OCA 2009

The parties separated after a 21-year traditional marriage.

The trial judge ordered the respondent to pay a $100,000 lump sum covering retroactive child support, post-secondary education expenses, retroactive spousal support, and equalization, but failed to clearly provide for ongoing spousal support.

The appellant appealed, seeking ongoing spousal support, increased contribution to post-secondary expenses, and health insurance coverage.

The Court of Appeal allowed the appeal in part, finding the appellant was economically disadvantaged by the marriage breakdown and had not yet achieved self-sufficiency.

The court ordered the respondent to pay $1,500 per month in spousal support for five years and to maintain the appellant on his health insurance and life insurance policies.

The trial judge's treatment of post-secondary expenses and the lump sum award were upheld.

The appellants, having successfully appealed a decision regarding tender documents, sought costs for the appeal and a prior stay motion.

The Crown respondents supported the appeal and sought costs for the original application.

The respondent opposed the amounts claimed as excessive and resisted the Crown's request for application costs.

The Court of Appeal awarded the appellants $30,000 in costs for the appeal and stay motion, payable by the respondent, but declined to award the Crown any costs for the original application.

The appellant appealed his conviction for sexual assault.

At trial, the central issue was whether the complainant consented.

The trial judge instructed the jury that even if the complainant consented, the appellant could be found guilty if she lacked the capacity to consent due to intoxication.

However, the trial judge refused to instruct the jury on the defence of honest but mistaken belief in consent.

The Court of Appeal held that once the trial judge introduced the issue of capacity, fairness required instructing the jury on mistaken belief in consent, especially given the substantial alcohol consumption by both parties.

The appeal was allowed and a new trial ordered.

The appellant appealed his convictions for sexual abuse of a child, arguing the trial judge erred in accepting the complainant's evidence due to inconsistencies, relying on a prior child pornography conviction, and inferring a prior denial was an attempt to protect the appellant.

The Court of Appeal dismissed the appeal, finding the trial judge appropriately evaluated the evidence, properly used the prior conviction to show sexual interest and opportunity, and reasonably inferred the complainant's prior denial was to protect the appellant given their close relationship.

The respondent sought judicial review of the Minister of Justice's failure to respond to further submissions regarding an extradition surrender order.

The respondent argued this failure violated his Charter rights and sought an interim stay of the surrender order.

The Minister moved to quash the application, arguing no judicially reviewable decision had been made.

The Court of Appeal granted the motion to quash and dismissed the application, finding that the Minister had committed to responding to the submissions and was under no statutory obligation to do so within a fixed time frame.

The appellant appealed his convictions for possessing a loaded restricted firearm and being present in a motor vehicle with a firearm.

He was arrested during a fake drug deal where he and two others intended to rob an undercover officer.

The trial judge found him guilty as a party under s. 21(2) of the Criminal Code.

The Court of Appeal upheld the finding of common intention to rob but applied the Kienapple principle to stay the less serious firearms charge.

The appellant appealed his convictions for attempted murder, pointing a firearm, and breach of recognizance, as well as his life sentence for attempted murder.

The victim was shot six times at point-blank range and paralyzed.

The appellant argued the trial judge erred in assessing the reliability of the eyewitness identification evidence, which included recognition by the victim and an independent witness.

The Court of Appeal found no error in the trial judge's exemplary assessment of the identification evidence.

The court also upheld the life sentence, finding it proportionate to the grave, unprovoked nature of the crime and the need to deter gun violence in public places.

The appellant appealed from a decision of the Superior Court dismissing his application for judicial review of a Justice of the Peace's refusal to issue process under s. 507.1 of the Criminal Code.

The appellant requested an adjournment on the basis of illness and to retain counsel, which the Court of Appeal refused, noting a history of adjournments and insufficient evidence of illness.

The Court found no error in the Superior Court judge's refusal to grant a further adjournment or in his dismissal of the judicial review application on the merits.

The appeal was dismissed.

The appellants brought an application for a stay, which was dismissed, and the appeal was stayed pending the appointment of a new trustee of the family trust.

The appointment process was subsequently resolved on consent and the appeal was abandoned.

The respondent sought costs for the stay motion.

The court awarded costs to the respondent, noting that the appellants could have achieved their desired result without bringing an unsuccessful stay application.

Costs were fixed at $15,000.

The appellants were convicted of multiple counts of fraud and laundering proceeds of crime arising from a large-scale advance fee scheme operated out of a condominium.

On appeal, they challenged the admission of evidence obtained from a search of the condominium, arguing breaches of section 8 of the Charter based on information provided to police by building management following a flood.

