OCA 2000

The appellant challenged both the trial judgment and the costs award arising from a dispute concerning consideration for shares and obligations under minutes of settlement.

The Court of Appeal rejected the attack on the trial judge’s factual findings, holding there was evidence to support the impugned findings.

However, it held the trial judge erred in principle in awarding solicitor-client costs because the pleadings, while strongly worded, did not amount to fraud or dishonest conduct warranting elevated costs and were not pursued unreasonably.

Leave to appeal costs was granted, the appeal on costs was allowed, and party-party costs were substituted, with the respondent recovering 90 percent of the costs of the appeal.

The Crown appealed a sentence imposed following a guilty plea to aggravated assault arising from a stabbing that caused near-fatal injuries.

The majority held that the trial judge crafted a sentence that appropriately responded to the circumstances, including significant restrictions on liberty over four and a half years, and found no error warranting appellate intervention.

Fresh psychiatric evidence indicating the respondent's mental state was stable and that he presented no risk to the community reinforced that conclusion.

A dissenting judge would have set aside the conditional sentence and imposed a 12-month custodial sentence plus probation.

The appellant appealed a sentence of fifteen months' imprisonment imposed after a guilty plea to production of 102 marijuana plants.

The court held that the sentence was outside the appropriate range, noting the absence of a prior record, the absence of evidence of trafficking, and recent Supreme Court of Canada guidance on conditional sentences.

Applying the principle that a conditional sentence is likely a better sanction where both punitive and restorative objectives can be achieved, the court substituted a conditional sentence of fifteen months commencing on the date of judgment.

The appellant appealed the dismissal of an action against a judge arising from conduct alleged to have occurred while hearing and deciding the appellant's earlier civil proceeding.

The Court of Appeal held that the pleaded allegations concerned acts done in the execution of judicial duties and therefore could not found a valid cause of action.

The court further held that the respondent's response to a complaint to the Canadian Judicial Council was also undertaken in the course of judicial office.

The appeal was dismissed with costs.

The Crown appealed a sentence imposed after a manslaughter conviction arising from the death of the accused's mother by ligature strangulation.

The court reiterated the deferential appellate standard for sentence appeals and held that a conditional sentence for manslaughter is not, in itself, an error in principle.

In light of the offender's remorse, rehabilitation, psychiatric evidence, lack of risk to the community, and the trial judge's careful consideration of the sentencing objectives in the Criminal Code, the majority found no basis to interfere.

Leave to appeal sentence was granted, but the appeal was dismissed, with a dissent concluding that denunciation and general deterrence required custody.

The Crown sought special leave to appeal from a judgment dismissing its appeal in a provincial offences prosecution arising from unlawful hunting and possession of moose parts.

The respondents had succeeded below on the basis that members of the Métis community of Sault Ste.

Marie held an Aboriginal right to hunt protected by s. 35(1) of the Constitution Act, 1982.

The court held that the proposed appeal raised important questions of law of first impression concerning the application of s. 35(1) to Métis people, that a full evidentiary record existed, and that the public interest favoured appellate review despite submissions urging political resolution and concerns about delay.

Special leave to appeal was granted.

The applicant sought special leave to appeal from a summary conviction appeal decision concerning the interpretation of the management accountant exemption in s. 34 of the Public Accountancy Act.

The chambers judge held the proposed appeal raised a question of law alone, and that uncertainty remained in the jurisprudence concerning whether disclosure or intended use of management-prepared statements by third parties could disentitle an accountant to the exemption.

Because the issue was important in the public interest, relevant to the due administration of justice, and likely to recur, special leave to appeal was granted.

In this family property appeal arising from a fact-driven trial, the appellant challenged the trial judge’s findings, particularly concerning ownership of a triplex, and alleged reasonable apprehension of bias.

The court held that the factual findings were amply supported by the record and disclosed no palpable or overriding error.

It also rejected the bias allegation and dismissed the contingent cross-appeal, including the claim for pre-judgment interest.

A motion to admit fresh evidence was also dismissed, and appeal costs were fixed in favour of the respondent.

The appellant appealed convictions for sexual assault and sexual touching on five grounds, including unreasonable verdict, improper reliance on demeanour, reversal of the burden of proof through motive-to-fabricate reasoning, improper use of prior consistent statements, and refusal of a further sentencing adjournment.

The court held that the trial judge was alive to inconsistencies in the complainant's evidence, properly assessed them, and did not improperly rely on demeanour or prior statements.

It further found no reversal of the burden of proof and no basis to interfere with the refusal of an additional adjournment.

The appeal was dismissed.

The appellants challenged a judgment upholding a municipality's distraint of chattels for unpaid taxes.

The Court of Appeal held the motion judge was entitled to find that the taxpayer had at least constructive possession of the chattels at the time of distraint, notwithstanding that the taxpayer had vacated the premises where they were kept.

The court further held that the sale of the chattels occurred before the taxpayer's bankruptcy, rendering the Bankruptcy and Insolvency Act and the cited appellate authority inapplicable.

