OCA 2000

In a family law appeal concerning spousal support after a long-term marriage, the appellant challenged a trial judgment that failed to make findings on disputed issues or explain the support award.

Although the inadequacy of the reasons would normally have warranted a new trial, the court chose to determine the matter on the existing record to avoid further hardship to the parties.

The court rejected both parties' income positions as unrealistic, imputed a higher annual income to the payor than he asserted, and fixed support at $2,500 per month.

The appeal was allowed to reduce the support award, but costs of both the trial and the appeal were awarded to the respondent.

The appellant insurer appealed from summary judgment granted in favour of a bankruptcy trustee under an errors and omissions policy issued to the bankrupt insured.

The court held there were genuine issues for trial regarding the insured's state of mind when placing insurance with an unregistered offshore insurer and regarding whether the policy extended coverage although the insured was not a registered insurance broker.

Because the exclusion clause turned on whether the insured committed an intentional wrongful act, error or omission, the evidentiary record was insufficient to justify summary judgment.

The appeal was allowed, the summary judgment was set aside, and the action was directed to proceed to trial.

The appellants challenged judgments awarding the respondent recovery on a counterclaim and an equalization payment arising from a family farm and matrimonial property dispute.

The court held that the evidence supported the findings that amounts advanced by the respondent were repayable and that the valuation of assets and equalization calculation were supported by the record.

The court rejected a late-raised unequal division argument because it had not been pleaded and was not disputed at trial.

The order directing payment from monies paid into court from the sale of the milk quota was also upheld.

The appellant appealed both conviction and sentence arising from a knife assault following a driving-related confrontation.

He argued the trial judge failed to properly consider evidentiary inconsistencies and physical evidence said to support self-defence.

The court held the inconsistencies were not significant, and although one item of physical evidence was not addressed, it would not have assisted the self-defence theory.

The court also upheld a 15-month custodial sentence followed by three years probation, finding the offence called for a deterrent sentence and that a conditional sentence was inappropriate.

The appellant challenged both conviction and sentence following a jury trial, arguing among other things that the trial judge's charge improperly referred to the accused's criminal record and that the response to a jury question was inadequate.

The court held that the impugned reference was evidently a mistaken attribution intended for another witness and, in any event, caused no prejudice in light of the context and overwhelming evidence.

The court further found no basis to conclude the jury was confused about the causal link between the assaults and bodily harm, and held the trial judge's answer was complete.

The conviction appeal was dismissed; leave to appeal sentence was granted, but the sentence appeal was also dismissed.

The appellant appealed the dismissal of its damages claim against insurance broker respondents arising from the absence of business interruption coverage at the time of a fire.

The court held that the trial judge made crucial factual findings that the need for such coverage had been discussed on multiple occasions and that the appellant's representatives knew the coverage was not in place.

The record also supported the finding that worksheets required for a quotation had not been completed before the fire.

The court found no basis to interfere with the conclusion that there was no breach of duty and dismissed the appeal with costs.

The appellant brokerage appealed the dismissal of its commission claim arising from an authority to sell.

The court held that the authority did not apply to a sale to a purchaser who had already been dealing with the respondents before the authority was signed, and that merely showing financial statements did not amount to showing the property in the circumstances.

The court also upheld the trial judge’s conclusion that, although the broker provided some assistance, it was not the effective cause of the sale.

The appeal was dismissed with costs and the money paid into court was ordered paid out to two of the respondents.

The appellant challenged a judgment in an insurance benefits dispute concerning whether a proposed rehabilitation expenditure was a reasonable expense.

The court accepted that a significant-benefit threshold would be erroneous, but interpreted the trial reasons as finding only that the evidence showed no more than an insignificant benefit in the circumstances.

It held that the trial judge was entitled on the record to conclude the proposed expenditure was not a reasonable expense.

Leave to appeal costs was granted, and the trial costs order was varied so that there would be no order as to costs of the trial; the appeal was otherwise dismissed without costs.

The appellant challenged the dismissal of a medical negligence action arising from a surgical procedure and alleged lack of informed consent.

The Court of Appeal held that the trial judge was entitled to accept the defence expert evidence that the surgery was not negligently performed, particularly where there was no effective cross-examination on the factual assumptions and no contrary expert evidence.

The court further held that there was evidence supporting disclosure of the material risk of permanent change in sensation, and no evidence that other asserted risks required disclosure.

Applying the modified objective test, the court upheld the finding that the appellant would have proceeded with the surgery in any event.

The appellants challenged an order refusing relief from a default judgment and raised issues concerning notice of a sale and prior proceedings, as well as the interpretation of the Conveyancing and Law of Property Act.

The court held that the motion judge reasonably found one appellant had not moved promptly enough to set aside the default judgment.

It also upheld the factual finding that the other appellant had notice of both the sale and earlier proceedings.

The statutory interpretation argument was rejected, and the appeal was dismissed with costs.

The appellants, Suzack and Pennett, were convicted of first-degree murder in the shooting death of Constable Joe MacDonald during a routine traffic stop.

Both appellants advanced cut-throat defences at trial, each blaming the other for firing the fatal shots.

On appeal, they argued that the trial judge erred in refusing a change of venue, refusing to sever their trials, and misdirecting the jury on propensity evidence and after-the-fact conduct.

Suzack also challenged the constitutionality of s. 635(2) of the Criminal Code regarding the order of peremptory challenges.

