OCA 2008

The appellants succeeded on their appeal and sought costs.

The Court of Appeal awarded the appellants costs on a partial indemnity basis, fixing the costs of the appeal and motion for leave to appeal at $7,000, costs of the Divisional Court appeal at $3,500, and restoring the motion judge's costs order of $1,000.

The appellant, who was largely unsuccessful at trial, appealed to the Court of Appeal where his appeal on liability was dismissed but the costs order was varied.

After being denied leave to appeal to the Supreme Court of Canada, the appellant brought a motion before the trial judge under Rule 59.06 to amend or vary the trial order.

The trial judge dismissed the motion.

The Court of Appeal dismissed the subsequent appeal, holding that the trial judge had no jurisdiction to vary an order of the Court of Appeal and that Rule 59.06 applies to orders and judgments, not reasons for judgment.

The appellant appealed a motion judge's decision regarding family law issues and a declaration that she was a vexatious litigant.

The Court of Appeal found no error, noting the appellant had effective legal advice when entering into the 2003 Minutes of Settlement.

The appeal was dismissed with costs awarded to the respondent.

The appellant brought an action in detinue in the Superior Court of Justice seeking the return of diamonds seized by Customs for failure to declare them.

The motion judge stayed the action, finding the Federal Court was the court of preferred jurisdiction.

The Court of Appeal dismissed the appeal, holding that the motion judge properly exercised his discretion under section 106 of the Courts of Justice Act, as the Federal Court has more experience with the Customs Act and related issues.

The plaintiff was injured in two separate motor vehicle accidents and brought actions against both drivers.

The trial judge struck the jury due to the complexity of the plaintiff's medical history and found the plaintiff 100% liable for the first accident, but the defendant Hayik 100% liable for the second.

The trial judge awarded damages and made a Sanderson order requiring Hayik to pay the successful first defendant's costs.

On appeal, the Court of Appeal upheld the trial judge's decisions on striking the jury, liability, and damages, but set aside the Sanderson order, finding that the two actions were independent and the plaintiff had the ability to pay the costs of the unsuccessful action.

The appellant challenged a conviction and penitentiary sentence arising from a historical sexual assault in which consent was the central issue.

The appeal focused on whether the trial judge improperly used prior consistent statements and post-offence conduct to bolster the complainant’s credibility, misapprehended evidence, applied an uneven standard of scrutiny, and gave insufficient reasons.

The court held that the impugned statements were admissible and were used only to assess consistency of conduct placed in issue by the defence, not for their truth.

The proposed fresh evidence relating to a post-trial statement by the complainant did not meet the admissibility test because it could not reasonably be expected to have affected the verdict.

Leave to appeal sentence was granted, but the sentence appeal was dismissed.

The plaintiffs brought a motion for directions, seeking a review of a single judge's decision that refused to reopen their case and extend time.

The Court of Appeal dismissed the motion, holding that the appeal had already been decided in 1998 and the principles of res judicata and issue estoppel prevented the court from rehearing the matter.

The appellants, owners and patrons of adult entertainment parlours, challenged the constitutional validity of the Smoke-Free Ontario Act and sought damages under private law causes of action.

The motion judge struck most of the claims but allowed the division of powers claim to proceed.

On appeal, the Court of Appeal upheld the striking of the private law and Charter claims.

On cross-appeal, the Court held that the division of powers claim should also have been struck, as it is plain and obvious that the pith and substance of the Act is to promote health, which falls within provincial jurisdiction.

The appellant appealed a restitution order imposed by the sentencing judge on his own motion without advance notice.

The Court of Appeal found that the sentencing judge failed to conduct an adequate inquiry into the appellant's ability to pay, noting a lack of evidence regarding his expenses and income.

Given that the appellant had already served his conditional sentence and probation, and had paid over $10,000 in restitution despite only receiving $5,000 from the fraud, the appeal was allowed and the restitution order was reduced to the amount already paid.

The appellant appealed a trial judgment interpreting a deed and finding him liable for trespass.

The Court of Appeal upheld the trial judge's conclusion that a clause granting limited use of facilities to the original grantee and her guests did not extend to heirs and assigns, as it was a stand-alone provision distinct from the unconditional right of way.

The Court also upheld the finding of trespass regarding the appellant's use of the facilities for a large reunion.

On consent, the judgment was varied to correct an inadvertent error regarding the appellant's two access easements.

The appeal was otherwise dismissed.