The appeal was dismissed.

The appellants appealed a defamation judgment arising from a series of newspaper articles alleging that a municipal engineering commissioner arranged an improper land payment to a developer friend while withholding planning information from council.

The Court of Appeal upheld the rejection of justification, fair comment and qualified privilege, finding ample support for malice based on a sensationalized, one-sided reporting purpose undertaken without regard for the facts, although one branch of the trial judge’s malice reasoning was set aside because the journalist had been unfairly restricted from explaining his intended meaning.

The court also upheld special damages for loss of employment and substantial general damages, finding a sufficient causal link between the defamatory publication and the respondent’s dismissal.

Punitive damages were set aside because the compensatory award was already sufficient to punish and deter.

The cross-appeal seeking increased damages was dismissed.

The appellant, a young person, appealed a disposition totaling three and one-half years.

The court held the disposition was illegal because it exceeded the two-year maximum under s. 20(3) of the Young Offenders Act and found the trial judge erred in principle by relying on adult offender factors to the virtual exclusion of youth sentencing principles.

While the offence was very serious and had a serious impact on the complainant and her family, the court concluded that further treatment in custody remained appropriate for public protection.

The appeal was allowed and the disposition was reduced to nine months secure custody and fifteen months probation on the same terms imposed below.

The appellant sought to recover deposit monies on the basis that they were impressed with a trust if the underlying transaction failed to close.

The court held that the appellant met neither branch of the Quistclose requirements because the monies were advanced and used as a deposit for their intended purpose.

The respondents also had no notice at the time the monies were provided that any trust obligation attached to them.

The appeal was dismissed with costs.

The appellant appealed convictions for aggravated assault, assault with a weapon, and possession of a weapon for a purpose dangerous to the public peace.

He argued that the trial judge misapprehended the evidence and improperly imposed a duty on him to stop his co-accused.

The court held there was ample evidence supporting the convictions and interpreted the trial reasons as finding a joint venture and the requisite intent when the co-accused armed himself.

The appeal was dismissed.

The appellant sought certiorari during an ongoing summary conviction trial after the trial judge refused to quash an information on the basis that there were allegedly no reasonable and probable grounds for one of the charges when the information was sworn.

The Court of Appeal held that interlocutory review in criminal proceedings is not routinely available and that certiorari cannot be used as a substitute for a prohibited interlocutory appeal absent compelling interests of justice.

Applying the governing framework, the court found no reason for immediate superior court intervention and held that the trial should have proceeded to completion within the ordinary criminal process.

The appeal was dismissed and the matter remitted to the trial judge.

The appellant appealed his conviction following a guilty plea and sought to withdraw the plea, arguing it should not stand.

The court accepted trial counsel's affidavit that the plea was fully informed and voluntary and made in the face of an overwhelming Crown case.

The appellant also sought leave to appeal sentence and challenged the refusal of a conditional sentence for offences involving a large quantity of counterfeit travellers cheques, forged identification, embossing plates, a criminal record, and commission of the offences while on probation.

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

The appellants appealed an order refusing to set aside a summary judgment in favour of a bank, alleging that the record before the summary judgment judge was fraudulent and incomplete and seeking to file after-acquired documents as fresh evidence.

The court held that the motion record was neither fraudulent nor incomplete, and that the appellants' complaints were really arguments that should have been advanced on the original summary judgment motion.

Because the challenge to the primary debtors failed, there was no basis to discharge the guarantor.

The appeal was dismissed with costs.

The appellant solicitor appealed the dismissal of his third party claim for contribution against real estate agents in a negligence action arising from a commercial property purchase involving false zoning representations.

The court held, by majority, that issue estoppel did not apply because the prior mortgage proceeding did not determine the agents' independent liability to the purchaser.

However, the majority concluded that the third party claim was an abuse of process because it effectively attempted to relitigate the same misrepresentation issue that could have been advanced in the earlier proceeding.

The dissent would have allowed the appeal on the basis that the agents' duty of care had never previously been litigated.

The appellants challenged convictions for conspiracy to rob, robbery, and accessory after the fact arising from a violent pizza store robbery committed by co-accused.

The Court of Appeal held that the jury charge was materially deficient because it failed to present the defence theory, failed to relate the evidence to the issues, inadequately instructed on the three-step conspiracy analysis, and did not properly limit the use of co-accused statements and guilty pleas.

Additional errors were found in the response to a jury question, the accessory-after-the-fact mens rea instruction, and the absence of a proper after-the-fact conduct instruction.

Although the refusal of severance disclosed no reversible error, the cumulative charge errors precluded application of the curative proviso.

A new trial was ordered.

The Crown appealed a sentence in which the trial judge imposed a conditional sentence.

The court held the sentencing judge was in the best position to assess the effect of the respondent's serious mental illness on the commission of the offence and that there was evidence supporting that finding.

The court also relied on the respondent's youth, controlled mental illness, family support, and the Crown's position at trial.

Leave to appeal sentence was granted, but the appeal was dismissed.