OCA 2005

The insured's tractor-trailer was damaged in a rear-end collision.

The vehicle was covered by a collision policy from one insurer and a liability policy from another.

The collision insurer paid for the damage and brought a subrogated claim against the liability insurer.

The motion judge held the subrogated claim was barred by section 263(5) of the Insurance Act.

On appeal, the Court of Appeal held that section 263(5) only bars subrogated claims for payments made under a motor vehicle liability policy.

Because the collision policy was not a motor vehicle liability policy, the subrogated claim was permitted under section 278(1) of the Act.

The appellant appealed his sentence of two years less a day, arguing it should be reduced to time served (13 months) so his probation period would commence immediately.

He also argued that the one-year conditional sentence imposed on his co-accused created an unjustified disparity.

The Court of Appeal dismissed the appeal, finding the sentence was fit when imposed and the disparity was justified by differences in the relevant circumstances of the two cases.

The Crown appealed a Summary Conviction Appeal Court decision that quashed the respondent's conviction.

The respondent had confronted intruders on his rural farm at 4:00 a.m. and removed the keys from their vehicle, leading him to fear for his safety as the intruders could not leave without retrieving the keys.

The Court of Appeal agreed with the summary conviction appeal judge that the trial judge erred in finding the respondent lacked reasonable grounds to apprehend imminent danger, as his belief was based on objectively verifiable facts.

The Crown's appeal was dismissed.

The appellants appealed a child protection order made by the Superior Court of Justice.

The Court of Appeal found no basis to set aside the order and dismissed the appeal.

The appeal was heard subject to the publication ban provisions of the Child and Family Services Act.

The appellant appealed a summary conviction appeal court decision that allowed a Crown appeal.

The Court of Appeal dismissed the appeal, finding no burden on the Crown to establish reasonable and probable grounds, abundant evidence that breath samples were taken pursuant to a demand under s. 254, and that the appellant was served with a copy of the certificate.

The court also found no merit to the Charter arguments, noting the burden was on the appellant to establish a breach and no objection was taken at trial.

The appellants appealed a sentence imposed for failing to remit $750,000 in GST funds.

The Court of Appeal found that while the trial judge erred in rejecting unchallenged submissions regarding the appellants' financial circumstances without notice, a conditional sentence was not appropriate.

The court held that the massive fraud on the public ordinarily called for a penitentiary sentence, and although mitigating factors justified a reformatory sentence, general deterrence required a custodial term.

The appeal was dismissed.

The Children's Lawyer for Ontario appealed a Divisional Court decision that dismissed its application for judicial review of an Information and Privacy Commissioner order.

The Commissioner had ordered the disclosure of certain records requested by a former client of the Children's Lawyer.

On judicial review, the Commissioner defended her decision on a new ground, arguing the Children's Lawyer was not acting as Crown counsel.

The Children's Lawyer challenged the Commissioner's standing to raise this new argument.

The Court of Appeal dismissed the appeal, holding that the Divisional Court properly exercised its discretion under the Judicial Review Procedure Act to grant the Commissioner full standing to ensure a fully informed adjudication.

The appellant appealed a judgment dismissing his action following a jury verdict that found no negligence by the respondent driver, who suffered a medical episode while driving.

The appellant argued the trial judge misdirected the jury on the defence of inevitable accident and that the verdict was unreasonable.

The Court of Appeal dismissed the appeal, finding no error in the jury instructions and holding that the verdict was supported by evidence that the respondent had no prior daytime episodes, no medical warnings against driving, and no advance warning of the episode.

The appellants appealed a summary judgment decision.

The Court of Appeal allowed the appeal and set aside the summary judgment, finding that there were significant contested issues of fact regarding compliance with a Separation Agreement, waiver, and fundamental breach.

Costs were reserved to the trial judge.

The appellant appealed his conviction and sentence, arguing that the trial judge erred in assessing credibility and that a mistrial should have been granted because the trial judge had also presided at the pretrial conference.

The Court of Appeal dismissed the conviction appeal, finding sufficient evidence to support the verdict and noting that no prohibited discussions occurred during the pretrial.

The sentence appeal was also dismissed, with the court upholding the restitution order as a fit component of the sentence.

The appellant appealed her conviction and sentence.

Based on fresh evidence filed by both parties, the Court of Appeal found that the appellant was not criminally responsible by reason of mental disorder at the time of the offence.

The court quashed the conviction and substituted a verdict of not criminally responsible on account of mental disorder, ordering the appellant to remain detained pending a Review Board hearing.

The plaintiffs in a civil action arising from an assault sought production of police and Crown records relating to the young offenders who committed the assault.

The motion judge ordered production under the Rules of Civil Procedure, and a subsequent judge ordered compliance subject to a vetting process.

