OCA 2008

The appellant was convicted of second-degree murder after fatally stabbing the victim following a dispute.

On appeal, the appellant argued the trial judge erred in his jury instructions regarding post-offence conduct, the common sense inference of intent, and the 'rolled-up' charge on mens rea.

The Court of Appeal dismissed the appeal, finding the jury instructions were adequate, properly cautioned the jury, and correctly placed the burden of proof on the Crown.

The applicant applied for bail pending his appeal from a conviction for second degree murder.

He argued that the trial judge erred in failing to disclose the identity of a confidential police informer and that the verdict was unreasonable.

The court reviewed the grounds of appeal and found them to be arguable but weak.

Applying the public interest test, the court concluded that the interest in enforceability of the murder conviction outweighed the interest in reviewability.

The application for bail pending appeal was dismissed.

The respondents sought substantial indemnity costs of $18,939.18 from the media coalition regarding its motion to intervene on the appeal.

The media coalition had been granted leave to intervene on conditions, including paying costs incurred due to late intervention, but subsequently elected not to participate in the appeal to avoid costs exposure.

The Court of Appeal held that because the intervener did not participate, there was no relevant costs order on the appeal to trigger the payment of full motion costs.

However, the court awarded the respondents $3,500 for costs fairly attributable to the late intervention.

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

The Court of Appeal dismissed the appeal, holding that the statutory regime established to resolve the distribution of statutory accident benefit losses between insurers does not deprive injured parties of their right to sue in tort actions.

Costs were awarded to the respondents.

The Crown appealed the sentence imposed on the respondent, challenging the trial judge's exemption of the respondent from provincial sex offender registry requirements, the refusal to order forfeiture of a computer, and the failure to make mandatory DNA and SOIRA orders.

The Court of Appeal held that the trial judge lacked jurisdiction to exempt the respondent from the provincial legislation and erred in failing to make the requested DNA and SOIRA orders, as the respondent did not establish that the impact would be grossly disproportionate to the public interest.

The court upheld the trial judge's decision not to order forfeiture of the computer.

The appeal was allowed in part.

The appellants appealed an order granting summary judgment to the respondents in a medical malpractice action.

The Court of Appeal allowed the appeal, finding that the respondents had not filed an expert medical report and failed to meet their burden of showing no genuine issue for trial.

The Court also held that the limitation period defence raised an issue of discoverability that must go to trial.

The summary judgment was set aside and costs were awarded to the appellants.

The appellant appealed his conviction for large-scale counterfeiting, arguing that the trial judge erred in refusing to exclude evidence seized from his residence under s. 24(2) of the Charter.

The trial judge had found that the search warrant was insufficient, resulting in a s. 8 Charter breach, but admitted the evidence because the police conduct was not below the requisite level of care and the evidence was crucial to the prosecution.

The Court of Appeal found no error in the trial judge's application of the s. 24(2) framework and dismissed the appeal.

The appellants appealed an order staying their action for non-payment of a previous costs award.

They argued the motion judge erred by failing to recuse himself for alleged bias and by staying the action.

The Court of Appeal dismissed the appeal, finding no evidence of bias and noting the appellants' long history of failing to comply with costs orders.

The stay was a discretionary order permitted under the Rules of Civil Procedure.

The appellants appealed a trial decision granting the respondent an enhanced supplementary pension based on an additional 36 months of service.

The trial judge found that the parties had a prior oral agreement regarding the pension credit and were mutually mistaken in believing the written letter agreement reflected this intention.

The Court of Appeal upheld the trial judge's decision to rectify the agreement, finding that the appellants' attempt to take advantage of the mistake amounted to unfair dealing.

The Court also agreed that promissory estoppel prevented the appellants from denying the pension entitlement.

The respondent was dismissed without cause from his managerial position after 13 months of service.

The trial judge awarded a base notice period of six months and added two three-month Wallace extensions for bad faith in the manner of dismissal, along with damages for mitigation expenses and loss of an Employee Stock Purchase Plan.

On appeal, the Court of Appeal upheld the six-month base notice period but set aside the Wallace extensions, finding no evidence of bad faith or high-handed conduct by the employer.

