OCA 2008

The appellant was convicted of second-degree murder following a fatal altercation outside a bar where the victim was struck with a baseball bat.

The appellant appealed the conviction, arguing the trial judge made several errors in the jury instructions.

The Court of Appeal allowed the appeal, finding the trial judge erred by instructing the jury they could use a witness's prior videotaped statement for the truth of its contents without proper adoption, failing to give a Vetrovec warning for a key Crown witness with credibility issues, improperly dismissing the intoxication defence, and failing to correct the Crown's breach of the rule in Browne v. Dunn.

The conviction was quashed and a new trial ordered.

The appellants were convicted of offences relating to the theft and sale of firearms.

They appealed their convictions, arguing that the trial judge erred in applying the W. (D.) framework to the accused's testimony, improperly treated a lack of memory as an undisclosed alibi, and failed to exercise sufficient caution when accepting the evidence of an unsavoury witness.

The Court of Appeal dismissed the appeals, finding that the trial judge properly applied the burden of proof, appropriately cautioned himself regarding the unsavoury witness, and provided adequate reasons in accordance with R. v. R.E.M.

The appellant appealed his conviction for second degree murder, arguing the trial judge erred in admitting a videotaped police station statement that was allegedly tainted by earlier inadmissible statements made in a police cruiser, and in instructing the jury on the defence of accident and intent.

The Court of Appeal dismissed the appeal, finding the station statement was a 'fresh start' separated by time, location, and consultation with counsel, and that the jury was properly instructed on the requisite intent for murder.

The appellants were convicted of possession of stolen property under $5,000 and fraud over $5,000 arising from the sale of a motorcycle containing stolen components.

They appealed their convictions, arguing the trial judge erred in his jury instructions regarding recent possession, wilful blindness, after-the-fact conduct, and the failure to give a Vetrovec warning.

They also appealed their conditional sentences.

The Court of Appeal dismissed the conviction appeal, finding the jury instructions were adequate when read as a whole and no Vetrovec warning was required.

The sentence appeal was also dismissed, as the sentences were not demonstrably unfit.

The appellant was serving a conditional sentence when he was arrested for new offences.

A warrant for his arrest for breaching the conditional sentence was issued and later executed.

The breach hearing commenced 33 days after the warrant was executed.

The appellant appealed his conviction for the breach, arguing the hearing was not held within the 30-day period required by s. 742.6(3) of the Criminal Code.

The Court of Appeal dismissed the appeal, holding that the 30-day period is triggered by the execution of the warrant for the breach, not its issuance or the arrest for the new offences, and that the 33-day delay was as soon as practicable in the circumstances.

The appellants appealed a trial judgment finding a prescriptive easement over disputed lands.

The trial judge found that the previous owners did not give permission or a license for the use of the lands, and any agreement related only to a fence.

Alternatively, if permission was given, it was not renewed.

The Court of Appeal found evidence to support these findings and saw no basis to interfere.

The appeal was dismissed with costs awarded to the respondents.

The plaintiff, an Ontario resident, brought a wrongful dismissal action in Ontario against his former employer, a group of related corporations.

The defendants moved to stay the action, arguing that Indiana was the more appropriate forum because the plaintiff had accepted permanent employment there.

The plaintiff maintained his employment in Indiana was a temporary assignment governed by an earlier Ontario agreement.

The motion judge accepted the defendants' version and stayed the action.

On appeal, the Court of Appeal held that the motion judge erred in resolving the disputed facts on a preliminary motion.

Because the plaintiff's version had a reasonable evidentiary basis, the forum non conveniens factors should have been assessed on that basis.

The appeal was allowed and the stay motion dismissed.

The young person appealed findings of guilt for three offences related to the sexual touching of a young child while babysitting.

The appellant argued the trial judge failed to properly scrutinize the complainant's evidence, improperly shifted the burden of proof by referencing the appellant's failure to testify, and failed to properly consider defence expert evidence regarding the appellant's psychological profile.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's assessment of the evidence or application of the burden of proof.

The appellants, who acted as real estate agents in the sale of a property for a dental office, appealed a trial judgment finding them liable in negligence after the purchaser discovered the property lacked the required parking spaces.

The trial judge apportioned 20% liability to each agent, 10% to the vendor, and 50% to the purchaser's lawyer.

On appeal, the appellants argued the vendor should bear more fault due to receiving the financial benefit of the sale, claimed unjust enrichment against the vendor, and argued the limitation period had expired based on the purchaser's lawyer's imputed knowledge.

The Court of Appeal dismissed the appeal, holding that benefit received is not a freestanding consideration for apportionment under the Negligence Act, the agents suffered no deprivation to support unjust enrichment, and the trial judge did not err in his discoverability analysis.

The infant plaintiff was severely injured when a fence on the appellant's premises fell on him.

A jury awarded approximately $3 million in damages, apportioning liability 95% to the appellant and 5% to the fence installer.

The appellant appealed the apportionment, arguing the trial judge erred in admitting a statement from a deceased employee of the installer and failing to caution the jury on its use.

