OCA 2005

The appellants appealed an order regarding the beneficiary designation of a life insurance policy.

The appellants had owned the policy for five years but were never named as beneficiaries.

They assigned ownership back to the deceased, who then designated the respondent as the irrevocable beneficiary.

The Court of Appeal upheld the motion judge's decision, finding that the deceased was entitled to make the designation and that any prior declaration or trust agreements were overtaken by subsequent events.

The appeal was dismissed with costs.

The appellant appealed his convictions for assault, assault causing bodily harm, and breach of recognizance.

The Court of Appeal found that the trial judge erred in characterizing proposed evidence of the complainant's propensity to inflict injuries on herself as collateral, as it was relevant to a central fact in issue.

The convictions for assault and assault causing bodily harm were quashed and a new trial ordered.

However, the appeal from the breach of recognizance convictions was dismissed, as there was ample evidence that the appellant knowingly breached the conditions.

The appellants appealed a trial judgment finding that a contract existed between the two individuals, C. Brar and S. Brar.

The Court of Appeal dismissed the appeal, finding there was evidence to support the trial judge's conclusion.

The respondent cross-appealed regarding a fraudulent conveyance.

The Court of Appeal allowed the cross-appeal, declaring the transfer of assets from the numbered company to SKLF Doors to be a fraudulent conveyance, as agreed by counsel for S. Brar and the numbered company.

Costs of $7,500 were awarded to the respondent.

The appellant appealed his convictions for dangerous driving and failing to remain at the scene of an accident, as well as his sentence of five and a half years' custody.

He argued the trial judge failed to give a balanced jury charge regarding a demonstration video and the identity of the driver.

The Court of Appeal dismissed the conviction appeal, finding the jury charge was balanced and properly instructed the jury on reasonable doubt.

The sentence appeal was also dismissed, as the lengthy sentence was justified by the appellant's extensive record of 77 prior convictions, including serious driving offences and lifetime driving prohibitions.

The appellant appealed his convictions for three robbery-related offences, arguing the trial judge failed to provide adequate reasons.

The trial judge made only passing reference to the appellant's testimony and did not explain why it was rejected or failed to raise a reasonable doubt.

The Court of Appeal found this omission constituted an error of law, as the reasons did not meet the appellant's entitlement to know why he was convicted and precluded meaningful appellate review.

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

The accused was acquitted at trial of impaired driving and driving over 80 after the trial judge simply stated he agreed with and adopted the defence submissions.

The summary conviction appeal court allowed the Crown's appeal and ordered a new trial, finding the trial judge's reasons inadequate.

The accused appealed to the Court of Appeal.

The Court of Appeal dismissed the appeal, holding that while the standard for adequate reasons for an acquittal is informed by the presumption of innocence, the trial judge's terse reasons in this case failed to explain the basis for the acquittals and prevented meaningful appellate review.

The appellants, an adult entertainment parlour and its manager, appealed their convictions under a municipal by-law prohibiting dancers from touching patrons.

The trial and appeal judges had interpreted the by-law as an absolute prohibition on touching, regardless of the dancer's state of dress.

The Court of Appeal allowed the appeal, holding that the by-law must be interpreted to prohibit touching only when the dancer is nude or partially nude, otherwise the provision would be unconstitutionally vague.

Because the trial judge failed to properly resolve conflicting evidence regarding the dancer's state of dress, the convictions were set aside and a new trial was ordered.

The appellants, automobile insurers, appealed the dismissal of their motions to dismiss class proceedings brought by the respondent insureds.

The insureds claimed that the insurers breached statutory condition 6(7) by reducing their actual cash value payments by the policy deductible when taking title to the salvage in total loss claims.

The motion judge, bound by the Court of Appeal's previous decision in McNaughton, dismissed the insurers' motions.

A five-judge panel of the Court of Appeal held that McNaughton was wrongly decided, as statutory condition 6(7) does not quantify the insurer's payment obligation but merely gives the option to acquire salvage.

The Court overruled McNaughton, allowed the appeals, and dismissed the insureds' actions.

The accused, an 18-year-old, was caught shoplifting and used an inoperable sawed-off shotgun to threaten security guards and escape custody.

He was convicted of multiple offences, including three counts of using an imitation firearm while committing an indictable offence.

The trial judge declared the mandatory consecutive sentencing provision in s. 85(4) of the Criminal Code unconstitutional under s. 12 of the Charter and imposed a suspended sentence with probation.

On appeal, the Court of Appeal applied the Kienapple principle to stay two of the three imitation firearm convictions, finding they arose from a single transaction.

The Court also set aside the declaration of unconstitutionality, holding that the trial judge erred in his s. 12 Charter analysis and that s. 85(4) does not impose grossly disproportionate punishment.

The sentence itself was not varied.

The testator left a specific bequest of a Florida property to her sister.

Prior to her death, while she was incapable of managing property, her attorneys under a continuing power of attorney sold the property, which was held by a corporation she wholly owned.

The residuary beneficiaries argued the gift adeemed.

The Court of Appeal upheld the application judge's finding that the anti-ademption provision in s. 36(1) of the Substitute Decisions Act, 1992 applied, preserving the gift for the sister's estate.

