OCA 2008

The appellant appealed his convictions for assault, assault with a weapon, and uttering a death threat against his wife, primarily arguing ineffective assistance of trial counsel.

The appellant alleged that his trial counsel lacked legal knowledge, failed to adduce helpful evidence, and was suspended from practice by the Law Society during the trial.

The Court of Appeal applied the G.D.B. test and found that while trial counsel's performance was deficient in some respects and his suspension was a matter of serious concern, the appellant failed to demonstrate that the incompetence resulted in a miscarriage of justice or an unreliable verdict.

The appeal was dismissed.

The appellants purchased a fan manufactured by the respondent and installed it in their home.

Thirteen years later, the fan overheated and caused a fire, resulting in agreed damages of $179,000.

The trial judge dismissed the appellants' negligence action, finding no breach of a duty to warn.

On appeal, the Court of Appeal upheld the dismissal, noting the appellants led no evidence regarding the standard of care for warnings in 1985, nor did they establish they would have acted differently had a warning been provided.

The appellants appealed their convictions.

The Crown conceded that the trial judge erred in foreclosing the appellants from challenging the factual underpinnings of the counselling to commit murder charges for which the appellant Vanderheyden stood convicted.

The Court of Appeal agreed, noting that the counselling convictions provided a significant boost to the credibility of two unsavoury witnesses.

The court found that the curative proviso could not be applied, as it could not be satisfied that Vanderheyden would not have testified had the trial judge ruled differently.

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

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

The Court of Appeal agreed with the decision of the lower court and dismissed the appeal.

The appellant appealed a Divisional Court order that modified a motion judge's order regarding her transportation and accommodation costs for travelling to Windsor.

The Court of Appeal refused to admit fresh evidence as it related to issues not in play.

The Court dismissed the appeal, finding no basis to interfere with the Divisional Court's modification, which appropriately established a mechanism for judicial review of the appellant's expenses rather than leaving them open-ended.

The appellant appealed a summary judgment dismissing his claim for damages against the respondents for breach of contract.

The appellant had an agreement with the deceased respondent granting him an option to purchase a valuable painting upon the deceased's death.

The deceased sold the painting before his death, breaching the contract.

The motion judge dismissed the claim on the basis that the appellant failed to prove he had the financial means to exercise the option.

The Court of Appeal allowed the appeal, finding that the motion judge erred by assuming the role of a trial judge and that there were genuine issues for trial, including the proper option price and whether the appellant needed to show he had the means to purchase the painting.

The parties were involved in an optometry practice that dissolved following the death of one of the partners.

After a 29-day trial, the trial judge found that an 'income partnership' existed, awarded damages for defamation, and made a no costs order.

Both parties appealed.

The Court of Appeal dismissed the appeal and cross-appeal, finding no error in the trial judge's conclusions regarding the nature of the partnership, the defamation findings, or the costs order.

The appellant appealed a summary judgment dismissing his counterclaim for defamation and his cross-motion to amend his statement of defence to include equitable set-off.

The Court of Appeal upheld the motion judge's finding that the appellant was required to provide notice under s. 5(1) of the Libel and Slander Act before delivering his counterclaim, as the damages claimed related to republication in newspapers.

The court also agreed that the proposed amendment for equitable set-off would have no practical consequence and the requirements for it were not met.

The appeal was dismissed with costs.

The appellant was convicted of perjury for swearing under oath that he was licensed to practice law in the State of New York.

At trial, the Crown relied on a business record from the New York State Unified Court System showing no record of the appellant.

On appeal, the appellant argued that the evidence only established he was not registered to practice in state courts, not federal courts in New York.

The Court of Appeal agreed that the charge as framed in the indictment was not established by the evidence and declined the Crown's request to amend the indictment.

The appeal was allowed and an acquittal entered.

The appellant was convicted of importing cocaine and sentenced to five years and four months imprisonment.

Following the verdict, a juror approached court officers expressing fear of retaliation from other jurors.

The trial judge held a brief recorded meeting with the officers in the absence of the accused and counsel, later providing them with the transcript.

On appeal, the appellant argued this violated her right to be present at her trial under s. 650(1) of the Criminal Code.

The Court of Appeal dismissed the appeal, finding the initial meeting was not part of the trial and the trial judge acted appropriately.

