OCA 2005

The appellants, an estate trustee and her former counsel, appealed a trial judgment finding that joint bank accounts held by the trustee and her late father belonged to the estate, and ordering the counsel to repay estate funds taken for legal fees.

The Court of Appeal dismissed the trustee's appeal, holding that while the trial judge erred in law by rejecting the presumption of advancement for adult children, the evidence clearly established the father did not intend to gift the joint accounts.

The counsel's appeal was allowed, setting aside the substantial indemnity costs order against him and directing an assessment of his legal accounts.

The appellant appealed his convictions for criminal harassment and uttering death threats, arguing the trial judge misapprehended the evidence of two witnesses used to confirm the complainant's account.

The appellant also sought to introduce fresh evidence regarding the complainant's testimony about cheques.

The Court of Appeal dismissed the appeal and the application to introduce fresh evidence, finding no misapprehension of evidence and concluding the fresh evidence would not have affected the trial judge's assessment of the complainant's credibility.

The appellant appealed a motion judge's decision declining jurisdiction on the basis of forum non conveniens.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the motion judge's discretionary decision that the appellant failed to demonstrate Ontario was the forum conveniens.

The court also refused leave to appeal the costs award, finding no error in principle.

The appellant, a licensed insurance broker, pleaded guilty to fraud after misappropriating approximately $227,000 from clients' accounts.

He was sentenced to 12 months' imprisonment.

On appeal, he argued the sentencing judge failed to give adequate weight to mitigating factors, including his gambling addiction and health challenges.

The Court of Appeal found no error in the original sentence but admitted fresh evidence regarding the appellant's severe cardiac condition, which developed shortly after his incarceration.

Given the risk that he could not receive adequate medical treatment in prison, the court allowed the appeal and substituted a 12-month conditional sentence.

The appellant appealed his conviction and five-month custodial sentence, arguing that he was denied a fair trial because he was unrepresented by counsel.

The Court of Appeal dismissed the appeal, finding that the trial judge had given the appellant an opportunity to retain counsel and, when refused, properly assisted him with his defence in accordance with the duty outlined in McGibbon.

The court concluded the appellant conducted his defence intelligently and reasonably effectively, and found no error in principle with the sentence.

In a divorce proceeding, the husband's answer was struck out under Rule 14(23) of the Family Law Rules for failing to obey three prior court orders requiring him to pay the wife $54,500.

The husband appealed, arguing that the wife's ability to withdraw funds from a joint mutual fund constituted compliance.

The Court of Appeal rejected this argument and found no error in the motion judge's exercise of discretion.

However, noting that the answer included custody and access issues, the Court ordered that if the husband fully satisfied the orders by October 28, 2005, his answer regarding custody and access only would be revived.

The appeal was otherwise dismissed.

The Children's Lawyer appealed an order directing it to prepare an update of an earlier report.

The Court of Appeal allowed the appeal, finding that the motion judge erred by directing rather than requesting the report in accordance with s. 112(2) of the Courts of Justice Act.

The order was varied to delete the reference to the report, leaving open the question of whether a judge has jurisdiction to direct a report if a request is declined.

The appellant mother appealed a custody order that placed the child in the custody of the respondent father after she relocated out of the jurisdiction.

She argued the trial judge misapplied the law and failed to properly weigh the factors regarding the child's best interests.

She also sought to introduce fresh evidence regarding the father's association with an individual charged with drug offences.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's application of the best interests test or his weighing of the evidence.

The court also admitted the fresh evidence but concluded it did not warrant setting aside the custody order, noting the mother had not raised concerns with child care authorities and had elected not to return to the jurisdiction.

The appellants appealed a trial judgment dismissing their claim for conveyance of lands and granting the respondent's counterclaim for occupation rent based on unjust enrichment, trespass, and registering a certificate of pending litigation without a reasonable claim.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's refusal to allow the appellants to discontinue their action on the first day of trial, her decision to allow post-trial pleading amendments, or her assessment of damages for trespass and the aborted sale.

The appellant, a former owner of a Toronto property, retained an interest in the property's surplus density through a Density Agreement registered on title.

The property was subsequently sold to a company that later sought creditor protection under the CCAA.

A court-approved Settlement Order vested the property in the respondent 'free and clear' of claims.

