OCA 2003

The appellant appealed jury convictions arising from allegations that he and two co-accused confined a young complainant for approximately one week, forced her into prostitution, threatened her and her family, and attempted to have her recant a prior police statement.

The court rejected challenges to the jury selection instructions, the fairness and structure of the charge to the jury, the admission and jury-room use of the complainant's videotaped police statement, and the instructions on kidnapping, unlawful confinement, living on the avails, and attempt to obstruct justice.

The court held that the Crown did not need to prove restraint for every moment of the period alleged in the indictment, only a significant period within that time.

The sentence appeal also failed, as the seven-year penitentiary term was not demonstrably unfit given the gravity of the offences, the appellant's leadership role, and the primacy of denunciation and deterrence.

The City of Hamilton appealed a trial judgment regarding a sewer contract dispute.

The Court of Appeal found that the trial judge failed to address the principal issue of the effect of exclusion clauses on the contractor's bid, given the timing of a representation made by the City's project engineer.

The Court also found the trial judge erred in awarding solicitor/client costs without hearing submissions.

The appeal was allowed, the judgment was set aside, and a new trial was ordered.

The Crown appealed the accused's acquittal on charges of dangerous driving and impaired ability causing bodily harm.

The Court of Appeal dismissed the appeal, finding that the trial judge properly directed himself on the elements of dangerous driving and considered the totality of the evidence.

The Court also held that the trial judge applied the correct legal test for impaired ability causing bodily harm, recognizing that even slight impairment of ability is sufficient to make out the offence.

The corporate defendant was charged under the Occupational Health and Safety Act following an investigation into asbestos exposure.

The trial judge granted a stay of proceedings, finding that the Crown's unexplained pre-charge delay amounted to an abuse of process, which was upheld on initial appeal.

The Court of Appeal allowed the Crown's appeal, holding that the lower courts erred in inferring prejudice to the corporate accused and improperly placed a burden on the Crown to explain pre-charge delay absent bad faith, effectively creating a judicial limitation period.

The appellant appealed a trial judgment regarding a contract dispute over manufacturing work.

The Court of Appeal found that the trial judge's findings of fact were inconsistent with his legal conclusions.

Specifically, the trial judge found that the respondent failed to complete work in a timely manner, which constituted a breach of contract, entitling the appellant to damages subject to mitigation.

The Court of Appeal varied the trial judgment to award the appellant damages for the cost of new tools and laser cut parts, while upholding the award to the respondent for compression costs.

The appellant, a young person, appealed a disposition of 6 months secure custody, imposed in addition to 2 months of pre-disposition custody.

The Court of Appeal found the sentence demonstrably unfit, noting the father's responsible and caring commitment to his son.

The court reduced the custodial disposition to time served (seven months) and varied the terms of the one-year probation order.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

Costs were awarded on a partial indemnity scale to the respondents and cross-appellants, Father Reed and the Diocese, in the amount of $18,000.

The Phoenix group of insurers and the Ecclesiastical Insurance Office were each awarded costs of $5,549.02.

The appellant, Business Development Bank of Canada, appealed an order equally allocating a receiver's costs between itself and the respondent, Bank of Nova Scotia.

The appellant had originally supported the appointment of a receiver but later opposed it after entering into a side deal to sell its security.

The Court of Appeal dismissed the appeal, finding that the receiver was appointed for the benefit of all interested parties and that the motion judge appropriately exercised his discretion to equally allocate the costs given that the indebtedness of both secured lenders was approximately equal.

The appellant appealed a judgment following a jury verdict.

The Court of Appeal found ample evidence to support the trial judge's ruling that the appellant was voluntarily unemployed as of September 1993.

Finding no basis to interfere with the jury's verdict, the court dismissed the appeal and awarded costs to the respondent.

Wildlands League brought a motion for leave to intervene as a friend of the court on a motion for leave to appeal brought by the Minister of Natural Resources, and on the appeal if leave is granted.

The underlying dispute involves a company's right to use a road through Lake Superior Provincial Park for forestry operations.

The court granted the intervention, finding that Wildlands League could provide a useful perspective on the environmental assessment issues without causing injustice to the parties, subject to conditions including not adding to the evidentiary record.

