OCA 2005

Following the dismissal of both the appeal and cross-appeal, the parties made written submissions on costs.

The appellant sought costs for transcripts, while the respondent argued not all transcripts were necessary and that he had borne the cost of some.

Given the divided success, the Court of Appeal ordered that the parties bear their own costs.

The appellant appealed his conviction and sentence for dangerous driving causing bodily harm.

He argued the trial judge misapplied the test for dangerous driving and failed to consider the totality of the evidence.

The Court of Appeal found ample evidence supporting the trial judge's conclusion that the appellant's failure to keep a proper lookout and excessive speed in a construction zone constituted a marked departure from the standard of care.

The court also found no error in principle or manifest unfitness in the sentence, which included a nine-month conditional sentence and a two-year driving prohibition.

The appeals against conviction and sentence were dismissed.

The appellant appealed a trial judgment finding that the respondent suffered a 'serious impairment' under s. 267.5(5)(b) of the Insurance Act following a motor vehicle accident.

The appellant argued that the trial judge misapplied the threshold test by relying on a previous appellate endorsement that allegedly lowered the standard to only require an effect on the enjoyment of life.

The Court of Appeal clarified that its previous endorsement did not modify the established test, which requires a substantial interference with the ability to perform usual daily activities or regular employment.

Finding no error in the trial judge's application of the law or appreciation of the evidence, the appeal was dismissed.

The appellant was convicted of fraud over $5,000 and sentenced to four years in prison after deceiving an American company into shipping $84,000 worth of hand soap, which he sold locally instead of shipping to Saudi Arabia as promised.

On appeal, he argued the trial judge erred in her jury instructions and wrongly denied his application to have the trial conducted in French.

The Court of Appeal dismissed the conviction appeal, finding the case against him overwhelming and the trial judge's rulings on language rights jurisdictionally sound and factually supported.

The sentence appeal was also dismissed given the appellant's extensive history of fraud.

The self-represented appellant was convicted of mischief following a jury trial.

He appealed his conviction, arguing several errors occurred during the proceedings.

The Court of Appeal found that the trial judge erred in excusing prospective jurors who had been victims of break and enters without the parties' consent, in proceeding with 11 jurors over the appellant's objection without considering s. 644(1.1) of the Criminal Code, and in giving an inappropriate instruction on the late disclosure of an alibi.

The Court allowed the appeal, set aside the conviction, and, given the unusual circumstances and age of the minor offence, entered a stay of proceedings.

The appellant's income assistance was terminated after she failed to provide required information regarding changes in her circumstances, as required by the Ontario Works Act and its regulations.

She appealed, arguing that her non-compliance should only result in the termination of her own assistance, not that of her dependant daughter.

The Court of Appeal dismissed the appeal, holding that the failure to provide core financial information precludes the administrator from calculating assistance, thereby rendering the dependant's exemption inapplicable.

The appellants appealed a trial judgment that allowed the respondent's claim for $164,444.27, representing 33 per cent of a tax credit figure in a SRED submission prepared by the respondent.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's reasons given the absence of contrary evidence from the appellants.

The appellant appealed a trial judgment regarding the eastern boundary of a traversing easement.

The Court of Appeal found that the trial judge erred by drawing the boundary adjacent to the appellant's house and over part of her front lawn, rather than reflecting the historical use of the property.

The appeal was allowed, and the judgment was varied to limit the easterly boundary of the traversing easement and adjust the possessory title accordingly.

The appellant appealed his conviction, arguing errors in the summary conviction appeal court judge's treatment of the defences of consent and self-defence.

The Court of Appeal found no error in law, agreeing that there was no air of reality to the suggestion that the complainant consented to a fight given the size disparity and circumstances.

The court also found no basis for self-defence, noting trial counsel had expressly disavowed it.

Leave to appeal was granted, but the appeal was dismissed.

The Crown appealed a conditional sentence imposed on a youthful first-time offender who pleaded guilty to three armed robberies and dangerous driving.

The Court of Appeal dismissed the appeal, finding no error in principle by the trial judge.

The Court deferred to the trial judge's balancing of general deterrence and denunciation against significant mitigating factors, including the respondent's strict bail compliance for three and a half years and his successful rehabilitation efforts.

The appellant appealed a decision upholding his committal for trial on a charge of first degree murder.

The appellant argued that there was insufficient evidence that he knew the victim's death was likely as a result of the assault.

The Court of Appeal dismissed the appeal, finding that the appellant's admissions to his girlfriend, combined with the nature of the assault, provided a basis upon which a reasonable jury could infer the requisite knowledge for murder.

