while adjudicating a similar claim advanced against the same party.

Applying the governing bias principles, the court found that a disqualifying interest is broader than pecuniary or proprietary interest and includes some relevant interest in the subject matter.

The appearance of impartiality was compromised, both orders were set aside, and the stay motion was remitted to be reheard by a different judge.

No costs were awarded.

The Minister appealed an order rectifying a corporate reorganization involving the division of a family business.

The respondents had transferred shares to a holding company in exchange for promissory notes based on mistaken accounting advice, triggering immediate tax liability under the Income Tax Act instead of a tax-deferred rollover.

The court held that rectification was available where the written transaction failed to reflect the parties' true agreement, which from the outset was to complete the restructuring without immediate tax consequences.

The application judge's findings of a primary and continuing tax-neutral objective were upheld, and the appeal was dismissed with costs.

The appellants challenged a civil jury verdict, arguing that the apportionment of damages was perverse and that the award of pre-judgment interest should be varied.

The court held that appellate interference with a jury's apportionment is subject to an exceptionally high threshold and found that threshold was not met on the evidence.

The court also rejected the argument that a post-judgment interest rate should effectively replace pre-judgment interest from the date the trial ought to have occurred.

The appeal was dismissed with costs.

The appellant dealer appealed a trial judgment holding a vehicle purchase and conditional sales arrangement unenforceable because of statutory illegality arising from non-compliance with registration requirements.

The Court of Appeal declined to endorse the trial judge's full analysis of statutory illegality but upheld the result, emphasizing that the illegality was not trivial, was left uncured, and implicated a public-protection regime intended to protect the respondent purchaser.

The court also relied on findings that the respondent received little benefit from the vehicle and that the appellant altered signed documents to satisfy the bank.

A motion for leave to appeal the no-costs order was also refused.

The appellant appealed a summary judgment dismissing a medical malpractice action on limitation grounds arising from an oesophageal dilation that allegedly caused a rupture.

The court held that the governing statutory limitation provisions incorporated the discoverability rule and that the record raised a factual issue as to when the appellant knew or ought to have known the material facts underlying the negligence claim.

Because that fact-based issue could not properly be resolved on summary judgment, the appeal was allowed and the action was restored for trial.

The court further held that the respondent's summary judgment motion was unreasonable within rule 20.06(1) and awarded the appellant solicitor and client costs of both the motion and the appeal.

The appellant appealed his arson conviction and sentence following a jury trial.

The court rejected arguments that fingerprint evidence was obtained without informed consent contrary to s. 8 of the Charter, that oral statements to insurance adjusters were made under statutory compulsion within s. 148(6) of the Insurance Act, and that a Crown misstatement in closing caused a miscarriage of justice.

The conviction appeal was dismissed.

However, the court found the sentencing judge erred in principle by treating lack of remorse as an aggravating factor and reduced the penitentiary sentence from four years to two and a half years.

Criminal conviction appeal arising from a taxi robbery prosecution in which the police obtained an inculpatory statement by threatening to "trash" the accused's mother's home during execution of a search warrant.

The court held that police conduct rendering a statement involuntary at common law infringes s. 7 of the Charter, and that the resulting oral statement and diagram were conscriptive evidence that had to be excluded under s. 24(2).

The court exercised its discretion to allow the accused to advance the Charter argument for the first time on appeal because voluntariness had been fully litigated at trial and the record was complete.

The court further held that the St. Lawrence rule must be modified to recognize a discretion to exclude involuntary confessions despite confirmation by real evidence, with admission justified only in highly exceptional circumstances.

Without the confession, the remaining evidence could not support conviction, so the convictions were quashed and acquittals entered.

The appellants appealed their convictions for second degree murder arising from a circumstantial case that they killed the deceased in order to steal and export his newly purchased vehicle.

The Court of Appeal rejected challenges to jury selection, exclusion of alleged third-party suspect evidence, and numerous aspects of the jury charge, including instructions on separate liability, recent possession, reasonable doubt, circumstantial evidence, manslaughter, and post-offence conduct.

The court also held that the co-accused's cut-throat closing address did not warrant severance or a mistrial, and that any improper advocacy was adequately corrected by the trial judge.

The convictions were upheld and the Crown's contingent cross-appeal was not addressed.

The appellant appealed both conviction and sentence after a jury convicted him of forcible confinement and acquitted him of break and entry with intent to commit an indictable offence and attempted kidnapping.

The Court of Appeal rejected arguments based on inconsistent verdicts, the admission of prior convictions on a Corbett application, and the admission of reply evidence regarding travel arrangements.

