OCA 2003

The appellant appealed his convictions for break and enter, breach of probation, and breach of recognizance.

He argued the verdict was unreasonable because his DNA on a Coke bottle found at the scene did not prove he was present, and that the trial judge improperly used his failure to testify to convict him.

The Court of Appeal dismissed the appeal, finding the trial judge's inferences from the DNA evidence were logical and not speculative, and that the trial judge only noted the appellant's silence after already concluding the Crown had proven its case beyond a reasonable doubt.

The appellant appealed his conviction for extortion and his sentence of four years' imprisonment.

The sole ground of appeal argued was the trial judge's failure to give a limiting instruction to the jury regarding evidence of the appellant's association with the Hell's Angels motorcycle gang.

The Court of Appeal dismissed the appeal, finding that while the instruction should have been given, its absence occasioned no substantial wrong or miscarriage of justice given the strong Crown case and the lack of objection by trial counsel.

The sentence appeal was also dismissed as the four-year term was within the fit range.

The appellant employer appealed a motion judge's order regarding the plaintiff employee's claim for long-term disability benefits.

The Court of Appeal held that the motion judge erred in finding the collective agreement's benefits terms fell within Brown & Beatty's third category.

The language of the collective agreement and Letter of Understanding clearly incorporated the benefits plan into the collective agreement, meaning disputes over entitlement must be submitted to arbitration.

The appeal was allowed and the civil action against the employer was dismissed.

The Crown appealed a conditional sentence imposed after a guilty plea to incest arising from repeated sexual abuse of a minor placed in the respondent's home as a foster child and half-sister.

The Court of Appeal held the sentencing judge erred in treating the offender as outside a loco parentis relationship and in making comments suggesting the complainant's maturity was relevant.

However, applying s. 718.2(e) of the Criminal Code and the Gladue and Wells principles, the court found the offender's extreme Indigenous background circumstances, severe abuse history, voluntary disclosure, guilty plea, and genuine rehabilitative efforts justified a reformatory sentence to be served in the community.

The appeal was allowed in part by increasing the sentence to two years less one day, lengthening probation to two years, and imposing strict house arrest and other more punitive conditions.

The appellant Township appealed a decision regarding the application of a zoning bylaw to a specific property.

Prior to the appeal, the property was sold, the use ceased, and the bylaw was amended.

The Court of Appeal dismissed the appeal as moot.

The appellant also sought leave to appeal the costs order of $30,000 on a partial indemnity basis.

The Court granted leave but dismissed the costs appeal, finding the amount reasonable.

Costs of the appeal were fixed at $12,000 to the respondents.

The respondent pleaded guilty to fraud over $5,000 for submitting false invoices to his employer, a hospital network, defrauding them of approximately $900,000.

He was initially sentenced to a conditional sentence of two years less a day.

The Crown appealed the sentence.

The Court of Appeal allowed the appeal, finding the conditional sentence demonstrably unfit given the large scale of the fraud, the breach of trust, and the need for general deterrence.

The conditional sentence was set aside and a sentence of 18 months' imprisonment was imposed.

The appellant, a lawyer, was convicted of fraud after acting as a solicitor in transactions that defrauded banks.

He appealed his conviction, arguing the verdict was unreasonable, and his sentence, arguing he should have received a conditional sentence.

The Court of Appeal dismissed the conviction appeal, finding ample evidence supported the trial judge's conclusion that the appellant's own acts and declarations proved him guilty as a party to the frauds.

The sentence appeal was also dismissed, as the trial judge did not err in principle in imposing a custodial sentence.

The appellant appealed a trial judgment finding it breached a contract by failing to award a roofing subcontract to the respondent, who was the lowest bidder.

The Court of Appeal dismissed the appeal, finding no palpable or overriding error in the trial judge's conclusion that the bidding process created a binding contract.

The court also upheld the damages award and rejected the argument that the respondent failed to mitigate its loss.

The appellant was convicted of driving with excess alcohol.

At trial, the judge disbelieved the appellant's evidence, finding it could not provide a foundation for 'evidence to the contrary', and drew an adverse inference from his failure to call a confirmatory witness.

The summary conviction appeal court dismissed the appeal.

The Court of Appeal granted leave but dismissed the appeal, agreeing that the trial judge's disbelief of the appellant's evidence was the primary basis for rejecting the defence, and the adverse inference was merely ancillary.

The parties were neighbours involved in a dispute over a shared well and water system located on the respondent's property.

The applications judge declared the appellants had an easement by grant for the use of the well, but no easement to repair, upgrade, or replace it.

On appeal, the appellants argued the judge erred in determining the scope of the easement.

The Court of Appeal admitted fresh evidence showing the well had been decommissioned and the appellants had installed alternate water systems.

