OCA 2008

The insured, a pizza delivery company, was sued after a pedestrian was struck by one of its delivery vehicles.

The plaintiff alleged the insured's '30 minutes or free' delivery policy and failure to screen drivers constituted negligent business practices.

The insurer denied a duty to defend, relying on an automobile exclusion clause in the commercial general liability policy.

The application judge found the business practice claims were independent of the automobile use and ordered the insurer to defend.

The Court of Appeal allowed the insurer's appeal, holding that the non-automobile claims were derivative of the negligent operation of a motor vehicle and therefore caught by the exclusion clause.

The appellants, a First Nation and its leaders, engaged in a peaceful protest and blockade to prevent a private mining company from conducting exploratory drilling on lands subject to an ongoing aboriginal land claim.

They were found in civil contempt for violating interim and interlocutory injunctions and were sentenced to six months' imprisonment and substantial fines.

On appeal, the Court of Appeal set aside the custodial and monetary sentences, holding that they were excessively harsh and that the sentencing principles from R. v. Gladue apply to aboriginal persons facing civil contempt proceedings.

The appellants, a First Nation and six individuals, appealed their six-month sentences for contempt of a court order.

The respondent did not oppose the appeal, conceding that the appellants had spent enough time in jail and that the underlying dispute required negotiation.

The Court of Appeal accepted the respondent's position and allowed the appeal, ordering the release of the appellants.

The respondent and a second mortgagee advanced funds to a mortgagor, but their mortgages were registered in the wrong order due to a solicitor's error.

The appellant, a third mortgagee, learned of the error and subsequently purchased an assignment of the mistakenly first-registered mortgage at a discount, claiming priority over the respondent.

The application judge found the appellant had actual notice of the true priority before acquiring the assignment, defeating its claim.

The Court of Appeal upheld this finding and dismissed the appeal.

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

The Court of Appeal agreed with the reasons of the lower court judge and dismissed the appeal.

Costs were awarded to the respondents in the fixed amount of $5,000.

The appellant, a police officer, appealed his sentence for participating in an unprovoked assault on a civilian and attempting to fabricate evidence.

He argued the trial judge failed to adequately consider the impact of imprisonment on his career.

The Court of Appeal dismissed the appeal, finding no error in principle and agreeing with the trial judge that the grave nature of the offence and the appalling breach of trust required a sentence of imprisonment to address denunciation and deterrence.

The appellant appealed a judgment from an undefended trial, abandoning his appeal regarding jointly owned real estate.

The sole remaining issue was whether there was sufficient evidence to support deducting the value of a personal injury action from the respondent's net family property.

The Court of Appeal dismissed the appeal, finding the respondent had adequately discharged her onus under section 4(3) of the Family Law Act.

The appellant appealed an order determining a question of law under Rule 21.01(1)(a) regarding the interpretation of a lease.

The Court of Appeal upheld the motion judge's finding that the tenant could only look to its insurer for loss due to sprinkler leakages, even if the loss was less than the deductible under the insurance policy.

The appeal was dismissed with costs.

The appellants, who held a certificate of pending litigation on a property, appealed a judgment obtained without notice to them.

The Court of Appeal allowed the appeal, holding that under Rule 37.07(1) the appellants were affected parties entitled to notice, and under Rule 37.14 the motion judge should have set aside the judgment obtained without notice.

The Crown appealed a summary conviction appeal court decision that had overturned the accused's conviction.

The appeal court had interfered with the trial judge's finding that a slight deviation from the recommended 7-day replacement schedule for the alcohol test solution did not affect the accuracy of the breath tests.

The Court of Appeal allowed the appeal and restored the conviction, holding that the Criminal Code does not mandate a strict 7-day replacement schedule and the trial judge's finding of fact was amply supported by the evidence.

The appellant appealed his conviction and sentence for causing unnecessary suffering to a dog by choking it.

He argued that he was merely defending himself from unnecessary force.

The Court of Appeal dismissed the appeal, finding there was an evidentiary basis for the trial judge to reject the self-defence claim and conclude the appellant caused unnecessary suffering.

