OCA 2004

The appellants appealed a motion judge's decision which found that the respondent did not acquiesce in an alleged conflict of interest and breach of fiduciary duty by her former solicitor.

The Court of Appeal allowed the appeal, finding that the respondent's active participation in 19 days of assessment hearings over 4.5 years constituted acquiescence.

The Court held that it was not open to her to raise the issue for the first time after such a delay, which caused demonstrable prejudice to the assessment process and the solicitor.

The assessment was ordered to proceed without consideration of the conflict of interest allegations.

The appellants were convicted of two counts of first degree murder following a lengthy trial.

The Crown's case relied heavily on the testimony of three unsavoury witnesses, including a jailhouse informant.

On appeal, the appellants sought to introduce fresh evidence of post-trial recantations by two of these witnesses and argued that the trial judge made several errors, including failing to give an adequate Vetrovec warning and improperly admitting highly prejudicial evidence of a prior manslaughter conviction.

The Court of Appeal admitted the fresh evidence of one witness's recantation and found that the trial judge erred in his Vetrovec warning and evidentiary rulings.

The cumulative effect of these errors warranted a new trial.

The appeal was allowed and the convictions were quashed.

The appellant appealed an order dismissing her claim against the Motor Vehicle Accident Claims Fund.

The Court of Appeal dismissed the appeal, finding that because the appellant was not involved in the accident and did not have first party insurance, she was not entitled to statutory benefits and had no recourse against the Fund under s. 6 of the Motor Vehicle Accident Claims Act.

The appellant appealed his sentence, seeking a reduction of a five-year prohibition on the possession of firearms, ammunition, or gunpowder.

He argued that the prohibition should be reduced because he had already been subject to a similar prohibition for four and a half years prior to trial.

The Court of Appeal dismissed the appeal, holding that the total length of the prohibition was entirely appropriate given the circumstances of the offence.

The appellant appealed his convictions for assault and impaired driving, as well as his sentence.

The Court of Appeal upheld the trial judge's finding that the Crown disproved self-defence under s. 34(2) of the Criminal Code, as the appellant stabbed his assailant without warning when he could have escaped.

The court also upheld the rejection of the necessity defence for impaired driving.

The sentence appeal was allowed in part, reducing the impaired driving sentence from one year to four months concurrent, based on a Crown concession.

The court declined to interfere with the trial judge's refusal to impose a conditional sentence for the assault.

The appellant pleaded guilty to multiple property-related offences, including break and enters.

At trial, there was a joint submission for a three-year sentence, but the trial judge rejected it and imposed a five-year sentence.

On appeal, the Court of Appeal held that the proposed three-year sentence was within the appropriate range, given the appellant's youth, lack of prior lengthy sentences, and efforts to overcome addiction.

The appeal was allowed, and the sentence was varied to three years by making certain sentences concurrent.

The appellants appealed a trial judgment finding that an oral retainer existed between the appellant Mauro and the respondent law firm.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the heavy onus on the solicitor to establish an oral retainer was met.

The Court also rejected the argument that an oral retainer is void unless in writing under the Solicitors Act, noting that there was no dispute as to the amount of compensation.

The appellants, an investment firm and its employee, appealed a trial judgment finding them liable for breach of fiduciary duty and awarding $288,846 in damages to an elderly client.

The employee had executed 68 unauthorized trades in the client's non-discretionary account, contrary to her investment objectives and professional rules.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the employee's assumption of total control over the account created a fiduciary relationship, that the client did not ratify the trades due to the employee's reassurances, and that restitutionary damages were appropriate.

The 70-year-old appellant pleaded guilty to arson causing bodily harm after deliberately setting fires in a house where his four-year-old grandson was sleeping.

The child suffered horrendous and devastating burn injuries.

The trial judge sentenced the appellant to life imprisonment, characterizing the offence as one of 'stark horror' based primarily on the horrific consequences to the victim.

On appeal, the Court of Appeal held that the trial judge erred by placing undue emphasis on the consequences rather than the appellant's blameworthiness, as the appellant did not intentionally cause the injuries.

The court substituted a sentence of 12 years' imprisonment, reduced to 8 years after credit for pre-trial custody.

The appellant appealed her conviction for importing 2.2 kilograms of cocaine, arguing the trial judge erred in finding she knew the drugs were concealed in the lid of her suitcase.

The appellant contended the trial judge made erroneous inferences regarding the weight of the suitcase lid and failed to consider circumstantial evidence supporting her lack of knowledge.

The Court of Appeal dismissed the appeal, holding that the trial judge's findings were supported by the evidence, including the physical exhibits, and that it was within the trial judge's purview to draw reasonable inferences from the strong circumstantial evidence of knowledge.