On sentence, the court held that the trial judge erred by treating the case as involving a plan to kidnap despite the jury's verdict.

The original five-year penitentiary sentence was found to be outside the appropriate range and was replaced with a sentence of two years' imprisonment plus three years' probation.

The appellant challenged both conviction and sentence following a jury trial for assault causing bodily harm.

He argued that the jury charge inadequately addressed the burden on the Crown to disprove accident and that the trial judge improperly prevented the defence from calling five witnesses concerning a later incident involving the complainant.

The court held that the charge made clear that the Crown had to prove intent beyond a reasonable doubt and that the jury could not convict if left with a reasonable doubt on accident.

The court also found no prejudice and no reviewable error in the exclusion of the proposed defence evidence.

Leave to appeal sentence was granted, but both the conviction appeal and sentence appeal were dismissed.

The appellant appealed a jury conviction for first degree murder arising from the death of a young child in his care following an admitted sexual assault and repeated blows to the head.

He argued the trial judge inadequately charged the jury on the intent required for murder and erred in refusing an offence-based challenge for cause.

The court held the evidentiary record overwhelmingly supported the requisite intent and the jury charge, read as a whole, was legally sufficient.

It also held that offence-based challenge for cause was unavailable absent evidence connecting attitudes about the crime to prejudice against the accused.

The appeal was dismissed.

The applicant sought bail pending appeal following conviction after jury trial on multiple serious offences arising from conduct against a single complainant, and after imposition of a seven-year penitentiary sentence.

The court accepted that the appeal was not frivolous, but found the applicant failed to establish that he would surrender into custody, relying on prior use of false identification, a past failure to appear for trial in another jurisdiction, an obstruction conviction, and the prospect of substantial additional incarceration on outstanding charges.

Applying the public interest analysis under s. 679(3)(c) of the Criminal Code, the court held that enforceability outweighed reviewability given the seriousness of the offences, the length of sentence, concerns about interference with pending matters, and the absence of strong appeal grounds on the record before the chambers judge.

Bail pending appeal was denied.

The appellant appealed jury convictions for importing cocaine and possession of cocaine for the purpose of trafficking, and also appealed a five-year penitentiary sentence.

He argued errors in the restriction of cross-examination on voluntariness, Crown cross-examination concerning omissions in his statement, jury instructions regarding an admitted lie to police, and the denial of a Corbett application.

The court held that the Corbett ruling disclosed no error in principle and that, even assuming error on the remaining grounds, no substantial wrong or miscarriage of justice occurred given the strength of the circumstantial case and the improbability of the defence evidence.

The conviction appeal and sentence appeal were both dismissed.

The appellant appealed convictions for sexual assault and threatening serious bodily harm arising from an encounter in which consent was the central issue.

The court held that similar fact evidence from a former partner should not have been admitted because its probative value was limited, the possibility of collusion or tainting materially weakened it, and its prejudicial effect was grave.

The court further held that the jury should have received a limiting instruction on other discreditable conduct evidence, and it identified error in the charge on prior consistent statements.

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

The appellant appealed a conviction for second degree murder following a jury trial.

The Court of Appeal held that the trial judge failed to adequately instruct the jury on intent and on the cumulative effect of intoxication, provocation, and excessive force in self-defence.

The charge improperly compartmentalized the defences and referred to them as alternative defences, creating a risk that the jury would not appreciate their combined effect.

The court was not satisfied that no substantial wrong or miscarriage of justice had occurred.

The conviction was set aside and a new trial on second degree murder was ordered.

The appellant appealed convictions for obtaining and attempting to obtain for consideration the sexual services of a person under eighteen, and also appealed sentence.

The court upheld the admission of a prior police statement, finding it relevant and not unfairly prejudicial in a judge-alone trial.

The court dismissed an extensive fresh evidence application alleging appearance of unfairness arising from comments by a provincial court judge to defence counsel and a chambers discussion during a pre-trial motion, holding there was no interference with the defence and no prejudice.

The sentence appeal was also dismissed because the trial judge properly weighed the appellant's personal mitigation against the seriousness of sexual exploitation offences involving young persons and the need for deterrence.

The Crown appealed an order staying criminal charges on the basis of the respondent's health and alleged inability to defend himself.

The Court of Appeal held that the evidentiary record did not establish that the respondent would probably be unable to defend himself or that the trial process would probably cause significant harm to his health.

The stay was found to be premature, with the court noting that fitness and health concerns could be revisited if they arose during trial.

The appeal was allowed and the matter was remitted for trial.