OCA 2009

The appellant sought to introduce fresh psychiatric evidence from Dr. Gojer on appeal to argue he was unfit to stand trial, Not Criminally Responsible on account of Mental Disorder (NCRMD), or should be designated a long-term offender rather than a dangerous offender.

The Court of Appeal dismissed the appeal, finding the fresh evidence did not alter the appellant's fitness under the Taylor test, failed to establish he was incapable of knowing his acts were morally wrong under the Oommen test, and did not demonstrate he could be safely managed in the community.

The appellants, husband and wife, were convicted of second degree murder in the death of their seven-year-old son, who died following months of severe physical abuse.

On appeal, the appellants sought to introduce fresh medical evidence regarding the cause of death and challenged the trial judge's jury instructions on aiding and abetting, out-of-court statements, and propensity reasoning.

The Court of Appeal dismissed the appeals, finding that the fresh evidence did not meet the required cogency threshold to affect the verdict, particularly given the tactical decision not to call such evidence at trial.

The Court also found no reversible errors in the jury instructions or evidentiary rulings, and upheld the 18-year parole ineligibility period for the stepmother.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

The appellants were awarded costs on a partial indemnity scale for both the appeal and the proceeding below.

The costs were fixed at $45,000 for one group of appellants, $20,000 for another group, and $60,000 for a single appellant, inclusive of GST and disbursements.

The appellants appealed an order regarding the permanent placement of a child.

The Court of Appeal dismissed the appeal, finding that the appeal judge gave thorough reasons, applied the proper test, and did not misapprehend the evidence.

Given the lengthy delay and the appellants' inability to provide an alternative plan, the Court held that it was in the child's best interests to have a permanent home without further delay.

The applicant applied to reopen her appeal from a 1998 conviction for defrauding Legal Aid, which had been dismissed on its merits in 2000.

She alleged ineffective assistance of counsel and a conflict of interest involving her former junior counsel.

The Court of Appeal dismissed the application, holding that its jurisdiction to reopen an appeal is generally limited to cases not heard on the merits.

Assuming Civil Rule 59.06 could apply, the court found no merit to the applicant's allegations and no concern of a miscarriage of justice.

The self-represented appellant appealed an order striking her fresh amended pleading for failing to disclose a reasonable cause of action and failing to comply with the Rules of Civil Procedure.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the pleading was fatally deficient and could not be repaired by further amendment.

The Court also declined to admit fresh evidence, applying the Sengmueller test, as the evidence could have been adduced earlier with reasonable diligence and would not have been conclusive.

The respondents, a father and son, were convicted of arson and fraud after intentionally causing an explosion and fire at their family business to defraud an insurance company of $200,000.

The trial judge imposed conditional sentences of two years less a day.

The Crown appealed the sentences.

The Court of Appeal allowed the appeal, finding that conditional sentences are generally inappropriate for serious arson offences, especially given the planning, use of accelerants, and danger posed to adjoining occupants and firefighters.

The court substituted sentences of 12 months in custody.

The respondent condominium corporation suffered flooding due to a failed standpipe system and sought $600,000 for its replacement under an all-risk insurance policy issued by the appellant.

The application judge found the loss was covered, ruling that a water hammer event caused the damage and that section 99(3) of the Condominium Act nullified the policy's exclusion for faulty design.

The Court of Appeal allowed the insurer's appeal, holding that the standpipe system was improperly designed before the insurer came on risk, making the failure a non-fortuitous event.

The court further held that the loss fell squarely within the policy's exclusion clause and that section 99(3) did not apply because the damage was not resultant damage.

The appellant appealed a child protection decision, arguing that the agency did not provide sufficient services to assist her and enable her to keep her child.

The Court of Appeal dismissed the appeal, finding no legal or factual errors in the lower courts' conclusions that the appellant had not availed herself of the services provided and had resisted assistance.

The appellant appealed his conviction, arguing the trial judge erred in relying on the uncorroborated evidence of a single witness who had a self-interest in implicating him.

The Court of Appeal found that the trial judge was aware of the need for caution and properly weighed the witness's inconsistencies, timing of statements, and relationship with the appellant.

The court concluded the verdict was not unreasonable and dismissed the appeal.

