OCA 2005

Following the release of its decision on the appeal, the Court of Appeal for Ontario issued a costs endorsement.

The parties agreed that costs should follow the event but left the determination of the quantum to the court.

The court fixed costs in the amount of $15,000 all-inclusive, payable by the respondent to the appellants.

The appellant appealed his conviction for possession of marijuana for the purposes of trafficking and his 22-month sentence.

He argued that he was arbitrarily detained, unreasonably searched, and that his s. 10(b) Charter rights were breached.

The Court of Appeal upheld the conviction, finding that the police had reasonable and probable grounds to arrest based on intercepted communications and observations, and that the trial judge properly admitted the evidence despite a marginal s. 10(b) breach.

However, the Court allowed the sentence appeal, reducing the sentence to 18 months to credit the appellant for time served on subsequent charges that were withdrawn.

Tarion Warranty Corporation brought a motion to intervene in an appeal concerning the validity of regulatory settlements that include terms waiving the right to appeal to the License Appeal Tribunal.

Tarion argued that the decision would impact its own similar licensing regime under the Ontario New Home Warranties Plan Act.

The court dismissed the motion, finding that the Attorney General of Ontario's intervention under the Judicial Review Procedure Act adequately defended the practice of regulators entering into such settlements, making Tarion's intervention unnecessary.

The appellant was convicted of sexual offences against a five-year-old child.

At trial, he relied on an alibi defence supported by an independent witness.

The Crown cross-examined the witness on her reliability, suggesting a document she claimed to have delivered to the Crown was never received.

Post-trial, the Crown discovered the document had indeed been received.

The Summary Conviction Appeal Court dismissed the appeal without addressing this new evidence.

The Court of Appeal allowed the appeal, finding the undisclosed evidence met the test for a new trial as it could have impacted the trial judge's credibility findings.

The appellant insurance company appealed a trial judgment finding that its long-term disability policy provided benefit payments to age 65.

The Court of Appeal allowed the appeal, holding that the policy clearly and unambiguously limited the maximum benefit period to two years.

The trial judge erred by confusing provisions dealing with coverage with those dealing with the payment of benefits.

The action was dismissed.

The appellant appealed his conviction for first-degree murder, arguing the trial judge erred in admitting evidence of spermatozoa, threats to the victim's children, and sexual sadism.

The appellant also challenged the jury instructions regarding sexual assault, forcible confinement, post-offence conduct, reasonable doubt, and the treatment of evidence.

The Court of Appeal found no errors in the admission of evidence or the jury instructions, concluding that the charge read as a whole properly instructed the jury on all issues, including the insanity defence and reasonable doubt.

The appeal was dismissed.

The appellant sought to appeal an order affirming an interlocutory order that directed him to answer questions on a debtor examination, alleging procedural fairness and bias.

The appellant had already been denied leave to appeal to the Divisional Court.

The Court of Appeal quashed the appeal, holding that no appeal lies to the Court of Appeal to challenge an order affirming an interlocutory order, and that the appellant could not create a second route of appeal by requesting an order to quash the original order.

The Court of Appeal released a costs endorsement following an appeal.

The court agreed with the appellant that costs should be fixed and ordered the respondent to pay the appellant $15,000 inclusive of disbursements and GST.

Costs of the underlying application were reserved to the trial judge.

The appellant appealed his conviction and sentence of six months' imprisonment.

The conviction appeal was dismissed as abandoned.

On the sentence appeal, the Court of Appeal found the trial judge erred in principle by treating the appellant's lack of remorse as an aggravating factor and by failing to explain why general deterrence could not be met with a conditional sentence.

The court allowed the appeal and imposed a 12-month conditional sentence with 40 hours of community service.

The appellants appealed a trial judgment concerning a business sale transaction, a management consultant agreement, and a promissory note.

The Court of Appeal upheld the trial judge's findings that the sale was governed by the June 5, 2000 Agreement and that there was no actionable misrepresentation.

The court affirmed the $8,300 award under the management consultant agreement but varied the judgment to hold only the corporate appellant liable.

The court also varied the interest calculation on a $70,000 promissory note on consent.

The appeal was otherwise dismissed.

