OCA 2004

The appellants, who are addicted to alcohol, were denied income support under the Ontario Disability Support Program Act (ODSPA) because s. 5(2) excludes individuals whose only substantial impairment is substance dependence.

They appealed to the Social Benefits Tribunal, arguing the exclusion violated the Human Rights Code.

The Tribunal and the Divisional Court held the Tribunal lacked jurisdiction to apply the Code.

The Court of Appeal found that while the Tribunal does have jurisdiction to decide questions of law and apply the Code, the human rights process is the more appropriate forum for this dispute.

The appeal was dismissed.

This is a note reporting that the Supreme Court of Canada dismissed the appeal from the Court of Appeal for Ontario's decision in Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services).

The case involved the distribution of an actuarial surplus upon the partial wind up of a defined benefit pension plan under the Pension Benefits Act.

The respondents failed to pay property taxes on their family farm, leading the appellant township to initiate a tax sale under the Municipal Tax Sales Act.

After tenders were opened but before the tax deed was registered, the respondents offered to pay the full cancellation price.

The municipal treasurer refused, believing she had no discretion to cancel the sale once tenders were opened.

The application judge cancelled the tax sale, finding the treasurer failed to exercise her discretion under s. 12(6) of the Act.

The Court of Appeal dismissed the appeal, confirming that a municipal treasurer retains the discretion to cancel a tax sale at any time up to the registration of the tax deed.

The Court of Appeal for Ontario held that the police use of Forward Looking Infra-Red (FLIR) aerial camera technology to detect heat emanating from a home constituted a search under section 8 of the Charter.

The Court found a serious breach of the accused's privacy rights, excluded the real evidence under section 24(2), and entered an acquittal.

A note appended to the decision indicates that the Supreme Court of Canada subsequently allowed an appeal of this judgment.

The respondent was convicted of failing to stop at a red light based on evidence from a red light camera system.

The justice of the peace refused the respondent's request to subpoena the provincial offences officer who issued the ticket.

On appeal, the judge ordered a new trial, holding that such requests should generally be granted.

The municipality appealed.

The Court of Appeal held that the appeal judge applied too liberal a standard; the defence must establish a reasonable and legitimate ground to question the officer.

However, the Court found the photographic evidence inadmissible because the required date, time, and location information was in an unexplained code, failing to comply with the regulation.

The appeal was allowed, but an acquittal was entered.

The appellant, a Francophone, requested and was granted a trial in French before a judge and jury under section 530 of the Criminal Code.

However, the trial judge and the Crown prosecutor spoke almost entirely in English during the first five days of the trial, with simultaneous translation provided to the accused but not transcribed.

The Court of Appeal held that the accused's language rights under sections 530 and 530.1 were violated, as these provisions require the judge and Crown to actually speak the accused's official language, not merely understand it.

The curative proviso in section 686(1)(b)(iv) could not apply to such a significant violation.

The conviction was quashed and a new trial ordered.

The self-represented applicant mother sought leave to appeal a Divisional Court order dismissing her appeal of a Crown wardship order.

The Court of Appeal found no basis for granting leave on the grounds raised by the applicant.

However, given the critical effects of a Crown wardship order, the court directed the appointment of amicus curiae to assist in determining whether there are grounds for granting leave to appeal.

The mother brought a motion for leave to appeal.

The Court of Appeal for Ontario dismissed the motion for leave without costs.

The moving party, CAFO Inc., sought leave to appeal in the Stelco Inc. proceedings.

The Court of Appeal for Ontario granted leave to appeal with respect to the questions in paragraphs 23-28 of the moving party's factum, but denied leave for question 29.

Costs of the motion were reserved to the panel hearing the appeal.

The respondents brought a motion to strike out a notice of intervention filed by the Attorney General of Ontario in an appeal from a judicial review decision.

The respondents argued that section 9(4) of the Judicial Review Procedure Act only grants the Attorney General the right to intervene in the original application, not on appeal.

The Court of Appeal dismissed the motion, holding that section 9(4) is broad enough to encompass appeals, allowing the Attorney General to intervene as of right to fulfill their role as guardian of the public interest.

