OCA 2005

The appellant appealed his convictions for rape and indecent assault, seeking to introduce fresh evidence of a letter authored by the complainant which she denied writing at trial.

The Court of Appeal admitted the evidence, finding that trial counsel exercised due diligence and the interests of justice compelled its admission.

The court held the evidence could have affected the verdict on all counts by impacting the complainant's credibility.

The court also noted the trial judge failed to provide an adequate limiting instruction regarding moral prejudice reasoning between the counts.

The appeal was allowed, convictions quashed, and a new trial ordered.

The appellant passenger was seriously injured in a motor vehicle accident and was found 35 per cent contributorily negligent by a jury for failing to wear an available shoulder harness, despite wearing a lap belt.

The Court of Appeal held that the jury's assessment was unreasonable, as contributory negligence solely for failing to wear a seatbelt should not exceed 25 per cent.

The court substituted an assessment of 5 per cent contributory negligence, noting the appellant complied with the statutory requirement to wear a lap belt and the shoulder harness was a non-retracting type that was commonly worn improperly.

The Children's Aid Society appealed a Superior Court decision that remitted the issue of a mother's access to her children, who were made Crown Wards, back to the trial court for a rehearing.

The trial judge had made a 'silent with respect to access' order to facilitate adoption.

The appeal judge found this order impermissible but ordered a rehearing due to the passage of time.

The Court of Appeal allowed the appeal, holding that the appeal judge erred in ordering a rehearing and should have ordered no access, as the mother failed to rebut the presumption against access under s. 59(2) of the Child and Family Services Act.

The Court emphasized the need to avoid delay in child protection proceedings.

The appellant, a wholesale distributor of fresh fruit, suffered produce spoilage due to a widespread power failure that caused its refrigeration equipment to stop working.

The respondent insurer denied the claim based on exclusion clauses for mechanical/electrical breakdown and changes of temperature.

The motion judge granted summary judgment for the insurer and refused the appellant's request for an adjournment to file evidence on the reasonable expectations of the parties.

The Court of Appeal dismissed the appeal, finding that the refusal to grant an adjournment would not have affected the result and that the change of temperature exclusion clause was clear and unambiguous.

The appellant, an Aboriginal man, was wrongfully convicted of robbery and spent 20 months in prison before being acquitted at a second trial.

He sued the police for malicious prosecution and negligent investigation.

The trial judge dismissed the action.

On appeal, a five-judge panel of the Court of Appeal affirmed that the tort of negligent police investigation exists in Ontario, rejecting UK precedent that denies a duty of care.

However, the majority upheld the trial judge's finding that the police officers' conduct, including the use of a photo line-up with only one Aboriginal person, did not fall below the standard of care or amount to malicious prosecution.

The appeal was dismissed.

The appellant ministry appealed a lower court order dismissing its applications for judicial review of two orders by the commissioner.

The commissioner had ordered the disclosure of records relating to funding applications, finding they did not fall under the 'advice or recommendations' exemption in s. 13(1) of the Freedom of Information and Protection of Privacy Act.

The appellate court held that the standard of review for the commissioner's interpretation of s. 13(1) is reasonableness, and found the commissioner's interpretation and application to the records to be reasonable.

The appeal was dismissed.

The Ministry of Transportation and the Consulting Engineers of Ontario appealed a Divisional Court decision dismissing their application for judicial review of an Information and Privacy Commissioner order.

The Commissioner had ordered the disclosure of records containing the Ministry's evaluations and scores of consultants who submitted tenders for highway construction projects.

The appellants argued the records were exempt under sections 13, 17, and 18 of the Freedom of Information and Protection of Privacy Act.

The Court of Appeal applied a reasonableness standard of review and upheld the Commissioner's findings that the scores did not constitute 'advice or recommendations' under section 13, and that there was insufficient evidence to establish a reasonable expectation of harm under sections 17 and 18.

The appeals were dismissed.

The appellant appealed his conviction for impaired driving, arguing he did not have care and control of the vehicle.

The trial judge applied the law from R. v. Toews and found a real risk that the extremely impaired appellant could have woken up and driven the vehicle.

The summary conviction appeal court judge upheld this finding as not unreasonable.

The Court of Appeal found no error of law and dismissed the appeal.

The Canadian Civil Liberties Association (CCLA) brought a motion to intervene in a Crown appeal concerning the exclusion of evidence obtained during a dog-assisted search of a high school.

The CCLA also sought permission to adduce fresh evidence, including newspaper articles and a letter from the Ontario Principal's Council.