The respondent successfully applied to the Superior Court to discharge the Density Agreement from title.

On appeal, the Court of Appeal held that the Settlement Order only applied to assets the debtor company actually owned, which did not include the surplus density.

The appeal was allowed and the Density Agreement remained on title.

The appellant appealed his convictions and sentence arising from a 'criminal swarm' assault.

The Court of Appeal applied the Kienapple principle to stay two counts on the indictment to prevent multiple convictions for the same delict.

On the sentence appeal, the Court found an unjustified disparity between the appellant's five-year sentence and the significantly shorter sentences imposed on older co-accused with more serious records who had pleaded guilty.

The appeal was allowed, and the sentence was reduced to 24 months' imprisonment, in addition to pre-trial custody credit.

The appellant appealed his speeding convictions, arguing that speeding should be classified as a strict liability offence rather than absolute liability, and that absolute liability violates his section 7 Charter liberty interest.

The Court of Appeal affirmed that speeding remains an absolute liability offence in Ontario.

The Court also held that legislative amendments to the Provincial Offences Act separating default proceedings from the original trial make the risk of imprisonment sufficiently remote that section 7 is not engaged.

The appeal was dismissed, but the appellant was awarded disbursements.

The appellant appealed an order setting ongoing spousal support at $600 per month and applying that amount against arrears.

The Court of Appeal allowed the appeal, finding that the motion judge's reasons were so conclusory that appellate review was impossible.

The order was set aside and the matter remitted to be heard by a different judge.

The appellant appealed the sentence imposed by the Superior Court of Justice.

The Court of Appeal found no error in principle, no failure to consider relevant factors, and concluded the sentence was not demonstrably unfit.

Leave to appeal was granted but the appeal was dismissed.

The appellant appealed his conviction, arguing that the trial judge's reasons were insufficient.

The Court of Appeal dismissed the appeal, finding that in the context of a short trial with only three witnesses, the trial judge adequately explained his credibility findings and the basis for finding the appellant guilty beyond a reasonable doubt.

The appellant was convicted of first-degree murder and attempted murder following a shooting.

The Crown's case relied heavily on the identification evidence of the surviving victim, who had a significant criminal record, gave inconsistent statements, and had a motive to lie.

The trial judge refused to give a Vetrovec warning regarding the victim's evidence, reasoning that such warnings do not apply to victims.

The Court of Appeal held that the trial judge erred in law, as a Vetrovec warning was mandatory given the witness's unsavoury character and the importance of his testimony.

The error could not be saved by the curative proviso, and a new trial was ordered.

The appellants were awarded costs of the appeal fixed at $29,856.97 payable by the Attorney General of Canada, and costs of the motion fixed at $5,991.03 payable by the Attorney General of Canada and the Attorney General of Ontario, following an appeal regarding a sealing order and access to search warrant information.

The appellant was convicted of assault and assault with a weapon against his wife and son, based on his wife's unsworn videotaped statement to police, which she later recanted at trial.

On appeal, the appellant argued the trial judge's mid-trial comments about believing the son's videotaped statement created a reasonable apprehension of bias, and that the wife's statement should not have been admitted.

The Court of Appeal found the trial judge's comments did create a reasonable apprehension of bias, necessitating a new trial.

However, the Court upheld the admission of the wife's videotaped statement, finding the surrounding circumstances provided sufficient threshold reliability despite the lack of an oath.

The appellant father appealed an order changing the custodial arrangement of his child.

The motions judge found a material change in circumstance based on the father's adverse relationship with the school, the child's high number of absences and lateness, impaired academic performance, and the father's breaches of a prior consent custody order.

The Court of Appeal dismissed the appeal, finding no error in the motions judge's focus on the best interests of the child and her conclusion that a change in custody was necessary.

The defendant reported a spill of cooling tower water to the Ministry of the Environment.

A provincial officer telephoned the defendant to demand a written report about the spill.

The defendant refused, arguing that such a demand must be made in writing by a Director under the Environmental Protection Act.

The defendant was charged and initially convicted of obstructing a provincial officer, but was acquitted on appeal.

The Court of Appeal dismissed the Crown's appeal, holding that a provincial officer does not have the statutory authority to demand additional information by telephone, as such powers are reserved for the Director or must be exercised during a physical inspection.