The Court also affirmed the finding of incapacity and awarded costs against the unsuccessful appellants, departing from the traditional rule that estate litigation costs are paid from the estate.

The appellants appealed an order of the Superior Court of Justice that resurrected the action, noted them in default, and granted default judgment against them.

The Court of Appeal raised the issue of its jurisdiction to hear the appeal.

Relying on previous jurisprudence, the Court held that a default judgment granted under Rule 19 is an interlocutory order, not a final judgment, and therefore no appeal lies directly to the Court of Appeal.

The proper procedure is to bring a motion in the Superior Court to set aside or vary the default judgment under Rule 19.08.

The appeal was quashed.

The appellant husband appealed a divorce judgment ordering him to pay an equalization payment of over $7 million and $35,000 monthly in spousal support.

He challenged the trial judge's findings regarding the ownership of the matrimonial home, the quantum of spousal support, unconscionability under the Family Law Act, and the disbursement of funds held in court.

He also brought a motion to admit fresh evidence.

The Court of Appeal dismissed the appeal and the motion, finding no error in the trial judge's factual findings or legal conclusions, and noting the fresh evidence could have been discovered with due diligence.

The respondents brought a medical malpractice action against several doctors, alleging a failure to diagnose the deceased's ovarian cancer.

The trial judge found the appellant gynaecologists liable for failing to detect the cancer when they treated her for pelvic inflammatory disease.

On appeal, the Court of Appeal found that the trial judge erred by ignoring evidence that the deceased did not return to see one of the appellants, establishing a break in the chain of causation, and dismissed the claim against her.

For the other appellant, the Court found the trial judge made contradictory findings regarding the visual appearance of the ovaries during a laparoscopy and failed to properly assess expert evidence on cancer survival rates.

The appeal was allowed, the judgment set aside, and a new trial ordered for the remaining appellant.

The appellant appealed his conviction for two counts of sexual touching of the young complainant, arguing the trial judge misapprehended the evidence.

The Crown appealed the conditional sentence of two years less a day imposed at trial.

The Court of Appeal dismissed the conviction appeal, finding no misapprehension of evidence, particularly given the presence of the appellant's semen on the complainant's bed sheets.

The Court allowed the Crown's sentence appeal, finding the trial judge erred in principle by imposing a conditional sentence for sexual abuse of a child in his care, and substituted a sentence of 12 months' incarceration.

The appellant appealed his sentence, arguing the trial judge erred by failing to give credit for 21 days of pre-trial custody served in 2002.

The Court of Appeal agreed that the trial judge erred in failing to give credit for the 21 days, but found that given the gravity of the offences and the appellant's record, the sentence imposed was fit even if credit had been given.

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

The appellant appealed his conviction for counselling to commit aggravated assault, arguing the trial judge's reasons were insufficient regarding his intent.

The Court of Appeal dismissed the appeal, finding the trial judge implicitly but clearly rejected the appellant's evidence and properly applied the standard of proof beyond a reasonable doubt.

The reasons were deemed sufficient under the Sheppard standard.

The appellant was seriously injured when he was shot by a member of his hunting party who mistook him for a deer.

The shooter had driven his truck to the hunting site, stopped, exited the vehicle, and fired his rifle, using the truck's headlights to illuminate the target.

The appellant obtained a judgment against the shooter in negligence and subsequently sued the shooter's automobile insurer under s. 258(1) of the Insurance Act.

The trial judge dismissed the action, finding the injuries did not arise from the use or operation of the vehicle.

The Court of Appeal allowed the appeal, holding that the use of the truck to transport the shooter and illuminate the target satisfied the purpose and causation tests, meaning the damages arose indirectly from the use or operation of the automobile.

The appellants, bondholders of BC Tel (predecessor to Telus), appealed a trial decision finding that BC Tel did not breach a 'no financial advantage covenant' when it redeemed bonds using proceeds from a securitization transaction.

The covenant prohibited redemption using funds obtained directly or indirectly through borrowings with an interest cost less than 11.35%.

The Court of Appeal allowed the appeal, holding that while the securitization involved a 'true sale' of accounts receivable, the transaction as a whole functioned to raise capital from the public.

Thus, the proceeds applied to redeem the bonds constituted funds indirectly obtained through borrowings at an interest cost to the company of less than 11.35%, violating the covenant.

The Crown appealed a fourteen-year effective sentence imposed for possession of child pornography and multiple sexual assaults against children and a teenage victim, arguing the sentence was demonstrably unfit and should be increased to eighteen years.

The Court of Appeal held that appellate intervention on sentence is available only where the sentence reflects a substantial and marked departure from sentences customarily imposed for similar offenders committing similar crimes.

The court found no error in principle, accepted that the sentencing judge properly weighed the gravity of the offences, the offender's position of trust, the profound impact on the victims, mitigation, and totality, and declined to vary the sentence.

The court also refused to intervene regarding an alleged four-month error in calculating pre-trial custody.

The appellant appealed his convictions for sexual offences against his stepdaughter, arguing the trial judge erred in defining reasonable doubt, misused prior inconsistent statements, and improperly assessed witness credibility.

The Court of Appeal dismissed the appeal, finding the trial judge adequately instructed himself on the burden of proof, properly handled the prior inconsistent statements, and reasonably assessed the evidence and credibility of the witnesses.