The court granted the CCLA leave to intervene, file a factum, and participate in oral argument, recognizing its experience and expertise.

However, the court denied the request to adduce fresh evidence, finding the proposed materials lacked probative value and would unfairly widen the scope of the appeal.

The appellant father appealed an order determining his access to the children between 4:00 and 6:00 p.m. on 'exceptional days' when they were not in school, an issue left open by minutes of settlement.

The Court of Appeal found that the trial judge committed no error in principle in determining the issue and declining to re-open it.

The appeal was dismissed with costs awarded to the respondent.

The appellants appealed an order dismissing their claim against subsequent purchasers for arrears of common expenses accumulated during the occupancy of a mortgagee in possession.

The Court of Appeal found no error in the motions judge's conclusion that the discharge of the appellants' liens provided a complete answer to the claim.

The appeal was dismissed, subject to a minor amendment to the judgment to clarify that only specific paragraphs of the Statement of Defence and counter-claim were dismissed.

The Court of Appeal dismissed the appeal and issued an endorsement on costs.

The respondents were collectively awarded costs of $15,000, inclusive of disbursements and GST, payable by the Confederation of National Trade Unions (CSN) and La Régie Des Rentes Du Québec.

The appellants were employed by the Toronto Humane Society.

They repeatedly refused to implement the Society's new policies regarding the intake of stray animals, citing concerns about the legality of the policies.

After multiple meetings and legal opinions confirming the Society's authority, the appellants continued to refuse to perform their duties and were terminated.

The trial judge dismissed their wrongful dismissal actions, finding they were dismissed for cause.

The Court of Appeal upheld the decision, concluding that the appellants' unequivocal refusals to perform essential job duties amounted to a repudiation of their employment contracts, which the employer was entitled to accept.

The appellant was convicted of importing cocaine after it was found in her luggage at Pearson Airport.

She appealed, arguing the trial judge made errors in the jury charge.

The Court of Appeal found two errors: the trial judge improperly instructed the jury that they could only draw inferences from evidence they accepted as fact, which shifted the burden of proof, and improperly instructed them that there was no evidence the cocaine was part of someone else's project, which undermined the core of the defence.

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

The Crown appealed an acquittal entered after the trial judge refused an adjournment.

A subpoenaed witness had left the courthouse.

The Court of Appeal held that the refusal to allow the adjournment was arbitrary and calculated to bring the administration of justice into disrepute.

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

The appellant, a lawyer, sued a judge who had submitted a complaint about him to the Law Society of Upper Canada.

The motion judge struck the action under Rule 21.01, finding the judge was protected by judicial immunity and absolute privilege, and awarded substantial indemnity costs.

On appeal, the appellant argued the complaint was motivated by racial animus.

The Court of Appeal dismissed the appeal, holding that the complaint was protected by absolute privilege and judicial immunity, and that the circumstances did not support an inference of racial profiling.

The costs award was upheld due to the unsubstantiated allegations of racial animus.

The Ontario Pork Producers Marketing Board brought a motion for leave to intervene in an appeal concerning the jurisdiction of the Normal Farm Practices Protection Board to regulate farming practices versus municipal zoning bylaws.

The appellant consented to the intervention, while the respondent municipality opposed it.

The Court of Appeal granted the motion, finding that the proposed intervenor could provide a broader public interest perspective on the relative rights of the province and municipalities to control farming operations.

Leave to intervene was granted subject to conditions, including no addition to the record and no duplication of the appellant's arguments.

The appellant appealed a disposition of the Ontario Review Board.

The Court of Appeal dismissed the appeal, finding that the Board's disposition was consistent with expert medical opinion and supported by the evidence, and therefore not unreasonable.

The appellant's arguments regarding disclosure and consistency of allegations relating to the index offences were rejected.

The appellant appealed their conviction and sentence for possession of heroin.

The Court of Appeal dismissed the conviction appeal, finding ample evidence supported the trial judge's conclusion that the appellant possessed the heroin.

However, the Court allowed the sentence appeal, finding that the disparity between the appellant's five-year sentence and the co-accused's four-year sentence constituted an error in principle.

The appellant's sentence was varied to four years.

The appellant appealed her conviction for possession of heroin, arguing the verdict was unreasonable and that she was improperly cross-examined on a conditional discharge.

The Court of Appeal dismissed the appeal, finding the verdict was open to the trial judge based on the evidence.

Although the cross-examination on the conditional discharge was improper, the court concluded it played no role in the trial judge's rejection of the appellant's incredible evidence.