OCA 2007

The self-represented appellant appealed from a summary judgment dismissing his claim for malicious prosecution against an assistant crown attorney.

The motion judge had found no genuine issue for trial regarding the absence of reasonable and probable grounds or malice.

The Court of Appeal dismissed the appeal, finding no palpable or overriding error in the motion judge's decision and noting the appellant failed to address any purported errors.

The appellants appealed a decision refusing to set aside a default judgment.

The Court of Appeal dismissed the appeal, finding no reason to interfere with the motion judge's decision.

The appellants failed to satisfy the conventional test for setting aside a default judgment, particularly failing to explain an eight-and-a-half-year delay, and had already acknowledged the judgment's validity by unconditionally satisfying it.

The appellant, facing mortgage fraud charges, was subpoenaed to testify at the preliminary inquiry of a co-accused.

He moved to quash the subpoena, arguing the Crown was on a fishing expedition for his own trial and that testifying would prejudice his right to silence.

The motion judge refused to quash the subpoena, finding the appellant likely had material evidence and was fully protected by derivative use immunity under the Canada Evidence Act and the Charter.

The Court of Appeal upheld the decision and dismissed the appeal.

The appellants appealed a trial judgment finding that the respondent did not provide assurance that the appellant would not pay more for hotel rooms than if booked directly.

The Court of Appeal found no palpable or overriding error in the trial judge's findings of fact.

The appeal was dismissed, subject to deleting one paragraph of the judgment to allow the appellant to be paid its commission, with costs awarded to the respondent.

The applicant sought judicial review of the Minister of Justice's decision refusing to rescind an order surrendering him to Germany for trial.

The applicant argued that comments made to the media by a German prosecutor and judicial spokesperson demonstrated he would not receive a fair trial, violating his rights under s. 7 of the Charter.

The Court of Appeal dismissed the application, finding that the Minister did not err in concluding that the German justice system could be trusted to address any potential prejudice and ensure a fair trial.

The moving party sought to quash the appeal on the basis that the responding parties' factum sought to overturn the reasons for judgment rather than the judgment itself.

The Court of Appeal dismissed the motion, holding that the comprehensive Notice of Appeal governs the scope of the appeal.

The responding parties were granted leave to file a revised factum.

The appellant mother appealed a trial judge's decision awarding custody of the child to the respondent father.

The Court of Appeal found no basis to interfere with the trial judge's carefully considered reasons, which focused on the child's best interests.

The trial judge had also ordered the father to pay for the mother's airfare to facilitate access due to her limited means.

The appeal was dismissed with costs fixed at $4,000.

The appellant appealed his conviction for sexual assault, arguing the trial judge erred regarding the complainant's capacity to consent and competency to testify.

The Court of Appeal dismissed the appeal, holding that capacity to consent and competency to testify are distinct issues.

The court found that even if the trial judge erred on capacity, she accepted the complainant's version of events, which indicated no consent.

Furthermore, the appellant's own testimony showed he failed to take reasonable steps to ascertain consent.

The defendants in a personal injury action brought a motion for an extension of time to file a Notice of Cross-Appeal.

The trial judge had instructed the jury on causation using the 'material contribution' test, and the jury found in favour of the plaintiff.

Following a recent Supreme Court of Canada decision clarifying that the 'but for' test is the standard for causation, the defendants sought to cross-appeal.

The Court of Appeal granted the motion, finding that the delay was reasonably explained, the cross-appeal had considerable merit, and the justice of the case favoured allowing the cross-appeal to proceed alongside the plaintiff's appeal.

The appellant was convicted of attempted murder and robbery.

On appeal, he argued for the first time that his s. 10(b) Charter rights were violated when police elicited an unrecorded statement from him after he requested counsel but before he was given an opportunity to consult one.

The Court of Appeal allowed the issue to be raised, finding a sufficient evidentiary record and no prejudice to the Crown.

The Court held that subsequent recorded statements, taken after the appellant consulted counsel, were tainted by the initial breach due to their close temporal and contextual connection.

The statements were excluded under s. 24(2) as conscriptive evidence, and a new trial was ordered.

