OCA 2003

The appellant appealed his conviction for abduction of a child under 14 contrary to s. 283 of the Criminal Code.

He argued the trial judge failed to adequately weigh the complainant's inconsistent evidence, reversed the burden of proof, and erred in applying the defence of consent.

The Court of Appeal dismissed the appeal, finding the trial judge was entitled to accept the complainant's explanation for inconsistencies, properly applied the burden of proof, and correctly concluded there was no air of reality to the defence of lack of intent to deprive.

The appellant employer appealed a trial judgment awarding damages for constructive dismissal to the respondent employee and dismissing the employer's counterclaim.

The appellant argued that the trial judge's numerous interjections and premature comments on the merits of the case prevented a fair presentation of its defence and counterclaim.

The Court of Appeal agreed, finding that the trial judge's conduct gave rise to a reasonable apprehension of bias.

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

The appellant was convicted of first degree murder and numerous other offences arising from a robbery and shooting at a sporting goods store.

At trial, the Crown relied on similar fact evidence from five other armed robberies to prove the identity of the appellant as the shooter.

On appeal, the Court of Appeal found that the trial judge erred in admitting evidence of two of the other robberies, as they lacked striking similarity to the charged offences and failed to establish a nexus to the appellant.

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

The plaintiffs brought an action for damages for personal injuries allegedly suffered on a Canadian Forces base.

The defendants successfully moved for summary judgment on the basis that the action was statute-barred by the six-month limitation period in s. 269(1) of the National Defence Act.

The plaintiffs appealed, arguing that the discoverability principle applied because the injured plaintiff had received erroneous advice from the Canadian Forces and his Pensions Advocate that he could not sue while his military pension claim was pending.

The Court of Appeal allowed the appeal, finding that the uncontradicted evidence of this erroneous advice raised a genuine issue for trial regarding the commencement of the limitation period.

The appellant appealed his sentence, acknowledging it was fit when imposed but seeking intervention based on fresh evidence regarding his medical condition.

The Court of Appeal dismissed the appeal, finding that the appellant could serve his sentence without any impairment to his medical condition and treatment.

The appellants suffered losses in their margin accounts with a securities dealer and sued the dealer.

They later sought to amend their claim to add the Investment Dealers Association of Canada (IDA) as a defendant, alleging negligence in its regulatory oversight.

The motions judge dismissed the motion, finding no reasonable cause of action.

The Court of Appeal dismissed the appeal, holding that the IDA, as a voluntary regulator, owes its duty to the public at large rather than to individual investors, and that policy considerations such as indeterminate liability negate any prima facie duty of care.

The appellant appealed an order awarding costs directly against the Minister of Finance in third party proceedings initiated by the Motor Vehicle Accident Claims Fund.

The Court of Appeal found no error by the trial judge, noting that costs awarded against the Fund are paid by the Minister of Finance.

The appeal was dismissed with costs of $7,500 awarded to each respondent.

The respondent was charged with criminal harassment based on an information that was a nullity, as the alleged offence date predated the enactment of the criminal harassment provisions.

She was released on a recognizance with non-communication conditions, which she subsequently breached, leading to convictions for failing to comply and failing to appear.

A summary conviction appeal judge quashed the convictions, reasoning that the nullity of the underlying information rendered the release order a nullity.

The Court of Appeal allowed the Crown's appeal and restored the convictions, holding that the rule of law requires court orders to be obeyed until they are set aside through due process, even if the underlying information is a nullity.

The appellant bankrupt company appealed the dismissal of its motion to annul its bankruptcy.

The appellant argued that the assignment in bankruptcy was invalid because the statement of affairs was not properly sworn before a commissioner.

The Court of Appeal dismissed the appeal, finding that while the failure to properly swear the affidavit was improper, the company was clearly insolvent and annulling the bankruptcy would cause an injustice to the creditors.

The respondent borrower sued for the return of a $138,000 commitment fee after a commercial mortgage transaction failed to close.

The transaction failed because the borrower did not meet the required rental achievement figure due to deteriorating economic conditions.

The trial judge ordered the return of the fee, finding the borrower was not in 'default' because the failure was not its fault.

The Court of Appeal allowed the appeal and dismissed the action, holding that in a commercial contract, 'default' simply means failure to fulfill an obligation, regardless of fault.

