OCA 2009

The appellant appealed his conviction for possession of a loaded prohibited firearm found in the trunk of his car during a traffic stop.

The motion judge had ruled the search lawful, finding the appellant consented.

The Court of Appeal found the motion judge erred, as the police officer's threat to bring in a canine unit—which he had no lawful authority to do—vitiated the appellant's consent.

The appeal was allowed, the conviction set aside, and a new trial ordered to determine the admissibility of the evidence under s. 24(2) of the Charter.

Following an appeal where success was divided, the parties could not agree on the costs of the original application.

The respondent had been totally successful at first instance and was awarded $40,000.

The Court of Appeal reduced the costs award for the application to $20,000, noting that the relief ultimately obtained by the respondent was significantly less than what was originally sought, which added to the time and cost of the proceeding.

This is an addendum to an appeal book endorsement that reduced the appellant's custodial sentence to two years less a day.

The Court of Appeal ordered a further 10-week reduction to the sentence to reflect five weeks of pre-sentence custody credited on a two-for-one basis, which had been granted by the sentencing judge but inadvertently omitted from the initial appellate decision.

The appellant school board appealed a trial decision finding it liable for a proportionate share of retirement gratuities owed to teachers transferred during a school board reorganization.

The trial judge found that while the agreement between the boards did not fall under s. 135(26.1) of the Education Act, it was still a valid and enforceable agreement.

The Court of Appeal dismissed the appeal, holding that the Education Act does not preclude agreements outside of s. 135(26.1), the agreement was not vitiated by mutual mistake, and the appellant's liability was not limited to the initial estimated amount.

The appellant father appealed a trial decision awarding sole custody of their five-year-old daughter to the respondent mother.

The trial judge had found that the parties had intense conflict and no effective communication to permit co-parenting.

The Court of Appeal dismissed the appeal, finding no material error in the trial judge's application of the best interests of the child test and her conclusion that joint custody was inappropriate given the parents' inability to cooperate.

The appellant municipality appealed a declaration that the respondents had established legal non-conforming uses for outdoor storage and business operations on their agriculturally zoned lands.

The appellant argued the application judge unreasonably preferred the respondents' witness testimony over historical aerial photographs.

The Court of Appeal dismissed the appeal, finding ample evidence to support the application judge's factual findings and no palpable or overriding error.

The appellant appealed his convictions for assault, choking, uttering a threat, confining, and sexually assaulting his former partner.

The central issue at trial was credibility, with the complainant and appellant providing contradictory accounts.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the trial judge's reasons were insufficient.

The trial judge failed to explain how he resolved significant inconsistencies and improbabilities in the complainant's evidence, and failed to adequately explain why he rejected the appellant's evidence, thereby impeding the appellant's right to meaningful appellate review.

The appellant employer appealed a motion judge's decision dismissing its motion to stay the respondent employee's constructive dismissal action.

The employer argued that Michigan law governed the employment relationship and that Michigan was the more convenient forum.

The Court of Appeal dismissed the appeal, finding that the employment contract did not stipulate the governing law and that the motion judge correctly determined there was a real and substantial connection to Ontario, making it the more convenient forum.

The Crown appealed a sentence of two years' probation imposed on a young person convicted of assault causing bodily harm, which the sentencing judge designated a serious violent offence.

The young person, acting as the principal in a group assault, knocked the victim unconscious and continued to strike him, causing a broken jaw and concussion.

The Court of Appeal found the probationary term failed to reflect the proportionality principle under the Youth Criminal Justice Act.

The appeal was allowed, and a sentence of four months' open custody, two months' community supervision, and six months' probation was substituted.

The applicant appealed a committal for extradition on the basis that he was not linguistically present during the proceedings, as they were not interpreted for him.

The respondent conceded this point.

The Court of Appeal allowed the appeal, set aside the committal order, and ordered a new committal hearing, noting that under section 70(1) of the Extradition Act, the required presence of the person sought includes linguistic presence.

The appellant was bitten by the respondent's dog while canvassing door-to-door.

At trial, a jury found the appellant 100% at fault for the incident, noting he ignored warnings from the respondent and the dogs.

The appellant appealed, arguing the trial judge erred in her jury charge regarding apportionment of liability.