The appellants appealed a summary judgment dismissing their medical malpractice claim against the respondent hospital.

The appellants alleged that the hospital's failure to change a post-operative dressing caused a surgical wound infection.

The Court of Appeal found no genuine issue for trial, as the appellants led no evidence to contradict the hospital's expert, who concluded there was no negligence and that re-applying a dressing to a clean, dry wound was appropriate.

The appeal was dismissed.

The appellants appealed a costs order, arguing that their Rule 49 offer should have attracted cost consequences.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's exercise of discretion.

The trial judge correctly held that the offer lacked clarity, particularly regarding multiple claimants and the absence of reference to the Family Law Act claimant.

The Court affirmed the policy that Rule 49 offers must be crystal clear to be effective.

The appellant appealed a jury verdict regarding the amount of loss of earnings awarded to the plaintiff.

The appellant argued the verdict was perverse and that he was prejudiced by leading questions put to the plaintiff during examination-in-chief.

The Court of Appeal dismissed the appeal, finding there was evidence to support the jury's conclusion and noting that defence counsel at trial did not object to the leading questions.

The appeal was dismissed with costs fixed at $25,785.

In the context of Air Canada's CCAA restructuring, the appellant sought leave to appeal an order approving an equity investment agreement with Trinity Time Investments Limited and denying an adjournment to consider a competing proposal.

The Court of Appeal dismissed the motion for leave, finding no error in the supervising judge's decision to approve the agreement, which contained a 'fiduciary out' clause allowing the board to consider superior proposals.

The court held that the test for leave to appeal in CCAA proceedings—requiring serious and arguable grounds of real and significant interest—was not met.

The appellant pleaded guilty to uttering a threat to cause bodily harm to his common-law partner and was sentenced to 18 months' imprisonment and two years' probation.

At trial, the unrepresented appellant was sentenced without the trial judge allowing a female witness (either the complainant or her sister) to speak on his behalf.

The Court of Appeal found that fairness required the trial judge to hear from the witness, which may have assisted in assessing the seriousness of the offence.

The Court held that the 18-month sentence was out of proportion to the gravity of the offence and reduced the sentence to time served (over five and a half months), leaving the probation order in place.

The employer college hired a probationary teacher on the condition that she enrol in a graduate program.

When she failed to do so within ten months, the employer dismissed her.

The union grieved the dismissal, and the Arbitration Board reinstated the employee, finding the condition invalid because it was individually negotiated outside the collective agreement and conflicted with it.

The Divisional Court dismissed the employer's application for judicial review.

The Court of Appeal dismissed the employer's appeal, holding that the standard of review was patent unreasonableness and that the Board correctly concluded that the collective bargaining regime precludes individual bargaining of terms or conditions of employment whose non-fulfilment could lead to dismissal.

The bankrupts and the appellant co-owned two condominium units.

The bankrupts' Statements of Affairs misrepresented the value of the units and the encumbrances, leading the trustee in bankruptcy to discharge without realizing on the assets.

After the trustee's discharge, the appellant obtained discharges of the mortgages, which were effectively unenforceable due to prior litigation.

The trustee learned of the true value, sought reappointment under s. 41(11) of the Bankruptcy and Insolvency Act, and applied for partition and sale.

The appellant opposed, claiming entitlement to the properties.

The Court of Appeal upheld the application judge's decision, finding the trustee was entitled to realize on the assets that existed during the bankruptcy but were not disclosed, and that the trustee was not estopped from doing so.

The respondent wife was substantially successful on appeal and sought costs on a substantial indemnity basis.

The Court of Appeal held that substantial success alone does not warrant substantial indemnity costs.

Taking into account the different degrees of success, the court awarded the respondent costs of $15,000 on a partial indemnity basis.

The appellants sold a book of business and list of customers to the respondent under a share purchase agreement that included a non-competition agreement.

The trial judge found that the non-competition agreement precluded the appellant from doing business with former customers for four years.

The Court of Appeal upheld the trial judge's decision, finding that despite some ambiguity, the commercial sense of the transaction supported this interpretation.

The appeal was dismissed with costs.

The appellant appealed a judgment of the Superior Court of Justice.

The Court of Appeal found no merit in the appeal and dismissed it, awarding costs to the respondent in the amount of $8,000.