OCA 2007

The appellant appealed a decision of the Summary Conviction Appeal Judge ordering a new trial.

The Court of Appeal found that the original trial judge misapprehended the evidence regarding the appellant's level of impairment when he was found sitting behind the wheel with the keys in the ignition.

The trial judge's error was sufficiently serious to require a new trial.

The appeal was dismissed.

The appellant appealed an order of a Superior Court judge.

The Court of Appeal dismissed the appeal, finding that the motion judge correctly considered and weighed the relevant factors in accordance with the governing jurisprudence.

The appeal was dismissed with costs awarded to the respondents.

The appellants, directors of a preservation society, appealed a non-party costs award of $105,852.14 made against them personally following an unsuccessful application regarding the use of church lands and trust funds.

The Court of Appeal found that while the application judge did not err in concluding the litigation was not public interest litigation, he erred in awarding costs personally against the directors.

The Court held that the directors did not stand to gain personally, were not acting to vindicate a private interest, and did not receive adequate warning that costs would be sought against them personally.

The appeal was allowed and the personal costs order was set aside.

The interim receiver of a bankrupt company sought to distribute funds from operating assets to a secured creditor.

The pension plan administrator opposed, claiming priority under a statutory lien for unpaid pension contributions pursuant to s. 57(5) of the Pension Benefits Act.

The Ministry of the Environment also opposed, arguing funds should be retained for environmental remediation.

The Court of Appeal dismissed both appeals, holding that the pension administrator is not a secured creditor under the Bankruptcy and Insolvency Act because the unpaid contributions are not a debt due to the administrator.

The Court also held that the MOE was an unsecured creditor regarding the operating assets and that the BIA's specific provisions for environmental claims governed.

Following the allowance of the Crown's appeal, the Crown sought costs of the action against the Litigation Administrator and Litigation Guardian, solely to support a Rule 57.07 award of costs against Class Counsel personally.

The Court of Appeal dismissed the request, finding that while Class Counsel's conduct in pursuing the matter following the Supreme Court's decision was questionable, it did not constitute bad faith or the type of conduct required to found an order for costs against a solicitor personally under the test in Young v. Young.

The cost orders of the trial judge were set aside as a result of the original order allowing the appeal.

The respondents were convicted of extortion with a firearm and other offences, which carry mandatory minimum sentences.

The trial judge gave the respondents credit for time spent on strict pre-trial bail (house arrest), reducing their sentences below the statutory minimums.

The Crown appealed.

The Court of Appeal allowed the appeal, holding that while time spent in pre-sentence custody can be credited against a mandatory minimum sentence, time spent on strict bail does not constitute a 'punishment of imprisonment' under the Criminal Code and cannot be used to reduce a mandatory minimum sentence.

The appellant, a youthful first offender, pleaded guilty to offences arising from a sophisticated counterfeiting operation and was sentenced to 21 months' incarceration.

He appealed, arguing the trial judge erred by rejecting a conditional sentence and failing to credit his strict pre-trial bail conditions.

The Court of Appeal held that the trial judge did not err regarding the bail conditions, as they did not impose undue hardship.

However, the Court found that a conditional sentence was appropriate given the appellant's youth, rehabilitation efforts, and the paramountcy of specific deterrence for youthful first offenders.

The appeal was allowed and the sentence varied to 21 months conditional.

The Crown appealed the acquittal of a youth charged with possession of a loaded restricted firearm on school property.

The trial judge had excluded the firearm under s. 24(2) of the Charter, finding the youth was arbitrarily detained when police asked for his identification and questioned him about a knapsack.

The Court of Appeal allowed the appeal, holding that the trial judge erred in inferring psychological detention simply because a police officer requested identification.

The youth's confident conduct in approaching the officers was inconsistent with psychological compulsion.

As there was no detention, the subsequent search of the abandoned bag did not violate the Charter.

A new trial was ordered.

Following an appeal, the parties made written submissions regarding costs.

The Court of Appeal agreed with the respondent's submissions and awarded her costs of the appeal fixed at $1,621.08, inclusive of disbursements and GST.

The appellant appealed an order finding that the employer's Fairness Appeal Program did not apply to his termination.

The Court of Appeal dismissed the appeal, agreeing with the application judge that the program expressly excludes terminations without cause.

