OCA 2007

The appellant, a former Revenue Canada auditor, was convicted of 249 counts of fraudulently obtaining over $1.5 million in GST refunds.

He appealed his conviction, seeking to introduce fresh evidence to support an alibi defence and arguing the trial judge erred by failing to instruct the jury on the Crown's duty to preserve evidence.

The Crown appealed the 18-month sentence, seeking a four-year term.

The Court of Appeal dismissed the conviction appeal, finding the fresh evidence did not meet the Palmer criteria and the lack of a jury instruction was a tactical decision by the defence that would not have altered the verdict.

The sentence appeal was also dismissed, as the trial judge's assessment of the appellant's role was entitled to deference.

The appellant sought to quash a municipal by-law renaming a public square, arguing that the city council held closed meetings in violation of the Municipal Act.

The Court of Appeal found that while the council failed to pass a sufficient resolution before going into closed session and conducted an unauthorized vote, these were procedural irregularities.

Because the final decision to pass the by-law was made after lengthy debate at an open public meeting, the by-law was not tainted by illegality.

The appeal was dismissed.

The appellant appealed a trial judgment finding that an agreement with the respondent was not unconscionable and that he could not use a customer list to solicit clients after terminating their relationship.

The respondents cross-appealed the findings that a non-compete clause was unenforceable and that the appellant was not a fiduciary.

The Court of Appeal dismissed both the appeal and the cross-appeal, upholding the trial judge's findings on all issues.

The court awarded costs of $7,500 to the respondent.

The appellant appealed the dismissal of his action against the Attorney General and a Crown Attorney.

The Court of Appeal upheld the motion judge's finding that the pleadings were inadequate, as the appellant failed to plead the material facts necessary to support allegations of the absence of reasonable and probable grounds or malice.

The appeal was dismissed with costs.

The appellant appealed an order finding that his mother lacked capacity to grant a power of attorney, as well as a s. 140(1) order.

The Court of Appeal dismissed the arguments regarding procedural fairness and capacity, finding the trial judge's conclusions fully warranted by the evidence.

However, the Court set aside the s. 140(1) order because it was not sought on a timely basis, was not argued, and no reasons were given for it.

Leave to appeal costs was dismissed, and costs of the appeal were awarded to the respondents.

The appellant was convicted of impaired driving causing death and dangerous driving causing death after his vehicle went off the road, killing his passenger.

On appeal, he argued the trial judge erred in admitting the Crown accident reconstructionist's opinion on speed and impairment, and in failing to properly instruct the jury regarding 'bolus drinking'.

The Court of Appeal dismissed the appeal, finding the expert was properly qualified to give the impugned opinions and the jury was entitled to infer from the evidence and common sense that the appellant had not engaged in bolus drinking.

The appellants appealed a trial judgment finding that they were required to reimburse the respondents for both the principal and interest on borrowed monies.

The Court of Appeal upheld the trial judge's decision, finding no reversible error in the credibility assessment that formed the basis of the finding regarding the parties' true intentions.

Although the trial judge erred regarding the admissibility of a letter and the application of the contra proferentem doctrine, these errors were not material to the outcome.

The appeal was dismissed with costs.

The appellant appealed his convictions for obstructing a police officer and possession of a prohibited weapon.

He argued the trial judge erred in the mens rea analysis for obstruction, misapprehended evidence regarding a suspected stolen vehicle, and erred in finding a buck knife opened by centrifugal force.

The Court of Appeal dismissed the appeal, finding the trial judge applied the proper mens rea analysis, correctly understood the evidence, and was entitled to rely on the police officer's demonstration of the knife.

The appellant was wrongfully charged with second-degree murder based on an autopsy performed by the respondent pathologist.

After the charges were withdrawn, the appellant sued the respondent for negligent investigation and misfeasance in public office.

The respondent successfully moved at the Divisional Court to strike the claims based on absolute witness immunity.

The Court of Appeal allowed the appeal, holding that the claims related to the respondent's role as a public official investigating a suspicious death under the Coroners Act, not merely his testimony.

The Court found that the scope of witness immunity in this context is unsettled law and must be determined at trial on a full factual record.

Le demandeur, inculpé de fraude et d'entrave à la justice aux États-Unis pour avoir enlevé des cartons de documents, demande l'autorisation d'interjeter appel d'une ordonnance d'obtention rendue en vertu de la Loi sur l'entraide juridique en matière criminelle.

