OCA 2008

The appellants appealed an order dismissing their medical malpractice action on a motion for summary judgment because it was commenced outside the one-year limitation period under the Health Professions Procedure Code.

The appellants argued the motion judge erred by refusing to consider medical evidence acquired after the action was commenced.

The Court of Appeal dismissed the appeal, agreeing that the relevant period for the discoverability doctrine is before the action is commenced, and the appellants knew or should have known the material facts to base their claim prior to the expiry of the limitation period.

The appellants, minimum-security prisoners serving life sentences, appealed the dismissal of their application for habeas corpus.

They challenged their impending transfer from a small minimum-security facility to a larger multi-level institution, arguing the transfer would deprive them of their residual liberty interest due to increased perimeter security and movement restrictions.

The Court of Appeal dismissed the appeal, finding that the differences between the facilities were minimal and did not constitute a substantial change in the conditions of incarceration or a deprivation of any residual liberty interest.

The appellant appealed his conviction for first degree murder, arguing the trial judge erred in jury instructions regarding after-the-fact conduct, causation, and relating evidence to the issues.

The Court of Appeal dismissed the appeal, finding no prejudice from the lack of a Marinaro instruction on after-the-fact conduct, noting the causation instruction was actually unduly favourable to the appellant, and concluding the charge as a whole was fair.

The appellant appealed his conviction, challenging the validity of a search warrant issued under section 487(1) of the Criminal Code.

The Court of Appeal dismissed the appeal, agreeing with the trial judge that there was ample evidence upon which the issuing justice of the peace could reasonably have formed an independent judicial opinion that the statutory requirements had been met.

The appellants appealed a judgment enforcing a settlement agreement, arguing the motion judge erred in ordering a $725,000 payment in cash and seeking to rescind the agreement.

The Court of Appeal allowed the appeal in part, finding the motion judge failed to consider evidence that the parties intended the sum to be paid via security, such as a promissory note or guarantee, rather than cash.

The judgment was amended accordingly, but the appeal was otherwise dismissed, and the request to rescind the settlement agreement was rejected.

The appellant appealed his conviction for sexual assault, arguing that the trial judge's finding that he had anal intercourse with the victim was unreasonable.

The Court of Appeal dismissed the appeal, noting that the appellant had admitted to the act while the victim was extremely intoxicated, provided no innocent explanation, and there was corroborating evidence of the victim's subsequent soreness.

The appellant appealed his convictions for possession of cocaine for the purpose of trafficking and possession of ecstasy.

During a vehicle stop, police found cocaine under the passenger seat where the appellant was sitting, and further drugs during a pat-down and subsequent strip search.

The trial judge found Charter breaches and excluded the drugs found during the strip search under s. 24(2), but admitted the other drugs.

On appeal, the appellant argued the trial judge failed to properly weigh an officer's untruthful testimony in the s. 24(2) analysis and erred in applying the rule in Brown v. Dunn.

The Court of Appeal dismissed the appeal, finding the trial judge's s. 24(2) analysis was entitled to deference and her credibility findings were reasonable.

The applicants sought a declaration of ownership by adverse possession over lands owned by the respondent agricultural society.

The application judge granted the declaration, finding that the respondent had abandoned the lands and could not rely on holding them for future development as a current use.

On appeal, the Court of Appeal allowed the appeal, holding that the application judge failed to properly apply the inconsistent use test.

The Court confirmed that holding lands for future development qualifies as a current use during the statutory period, and therefore the applicants' use was not inconsistent with the respondent's intended use.

The appellant appealed his convictions for sexual assault and failing to comply with probation, arguing the trial judge misapprehended crucial evidence.

The Court of Appeal found that the trial judge misapprehended the appellant's testimony regarding the position of a sofa bed and whether he forgot his parents' honeymoon.

The Court concluded that these misapprehensions figured prominently in the trial judge's credibility findings and reasoning process, thereby occasioning a miscarriage of justice.

The appeal was allowed and a new trial ordered.

The appellant bank appealed a summary judgment requiring it to honour three certified cheques.

The cheques were purchased using funds derived from a fraudulent mortgage scheme.

The motion judge had found no evidence that the respondent payee participated in the fraud and held that the bank was obliged to pay.

