OCA 2005

The appellant insurer appealed an order appointing an appraiser under s. 128(5) of the Insurance Act, arguing the policy was void due to a material change in risk under Statutory Condition 4.

The Court of Appeal dismissed the appeal, finding that liability remained a live issue because the insurer chose not to cross-examine the insured on her affidavit asserting a valid policy.

The court noted that even if a breach occurred, relief from forfeiture might be available, making the appraisal process appropriate for resolving valuation issues.

The appellant appealed a trial judgment finding him liable for damages equivalent to a judgment the respondent insurer had obtained against his wife.

The trial judge found that the appellant and his wife had fraudulently conveyed their jointly held matrimonial home to the appellant alone to defeat the respondent's claim.

The Court of Appeal dismissed the appeal, upholding the trial judge's finding of fraudulent intent based on the 'badges of fraud' and the shifting burden of proof.

The Court also affirmed that under the Fraudulent Conveyances Act and the Assignments and Preferences Act, the appellant held the proceeds of the subsequent sale of the property in trust for the respondent creditor.

The appellant was convicted of aggravated assault and assault with a weapon following an unprovoked attack on two intoxicated victims outside a bar.

He appealed his convictions and six-year sentence, arguing the trial judge misapprehended his alibi evidence, failed to assess the reliability of identification evidence, misapplied the burden of proof, and improperly admitted reply evidence.

The Court of Appeal dismissed the appeal, finding the trial judge properly applied the W.(D.) framework, correctly assessed both the credibility and reliability of the witnesses, and imposed a fit sentence given the serious, premeditated nature of the assaults.

The father appealed an order refusing to vary custody and access, and varying child support and costs.

The mother cross-appealed seeking additional retroactive child support for 2003.

The Court of Appeal dismissed both the appeal and the cross-appeal, finding no error in the application judge's conclusions that there was no change in circumstances regarding custody and access, and that the limitation on retroactive support was within the judge's discretion given the father's other financial obligations.

The appellant appealed his conviction for first degree murder of his ex-wife.

The Crown's case was circumstantial, relying on motive, eyewitness identification, DNA evidence under the victim's fingernails, and after-the-fact conduct including flight.

The appellant argued the trial judge erred in his instructions on eyewitness identification, hearsay evidence of the victim's statements, discreditable conduct, collateral evidence, consciousness of innocence, and the admission of autopsy photographs.

The Court of Appeal found no reversible errors, noting the trial judge's charge was fair and balanced, and dismissed the appeal.

The appellants commenced an action against their former lawyers for professional negligence and breach of fiduciary duty.

The lawyers brought third party claims against various entities involved in a real estate project.

The appellants and the third parties had previously settled other litigation and exchanged mutual releases containing 'no claims over' provisions.

The motions judge stayed the main action, finding it was an attempt to re-litigate settled matters and would inevitably lead to third party claims precluded by the releases.

The Court of Appeal upheld the stay, except to allow the appellants to amend their statement of claim to assert a claim for an accounting of funds that was not subject to a third party claim.

The appellants appealed a trial judgment, alleging that the loan agreements charged a criminal rate of interest.

The Court of Appeal dismissed the appeal, finding that the trial judge was entitled to conclude that more than $78,000 was advanced, meaning the illegal rate of interest was not proven.

The Court also upheld the trial judge's award of substantial indemnity costs, which were in accordance with the loan agreements.

The appellant appealed the custodial portion of his sentence.

The Crown conceded that the trial judge erred in principle by imposing a sentence greater than the joint submission.

The Court of Appeal granted leave to appeal, allowed the appeal, and reduced the custodial sentence to time served in accordance with the joint submission, while leaving the three-year probation term unchanged.

The appellant appealed his conviction for dangerous driving, which arose from an allegedly unsafe lane change in front of a transport truck.

The summary conviction appeal court dismissed the appeal.

The Court of Appeal granted leave and allowed the appeal, finding that the trial judge failed to articulate and apply the modified objective test for dangerous driving and misapprehended central evidence regarding the distance between the vehicles.

Concluding that the evidence could not support a conviction, the Court of Appeal entered an acquittal.

The Crown appealed a conditional sentence imposed on the respondent for aggravated assault.

The trial judge had determined that a 42-month sentence was appropriate but credited the respondent with 18 months for pre-sentence custody, reducing the sentence to under two years and imposing a conditional sentence.

Applying the Supreme Court of Canada's subsequent decision in R. v. Fice, the Court of Appeal held that pre-sentence custody cannot be used to reduce a penitentiary sentence to make a conditional sentence available.

The appeal was allowed, and the conditional sentence was varied to a custodial sentence of nine months, accounting for time served.

Amertek Inc. sued the Canadian Commercial Corporation (CCC) after losing money on a subcontract to supply fire crash trucks to the U.S. Army.

The trial judge found CCC liable for deceit, breach of fiduciary duty, breach of contract, and unjust enrichment, awarding disgorgement of a re-procurement penalty CCC avoided.

On appeal, the Court of Appeal overturned the trial decision, finding palpable and overriding errors in the trial judge's conclusions.

