OCA 2007

The appellant appealed a sentence imposed for driving offences.

The trial judge had rejected a joint submission of two years, imposing a sentence 2.5 times that length due to the appellant's horrendous record of over sixty prior convictions, including twelve for driving while disqualified.

The Court of Appeal held that while rejecting the joint submission was reasonable given the public interest, the resulting sentence was manifestly excessive.

The appeal was allowed and the total sentence was reduced to four years.

The Crown appealed an order staying a charge of rape against the respondent due to late disclosure of threatening phone messages left by a witness for the complainant.

The trial judge granted the stay before trial, finding the delay caused prejudice because the witness had an apparent memory lapse.

The Court of Appeal allowed the appeal and set aside the stay, holding that the trial judge erred by not waiting until the conclusion of the trial to assess actual prejudice, as the evidence of prejudice on the pre-trial record was speculative.

The Court also found that the Crown's overzealous interpretation of a no-contact order did not amount to an abuse of process warranting a stay.

The appellant was convicted of manslaughter by a judge and jury after shooting the victim during horseplay with a handgun.

He appealed his conviction, arguing errors in the jury charge regarding the standard of proof, the lack of a Vetrovec warning for a witness, and instructions on the defence of accident and criminal negligence.

The Court of Appeal dismissed the appeal, finding no errors in the jury instructions and noting that a Vetrovec warning was not mandatory.

The appellant appealed an order of the Superior Court of Justice.

The Court of Appeal issued an endorsement varying the lower court's judgment in accordance with a consent order filed by the parties.

The employer appealed a Divisional Court decision that overturned a Financial Services Tribunal ruling regarding the administration of a pension plan.

The Court of Appeal restored the Tribunal's decisions, holding that the employer was entitled to pay most plan expenses from the pension fund and to take contribution holidays using the actuarial surplus for both the defined benefit and defined contribution components of the plan.

The Court also found that while the notice of the conversion option was inadequate, the Superintendent was not required to refuse registration of the amended plan.

Finally, the Court held that the Tribunal lacked jurisdiction to order costs payable from the pension fund.

The appellant appealed the dismissal of his action.

The action had been dismissed without notice pursuant to Rule 37.07(2) after the appellant failed to comply with a previous affidavit order.

The Court of Appeal found no merit to the appeal, noting the appellant was attempting to re-litigate the affidavit order, an appeal of which had already been quashed.

The appeal was dismissed with costs.

The respondent, a deputy chief of police, sought a declaration that the fixed-term provision in his employment contract was void after the police services board declined to renew it.

The application judge found the provision was a colourable device to bypass statutory termination procedures and declared it void.

On appeal, the Court of Appeal set aside the judgment, finding no evidence of an ulterior motive.

The Court held that the expiry of a fixed-term contract does not constitute a dismissal under the Police Services Act, and that a three-year term does not undermine the independence required of a deputy chief.

The appellants appealed a trial judgment granting a mandatory injunction requiring them to remove a retaining wall that encroached on the respondent's adjacent commercial property.

The original encroachment was permitted under a 1973 settlement agreement, which stipulated that consent would be rescinded if further encroachment occurred.

The trial judge found that the wall had moved significantly, rescinding the consent and rendering the encroachment a trespass.

The Court of Appeal upheld the trial judge's findings that the encroachment constituted a trespass, that the appellants had not acquired title by adverse possession because their possession was consensual, and that a mandatory injunction was the appropriate remedy given the significant and ongoing interference with the respondent's property rights.

The appeal was dismissed.

The appellants appealed a summary judgment enforcing two guarantees they provided for the indebtedness of their corporation.

The Court of Appeal found no error by the motion judge, concluding there was no triable issue regarding an enforceable agreement between the respondents and the corporation, nor any indication that such a contract was a term of the guarantee.

The appeal was dismissed with costs.

The appellant father sought to suspend a final adoption order for his biological child by challenging the underlying Crown wardship order.

