OCA 2006

The insurer sought an order to videotape the examination of three expert witnesses to preserve their evidence regarding the cause of an infant's injuries, as the limitation period for the infant to sue would not expire until 2021.

The motion judge granted the order relying on the court's inherent jurisdiction and the Rules of Civil Procedure.

The Court of Appeal allowed the insured's appeal, holding that Rule 36.01 does not authorize the preservation of evidence before an action is commenced, and section 146 of the Courts of Justice Act cannot be used to create such jurisdiction where the Rules intentionally restrict it to existing proceedings.

The appellant husband, a professional hockey coach, appealed a spousal support order of $27,000 per month.

During the marriage, the parties had a practice of saving a significant portion of the husband's income in a retirement compensation arrangement due to the instability of his profession.

The trial judge included a savings component in the spousal support award to allow the respondent wife to maintain the marital standard of living, which included saving for the future.

The Court of Appeal dismissed the appeal, finding that the award did not constitute an impermissible redistribution of capital, as the wife had become entirely dependent on the husband for both daily necessities and future financial security.

The plaintiff sued the appellant in negligence following a motor vehicle accident.

The appellant was driving the plaintiff's car with permission and was an insured under the plaintiff's automobile insurance policy.

The insurer settled the plaintiff's claims without the appellant's consent and obtained summary judgment against the appellant for reimbursement under s. 258 of the Insurance Act.

On appeal, the Court of Appeal held that absent an agreement to the contrary, s. 258(1) requires a judgment against the insured before an insurer can access available insurance moneys or seek reimbursement.

The appeal was allowed and the summary judgment was set aside.

The young offender appealed his sentence for armed robbery and other offences.

The trial judge had imposed a 33-month custody sentence in addition to 6 months of pre-trial custody, resulting in an effective sentence of 39 months.

The Court of Appeal held that under s. 42(15) of the Youth Criminal Justice Act, the total sentence cannot exceed the 3-year (36-month) maximum, and pre-trial custody must be included in this calculation.

The appeal was allowed, the sentence was reduced to 30 months, and an improperly imposed probation order was struck.

The appellants' parked motor vehicle was destroyed by a fire allegedly caused by a transmission fluid leak.

The motion judge granted summary judgment dismissing the action as statute-barred by the two-year limitation period in s. 206(1) of the Highway Traffic Act, relying on the binding precedent of Karakas v. General Motors of Canada Ltd. The Court of Appeal dismissed the appeal, holding that while there was arguable merit to the appellants' claim that Karakas was at odds with Supreme Court of Canada jurisprudence, the court was not asked to overrule Karakas and the present case could not be distinguished from it.

The motion judge declared a two-year-old child in need of protection but ordered the child returned to the parents.

When the child protection worker inspected the parents' home the next day, she found it unsanitary and unsafe, and decided to proceed with a technical apprehension rather than returning the child immediately.

The parents remedied the defects and the child was returned a few days later.

The parents brought a motion for contempt of court, which the motion judge granted.

On appeal, the Court of Appeal set aside the contempt finding, holding that the original order was ambiguous regarding the agency's right to inspect and respond to safety concerns, and that the motion judge erred by resolving contradictory affidavit evidence on a quasi-criminal contempt motion.

The appellants, Ontario residents, appealed a decision staying their action against a New Orleans restaurant owner for a slip and fall injury sustained while vacationing in Louisiana.

The motion judge found that the Ontario Superior Court lacked jurisdiction simpliciter.

The Court of Appeal upheld the decision, applying the real and substantial connection test and finding that requiring a foreign restaurant owner to defend in the customer's home jurisdiction would impose an unreasonable burden.

The appellant appealed his conviction and sentence for assaulting his mother and breaching probation.

The Court of Appeal dismissed the conviction appeal, finding no reversible error in the trial judge's assessment of the complainant's evidence.

However, the Court allowed the sentence appeal, finding the total sentence exceeded what was appropriate for simple assault and breach of probation.

As the appellant had already served the custodial portion, the Court reduced the term of probation from 24 months to 12 months.

The appellant appealed a judgment granting an order pursuant to s. 50(3) of the Arbitration Act enforcing a family arbitration award.

The Court of Appeal dismissed the appeal, finding no error by the motion judge as all conditions in s. 50(3) were satisfied.

The Court noted that the appellant's arguments focused on the merits of the award, which is a matter for judicial review, and that the arbitrator had jurisdiction under the separation agreement.

The appellant appealed a final order for an equalization payment of approximately $4,560 and child support totaling just under $9,000 annually.

The Court of Appeal dismissed the appeal for want of jurisdiction, holding that under sections 6 and 19 of the Courts of Justice Act, the appeal lies to the Divisional Court because the amount in issue is under the monetary threshold.

