OCA 2008

The Crown appealed a conditional sentence imposed on the respondent for a series of sexual assaults and extortion against his son's 17-year-old girlfriend.

The Court of Appeal found the conditional sentence manifestly inadequate given the gravity of the offences, which included videotaping an attempted sexual assault and using the tape to extort further compliance.

The appeal was allowed, and the sentence was varied to 15 months' imprisonment, taking into account pre-trial custody and time served on the conditional sentence.

The appellants appealed an order finding them in contempt of a previous court order and sought leave to appeal a costs order of approximately $92,000.

The Court of Appeal upheld the motion judge's finding that the appellants knowingly and intentionally ignored the previous order and attempted to hide assets to frustrate the respondent's rights as a creditor.

The court also found no basis to interfere with the motion judge's exercise of discretion in awarding costs on a full indemnity basis.

The appeal was dismissed.

The appellant appealed his conviction and sentence for smuggling heroin into a correctional facility.

The sole issue on the conviction appeal was the alleged lack of proof of continuity of evidence.

The Court of Appeal dismissed the appeal, finding that continuity was established by direct and circumstantial evidence, and refused leave to appeal the sentence, holding that it was fit for the serious offence.

The appellants, owners of hotels and other businesses, brought a civil action for defamation, interference with economic relations, and conspiracy to injure against an employee and union steward who delivered a speech to customers.

The motion judge dismissed the action, finding that the dispute was essentially a workplace dispute governed by the collective agreement, thereby ousting the court's jurisdiction under the Weber framework.

The Court of Appeal upheld the decision, agreeing that the facts and context of the dispute were overwhelmingly employment-related and that the appellants had initially treated the matter as a workplace incident by taking disciplinary steps.

The appellant appealed a six-month custodial sentence for her role as a gardener in a marijuana grow operation.

The Court of Appeal admitted fresh medical evidence indicating that the appellant's mental health had significantly deteriorated since sentencing and that further incarceration would cause extreme hardship.

The court allowed the appeal, finding that the principles of sentencing could be met by a conditional sentence.

The custodial sentence was set aside and replaced with an 18-month conditional sentence.

The moving party brought a motion to quash an appeal from a Superior Court decision that allowed an appeal from two arbitral awards.

The moving party argued the appellant failed to obtain leave to appeal as required by section 49 of the Arbitrations Act.

The Court of Appeal agreed, finding that the parties could not contract out of the statutory leave requirement.

The appeal was quashed for want of jurisdiction, but the court extended the time for the appellant to move for leave to appeal in writing.

The plaintiff suffered injuries at the defendant's amusement park but failed to commence an action within the two-year limitation period under the Limitations Act, 2002 due to lawyer inadvertence.

The motion judge applied the common law doctrine of special circumstances to extend the limitation period.

The Court of Appeal allowed the defendant's appeal, holding that the Limitations Act, 2002 is a comprehensive scheme that does not preserve the court's common law discretion to extend limitation periods based on special circumstances.

The action was declared statute-barred.

The appellants were injured in a bus collision in 2000 and commenced an action against several defendants in 2001.

In 2006, after the expiry of the former two-year limitation period under the Highway Traffic Act, they sought to add a doctor as a party defendant.

The Court of Appeal held that the transition provision in s. 24(3) of the Limitations Act, 2002 applied, which barred the proceeding.

While the court confirmed that the common-law doctrine of special circumstances remains available to extend a former limitation period under the transition provisions, it upheld the motion judge's finding that no special circumstances existed because the appellants had made a deliberate decision not to sue the doctor before the limitation period expired.

The appellant was convicted of first degree murder after stabbing his stepmother 30 times in a parking lot.

He appealed the conviction on several grounds, including the admission of his initial statement to police, the adequacy of jury instructions regarding eyewitness identification, post-offence conduct, the intent required for murder, and the failure to give a complete W. (D.) instruction.

The Court of Appeal dismissed the appeal, finding that the appellant was not detained during his initial police interview, and that while there were minor errors in the jury charge, they did not amount to a reversible error or cause a substantial wrong or miscarriage of justice given the overwhelming evidence of guilt.

The accused was charged with sexual assault, uttering a death threat, and unlawful confinement.

The trial judge granted a stay of proceedings, finding that the 30-month delay from the date of the charge to the scheduled trial date violated the accused's right to be tried within a reasonable time under s. 11(b) of the Charter.

The Crown appealed.

The Court of Appeal allowed the appeal, concluding that the delay was not unreasonable given the mutual agreement to convert the case to a superior court trial with a preliminary inquiry, and the lack of significant prejudice to the accused.