The Attorney General appealed, arguing that the Youth Criminal Justice Act (YCJA) provides the exclusive mechanism for accessing such records.

The Court of Appeal agreed, holding that section 118(1) of the YCJA clearly and unambiguously limits access to young offender records to the procedures set out in that Act, precluding the Superior Court from ordering production under Rule 30.10 or its inherent jurisdiction.

The appeal was allowed and the production order set aside.

The appellant was involved in a motor vehicle accident while driving a vehicle she co-owned with her father.

At the time of the accident, the vehicle was uninsured and the appellant was driving without her father's consent.

The trial judge found that both were owners under the Highway Traffic Act, but that the father and his insurer were not liable because the appellant drove without his consent.

The Court of Appeal allowed the appeal, holding that under s. 192(1) of the Highway Traffic Act, a co-owner in possession of the vehicle does not need the consent of the other co-owner for both to be held vicariously liable.

The Crown appealed a stay of proceedings granted to the respondents, who were charged with first-degree murder in the death of their infant daughter.

The trial judge stayed the charges due to unreasonable delay under s. 11(b) of the Charter, largely caused by the failings of the Crown's pathologist.

The Court of Appeal found that the trial judge erred in including pre-charge delay in his calculation as a remedy for the cremation of the child's remains.

However, the Court upheld the stay, concluding that the post-charge delay of 55 months for one respondent and 42.5 months for the other was unreasonable and severely prejudiced their liberty and security interests.

The appellants were convicted of second-degree murder and manslaughter in a gang-related shooting.

At trial, the francophone co-accused requested trials in different official languages, leading the trial judge to conduct a bilingual trial.

The trial judge also admitted out-of-court statements made by the deceased victim before his death under the principled exception to the hearsay rule.

On appeal, the Court of Appeal held that the bilingual trial was permissible under the Criminal Code and did not violate the appellants' language rights.

However, the Court found that the trial judge erred in admitting the deceased's statements by improperly relying on extrinsic evidence and mere consistencies to establish threshold reliability.

The Court also found a significant error in the jury instructions regarding reasonable doubt and the absence of evidence (the 'Miller' error).

The appeal was allowed and a new trial ordered.

The infant plaintiff suffered severe brain injuries during birth following unsuccessful attempts by the defendant obstetrician to perform a forceps delivery in the labour room.

The trial judge found the obstetrician negligent for failing to transfer the mother to a delivery room where a c-section could be performed more quickly if the forceps failed.

The Court of Appeal allowed the obstetrician's appeal and ordered a new trial, finding that the trial judge erred by basing liability on a 'risks management' theory that was not pleaded or argued by the plaintiffs, and by using hindsight to impute knowledge of severe fetal distress to the obstetrician at the critical time.

The appellant appealed her conviction for counselling to commit murder, arguing for a new trial based on proposed fresh evidence.

At trial, her defence of duress was rejected, and the trial judge found she had fabricated some journal entries.

The appellant sought to introduce fresh evidence from her trial counsel to show the continuity of her journal entries and the post-sentence criminal conduct of her former boyfriend.

The Court of Appeal dismissed the motion and the appeal, concluding that the fresh evidence could not reasonably be expected to have affected the result, as her behaviour with undercover officers was inconsistent with acting under duress.

The appellant appealed a disposition of the Ontario Review Board, arguing the Board's decision to deny an absolute discharge was unreasonable, reversed the burden of proof, and breached procedural fairness by rejecting a joint submission without express notice.

The hospital's doctor had recommended an absolute discharge, which was supported by both the appellant and the Crown.

The Court of Appeal dismissed the appeal, finding that the Board's decision was not unreasonable given the appellant's lack of a track record of remission and programming for substance abuse.

The Court also found no reversal of the burden of proof and held that the Board's questioning provided sufficient notice of its concerns regarding the joint submission.

The appellant was charged with possession of marijuana after a small amount was found in her purse during a routine security screening at the entrance of a courthouse.

She argued that the warrantless search violated her rights under s. 8 of the Charter.

The trial judge and summary conviction appeal judge both rejected this argument and convicted her.

The Court of Appeal dismissed the appeal, holding that the search was authorized by law, the law was reasonable given the vital objective of ensuring courthouse safety, and the search was carried out in a reasonable manner.

The applicants sought a stay of the Court of Appeal's order, which had reversed a supervising judge's decision to remove two directors from the board of a company undergoing CCAA restructuring, pending their application for leave to appeal to the Supreme Court of Canada.

The Court of Appeal first determined it had jurisdiction under s. 65.1(1) of the Supreme Court Act to consider the stay application.

Applying the RJR-MacDonald test, the court found that while there was a serious issue to be tried, the balance of convenience and the interests of justice favoured denying the stay, as granting it would effectively implement the supervising judge's order that the court had already found was made without jurisdiction.