The Court of Appeal dismissed the appeals, finding no error in the trial judge's exercise of discretion or jury instructions, and upholding the constitutionality of the jury selection provisions.

On an appeal from a Rule 21 determination in a fatal motor vehicle case, the court held that family members' independent nervous shock claims were barred by s. 266 of the Insurance Act because the claimants themselves did not meet the statutory threshold.

However, the majority held that s. 61(1) of the Family Law Act permits recovery for a family member's pecuniary loss in the form of lost income resulting from the death, and is not confined to loss of expected financial benefits from the deceased.

Because the trial judge later took the opposite view and made no necessary factual findings on causation and loss, the trial judgment was set aside and a new trial ordered on the loss of income claim.

No costs were awarded because success was divided.

The appellant challenged the constitutionality of s. 810.1 of the Criminal Code, arguing that the child-protection recognizance regime created a status offence, was overbroad, and was impermissibly vague, and further challenged the availability of arrest and detention procedures in such proceedings.

The Court of Appeal held that s. 810.1 is preventive, not punitive, and is directed at assessing present risk of future harm to children rather than punishing status.

The court found the regime sufficiently tailored and procedurally safeguarded, upheld the reading down of 'shall' to 'may' in s. 810.1(2), and confirmed that ss. 507(4) and 515 apply to s. 810.1 proceedings.

The appeal was dismissed.

The respondent challenged the constitutionality of the Criminal Code DNA warrant provisions authorizing seizure of bodily substances for forensic analysis.

The Court of Appeal held that the challenge was properly resolved under s. 8 of the Charter, and that if the regime satisfied s. 8 scrutiny it could not be contrary to the principles of fundamental justice under s. 7 on the self-incrimination theory advanced.

The court found the statutory scheme contained substantial judicial and privacy safeguards, upheld the ex parte warrant structure, and rejected the lower court's attempt to read in a notice requirement.

Fresh evidence concerning updated DNA technology undermined the basis for striking down the hair-sample provision, which was reinstated.

The cross-appeal was dismissed and the declaratory application was dismissed.

The appellant challenged the constitutionality of the conditional sentence breach regime under s. 742.6 of the Criminal Code after a judge ordered that part of the unexpired conditional sentence be served in custody.

The Court of Appeal held that breach proceedings are part of the sentencing process, not a prosecution for a new offence, so the protections in s. 11 of the Charter do not apply.

The court further held that proof on a balance of probabilities and the statutory burden regarding reasonable excuse do not offend s. 7.

It rejected arguments concerning jurisdiction, the validity of the appellant's admission of breach, and the fitness of the resulting custodial variation.

The appeal was dismissed.

Police entered private commercial property at night after observing circumstances giving rise to a reasonable suspicion of a break-in or theft.

Upon contact with the property owner, the officer observed signs of impairment, arrested the owner for care and control, and force was used during the ensuing resistance.

The court held the officer's entry was authorized by an implied invitation extending to protective investigation of suspected crime against the property, so no s. 8 search occurred.

The court further held the arrest was lawful, rejected ss. 7 and 9 arguments, upheld findings that the force used was not excessive, and dismissed the appeal.

Commercial appeal arising from a bribery scheme that diverted a longstanding supply contract from the plaintiff to the corporate respondents.

The Court of Appeal held that the consultant and his company, although described by contract as independent contractors, functioned as integrated members of the corporate respondents' sales organization and therefore attracted vicarious liability under the organization test.

The court also held that the trial judge erred in refusing to re-open the trial after post-judgment affidavit evidence from the consultant implicated the principal officer in the bribery scheme, as the evidence was apparently credible and could not with reasonable diligence have been obtained earlier.

Judgment was granted against the corporate respondents for compensatory damages and prejudgment interest, punitive damages were not extended vicariously, and a new trial was ordered on the officer's personal liability.

The appellants sought to set aside a sentence order directing forfeiture of cash bail toward restitution arising from a break and enter and theft involving the release of mink from a fur farm.

The Crown conceded that the Criminal Code did not authorize forfeiture of bail money to satisfy a restitution order, and the court quashed that portion of the sentence.

The majority held, however, that it should not direct payment of the bail funds to third-party family members and a friend who had supplied the money, particularly given possible competing creditor claims and the unsuitability of criminal proceedings to adjudicate such disputes.

Requests for costs and interest against the Crown were also denied.

A dissent would have ordered the bail money returned directly to the third-party funders ex debito justitiae.

The appellant challenged a power of sale transfer of farm property on the basis that the mortgagee had failed to comply with the notice regime and stay provisions under the Farm Debt Review Act.

The court held that even assuming a later notice of sale served during the statutory stay was a nullity, an earlier amended notice of sale was not void merely because the creditor had not first given compliant notice under s. 22.

Applying prior authority, the court found the defect was a continuing breach and not fatal where the farmer became aware of the statutory protections, obtained the full stays available, and suffered no prejudice.

The court further held that a valid basis for the exercise of the power of sale could sustain the transfer even though the registered documents referred to a defective notice.

The appeal was dismissed with costs.

The appellant appealed an order striking portions of a defamation claim for failure to comply with the notice provisions of the Libel and Slander Act.

The court held that multiple newspaper articles cannot be treated as a single libel for notice purposes unless their defamatory meaning depends on other publications.

It further held that the candidate-for-public-office provision in s. 5(3) does not exempt a plaintiff from giving notice under s. 5(1), but only affects the retraction-related consequences in s. 5(2).

The appeal was dismissed and the motion judge’s order was upheld.