The lender was entitled to retain the commitment fee.

The appellants were convicted of second degree murder.

The Crown's case was entirely circumstantial, relying on hair comparison, footwear impressions, voice identification, and possession of the deceased's property.

On appeal, the appellants challenged the admissibility of the footwear, voice identification, hair, and jewellery evidence, as well as the reasonableness of the verdicts and the jury instructions.

The Court of Appeal found that the footwear evidence was irrelevant and improperly admitted, as it required circular reasoning to connect the appellants to the scene.

The voice identification evidence also lacked foundation.

However, the court held that the remaining admissible evidence was sufficient for a reasonable jury to convict.

The appeals were allowed, the convictions quashed, and a new trial ordered.

The appellant appealed her conviction, arguing errors in the trial judge's assessment of her daughter's evidence, the use of a blended voir dire, misapprehension of an officer's evidence regarding a TTC machine, and the lawfulness of her arrest.

The Court of Appeal dismissed the appeal, finding that its jurisdiction is limited to errors of law alone and none of the issues raised met this threshold.

The court held that credibility assessments are for the trial judge, the blended voir dire did not cause unfairness, the misapprehended evidence did not affect the conclusions, and the arrest was lawful as the officer found her committing the offence.

The appellant appealed an order committing him for trial on a sexual offence, arguing the committal was arbitrary and lacked evidence of the complainant's absence of consent.

The Court of Appeal dismissed the appeal, finding that the appellant's own statements provided ample evidence from which a reasonable jury could infer that the complainant was not consenting and could not consent to the sexual activity.

The appellant appealed an order of the Superior Court of Justice.

The Court of Appeal agreed with the motions judge's reasons and result, finding it was not a case where the motions judge could have exercised her discretion in favour of the appellant.

The appeal was dismissed with costs fixed at $7,500.

The appellant was convicted of aggravated assault, threatening death, and obstructing justice after slashing two victims with an Exacto knife in their home.

On appeal, he argued the trial judge erred in admitting his statements to police, excluding evidence of a victim's complete criminal record, refusing to allow comment on a victim's failure to testify, and permitting his own criminal record to go to the jury.

The Court of Appeal dismissed the conviction appeal, finding no reversible errors in the trial judge's evidentiary rulings or jury instructions.

The sentence appeal was also dismissed, as the eight-year term was justified given the serious nature of the assaults and the appellant's lengthy criminal history.

The appellant appealed the trial judge's decision regarding a deli business.

The Court of Appeal dismissed the appeal, finding that the respondent's evidence and the appellant's own conduct provided a sufficient evidentiary basis for the trial judge's finding.

Costs of $2,000 were awarded to the respondent.

The appellant appealed an order regarding liability for a claim based on delay.

The Court of Appeal agreed with the motion judge that the Agreement and the Bills of Lading had to be read together, requiring the appellant to give 60 days written notice of liability.

The appeal was dismissed.

The appellant trustee in bankruptcy retained the respondent law firm as estate solicitor to collect funds held in trust.

After the respondent performed significant work laying the foundation for recovery, the appellant terminated the retainer without cause, settled the matter, and sought to use its statutory priority under s. 136 of the Bankruptcy and Insolvency Act to pay its own fees, which would exhaust the estate and leave the respondent unpaid.

The Court of Appeal dismissed the trustee's appeal, holding that while unjust enrichment did not apply, the trustee's conduct amounted to equitable fraud.

Equity will not permit a statute to be used as an instrument of fraud, and it would be unconscionable to allow the trustee to take unfair advantage of its legal rights in these circumstances.

The appellant appealed his convictions, which included a charge of endangering the safety of an airplane.

The parties made a joint fresh evidence application on appeal.

Based on the fresh medical evidence, the Court of Appeal found the appellant was not criminally responsible.

The convictions were set aside, findings of not criminally responsible were substituted on all three counts, and the matter was referred to the Review Board for disposition.

The appellant was convicted of counselling to commit the indictable offence of trafficking and sentenced to two years consecutive, based on a joint submission.

On appeal, the Court of Appeal found the sentencing judge erred in principle in accepting the two-year range, noting the drug was a small quantity of marijuana for personal use.

Leave to appeal was granted and the sentence was reduced to six months consecutive.