The child was apprehended at birth and made a Crown ward before the father's paternity was known.

After paternity was established, the Children's Aid Society gave the father time to present a parenting plan but ultimately proceeded with adoption when he failed to act promptly.

The Court of Appeal dismissed the appeal, holding that under s. 157(1) of the Child and Family Services Act, the final adoption order precluded any motion to set aside the Crown wardship order, and the father was precluded from bringing a status review application after the child was placed for adoption.

The appellant appealed a restitution order imposed as part of her sentence.

The sentencing judge had imposed the order primarily to save the victim the expense of civil litigation.

The Court of Appeal allowed the appeal and set aside the restitution order, noting that the appellant was unemployed and bankrupt, and therefore had no ability to pay.

The appellant appealed a decision regarding her bankruptcy discharge, arguing she was entitled to an automatic discharge because the trustee in bankruptcy failed to include a recommendation on her discharge in his report.

The Court of Appeal dismissed the appeal, finding that the appellant had failed to perform several duties and tender required funds, and that the trustee's actions did not invalidate the procedure.

The landlord imposed a rent increase on the tenant without providing the mandatory 90 days' written notice under the Tenant Protection Act.

The tenant paid the increased rent for several months before reverting to the original rent, prompting the landlord to seek eviction for arrears.

The Court of Appeal held that a rent increase imposed without proper notice is void and a nullity under s. 127(4) of the Act, not merely unlawful.

Consequently, the curative provisions of s. 141, which deem unlawful rent increases lawful after one year, do not apply to save a void rent increase.

The applicant sought release on bail pending trial for an offence involving a fatal stabbing.

Fresh evidence was introduced suggesting the deceased was the aggressor, providing context for the applicant's conduct.

The Court of Appeal found that, given the new information, detention was not justified on the tertiary ground, and the applicant met his onus on the secondary ground due to the availability of sureties to monitor his conduct.

The application for bail was granted.

The Attorney General of Ontario brought an application for civil forfeiture of cash and marijuana grow equipment seized from the appellant's vehicle under the Civil Remedies Act.

The appellant challenged the constitutionality of the Act, arguing it was ultra vires the province and violated the Charter.

The Court of Appeal upheld the application judge's decision, finding the Act's pith and substance relates to property and civil rights, not criminal law.

The court also held that section 11 of the Charter does not apply to civil forfeiture proceedings as they do not result in true penal consequences.

The appeal was dismissed.

The appellant appealed a trial judgment dismissing its application for specific performance of an alleged agreement to purchase shares.

The trial judge found no binding contract had been formed.

The Court of Appeal allowed the appeal, finding the trial judge erred by focusing entirely on the subjective intent of the respondent's negotiator rather than applying the objective test for contract formation.

However, the Court declined to grant specific performance, noting that applying the objective test could still lead to a finding of no contract, and remitted the matter for a new trial.

The appellants appealed a trial judgment, arguing the trial judge erred in her factual findings and misdirected herself on the legal principles regarding confidential information by focusing on ownership.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual and credibility findings.

The Court also held that the lack of proof of ownership of the confidential information was highly relevant, as there was no evidence the appellants had the legal right to compel its return or were authorized agents of the owner.

The appellant appealed a finding of civil fraud.

The Court of Appeal dismissed the appeal, holding that the trial judge's findings were supported by the evidence and not tainted by palpable and overriding error.

The court noted that although the respondent did not prove one particular of fraud (participation in a fraudulent discharge), the other proven particulars supported the judgment.

The appellant appealed a trial judgment finding it liable for unpaid invoices, arguing that a different corporate entity was responsible.

The Court of Appeal dismissed the appeal, noting that the appellant had taken a different position at trial and that there was no palpable and overriding error in the trial judge's finding of liability.

The Crown appealed a decision of a summary conviction appeal court judge who set aside the respondent's guilty plea and sentence.

The Court of Appeal dismissed the appeal, finding no error of law in the lower court's decision to set aside the plea based on the evidence and local circumstances.