The appellant appealed an order striking her Statement of Claim for failing to disclose a reasonable cause of action against the Crown.

The appellant argued the claim could be read as pleading negligent investigation.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the words 'negligent investigation' did not appear and no supporting facts were pleaded.

The appellants appealed their convictions for three arson-related offences.

They argued they lacked a sufficient evidentiary record and that their trial counsel provided ineffective assistance.

The Court of Appeal dismissed the appeal, noting the appellants had consented to their appellate counsel's removal and were responsible for preparing the appeal, and found no evidence to support the ineffective assistance claim.

The appellant Rogers acquired Call-Net and subsequently terminated the respondent real estate broker's services without cause.

The broker sued for commission based on a termination clause that provided for payment based on work completed.

The trial judge awarded $800,000, representing 40% of the projected commission for a 10-year lease mandate.

On appeal, Rogers argued the trial judge misinterpreted the contract's termination and compensation clauses and improperly relied on subjective intentions.

The Court of Appeal dismissed the appeal, finding the trial judge correctly interpreted the contract based on objective surrounding circumstances and the clear wording of the termination clause.

The broker's cross-appeal seeking a higher commission percentage was also dismissed.

The appellant was rendered a tetraplegic after diving into shallow water at a provincial park and striking his head.

The trial judge dismissed the action, finding the appellant was contributorily negligent, failed to prove he hit a sandbar rather than the lake bottom, and that the sandbars were not a hazard under the Occupiers' Liability Act.

The Court of Appeal allowed the appeal and ordered a new trial, finding the trial judge made fundamentally inconsistent findings on factual causation, disregarded relevant expert and eyewitness evidence, and misapprehended the evidence regarding the absence of previous injuries at the park.

The appellant appealed a decision of the motion judge in a bankruptcy and insolvency proceeding.

The Court of Appeal dismissed the appeal, declining to consider arguments that were not placed before the motion judge.

Costs were awarded to the respondents.

The Crown appealed a sentence imposed for operating a large-scale residential marijuana grow operation involving more than 1,400 plants, a hydro bypass, and theft of electricity.

The Court of Appeal held that the sentencing judge erred in principle by refusing to apply the Criminal Code and binding jurisprudence requiring consideration of general and specific deterrence, and by relying on personal views about drug policy.

The court further held that a 12-month conditional sentence followed by probation was unfit and that this was not one of the rare production cases warranting a conditional sentence.

However, because the respondent had already completely served the sentence, the appeal was dismissed in the interests of justice.

The young person appealed findings of guilt on two counts of sexual assault involving two child complainants.

The appellant argued the trial judge erred in assessing credibility, considering collusion, and applying the W.(D.) framework.

The Court of Appeal found the trial judge adequately scrutinized the evidence and properly rejected collusion.

Although the trial judge erred at the second step of the W.(D.) analysis by asking if the appellant's evidence 'could not reasonably be true', the Court applied the curative proviso, concluding the Crown's case was overwhelming and the rejected evidence could not have left a reasonable doubt.

The appeal was dismissed.

The appellant appealed his conviction, arguing that the trial judge's reasons were inadequate, the evidence did not support a finding of lack of consent, there were inconsistencies in the Crown's evidence, and the trial judge erred in finding he was in a position of trust.

The Court of Appeal dismissed the appeal, finding the trial judge's reasons sufficient, the evidence of lack of consent adequate, the treatment of inconsistencies proper, and the finding of a position of trust supported by the evidence.

The Court of Appeal issued an endorsement amending paragraph 106 of its reasons released November 26, 2009.

The amendment provides that the respondents are awarded costs of the proceeding below in the amount of $25,000 inclusive of disbursements and GST.

The aboriginal appellant appealed his sentence of 30 months' imprisonment for breaching the alcohol abstention condition of his long-term supervision order.

The appellant argued the sentence was unfit, the judge misapprehended evidence, denied enhanced pre-sentence custody credit, and failed to adequately consider his aboriginal status.

The Court of Appeal dismissed the appeal, finding that protection of the public was paramount given the appellant's history of violent offences while intoxicated, and that his aboriginal status did not warrant a reduction in this specific context.