OCA 2003

The appellant surgeon appealed a finding of negligence after he mistakenly cut the respondent's aorta during a laparoscopic hiatus hernia operation.

The trial judge drew an inference of negligence from circumstantial evidence, rejecting the appellant's explanations of medical misadventure.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings or inference-drawing process.

The appellant appealed a judgment of the Superior Court of Justice, raising an argument for restitution that had not been tried or pleaded.

The Court of Appeal found no fault with the trial judge's analysis and findings, and dismissed the appeal with costs fixed at $5,000.

The appellants appealed an order dismissing their proposed counterclaim for abuse of process.

The appellants alleged that the respondents' letter of complaint to the I.D.A. was sent for the improper purpose of extorting a settlement in a civil claim.

The Court of Appeal dismissed the appeal, finding that the proposed counterclaim failed to plead facts of a definite act or threat in furtherance of the illegitimate purpose, which is a required element of the tort of abuse of process.

The appellant appealed a trial judge's costs order in a family law proceeding regarding custody.

The Court of Appeal found that the trial judge erred in upholding a previous judge's costs order that had been implicitly set aside, and in awarding an amount substantially in excess of party and party costs.

However, the Court noted that the respondent had made a reasonable settlement proposal regarding custody which the appellant rejected, justifying some costs to the respondent.

The Court granted leave to appeal costs, varied the trial judge's costs order to $4,000, and otherwise dismissed the appeal.

The appellant appealed the portion of his sentence requiring him to make monthly payments of $150 towards a $5,400 restitution order as a condition of his conditional sentence and probation for fraud.

He argued the order was unduly harsh, violated parity, and he could not afford it.

The Court of Appeal dismissed the appeal, finding the sentence fit, the restitution modest compared to the loss, and noting the appellant received substantially more money from the fraud than his co-accused.

The Court advised that if the appellant is currently unable to make payments, he should apply to vary the terms of his conditional sentence and probation.

The appellant appealed from the dismissal of a motion for certiorari seeking to quash interlocutory orders made under the Provincial Offences Act.

The interlocutory orders dealt with the necessity of providing a transcript for the appeal and the intervenor status of a health science centre.

The Court of Appeal dismissed the appeal, finding that the judges who made the interlocutory orders acted within their jurisdiction and that the propriety of the orders was not a jurisdictional question subject to certiorari.

The court also declined to order a bifurcated proceeding, noting it lacked jurisdiction to do so on this appeal.

The appellant was convicted of armed robbery, use of an imitation firearm, and disguise with intent.

The Crown's case relied heavily on the testimony of the appellant's former girlfriend, who initially provided a false alibi but later recanted and testified that the appellant confessed to her.

The trial judge drew an adverse inference from the appellant's failure to testify, treating it as an exception under Noble because he found the alibi was fabricated.

The Court of Appeal held that the trial judge erred in drawing this adverse inference, as the defence did not advance an alibi at trial.

The appeal was allowed and a new trial ordered.

The Crown appealed an acquittal entered by a summary conviction appeal court judge, who had overturned the respondent's conviction for 'over 80' while having care or control of a motor vehicle.

The respondent had driven her vehicle into a ditch and subsequently consumed more alcohol before police arrived.

The trial judge rejected her evidence of post-offence drinking and found she had care or control of the operable vehicle.

The Court of Appeal allowed the Crown's appeal, finding that the summary conviction appeal judge erred by substituting his own findings of fact regarding care or control and credibility, and by faulting the trial judge's application of the W.D. test.

The conviction and sentence were restored.

The appellant appealed his sentence for various offences including theft of a motor vehicle, theft of gas, and police pursuit.

The original joint submission was for a penitentiary sentence to allow the appellant to receive drug treatment.

The sentencing judge rejected the joint submission without inquiring further into the availability of suitable programs.

The Court of Appeal allowed the appeal, finding the record was insufficient to address rehabilitation concerns.

With fresh evidence of an available residential drug treatment program, the sentence was reduced to 9 months (time served) followed by probation with a condition to complete the treatment program.

The appellant, a young person represented by counsel, sought to waive the reading of charges at his first appearance in youth court.

The justice of the peace refused the waiver and read the charges, asserting a residual discretion to do so.

The appellant's application for certiorari was dismissed.

On appeal, the Court of Appeal affirmed that while a represented young person may waive the reading of charges under s. 12(2) of the Young Offenders Act, the presiding judicial officer retains a residual discretion to order the charges read to ensure the young person understands them and to control the court's process.