OCA 2002

The appellant was convicted of assault causing bodily harm following a fight outside a high school.

At trial, the judge rejected the testimony of an independent defence witness who corroborated the appellant's claim of self-defence, finding her unreliable and not impartial.

The majority of the Court of Appeal held that the trial judge misapprehended the witness's evidence, as the reasons given for rejecting her testimony were flawed.

The conviction was set aside and a new trial was ordered.

The Toronto-Dominion Bank appealed a trial judgment declaring that all debts under a line of credit extended to the respondents were discharged and ordering the discharge of a collateral mortgage.

The respondents had obtained a line of credit secured by a second mortgage on their home, along with life insurance that would repay the loan if either died.

The bank improperly calculated monthly interest payments, leading to an apparent default, and subsequently demanded repayment.

This demand automatically terminated the life insurance policy.

When one of the respondents later died, the insurance company denied coverage.

The Court of Appeal dismissed the bank's appeal, finding that the bank's breach of the loan agreement by taking more than the minimum monthly payment led directly to the default and the subsequent demand, which in turn caused the termination of the life insurance policy.

The appellants appealed a jury verdict dismissing their crossclaim against the respondent trailer manufacturer following a fatal motor vehicle accident.

The jury found the accident was caused solely by the negligence of the appellant driver and transport company.

On appeal, the appellants argued the verdict was unreasonable and challenged several evidentiary rulings, including the admission of a deceased driver's statement and log book entries, and the exclusion of coroner's inquest findings.

The Court of Appeal dismissed the appeal, finding the jury's verdict was amply supported by the evidence and the trial judge made no errors in his evidentiary rulings or jury instructions.

The appellant appealed a motions court decision answering questions on a special case under Rule 22.

The Court of Appeal upheld the motions judge's finding that s. 13 of Reg. 892 is intra vires the governing Act, as the Act's subrogation provisions are broad enough to cover payments made out of the guarantee fund.

The Court also found that the Corporation's expenses to rectify construction deficiencies in a condominium project qualified as payments triggering a right of subrogation.

The Corporation's right to subrogation was not defeated by the fact that the payments were made before the condominium corporation came into existence.

The appeal was dismissed.

The appellant appealed a trial judge's decision finding no agreement existed for the respondent to pay a real estate commission or finder's fee.

The Court of Appeal upheld the trial judge's conclusion that the three property 'flips' were part of one transaction for which the appellant had already earned a commission, and that the respondent had refused to sign an agreement for any further fee.

The appeal was dismissed.

The parties agreed on the disposition of costs following an appeal and cross-appeal.

The Court of Appeal ordered the appellants to pay costs to the respondent, Commercial Union Life Assurance Company of Canada.

Specifically, Steven Michael Overgaard was ordered to pay $25,000, JIIG Holdings Inc. was ordered to pay $20,000 for abandoned grounds of appeal, and MHI Brokers Ltd., JIIG Holdings Inc., and Steven Michael Overgaard were ordered to jointly and severally pay $5,000 for the cross-appeal.

The plaintiff brought a proposed class action against the manufacturers and the independent tester (ULC) of an allegedly defective smoke alarm, seeking damages for pure economic loss.

The defendants moved to strike the statement of claim as disclosing no reasonable cause of action.

The Court of Appeal held that the plaintiff could not maintain an action against the manufacturers whose products he did not purchase.

However, the court allowed the negligence claim against the manufacturer of his specific smoke alarm to proceed, finding it was not plain and obvious that a claim for pure economic loss based on a defective safety device would fail.

The negligence claim against the independent tester was struck out as it owed no prima facie duty of care to the purchaser.

The appellant sued for wrongful dismissal and payment of a bonus after being terminated for significantly misrepresenting his credentials to obtain his consulting position.

The trial judge dismissed the action and allowed the respondent's counterclaim for damages.

The appellant appealed only with respect to his bonus, arguing he had earned it through successful performance.

The Court of Appeal dismissed the appeal, holding that an employee dismissed for cause due to fraudulent misrepresentation of qualifications is not entitled to bonus remuneration, as the court will not assist a party to benefit from their own wrongdoing.

The appellant was convicted of three counts of first-degree murder for the deaths of his mother, aunt, and cousin.

At trial, he denied involvement, but his counsel advanced a defence of not criminally responsible (NCR) due to mental disorder.

The Crown called reply evidence from psychiatrists who had assessed the appellant under court order.

On appeal, the appellant challenged the constitutionality of the psychiatric assessment provisions, the jury instructions on the sequence of considering the NCR defence, the Crown's closing address, and the admission of evidence from a warrantless police entry into his apartment.

The Court of Appeal dismissed the appeal, finding that the constitutional challenge could not be raised for the first time on appeal due to a tactical decision at trial, the jury instructions did not constitute reversible error, and the warrantless entry was justified by exigent circumstances.