The appellant appealed his sentence, seeking to reduce his period of parole ineligibility from 14 to 10 years based on fresh Gladue evidence.

The Court of Appeal dismissed the appeal, finding that the fresh evidence added little more than context and that the sentencing judge was fully alive to the appellant's difficult personal circumstances, including his aboriginal status.

The court upheld the increased period of parole ineligibility due to the brutality of the victim's slow death and the indignities perpetrated on the victim.

The appellants appealed a trial judgment finding them jointly liable for publishing a defamatory 'News Release' on the internet.

The appellant Scharf abandoned her appeal.

The appellant Paquin argued the trial judge erred in finding she participated jointly in the publication, claiming she had no control over the co-defendant's decision to publish the information.

The Court of Appeal dismissed the appeal, upholding the trial judge's finding that the appellant provided the defamatory information with the understanding and intention that it would be published, based on admissions in her statement of defence.

The appellant appealed his conviction for first degree murder, arguing the trial judge erred in instructing the jury on the common sense inference and intoxication.

The appellant admitted to causing the elderly victim's death and sexually assaulting her but claimed an alcohol-induced blackout negated the requisite intent for murder.

The Court of Appeal dismissed the appeal, finding the common sense inference was properly left to the jury and the intoxication instruction did not improperly shift the burden of proof.

The appellant appealed an order regarding spousal support and the construction of a 1994 consent judgment.

The Court of Appeal found no error in the trial judge's findings of fact, application of law, or assessment of accounting evidence.

However, based on fresh evidence admitted on appeal, the court found the trial judge's calculation of the appellant's entitlement to pension benefits fell short by $280 per month.

The court varied the order to increase support payments by $280 per month retroactively, but otherwise dismissed the appeal.

Costs were awarded to the respondent.

The appellant appealed his convictions for robbery with a firearm and other offences, and sought leave to appeal his sentence.

The Court of Appeal found that the trial judge erred in classifying an inoperable rifle without a breech bolt as a 'firearm' under the Criminal Code, as there was no evidence that parts to make it operable were available on the scene.

The convictions for robbery with a firearm were quashed and substituted with robbery with an imitation firearm.

The court dismissed the appellant's arguments regarding the admissibility of KGB statements from two witnesses.

The sentence appeal was dismissed, with the court upholding the trial judge's discretion on pre-trial custody credit.

The appellant appealed his convictions for eight firearm-related offences, arguing the convictions were unreasonable and the trial judge erred in applying the W.(D.) principles.

The appellant was arrested after police found a bag containing a firearm and ammunition in the back seat of a car he was leaning into.

The Court of Appeal dismissed the appeal, finding it was open to the trial judge to conclude based on circumstantial evidence that the bag belonged to the appellant and that he was in possession of it.

The court also found no merit in the W.(D.) ground of appeal.

The appellant appealed his conviction for possession of marijuana for the purpose of trafficking and his four-month custodial sentence.

He argued the trial judge erred in rejecting his innocent explanation for being at a grow operation, finding knowledge and control, and applying the W.D. framework.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's credibility assessment or inference of knowledge and control.

The court also found no air of reality to a newly raised public duty defence.

The sentence appeal was dismissed as the sentence was within the appropriate range and a conditional sentence was inappropriate given the appellant's prior record.

The appellant brought an action seeking rescission of a property sale and damages.

He requested a bilingual proceeding under s. 126 of the Courts of Justice Act.

On the date of the respondents' summary judgment motion, no bilingual judge was available.

The motion judge refused an adjournment, finding the appellant was using language rights to delay, and dismissed the action.

The Court of Appeal allowed the appeal, holding that the right to a bilingual proceeding is quasi-constitutional and not subject to judicial discretion to deny based on perceived abuse of process.

The matter was remitted to a bilingual judge.

The appellant brought a motion requesting that Justice Blair recuse himself from the Court of Appeal files involving the appellant.

Justice Blair dismissed the request.

The appellant then orally requested a review of Justice Blair's decision before a panel.

The panel agreed with Justice Blair's decision, found no error, and dismissed the request for review.

The appellant appealed a summary judgment ordering him to pay $424,343.09 to the respondent bank.

The appeal was heard alongside another case involving the same appellant and raised the same substantive issue: the right to a hearing before a bilingual judge under section 126 of the Courts of Justice Act.

For the reasons given in the companion case, the Court of Appeal allowed the appeal, set aside the summary judgment, and remitted the original motion to a bilingual judge of the Superior Court.