OCA 2002

The self-represented appellant appealed four Certificates of Assessment of Costs issued by an assessment officer following the dismissal of his earlier appeal.

The appellant raised numerous objections, including allegations that the respondents' claims for costs were fraudulent, that one corporate respondent did not exist, and that the assessment officer demonstrated bias.

The Court of Appeal dismissed the appeal, holding that the assessment officer's duty was to assess costs in accordance with the court's order, not to look behind it or review the underlying basis of the claims.

The court found no foundation for the appellant's allegations of fraud or bias.

The plaintiff, an Ontario resident, was injured in a single-car accident in New York State while a passenger in a vehicle owned and driven by Ontario residents.

The plaintiff brought an action in Ontario.

The motions judge applied the lex fori (Ontario law) as an exception to the general rule of lex loci delicti, reasoning that all parties were from Ontario and applying Ontario's no-fault policy was appropriate.

The Court of Appeal allowed the appeal, holding that the lex loci delicti (New York law) must apply.

The Court found that the narrow exception to the rule in Tolofson v. Jensen is only available to avoid an injustice, and mere differences in public policy or damage recovery schemes between jurisdictions do not constitute such an injustice.

The appellant appealed sentence following convictions for multiple sexual offences committed against four very young boys over several years while occupying positions of trust.

The court rejected the submission that a six-year sentence in an earlier authority represented the high-water mark for prolonged child sexual abuse cases.

It held that where an adult in a position of trust regularly abuses young children over a substantial period, mid to upper single-digit penitentiary terms are generally appropriate, and where the abuse includes intercourse, violence, threats, or extortion, upper single-digit to low double-digit terms will generally be fit.

Given the repeated anal intercourse, threats, extortion, physical violence, grooming, and devastating victim impact, the sentence imposed was at the lower end of the appropriate range.

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

The appellants sought to claim a federal sales tax refund belonging to a bankrupt company, relying on assignments made prior to and during the bankruptcy.

The trustee in bankruptcy held the refund and argued the assignments were invalid.

The Court of Appeal held that the tax refund was a 'Crown debt' under the Financial Administration Act, which prohibits the assignment of such debts.

The court also found that the general power of a trustee to sell assets under the Bankruptcy and Insolvency Act does not override this specific prohibition.

The appeal was dismissed.

The appellant condominium corporation and the original developer entered into a reciprocal agreement to share expenses for a recreational facility.

The developer's successor in title, the respondent, refused to pay the interim expenses.

The appellant argued that the positive covenant to pay expenses ran with the land or was enforceable under the English benefit and burden or conditional grant exceptions.

The Court of Appeal held that positive covenants do not run with freehold land and declined to adopt the English exceptions, stating that any reform to this area of property law must be undertaken by the legislature.

The appeal was dismissed.

The appellant husband appealed a motion judge's finding that a binding settlement had been reached in a divorce proceeding.

The parties had exchanged correspondence regarding an equalization payment, the payment of the children's lawyer's fees, and the handling of life insurance policies.

The Court of Appeal upheld the motion judge's finding that the parties had reached a consensus ad idem on all essential terms, noting that the husband's self-serving affidavit did not raise a triable issue.

The appeal was dismissed with costs awarded to the respondent wife.

The appellants pleaded guilty to fraud exceeding $5000 for operating an elaborate modelling agency scam that defrauded hundreds of victims of over $400,000.

They were sentenced to custodial terms of two years less a day and 15 months.

On appeal, they argued the trial judge erred by not imposing conditional sentences, citing disparity with a co-accused and the fact that they now had a young child.

The Court of Appeal dismissed the appeals, finding the custodial sentences were amply justified by the appellants' roles in the enterprise and the devastating effects of the fraud on the victims.

The appellant appealed his first-degree murder conviction, arguing that DNA evidence obtained from discarded chewing gum and a subsequent blood sample should have been excluded.

The police had tricked the appellant into chewing and discarding gum to obtain his DNA after he refused to provide a sample.

The Court of Appeal held that while the warrantless seizure of the gum violated section 8 of the Charter, the evidence was admissible under section 24(2).

The court also dismissed grounds of appeal relating to the voluntariness of a police statement and the jury instruction on reasonable doubt, finding any errors to be harmless or in substantial compliance with legal standards.

The appeal was dismissed.

The Ontario Court of Appeal heard two appeals concerning the definition of 'spouse' under Ontario's social assistance legislation.

In the Falkiner appeal, the court held that the 1995 'spouse in the house' rule, which presumed a spousal relationship based on co-residency and financial arrangements, violated s. 15(1) of the Charter.

The court recognized 'receipt of social assistance' as an analogous ground of discrimination and found the definition discriminated on the basis of sex, marital status, and receipt of social assistance.

The violation was not justified under s. 1.

In the Thomas appeal, the court found the Board erred in classifying a disabled man and his caregiver as spouses without considering if the relationship was marriage-like or accounting for his disability.

The government's appeal in Falkiner was dismissed, and Thomas's appeal was allowed.

The appellant appealed a finding that she breached a condition of her conditional sentence by failing to report to a drug rehabilitation program.

She argued the appeal was moot, the hearing did not commence within the 30-day statutory limit under s. 742.6(3) of the Criminal Code, and the judge erred in finding a breach.

The Court of Appeal held the appeal was not moot, the hearing commenced within the required time when the judge took jurisdiction, and the obligation to attend the program was continuous.

The appeal was dismissed.

The plaintiff was injured by a crank while attempting to connect his transport truck to a tomato wagon owned by the defendant in a farmer's field.

The defendant appealed a motion judge's finding that the tomato wagon was not an 'automobile' under s. 267.1(1) of the Insurance Act, which would have precluded the plaintiff's action for damages.