The Court of Appeal dismissed the conviction appeals, finding no reasonable expectation of privacy in the information and no state agency by the building staff.

The sentence appeals were also dismissed, upholding the penitentiary sentences as appropriate for large-scale fraud.

The appellants appealed a trial judgment finding them liable for injuries sustained by a 78-year-old pedestrian who fell into a construction trench on a city street.

The trial judge found the appellants negligent for failing to provide adequate warning signs or barricades to protect pedestrians from the hidden danger of the trench.

The Court of Appeal dismissed the appeal, holding that the trial judge's findings of negligence, lack of willing assumption of risk, and lack of contributory negligence were supported by the evidence and entitled to deference.

The court also dismissed the appellants' appeal on non-pecuniary damages and the respondents' cross-appeal on Family Law Act damages.

The appellant appealed his convictions for threatening, sexual assault, and assault, arguing the trial judge failed to adequately explain the rejection of his evidence and failed to apply the W.(D.) framework to the threatening charges.

The Court of Appeal dismissed the appeal, finding the trial judge's reasons, read as a whole, demonstrated she evaluated all evidence, properly applied the W.(D.) principles, and made credibility findings open to her on the evidence.

The appellant appealed his sentence, arguing that an error in the warrant of committal overstated his sentence by five months, preventing him from seeking early parole as intended by the sentencing judge.

The Crown conceded the error.

The Court of Appeal allowed the appeal and accepted a joint submission to reduce the custodial portion of the sentence to time served.

The appellant appealed his conviction, arguing errors in the trial judge's jury charge and the admission of an officer's opinion evidence.

The Court of Appeal found no reversible error in the failure to give a limiting instruction on animosity evidence, and held the jury question regarding aggravated assault and attempted murder was answered appropriately.

The appeal was dismissed.

The appellant appealed his conviction and sentence, arguing the trial judge erred in assessing the credibility of a defence witness.

The Court of Appeal held that it was open to the trial judge to conclude the witness failed to explain an important inconsistency in the evidence, and it was for the trial judge to determine the impact on credibility.

The appeal was dismissed.

The plaintiffs' medical malpractice action was dismissed at trial, but the trial judge assessed damages totalling $35,000 across multiple plaintiffs.

The plaintiffs appealed to the Divisional Court, which transferred the appeal to the Court of Appeal due to the total assessed amount exceeding its $25,000 monetary jurisdiction.

The plaintiffs moved to quash the appeal and transfer it back to the Divisional Court, arguing that each plaintiff's individual claim was under $25,000.

The Court of Appeal dismissed the motion, holding that all dismissed claims must be added together to determine the total assessed amount for the purpose of appellate jurisdiction under section 19 of the Courts of Justice Act.

The young person appealed his convictions and sentence for assault and sexual assault.

The Court of Appeal dismissed the conviction appeal, finding the trial judge properly applied the W.D. analysis and did not engage in prohibited propensity reasoning.

However, the sentence appeal was allowed.

Because a concurrent one-day adult sentence resulted in the youth serving his eight-month sentence in an adult facility—contrary to the intention of all parties—the court reduced the sentence to time served (seven months and one week).

The appellant appealed his conviction for sexual assault as a party to the offence, arguing the trial judge failed to properly caution the jury about the frailties of the complainant's evidence.

The complainant had admitted to lying to the police in two separate statements.

The Court of Appeal found that the trial judge committed a reversible error by failing to instruct the jury on the legal implications of these inconsistencies and by providing an unbalanced charge that unduly promoted the Crown's case.

The appeal was allowed and a new trial ordered.

The appellant appealed his conviction and sentence for the killing of his mother.

He raised three grounds of appeal: that the trial judge erred in dismissing a mistrial application based on a reasonable apprehension of bias after the appellant allegedly overheard the judge discussing expert evidence with a deputy; that the trial judge erred in finding the appellant failed to establish the defence of not criminally responsible; and that the sentence was unfit.

The Court of Appeal dismissed the appeal, finding that the trial judge conducted a sufficient factual inquiry regarding the bias allegation, that the weighing of conflicting medical opinions on the NCR defence was within the trial judge's exclusive province, and that the sentence was fit given the brutal nature of the killing.

The appellant appealed the judgment of Justice Andra Pollak of the Superior Court of Justice dated April 24, 2008, and the subsequent cost award.

The Court of Appeal agreed with the reasons of the lower court judge and dismissed the appeal, awarding costs to the respondent fixed at $8,000.