OCA 2009

The appellant was convicted of second degree murder after organizing and leading a coordinated attack on the deceased, during which an associate fatally stabbed the victim.

The appellant admitted to participating in a planned assault but argued he lacked the mens rea for murder.

On appeal, he argued the trial judge erred by instructing the jury on party liability under s. 21(2) of the Criminal Code.

The Court of Appeal dismissed the appeal, holding that s. 21(2) is applicable to render a party guilty of second degree murder where the common unlawful purpose is assault and the accused actually knew that murder would be a probable consequence.

The appellant appealed a decision declaring that the arbitration clause in its Alliance Agreement with the respondent did not require a party to file a notice of request to arbitrate with the Arbitration and Mediation Institute of Ontario to commence arbitration.

The Court of Appeal allowed the appeal, finding that the application judge erred in his interpretation of the arbitration clause.

The Court held that the standard of review for contractual interpretation in this case was correctness, and that the clear wording of the agreement required the arbitration to be conducted under the 'then-current rules' of the Institute, which mandated filing a notice with the Institute to commence proceedings.

The appellant appealed his conviction and sentence for possession of stolen property, having been acquitted of robbery and forcible confinement.

The Court of Appeal dismissed the conviction appeal, finding strong evidence that the appellant knew the machine in his possession was stolen.

However, the sentence appeal was allowed, as the trial judge erred in assuming a two-year floor for the offence.

The three-year sentence was deemed outside the appropriate range and reduced to two years less a day.

The appellant physicians, who performed cosmetic surgery without formal surgical residency, were investigated by the College of Physicians and Surgeons of Ontario for potential professional misconduct or incompetence.

The College sought to have investigators observe their surgical practices, which the appellants refused, arguing the governing legislation did not authorize compelled observation.

The Court of Appeal upheld the Divisional Court's decision, finding that the power to 'inquire into and examine the practice' under s. 76(1) of the Health Professions Procedural Code encompasses the direct observation of a member's practice, particularly to protect the public interest.

The appellant appealed his conviction for welfare fraud, arguing the trial judge erred by failing to instruct the jury that bank accounts held in trust need not be disclosed on a welfare application.

The Court of Appeal dismissed the appeal, holding that the applicable legislation authorized the municipality to request information regarding all bank accounts, including trust accounts, to determine eligibility.

The Court also noted the appellant had access to the funds and had failed to disclose other assets and income.

The appellant pleaded guilty to importing cocaine and appealed the sentence, arguing for a conditional sentence.

The Court of Appeal found that the trial judge properly considered relevant factors, including the appellant's health and guilty plea, and reasonably rejected a conditional sentence.

The appeal was dismissed.

The appellant was convicted of second-degree murder and aggravated assault after stabbing his wife and her lover.

On appeal, he argued the trial judge erred in admitting evidence of prior discreditable conduct, in instructing the jury on after-the-fact conduct, in failing to include provocation in the rolled-up instruction on intent, in responding to a jury question, and in failing to relate the evidence to the contested issues.

The Court of Appeal dismissed the appeal, finding no prejudicial errors in the trial judge's evidentiary rulings or jury instructions.

The appellant appealed his conviction for trafficking cocaine and the forfeiture order regarding his vehicle.

He argued that the trial judge erred in admitting statements made by his co-accused and in using the co-accused's post-arrest videotaped statement.

The Court of Appeal dismissed the appeal, finding that the co-accused's statements were admissible as declarations made in furtherance of a conspiracy, as they were intended to explain delivery arrangements to an undercover police officer.

The court also held that the trial judge properly used the videotaped statement solely to assess the co-accused's credibility.

The sentence appeal regarding the forfeiture order was abandoned.

The appellants' farm property was destroyed by fire.

They sued the respondent volunteer firefighters and township for negligence.

The trial judge found the respondents breached a professional standard by failing to conduct an adequate size-up of the fire scene, but dismissed the action, concluding their fire attack plan was reasonable and the destruction was inevitable.

The Court of Appeal allowed the appeal and ordered a new trial, finding the trial judge's conclusions on breach and reasonableness were contradictory, and his causation analysis was materially incomplete because it relied on a theory of inevitability whose factual foundation was disproven at trial.

