OCA 2007

The appellants appealed an order requiring them to remove satellite dishes from their exclusive use patio terrace.

They argued that the condominium's Declaration prohibited all satellite dishes, making the corporation's rule permitting a specific common satellite provider discriminatory.

The Court of Appeal dismissed the appeal, finding the corporation's interpretation of its Declaration to permit a common satellite system was not unreasonable.

The court also rejected the argument that the rule was unenforceable due to lack of visibility, as the appellants failed to adduce evidence on that issue.

The appellant made an assignment in bankruptcy in 1994 and was discharged in 1996.

Years later, the trustee in bankruptcy learned the appellant may have failed to disclose an interest in real property and obtained an order reappointing the trustee.

On appeal, the Court of Appeal held that the bankruptcy judge erred by deciding the matter in a summary proceeding given the conflicting evidence and credibility issues.

The appeal was allowed and a trial of an issue was ordered to properly determine the ownership of the property.

The appellants appealed a summary judgment decision of the Superior Court of Justice.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that there was no genuine issue for trial.

Costs were awarded to the respondent in the amount of $4,000.

The appellant appealed the dismissal of his action against his employer and union for conspiracy and collusion.

The Court of Appeal dismissed the appeal, finding that the essential character of the dispute arose from the collective agreement.

Applying the Weber principle and the Labour Relations Act, the court held it lacked jurisdiction over the claims.

The court noted the appellant's proper recourse was to file an unfair representation complaint with the labour board.

The appellant appealed a decision granting the respondent bank priority over the appellant's security interest in a bankrupt company's accounts receivable.

The application judge found that the appellant's factoring agreements did not create a purchase money security interest (PMSI) under the Personal Property Security Act, as the appellant only advanced general working capital.

The Court of Appeal dismissed the appeal, agreeing that the appellant could not show the extent to which its advanced funds created the collateral, and upheld the order requiring the appellant to repay sums collected in violation of the respondent's prior perfected general security agreement.

The Attorney General brought a motion to stay a Superior Court judgment that declared the threshold requirements for political parties to receive quarterly allowances under the Canada Elections Act unconstitutional and read in a one-vote threshold.

The Attorney General argued the prospective payment order was automatically stayed as an order for the payment of money, or alternatively, that a stay should be granted under the tripartite test.

The Court of Appeal held the prospective order was not an order for the payment of money.

However, applying the test for a stay pending appeal, the Court found a serious issue to be tried regarding the potential politicization of the Chief Electoral Officer, irreparable harm to the public interest, and that the balance of convenience favoured maintaining the status quo.

The motion for a stay was granted.

The appellant failed to appear at the hearing despite being advised of the date.

The Court of Appeal dismissed the appeal as abandoned and awarded costs of $6,000 to the respondents.

The appellants appealed the judgment of the Superior Court of Justice, arguing the trial judge erred in refusing to re-open the trial and in interpreting the contract.

The Court of Appeal found no error in the trial judge's exercise of discretion or interpretation of the contract.

The appeal was dismissed with costs fixed at $3,500.

The appellant appealed his conviction for assault with a weapon and his sentence of 60 days intermittent and 18 months probation.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's reasons adequate and no error in the burden of proof.

However, due to a 21-month delay at the summary conviction appeal stage, the appellant's completion of probation and anger management, and changed circumstances, the court modified the sentence to time served.

The appellants sought leave to commence an action against a court-appointed Receiver for negligence and breach of fiduciary duty.

The motion judge dismissed the request, finding that the Receiver's conduct had already been scrutinized and approved in three previous proceedings.

The Court of Appeal upheld the decision, agreeing that issue estoppel and abuse of process barred the appellants from re-litigating the same facts and arguments.

The appeal was dismissed with costs fixed at $15,000.

The appellants, who were 16 years old at the time of the offences, pleaded guilty to six violent convenience store robberies.

The Crown successfully applied to have them sentenced as adults under the Youth Criminal Justice Act.

The sentencing judge imposed five-year sentences in addition to three years' credit for pre-sentence custody, and ordered both to serve their sentences in adult penitentiaries.