The Court also rejected arguments regarding fresh evidence of jury impropriety, evidence of impecuniosity, jury instructions, and the sentence imposed.

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

On consent of the parties, the Court of Appeal allowed the appeal to the extent that the statement of defence and counter-claim were reinstated, with no order as to costs.

The appellants appealed an order of the motions judge which concluded that there was no real and substantial connection to support jurisdiction and that jurisdiction should be declined on the ground of forum non conveniens.

The Court of Appeal dismissed the appeal, agreeing with the motions judge's cogent and persuasive reasons and finding no grounds to interfere with the result.

The appellant appealed his sentence.

The Crown conceded that the trial judge erred by failing to give the usual 2-to-1 enhanced credit for pre-trial custody, which the trial Crown had not opposed.

The Court of Appeal agreed, allowed the appeal in part, and reduced the sentence to time served.

The court also clarified that the restitution order did not provide for restitution to the James Estate and found no other errors.

The appellant appealed his conviction and sentence for a sophisticated crime.

He argued the trial judge erred in identifying him and in refusing to grant a conditional sentence.

The Court of Appeal dismissed the appeal, finding ample evidence to support the identification and noting the appellant's long criminal record and leadership role in the offence justified the sentence.

The appellant appealed a decision granting relief to the individual respondents regarding subpoenas issued in relation to proceedings under the Trespass to Property Act.

The Court of Appeal dismissed the appeal, finding the appellant failed to establish that the respondents had material evidence to give.

The Court also rejected allegations of Crown misconduct as a basis for a stay of proceedings, noting the Crown took no position on the subpoenas.

No costs were awarded on the appeal.

The appellant appealed an order regarding the care of her children, arguing that her trial counsel was incompetent for conceding that her son was in need of protection.

The Court of Appeal upheld the lower court's finding that counsel was not incompetent given the substantial medical evidence, and that no miscarriage of justice occurred.

The court also found no error in the decision not to place the other child in the appellant's care.

The appeal was dismissed.

The Workplace Safety and Insurance Appeals Tribunal decided that employer contributions to an injured worker's health, welfare, and pension benefit plan were not 'earnings' under the Workplace Safety and Insurance Act, 1997.

The Divisional Court quashed this decision, finding it patently unreasonable because the Tribunal failed to consider the legislative history of the definition of earnings.

The Court of Appeal allowed the Tribunal's appeal, holding that the Tribunal was bound to apply the Board's operational policy, which did not include such contributions as earnings.

The Tribunal's decision was rational and entitled to deference, and the failure to consider legislative history did not constitute a reviewable legal error.

The appellant challenged the constitutionality of Ontario's ban on pit bulls under the Dog Owners' Liability Act, arguing the law was overbroad and vague under s. 7 of the Charter, and that a provision allowing a veterinarian's certificate as proof of breed violated the presumption of innocence under s. 11(d).

The application judge upheld the ban but struck down parts of the definition and the certificate provision.

On appeal, the Court of Appeal dismissed the appellant's appeal and allowed the Attorney General's cross-appeal, restoring the struck provisions.

The Court held the ban was not grossly disproportionate to the risk posed by pit bulls, the definition was not unconstitutionally vague, and the certificate provision did not create a mandatory presumption of guilt.

The appellant was convicted of fraud over $5000 after taking $90,000 from an elderly complainant under the guise of real estate investments.

On appeal, the appellant argued the trial judge failed to properly caution the jury about the dangers of relying on the complainant's testimony, given her prior inconsistent statements at the preliminary hearing.

The Court of Appeal dismissed the appeal, finding the trial judge's instructions on credibility and prior inconsistent statements were adequate and a Vetrovec warning was not required.

The respondent was acquitted of sexual assault after the trial judge found he was in a state of non-mental disorder automatism (sexsomnia) at the time of the offence.

The Crown appealed, arguing the condition should have been classified as a mental disorder leading to a not criminally responsible (NCR) verdict.

The Court of Appeal allowed the appeal, finding the trial judge erred in applying the legal standard for disease of the mind by failing to properly consider the risk of recurrence and the internal causes of the condition.

Concluding it lacked jurisdiction to substitute an NCR verdict on an appeal from an acquittal, the Court ordered a new trial limited to determining whether the automatism should result in an acquittal or an NCR verdict.