OCA 2003

Following a successful appeal, the court determined the costs of the proceedings below.

The defendants had made an offer to settle for $35,000, which the plaintiffs did not accept.

Because the plaintiffs ultimately recovered less than the offered amount, Rule 49.10(2) applied.

The plaintiffs were awarded partial indemnity costs up to the date of the offer, fixed at $15,000, and the defendants were awarded partial indemnity costs thereafter, fixed at $30,000.

The appellant appealed his conviction and sentence for extortion.

The Court of Appeal dismissed the conviction appeal, finding the evidence supported the trial judge's conclusion that the appellant assaulted and threatened the complainant to obtain money owed.

However, the Court allowed the sentence appeal, finding the original sentence of three years and four months disproportionate despite the appellant's prior extortion conviction.

The sentence was varied to two years.

The Crown appealed a summary conviction appeal decision that overturned the accused's conviction.

The summary conviction appeal judge had found that the trial judge erred in admitting the certificate of a qualified technician, applying the criminal standard of proof to whether the accused received a true copy under s. 258(7) of the Criminal Code.

The Court of Appeal allowed the appeal, holding that the standard of proof for admissibility under s. 258(7) is a balance of probabilities.

The arresting officer's evidence that he read through the copy to ensure it matched the original was sufficient to support the trial judge's finding.

The conviction and sentence were restored.

The appellant appealed his conviction and sentence for a sexual offence involving a young complainant.

He argued the trial judge erred in the jury charge regarding reasonable doubt, eye-witness identification, and in exhorting the jury.

The Court of Appeal dismissed the conviction appeal, finding the instructions proper.

The sentence appeal was also dismissed, as the trial judge appropriately weighed character evidence against the aggravating factors of grooming and a quasi-trust position, making a conditional sentence inappropriate.

The appellant, a former lawyer, was convicted of six counts of fraud and one count of theft related to the misappropriation of client funds in a land development scheme.

He appealed his convictions and his sentence of 20 months' imprisonment and $164,000 in restitution.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's dismissal of the appellant's Charter motion for unreasonable delay, and concluding that the verdicts were reasonable and the jury instructions were adequate.

The court also upheld the sentence, finding no error in the trial judge's refusal to impose a conditional sentence.

The appellant sought to certify a class action against life insurance companies for allegedly deceptive sales of 'premium offset' or 'vanishing premium' policies.

The motions judge and Divisional Court refused certification, finding that the claims required individual assessments of the unique sales experiences and representations made to each policyholder.

The Court of Appeal dismissed the appeal, holding that the proposed common issues did not represent a substantial ingredient of each class member's claim and that a class proceeding was not the preferable procedure due to the overwhelming individual issues.

The appellant insurance company appealed an order refusing to bifurcate the trial of the plaintiffs' action on an insurance contract and for bad faith punitive damages.

The appellant argued bifurcation was necessary to protect it from disclosing privileged communications in the bad faith claim that could prejudice the contract claim.

The Court of Appeal dismissed the appeal, agreeing with the Divisional Court that there was no evidence the appellant would actually suffer the alleged prejudice, but left open the possibility of a further motion on appropriate evidence.

The appellant wife appealed an order regarding a default divorce judgment.

The Court of Appeal found the motions judge erred in concluding the appellant could seek originating corollary relief despite a final divorce judgment addressing those issues.

The Court applied the three-part test for setting aside the noting of pleadings closed, finding the motion was timely, the appellant had a persistent intention to defend, and there was merit to her claims.

The appeal was allowed, setting aside the noting of pleadings closed and specific paragraphs of the default divorce judgment.

The respondent brought a motion to enforce a prior order and to dismiss the appellant's appeal for alleged breaches.

The Court of Appeal declined to dismiss the appeal, finding the facts did not justify such a remedy.

Instead, the court ordered the appeal to be expedited and imposed strict deadlines on the appellant to pay for and file the required transcripts, failing which the respondent could move again to dismiss the appeal.

Costs of the motion were awarded to the respondent.

The appellant appealed a trial judgment regarding a real estate commission split, arguing the trial judge erred by admitting oral evidence that altered a written termination agreement.

The Court of Appeal dismissed the appeal, finding the oral evidence was admissible to complete the non-exhaustive agreement and to establish the appellant's misrepresentation regarding the properties he was working on.

The court also dismissed the appeal regarding an alleged award to a non-party and upheld the trial judge's discretionary costs award.