La Cour d'appel applique le critère de l'arrêt Ross et conclut que l'ordonnance d'obtention n'est qu'une étape préliminaire visant à préserver les documents avant l'audition de la requête en transmission.

La demande d'autorisation d'appel et la requête en suspension sont rejetées.

The appellant was convicted of obstructing justice and using a forged document after presenting a fake letter at his trial for possessing stolen dealer plates.

On appeal, he argued the trial judge applied an improper burden of proof by asking if his evidence 'could reasonably be true' rather than applying the W.(D.) reasonable doubt standard.

The Court of Appeal found that while the trial judge erred in using the 'might reasonably be true' language at the second stage of the W.(D.) analysis, the error was not reversible because the trial judge completely rejected the appellant's testimony and found the Crown's case overwhelming.

The appeal was dismissed.

The appellant appealed the sentence imposed by the trial judge, specifically challenging an order made under s. 161 of the Criminal Code.

The Court of Appeal dismissed the appeal, finding that the trial judge exercised his discretion judicially and tailored the order to the offender's circumstances.

The Court also corrected administrative errors in the s. 161 and SOIRA orders to reflect the proper durations of ten and twenty years, respectively, as stated in the trial judge's reasons.

The appellant appealed his sentence.

The Court of Appeal allowed the appeal and reduced the sentence to time served based solely on fresh evidence.

The fresh evidence demonstrated that the appellant provided difficult and important testimony in a murder case and experienced difficult circumstances during his incarceration, including being in protective custody for twenty-three and a half hours per day.

The appellants appealed a decision allowing the severance of joint tenancies by a guardian of property.

They argued the severance constituted a change in testamentary disposition prohibited by s. 31(1) of the Substitute Decisions Act.

The Court of Appeal dismissed the appeal, finding that even if the severance was a testamentary disposition, it was permitted under s. 35.1(3)(a) as necessary to comply with the guardian's duties.

The Court also upheld the application judge's decision to reject the appellants' contradictory affidavit evidence without directing a trial.

The appellant, a young person, appealed his convictions for sexual assault and forcible confinement, arguing that the trial judge erred in assessing the complainants' credibility regarding consent.

The Court of Appeal dismissed the appeal, finding no material inconsistencies in the complainant's testimony about her lack of consent and concluding that the trial judge did not engage in impermissible propensity reasoning.

The defendants appealed an order striking out certain paragraphs of their statement of defence.

The Court of Appeal found that the motion judge erred by failing to consider the plaintiff's cause of action in fraud, which has a different measure of damages than breach of fiduciary duty.

As a result, the motion judge wrongly struck out relevant allegations.

The appeal was allowed, the motion judge's order was set aside, and only the portions of the defence relating to the plaintiff's profits were struck out, with leave to amend.

The appellants were awarded $3,000 in costs.

The appellants appealed an order striking out their defence and counterclaim due to outstanding undertakings.

The Court of Appeal found that the motion judge erred by refusing to hear from the appellants' counsel and by striking out the defence when the outstanding undertakings related only to the counterclaim.

Despite the lengthy delay in the proceeding, the appeal was allowed, the motion judge's order was set aside, and the plaintiff's motion was dismissed with no costs.

The appellant appealed his convictions for possession of child pornography, sexual interference, and sexual assault, as well as his sentence.

He argued that the destruction of a videotaped interview prejudiced his right to make full answer and defence, and alleged ineffective assistance of counsel for failing to seek a stay, failing to request counselling records, and failing to advance a fabrication defence.

The Court of Appeal dismissed the appeal, finding no prejudice from the lost videotape, no merit to the ineffective assistance claims, and no error in the trial judge's consideration of evidence or the sentence imposed.

The appellant supplied construction materials to a business partly owned by the respondent's husband.

When the business failed to pay, the appellant registered a lien, which it later released in exchange for a mortgage on the respondent's matrimonial home.

The trial judge found the respondent's signature on the mortgage was forged and declared it void, also dismissing the appellant's counterclaims.

On appeal, the Court of Appeal upheld the dismissal of the counterclaims, finding that a valid contract provided a juristic reason for any enrichment, and there was no evidence the respondent knowingly received trust property.

The appellant appealed a summary judgment dismissing an oppression action against the respondent Lee.

The Court of Appeal allowed the appeal, finding that there was evidence of conduct by Lee that could constitute oppression under s. 248 of the Business Corporations Act, including his involvement in a share purchase agreement, the removal of the deceased as Chair, and threats regarding life insurance policies.

The court held that it was inappropriate to weigh this evidence on a summary judgment motion and set aside the dismissal.