The court held that an employer's underlying concerns regarding performance do not convert a termination without cause into a termination for cause when the employer elects to provide notice or payment in lieu thereof.

No evidence of employer bad faith was found.

The appellant purchased contaminated property at a reduced price.

The respondent, who caused the contamination, agreed to remediate the property to a specified standard and indemnify the purchaser for any loss arising from the contamination.

The appellant later sold the property at a profit but claimed damages under the indemnity for reduced profit due to 'contamination stigma'.

The Court of Appeal dismissed the appeal, finding the appellant suffered no loss as the reduced purchase price already accounted for the stigma, and the indemnity agreement did not cover this diminution in value.

The appellant appealed a trial judgment in a matrimonial dispute, arguing that the trial judge's conduct exhibited a reasonable apprehension of bias and compromised trial fairness.

The Court of Appeal dismissed the appeal, finding that the trial judge's credibility findings were supported by the evidence and his comments fell far short of meeting the test for reasonable apprehension of bias.

The court also upheld the custody and access order, noting it was grounded in the specific needs and best interests of the children and consistent with the position of the Children's Lawyer.

The Crown appealed an order of an Ontario Court of Justice judge who purported to exercise delegated habeas corpus powers to declare the accused's detention in jail unlawful.

The accused had been ordered to undergo a mental health assessment at a hospital but was held in jail due to a lack of beds.

A Superior Court judge had remitted the accused's habeas corpus application to the lower court under s. 775 of the Criminal Code.

The Court of Appeal quashed the appeal, holding that the lower court judge's order was not a judgment issued on the return of a writ of habeas corpus, as s. 775 does not permit the delegation of superior court habeas corpus powers to a lower court.

Consequently, there was no statutory jurisdiction to hear the appeal under s. 784(5) of the Criminal Code.

Following an appeal, the Court of Appeal for Ontario issued a costs endorsement fixing costs in favour of the successful respondent in the amount of $11,000, inclusive of disbursements and GST.

The appellant's counsel indicated that his client had left the country and failed to provide instructions or a retainer despite being advised of the hearing date.

The Court of Appeal dismissed the appeal as abandoned, with no costs.

The respondent, a licensed driver and trainer, was disciplined by track judges for providing an improper urine sample.

He appealed to the Ontario Racing Commission, which held a hearing de novo.

At the hearing, the Commission allowed the senior track judge from the initial panel to testify.

The Divisional Court quashed the Commission's decision, finding this created a reasonable apprehension of bias.

The Court of Appeal allowed the appeal, holding that the track judge had relevant factual evidence to give and his testimony did not create a reasonable apprehension of bias, as the Commission Panel's ruling did not show preconceived views or give undue weight to his evidence.

The appellant closed an access road leading to the respondents' landlocked cottage properties after the respondents refused to pay an increased annual user fee.

The appellant argued it could close the road without a court order under the Road Access Act because the respondents had 'alternate road access' via an unopened municipal road allowance or by paying the requested fee for the existing road.

The Court of Appeal dismissed the appeal, holding that 'alternate road access' requires an existing, different road, and neither an unopened road allowance nor the same road subject to a fee qualifies.

On a criminal appeal from convictions for sexual assault, assault, and threatening death, the appellant challenged the trial judge's credibility findings in a consent case.

The Court of Appeal held that the trial judge improperly took judicial notice of a physiological proposition about how a healthy young man's penis would function during intercourse, despite the absence of expert evidence and without notice to the parties.

The court also found a material misapprehension of a witness's evidence concerning what she knew of the parties' prior relationship, which materially supported the rejection of the defence evidence.

Because both errors went to central factual issues, the convictions were quashed and a new trial was ordered.

The appellant appealed a motion judge's decision dismissing his claim.

The Court of Appeal found no error, agreeing that the appellant willingly assumed the risk of driving on a closed road, which triggered section 4(1) of the Occupier's Liability Act.

The appeal was dismissed with costs fixed at $10,000.

The appellant appealed his sentence after being convicted of sexual assault, choking, unlawful confinement, uttering threats, assault, and failing to comply with a probation order.

The sentencing judge found the appellant to be a long-term offender and imposed a 9-year determinate sentence for the sexual assault and related offences, plus consecutive sentences for other offences and a 10-year supervision order.

The Court of Appeal dismissed the sentence appeal, finding the sentence appropriate given the appellant's extensive record and the horrific circumstances of the offences.