OCA 2008

The appellant insurance company appealed an order regarding the interpretation of an insurance policy.

The Court of Appeal dismissed the appeal, finding that clause 14 of the policy was at best ambiguous.

Applying the contra proferentem rule, the court interpreted the clause in favour of the respondent insured and awarded costs of the appeal.

The appellant pleaded guilty to nine counts of theft related to his role as the mastermind of a scheme where younger individuals stole motor boats and construction equipment valued at approximately $65,000.

He appealed his sentence of imprisonment, arguing the sentencing judge failed to adequately explain why a conditional sentence was not warranted.

The Court of Appeal dismissed the appeal, finding the sentence was within the appropriate range and the sentencing judge gave cogent reasons emphasizing denunciation for the planned and well-developed scheme.

The appellant appealed a trial judge's order that varied his access to his children.

Following the initial trial judgment, the respondent sought a further hearing due to the appellant's inappropriate conduct during his first visit.

The appellant requested an adjournment but left the courthouse, and the trial judge proceeded in his absence, ordering no access except by further court order.

The Court of Appeal found no error in the trial judge's decision to proceed or to vary the order, noting the appellant could have applied to the trial court to regain access but failed to do so.

The appeal was dismissed.

The deceased was the sole owner of one life insurance policy and the joint owner, with his wife, of a second policy.

He made inadequate provision for his dependant children.

The children applied for dependants' relief under the Succession Law Reform Act.

The Court of Appeal held that the jointly-owned policy was not caught by s. 72(1)(f) of the SLRA and therefore did not form part of the deceased's estate for the purpose of dependants' relief.

The court also upheld the applications judge's decision to charge the proceeds of the solely-owned policy for the support of the dependant children.

The appellant father appealed a trial judgment awarding increased child support for his two daughters, arguing procedural unfairness and errors in quantum.

He contended that the trial judge should not have awarded Guidelines support without a formal application and that the children should support their own university education through employment and loans.

The Court of Appeal dismissed the appeal, finding no procedural prejudice as the appellant was aware of the issues and had examined the children at trial.

The Court also upheld the quantum of support, noting the trial judge properly accounted for the children's earnings and the terms of the parties' separation agreement.

The appellant appealed an order of the Superior Court of Justice declaring him a vexatious litigant.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the appellant demonstrated a pattern of behaviour falling squarely within the criteria for a vexatious litigant set out in Lang Michener v. Fabian.

Costs of $10,000 were awarded to the respondent.

The appellants purchased property under an agreement that required them to pay a bonus if they obtained a density increase in 'final form'.

The municipality approved an Official Plan Amendment increasing the density, but the implementing zoning by-law included a holding provision under s 36 of the Planning Act.

The appellants argued the bonus was not payable until the hold was removed.

The Court of Appeal upheld the summary judgment for the respondents, finding the agreement unambiguous and that the density increase was granted in final form when the Official Plan Amendment was approved, regardless of implementation issues.

The appellants appealed a Divisional Court decision dismissing their application to direct the Commissioner of the Cornwall Public Inquiry to state a case regarding his jurisdiction to hear certain evidence.

The Commissioner had ruled he had jurisdiction to hear evidence from a complainant regarding a recent sexual assault by teenagers and the subsequent police investigation.

The Court of Appeal allowed the appeal, finding that the Commissioner committed a jurisdictional error by misconstruing the Order in Council that established his mandate.

The Court held that the inquiry's subject matter was limited to historical sexual abuse of young people by persons in authority or positions of trust, and the proposed evidence fell outside this scope and was not reasonably relevant.

The appellants appealed a jury verdict regarding an insurance claim for fire damage.

The jury had heard expert evidence from the respondent's electrical engineer that the building's permanent wiring was not the cause of the fire, and that the fire was likely caused by shoddy electrical wiring used for a marijuana grow operation.

The Court of Appeal dismissed the appeal, finding there was evidence upon which the jury could reasonably reach its verdict.

The appellant mother appealed a Superior Court decision that overturned an Ontario Court of Justice placement order returning her twin boys to her care.

The children had suffered severe physical abuse by their father shortly after birth.

The Court of Appeal found that the appeal judge erred by conducting a de novo review and substituting his own factual findings without identifying a palpable and overriding error.

However, the Court of Appeal also found that the original placement judge failed to consider critical evidence regarding the mother's awareness of the abuse and failed to assess the risk of future harm.

The appeal was allowed, but a new placement hearing was ordered.