The Court of Appeal dismissed the appeal, holding that because the tomato wagon was not being operated on a public highway at the time of the accident, it was not required to be insured under the Compulsory Automobile Insurance Act, and therefore did not fall within the expanded definition of 'automobile' in the Insurance Act.

The appellant was injured in a motor vehicle accident and sought a determination of whether she could recover no-fault medical and rehabilitation benefits beyond the 10-year benefit period under the Statutory Accident Benefits Schedule, provided the need for such expenses was established with certainty within the 10-year period.

The Court of Appeal held that the plain meaning of section 6(1) of the SABS requires that the expenses result within the benefit period.

Therefore, expenses for treatments and services provided beyond the 10-year anniversary of the accident are not recoverable.

The appeal was dismissed.

The appellant was convicted of attempted murder and other offences following a shooting at his high school.

At trial, he was found fit to stand trial and did not raise a defence of not criminally responsible on account of mental disorder (NCRMD).

On appeal, fresh psychiatric evidence established that the appellant suffered from severe paranoid schizophrenia and was NCRMD at the time of the offences.

However, the appellant was too mentally ill to participate in his appeal or instruct counsel.

The Court of Appeal held that it had jurisdiction to hear the appeal despite the appellant's incompetence, as the Criminal Code does not require an appellant to be fit to prosecute an appeal, provided procedural fairness is ensured.

The Court allowed the appeal and substituted a verdict of NCRMD, finding that a new trial was unnecessary given the conclusive fresh evidence.

The minor plaintiff was allegedly attacked by the insureds' son on school property.

The plaintiff sued the son for intentional torts and the parents for negligent supervision.

The parents' homeowner's insurer denied coverage and refused to defend the action, relying on an exclusion clause for intentional or criminal acts by 'any person or any named insured'.

The parents successfully brought a motion for summary judgment declaring the insurer had a duty to defend them.

The insurer appealed.

The Court of Appeal dismissed the appeal, finding the exclusion clause ambiguous as to whether the intentional act of one insured excluded coverage for all insureds, including those sued in negligence.

The ambiguity was resolved in favour of the insureds.

The employer and union agreed to reduce work hours for certain employees without loss of income, but the drafted collective agreement contained an error in the pay scales.

The employer corrected the error when calculating retroactive pay, prompting a union grievance.

The arbitrator rectified the collective agreement to reflect the true agreement, but the Divisional Court quashed the award, holding that arbitrators lack jurisdiction to apply rectification.

The Court of Appeal allowed the employer's appeal, holding that developments in labour law have expanded arbitrators' remedial powers, giving them exclusive jurisdiction to apply the law of the land, including the equitable remedy of rectification, despite a 'no alteration' clause in the agreement.

The appellant challenged convictions for multiple sexual offences against nine child complainants spanning three periods over three decades, arguing that evidence from earlier family-based abuse should not have been admitted as similar fact evidence on later allegations involving unrelated children.

The court held that similar fact evidence need not show striking similarity where identity is not in issue and credibility is central.

In the context of a multi-count indictment, the trial judge was entitled to find a sufficient pattern of opportunistic sexual predation and distinctive sexual conduct to give the evidence significant probative value outweighing prejudice.

The limiting instruction properly guarded against prohibited bad character reasoning.

The conviction appeal and the related dangerous offender appeal were dismissed.

The parties owned adjoining cottage properties and shared a mutual driveway.

In 1955, their predecessors in title signed an unregistered agreement granting each other a right-of-way over an 8-foot strip of their respective properties.

The actual driveway used by the parties over the next 45 years expanded into a keyhole shape.

When the appellant purchased her property and attempted to fence the boundary, the respondent successfully applied for a declaration of a prescriptive easement over the expanded driveway.

The appellant appealed, arguing that section 31 of the Limitations Act precludes a prescriptive easement where the use originated in a written agreement.

The Court of Appeal dismissed the appeal, holding that the 1955 agreement created a use as of right, not a permissive use, and therefore the statutory bar did not apply.

The Court also upheld the applications judge's findings on the dimensions and necessity of the easement.

The moving parties sought to review an order of a single judge of the Court of Appeal refusing a stay of an order enforcing Letters Rogatory from a California court.

They argued the original Letters Rogatory were null and void, depriving the court of jurisdiction.

The Court of Appeal dismissed the motion, finding no serious issue to be tried.

The court held that under s. 60 of the Evidence Act, jurisdiction is established when it is made to appear that a foreign court has duly authorized a request, and the moving parties failed to challenge the validity of the request at the original hearing.

The appellant signed a distributorship and membership agreement with a company that was never legally incorporated due to restrictions under the Ontario Business Corporations Act.

The respondent sued on a promissory note related to the agreement.

The trial judge initially dismissed the action, finding the contracting company was not a legal entity.

However, after allowing a motion to call further evidence, the trial judge reversed her decision, finding the unincorporated company and a similarly named incorporated company were the same entity.

The Court of Appeal allowed the appeal, holding that the trial judge erred in reversing her initial, well-reasoned decision based on inadequate clerical evidence.

The contract was formed with a non-legal entity and was therefore unenforceable.

The mother, who had primary residence of the children under a joint custody agreement, appealed a motions judge's order refusing to permit her to relocate with the children from Delhi to Tecumseh for new employment.

The Court of Appeal allowed the appeal, finding the motions judge erred in principle by failing to give sufficient consideration to the custodial parent's views, the children's wishes, and the enhancement of the mother's ability to care for the children, as required by Gordon v. Goertz.

The mother was permitted to move, with an order to share travel for the father's access.