The appellant appealed his conviction, arguing that the conduct of Crown counsel resulted in a miscarriage of justice and that the trial judge erred in instructing the jury on self-defence and provocation.

The Court of Appeal dismissed the appeal, finding that while Crown counsel's sarcastic questions reflected badly on him, they did not result in a miscarriage of justice.

The court also found no prejudice resulting from the trial judge's instructions, noting the lack of objections to the charge.

The Crown appealed the conditional sentence imposed on the respondent for a serious historical offence committed 20 years prior.

The Court of Appeal noted that a period of substantial incarceration would have been warranted despite the passage of time and the respondent's positive lifestyle.

However, because the respondent had already successfully completed 9 months of the conditional sentence, the Court declined to interfere and dismissed the appeal.

The appellant appealed his conviction and sentence for historical sexual offences against a child.

He argued the trial judge failed to adequately consider inconsistencies and emphatic denials in the evidence.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's reasons were sufficient, intelligible, and responsive to the issues raised.

The sentence appeal was also dismissed, with the court noting that conditional sentences are rarely appropriate for the sexual violation of a vulnerable person by an adult in a position of trust.

The appellant appealed a motion judge's decision which found that minutes of settlement did not contain all essential terms to constitute an enforceable agreement.

The Court of Appeal allowed the appeal, finding that the essential terms of the easement and licensing agreements were set out in the minutes.

The dispute over a $2,000 cost for committee of adjustment approval did not justify resiling from the agreement, as the respondents were obligated to assume this cost, or alternatively, it was a minor matter that could be resolved by a judge.

The appeal was allowed and judgment was granted in accordance with the minutes of settlement.

The appellant appealed his convictions and sentence for offences including criminal harassment and breach of probation.

He argued that the trial judge erred by limiting the duration of his trial and in her findings of fact.

The Court of Appeal dismissed the majority of the conviction appeal, finding the trial judge accommodated the self-represented appellant and made reasonable inferences from the evidence.

However, the court quashed the conviction for breach of probation, noting that under s. 732.2(1)(b) of the Criminal Code, probation does not commence until a person is released from prison, and the appellant was incarcerated when the calls were made.

The sentence appeal was dismissed, with the court upholding the global sentence of 28 months.

The appellant appealed the dismissal of his motion to set aside a default judgment granting divorce and corollary relief.

The Court of Appeal found that the respondent's affidavit material filed in support of the ex parte motion for default judgment misled the court by failing to disclose that an answer and counter-petition had been served, misstating child support payments, and failing to disclose that the appellant had counsel of record.

The appeal was allowed and the default judgment was set aside in relation to the corollary relief due to the want of full and fair disclosure.

The appellant appealed his convictions for sexual assault and assault, arguing that the trial judge erred in the jury charge regarding reasonable doubt, the definition of assault, the theory of the defence, and the failure to give a limiting instruction on a prior consistent statement.

The Court of Appeal dismissed the appeal, finding that the charge substantially complied with the Lifchus standard for reasonable doubt and adequately stated the law on assault.

The Court also held that the trial judge adequately put the defence's position to the jury and that a limiting instruction on the prior consistent statement was unnecessary because the defence relied on it.

Following the release of the main appeal decision regarding child support, the parties made written submissions on costs and the disposition of a $6,000 payment into court.

The Court of Appeal ordered the $6,000 paid out to the respondent for child support arrears and stay motion costs.

The court upheld the trial judge's costs award of $15,000 to the respondent, noting her greater success and the appellant's unrealistic position on child support.

The court also awarded the respondent partial indemnity costs of the appeal fixed at $9,500, emphasizing the appellant's greater ability to pay and his failure to voluntarily pay child support.

The appellant appealed his conviction and sentence for the rape of a 15-year-old girl.

He argued the trial judge erred in refusing to order production of the complainant's psychiatric records under s. 278.5 of the Criminal Code and in failing to set out the theory of the defence to the jury.

The Court of Appeal dismissed the conviction appeal, finding the likely relevance test for the records was not met and the defence theory was speculative.

The sentence appeal was also dismissed, as the serious nature of the offence required a penitentiary term despite the appellant's health and immigration consequences.

The appellant appealed a trial judge's decision granting retroactive child support to the date of separation and setting aside a paragraph of a separation agreement due to duress.

The Court of Appeal found no error, noting the appellant's substantial income and the respondent's financial struggles.

The court upheld the retroactive order and the trial judge's determination of income for child support purposes.

The appeal was dismissed with costs.