OCA 2002

The appellant appealed the dismissal of its copyright infringement action and the assessment of damages awarded to the respondents under an undertaking given for an interlocutory injunction.

The appellant alleged the respondents' computer program infringed its copyright.

The trial judge found no copying of protectable expression, noting that similarities were dictated by functional considerations or were not protectable by copyright.

The Court of Appeal upheld the trial judge's findings on copyright infringement, including the application of the idea/expression dichotomy and the merger doctrine.

The Court also upheld the damages award of over $6.8 million for losses caused by the interlocutory injunction, finding the damages were reasonably foreseeable and caused by the injunction.

The appeal was dismissed.

The appellant landlord appealed a decision declaring that it unreasonably withheld consent for the respondent tenant, Loblaws, to change its supermarket banner to 'No Frills' and temporarily close for renovations.

The Court of Appeal dismissed the appeal, finding no error in the application judge's interpretation of the lease's use and continuous operation provisions.

The court applied a deferential standard of review to the factual findings and upheld the refusal to admit new evidence.

The appellant appealed his second-degree murder conviction and applied to introduce fresh evidence, including new DNA test results and factual evidence regarding scabs on his hands.

The Court of Appeal applied the Palmer test and found that the fresh DNA evidence, which excluded the appellant and pointed to an alternative suspect, could reasonably be expected to have affected the result at trial.

The fresh factual evidence regarding the source of the appellant's hand injuries was also admitted.

The conviction was set aside and a new trial ordered.

The plaintiff bank mistakenly wired a duplicate payment of $60,101 USD to the corporate defendant's account due to a clerical error.

The defendants refused to return the funds, arguing the bank's client owed them money.

The motion judge granted summary judgment for the bank.

On appeal, the Court of Appeal upheld the judgment against the corporate defendant, finding it was against conscience to retain money paid under a mistake of fact.

However, the appeal was allowed with respect to the individual defendant, as there was no basis for personal liability.

The 80-year-old appellant pled guilty to tax evasion for failing to remit over $600,000 in GST.

He was sentenced to a 12-month conditional sentence, a mandatory fine equal to the tax evaded, and 9 months' imprisonment in default of paying a portion of the fine.

On appeal, the appellant argued he lacked the ability to pay and that a conditional sentence should be available for the default period.

The Court of Appeal upheld the finding on ability to pay but, applying its recent decision in R. v. Wu, allowed the appeal to substitute a 9-month conditional sentence in default of payment of the fine.

The appellant appealed his convictions for second degree murder and the increase of his parole ineligibility period from ten to fifteen years.

The appellant argued that the trial judge erred in instructing the jury on the defence of drunkenness, the meaning of reasonable doubt, and the distinction between inferences and speculation.

The Court of Appeal found that the trial judge's instructions were adequate and substantially complied with the principles in Lifchus.

The court also found no error in principle regarding the sentence, concluding it was not manifestly excessive.

The appeal from conviction and sentence was dismissed.

The provincial government cancelled the Niagara Tender Fruit Lands Program and breached a contract to purchase a restrictive covenant from the respondent landowners.

The arbitrator awarded the landowners the full purchase price of the covenant plus consequential damages.

On appeal, the Court of Appeal held that awarding the full purchase price amounted to double recovery, as the landowners retained their unencumbered land and regained the freedom to sell it.

The award for the purchase price was deleted, but the award for consequential interest costs was upheld and increased.

The appellant appealed his conviction and the finding that he was a dangerous offender.

On the conviction appeal, he argued the trial judge erred in instructing the jury on evidence of his assault on police officers at the time of arrest and failed to properly summarize the defence's position.

The Court of Appeal dismissed the conviction appeal, finding no misdirection and noting the overwhelming evidence of guilt.

On the sentence appeal, the appellant argued the trial judge gave undue weight to an expert's opinion that relied on other experts not called as witnesses.

The Court dismissed the sentence appeal, finding the expert was entitled to rely on the material and the dangerous offender finding was fully supported by the evidence.

The young person appellant was convicted of sexual assault and related offences against a 13-year-old complainant.

He appealed the convictions, arguing the trial judge misapprehended the evidence and seeking to introduce fresh evidence of a prior inconsistent statement by the complainant.

He also appealed his sentence of three months in secure custody followed by 20 months of probation.

The Court of Appeal dismissed the appeal, finding no misapprehension of evidence by the trial judge.

The court also rejected the fresh evidence, concluding it did not meet the Palmer test as it would not have affected the trial's outcome.

The sentence was upheld as fit and reflecting no error in principle.

The appellants appealed a trial judgment finding that the respondent was constructively dismissed when his employment contract was unilaterally changed from an indefinite hiring to a fixed-term contract.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings on constructive dismissal, the requirement to assign a keyman insurance policy, the calculation of damages based on the previous contract, and the award of a Wallace extension.

