OCA 2007

The appellant appealed his sentence, seeking proper credit for pre-sentence custody.

With the Crown's consent, the Court of Appeal allowed the appeal and varied the trial judge's order, noting that with proper credit, the appellant's statutory release date would have been November 12, 2006.

The appellant sought to alter the costs award made by the trial judge.

The Court of Appeal reviewed the parties' submissions and found no basis to alter the trial judge's costs award.

Following an appeal in which the respondent was largely successful, the Court of Appeal for Ontario awarded costs to the respondent.

The costs were fixed at $3,500, inclusive of Goods and Services Tax and disbursements.

The Union filed a policy grievance regarding the employer's use of non-bargaining unit agency personnel to perform bargaining unit work.

The arbitrator found that the arrangement constituted 'contracting in' rather than 'contracting out', and that the collective agreement contained an implied term prohibiting the use of agency workers in this manner for longer than two weeks.

The Divisional Court set aside the award on judicial review, finding it patently unreasonable.

The Court of Appeal allowed the Union's appeal, holding that the arbitrator did not exceed his jurisdiction and that his interpretation of the collective agreement was not patently unreasonable.

The appellant appealed from a judgment declaring him a vexatious litigant under s. 140 of the Courts of Justice Act.

He argued the application judge erred by denying his request for an adjournment.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the application judge's discretionary decision, noting the appellant's motivation for the adjournment was delay and he had outstanding costs awards against him.

The appellant appealed an order refusing to set aside a default judgment.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that the appellant failed to demonstrate the respondent would suffer no prejudice if the default judgment were set aside.

Costs of $3,500 were awarded to the respondent.

The appellant was convicted of possession of a controlled substance for the purpose of trafficking after police stopped his car for erratic driving, smelled marijuana, and found 197 grams of marijuana during a search.

On appeal, the appellant argued the evidence should have been excluded under the Charter and that the trial judge's reasons were inadequate.

The Court of Appeal dismissed the appeal, finding the search was justified as a valid search incident to arrest and the record supported the trial judge's inferences regarding possession for the purpose of trafficking.

The appellant appealed his convictions for assault, assault with a weapon, and possessing a weapon for a dangerous purpose.

He argued the trial judge erred in admitting a witness's out-of-court statement to police, made improper comments about the witness's reluctance to testify, and improperly challenged the appellant's credibility during his testimony.

The Court of Appeal dismissed the appeal, finding that the hearsay statement met the reliability requirements under the principled approach, the trial judge's comments on the witness's demeanour were permissible, and the comment during the appellant's testimony related only to a peripheral issue.

The appellant appealed a decision of the Superior Court of Justice regarding the interpretation of a termination clause in an agreement.

The Court of Appeal dismissed the appeal, finding the termination clause to be crystal clear and fully agreeing with the motion judge's analysis and conclusion.

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

The Court of Appeal found that the motions judge did not err in his assessment of the motion in the entire context of the proceedings and dismissed the appeal.

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

The Court of Appeal dismissed the appeal, finding no error in the lower court's conclusion that disclosure had been made and there was no material change of circumstances.

The appellant appealed from a committal order.

The appellant subsequently abandoned her appeal.

The Court of Appeal dismissed the appeal as abandoned.

The appellants, who were discharged bankrupts, sought to appeal a declaration validating mortgages on their properties.

The respondent mortgagee brought a motion to quash the appeal on the basis that the appellants lacked standing.

The Court of Appeal allowed the motion to quash, finding that the properties remained vested in the trustee in bankruptcy.

Although the trustee took no position on the appeal and consented to the appellants proceeding, it had not abandoned its interest in the properties under section 40(1) of the Bankruptcy and Insolvency Act.

The respondent patient suffered a bowel obstruction caused by a volvulus, resulting in the loss of five feet of her small intestine.

The trial judge found the appellant surgeon breached the standard of care by delaying surgery and that this delay caused the loss of the bowel.

On appeal, the Court of Appeal upheld the finding of a breach of the standard of care but allowed the appeal on causation.

The Court found there was no medical or other evidentiary basis to conclude that, but for the delay in operating, the section of the bowel would likely have been saved.

The judgment was set aside and the claim dismissed.

The minor appellant was severely injured in a motor vehicle accident in 1999.

No action had been commenced on her behalf.

The respondent insurer brought a motion under s. 9 of the new Limitations Act, 2002 to appoint a litigation guardian, which would cause the limitation period to begin running immediately.

The motion judge granted the order.

On appeal, the Court of Appeal held that the transition provisions in s. 24 of the new Act applied.

Because the former limitation period (which did not begin to run until the minor reached the age of majority) had not expired before the new Act came into force, the former limitation period continued to apply.

Therefore, s. 9 of the new Act was not available to the respondents.

The Court set aside the order but declined to seal the motion documents.

The appellant was pulled over for driving without illuminated tail lights and subsequently arrested for attempting to mislead police about his identity.

Upon arrest, police discovered he was wearing two bulletproof vests and searched his vehicle, finding a semi-automatic pistol and a revolver.

The trial judge found the search violated section 8 of the Charter but admitted the firearms under section 24(2).

The Court of Appeal held that the trial judge erred in finding a section 8 breach, concluding the search was a valid search incident to arrest.

The appeal from conviction was dismissed.

The appellants appealed an order striking their statement of claim and dismissing their action, which was obtained via an ex parte motion by the respondent Centrecorp.

The Court of Appeal found it inappropriate for Centrecorp to proceed ex parte when the appellants had requested a 7-day extension to answer undertakings and asked to be advised if the extension was refused.

The appeal was allowed and the order set aside, conditional upon the appellants paying outstanding costs orders by a specified date.

The appellant appealed his conviction, arguing the trial judge erred in assessing the identification evidence.

The Court of Appeal dismissed the appeal, finding the trial judge properly examined the identification evidence, which was supported by circumstantial evidence, and did not misapprehend the evidence or fail to address discrepancies in witness descriptions.

The appellant appealed an order refusing to set aside a default judgment.

The Court of Appeal dismissed the appeal, finding no reason to interfere with the motion judge's assessment that the appellant failed to offer a plausible explanation for her default, as she had advanced a patently false assertion that she was not the person named in the statement of claim.

The appellant appealed his conviction and sentence, arguing that the trial judge's reasons were inadequate and that the failure to obtain a vaginal sample from the complainant constituted unacceptable negligence under the Bero analysis.

The Court of Appeal dismissed the appeal, finding no material misapprehension of the evidence and upholding the trial judge's finding that the failure to collect the sample was not unacceptable negligence.

The sentence appeal was also dismissed.