The Court held that CCC's statements about the contract's profitability were not false when made, Amertek did not rely on them, the relationship was purely commercial rather than fiduciary, and there was no breach of contract or unjust enrichment.

The appeal was allowed and Amertek's action was dismissed.

The appellant appealed a trial judgment finding that she was involved in a minor accident and did not sustain a serious impairment of an important physical, mental, or psychological function pursuant to s. 267.1 of the Insurance Act.

The Court of Appeal found no error in the trial judge's conclusion, which was based on overwhelming evidence.

The appeal was dismissed with costs fixed at $10,000.

The appellant challenged jury convictions for multiple sexual offences against two child complainants and appealed an eight-year penitentiary sentence.

The court rejected the unreasonable verdict argument, holding that despite material inconsistencies, the core allegations remained intact and the jury was properly instructed on credibility concerns.

The court also held that medical opinion evidence concerning vaginal penetration was relevant to one complainant but irrelevant to counts involving the other complainant; however, the evidentiary error and absence of a limiting instruction caused no substantial wrong and were cured under s. 686(1)(b)(iii) of the Criminal Code.

On sentence, the court found the trial judge had set the range too high by over-relying on a more aggravated comparator case and reduced the custodial sentence to six and a half years, in addition to pre-sentence custody.

The appellants were convicted of multiple offences arising from a conspiracy to rob commercial establishments.

They appealed their convictions on numerous grounds, including alleged errors in the jury charge regarding the standard of proof, co-conspirator statements, and the failure to give a Vetrovec caution.

They also appealed evidentiary rulings, including the admission of a DNA warrant and the voluntariness of a police statement, as well as the refusal to sever their trials.

The Court of Appeal dismissed the conviction appeals, finding no reversible errors.

Leave to appeal the sentences was granted; one appellant's sentence appeal was dismissed, but the other appellant's sentence was reduced from six to four years imprisonment due to his status as a first-time offender with good rehabilitation prospects.

The parties entered into commercial agreements to purchase and operate rental properties.

The respondents, passive investors, provided the appellant with promissory notes to secure their obligations.

The agreements contained a stipulated remedy clause stating that if the appellant defaulted, the promissory notes would be deemed paid.

The arbitrator found the appellant in serious default and enforced the clause, refusing relief from forfeiture.

The Superior Court dismissed the appeal.

The Court of Appeal affirmed, holding that not all stipulated remedy clauses with penal consequences are unenforceable, and the equitable doctrine of relief from forfeiture applies to enforce such clauses where it is not unconscionable to do so.

The appellant was convicted of second-degree murder for killing his ex-girlfriend.

At trial, he conceded guilt for manslaughter but argued his intoxication and emotional state raised a reasonable doubt regarding the specific intent for murder.

On appeal, he argued the trial judge erred by using a two-step 'capacity' and 'actual intent' charge for intoxication, and by improperly answering a jury question about the difference between the intent for murder and manslaughter.

The Court of Appeal dismissed the appeal, finding the jury charge did not mislead the jury into believing capacity was the only relevant inquiry, and the trial judge correctly answered the jury's question.

The landlord of a retail shopping mall redesigned the development without notifying the franchisor or the franchisee, who had relied on the original site plan attached to their leases.

The franchisee suffered business losses due to the redesign and construction.

The trial judge found the landlord liable for negligent misrepresentation and the franchisor liable for innocent misrepresentation and breach of the duty of good faith, awarding the franchisee $400,000 in damages.

The Court of Appeal upheld the liability and damages findings, concluding that the site plan constituted a representation of the mall's layout.

However, the Court allowed the landlord's appeal regarding the franchisor's claim for contribution and indemnity, finding the franchisor was estopped by its contradictory litigation conduct.

The plaintiff appealed a costs award following a nine-day trial regarding a broker's failure to carry out trading instructions.

The trial judge had awarded the plaintiff solicitor-client costs from the date of an offer to settle, but reduced the claimed amount of $182,183 to $50,000, finding it excessive.

The Court of Appeal allowed the appeal, holding that the trial judge erred by effectively applying party and party principles to a solicitor-client costs award without analyzing what conduct by the plaintiff contributed to the trial's length.

The Court fixed the trial costs at $155,000.

The appellant appealed his sentence for an illegal entry offence.

The Court of Appeal found that the sentencing judge was entitled to impose the maximum penalty given the pattern of the appellant's crimes and association with illegal entries.

Although the sentencing judge did not clearly enunciate the credit given for pretrial custody, the total sentence imposed was fit.

The appeal was dismissed.

The appellant property owner sought a declaration that the respondents' registered rights of way over its land had expired under Part III of the Registry Act.

The appellant argued that the 1981 amendments required a notice of claim in the prescribed form to preserve an easement after 40 years.

The application judge dismissed the application, finding that a claim could also be preserved if referenced in an instrument registered within the title search period.

The Court of Appeal dismissed the appeal, holding that the statutory definition of 'notice period' and the complementary nature of the title search and expiry periods supported the preservation of claims through reference in registered instruments.