OCA 2002

The appellant and his co-accused were charged with the second degree murder of their 14-month-old child.

Following a preliminary inquiry, the co-accused was committed for trial and the appellant was discharged.

The Crown successfully applied for certiorari to quash the discharge and commit the appellant to trial.

The appellant appealed the certiorari order.

The Court of Appeal dismissed the appeal, finding that the preliminary inquiry justice must have engaged in impermissible weighing of evidence, thereby committing jurisdictional error.

The appellant, a land surveyor, appealed a Divisional Court decision dismissing his application for judicial review.

The issue was whether a member of the Discipline Committee whose term of office expired could continue to participate in a disciplinary hearing that had only heard preliminary motions.

The Court of Appeal held that the hearing had 'commenced' and evidence had been 'heard' through the filing of exhibits, satisfying section 26(11) of the Surveyors Act.

Furthermore, the member had 'participated in a hearing' under section 4.3 of the Statutory Powers Procedure Act.

The appeal was dismissed, allowing the member to continue on the panel.

Following the release of reasons for judgment on May 17, 2002, the Court of Appeal received the respondents' Bill of Costs and written submissions from the parties.

Having regard to the success on appeal, the legal issues raised, and the submissions, the court awarded the respondents their costs on a partial indemnity basis, fixed at $10,500 inclusive of Goods and Services Tax and disbursements.

The appellant appealed his conviction on four counts of indecent assault and sought leave to appeal his 18-month sentence.

The appeal on conviction was based on the trial judge's charge to the jury regarding credibility, identity, and reasonable doubt.

The Court of Appeal found no reversible error in the jury charge and dismissed the conviction appeal.

On the sentence appeal, the Court found the trial judge erred in principle by stating inadequate supervision made a conditional sentence inappropriate, but ultimately held that an 18-month custodial sentence was fit given the nature of the historical offences against a young child.

The appeal was dismissed.

The insured died during coronary bypass surgery due to the unexpected failure of a heart-lung pump.

The trial judge found the death was accidental and that the policy's exclusion for death caused or contributed to by medical treatment did not apply.

The Court of Appeal allowed the insurer's appeal, holding that the clear language of the exclusion applied because the heart-lung pump was a necessary element of the surgical treatment, and its failure directly or indirectly caused or contributed to the death.

The appellants appealed a trial judgment declaring that the respondents were entitled to a prescriptive easement over a 66-foot wide road on the appellants' land.

The Court of Appeal found that while the respondents were entitled to an easement, the prescriptive right must be confined to the land continuously used, which did not exceed 25 feet in width.

The appeal was allowed, varying the judgment to limit the easement to the boundaries of the existing roadway, to be determined by a new survey prepared at the respondents' expense.

The appellant appealed his conviction for dangerous driving, arguing that the trial judge failed to properly apply the third step of the W.D. framework by not fully assessing and reconciling the evidence of the police officers after rejecting the appellant's evidence.

The Court of Appeal dismissed the appeal, finding that the trial judge gave full reasons, properly articulated his application of W.D., and made clear findings of fact based on the accepted and reliable evidence of the police.

The respondent purchased a vehicle from a client to settle a debt, without obtaining proper documentation or inquiring about the vehicle's history.

The vehicle was later stolen, and the police discovered it had been previously stolen before the respondent acquired it.

The respondent filed an insurance claim, which the insurer denied on the basis that he lacked an insurable interest.

The trial judge and Divisional Court applied the factual expectation test and ruled in favour of the respondent.

The Court of Appeal allowed the insurer's appeal, holding that the factual expectation test does not apply to stolen property and that the respondent's willful blindness regarding the vehicle's origins negated any claim of good faith, thereby depriving him of an insurable interest.

The parties were not married or living together when their child was born.

The mother registered the child's birth using her surname and did not acknowledge the father on the Statement of Live Birth, pursuant to s. 10(3)4 of the Vital Statistics Act.

The father applied for an order requiring the mother to execute a joint election form to change the child's name to a hyphenated surname.

The application was dismissed.

On appeal, the Court of Appeal upheld the decision, finding that the Act allows a mother to know the identity of the father but choose not to acknowledge him for the purpose of birth registration, thereby giving the child her surname.

Following the release of the court's judgment, the appellant failed to file written submissions regarding the remaining property issues affected by the respondent's bankruptcy.

Consequently, the appeal with respect to all remaining issues was dismissed as abandoned.

The court fixed the costs of the appeal payable to the respondent at $12,000 on a partial indemnity basis.

The appellant was convicted of first degree murder after shooting a 16-year-old girl with a sawed-off shotgun during a home invasion robbery.

On appeal, the appellant argued the trial judge erred in instructions regarding planning and deliberation, forcible confinement, re-examination of a Crown witness, and the limited use of a defence witness's preliminary inquiry testimony.

The Court of Appeal dismissed the appeal, finding no reversible errors in the first three grounds.

