OCA 2007

The appellant hospital appealed a motion judge's order refusing to approve a 1998 infant settlement and granting the plaintiff's motion to amend the claim for damages.

The plaintiff sought the amendment based on new expert evidence indicating her life expectancy had increased by 30 to 35 years since the settlement was reached.

The Court of Appeal dismissed the appeal, finding the motion judge correctly focused on the best interests of the child under Rule 7.08 of the Rules of Civil Procedure and reasonably relied on the uncontradicted expert evidence regarding life expectancy.

The appellant appealed a term of his conditional sentence that prohibited him from working outside his home for the first ten months.

Although the Court of Appeal found no error in the trial judge's original conditions, it admitted fresh evidence regarding a tragic event involving the appellant's daughter and his worsening medical condition.

The Court allowed the appeal and varied the condition to permit the appellant to seek and maintain employment, other than self-employment, at a place approved by his supervisor.

The appellant appealed his conviction and sentence.

Based on a concession by the Crown, which the Court of Appeal found to be proper and correct, the appeal was allowed, the conviction was quashed, and a new trial was ordered.

The appellant husband appealed an order dismissing his appeal from a motion judge's decision to accept jurisdiction over child custody and access under s. 23 of the Children's Law Reform Act.

The respondent wife had fled Dubai with the child, alleging physical and mental abuse.

The motion judge found that the child would be at serious risk of harm if returned to Dubai.

The Court of Appeal upheld the motion judge's findings of abuse and risk of harm, despite concluding that an Amnesty International report should not have been admitted into evidence.

The appeal was dismissed.

The appellant appealed his convictions for assault causing bodily harm, uttering a threat, and pointing a firearm against his intimate partner, as well as his sentence.

He argued the trial judge erred in admitting and using evidence of discreditable conduct, and in finding a pellet gun was a firearm.

The Court of Appeal dismissed the conviction appeal, finding the discreditable conduct evidence was properly admitted as narrative and the pellet gun met the definition of a firearm.

The sentence appeal was also dismissed, with the Court noting that under s. 732(3) of the Criminal Code, the imposition of a conditional sentence alongside an intermittent sentence causes the intermittent sentence to be served on consecutive days.

The appellant was convicted of driving 'over 80'.

At the time of his arrest, he demanded to speak only to his specific counsel of choice.

When the police could not reach that lawyer after an hour, the appellant refused offers to contact another lawyer.

The trial judge found no s. 10(b) Charter breach because the appellant failed to exercise reasonable diligence in exercising his right to counsel.

The summary conviction appeal judge and the Court of Appeal upheld this finding, dismissing the appeal.

The appellant employer appealed a trial judgment finding it wrongfully dismissed the respondent employee without just cause and awarding Wallace damages.

The Court of Appeal upheld the finding of wrongful dismissal, noting that while the trial judge did not explicitly refer to the McKinley framework, his factual findings supported the conclusion that the misconduct did not warrant dismissal for cause.

However, the Court set aside the award of Wallace damages because the trial judge based the award on serious findings of misconduct (conspiracy and bad faith counterclaim) that were neither pleaded nor argued by the respondent, depriving the appellant of an opportunity to respond.

The appeal was allowed in part.

The appellant appealed his committal for extradition to the United States on drug trafficking charges and sought judicial review of the Minister's surrender order.

He argued that the Canadian authorities' withdrawal of domestic charges without notice constituted an abuse of process, depriving him of the opportunity to build a record to argue against extradition.

The Court of Appeal dismissed the appeal, finding no error in the extradition judge's refusal to grant a stay, as the domestic charges were not a ruse and the appellant had other avenues to raise his arguments.

The Court also upheld the Minister's surrender order, finding it was not unjust or oppressive despite the potentially severe penalty in the United States.

The appellant appealed a trial judgment finding that she was an independent contractor rather than an employee.

The Court of Appeal dismissed the appeal, holding that there was ample evidence to support the trial judge's finding.

Costs of $10,000 were awarded to the respondents.

The appellant appealed an order striking his claim against a court-appointed trustee.

The Court of Appeal dismissed the appeal, finding that the allegations related to the trustee's conduct in its appointed capacity and the appellant had failed to seek leave to sue as required by section 215 of the Bankruptcy and Insolvency Act.

The appellant appealed his convictions for sexual interference, sexual exploitation, and sexual assault.

The sole issue at trial was credibility.

The Court of Appeal found that the trial judge made errors of fact and principle in assessing the appellant's credibility, specifically by mischaracterizing evidence elicited during cross-examination as a calculated attack on the complainant's character and by misapprehending the testimony of the appellant's mother.

