OCA 2008

The appellant appealed a disposition of the Ontario Review Board directing his detention at a minimum secure unit, subject to living in the community at the hospital's discretion.

The appellant sought an absolute or conditional discharge.

The Court of Appeal dismissed the appeal, finding the Board's conclusion that the appellant posed a significant risk to public safety was supported by evidence of his lack of insight, need for medication, and risk of drug use.

The Court held that a detention disposition was necessary to ensure the hospital's continued authority to manage his risk and compel his return if his condition deteriorated.

The appellant appealed the dismissal of its claim for payments under a 2006 contract renewal notice.

On appeal, the appellant argued for the first time that the respondent was estopped from claiming reimbursement due to its failure to respond to the notice within thirty days.

The Court of Appeal dismissed the appeal, holding that the appellant failed to meet the test for raising a new argument on appeal, as the evidentiary record regarding detrimental reliance and fairness was not fully developed at trial.

The appellant appealed a decision finding that the execution of a forbearance agreement did not release him from his guarantee.

The Court of Appeal dismissed the appeal, holding that the terms of the guarantee explicitly allowed the bank to grant time and other indulgences to the borrower without discharging the guarantor's liability.

The appellants purchased goods from the respondent under a contract stating the goods must be free of liens.

After accepting the goods and making payment, the appellants discovered an outstanding lien and sought to repudiate the contract.

The trial judge found the breach should be treated as a breach of warranty under s. 12(3) of the Sale of Goods Act, entitling the appellants to damages rather than repudiation.

The Court of Appeal upheld this finding, noting the appellants' actions were consistent with treating the term as a warranty.

The appeal was dismissed, but execution of the judgment was stayed up to $40,000 pending resolution of a Third Party Notice from the Ministry of Revenue.

Following a successful appeal regarding the right to issue third party claims, the appellants sought costs.

The parties agreed on the quantum of costs but disputed the timing of payment.

The Court of Appeal ordered costs payable forthwith, finding no special circumstances to justify a delay in payment.

The appellant sued Canada for a declaration that its refusal to compensate him for internment and forced labour during World War II violated sections 7 and 15(1) of the Charter.

The appellant died before the action came to trial, and his estate trustees obtained an Order to Continue.

Canada successfully moved to vary the order so that the estate could only pursue non-Charter claims.

The Court of Appeal dismissed the estate's appeal, applying Supreme Court precedent to hold that an estate does not have standing to pursue relief under the Charter, including under section 7.

The appellant's land was unlawfully taken by the respondent's predecessor in 1989.

The parties settled the ensuing litigation in 1991, agreeing to proceed under the Expropriations Act, but the respondent failed to implement the settlement for 13 years.

The appellant commenced a new action in the Superior Court for compensation and damages.

The motion judge dismissed the action, finding the Ontario Municipal Board had exclusive jurisdiction.

The Court of Appeal allowed the appeal, holding that the Superior Court has jurisdiction because the action arises from the respondent's failure to implement a settlement of a Superior Court proceeding.

The appellant appealed a decision denying his application to amend his statement of claim to plead illegal consideration.

The Master and the appeal judge had refused the amendment, finding it an abuse of process because a judge on a prior interlocutory injunction motion ruled the allegation did not raise a triable issue.

The Court of Appeal allowed the appeal, holding that a refusal to grant an interlocutory injunction is a preliminary decision and does not finally determine the cause of action.

The appellant was granted leave to amend his statement of claim.

The appellants appealed a motion judge's refusal to correct the title of proceedings to name the Regional Municipality of Durham as a defendant in place of two other municipalities after the limitation period had expired.

The Court of Appeal allowed the appeal, finding that the statement of claim clearly intended to name the municipality responsible for the road, and Durham knew it was the intended defendant.

Applying the doctrine of misnomer under section 21(2) of the Limitations Act, 2002, the court ordered the substitution of Durham as a defendant.

The appellant appealed his sentence of 35 months (plus 61 months pre-trial custody credit) for aggravated assault and use of a firearm.

He had used a handgun to threaten a 12-year-old boy who provided information to police, firing the gun and severely injuring the boy via ricochet.

The appellant argued the trial judge erred by taking judicial notice of the prevalence of witness intimidation and by failing to properly consider his youth.

The Court of Appeal dismissed the appeal, finding the facts of the offence spoke for themselves regarding intimidation, and the trial judge properly weighed the appellant's youth against his extensive record and the gravity of the offence.

The accused appealed a Summary Conviction Appeal Court decision that had overturned her acquittal.

