OCA 2008

The appellant insurer sought to preserve the evidence of three experts regarding the cause of an infant's injuries before an action was commenced.

A previous application was dismissed because Rule 36.01 did not allow for preservation of evidence prior to the commencement of a proceeding.

Following an amendment to Rule 36.01 that expanded the definition of a party, the insurer brought a new motion.

The motion judge dismissed it on the basis of res judicata.

The Court of Appeal allowed the appeal, holding that the change in the law constituted special circumstances justifying an exception to res judicata.

The court ordered the examination of two experts who had examined the vehicle, but not the expert who only reviewed medical records.

The appellant appealed his convictions for arson endangering life and causing damage by fire to a dwelling house with intent to defraud, as well as his sentence.

The Court of Appeal dismissed the appeal regarding the arson endangering life conviction, finding no error in the trial judge's application of the reasonable doubt standard or treatment of after-the-fact conduct.

However, the court allowed the appeal on the intent to defraud count, as the trial judge failed to find the appellant had the requisite intent when causing the fire, and ordered a new trial on that count.

The sentence appeal was dismissed, with the court upholding the custodial sentence based on general deterrence.

The accused was convicted of sexual assault following a jury trial where he did not testify.

During the closing address, Crown counsel commented that the complainant's evidence was uncontradicted and explicitly noted that the accused did not testify and therefore could not be asked what he thought at the time.

The trial judge dismissed a mistrial application.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the Crown's remarks violated both the letter and spirit of s. 4(6) of the Canada Evidence Act by pointedly drawing the jury's attention to the accused's failure to testify and inviting an adverse inference.

The appellant appealed two orders: one dismissing his motion to vary child and spousal support, and another directing that support arrears be paid to the Family Responsibility Office from the proceeds of a property sale.

The Court of Appeal dismissed both appeals, finding that the variation motion was an abuse of process attempting to relitigate previously dismissed claims, and that the arrears order was based on uncontroverted evidence and had been consented to by the appellant's agent.

Costs were awarded to the respondent.

The Crown appealed a one-year conditional sentence imposed on the respondent for aggravated sexual assault.

The respondent, who was HIV-positive, engaged in unprotected sexual intercourse with his girlfriend on two occasions without disclosing his status.

The Court of Appeal found that the sentencing judge erred in imposing a conditional sentence, as it failed to reflect the gravity of the offence, the breach of trust, and the principles of denunciation and deterrence.

The court held that aggravated sexual assault involving HIV non-disclosure generally requires a custodial term.

The appeal was allowed, and the sentence was varied to 12 months' incarceration followed by three years' probation, accounting for time served.

The appellant appealed his convictions for sexual assault and incest against his daughter.

He argued that the information was unsworn, that his Charter rights were violated because his DNA was not in the national databank prior to conviction, and that the trial judge erred in appreciating the evidence.

The Court of Appeal dismissed the appeal, finding no merit in the procedural or Charter arguments and concluding there was ample evidence to support the convictions.

The appellant appealed his convictions for three counts of sexual assault and his sentence of three years' imprisonment.

The Court of Appeal found that the trial judge erred in her credibility assessment by transferring findings from an admitted assault charge to the disputed sexual assault charges without explanation, ignoring key evidence such as a letter written by the complainant, and failing to properly apply the W.(D.) test.

The appeal was allowed, a new trial was ordered for the sexual assault charges, and the sentence for the remaining assault and criminal harassment convictions was reduced to time served.

The young person appealed their conviction for robbery, arguing the trial judge erred in relying on a witness's prior statement to police identifying them as a participant, and in giving weight to the fact that they absconded during the trial.

The Court of Appeal dismissed the appeal, finding it was open to the trial judge to conclude the witness had generally adopted the truth of the police statement, and there was no error in considering the absconding.

The applicant sought leave to appeal his convictions under the Highway Traffic Act and Compulsory Automobile Insurance Act arising from a collision with a train.

The appeal judge had dismissed his appeal, erroneously stating he lacked jurisdiction to hear Charter arguments.

The Court of Appeal acknowledged the error but denied leave to appeal, finding that the applicant's Charter arguments regarding unreasonable delay, fair trial rights, self-incrimination, and double jeopardy had no arguable chance of success.

The appellant appealed his conviction for aggravated assault following an altercation outside a bar.

The central issue at trial was identity, resting almost entirely on the evidence of an eyewitness.

The appellant argued the trial judge erred in analyzing the identification evidence, pointing to discrepancies in hair colour and height.

