OCA 2008

The young person appealed the trial judge's decision to sentence him as an adult for second-degree murder.

The Court of Appeal found the trial judge erred by directly deducting two and a half years of pre-trial custody rather than treating it as a discretionary consideration.

The appeal was allowed, the adult sentence was set aside, and the maximum youth sentence was imposed to better facilitate the young person's rehabilitation.

The appellant appealed the trial judge's assessment of damages for breach of contract regarding the improper backgrounding of cattle.

The Court of Appeal allowed the appeal, finding the trial judge erred in law, and reduced the respondents' damages based on a seven cents per pound sale price differential between 'green' and 'burnt' cattle.

The respondents' cross-appeal regarding the trial judge's 30% discount on the appellant's claim for unpaid invoices was dismissed.

The appellant insurer appealed a trial judgment granting the respondent relief from forfeiture after the insured breached statutory condition 4(1) of the Insurance Act by driving with a suspended licence.

The Court of Appeal allowed the appeal, holding that section 129 of the Insurance Act applies only to matters concerning proof of loss, not coverage.

Furthermore, the court found that even if section 98 of the Courts of Justice Act applied, the insured's conduct in ignoring registered letters from the Ministry of Transportation demonstrated wilful blindness and was incompatible with relief from forfeiture.

The judgment was varied to reduce the payable amount.

The union appealed a Divisional Court decision that quashed an Ontario Labour Relations Board certification order and remitted the matter for reconsideration.

The Divisional Court had found the Board erred in concluding it lacked jurisdiction to consider the employer's late-filed response.

Before the appeal was heard, the Board reconsidered the matter, accepted the late response, and revoked the certification.

The Court of Appeal dismissed the union's appeal as moot, finding no live controversy remained and declining to exercise its discretion to hear the case on the merits.

The appellant landlord appealed a decision finding that it did not have the right under a commercial lease to relocate the respondent tenant outside the existing shopping centre development.

The Court of Appeal dismissed the appeal, holding that the lease envisaged changes short of full demolition and creation of an entirely new development, and therefore the relocation right did not extend to compulsory relocation outside the existing complex.

The appellant appealed a motion judge's order regarding an insurer's duty to defend.

The Court of Appeal allowed the appeal, finding that based on the plaintiff's pleadings, the possibility that the appellant's statements were made carelessly rather than intentionally could not be ruled out.

Applying the Supreme Court's principle that the mere possibility of a claim falling within the policy triggers the duty to defend, the court set aside the motion judge's order and awarded costs to the appellant.

The appellant appealed a judgment on the basis that the motion judge erred in refusing to allow viva voce evidence.

The Court of Appeal dismissed the appeal, finding no error in the exercise of discretion given the history of delays by the appellant, indulgences granted, and prior notice given by a Master.

The court concluded there was no procedural unfairness or denial of natural justice.

The appellant and respondent entered into a ten-year contract for the supply of ethanol.

The contract contained price-protection provisions, including a requirement for the appellant to match the price of an alternate supplier if certain conditions were met.

When the respondent received a lower offer from an alternate supplier, the appellant refused to match it, arguing that the obligation was contingent on the development of an active market for ethanol in Ontario under another section of the contract.

The trial judge found that the price-match provision operated independently.

The Court of Appeal upheld the trial judge's decision, finding that the plain wording of the contract and the factual matrix supported the conclusion that the provision was a stand-alone obligation.

The appellant father appealed a trial decision regarding child custody and support.

He argued the trial judge erred in not ordering joint custody and parallel parenting, and in awarding lump sum child support based on imputed income.

The Court of Appeal dismissed the appeal, finding the parties' inability to agree on important decisions justified sole custody.

The court also upheld the imputed income of $50,000, noting the appellant's underemployment and failure to make proper financial disclosure.

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

The applicant, who was unrepresented, brought a motion to set aside an order dismissing his motion to review a single judge's refusal to extend the time to appeal his convictions for uttering death threats.

The Court of Appeal found that while the proposed notice of appeal did not raise an arguable ground, a review of the trial record suggested an arguable ground might exist regarding whether the elements of the offences were established.

The court set aside the previous orders and extended the time to appeal, directing the matter to be spoken to when duty counsel could assist the applicant.