The Court of Appeal dismissed the appeal, finding no error in the jury instructions and concluding it was open to the jury under section 2(3) of the Dog Owner's Liability Act to find the appellant entirely at fault.

The appellant appealed his conviction for sexual assault, arguing the trial judge applied unequal scrutiny to the evidence, made unreasonable findings regarding a nurse and toxicologist, and failed to consider the complainant's motive to fabricate.

The Court of Appeal dismissed the appeal, finding the trial judge provided lengthy, careful reasons and made reasonable findings.

The Court declined the invitation to reweigh the evidence.

Following the dismissal of 42 consolidated motions for leave to appeal costs awards in 37 class actions, the respondent insurers sought costs totalling $345,349.36.

The Court of Appeal assessed the bills of costs submitted by various law firms representing the insurers.

Applying the principle that costs must be fair and reasonable rather than a strict mathematical calculation of hours times rates, the Court reduced the amounts claimed, noting that the complexity was procedural rather than legal or factual.

The Court fixed the total costs payable to the insurers at $141,645.26.

The self-represented appellant moved to review an order of a single judge of the Court of Appeal sitting in chambers.

The chambers judge had validated service of the respondent's certificate, directed that all trial evidence was necessary for the appeal, and required the appellant to order the transcripts.

The panel dismissed the motion, finding that the transcripts were indeed necessary for a full and fair hearing, but extended the deadline for the appellant to order them.

The respondent paid the appellant $112,056 in advance for hardwood flooring.

The appellant failed to deliver the product and instead applied the funds to a debt owed by a third party, claiming the third party was the respondent's agent.

The motion judge granted summary judgment to the respondent.

On appeal, the Court of Appeal upheld the decision, finding no evidence of actual or ostensible authority to support the agency claim.

The appeal was dismissed.

The parties lived in a common-law relationship for 12 years.

After separation, the respondent was awarded $996,500 for unjust enrichment based on the trial judge's blurring of the 'value received' and 'value survived' approaches to quantify her contribution to the appellant's business success.

The appellant appealed the quantification method.

The Court of Appeal allowed the appeal, holding that the trial judge erred in blurring the two approaches and that the correct method was to determine the 'value received' and perform a quantum meruit calculation.

The award was set aside and the matter remitted for a new trial on quantification.

The deceased suffered life-threatening injuries in a tobogganing accident.

A physician requested an air ambulance, but the Medical Air Transport Centre advised of a two-hour delay, leading to the deceased being transported by land ambulance and subsequently dying.

The appellants sued the Province of Ontario in negligence, alleging it failed to follow its own policy to divert a nearby air ambulance carrying a non-urgent patient.

The motion judge struck the claim, finding no private law duty of care.

The Court of Appeal allowed the appeal, holding that it was arguable a duty of care existed based on the specific interaction and the government's alleged failure to follow its established operational policy.

Matrix Integrated Solutions Limited appealed an order staying its action against Radiant Hospitality Systems Ltd. based on a forum selection clause in their Reseller Agreement.

Matrix alleged that its former employees breached fiduciary duties and that Radiant conspired with them.

The Court of Appeal held that the claims for breach of fiduciary duty and conspiracy were not contractual in nature and did not arise out of or in connection with the Reseller Agreement.

Therefore, the forum selection clause did not apply.

The appeal was allowed and the stay was set aside.

The appellant appealed a family court judgment ordering him to pay the respondent $45,920.28 for loans and $10,500 for unjust enrichment.

The appellant argued that the monies advanced were co-mingled in a joint account and lost in day trading, and that unjust enrichment could not be established given both parties' contributions to their unmarried relationship.

The Court of Appeal dismissed the appeal, finding that the trial judge's factual determinations regarding the loan and the unjust enrichment were amply supported by the evidence and entitled to deference.

The respondents brought a motion for security for costs of the appeal.

The appellant argued the issue was res judicata because a pre-trial motion for security for costs had been dismissed.

The Court of Appeal rejected the res judicata argument, noting that the circumstances before and after a trial are different.

The court found that the appellant, a foreign corporation, failed to discharge its burden of proving it lacked access to funds to post security.

The motion was granted, and the appellant was ordered to post $120,000 in security for costs.