The Court of Appeal granted leave to appeal, set aside the summary conviction appeal court judge's order, and restored the acquittal.

The trial judge had found that the arresting officer breached the accused's s. 10(b) Charter rights and implicitly found the officer stopped the accused selectively for an improper purpose.

The Court of Appeal held that the cumulative effect of these Charter breaches warranted the exclusion of the breath results.

The appellant was convicted of first-degree murder after the deceased was found in a submerged vehicle.

At trial, the Crown relied on unchallenged toxicology evidence suggesting the deceased died within 15 to 20 minutes of his last drink, supporting the theory of a planned murder.

On appeal, the appellant sought to introduce fresh toxicology evidence, conceded as correct by the Crown, showing the trial expert's time estimate was scientifically unsound.

The Court of Appeal applied the Palmer test and admitted the fresh evidence, finding it could reasonably be expected to have affected the jury's verdict.

The appeal was allowed, the conviction quashed, and a new trial ordered.

The appellants appealed a summary judgment dismissing their claim to an interest in a company.

The appellant, an undischarged bankrupt, argued that his interest should be returned to him under s. 40(1) of the Bankruptcy and Insolvency Act as property incapable of realization, and that the trustee had told him not to disclose the interest.

The Court of Appeal dismissed the appeal, finding that the trustee had not determined the property was incapable of realization, and the appellant's bare assertions about the trustee's advice lacked sufficient detail to raise a genuine issue for trial.

The appeal was dismissed with costs fixed at $9,000.

The appellant, an Aboriginal offender and residential school survivor, appealed his sentence for sexually abusing his step-daughter.

The Court of Appeal found that the trial judge erred in principle by failing to consider the appellant's Aboriginal background and upbringing under s. 718.2(e) of the Criminal Code.

Balancing the severe aggravating factors of the offence against the appellant's tragic upbringing and physical ailments, the Court granted leave to appeal and reduced the sentence to four years.

The appellant appealed his conviction for second degree murder and his sentence of life imprisonment with 20 years of parole ineligibility.

He argued the trial judge erred in his jury instructions regarding eyewitness identification evidence and the availability of a manslaughter verdict.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's comments on the evidence were acceptable and did not usurp the jury's function, and that there was no air of reality to manslaughter.

The sentence appeal was also dismissed, as the 20-year parole ineligibility period was justified by the extraordinary violence of the murder and the appellant's high moral culpability.

The appellant appealed his conviction for second-degree murder and his sentence of life imprisonment with 12 years of parole ineligibility.

He argued the trial judge erred in leaving section 21(2) of the Criminal Code with the jury, in instructing on the doctrine of recent possession, and in defining abetting to include purposeful presence.

The Court of Appeal dismissed the conviction appeal, finding sufficient evidence of a predicate offence (robbery) and no reversible errors in the jury instructions.

The sentence appeal was also dismissed, as the 12-year parole ineligibility period was within the appropriate range given the brutal nature of the murder.

The appellant appealed his conviction and sentence for possession of proceeds of crime and laundering proceeds of crime.

The trial judge found the appellant knew money was hidden in the trucks but failed to address whether the appellant knew the money was proceeds of crime, a necessary element of the offences.

The Court of Appeal allowed the appeal and ordered a new trial based on this error.

The Court also noted that the Crown's expert evidence regarding typical excuses given by drug dealers at the border went beyond appropriate bounds.

The appellants appealed an order of the motion judge regarding a harvest procedure on a game farm.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the harvest procedure was simply a hunt by another name.

Costs were awarded to the respondent in the amount of $9,000.

The young person appealed a sentence of 18 months (12 secure custody, 6 community) for robbery with an imitation firearm.

The Crown conceded the trial judge erred by failing to consider open custody under the Young Offenders Act.

The Court of Appeal rejected the Crown's argument that its appellate powers were limited to adjusting the custody levels, holding it could impose a new sentence.

Noting the young person's significant rehabilitation, the Court varied the sentence to time served (15 weeks) followed by community supervision and probation.

The appeal of the DNA order was dismissed.

The appellant appealed a jury trial judgment where the jury awarded zero for general damages.

The Court of Appeal found that while the trial judge's instructions on causation did not prejudice the appellant, the jury's answers to specific questions were inconsistent, rendering the zero damages award perverse.

Exercising its power under section 119 of the Courts of Justice Act, the Court fixed general damages at $35,000, less a $15,000 deductible, and awarded the appellant $25,000 in appeal costs.