The applicant sought release from custody pending his new trial for first degree murder, having spent almost 10 years in custody.

The Court of Appeal had previously quashed his conviction due to errors regarding jailhouse informant testimony and bad character evidence.

The court found the applicant met his onus under section 515(10) of the Criminal Code, noting the Crown's case was now considerably weaker, the applicant had strong community ties, a positive institutional record, and posed minimal risk to the public.

The application for release was granted subject to strict conditions, including a cash deposit and substantial sureties.

The appellant appealed an order dismissing his action for failing to pay previously ordered costs and security for costs.

The appellant argued there were procedural deficiencies in how the dismissal order was obtained.

The Court of Appeal found no procedural defects, noting the appellant had been expressly warned that failure to comply by the deadline would result in dismissal without further notice.

The appeal was dismissed with costs.

The respondent estate brought a wrongful death action and sought a declaration that a proposed contingency fee agreement with its lawyers was not prohibited by the Champerty Act.

The applications judge granted the declaration.

The Attorney General appealed.

The Court of Appeal held that contingency fee agreements are no longer per se champertous at common law, as the historic rationale for absolute prohibition is no longer justified and access to justice concerns favour their use.

However, a specific agreement may still be champertous if the lawyer has an improper motive, which can be assessed by examining the reasonableness and fairness of the fee structure.

Because the proposed fee was based on a percentage of recovery without a cap, it was premature to determine its fairness before the litigation concluded.

The appeal was allowed and the declaration set aside.

The appellant brought a motion to introduce fresh evidence and to amend his statement of claim on appeal.

The court granted both requests, finding that the interests of justice favoured admitting the evidence, which had been read to the motions judge but not marked as an exhibit.

The court also permitted the amendment to the statement of claim, which effectively withdrew an admission, and imposed terms to address any prejudice to the respondents.

The appellant appealed a disposition of the Ontario Review Board directing his detention at a mental health facility with limited community access and a driving prohibition.

The disposition was made despite expert evidence indicating the appellant's risk of violence from alcohol abuse could be managed through supervised administration of antabuse while living in the community.

The Court of Appeal allowed the appeal, finding the Board failed to provide adequate reasons for rejecting the expert evidence and did not explain why the imposed conditions satisfied the criteria under section 672.54(c) of the Criminal Code.

A new hearing was ordered.

The appellant appealed a decision regarding her entitlement to Indian status, alleging the Registrar unconstitutionally presumed her unknown paternal grandfather was not an Indian.

The Court of Appeal dismissed the appeal, finding the Registrar simply applied the Indian Act and did not employ the alleged presumption.

The Court noted the appellant could still challenge the constitutionality of the Indian Act and the Registrar's decision in separate proceedings.

The appellant appealed his conviction for sexual interference and sought leave to appeal his sentence of two years less a day.

He argued the trial judge erred in admitting similar act evidence, failing to resolve an alleged recantation by a witness, and failing to properly consider collusion.

The Court of Appeal dismissed the conviction appeal, finding no error in the admission of the similar act evidence and noting the verdict was amply supported by the uncontradicted evidence of the complainant.

The sentence appeal was also dismissed, as the appellant was in a position of trust, the abuse occurred over six years, and he had a prior criminal record.

Following a successful appeal, the appellant submitted a bill of costs.

The respondent failed to provide responding submissions.

The Court of Appeal assessed the costs based on the appellant's bill and awarded costs on a partial indemnity scale fixed at $11,642.36 inclusive of GST and disbursements.

The appellant appealed his convictions for assault, assault with a weapon, threatening death, unlawful confinement, and breach of undertaking, as well as his designation as a long-term offender.

The offences were committed against his wife over an eight-day period.

The Court of Appeal dismissed the conviction appeal, finding the trial judge properly assessed the complainant's evidence and the verdict was not unreasonable.

The sentence appeal was also dismissed, as the long-term offender designation was well founded on evidence of a pattern of spousal abuse and a substantial risk of re-offending.

The appellant appealed his convictions and sentence of eight years for assault causing bodily harm, robbery, extortion, forcible confinement, aggravated assault, and theft over.

The charges arose from a vicious beating and robbery where the appellant was identified by eyewitnesses and ATM surveillance footage.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's refusal to exclude the appellant's criminal record under Corbett, the admission of evidence regarding a child witness's identification, or the handling of a Crown interruption during closing arguments.

The sentence appeal was also dismissed, as the disparity between the appellant's sentence and his co-accused's was justified by the appellant's role as the instigator and his prior record.

The appellant was convicted of sexual assault and sexual interference against his step-daughter.

He appealed, arguing the trial judge misdirected the jury on reasonable doubt and seeking to introduce fresh evidence of post-trial statements by the complainant and her mother.

The Court of Appeal dismissed the appeal, finding the jury instructions complied with W.(D.) and Lifchus, and the proposed fresh evidence was not credible, reliable, or capable of affecting the verdict.