The appellant appealed his convictions for assault causing bodily harm and uttering threats, as well as his sentence.

The Court of Appeal dismissed the conviction appeals, finding the trial judge was satisfied beyond a reasonable doubt that excessive force was used, and that the elements of the threatening charge were made out.

The court amended the information for the threatening charge as there was no prejudice.

Leave to appeal the sentence was denied as the appeal was utterly without merit.

The Association of Ontario Land Surveyors appealed a decision dismissing its application for an order prohibiting the respondents from engaging in the practice of cadastral surveying.

The respondents, who were not licensed under the Surveyors Act, had located existing iron bars, measured distances and angles, and marked property lines for a customer.

The Court of Appeal found that these activities constituted the practice of cadastral surveying and that the respondents had held themselves out as engaging in such practice.

The appeal was allowed, and a prohibition order was granted.

The respondent was convicted of multiple serious offences, including four counts of attempted murder, following a bank robbery where he shot three police officers and a civilian.

The trial judge imposed a total sentence of 14.5 years after credit for pre-sentence custody, rejecting a life sentence on the basis that it is reserved for the 'worst offence committed by the worst offender'.

The Crown appealed the sentence.

The Court of Appeal held that the trial judge erred in principle by rigidly applying the 'worst offence/worst offender' standard.

Given the extreme gravity of the offences, the respondent's extensive violent criminal record, and the need for denunciation and specific deterrence, the Court allowed the appeal and varied the sentences for the attempted murder convictions to life imprisonment.

The respondent applied for an official plan amendment, zoning change, and subdivision approval, providing the prescribed information but refusing to provide additional information requested by the appellant municipality.

The municipality refused to forward the appeal record to the Ontario Municipal Board, arguing the 90-day period for a decision had not commenced.

The Court of Appeal held that under the Planning Act, the 90-day period begins once the prescribed information and fees are provided, regardless of whether additional requested information is supplied.

The appeal was dismissed, allowing the respondent to proceed directly to the OMB.

The appellants appealed a trial judgment finding they breached a fiduciary duty to a joint venture corporation.

The appellants managed a real estate development for the joint venture and allowed the property to go into power of sale, subsequently purchasing it for themselves.

The Court of Appeal upheld the trial judge's finding that a fiduciary relationship existed and that the appellants breached their duty to avoid conflicts of interest.

The appeal was dismissed and the imposition of a constructive trust was affirmed.

The appellant appealed an order setting aside a Justice of the Peace's decision to quash a Certificate of Offence.

The Court of Appeal dismissed the appeal, finding that the Justice of the Peace committed a jurisdictional error by failing to properly consider the factors mandated by s. 34(4) of the Provincial Offences Act and relevant case law when deciding whether to amend the certificate.

Instead, the Justice of the Peace improperly based her decision on her view of the fairness of the legislative scheme under s. 9 of the Act.

The appellants appealed a trial judgment in favour of the respondent, arguing the trial judge unfairly set aside formal admissions and relied on unpleaded doctrines of frustration and lack of consensus ad idem.

The Court of Appeal found that the trial judge did not set aside formal admissions, but rather distinguished between agreeing to purchase shares and actually purchasing them.

While the trial judge erred in referencing the doctrine of frustration, his conclusion was supported by his finding of an implied term governing the respondent's resignation from the partnership before purchasing shares.

The appeal was dismissed.

The appellant appealed his conviction for assault against his separated wife, which occurred in the lobby of her brother's apartment building.

He argued the trial judge erred in rejecting his self-defence claim, misapplied the W.(D.) test regarding credibility, provided insufficient reasons under Sheppard, and reached an unreasonable verdict.

The Court of Appeal dismissed the appeal, finding the trial judge properly considered and rejected the self-defence claim, appropriately assessed credibility, and provided adequate reasons for the conviction.

The Crown appealed a costs order made against it by a bail review judge.

The bail review judge had awarded costs due to the Crown and police's failure to bring a victim's statement to court, which was characterized as sloppy conduct.

The Court of Appeal allowed the appeal and set aside the costs order, finding no Charter breach and that the conduct did not reach the level warranting costs against the Crown, as the respondent suffered no prejudice.

Armstrong J.A. dissented, finding the police conduct went beyond mere sloppiness and justified the costs order.

The appellant was convicted of extortion after demanding money and a vehicle from a family member who had sexually abused the appellant's children.

On appeal, the appellant argued the trial judge erred by not instructing the jury on his alcohol consumption.

The Court of Appeal dismissed the conviction appeal, finding no air of reality to the intoxication defence.

However, the sentence appeal was allowed because the sentencing judge erred in finding the appellant was unemployed.

Given the appellant's role as the sole financial provider and caregiver for his family, the custodial sentence was reduced to time served.