OCA 2008

The applicant sought leave to appeal its conviction and $20,000 fine under the Occupational Health and Safety Act for failing to take reasonable precautions to protect a worker who was hit by a truck.

The applicant argued the lower courts erred in finding that a mandatory regulatory requirement to have a traffic protection plan made it unnecessary to assess whether such a plan was a reasonable precaution in the circumstances.

The Court of Appeal denied leave, finding that the provincial offences appeal court judge's alternative finding—that a traffic protection plan was indeed a reasonable precaution given the busy worksite—was supported by the evidence and justified applying the curative proviso.

The appellant, the paternal grandmother of two young children, appealed a family court decision granting a Crown wardship order with no access for the purpose of adoption.

The appeal judge dismissed the appeal, finding no palpable and overriding error in the family court judge's assessment of the children's best interests, particularly regarding the appellant's inability to prevent domestic violence and criminal conduct in her home.

The Court of Appeal found no error in the decisions below and dismissed the appeal.

The appellant appealed her conviction and sentence for accepting a secret benefit under s. 426(1) of the Criminal Code.

The Court of Appeal dismissed the conviction appeal, finding that the offence is established by proof that an agent accepted a secret benefit and placed themselves in a conflict of interest without alerting their principal, regardless of whether the benefit actually influenced their conduct.

However, the Court allowed the sentence appeal, finding that the trial judge erred in characterizing the offence as a well-planned fraud upon the public purse.

The Court set aside the term of imprisonment and imposed an 18-month conditional sentence, noting the appellant's lack of prior record, full restitution, loss of career, junior role, and cooperation with authorities.

The appellant appealed a sentence imposed by the Ontario Court of Justice and upheld by the Superior Court of Justice.

The Court of Appeal found no error in the imposition of consecutive sentences at or near the maximum for the serious offences committed.

Although fresh evidence presented an encouraging picture for the appellant's future, it did not warrant a reduction in the sentence.

The appeal was dismissed.

The appellant appealed a decision making the children Crown wards without access, arguing she was denied procedural fairness at the status review hearing.

The children had previously been placed in her custody but were apprehended after a police incident involving alleged crack cocaine trafficking at her home.

At the time of the status review hearing, the appellant had relapsed into drug use and was in default of court orders.

The Court of Appeal found no procedural unfairness, noting the appellant and her lawyer participated in the hearing and no adjournment was requested.

The appeal was dismissed as the disposition was clearly in the best interests of the children.

The Crown appealed a summary conviction appeal judge's decision that excluded expert evidence from a practitioner of traditional Chinese medicine.

The Court of Appeal allowed the appeal, finding that the evidence had been admitted on consent at trial and the expert was properly qualified.

The conviction was restored.

The respondent successfully sued her mother for breach of fiduciary duty for failing to protect her from sexual abuse by her father during her childhood.

The mother appealed, arguing the action was barred by the equitable doctrine of laches due to the 42-year delay in bringing the claim, and that she was powerless to intervene.

The Court of Appeal dismissed the appeal on liability, finding no acquiescence by the respondent and that the mother failed to establish she was unable to protect her daughter.

However, the Court allowed the appeal in part regarding damages, reducing the award for lost income from $100,000 to $20,000 due to a lack of evidentiary foundation for the higher amount.

A cross-appeal regarding trial costs was dismissed.

The appellant, an aboriginal offender, appealed her 18-month sentence for aggravated assault, arguing the pre-sentence report fell short of Gladue requirements.

She sought to tender a more comprehensive Gladue report as fresh evidence.

The Court of Appeal admitted the fresh evidence but dismissed the appeal, finding the original sentence fit and appropriate given the serious violence of the offence and the extreme consequences to the victim.

The defendants appealed an order striking paragraph 54 of their statement of defence.

The Court of Appeal allowed the appeal, finding it was not plain and obvious that the allegations could not succeed as a defence or partial defence to the claims.

The Court noted that a fiduciary is not responsible for all damages suffered by a complaining party regardless of their cause, distinguishing the case from Plaza Fiberglass.

The appeal was allowed with costs fixed at $7,500.

The appellant appealed jury convictions for multiple sexual offences involving his niece and sought leave to appeal a three-year penitentiary sentence.

