OCA 2001

The appellant appealed a trial judgment finding it liable for damage to the respondent's bus caused by a fire originating from a seat heater.

The Court of Appeal found that while the trial judge erred in stating there was a presumption of negligent manufacture, the evidence supported the conclusion that the heating pads were inappropriate components for the heavy use of the bus seat.

The appellant breached its duty to take reasonable care in manufacturing the product.

The appeal was dismissed with costs.

The plaintiffs in two class actions moved to quash appeals brought by the defendants from an order declaring that the plaintiffs shared a common interest with the Receiver of YBM, and that the Receiver could produce a report to them without waiving privilege.

The Court of Appeal held that the order was procedural and interlocutory, as it did not resolve any substantive issue in the proceedings.

The court rejected the argument that the order was final simply because it involved a non-party (the Receiver), distinguishing prior case law.

The motions to quash were granted.

The appellant was convicted of manslaughter and sentenced to six years' imprisonment after punching the deceased once outside a bar, causing the deceased to fall and suffer fatal head injuries.

On appeal, the appellant argued the trial judge erred in his jury instructions regarding self-defence, provocation, and after-the-fact conduct.

The Court of Appeal dismissed the conviction appeal, finding no reversible errors in the jury charge and applying the curative proviso regarding the omission of a section 37 self-defence instruction.

The sentence appeal was also dismissed as the six-year term was within the appropriate range.

The accused appealed convictions for sexual assault, invitation to sexual touching, and possession of child pornography, challenging the admission of similar fact evidence, the finding that the assault was sexual in nature, and the refusal to exclude seized pornographic material under ss. 8 and 24(2) of the Charter.

The court held that the prior misconduct evidence was properly admitted, that the assault was objectively sexual in nature based on the words accompanying the force, and that the trial judge did not err in admitting the seized evidence despite an overbroad warrant paragraph.

On the Crown's sentence appeal, the court held that the dangerous offender finding was unchallenged and that the trial judge erred in imposing a determinate sentence without evidence that the offender could be rehabilitated within a fixed period.

The determinate sentence was set aside and replaced with an indeterminate sentence.

The appellant was convicted of unlawful cultivation of a narcotic and possession for the purpose of trafficking after a marijuana grow operation was found in an apartment he rented.

The Crown relied on personal documents and papers related to hydroponics seized from the apartment and another residence as circumstantial evidence of his control over the premises.

The appellant appealed, arguing the documents had no probative value.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's conclusion that the documents were admissible as circumstantial evidence of the appellant's knowledge and control of the marijuana.

The appellant appealed a judgment regarding the prepayment of a mortgage.

The Court of Appeal found that the respondent was entitled to prepay the mortgage without notice or bonus as it was not in default.

However, the respondent was not relieved of the obligation to make proper tender of the principal and interest.

The appeal was allowed in part to award the appellant additional interest from the date of attempted prepayment to the date of proper tender.

The appellant appealed a decision of a motions judge who denied an order of prohibition and upheld the trial judge's order for a psychiatric assessment under the Mental Health Act for sentencing purposes.

The Court of Appeal dismissed the appeal, finding no error in the conclusion that the trial judge exercised her discretion judiciously to obtain information for sentencing, and finding no evidence of bias.

The appellant appealed his convictions for sexual assault and sexual exploitation of his 15-year-old stepdaughter.

He sought to introduce a videotaped statement of the complainant as fresh evidence and argued the trial judge erred by not instructing the jury on the defence of mistake of fact for the sexual assault charge.

The Court of Appeal dismissed the appeal, finding the fresh evidence did not meet the Palmer test as it was available at trial, and holding that the trial judge correctly instructed the jury that mistake of fact applied only to the sexual exploitation charge.

The appellant employer appealed a trial judgment awarding the respondent employee 26 months' salary for wrongful dismissal.

The sole issue on appeal was whether long-term disability benefits received by the respondent during the notice period should be deducted from the wrongful dismissal damages.

The Court of Appeal held that the benefits were not deductible because the respondent had indirectly contributed to the disability plan by accepting a lower salary in exchange for the benefits package.

The appeal was dismissed.

The appellant was convicted of distribution and possession of child pornography and sentenced to 14 months' imprisonment.

He appealed both the convictions and the sentence.

The Court of Appeal dismissed the conviction appeal, finding no reversible error in the trial judge's evidentiary rulings or jury instructions, particularly given the lack of objections at trial.

However, the Court allowed the sentence appeal, substituting a 14-month conditional sentence.

The Court noted the appellant's lack of prior record, his steady employment, the devastating impact the proceedings already had on his family, and the Supreme Court's guidance in Proulx that conditional sentences can achieve denunciation and deterrence.

The defendants appealed a trial judgment awarding the plaintiff one year's salary for wrongful dismissal.

The trial judge had found the plaintiff's employment contract, which limited notice to three months, unenforceable due to misrepresentations by the defendants.