The appellant brought a motion before the Court of Appeal.

The court dismissed the motion and ordered no costs, as the responding party did not request them.

The appellants appealed a judgment declaring that the respondents had properly rescinded a franchise agreement under section 6 of the Arthur Wishart Act (Franchise Disclosure), 2000.

The appellants argued that the respondents never became 'franchisees' because the transaction did not close, and that the application judge improperly pierced the corporate veil.

The Court of Appeal dismissed the appeal, finding that all necessary documents were executed, the full purchase price was paid, and the various corporate appellants operated essentially as a single entity.

The appeal was dismissed with costs fixed at $2,000.

The respondent constructed a dock without a building permit and was charged under s. 8(1) of the Building Code Act thirteen months after completion.

The trial judge and summary conviction appeal judge dismissed the charge, finding it was barred by the one-year limitation period in s. 36(8).

The Crown appealed, arguing the limitation period should run from the date of discovery and that the offence was a continuing one.

The Court of Appeal dismissed the appeal, holding that the discoverability principle did not apply to this specific statutory limitation period and that the offence was complete upon the conclusion of construction, not a continuing offence.

The Advocacy Centre for Tenants Ontario (ACTO) brought a motion to intervene as a friend of the court in an appeal concerning the liability of former co-tenants for rent arrears under the Tenant Protection Act.

The respondent landlord opposed the motion, arguing that the Rules of Civil Procedure regarding intervention do not apply to such appeals and that the intervention would unnecessarily complicate the private litigation.

The Court of Appeal rejected these arguments, finding that Rule 13.03(2) explicitly permits intervention and that ACTO's expertise would assist the court in understanding the broader legal issues regarding co-tenant relationships.

The motion to intervene was granted subject to conditions.

The appellant appealed an order dismissing her claim.

The Court of Appeal dismissed the appeal, finding that permitting the claim to proceed would be an abuse of process because the appellant had already failed to obtain a remedy through her employer's complaint and grievance procedures.

The motion judge correctly applied Rule 25.

The appellant appealed an October 2003 order, seeking to address issues including pension valuation and disclosure of employee benefits.

The Court of Appeal found that these issues related primarily to a February 2002 order from which no appeal was taken.

The court dismissed the appeal, holding that it could not be used as a collateral attack on the earlier unappealed order.

The Attorney General for Ontario moved for a stay of an order requiring the production of a videotaped police statement in a civil action, pending an application for leave to appeal.

The videotape was made by the plaintiff regarding sexual assault allegations against a former teacher of the defendant school, and had already been disclosed to the accused in the related criminal proceedings.

The Court of Appeal dismissed the motion for a stay, finding no serious issue to be tried regarding the Master's jurisdiction or the application of litigation privilege, no irreparable harm, and that the balance of convenience strongly favoured the parties in the civil action.

The appellant filed a notice of appeal before the motion judge released his decision regarding the Crown defendants.

No steps were taken to remedy this deficiency for almost two years.

The Court of Appeal refused to extend the time to file a proper notice of appeal, finding no material to justify the extension and no merit to the appeal in light of s. 7(1) of the Proceedings Against the Crown Act.

The appeal was dismissed with no order as to costs.

The applicant, convicted of murder and assault in the death of his infant son, brought an application seeking production of Crown materials regarding the competency and objectivity of the Crown's paediatric pathology expert, Dr. Smith, in other criminal cases.

The applicant intended to use this material to adduce fresh evidence on his pending appeal.

The Court of Appeal held that while the Crown's disclosure obligations continue post-conviction, the applicant must demonstrate a reasonable possibility that the requested material could assist in the appeal and be received as fresh evidence.

The application was dismissed because the applicant offered no evidence to doubt the specific medical opinions given by the expert in this case, meaning evidence of the expert's conduct in other cases could not reasonably be expected to affect the verdict.

The appellant appealed an order of a motion judge who proceeded while an appeal on a related matter was outstanding.

The Court of Appeal found that the motion judge should not have proceeded, but upheld the substantive result because the related appeal had since been dismissed.

The court varied the order to allow the appellant a two-month period to redeem the mortgage and set aside the costs order from the motion.