OCA 2007

The appellant tenant appealed a judgment dismissing its application under s. 23(2) of the Commercial Tenancies Act for an order finding that the respondent landlord unreasonably withheld consent to a lease assignment.

The Court of Appeal found that while the application judge set out the correct test, he erred by failing to consider whether the landlord's refusal was unreasonable in fact because it was designed to achieve a collateral purpose or benefit.

The appeal was allowed, the judgment set aside, and the matter remitted for a new hearing.

The applicant hospital brought a motion under s. 672.76 of the Criminal Code to suspend a disposition of the Ontario Review Board pending appeal.

The Board had ordered the respondent, who was found not criminally responsible, to be detained in a medium secure unit.

The applicant sought to transfer the respondent to a maximum security facility.

The Court of Appeal dismissed the motion, holding that suspending a Board disposition requires compelling evidence of extraordinary circumstances, which the applicant failed to provide as the evidence on the motion was the same as that considered by the Board.

The applicant, charged with first-degree murder, sought a review of a detention order under s. 680 of the Criminal Code.

The reviewing judge upheld the detention on both the secondary and tertiary grounds.

The applicant had a history of violent behaviour and there were concerns for witness safety, justifying detention on the secondary ground.

Furthermore, the tertiary ground was met as the combined effect of the strength of the Crown's case and the circumstances of the offence made detention necessary to maintain public confidence in the administration of justice.

The application was dismissed.

The appellants appealed a motion judge's decision dismissing their motion to stay or dismiss the respondent's action on the basis of forum non conveniens.

The appellants argued that the motion judge misplaced the evidentiary burden by failing to require the respondent to show why the action should be heard in Ontario, given an exclusive jurisdiction clause favouring Quebec or New York.

The Court of Appeal dismissed the appeal, finding that while the motion judge may have erred in principle regarding the burden of proof under the forum selection clause, order and fairness overwhelmingly favoured Ontario as the appropriate forum due to the existence of multiple related proceedings already before the Ontario courts.

Following an appeal, the Court of Appeal for Ontario issued a costs endorsement awarding costs to the respondent, Leather Treaty, fixed in the amount of $15,000 all inclusive.

The appellant owner leased a truck to a lessee who was expressly prohibited from driving it under the lease terms and an excluded driver endorsement.

The lessee drove the truck and was involved in a single-vehicle accident, injuring the respondent passengers.

The owner appealed a motion judge's finding that it was vicariously liable under s. 192(1) of the Highway Traffic Act.

The Court of Appeal dismissed the appeal, holding that consent to possession is distinct from consent to operate.

By leasing the vehicle, the owner consented to the lessee's possession, and the owner cannot contract out of its statutory vicarious liability.

The accused was acquitted of murder following a stabbing at a nightclub.

At trial, evidence was admitted that the deceased had 39 ecstasy pills sewn into his underwear, on the condition that the defence would not use it to suggest the deceased had a violent disposition.

However, in his closing address, defence counsel rhetorically asked the jury to link the drugs to violence, implying the deceased was the aggressor.

The trial judge refused the Crown's request for a corrective instruction.

The Court of Appeal allowed the Crown's appeal and ordered a new trial, finding that the trial judge erred in failing to correct the impermissible propensity reasoning invited by defence counsel.

The appellant appealed a disposition of the Ontario Review Board.

The Court of Appeal dismissed the appeal, holding that even if the appeal was not moot, the Board's disposition was reasonable and supported by the evidence.

The appellant appealed his convictions and sentences for multiple offences, including procuring prostitution, assault, and extortion.

He argued the trial judge's jury charge was deficient for failing to include a Vetrovec warning, distinguish between credibility and reliability, and instruct on all constituent elements of the offences.

The Court of Appeal found the charge deficient but concluded it did not amount to reversible error for most counts, as the case rested simply on the complainant's credibility.

However, the court substituted a conviction for common assault in place of assault with a weapon because the trial judge failed to specify the weapon in the charge.

The total sentence of eight years was upheld, though the individual sentences were varied to correct an unlawful six-year concurrent sentence for common assault.

The appellant appealed the dismissal of her counterclaim and a subsequent motion to set aside the judgment.

At trial, the appellant asked the trial judge to recuse himself because his former law firm had represented one of the defendants over ten years prior.

The judge refused, noting he had no personal involvement in the file and a significant amount of time had passed.

The appellant and her counsel then left the courtroom, leading the judge to dismiss the counterclaim.

Days later, the judge realized he had a past association with another defendant and informed the parties, but later dismissed a motion to set aside the judgment as he was functus officio.

The Court of Appeal dismissed the appeals, finding no reasonable apprehension of bias and noting that the appellant's abandonment of the trial left the judge with no other option but to dismiss the counterclaim.

The appellant appealed a trial judge's finding that the transferors of property did not intend to create a trust.

