OCA 2002

The appellants, an engineer and his company, sued for defamation after the respondent lawyer wrote a letter on behalf of his client, a gas company, describing the engineer's allegations about a gas heater explosion as 'professionally irresponsible if not deceitful or at worst malicious'.

The trial judge dismissed the action on the basis of qualified privilege.

The Court of Appeal upheld the decision, finding that the lawyer's letter was written on an occasion of qualified privilege to protect his client's interests, was sent only to those who received the engineer's initial letter, was not motivated by malice, and used language that was reasonably appropriate to the occasion.

The appellant solicitor appealed an order requiring him to fulfill a solicitor's undertaking to repay a $50,000 loan to the respondent from mortgage financing.

The appellant breached the undertaking by paying the funds directly to the debtor.

The appellant argued the debt had already been paid by the debtor but provided only an affidavit based on information and belief, contrary to Rule 39.01(5).

The applications judge refused an adjournment to summons the debtor and ordered the appellant to pay the sum plus prejudgment interest.

The Court of Appeal dismissed the appeal, emphasizing that solicitors must be strictly accountable for their undertakings and noting the lack of admissible evidence supporting the appellant's claims.

The appellant appealed a motions judge's decision finding a concluded settlement between the parties for $12,000.

The Court of Appeal upheld the finding of a settlement, noting that correspondence confirmed the agreement and the appellant's former counsel conceded the amount.

However, the Court varied the order to direct that the $12,000 settlement amount, plus accrued interest, be paid to the appellant out of money held in court.

The respondent's cross-appeal for costs of the motion was dismissed, and no costs were awarded for the appeal.

The appellant appealed his convictions and sentences for sexually assaulting his three young granddaughters.

The Crown's case rested entirely on the evidence of the three complainants.

The appellant argued that the trial judge erred by failing to specifically instruct the jury that a finding of collusion among the complainants would diminish their credibility, and by improperly addressing Crown counsel's remarks regarding the absence of medical evidence.

The Court of Appeal dismissed the conviction appeal, finding no reversible error in the jury instructions.

The court also dismissed the sentence appeal, upholding the total sentence of 8 years' imprisonment given the egregious breach of trust, the severity of the assaults, and the appellant's prior conviction for a similar offence.

The appellant submitted the lowest acceptable bid in response to a Request for Proposals for a computer cabling project.

Due to a budget reduction, the respondent school board negotiated with the three lowest bidders instead of solely with the appellant, ultimately awarding the contract to another bidder.

The appellant sued for breach of the duty of fairness and good faith.

The trial judge dismissed the action, finding the board was permitted to conduct wider negotiations and that any differing treatment during negotiations did not affect the outcome.

The Court of Appeal upheld the trial judge's decision and dismissed the appeal.

The appellant pleaded guilty to theft over $5000 for stealing telephones and equipment from his employer, Bell Canada, to fund a gambling addiction.

He was sentenced to six months' imprisonment, 18 months' probation, 240 hours of community service, and ordered to pay $90,000 in restitution.

The appellant appealed the sentence, arguing for a conditional sentence.

The Court of Appeal dismissed the appeal, finding no error in the sentencing judge's conclusion that denunciation and general deterrence required a custodial sentence given the magnitude, duration, and breach of trust involved in the offence.

The appellant appealed a summary judgment dismissing its claims against the respondent Comstock for inducing breach of contract and assisting in a breach of fiduciary duty.

The motions judge had found that any breach of contract occurred before Comstock was approached and that the relationship between the appellant and the co-defendant was merely that of contractor and sub-contractor.

The Court of Appeal allowed the appeal, finding that competing inferences could be drawn from the evidence regarding the timing of the breach and the nature of the appellant's involvement in the design-build project, thereby raising triable issues.

The plaintiff, a senior communications consultant, was wrongfully dismissed after one year of employment.

A jury awarded her 12 months' notice (including a three-month Wallace extension for bad faith) and $75,000 in punitive damages.

The employer appealed.

The Court of Appeal upheld the 12-month notice period, finding the employer's conduct in maintaining cause allegations and withholding commissions justified the Wallace extension.

However, the court set aside the punitive damages award, finding no independent actionable wrong and that the generous compensatory award was sufficient to deter the employer's conduct.

The court also ordered a new trial on the limited issue of whether the plaintiff's compensation included revenues from the Montreal office, as the trial judge had unfairly precluded the employer from leading evidence on this point.

The Minister of Finance appealed a decision granting the University of Waterloo a retail sales tax rebate for the construction of a student residence.

The University claimed the rebate as a charitable organization.

The Court of Appeal held that while the University is a charitable organization, the applicable regulations explicitly exclude buildings or structures that are a university from the rebate.

The Court found that a student residence is an integral part of the university's institutional framework.

The appeal was allowed, and the University was found ineligible for the rebate.