The court dismissed the appeal and cross-appeal, finding insufficient evidence that the original grant contemplated the actual replacement of the well.

The appellants, environmental consultants, appealed a declaration that their insurers had no duty to defend them in an action alleging deceit, secret commissions, bid rigging, conspiracy, breach of contract, and negligence.

The Court of Appeal upheld the application judge's findings that claims relating to certain properties were excluded by the Design/Build exclusion, as the policy did not cover actual remediation work.

The Court also agreed that the negligence claims were derivative of the intentional torts and thus excluded by the Fraudulent Act exclusion.

The appeal was dismissed, with a minor variation to the wording of the declaration.

The Crown appealed a summary conviction appeal judge's decision that overturned the respondent's assault conviction.

The trial judge had convicted the respondent of domestic assault, accepting the complainant's evidence over the respondent's.

The summary conviction appeal judge allowed the respondent's appeal, finding the verdict unreasonable based on the testimony of police officers.

The Court of Appeal allowed the Crown's appeal and restored the conviction, holding that the summary conviction appeal judge erred in law by failing to apply the correct standard of review for an unreasonable verdict and improperly substituting his own assessment of the evidence.

The appellant appealed a trial judgment regarding net family property and spousal support.

The Court of Appeal upheld the trial judge's findings that a domestic contract was no longer operative because a plan of subdivision was never registered, allowing the appellant's investment interest to be included in the net family property calculation.

The Court also found no error in the trial judge imputing corporate income to the appellant and awarding retroactive spousal support based on the financial evidence.

The appeal was dismissed with costs.

The appellant appealed a trial judgment finding that his employer had just cause to terminate his employment.

The appellant had taken a lengthy vacation with no notice and without arranging a replacement, despite a clear warning not to do so.

The appellant argued that the employer condoned his misconduct by initially providing termination letters citing restructuring and offering severance pay.

The Court of Appeal dismissed the appeal, holding that the trial judge properly assessed the breakdown of the employment relationship and that the employer's initial generosity and lack of resolve did not amount to an intention to condone the misconduct.

Following a successful appeal permitting the appellant mother to relocate to Oakville with the child, the respondent father also relocated to Oakville part-time.

The parties agreed to vary the father's parenting time and submitted a consent order.

Because the consent order differed from the court's original decision, the Registrar could not issue it.

The Court of Appeal directed the Registrar to accept and issue the consent order.

The appellant appealed his convictions for uttering a death threat against a Crown Attorney and causing a disturbance, as well as his sentence.

The Court of Appeal dismissed the conviction appeals, finding that the witnesses consistently described a threat to kill, the trial judge correctly inferred the requisite mens rea, and the appellant's yelling in court constituted a disturbance.

The sentence appeal was also dismissed, as the sentence was not demonstrably unfit despite being at the high end of the range.

The Crown appealed a trial judge's decision to stay two charges of sexual interference due to a 31-month delay between the accused's arrest and the proposed trial date.

The trial judge had attributed delays caused by the defence's difficulties in serving third-party record materials to systemic or Crown delay.

The Court of Appeal found that the trial judge erred in this characterization, determining that approximately 15 months of the delay should not be attributed to the Crown.

The remaining 16 months of systemic delay fell within the acceptable range for matters in the Superior Court of Justice.

The appeal was allowed and the stay of proceedings was set aside.

The respondent alleged that a property jointly owned by her former husband and the appellant was fraudulently conveyed to the appellant to defeat her interests as a creditor.

The trial judge agreed and set aside the transaction, finding the property was owned by both as joint tenants.

The Court of Appeal dismissed the appeal, holding that the trial judge's finding of fact was reasonable and entitled to deference.

Costs of the appeal were fixed at $5,000.

Mothers Against Drunk Driving Canada (MADD Canada) brought a motion for leave to intervene as a friend of the court in an appeal concerning social host liability for drunk driving.

The underlying case involved a plaintiff who was seriously injured by an intoxicated driver who had left a party hosted by the defendants.

The court granted the motion, finding that the appeal involved broad public policy considerations regarding whether to recognize a novel duty of care.

The court held that MADD Canada could make a useful contribution to the policy analysis without causing injustice to the parties, despite its alignment with the plaintiffs' position.

The appellant appealed his convictions for possession of child pornography and sexual exploitation.

The Crown conceded the sexual exploitation conviction was unreasonable as the victim was not a 'young person' under the Criminal Code.

For the child pornography charges, which involved written materials, the trial judge had convicted the appellant before the Supreme Court of Canada's decision in R. v. Sharpe.

The Court of Appeal found that the trial judge erred by failing to properly consider the defence of artistic merit and by applying an overly broad definition of child pornography.

The appeal was allowed, an acquittal was entered for the sexual exploitation charge, and a new trial was ordered for the child pornography charges.