OCA 2004

The appellant appealed his convictions for assault and sexual assault on several grounds, including inconsistencies in the complainant's evidence, flawed pre-trial identification, an alibi that he was out of the country, discrepancies regarding his physical appearance, and the trial judge's reliance on prior inconsistent statements.

The Court of Appeal dismissed the appeal, finding that the trial judge properly addressed the evidentiary issues and that any minor errors did not result in a substantial wrong or miscarriage of justice.

The appellant appealed an order committing him for surrender to the United States for conspiracy to launder proceeds of crime.

The primary issue was whether identification evidence gathered in Canada by a foreign officer and included in the record of the case was admissible under section 32(2) of the Extradition Act without requiring viva voce testimony.

The Court of Appeal held that evidence lawfully gathered in Canada and substantively admissible under Canadian law does not need to take the form of viva voce testimony at the extradition hearing.

The appeal was dismissed.

The respondent, a licensed taxicab driver, was charged with operating an unlicensed taxicab after picking up a fare in the former City of Ottawa.

He had been licensed by the former City of Gloucester and complied with the new amalgamated City of Ottawa's licensing requirements.

The summary conviction appeal judge acquitted him, finding the old pre-amalgamation taxi zones were dissolved.

The City appealed, seeking to amend the Certificate of Offence to specify a different by-law provision.

The Court of Appeal dismissed the motion to amend, finding it would cause prejudice and injustice given the lack of evidence and the late stage of the proceeding.

The appeal was dismissed, as there was no evidence the respondent drove an unlicensed taxicab under the charged provision.

The respondent was injured when the top of a utility pole erected by the appellant municipality snapped during a windstorm and struck his vehicle on the highway.

The trial judge found the municipality liable in negligence and awarded damages.

On appeal, the municipality argued the action was barred by the limitation periods in sections 284(2) and 284(3) of the Municipal Act.

The Court of Appeal dismissed the appeal, holding that section 284(3) only applies when a vehicle leaves the highway, and section 284(2) did not apply because the claim was properly framed in negligence rather than non-repair.

The trial judge's inference of negligence and assessment of evidence were also upheld.

The young person appealed his conviction and sentence.

The Court of Appeal dismissed the conviction appeal, finding the trial judge was not obliged to articulate a Vetrovec warning and adequately cautioned himself regarding a witness's evidence.

However, the Crown conceded the sentence was illegal.

The Court granted leave to appeal the sentence, reducing the probation period from two years to one year and varying the assault sentence to one year concurrent to correct the illegality.

The appellants appealed an order granting judgment on the respondent's claim for payment.

The Court of Appeal allowed the appeal, finding that the respondent's claim and the appellants' claim for set off were so interrelated that judgment should not have been granted on the former if the latter was to proceed.

The court directed a trial for both claims and ordered the funds held in trust to remain as security pending further court order.

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

The Court of Appeal varied the order to grant the moving party leave to intervene as an added party pursuant to Rule 13.01(1) of the Rules of Civil Procedure, noting that the assumption that existing parties would protect claims of community use appeared to be in doubt.

The Crown appealed a trial judge's decision to stay charges against the respondents due to a 33-month delay, which breached their s. 11(b) Charter rights.

The Court of Appeal dismissed the appeal, agreeing with the trial judge that the delay was unacceptable and reflected a culture that failed to prioritize timely trial dates.

The appellant appealed an order dismissing his action as an abuse of process.

The motions judge had concluded that commencing a new action against individual defendants after the court refused to amend the claim to name them in a prior action constituted an abuse of process.

The Court of Appeal found this was an error in principle, as the prior decision was purely procedural and did not deal with the merits of the claim.

The appeal was allowed and the action was permitted to proceed.

The appellants appealed a judgment of the Superior Court, alleging a reasonable apprehension of bias based on comments made by the trial judge during a costs endorsement.

The trial proceeded undefended after defence counsel advised she was instructed not to attend.

The Court of Appeal found that the impugned comments, while unfortunate, were made after judgment was granted and in response to a request for solicitor and client costs, and tended to support rather than attack the defendant's interests.

The test for reasonable apprehension of bias was not met, and the appeals were dismissed.