On appeal, the Court of Appeal upheld the adult sentences and the quantum of the sentences, finding no error in the judge's approach to accountability, rehabilitation, or pre-sentence custody credit.

However, the Court allowed the appeal in part regarding the placement of one appellant, finding the sentencing judge failed to properly evaluate expert evidence recommending he remain in a youth facility, and ordered a new placement hearing for that appellant.

The appellant appealed an endorsement of the Superior Court of Justice, arguing that the respondent misrepresented the applicable software before the lower court judge.

The Court of Appeal found no basis to interfere with the motion judge's factual conclusion that no such misrepresentation was established.

The appeal was dismissed with costs fixed at $2,500.

The appellant appealed his sentence of 15 months' imprisonment, in addition to 6 months of pre-trial custody, for three counts of domestic assault and one count of assaulting a police officer.

The Court of Appeal found that the trial judge properly accounted for the guilty plea and pre-trial custody.

Given the appellant's serious criminal record, the sentence was deemed fit and the appeal was dismissed.

The appellant appealed his conviction for dangerous driving, arguing that his driving was the result of unexpectedly falling asleep due to sleep apnea.

The Court of Appeal upheld the trial judge's rejection of this non-blameworthy explanation, noting the weak expert evidence and the appellant's lack of history of falling asleep unexpectedly.

The court also dismissed procedural arguments regarding the trial judge's conduct.

However, based on a Crown concession, a clerical conviction for dangerous driving simpliciter was quashed.

The appellant, acting as receiver for a yacht manufacturer, appealed the dismissal of its insurance claim against the respondent export credit insurer.

The manufacturer had not been paid for boats delivered to a U.S. dealer and to Spain.

The dealer refused to pay because the manufacturer's receivership meant it could not fulfill warranty obligations.

The Court of Appeal upheld the trial judge's finding that while the loss fell within the policy's initial coverage, the insurer successfully proved that an exclusion applied because the buyer did not pay due to a legitimate dispute regarding the export contract.

The appeal was dismissed.

The appellant appealed his conviction, arguing the trial judge erred in admitting his statements to police and in failing to give a Vetrovec warning regarding accomplice evidence.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's assessment of the voluntariness of the statements despite police failure to follow videotaping guidelines.

The Court also held that the omission of a Vetrovec warning was not fatal, as the accomplices had resiled from their KGB statements and gave exculpatory evidence at trial, making them more akin to defence witnesses.

The appellant appealed his convictions for dangerous driving and driving with a blood alcohol concentration over 80.

The Court of Appeal found ample evidence to support the dangerous driving conviction, including the appellant's speed and a prior warning from police not to drive.

The court also upheld the over 80 conviction, finding that a voluntary breath sample provided reasonable grounds for a search warrant to seize blood samples at the hospital.

The appeal was dismissed.

The appellant appealed a summary judgment dismissing his action based on a release executed in a prior action.

The appellant argued the release did not cover the current claims or protect respondents who were not parties to it.

The Court of Appeal upheld the motion judge's finding that the release was unambiguous and barred the action, as the appellant knew the essential elements of the claims when he signed it.

The Court also agreed that the release protected the non-party respondents because it applied to agents and the claims shared the same factual underpinnings.

The appeal was dismissed with costs.

The respondent was charged with second degree murder after strangling his wife.

At trial, he raised the defence of provocation, and the jury acquitted him of murder, convicting him of manslaughter.

The Crown appealed the acquittal, arguing the trial judge erred in finding the defence of provocation had an air of reality.

The Court of Appeal dismissed the appeal, concluding there was some evidence of wrongful acts and insults by the victim from which a properly instructed jury could reasonably find both the objective and subjective components of provocation were met.

The court-appointed receiver of a corporation recommended that the company enter a plea agreement and plead guilty to a charge of mail fraud in the United States.

The motion judge approved the recommendation as being within the bounds of reasonableness.

The appellants appealed, arguing the receiver failed to properly assess the risk of conviction and the benefits of the plea agreement.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that the receiver's assessment of the risk of conviction, cost savings, and reduced exposure to civil liability and restitution was reasonable.