The appellant father appealed an order granting him limited, supervised access to his three-year-old son of one visit per year.

The application judge had restricted access due to the father's history of domestic violence, failure to exercise previous access, and the child's young age.

The Court of Appeal upheld the requirement for supervised access to establish a relationship but found one visit per year too restrictive.

The court varied the order to allow the father to exercise supervised access three times per year for a seven-day period each time.

The appellant was convicted of first degree murder after the deceased was found strangled in his apartment building.

At trial, the Crown introduced similar fact evidence of a prior sexual assault committed by the appellant against a prostitute four years earlier to prove identity.

The appellant appealed the conviction, arguing the similar fact evidence was improperly admitted and challenging the jury instructions on reasonable doubt and DNA evidence.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the similar fact evidence lacked the high degree of similarity required to prove identity and was highly prejudicial.

The appellants appealed their convictions for robbery and possession of a weapon for a purpose dangerous to the public peace.

One appellant argued the trial judge erred in assessing eyewitness identification evidence, while the other argued the trial judge made inconsistent findings regarding his control of the weapons and role in the robbery.

The Court of Appeal dismissed both appeals, finding that the trial judge's findings were not inconsistent and that the convictions were supported by the totality of the circumstantial and identification evidence.

The appellant appealed the dismissal of his claims regarding the distribution of proceeds from two estate-freeze trusts.

The appellant was a potential beneficiary, but the trustees exercised their broad discretion to deny him any benefit.

The appellant argued there was a triable issue of breach of trust and fraud on a power.

The Court of Appeal dismissed the appeal, finding no triable issue of breach of trust given the trustees' broad discretion.

The Court further held that even if the distribution were set aside for fraud on a power, the trustee would retain discretion and had made it clear he would not exercise it in favour of the appellant.

The appellant appealed his conviction and sentence for sexual assault, arguing the trial judge erred in her jury charge regarding post-offence conduct and expert evidence concerning a drug associated with amnesia.

The Court of Appeal dismissed the appeal, noting the trial was brief, the factual scenario was easy to understand, and defence counsel's failure to object to the charge was significant.

The court found no merit in the other grounds raised and denied leave to appeal the sentence.

The appellants appealed a judgment dismissing their claim for partition and sale and granting other relief.

The Court of Appeal upheld the dismissal of the partition and sale claim, finding that the joint venture agreement provided a proper basis for denying this relief.

However, the Court found material facts in dispute regarding mortgage disclosure and directed those issues to proceed to trial.

The appeal was allowed in part.

The appellant appealed the dismissal of her action against a corporate officer and director.

The motion judge had dismissed the action on the grounds that the statement of claim failed to disclose a reasonable cause of action and that there was no genuine issue for trial regarding negligent misrepresentation.

The Court of Appeal allowed the appeal, finding that the statement of claim did plead sufficient facts to support the claim and that there were genuine issues for trial on the evidentiary record.

The appellant appealed his conviction, arguing the trial judge erred in responding to a jury question about reasonable doubt and by holding an in-chambers conference regarding the jury's request to clear the courtroom for the verdict.

The Court of Appeal dismissed the appeal, finding the trial judge's repetition of the original reasonable doubt charge was appropriate.

The court also held that the in-chambers conference was not inappropriate, caused no prejudice, and any irregularity was cured by section 686(1)(b)(iv) of the Criminal Code.

The Crown appealed the accused's acquittal on charges of failing to comply with a probation order and breaching a prohibition order relating to children.

The accused, who was subject to an order prohibiting him from attending public swimming areas where children might be present, went swimming in his condominium complex's pool.

The trial judge acquitted him, finding the pool was not a 'public swimming area'.

The Court of Appeal allowed the appeal, holding that the pool, which was accessible to 8,000 residents and outside members, fell within the definition of a public place.

The acquittals were set aside and a new trial was ordered.

The appellant appealed his convictions for attempted murder and related firearm offences, as well as his sentence of 16.5 years imprisonment with a parole ineligibility order.

The appellant shot the complainant, leaving her paralyzed.

On appeal, he challenged the jury instructions on the challenge for cause process, intent, reasonable doubt, and the complainant's denials, as well as the admission of similar act evidence.

The Court of Appeal found no reversible errors in the conviction but set aside the parole ineligibility order as the trial judge provided no reasons to support it.

The appeal was otherwise dismissed.

The appellant was convicted of first degree murder on the basis that he forcibly confined the deceased while causing his death.

He appealed the conviction, arguing that the trial judge erred in several aspects of the jury charge, including the definition of forcible confinement and instructions on self-defence, and that the verdict was unreasonable.

The Court of Appeal found no errors in the jury charge and concluded that there was sufficient circumstantial and expert evidence from which a properly instructed jury could reasonably infer that the deceased had been forcibly confined.

The appeal was dismissed.