The Court of Appeal held that the intention to create a trust is a finding of fact, reviewable only for palpable and overriding error.

The court found that the mere presence of the words 'in trust' in the transfer document was not determinative, and there was evidence supporting an absolute transfer, including nominal consideration and the transferee's labour and devotion to his parents.

The appeal was dismissed.

The appellant appealed his conviction for second degree murder and his sentence of life imprisonment with a 15-year period of parole ineligibility.

He argued the trial judge erred by excluding evidence of the deceased's propensity for violence, misdirecting the jury on after-the-fact conduct regarding intent, and misdirecting the jury on self-defence.

The Court of Appeal dismissed the conviction appeal, finding no errors in the trial judge's evidentiary rulings or jury instructions.

The sentence appeal was also dismissed, as the trial judge properly considered the appellant's prior record, the senseless nature of the killing, and the jury's recommendation.

The applicant sought an extension of time to file a Notice of Motion for Leave to Appeal a Superior Court decision that refused leave to appeal an arbitrator's fault determination under the Insurance Act.

The Court of Appeal held that, following Denison Mines and Hillmond, a decision refusing leave to appeal under s. 45(1) of the Arbitration Act is a final order from which there is no appeal, unless the judge mistakenly declined jurisdiction.

Finding that the application judge did not decline jurisdiction but rather exercised it, the Court concluded there was no right of appeal and dismissed the motion for an extension of time.

The appellant appealed an order dismissing its motion to stay or dismiss the action on jurisdictional grounds.

The Court of Appeal upheld the motion judge's findings that the dispute did not arise 'in connection with' the Confidentiality Agreement, and therefore the arbitration clause did not apply.

The Court also agreed that there was a real and substantial connection between Ontario and the subject matter of the action, and found no basis to interfere with the motion judge's determination that Ontario was the forum conveniens.

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

The Crown appealed the trial judge's decision to designate the respondent as a long-term offender rather than a dangerous offender.

The respondent, a diagnosed psychopath with a history of severe domestic violence, was found to pose an extremely high risk of violent recidivism.

The trial judge imposed a ten-year sentence followed by a ten-year supervision order with strict conditions, hoping his risk would 'burn out' by age 45.

The Court of Appeal allowed the Crown's appeal, finding that the trial judge erred by relying on strict community supervision conditions that were practically impossible to implement due to a lack of resources.

The Court substituted a dangerous offender designation, emphasizing that public protection is paramount and cannot be compromised by assuming unavailable resources will materialize.

The appellant appealed a judgment ordering him to pay the respondent the shortfall from a mortgage default and subsequent power of sale.

The appellant argued he was not properly served with the Notice of Sale because it was sent to the abandoned mortgaged property rather than his known address in the United States.

The Court of Appeal dismissed the appeal, finding that service was in accordance with the Mortgages Act and that the appellant was well aware of the default.

The court also upheld the motion judge's finding that there was no triable issue regarding whether the sale was provident.

The appellant appealed his convictions for break and enter, sexual assault, forcible confinement, and dangerous operation of a motor vehicle.

During jury selection, the trial judge departed from the statutorily mandated procedure under s. 640(2) of the Criminal Code by having the first two jurors act as triers for the challenge for cause for the entire panel, rather than rotating them.

The Court of Appeal held that this was a fundamental jurisdictional error that resulted in an improperly constituted court.

The error could not be cured by the proviso in s. 686(1)(b)(iv).

The appeal was allowed and a new trial ordered.

The parties signed a separation agreement providing for joint custody, which explicitly stated that the mother's temporary return to China would not constitute a material change in circumstances.

While the mother was in China, the father obtained an ex parte order for sole custody by misrepresenting her address and failing to bring the separation agreement to the court's attention.

The motion judge set aside the ex parte order and awarded full indemnity costs.

The father appealed.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's decision to set aside the order due to lack of proper notice, lack of material change, and failure to provide the court with all information.

The appellants, home renovators, appealed the dismissal of their claim against the respondent home owners and the allowance of the home owners' counterclaim.

The appellants argued the trial judge erred in placing the burden of obtaining building permits and licences on the contractor.

The Court of Appeal dismissed the appeal, finding that the trial judge's factual findings regarding the contract, scope and quality of work, extras, and the cost of remedial work were supported by the evidence, including the finding that the home owners were incorrectly told a permit was not necessary.

The appellant employer appealed a trial judgment finding it wrongfully dismissed the respondent employee.

The employer had terminated the employee alleging sexual harassment of co-workers.

The trial judge found the conduct was non-sexual, alcohol-induced harassment that warranted progressive discipline, not dismissal.

The Court of Appeal upheld the trial judge's findings on just cause, the exclusion of a deceased witness's hearsay statement, the modest Wallace extension, and the award for lost benefits.

The appeal was dismissed.