Canada Post Corporation brought an application for an injunction to restrain the appellant from violating its exclusive privilege to collect and deliver international mail under section 14(1) of the Canada Post Corporation Act.

The appellant argued that the Act provided a complete code with specific penalties, precluding civil proceedings, and raised equitable defences of laches, delay, and estoppel.

The Court of Appeal held that Canada Post has the right to seek an injunction to enforce its statutory privilege, as the penalty provisions alone are insufficient to protect its mandate.

The Court further held that equitable defences cannot be raised against a Crown agent to prevent the operation of a public policy statute.

The appeal was dismissed.

The respondent was convicted of sexual assault against a child and received a conditional sentence.

The trial judge refused the Crown's request for a DNA databank order and a sex offender registry order, reasoning that the respondent did not present an ongoing risk to the community.

The Crown appealed.

The Court of Appeal allowed the appeal, finding that the trial judge erred in principle by failing to apply the 'grossly disproportionate' test required by the Criminal Code and by minimizing the public interest in registration.

The Court set aside the trial judge's refusal and made the requested orders.

The appellant appealed a summary judgment dismissing her professional negligence action against her former solicitor.

The action stemmed from a previous lawsuit where the solicitor had concerns about the appellant's mental competency.

The Court of Appeal found no evidence that the solicitor breached the standard of care in the unusual circumstances of the case.

The appeal was dismissed with costs.

The appellant appealed a four-year sentence for a non-residential break and enter.

The sentencing judge had heavily weighed the aggravating factor that the appellant recruited his 14-year-old daughter and her boyfriend to commit the offence.

The Court of Appeal held that while this was a serious aggravating factor, increasing the sentence by almost three years for it was too harsh.

The appeal was allowed and the sentence was reduced to three years total, comprising 15 months of pre-trial custody credit and 21 months of new custody.

The appellant pleaded guilty to eighteen offences, including ten for fraud under $5,000, and was sentenced to 18 months' imprisonment plus 161 days of pre-trial custody.

She appealed the custodial portion of her sentence, arguing the sentencing judge erred in granting only 1:1 credit for pre-trial custody without providing an ascertainable rationale.

The Court of Appeal found this to be an error in principle, allowed the appeal, and reduced the sentence to time served based on a 2:1 credit for pre-trial custody.

The appellant appealed from a conviction entered by the Ontario Court of Justice.

The Court of Appeal dismissed the conviction appeal, finding that despite alleged errors in the trial judge's reasons, the core of the decision was clear and there was no basis to interfere.

The sentence appeal was abandoned.

The appellant was acquitted at trial of failing to comply with a breath demand.

The Crown successfully appealed to the Summary Conviction Appeal Court, which ordered a new trial on the basis that the trial judge found the appellant had feigned compliance, which is tantamount to a refusal.

The appellant sought leave to appeal to the Court of Appeal.

The Court of Appeal agreed that the trial judge's findings amounted to a feigned attempt to blow and denied leave to appeal.

The appellant appealed the sentence imposed by the trial judge, arguing that the trial judge erred in principle with respect to a joint submission.

The Court of Appeal found no error, noting that the trial judge effectively applied the required test and correctly concluded that the proposed sentence, including three years of probation, would be insufficient to protect the public interest given the appellant's history of breaching probation orders on at least six other occasions.

Leave to appeal sentence was granted, but the appeal was dismissed.

The appellant appealed a summary judgment order that dismissed his claims against his former employer regarding changes to his compensation structure and unpaid trailer fees.

The Court of Appeal upheld the motion judge's finding that the limitation period barred claims respecting changes to the compensation structure.

However, the Court found that the limitation period did not apply to the limited claim for trailer fees earned by the appellant and received by the employer in the first quarter of 2000 before his departure.

The appeal was allowed in part against the corporate respondent only.

The appellant appealed a trial judgment granting a non-suit.

The Court of Appeal found that the trial judge erred because there was probative evidence of the oral contract contended for by the appellant.

The appeal was allowed, the judgment was set aside, and judgment was ordered for the appellant with costs.