The court also adjusted the damages for mitigation expenses and the stock purchase plan.

The appellant appealed his convictions for assault, attempt to obstruct justice, and failure to comply with an undertaking.

He argued the trial judge erred by failing to provide a limiting instruction regarding the investigating officer's testimony about why he did not charge the complainant after she recanted her allegations.

The Court of Appeal dismissed the appeal, finding the officer's testimony explained his investigative process and did not constitute improper oath-helping.

The appellant appealed his convictions for sexual assault, assault, and threatening death, arguing the trial judge erred in answering a jury question during deliberations.

When asked if all twelve jurors had to agree on reasonable doubt, the trial judge answered affirmatively, failing to explain a juror's right to disagree.

The Court of Appeal held that this answer improperly conveyed an obligation to agree on a verdict, contrary to established Supreme Court jurisprudence.

The appeal was allowed, the convictions were set aside, and a new trial was ordered.

The appellant appealed his convictions, arguing the trial judge erred in admitting evidence of his prior misconduct.

The Court of Appeal allowed the appeal, finding that the trial judge failed to provide a clear ruling on the basis for admitting the evidence and the use made of it.

The court noted it was unclear whether the evidence was used as similar fact evidence or for credibility.

The convictions were set aside and a new trial was ordered.

The appellants appealed a trial judgment finding them liable for defamation.

The Court of Appeal upheld the trial judge's findings that the statements were defamatory and that the defence of fair comment failed because the statements could not be distinguished as opinion rather than fact, and because the trial judge's finding of malice was soundly based in the evidence.

The appeal was dismissed with costs.

The appellant was convicted of second degree murder and sentenced to life imprisonment without parole for 20 years.

At trial, the defence argued that the main Crown witness was the actual shooter and attacked the integrity of the police investigation.

The trial judge permitted the lead detective to provide an investigative narrative to confirm the Crown witness's evidence.

On appeal, the appellant challenged the admission of this investigative narrative, the explanation for why a witness was not called, and the admission of prior consistent statements.

The Court of Appeal dismissed the appeal, finding that the defence's attack on the investigation justified the Crown's response and that the trial judge properly instructed the jury on the limited use of the evidence.

The 20-year parole ineligibility period was also upheld given the appellant's violent criminal record.

The appellant appealed convictions for sexual assault.

The determinative issue was whether the trial judge erred in failing to provide an adequate answer to the jury's questions concerning the timeline of various events.

The Court of Appeal concluded that the trial judge did not properly answer the questions and it was not satisfied the result would have been the same had they been properly answered.

The appeal was allowed and a new trial ordered.

The appellant appealed an order granting summary judgment.

The Court of Appeal dismissed the appeal, finding that the issues raised by the appellant were irrelevant and did not raise a genuine issue for trial.

Costs were awarded to the respondent in the amount of $5,000 plus GST and disbursements.

The appellant appealed a verdict of not criminally responsible (NCR) on account of mental disorder, which was entered on his consent at trial.

He alleged ineffective assistance of counsel, but the appointed amicus curiae found no basis for this claim.

The Court of Appeal held there was no evidence that the appellant's consent was involuntary, equivocal, or uninformed, and found the NCR verdict was reasonable based on the psychiatric assessment and the appellant's history.

The appeal was dismissed.

The appellant appealed the dismissal of his claim for common law severance damages for wrongful dismissal.

The central issue was whether the trial judge erred in limiting the appellant's entitlement to the minimum required by the Employment Standards Act based on a termination clause in his employment contract.

The Court of Appeal held that the clause was unambiguous, not void at law, and supported by consideration given the appellant's promotion and enhanced remuneration.

The appeal was dismissed.

The appellant appealed a trial judgment finding him liable for fraud and awarding the respondent $216,000 plus costs.

The respondent had been induced to invest $200,000 in a fraudulent scheme perpetrated by a co-defendant, who used the appellant's name and a 'show of money' transaction to give the scheme an air of legitimacy.

The trial judge found that the appellant was wilfully blind to the fraudulent scheme and his role in it.

The Court of Appeal found no error in the trial judge's factual inferences and dismissed the appeal, upholding the finding of liability based on wilful blindness.