The appeal was allowed, the convictions were set aside, and a new trial was ordered.

The insurers, having been successful on appeal, sought costs for both the appeal and the lengthy trial.

The Court of Appeal awarded the insurers their costs of the proceedings on a partial indemnity scale, fixed at $135,000.

The court also awarded the insurers their costs of the trial on a partial indemnity scale, fixed at $510,000, noting that the trial involved complex factual and legal issues and that the claimed fees were reduced to reflect an appropriate partial indemnity recovery rate of approximately 65%.

The Crown appealed the accused's acquittals on charges of sexual abuse, arguing the trial judge erred in excluding similar fact evidence, excluding a decision of the College of Physicians and Surgeons, and permitting cross-examination on prior complaints.

The Court of Appeal dismissed the appeal, finding the trial judge correctly applied the test for concoction regarding the similar fact evidence, properly exercised his discretion to exclude the College decision due to prejudicial effect, and appropriately instructed the jury on the use of prior complaints for assessing credibility.

The appellant was convicted of first degree murder.

The Crown's case relied heavily on the testimony of the deceased's wife, with whom the appellant was having an affair, who claimed the appellant confessed to the murder.

The appellant appealed his conviction on several grounds, including the trial judge's instructions on forensic testing, the admission of intercepted phone calls, the admission of video re-enactments and lay opinion evidence, the adequacy of the Vetrovec warning, and instructions on after-the-fact conduct.

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

The Minister of Finance appealed a decision entitling the respondent corporation to defer land transfer tax on the acquisition of properties from a related company.

The deferment depended on whether the two companies were 'affiliates' controlled by the same person under the Land Transfer Tax Act.

While the companies were under the de facto control of the same individual, they were not under the same de jure control.

The Court of Appeal held that the statutory definition of control is exhaustive and requires de jure control.

The appeal was allowed and the Minister's decision denying the deferment was restored.

The appellants appealed a sending order made under s. 15 of the Mutual Legal Assistance in Criminal Matters Act.

The application judge had found that the search warrant was facially overbroad and that the seizure exceeded the terms of the warrant, but concluded he had the discretion to send the requesting state the materials that could properly have been seized under a valid warrant.

The Court of Appeal dismissed the appeal, holding that the application judge did not err in his interpretation of s. 15 and properly exercised his discretion in making the sending order despite the defective warrant.

The appellants appealed the dismissal of their motion to stay proceedings based on a forum selection clause designating British Columbia for arbitration.

The Court of Appeal found that the motion judge erred by failing to apply the 'strong cause' test from Pompey v. Ecu-Line N.V. However, exercising its own discretion under s. 106 of the Courts of Justice Act, the Court dismissed the appeal.

The Court held that due to the appellants' two-year delay in bringing the motion and the significant steps already taken in the Ontario litigation, it would be unjust to require the respondent to start afresh in British Columbia.

The appellants appealed a trial judgment that awarded the respondent a 56% equity interest in a leased truck as a remedy for the appellants' failure to provide reasonable notice of termination of an employment agreement.

The Court of Appeal found that the trial judge erred, as the lease agreement did not confer an ownership interest prior to the exercise of the purchase option.

The Court determined the respondent was entitled to $6,000 in damages for two months' notice.

However, the Court also found the respondent breached the lease by failing to return the truck when he stopped making payments, causing a $6,000 loss in depreciation to the appellants.

The Court allowed the appeal, striking the equity award and finding the offsetting damages cancelled each other out, with no costs awarded.

The 18-year-old appellant appealed his nine-year sentence for a brutal robbery of an elderly store clerk.

The Court of Appeal allowed the appeal, finding the sentence was just outside the range established in similar cases, particularly R. v. Borde.

The majority reduced the sentence to six years (effective eight years with pre-trial custody) to better reflect the principle of parity and the appellant's potential for rehabilitation.

MacPherson J.A. dissented, finding no error in the trial judge's sentence.

The appellant appealed his convictions, arguing the trial judge erred in ruling the proposed opinion evidence of a psychologist inadmissible and in admitting a child's out-of-court statement.

The Court of Appeal held that the trial judge correctly concluded the expert evidence was unnecessary as it did not fall outside the experience of a trial judge.

The Court also found no error in admitting the out-of-court statement, as the hearsay dangers were overcome by the opportunity for cross-examination, videotape evidence of demeanour, and the child's understanding of truth and falsehood.

The appeal was dismissed.