The appellant appealed his summary conviction for theft, arguing that Crown counsel's pre-arrival reference was prejudicial, he was misled by lawyers not to testify, the trial judge misapplied the definition of theft, and there was inadequate disclosure of video tapes.

The Court of Appeal dismissed the appeal, finding the Crown's reference innocuous, the reliance on legal advice not rendering the trial unfair, the trial judge's reasons full and fair, and noting the appellant explicitly agreed to the admission of the video tapes at trial.

The appellant filed a notice of abandonment for his sentence appeal.

The Court of Appeal dismissed the appeal as abandoned.

The appellant appealed a summary conviction appeal court decision that ordered a new trial after the trial judge acquitted him of impaired driving.

The trial judge had excluded breathalyzer results, finding the police officer arbitrarily detained the appellant by approaching his parked vehicle without legal justification.

The Court of Appeal dismissed the appeal, agreeing with the summary conviction appeal court that the officer needed no legal authority to approach and speak to the appellant in a public parking area, and no detention occurred.

The plaintiffs suffered severe injuries from smoke inhalation during an apartment fire.

The trial judge found the tenant who started the fire, the building owner, and the City liable, apportioning fault at 10%, 70%, and 20% respectively.

The trial judge also awarded substantial damages and substantial indemnity costs with a premium.

On appeal, the Court of Appeal reapportioned liability to 20% for the tenant, 45% for the owner, and 35% for the City, finding the trial judge underestimated the tenant's and City's roles.

The damage awards were upheld as reasonable.

The costs award was largely upheld, except for costs related to a separate medical malpractice action and an inquest.

The appellants, two trusts and their trustee, appealed a bankruptcy judge's decision dismissing their appeal from a Registrar's decision.

The Registrar had confirmed the trustee in bankruptcy's disallowance of the trusts' proofs of claims.

The Court of Appeal dismissed the appeal, agreeing with the bankruptcy judge that there was no evidence the cheques deposited into a numbered company controlled by the bankrupt were intended as loans.

Costs were awarded against the trusts and their trustee personally on a joint and several basis.

The appellant father appealed an interim order that retroactively increased his child support obligations based on his substantially increased income.

The motions judge had recalculated the support under the Federal Child Support Guidelines without finding a material change in circumstances or a pressing need for the children.

The Court of Appeal allowed the appeal, holding that the Guidelines do not provide an inherent discretion to retroactively recalculate support based solely on an undisclosed increase in income.

A retroactive increase requires a finding of a change in circumstances, ability to pay, and evidence of the children's need during the relevant period.

The appellant appealed her sentence, arguing it was unfit and that a probation condition regarding her residence was unduly punitive.

The Court of Appeal found the sentence fit, noting the appellant committed the serious offence while on probation for a similar offence and had previously re-offended after receiving a conditional sentence.

The Court amended the wording of the probation condition to reflect the trial judge's reasons but otherwise dismissed the appeal.

The appellants sold their shares in a trailer park to the respondents, taking back a promissory note bearing 10 percent interest annually until maturity.

The note did not specify a post-maturity interest rate.

After the respondents defaulted, the trial judge held that the post-maturity interest rate was 5 percent pursuant to section 3 of the Interest Act.

The Court of Appeal allowed the appeal, holding that the prejudgment interest provisions of the Courts of Justice Act ousted section 3 of the Interest Act.

The Court exercised its discretion to fix the post-maturity interest rate at 10 percent, matching the pre-maturity rate, to reflect commercial reality and prevent the respondents from benefiting from their default.

The young person appealed his conviction for importing cocaine.

He argued he was an unwilling dupe of his mother and did not know the drugs were in his suitcase.

The Court of Appeal allowed the appeal, finding the trial judge's reasons were inadequate for failing to address this defence and for suggesting a reversal of the burden of proof.

The conviction was quashed and a new trial ordered.

The appellant appealed his conviction for second degree murder and discharging a firearm with intent to wound, as well as his sentence.

He argued that Crown counsel's editorial comments and inflammatory language during cross-examination and closing address rendered the trial unfair.

The Court of Appeal held that the trial judge's instructions to the jury adequately addressed the Crown's inappropriate comments.

The Court also found the verdicts were not unreasonable or inconsistent, and the trial judge did not err in principle in sentencing.

The appeals against conviction and sentence were dismissed.