The respondent was injured in a motor vehicle accident and claimed an income replacement benefit under the Statutory Accident Benefits Schedule.

At the time of the accident, she had been employed for six weeks under a contract providing an annual salary of $29,000, but had only earned two weeks' pay in the four weeks prior to the accident.

The motion judge held that her gross annual income should be based on her contracted annual salary.

The Court of Appeal allowed the insurer's appeal, holding that the clear language of s. 8(3) of the Schedule required her gross annual income to be calculated by multiplying her actual gross income for the four weeks prior to the accident by 13.

The appellants were convicted of driving an unsafe commercial vehicle after a roadside inspection revealed defective brakes.

On appeal to the Ontario Court of Justice, they sought to introduce fresh expert evidence regarding the brake measurements, which was rejected based on the Palmer test for fresh evidence.

The appellants appealed to the Court of Appeal, arguing that the strict due diligence requirement of Palmer should not apply to Provincial Offences Act (POA) appeals.

The Court of Appeal dismissed the appeal, holding that the Palmer principles, including due diligence, govern the exercise of discretion to receive fresh evidence under s. 117(1) of the POA.

The appellant, a city councilor, appealed his convictions and sentence for accepting bribes to facilitate zoning by-law changes.

He raised issues regarding the joinder of counts, the constitutionality and validity of wiretap authorizations, voice identification by the trial judge, and the admission of similar fact evidence.

The Court of Appeal dismissed the conviction appeal, finding no errors by the trial judge.

The sentence appeal was also dismissed, as the offences required a penitentiary sentence, making a conditional sentence unavailable.

The appellant insurer sought indemnification from the respondent insurer under s. 275 of the Insurance Act for accident benefits paid following a motor vehicle collision.

The arbitrator and the Superior Court of Justice held that the limitation period for arbitrating the dispute commenced with the first benefit paid, rendering the claim time-barred.

The Court of Appeal allowed the appeal, holding that a new cause of action and limitation period arises with every payment for which indemnification can be claimed.

The appellants were convicted of attempted murder and robbery following a home invasion where a 72-year-old victim was severely beaten and left bound.

They appealed their convictions, arguing the trial judge erred in instructing the jury on aiding and abetting, and by omitting the D.W. instruction from written materials provided to the jury.

One appellant also appealed his sentence.

The Court of Appeal dismissed the appeals, finding the jury instructions were adequate in context, the verdicts were reasonable, and the 13-year sentence was fit given the viciousness of the crime and the intent to kill.

The appellant appealed a decision upholding an assessment officer's refusal to grant an adjournment.

The appellant had sought the adjournment to argue a prior motion to have his solicitor's accounts assessed by a Superior Court Judge due to complexities involving alleged fraud, incompetence, negligence, and breach of trust.

The Court of Appeal allowed the appeal on terms, finding that despite the appellant's reprehensible conduct in walking out of the hearing, the assessment officer erred in refusing the adjournment given the case's complexities.

The appeal was allowed on the condition that the appellant pay $25,000 in costs and post a $75,000 letter of credit, failing which the appeal would be dismissed.

The respondent was refused entry into the United States and directed to a secondary inspection upon returning to Canada.

A customs officer ordered him to empty his pockets, revealing counterfeit currency.

The trial judge found the pocket search violated s. 8 of the Charter and excluded the evidence.

The Court of Appeal allowed the Crown's appeal, holding that a pocket search is a routine, non-invasive screening procedure at a border crossing that does not engage s. 8 Charter protections or require reasonable grounds under s. 98 of the Customs Act.

The municipality appealed a decision quashing a by-law that restricted the transfer of standard taxicab licences to licensed drivers.

The application judge had found that the municipality failed to comply with the public consultation requirements of the Municipal Act and that the by-law was not enacted for a permitted purpose.

The Court of Appeal allowed the appeal, holding that the extensive public consultation conducted by a task force in 1998 satisfied the statutory requirements, and that the by-law was properly enacted for the purposes of health and safety and consumer protection.

The appellants appealed a trial judgment ordering them to pay compensation to the respondent for breach of fiduciary duty in a failed restaurant venture.

The trial judge found the appellant breached his duty by causing his solely owned corporation to enter into a secret lease agreement with the partnership.

The Court of Appeal dismissed the appeal, finding that the Partnership Act did not preclude the respondent from suing in his own right, the respondent had not elected an exclusive remedy, and the trial judge made no palpable and overriding error in finding a breach of fiduciary duty or in the remedy awarded.

The Court also significantly reduced the respondent's costs claim, finding it excessive.