The stay was set aside and the matter was directed to proceed to trial.

The appellants appealed an order declaring the respondents to be owners of a parcel of land, arguing the application judge lacked jurisdiction to vary a Rule 49 settlement offer.

The Court of Appeal dismissed the appeal, finding that the application judge properly exercised his discretion to refuse to enforce the original settlement due to significant prejudice to the respondents.

The Court characterized the application judge's decision as a refusal to enforce the settlement followed by a decision on the merits of the original application, which was within his power.

The appellant, La-Z-Boy, appealed a trial judgment finding that the respondent sales agent was an employee, not an independent contractor, and was entitled to 20 months' reasonable notice of termination.

The Court of Appeal upheld the trial judge's finding that an employer-employee relationship existed, noting the appellant's extensive control over the respondent's sales activities.

The Court also held that a 60-day notice provision in the parties' annual agreement was unenforceable because the respondent received no fresh consideration for giving up his common law right to reasonable notice.

The appeal was dismissed.

The appellants appealed a trial judgment awarding the respondent damages for breach of a film financing contract.

The appellants argued the trial judge provided insufficient reasons, failed to hear oral argument before releasing his decision, and sought to introduce fresh evidence that the trial judge repeatedly fell asleep during the trial.

The Court of Appeal dismissed the appeal, finding the reasons sufficient and that the lack of oral argument did not cause a miscarriage of justice.

While the fresh evidence regarding the sleeping judge was admitted, the court held the appellants could not rely on it because they made a deliberate tactical decision not to raise the issue during the trial.

The appellant mother appealed the lower court decisions finding her children in need of protection and placing them under the supervision of the Children's Aid Society with the father.

The Court of Appeal dismissed the appeal, finding no error in the decisions below.

The Court noted that the protection and placement issues, as well as the mother's access, would be fully considered at an upcoming mandatory status review hearing.

The appellants appealed a finding that their conduct regarding the composition of a condominium corporation's board of directors was oppressive.

The Court of Appeal dismissed the appeal, agreeing with the application judge's reasons.

The respondents cross-appealed a portion of the order enforcing a by-law that both parties agreed violated the Condominium Act.

The Court allowed the cross-appeal and amended the by-law to provide for a five-member board consisting of two residential unit owners, two commercial unit owners, and a fifth member elected under the current by-law.

The appeal was dismissed and the cross-appeal was allowed.

The appellant appealed a decision granting declaratory relief to the respondent regarding an easement and an undertaking to grant a further access easement.

The appellant argued the easements were conditional on the respondent building a synagogue on its retained lands, which it later decided to develop for residential purposes.

The Court of Appeal dismissed the appeal, finding no language in the agreements or undertaking restricting the use of the easements to a synagogue, and no evidence that the change in use would increase the burden on the servient tenement.

The respondent's cross-appeal to stay the discharge of a Certificate of Pending Litigation until the easement was registered was allowed.

The appellant appealed his conviction, arguing that the trial judge erred in law by presiding over the trial after having conducted the pre-trial.

The Court of Appeal dismissed the appeal, noting that while judges who conduct pre-trials should generally avoid conducting the trial, it is not a per se reversible error.

Absent clear objection from counsel and any prejudice, the trial judge's decision to seize herself with the trial was not an error in law.

The court also upheld the trial judge's factual findings that the appellant followed the complainant, made threatening gestures, and rammed her vehicle.

The appellants appealed their convictions for fraud and the resulting sentences, including a restitution order.

The Court of Appeal found no misapprehension of evidence by the trial judge regarding the identity of the vehicles involved, nor any inconsistency in the verdicts.

The court held that misrepresentations in insurance documents justified the fraud conviction and upheld the restitution order as a proper exercise of discretion.

The appeal was dismissed.

The appellant father appealed a trial judgment awarding custody of the parties' five children to the respondent mother, delaying an equalization payment, and ordering substantial indemnity costs.

The Court of Appeal found no error in the trial judge's assessment of the children's best interests, noting the mother's proposal avoided extensive nanny care and the father had undermined the mother's role.

The appeal was dismissed with costs.

The appellant appealed four orders of the Superior Court of Justice that struck his applications and dismissed a motion for contempt against Crown counsel.

The applications sought to set aside prior criminal convictions, direct the Attorney General and the court to cease discriminatory practices, and have a judge withdraw from a proceeding.

The Court of Appeal dismissed the appeals, finding no error in the lower court decisions that the applications constituted improper collateral attacks on final criminal orders and required leave under section 140 of the Courts of Justice Act.