The court also declined to order reimbursement for lieu time payments or an accounting for pension payments.

The appellants appealed a jury verdict apportioning liability for a motor vehicle accident involving a child on a rock slide, and the trial judge's award of a $25,500 costs premium to the plaintiffs.

The Court of Appeal upheld the jury's finding that the driver was only 10% responsible, noting the high threshold for interfering with a jury's apportionment.

The court also upheld the costs premium but allowed an amendment to reduce the judgment by $10,921.44 based on recent case law.

The appellants appealed a summary judgment dismissing their claims against the respondents and a real estate agent.

The appellants argued that a release signed in blank was only to be used if a first real estate transaction did not close, alleging the two transactions were linked.

The majority of the Court of Appeal dismissed the appeal, agreeing with the motion judge that the parol evidence rule precluded evidence of the alleged linkage, as the documentation contained no such linkage and was reviewed by the appellants' lawyers.

The claim against the real estate agent, also based on the alleged linkage, was similarly dismissed.

Borins J.A. dissented, finding a genuine issue for trial regarding the release's provenance and the agent's alleged breach of fiduciary duty.

The appellant landlords leased commercial space to the respondent, who subsequently assigned the leases.

The assignee became insolvent and repudiated the leases pursuant to s. 65.2 of the Bankruptcy and Insolvency Act.

The landlords sued the original tenant for rent arrears.

The motion judge dismissed the actions, finding the repudiation terminated the leases for all purposes.

The Court of Appeal allowed the appeal, holding that a repudiation under s. 65.2 only affects the obligations of the insolvent assignee and does not terminate the lease or release the original tenant from its primary liability to the landlord.

The appellant appealed his convictions for robbery and wearing a face mask.

He argued that the trial judge erred by refusing to declare a mistrial following the Crown's opening address, that his s. 10(b) Charter rights were violated, that the jury instructions on reasonable doubt were flawed, and that the verdicts were unreasonable.

The Court of Appeal dismissed the appeal, finding that curative instructions remedied any prejudice from the opening address, the appellant had waived his right to counsel, the jury instructions on reasonable doubt were sufficient when read as a whole, and there was ample evidence to support the convictions.

The Court of Appeal issued a costs endorsement for five related appeals concerning jurisdiction in personal injury cases.

The successful parties sought partial indemnity costs, while the unsuccessful parties argued for no costs or reduced costs.

Noting that the appeals involved a difficult jurisdictional issue with conflicting authorities and that the joint hearing added to the costs, the court departed from the ordinary rule that costs follow the event.

No costs were awarded in four of the appeals, and costs were reserved to the trial judge in the fifth appeal.

The appellant appealed an order finding that a licence granted by the respondent agricultural society was terminable at will.

The Court of Appeal held that a licence is not revocable at will, but remains in effect in equity in accordance with the terms of the original contract, and was revocable by the society only if necessary to carry out its reasonable purposes, including for cause.

The appeal was allowed and the matter remitted to the Superior Court to determine whether the licence was properly terminated for cause.

The appellant appealed a four-year consecutive sentence imposed for robbery and robbery with a firearm, arguing it created an unjustified disparity with his co-accused.

The co-accused, who was older and played an equal role, received a global sentence of seven years for the same offences.

The Court of Appeal agreed that the appellant's global sentence should not be four years longer than his co-accused's.

The appeal was allowed, and the four-year sentence was varied to be concurrent with the appellant's existing seven-year sentence.

The appellant developer appealed a summary judgment dismissing its claim for specific performance of an alleged agreement to purchase development lands for over $45 million.

The appellant argued that the respondents' negotiators had actual or ostensible authority to conclude the agreement.

The Court of Appeal dismissed the appeal, finding no evidence of actual authority and no representations by the principals to support a finding of ostensible authority.

The appellant was convicted of sexual assault against a young girl.

On appeal, the appellant argued that the trial judge failed to instruct the jury on the presumption of innocence, despite instructing them on reasonable doubt in accordance with Lifchus.

The Court of Appeal held that without an instruction on the presumption of innocence, the jury could not properly apply the burden of proof.

The failure to object by counsel could not cure such a fundamental error.

The appeal was allowed, convictions quashed, and a new trial ordered.

The Crown appealed a 30-day conditional sentence imposed on the respondent for two counts of breach of probation.

The respondent, a paedophile with a major mental illness and borderline normal intelligence, had breached a probation order by communicating with young boys.

The trial judge imposed a short conditional sentence to account for pre-sentence custody and to facilitate the respondent's reintegration, including finding a residence and resuming medication.

The Court of Appeal dismissed the appeal, finding no error in principle and deferring to the trial judge's assessment of this highly unusual and difficult case.