The Court of Appeal upheld the finding of wrongful dismissal but overturned the finding that the contract was unenforceable, concluding there was no evidence to support the claims of misrepresentation regarding the plaintiff's job description or a failure to invest by the defendants.

The Court varied the judgment, limiting the plaintiff's damages to the three months' salary stipulated in the employment contract.

The appellant husband was ordered to discharge the mortgage on the matrimonial home and arrange substitute security for a joint line of credit.

He failed to comply, defaulted on payments, and made a voluntary assignment in bankruptcy.

The motions judge found him in contempt and sentenced him to six months' imprisonment.

On appeal, the appellant argued that compliance would constitute an unlawful preference under bankruptcy legislation and that the order was for the payment of money, precluding a contempt finding.

The Court of Appeal dismissed the appeal, holding that the appellant's late invocation of bankruptcy was an impermissible collateral attack on a valid court order, and that the order did not require the payment of money.

The six-month sentence was upheld due to the appellant's continuous and cavalier non-compliance.

The appellants appealed a trial judgment dismissing their claim for losses allegedly sustained due to misrepresentations by a municipal solicitor.

The trial judge found no evidence of misrepresentation, largely based on the credibility of the appellants' principal, and concluded that reliance on the alleged misrepresentation would have been unreasonable.

The Court of Appeal found no error in these findings and dismissed the appeal with costs.

The plaintiff commenced an action against his insurer for statutory accident benefits.

The plaintiff's counsel sent a settlement offer to the insurer's adjuster, which the insurer's counsel accepted.

When the plaintiff refused to proceed with the settlement because costs were to be assessed rather than fixed, the insurer moved for judgment under Rule 49.

The motions judge dismissed the motion, finding the offer was improperly served and the insurer failed to provide a notice under section 9.1 of the Automobile Insurance Regulation.

The Court of Appeal allowed the insurer's appeal, holding that the technical defect in service did not invalidate the Rule 49 offer, and that section 9.1 does not apply to settlements reached after litigation has commenced.

The appellant mother brought a motion for a stay of two lower court orders pending her appeal.

The respondent father brought a cross-motion for security for costs.

The Court of Appeal granted the stay, finding that the appellant had an arguable appeal and that the balance of convenience and irreparable harm favoured her.

The Court ordered that neither party remove the child from Ontario, required the child's passport and birth certificate to remain with the Registrar, and maintained the status quo of alternating weekly physical custody.

The respondent's motion for security for costs was dismissed.

The appellant appealed his conviction for harassment and his sentence.

He argued the conviction resulted from a violation of a peace bond that should not have been issued, and that his sentence of 12 months plus three years probation was illegal because it was added to a three-year sentence.

The Court of Appeal dismissed the conviction appeal, noting the peace bond had to be observed while outstanding.

The sentence appeal was also dismissed, as the trial judge had credited pre-sentence custody and imposed a lawful sentence of 12 months plus three years probation.

The respondent was convicted of careless driving after failing to stop at a stop sign, resulting in a fatal collision.

The Provincial Offences Appeal Court set aside the conviction, finding that expert evidence provided a rational explanation for missing the sign.

The Crown appealed.

The Court of Appeal allowed the appeal, holding that the appeal court judge failed to apply the proper test for appellate review and improperly substituted his own view of the evidence for that of the trial justice.

The conviction was restored and the matter remitted for a sentence appeal.

The cross-appellant appealed a trial judgment awarding damages for breach of contract regarding the sale of a tavern.

The cross-appellant argued that the respondent acted as a self-appointed agent, breached a fiduciary duty, and that the contract was unenforceable due to the maxim ex turpi causa non oritur actio.

The Court of Appeal dismissed the cross-appeal, finding that the respondent acted on his own behalf with authority, owed no fiduciary duty as there was no agreement to relinquish self-interest, and that the contract did not involve any illegal or immoral act defrauding a third party.

The appellants, who were non-parties to the bankruptcy proceedings, appealed a trial judge's order awarding costs against them.

The trial judge had dismissed the bankruptcy petitions against the respondents, finding they were brought for an improper collateral purpose and constituted an abuse of process orchestrated by the appellants.

The Court of Appeal upheld the costs order, noting that section 197(1) of the Bankruptcy and Insolvency Act gives the court broad discretion regarding costs, and that special policy considerations justify harsher costs consequences against persons who misuse the bankruptcy court for improper collateral purposes.

The appellant was convicted of possession of explosive substances with intent to endanger life or cause serious damage to property, and conspiracy to commit the same offence.

The main issue at trial was whether the appellant possessed the pipe bombs.

The trial judge instructed the jury on actual possession but failed to adequately explain the elements of constructive possession, particularly the requirement of control, in response to a jury question.

The Court of Appeal held that this omission was a fatal error, as constructive possession was a live issue.

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