The Court of Appeal dismissed the appeal, finding the trial judge was fully alive to the potential frailties in the identification evidence and reasonably concluded the Crown had proved its case beyond a reasonable doubt.

The Director appealed an order striking a committal provision from a temporary default order.

The Court of Appeal dismissed the appeal but confirmed that under s. 41(14) and 41(10) of the Family Responsibility and Support Arrears Enforcement Act, 1996, a court has the power to make a temporary order for support payments that includes a term directing the imprisonment of the payor upon failure to comply.

The Court emphasized that this power should be exercised cautiously and outlined procedural fairness requirements for unrepresented payors facing potential committal.

The appellant appealed his conviction and sentence, arguing the trial judge misapprehended the evidence of a witness, erred in finding the possible source of a burn, and failed to properly apply the W.D. test.

The Court of Appeal found no material misapprehension of evidence, held the trial judge was entitled to draw conclusions about the burn based on common experience, and found no error in the application of the W.D. test.

The sentence appeal was abandoned, and the appeal was dismissed.

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

The appellant abandoned his claim for Wallace damages against one of the respondents.

The Court of Appeal found that the facts pleaded did not support a claim for punitive damages against that respondent.

The Court also refused to grant leave to amend the statement of claim to plead negligent investigation, as there was no evidence the appellant was dismissed due to such an investigation.

The appeal was dismissed with costs.

The appellant appealed his conviction for unlawful confinement, raising four issues including the admission of out-of-court videotaped statements, eyewitness identification frailties, failure to establish the elements of the offence, and the trial judge's treatment of a witness's testimony.

The Court of Appeal dismissed the appeal, finding no reversible error in the admission of the statements under the Khelawon threshold reliability test.

The court also upheld the trial judge's acceptance of the eyewitness identification and his decision to accept the witness's evidence in chief over cross-examination due to the appellant's outburst in court.

The appellant appealed the 14-year period of parole ineligibility imposed following his conviction for second-degree murder.

The appellant argued that the trial judge erred in describing the location of the murder, improperly treated his sexual promiscuity as an aggravating factor, and failed to consider mitigating factors.

The Court of Appeal found no errors in the trial judge's thorough reasons, noting the murder was brutal and the sentence was within the appropriate range.

Although the Court commended the appellant's rehabilitative efforts presented as fresh evidence, it found no basis to interfere with the sentence.

The appeal was dismissed.

The appellant appealed from a decision of a summary conviction appeal judge, arguing that the judge failed to apply the appropriate level of scrutiny to the trial judge's reasons.

The Court of Appeal dismissed the appeal, finding that the summary conviction appeal judge properly examined the trial judge's reasons in conjunction with the evidence and correctly concluded there was evidence to support the findings.

The appellant appealed his conviction and sentence for a serious weapons offence involving a loaded handgun.

He argued that his investigative detention violated his rights under sections 8 and 9 of the Charter.

The Court of Appeal dismissed the conviction appeal, finding the trial judge correctly concluded that reasonable grounds for detention existed based on reliable confidential information corroborated by surveillance.

The sentence appeal was also dismissed, as the sentence was not demonstrably unfit given the prevalence of handgun crimes in the community.

The appellant appealed his conviction for enticing a person under 14 years of age and his subsequent designation as a dangerous offender.

The appellant argued the trial judge erred in finding the actus reus and mens rea of the offence, specifically regarding the element of 'enticing' and the subjective intent to deprive a parent of possession.

On the sentence appeal, the appellant challenged the finding that the predicate offence was a serious personal injury offence, the admission of evidence regarding prior acquitted conduct, and the dangerous offender designation over a long-term offender designation.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no error in the trial judge's assessment of the evidence, the application of the legal elements, or the conclusion that the appellant's psychopathy and pedophilia posed an ongoing danger requiring an indeterminate sentence.

The appellants appealed an order refusing to set aside a consent order.

The Court of Appeal allowed the appeal, finding the motion judge erred in principle by holding her discretion was circumscribed by the factors in Chitel v. Rothbart.

The Court held the discretion is broader and should be exercised to achieve the justice of the case, noting reasonable grounds to question the default judgment and that funds were available before the return date of the motion.

The respondents originally brought an application for an oppression remedy under the Condominium Act, which was converted into an action by a consent order.

Years later, without delivering a statement of claim, the respondents returned the matter to a motion judge, seeking substantive monetary relief and alleging contempt.

The motion judge granted the monetary relief.

The Court of Appeal allowed the appeal, holding that the motion judge lacked jurisdiction to grant substantive relief on a motion since the application had been converted to an action, and the relief could not be justified as a remedy for contempt.