The appellants appealed a partial summary judgment granted by the motion judge in a franchise dispute.

The Court of Appeal found no error in the motion judge's decision, noting the evidence in the record and the absence of any contrary explanation from the franchisor.

The appeal was dismissed with costs.

The applicant, a status Indian and member of Couchiching First Nation, sought leave to appeal his convictions under the Public Lands Act for building a cabin without a work permit and contrary to a stop work order.

He argued the cabin was built in furtherance of his treaty right to hunt and fish, challenged the constitutionality of the Act, and alleged a reasonable apprehension of bias due to the justice of the peace's relationship with a Ministry of Natural Resources manager.

The Court of Appeal dismissed the motion for leave, finding that the determination of treaty rights is a question of law, the applicant failed to prove the cabin was reasonably incidental to his rights, he could not challenge the regulatory regime without establishing a right, and the high threshold for disqualifying bias was not met.

The defendant municipality appealed a trial judgment finding it grossly negligent for failing to sand an icy sidewalk, resulting in the plaintiff's injuries.

The municipality also appealed the admission of expert evidence and the award of pre-judgment interest on future loss of competitive advantage.

The plaintiffs cross-appealed on damages and costs.

The Court of Appeal upheld the finding of gross negligence, noting the municipality failed to follow its own winter maintenance policy.

The court allowed the appeal in part to set aside pre-judgment interest on future pecuniary loss, and allowed the cross-appeal in part to award interest on out-of-pocket expenses.

The appellant father appealed a finding that his child was in need of protection.

The Court of Appeal dismissed the appeal, holding that the finding was supported by the record and not tainted by materials solely admissible at the disposition stage.

The Court clarified that the judge hearing the disposition stage would not be bound by certain statements in the lower court's reasons concerning the necessity for court intervention.

The appellant golf club appealed a trial judgment, relying on an exclusion of liability printed on a greens fee ticket.

The Court of Appeal dismissed the appeal, finding that the appellant failed to take reasonable steps to bring the exclusion to the respondent's attention as required by section 5(3) of the Occupiers Liability Act.

The court also found no palpable or overriding error in the trial judge's treatment of expert evidence, as the expert had not considered certain facts accepted by the trial judge.

The appellant appealed a disposition of the Ontario Review Board, arguing the Board erred in its treatment of an impugned letter contained in his hospital records.

The Court of Appeal dismissed the appeal, finding that the Board properly admitted the letter as part of the hospital records without using it for the truth of its contents, and that the Board's decision was reasonable on the totality of the evidence.

The appellant, a long-term offender, was convicted of breaching a condition of his long-term supervision order that required him to report any relationships entered into with females.

He had engaged in a 90-minute conversation with a woman at a laundromat and gave her his phone number, which he did not report to his supervisor.

On appeal, the Court of Appeal held that the condition was meant to capture relationships with some mutual level of involvement, not casual encounters or unsuccessful attempts to initiate a relationship.

The appeal was allowed and an acquittal entered.

The mother travelled to Ontario from Florida with the parties' child and subsequently refused to return.

The father commenced a Hague Convention application for the child's return eight months later.

The motion judge dismissed the application, finding the father had acquiesced to the retention due to his delay.

The Court of Appeal allowed the father's appeal, holding that an eight-month delay within the one-year window provided by Article 12 of the Hague Convention does not constitute clear and cogent evidence of unequivocal acquiescence under Article 13(a).

The child was ordered to be returned to Florida.

The respondent was charged under s. 106(6) of the Highway Traffic Act for driving with a child passenger who was not wearing a seat belt.

The trial judge convicted the respondent, finding the offence to be one of absolute liability.

The summary conviction appeal judge allowed the appeal, holding that it was a strict liability offence and remitted the matter for consideration of a due diligence defence.

The Court of Appeal dismissed the Crown's appeal, applying the Sault Ste.

Marie framework to conclude that the offence is one of strict liability, allowing for a defence of due diligence.

The appellant was convicted of first-degree murder based on a DNA match from a saliva sample he provided to police while on post-release supervision.

On appeal, he argued that the trial judge erred by applying the balance of probabilities standard to determine whether he voluntarily consented to providing the sample, asserting that the common law confessions rule standard of proof beyond a reasonable doubt should apply.

The Court of Appeal dismissed the appeal, holding that the common law confessions rule is confined to statements due to reliability concerns, and the balance of probabilities standard remains appropriate for assessing consent to bodily samples.