The appellant father appealed and the respondent mother cross-appealed the trial judge's orders regarding access, property interests, and costs.

The father did not attend the hearing and advised he no longer wished to be involved.

The Court of Appeal allowed the cross-appeal in part, modifying the access order to be as requested by the 14-year-old child, given fresh evidence that she had not seen her father in three years and did not want access.

The court dismissed the cross-appeal regarding property interests and costs, finding no error in the trial judge's application of resulting trust and partnership principles, nor in the discretionary costs award.

The appellants applied for admission to a Master's program but were denied because they could not comply with the department's funding policy, which required a portion of external funding to come from the supervising professor's research grants.

The appellants sought judicial review, arguing the policy was an admission standard requiring Senate approval and that its application was unreasonable.

The Divisional Court dismissed the application.

On appeal, the Court of Appeal upheld the decision, finding the funding policy was a reasonable administrative supplement to minimum admission requirements, not an admission standard, and that the university's discretionary decision was reasonable and procedurally fair.

The appellant was unsuccessful at trial, where the trial judge made no order as to costs due to her impecuniosity.

The appellant subsequently pursued an appeal and was again entirely unsuccessful.

The Court of Appeal awarded costs to the respondents, holding that they should not be deprived of their costs a second time despite the appellant's financial circumstances.

The appellant was convicted of first degree murder and sexual assault.

He appealed the convictions on the grounds that his statement to the police was obtained in violation of his Charter rights and that the trial judge made several errors in his charge to the jury.

The Court of Appeal found that the appellant was not detained at the time of his police interview, as he voluntarily cooperated and was not a suspect.

The Court also held that while the trial judge should have given a fabrication instruction regarding the appellant's false statement, the omission did not affect the verdict given the compelling circumstantial evidence.

The appeal was dismissed.

The Crown appealed an order staying proceedings against the respondent for child pornography charges due to a 27.5-month delay between arrest and trial.

The trial judge found the delay unreasonable under s. 11(b) of the Charter, attributing it to the slow pace of Crown disclosure and institutional delay.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's assessment of the case's complexity, the inherent time requirements, or the balancing of the respondent's prejudice against society's interest in a trial on the merits.

The appellant appealed the trial judge's awards for section 7 expenses and spousal support.

The parties have three children, two of whom are disabled.

The Court of Appeal found no reversible error in the trial judge's calculation of section 7 expenses, noting the children's needs exceeded available funds and the trial judge was aware of government assistance.

The Court also upheld the spousal support award of $2,500 per month, finding it supported by the evidence.

The appeal was dismissed.

The youth pleaded guilty to assault with a weapon and using an imitation firearm.

The sentencing judge rejected a joint submission for probation and, on her own motion, designated the offence as a 'serious violent offence' under s. 42(9) of the YCJA, which she held precluded a deferred custody and supervision order under s. 42(5)(a).

The youth appealed.

The Court of Appeal allowed the appeal, holding that an application by the Attorney General is required before an offence can be designated a 'serious violent offence' under s. 42(9).

Absent such an application, the sentencing judge erred in concluding she was precluded from imposing a deferred custody and supervision order.

The sentence was varied to 144 days' deferred custody and 18 months' supervision.

The Crown appealed a summary conviction appeal court decision that overturned the accused's conviction for failing to provide a suitable breath sample.

The appeal court judge had found that the trial judge failed to appreciate evidence regarding lack of motive and consciousness of innocence.

The Court of Appeal allowed the appeal and restored the conviction, holding that the appeal court judge misapplied the legal test for appellate review and effectively retried the case.

The Court of Appeal found that the trial judge gave thorough reasons for finding the requisite mens rea and was not required to refer to every piece of evidence, particularly where the evidence in question had marginal relevance to the issue of intent.

The appellant appealed an order determining that proceeding by way of application was inappropriate.

The Court of Appeal dismissed the appeal, holding that the order was procedural and interlocutory, as it did not finally determine any substantive issue.

The court noted it only has jurisdiction over final orders, and the dismissal was without prejudice to the appellant pursuing remedies in the Divisional Court.