The court held that contextual evidence concerning an unrelated child protection matter was admissible as necessary narrative surrounding the appellant's admissions, and any prejudicial effect was outweighed by the probative value of the confessions.

The court also held that the complainant's disclosures to family and friends were admissible as narrative evidence under the prior consistent statement jurisprudence, and that the jury charge did not require further limiting instructions in the circumstances of the defence theory.

Leave to appeal sentence was granted, but the sentence appeal was dismissed because the sentence was not manifestly unfit and disclosed no error in principle.

The father appealed a trial judge's decision granting sole custody of the child to the mother, and the mother cross-appealed the dismissal of her motion to vary spousal support.

The Court of Appeal allowed the father's appeal, finding that the trial judge erred by varying the existing joint custody order without first establishing a material change in circumstances as required by section 17 of the Divorce Act.

The court noted that the parties' high-conflict relationship was foreseeable and did not constitute a material change.

The mother's cross-appeal regarding support and section 7 expenses was dismissed.

The appellant appealed a motion judge's decision to strike out several paragraphs of its pleading.

The motion judge held that a ruling of the Ontario Securities Commission is not a contract as required by s. 23(1)(b) of the Condominium Act.

The Court of Appeal agreed, finding that granting leave to amend would not cure the deficiency, and dismissed the appeal with costs.

The appellant was convicted of multiple counts of armed robbery and related offences following two trials.

He appealed his convictions, arguing that his s. 11(b) Charter rights were violated by a 56-month delay, that the trial judge erred in admitting similar fact evidence and refusing to sever the charges, and that bad character evidence was improperly admitted.

He also appealed his sentence of life imprisonment.

The Court of Appeal dismissed the conviction appeals, finding that the delay was largely attributable to the appellant's own conduct and that the trial judge made no reversible errors in his evidentiary rulings or jury instructions.

The sentence appeal was also dismissed, with the Court holding that a life sentence was fit given the appellant's extensive violent criminal record, incorrigibility, and the need to protect the public.

The appellant appealed a judgment of the Superior Court of Justice, arguing that the trial judge erred in refusing to grant an adjournment.

The Court of Appeal dismissed the appeal, finding that the trial judge properly exercised his discretion by considering all relevant factors.

Furthermore, the appellant failed to provide any evidence of what his defence would have been had the adjournment been granted.

The Crown appealed a directed verdict of acquittal on a charge of first degree murder.

The trial judge had withdrawn the case from the jury at the conclusion of the Crown's case, which relied entirely on circumstantial evidence including motive, opportunity, forensic evidence, and after-the-fact conduct.

The Court of Appeal allowed the appeal, finding that the trial judge erred by weighing the evidence piecemeal and usurping the function of the jury rather than taking the Crown's case at its highest.

The acquittal was set aside and a new trial ordered.

The Crown appealed the lenient sentence imposed on an 18-year-old offender with a minor record and solid work history.

The Court of Appeal dismissed the appeal, declining to interfere with the trial judge's assessment that leniency offered the best prospects for the protection of the public.

Following the release of reasons for judgment in a wrongful dismissal appeal, the appellant made further written submissions arguing that his damages award of $286,000 should not be subject to the duty to mitigate.

The Court of Appeal agreed, finding that a clause in the employment contract requiring a lump-sum payment shortly after termination amounted to a waiver by the employer of any obligation on the part of the employee to mitigate.

The judgment was amended to award the appellant damages equal to two years' salary without a duty to mitigate, and costs were fixed on a substantial indemnity basis.

The appellants appealed a decision interpreting the provisions of a commercial lease and applying those terms to two events held on the premises.

The Court of Appeal found that the application judge's interpretation of the lease was correct and that the application of the terms to the facts was reasonable.

The appeal was dismissed with costs.

The appellant brought an unopposed appeal from a judgment of the Superior Court of Justice.

The Court of Appeal set aside the portion of the judgment ordering a reference, finding the motion judge erred in interpreting a UAE judgment.

The Court also ordered the return of security for costs to the appellant, awarded pre- and post-judgment interest under the Courts of Justice Act, and fixed costs for both the appeal and the court below.

The appellant appealed his conviction for robbery, arguing the defence of colour of right applied.

The Court of Appeal dismissed the appeal, finding that the defence did not arise on the facts, as the appellant demanded the money, pointed an imitation firearm, and never asserted a right to the money.