The court declined to reconstitute itself as a panel of the Divisional Court or transfer the appeal.

The appellant appealed a jury verdict awarding the elderly respondents damages, including $250,000 each in general non-pecuniary damages, after an oil spill destroyed their home.

The appellant argued that a mistrial should have been declared due to prejudicial evidence regarding insurance and settlement negotiations, and that the damages were excessive.

The Court of Appeal dismissed the appeal, finding no unfair prejudice to warrant a mistrial and concluding that while the general damages award was high, it was reasonably open to the jury given the devastating impact of the loss of the respondents' home.

The appellant was convicted of participating in a sophisticated marijuana growing operation and sentenced to nine months' imprisonment.

She appealed both the conviction and sentence, arguing the trial judge misapprehended the evidence, the verdict was unreasonable, and the trial judge erred in principle by presuming a conditional sentence was unavailable.

The Court of Appeal dismissed the conviction appeal, finding the trial judge reasonably inferred her involvement from circumstantial evidence, including her access to the house and items found in her car.

The sentence appeal was also dismissed, as the trial judge properly considered a conditional sentence but concluded denunciation and deterrence mandated a custodial sentence.

The Attorney General of Ontario appealed a trial decision finding that the age cut-off for the Intensive Education Intervention Program (IEIP) for autistic children violated the Charter.

The Court of Appeal allowed the appeal, holding that the program's focus on children aged two to five was a targeted ameliorative program that did not discriminate on the basis of age or disability.

The Court further held that even if there was a breach, the age limit was a reasonable limit under section 1 of the Charter due to resource constraints and expert evidence supporting early intervention.

Claims based on section 7 of the Charter and negligence were also dismissed.

The appellant appealed a trial judge's decision characterizing a letter of agreement as an absolute and unconditional sale and transfer of shares.

The appellant argued the arrangement created a security interest subject to the Personal Property Security Act.

The Court of Appeal dismissed the appeal, finding the trial judge was entitled to conclude on the record that the transaction was an absolute sale.

The appellant appealed his conviction by Justice Albert J. Roy of the Superior Court of Justice.

The conviction appeal was abandoned.

The appellant, a former teacher at a boarding school, appealed his convictions and three-year sentence for eight counts of historical indecent assault involving seven students.

He argued the trial judge erred regarding unreasonable delay, admission of similar fact evidence, application of reasonable doubt, and refusal to impose a conditional sentence.

The Court of Appeal dismissed the appeal, finding no errors in the trial judge's rulings on delay or similar fact evidence, deferring to the credibility findings, and upholding the three-year sentence as fit given the nature of the offences and lack of remorse.

The third party real estate agent appealed a trial judgment awarding the purchasers damages and costs arising from an aborted real estate transaction.

The purchasers had settled the main action with the vendor and proceeded against the agent for negligence and breach of fiduciary duty.

The Court of Appeal upheld the trial judge's findings on liability and mitigation, noting the purchasers were not obliged to close the transaction given the uncertainty of repair costs and their specific need for a move-in ready home.

However, the Court varied the costs award, recharacterizing the costs of defending the main action as damages and reducing the trial costs of the third party action.

The respondent sued the appellant personally for a contract debt.

At trial, the appellant's counsel consented to judgment against the appellant's numbered company, and the trial proceeded against the appellant personally.

The trial judge found the appellant personally liable because he held himself out as the owner of the business and did not clarify he was contracting through a corporation.

On appeal, the appellant argued the respondent could not obtain judgment against both the agent and the principal.

The Court of Appeal dismissed the appeal, holding that the appellant could not rely on this defence because it was not pleaded and was raised too late, prejudicing the respondent.

In a Reference directed by the Minister of Justice concerning the 1959 murder conviction of Steven Truscott, the Crown sought to introduce fresh evidence from a witness, Ms. X. The proposed evidence described a brief, unwanted sexual advance by Truscott in a cornfield approximately a year before the murder.

The Crown argued the evidence was relevant to rebut good character, challenge credibility, support another witness's testimony, and act as similar fact evidence identifying Truscott as the killer.

The Court of Appeal ruled on the admissibility without hearing the testimony viva voce, finding the evidence clearly irrelevant to any material fact in issue.

The Crown's application to tender the evidence was dismissed, and the defence's request for a publication ban on the ruling was denied.

The appellant appealed his conviction, arguing the trial judge erred in refusing an adjournment when he attended the trial date with newly retained counsel, forcing him to proceed unrepresented during the Crown's case.

The Court of Appeal dismissed the appeal, finding that although the trial judge might have made further inquiries before refusing the adjournment, the fairness of the trial was not compromised.

The trial judge granted a lengthy adjournment after the Crown's case, allowing the appellant to retain counsel who was provided with transcripts and disclosure, and who subsequently recalled a Crown witness and presented the defence.