The applicant's separate motion to review orders denying him transcripts and a court reporter at government expense was dismissed.

The appellant appealed his convictions and sentence for aggravated assault and forcible confinement, arguing the trial judge erred by failing to ensure he was represented by counsel and by inadequately assisting him as a self-represented litigant.

The Court of Appeal dismissed the appeal, finding that the appellant, an experienced criminal litigant, had clearly chosen to represent himself and that the trial judge had provided adequate and fair assistance throughout the trial.

The court also upheld the 4.5-year sentence as fit given the violent nature of the offence and the appellant's substantial criminal record.

The appellants appealed a motion judge's decision refusing proposed amendments to their claim.

The proposed amendments sought to add allegations of conspiracy and negligence, and to add a numbered company as a plaintiff.

The Court of Appeal found no reviewable error in the motion judge's exercise of discretion and dismissed the appeal with costs.

The appellants, Italian manufacturers of custom equipment, appealed a decision dismissing their motion to set aside service and stay the respondents' Ontario action.

The appellants argued that the contract was formed in September 2004 and included an exclusive jurisdiction clause for Italy, and that parallel proceedings were already underway in Italy.

The Court of Appeal upheld the motion judge's findings that the contract was formed in March 2004 without a jurisdiction clause, that Ontario had jurisdiction simpliciter based on a real and substantial connection, and that Italy was not clearly a more appropriate forum.

The appeal was dismissed.

The appellant appealed his conviction, arguing that a police officer's entry into his home violated s. 8 of the Charter.

The Court of Appeal dismissed the appeal, upholding the trial judge's finding that the officer approached the home lawfully to investigate an accident and stepped into the foyer on the implied invitation of the appellant's wife.

The implied invitation doctrine applied, distinguishing the case from R. v. Evans.

The appellant appealed a decision of the Ontario Review Board.

The Court of Appeal dismissed the appeal, finding that the Charter issues raised were bound by previous decisions and that the Board's decision was reasonable on the record.

The Court also held that the Board did not err by failing to initiate its own inquiries beyond the material placed before it.

The appellant was charged with building a deck without a permit.

The municipal prosecutor served a summons on the appellant's counsel, requiring him to testify against his client regarding correspondence he had sent on the client's behalf.

The appellant's motion to quash the summons was dismissed by the motion judge.

On appeal, the Court of Appeal allowed the appeal and quashed the summons, holding that calling opposing counsel to testify against their client is highly undesirable and should only be permitted in the most exceptional circumstances where the proper administration of justice demands it, which was not the case here.

The appellant pleaded guilty to multiple fraud-related offences and was sentenced to three years' incarceration and ordered to pay $19,542.42 in restitution.

He appealed the sentence, arguing the sentencing judge erred in assessing rehabilitation prospects, overemphasizing his criminal record, and imposing restitution.

The Court of Appeal upheld the custodial sentence, noting the appellant's extensive criminal record and the seriousness of the offences.

However, the Court set aside the restitution order because the sentencing judge failed to consider the appellant's ability to pay.

The appellants appealed an order dismissing their motion to set aside a default judgment on a promissory note.

The Court of Appeal agreed with the motion judge that while the default was explained and there was no delay, the appellants failed to present a valid defence on the merits.

The balance of prejudice favoured the respondent, as no payments had been made.

The appeal was dismissed with costs.

The appellant solicitors appealed an order upholding an assessment officer's decision regarding their accounts.

The Court of Appeal dismissed the appeal, agreeing with the lower court judge that the assessment officer did not err in principle, despite the unusual result of the assessment.

Costs of $300 were awarded to the respondent client.

The appellant roofing company appealed a declaration that its insurer had no duty to defend an action brought by a motorcyclist who was injured when a ladder flew off the appellant's truck.

The insurer denied coverage based on an automobile exclusion in a rider to the commercial general liability policy.

The Court of Appeal dismissed the appeal, finding that the insurer was entitled to rely on the rider, which excluded coverage for bodily injury with respect to which a motor vehicle liability policy is required by law to be in effect.

The court held that loading and storing the ladder constituted the use or operation of an automobile, and the underlying claim did not allege concurrent non-automobile-related negligence.