The appellants appealed the dismissal of their certiorari application regarding the validity of search warrants.

The Court of Appeal allowed the appeal, finding the motion judge erred in denying standing to one appellant and in dealing with the other appellant's application prematurely.

The Court held that the proper forum to determine the issues was the Provincial Court under sections 111 and 117 of the Criminal Code.

The appellant, Country Style Realty Limited, underwent CCAA restructuring.

It chose not to repudiate its commercial lease with the respondent landlord, Ivorylane Corporation.

Ivorylane had a pre-CCAA claim for rent arrears but did not receive notice of the claims process and did not file a proof of claim.

After Country Style emerged from CCAA protection, Ivorylane sued for the arrears.

Country Style argued the claim was barred by the CCAA Plan of Compromise.

The Court of Appeal upheld the motion judge's finding that because the lease was not repudiated, the arrears constituted an 'Unaffected Obligation' under the specific terms of the Plan and Sanction Order, and therefore the claim was not compromised or barred.

The appellants appealed an order striking their third party claim and counterclaim under Rule 21, except for a claim alleging tortious conduct to usurp corporate control.

The Court of Appeal allowed the appeal and restored the claims, including a claim for breach of an implied term of a Side Agreement, noting that on a Rule 21 motion, pleadings must be taken as true and the motion judge erred by relying on an absence of evidence.

The cross-appeal was dismissed.

The Minister of Transportation appealed a final declaratory judgment interpreting a 60-day cure period provision in the Highway 407 Concession and Ground Lease Agreement.

The Court of Appeal held that the application judge lacked jurisdiction to grant a final declaration, as the agreement's comprehensive dispute resolution mechanism reserved such interpretations for an arbitrator.

However, the court found the application judge did have jurisdiction to grant an interim order preserving the parties' rights pending arbitration.

The appeal was allowed and the judgment set aside.

The appellant commercial tenant brought an application for declaratory relief under the Commercial Tenancies Act regarding responsibility for lease improvements.

The application judge dismissed the application, finding the appellant had repeatedly acknowledged responsibility for the improvements and executed promissory notes.

The Court of Appeal dismissed the appeal, holding that the application judge's findings were amply supported by the record.

The appellant appealed his conviction, arguing that police unlawfully entered his apartment, lacked reasonable grounds for his arrest, and that the trial judge erred in applying the burden of proof and failing to declare a mistrial.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the appellant invited the police inside, that objective grounds supported the arrest after the appellant fled and discarded crack cocaine, and that the trial judge properly assessed credibility and followed the agreed-upon blended hearing procedure.

The appellant appealed his convictions for robbery with a firearm, being disguised with intent, and possession of a prohibited firearm.

He argued that the trial judge misapprehended his evidence regarding a backpack and a bandana, as well as the expert fingerprint evidence, and that these errors played an essential part in the conviction.

The Court of Appeal agreed, finding that the trial judge's misapprehensions were material to his reasoning process, particularly in applying the doctrine of recent possession, and created positive evidence against the appellant.

The appeal was allowed and a new trial ordered.

The appellant appealed his conviction for trafficking in cocaine, arguing the trial judge erred regarding the burden of proof and in assessing the evidence of surveillance officers.

The Court of Appeal dismissed the appeal, finding the trial judge properly understood the burden of proof, did not draw an adverse inference from the appellant's failure to testify, and made no error in assessing the credibility and reliability of the police witnesses.

The respondent was sexually assaulted by an ultrasound technician at a private clinic.

The technician performed unauthorized tests and surreptitiously videotaped her.

At trial, a jury found the clinic negligent and vicariously liable, awarding substantial damages.

On appeal, the Court of Appeal set aside the finding of negligence against the clinic, concluding it was plainly unreasonable.

However, the Court upheld the finding of vicarious liability, determining that the clinic's enterprise materially increased the risk of the assault.

The Court also significantly reduced the general and aggravated damages from $175,000 to $25,000, finding the jury's award excessive.

The appellants appealed the judgment of the Superior Court of Justice.

The Court of Appeal dismissed the appeal for the reasons given by the lower court judge, awarding costs to the respondent fixed at $10,000.