The Court of Appeal allowed the appeal, finding that the motion judge misapplied the burden of proof under the Bills of Exchange Act.

Because the bills were affected by fraud, the burden shifted to the respondent to prove he was a holder in due course.

Given the suspicious circumstances and credibility issues, there were genuine issues for trial.

The Crown appealed a nine-month sentence imposed on the respondent for sexually assaulting his developmentally delayed wife.

The Court of Appeal found the trial judge erred in principle by treating the absence of extraneous violence as a mitigating factor and by failing to properly consider the respondent's history of prior sexual abuse against the victim.

The Court held the sentence was demonstrably unfit, allowed the appeal, and increased the sentence to two years less a day, while also correcting the SOIRA order to 20 years.

The plaintiff franchisor sued the defendant franchisees for breach of contract.

The motion judge struck large portions of the defendants' statement of defence and stayed portions of their counterclaim, finding the defence pleadings unnecessary for a 'reasonable defence' and the counterclaim duplicative of an intended class action.

The Court of Appeal allowed the appeal, holding that a defendant is entitled to plead any relevant material facts of at least marginal probative value, and that it was premature to stay the counterclaim based on an uncertified class action to which the defendants were not parties.

The insurer appealed a decision finding it had a duty to defend the respondent in an action brought by his daughter and son-in-law.

The Court of Appeal allowed the appeal, finding that the policy only covered personal injuries 'arising out of the conduct of your business'.

The underlying statement of claim alleged a family matter, and the mere fact that the plaintiffs were employed in the business was insufficient to trigger the duty to defend.

The appellant appealed an order quashing his discharge on a charge of first degree murder following a preliminary inquiry.

The preliminary hearing judge had found that the pathologist's evidence of force applied to the deceased's wrists could not support an inference of forcible confinement, weighing it against other evidence.

The Court of Appeal held that the preliminary hearing judge committed jurisdictional error by improperly weighing competing inferences.

The appeal was dismissed.

The appellant school board appealed a trial judgment finding that an Education Development Levy Agreement (EDLA) between the parties was of no force and effect.

The EDLA provided for the payment of a school levy if development occurred on the respondent's lands, referencing a proposed zoning bylaw that was ultimately abandoned.

The Court of Appeal upheld the trial judge's finding that the EDLA was conditional on the proposed bylaw becoming law, as the agreement relied on the bylaw having independent legal effect to create the permitted maximum residential density.

The appeal was dismissed.

The respondent's cross-appeal for damages for breach of the same contract was also dismissed.

The appellants appealed the dismissal of their claim for specific performance of a contract for the sale of a cottage property.

The trial judge had found that a 1964 letter agreement was not an enforceable contract due to uncertainty in the property description, as part of the land described was on an adjoining Crown reserve.

The Court of Appeal allowed the appeal, holding that the purchasers were entitled to specific performance for the portion of the land the vendor was able to convey.

The Court also found the trial judge erred in applying the Limitations Act, as the limitation period did not begin until a demand to convey was made.

The appellant, who was subject to an order prohibiting him from bringing further proceedings against the respondent without leave of the court, appealed a lower court decision.

The Court of Appeal dismissed the appeal, finding that the appellant had not obtained leave, there was no basis for granting it, and his position lacked merit.

Costs of $300 were awarded to the respondent.

The appellant appealed an order staying its action for an accounting against a mortgagee.

The Court of Appeal dismissed the appeal, finding that the motion judge properly exercised her discretion to stay the proceeding as a redundancy, since the appellant's allegations of wilful default could be pursued in the ongoing deficiency action.

Costs endorsement following an appeal and cross-appeal.

The court awarded costs of the appeal and cross-appeal to the respondent (appellant-by-cross-appeal) on a partial indemnity basis, fixed at $27,500 inclusive of disbursements and GST.

The appellant appealed a finding that he breached his conditional sentences.

The Court of Appeal found that the trial judge misapprehended the evidence concerning other employment undertaken by the appellant, which was central to the trial judge's reasoning.

The appeal was allowed, and on agreement of counsel, the remaining 72 days of the conditional sentence were reinstated under the same conditions and terms.