The Court of Appeal dismissed the appeal, finding no substantial wrong or miscarriage of justice, as the jury's reasons for liability focused on the appellant's failure to rectify the fence after it had fallen on three prior occasions, without relying on the disputed statement.

The appellant appealed his convictions for failure to provide a breath sample and impaired driving.

He argued the trial judge erred in treating videotaped evidence and in dismissing his section 10(b) Charter application regarding his right to consult counsel of choice.

The summary conviction appeal court dismissed the appeal, finding no unreasonable errors in the trial judge's findings.

The Court of Appeal agreed and dismissed the appeal.

The respondent commenced an action in Georgia, which was stayed on consent due to an arbitration clause specifying the Arbitration Act (Ontario).

The respondent then applied to the Ontario Superior Court of Justice to appoint an arbitrator.

The appellant argued the Georgia court had jurisdiction.

The Court of Appeal dismissed the appeal, holding that the Ontario court had jurisdiction under sections 9 and 10 of the Arbitration Act, as agreed by the parties.

The order was varied to name a specific arbitrator.

Following the dismissal of several class actions against automobile insurers, the court determined the issue of costs.

The plaintiffs, who had relied on a previous Court of Appeal decision that was subsequently reversed, sought their costs despite being unsuccessful, citing disastrous financial consequences for their contingency-fee counsel.

The successful insurers sought their costs on a partial indemnity scale.

The Court of Appeal declined to award costs to either side.

The court held that the Class Proceedings Act was not intended to insulate unsuccessful plaintiffs from costs, but also found that the insurers should not receive costs because the litigation constituted a test case and the plaintiffs had reasonably relied on the court's own prior jurisprudence.

The appellant, a paralegal, acted as an agent for an accused in a Provincial Offences Act trial.

After the trial, the justice of the peace initiated proceedings under s. 50(3) of the Act and barred the appellant from appearing before him as an agent.

The appellant's application for certiorari was dismissed by the Superior Court.

On appeal, the appellant argued the justice of the peace lacked jurisdiction to make the order after the trial concluded and alleged a reasonable apprehension of bias.

The Court of Appeal dismissed the appeal, finding that the justice of the peace had jurisdiction under the second branch of s. 50(3), which relates to an agent's general conduct and understanding of their duties, and that there was no reasonable apprehension of bias.

The Crown appealed a jury verdict acquitting the respondent of sexual offences against a young complainant.

The Crown argued the trial judge erred by refusing to allow re-examination of the complainant on prior consistent statements and by failing to grant a mistrial following defence counsel's closing address.

The Court of Appeal dismissed the appeal, finding that the defence cross-examination did not implicitly allege recent fabrication, and the trial judge's refusal to declare a mistrial was well within his discretion.

The third party appealed a trial judgment finding it 25% liable for a rear-end motor vehicle collision.

The trial judge found that the third party was negligent in failing to adequately warn oncoming traffic of its workers, and that if it had done so, the defendant driver's chances of stopping in time would have increased by one in four.

The Court of Appeal allowed the appeal, holding that a 25% chance of avoiding the accident does not satisfy the 'but for' test for causation, which requires proof on a balance of probabilities.

The action against the third party was dismissed.

The appellant university appealed a trial judgment finding it liable for negligent misrepresentation regarding the transferability of its engineering program credits.

The trial judge found that the university's promotional materials misleadingly suggested that transferring to another university after two years would be routine.

The Court of Appeal dismissed the appeal on liability, finding no basis to interfere with the trial judge's factual findings that the representations were misleading, negligently made, and reasonably relied upon by the respondent.

The court also upheld the finding that the respondent acted reasonably to mitigate his damages.

Leave to appeal costs was granted on consent to delete specific paragraphs from the trial judgment.

The appellant appealed his conviction for break and enter, arguing the verdict was unreasonable.

He challenged the trial judge's reliance on shoe evidence, a CAA card found in the possession of a woman seen in a video, and video identification by police officers.

The Court of Appeal dismissed the appeal, finding the trial judge properly limited the use of the shoe evidence, appropriately weighed the CAA card evidence, and reasonably accepted the police officers' identification based on their familiarity with the appellant's distinctive features.

The respondent doctor prescribed Accutane, a teratogenic drug, to the mother of the appellant child, relying on the father's 4.5-year-old vasectomy as birth control.

The vasectomy failed, the mother became pregnant, and the child was born with severe disabilities.

The child sued the doctor for negligence.

The Court of Appeal held that a doctor does not owe a duty of care to a future, unconceived child of a female patient when prescribing medication, as recognizing such a duty would create an impossible conflict of interest between the best interests of the future child and the best interests of the patient.

The appeal was dismissed.

The appellant appealed his two-year sentence, introducing new evidence that he was unaware of the immigration consequences under s. 64(2) of the Immigration and Refugee Protection Act when he elected that sentence over a term of two years less a day.

The Crown conceded the application of existing authorities.

The Court of Appeal allowed the appeal and reduced the sentence to two years less a day concurrent on each count.