While the trial judge erred in failing to give a limiting instruction on the preliminary inquiry testimony, the Court applied the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, concluding the error caused no substantial wrong or miscarriage of justice.

The appellants appealed a judgment dismissing their claims for damages after the appellant slipped and fell in her apartment building's parking lot.

They argued the trial judge erred in admitting hospital and ambulance records regarding the mechanism of the fall, allowing them to be used as prior inconsistent statements, and in instructing the jury on the standard of care.

The Court of Appeal dismissed the appeal, finding the records were properly admitted as circumstantial evidence of prior inconsistent statements and the jury instructions on reasonable care were appropriate.

The appellant, a Canadian citizen, appealed his committal for extradition to the United States on a charge of sexual battery involving his daughter, and sought judicial review of the Minister of Justice's surrender order.

He argued that he had already been punished in Ontario for the same conduct, and that extradition would violate his rights under sections 6 and 7 of the Charter given the mandatory minimum sentence of life imprisonment without parole for 25 years in Florida.

The Court of Appeal dismissed the appeal and the application for judicial review, finding that the Ontario sentence did not punish him for the Florida conduct, the potential penalty did not shock the conscience of Canadians given the horrific nature of the offence, and prosecution in Canada was not a viable option.

The appellant advertising company challenged a municipal by-law that completely prohibited billboard signs and third party signs on private land.

The Court of Appeal held that billboard advertising is a form of commercial expression protected by section 2(b) of the Charter.

The Court found that the municipality failed to demonstrate under section 1 of the Charter that the total prohibition was a reasonable limit, as it was not rationally connected to preserving the town's character and did not minimally impair the right to freedom of expression.

The appeal was allowed and the by-law was declared invalid, with the declaration suspended for six months.

The appellant appealed a judgment ordering him and related companies to pay $229,080 to the respondents, arguing the claim was statute-barred.

The respondents cross-appealed the trial judge's reduction of the award by $174,944 and the refusal to award pre-judgment interest.

The Court of Appeal dismissed the main appeal, finding the action was commenced within the limitation period.

The Court allowed the respondents' cross-appeal regarding the $174,944 reduction, increasing the damages award to $404,024, but upheld the trial judge's refusal to award pre-judgment interest based on the parties' agreement.

The accused was found near an overturned car following a single-vehicle accident.

He smelled of alcohol, had facial injuries, and was talking gibberish.

The arresting officer arrested the accused for impaired driving but delayed making a breathalyzer demand for 59 minutes due to concerns for the accused's health, waiting until a doctor gave permission to speak to him.

The trial judge acquitted the accused of refusing to comply with a breathalyzer demand, reasoning that since there was insufficient evidence he was the driver, he was not obligated to take the test.

The Summary Conviction Appeal Court allowed the Crown's appeal, finding the trial judge erred in law and that the demand was made 'as soon as practicable'.

The Court of Appeal dismissed the accused's appeal, holding that the officer had reasonable and probable grounds for the arrest and that the demand was made as soon as practicable given the legitimate medical concerns.

The appellant's former solicitor obtained a charging order under the Solicitors Act against all sums receivable by the appellant under a divorce judgment, including spousal support arrears, for unpaid legal fees.

The appellant appealed the order.

The Court of Appeal allowed the appeal, holding that as a matter of law and public policy, charging orders should not be made against spousal support payments, as support is distinct from property and is intended to address demonstrable need.

The Ontario Securities Commission (OSC) appealed a Divisional Court decision that set aside an OSC order requiring disclosure of compelled material to respondents in a s. 127 proceeding.

The material, including audit files and testimony, had been compelled from Deloitte & Touche LLP during an investigation into Philip Services Corp. The Court of Appeal allowed the appeal and restored the OSC's order, finding that the Commission's application of the Stinchcombe relevance standard and its balancing of the public interest against Deloitte's confidentiality expectations were reasonable.

The appellants, various book publishers, appealed a decision determining that they did not have priority over the Bank of Nova Scotia regarding accounts receivable collected by the distributor, General Distribution Services Inc. (GDS).

The publishers argued that because they retained title to the books, they had priority.

The Court of Appeal dismissed the appeal, finding that the arrangement between the publishers and GDS did not require the segregation of funds, allowing GDS to mingle the proceeds with its own money.

Consequently, the relationship was one of debtor and creditor, not trustee and beneficiary, and the publishers did not hold a priority interest.

The appellant appealed his conviction for sexual touching of his five-year-old stepdaughter.

He argued the trial judge failed to adequately warn himself about the frailties of the child's evidence, erred in relying on confirmatory evidence, and rendered an unreasonable verdict.

The appellant also sought to introduce fresh evidence regarding an undisclosed interaction between the Crown and the complainant's mother outside the courtroom.

The Court of Appeal dismissed the appeal, finding the trial judge properly assessed the evidence and credibility.

The application to admit fresh evidence was dismissed as it did not meet the Babinski test for admission based on non-disclosure.