The appellant appealed a trial judgment concerning spousal support, property provisions of an agreement, custody, failure to grant a divorce, division of equity in the matrimonial home, and costs.

The respondent conceded the issues regarding the divorce order and the deduction of the existing mortgage from the matrimonial home equity.

The Court of Appeal granted the divorce and amended the property order accordingly.

The remainder of the appeal was dismissed, as the trial judge's decisions on spousal support, repudiation of the property agreement, and custody were supported by the evidence.

The appellants appealed a jury's damages award, arguing it was plainly unreasonable and unjust.

The Court of Appeal dismissed the appeal, finding that the $250,000 general damages award, while generous, was supported by evidence of the devastating impact the injuries had on the respondent's life, including his inability to work, bankruptcy, and marriage breakdown.

The court also upheld the future loss of income award and found no error in the trial judge's decision not to instruct the jury on the cap on general damages.

The appellants, former directors and officers, sought a declaration that their insurer was obligated to pay 90 or 100 per cent of their defence costs for civil and regulatory proceedings arising from conduct in 2001 and 2003.

The insurer had been paying 50 per cent, arguing the policy only covered the 2001 conduct.

The application judge dismissed the application.

On appeal, the Court of Appeal found the policy's allocation provisions ambiguous when read with the definition of 'Loss'.

Because the factual record was insufficient to resolve the ambiguity or determine if the doctrine of contra proferentem applied, the Court allowed the appeal and directed a new hearing on the allocation issue.

The appellant was injured in a three-car collision in 2003.

She commenced an action against one driver in 2005 and later obtained an order to add the other driver and owner as defendants in 2007.

The motion judge granted summary judgment dismissing the action against the added defendants because the two-year limitation period had expired.

The Court of Appeal dismissed the appeal, finding no genuine issue for trial as the appellant had all necessary information to discover her claim against the added defendants by June 2005 at the latest.

The bankrupt company's creditors appealed an order dismissing their motion under s. 135(5) of the Bankruptcy and Insolvency Act to challenge a proof of claim filed by a judgment creditor.

The proof of claim was based on a Singapore judgment.

The creditors argued that the judgment creditor received payments from a third party that should be set off against the judgment debt to prevent double recovery.

The Court of Appeal dismissed the appeal, holding that the creditors did not have an unqualified right to challenge a valid judgment debt under s. 135(5).

The court further held that the creditors were privies of the bankrupt company and were barred by the doctrine of res judicata from re-litigating the mitigation and set-off issues, which had already been determined in the Singapore proceedings.

The appellants challenged the City of Toronto's new municipal limousine licensing scheme, arguing the City exceeded its statutory authority and that specific provisions were arbitrary, unreasonable, and illegal.

The Court of Appeal upheld the application judge's dismissal of the challenge.

The Court found that the City had broad authority under the City of Toronto Act, 2006 to enact the by-laws, and there was no evidence of bad faith.

Furthermore, the impugned provisions, including a minimum fare requirement and vehicle ratio requirements, were rationally connected to legitimate municipal objectives such as consumer protection and regulating competition between the taxicab and limousine industries.

In a CCAA proceeding, the appellant purchased the debtor's assets, including a spray booth, pursuant to a vesting order.

When the appellant attempted to remove the equipment, the landlord claimed ownership under the lease.

The motion judge ruled in favour of the landlord, finding the debtor had no title to transfer.

The Court of Appeal allowed the appeal, holding that the motion judge's decision created two inconsistent court orders and constituted an impermissible collateral attack on the vesting order, which had not been set aside or varied.

The applicant sought leave to appeal a summary conviction appeal court decision regarding whether a police officer had reasonable and probable grounds to make a breath demand.

The Court of Appeal refused leave, noting that appeals under s. 839(1) of the Criminal Code are confined to questions of law alone.

The court found the proposed ground was essentially a question of fact, did not raise issues of significance to the general administration of criminal justice, and was devoid of merit.

The appellants, members of the Hells Angels, were convicted of extortion and extortion in association with a criminal organization after threatening a victim over an alleged debt while wearing club colours.

They appealed their convictions, arguing that the criminal organization provisions of the Criminal Code are unconstitutionally vague and overbroad.

The Court of Appeal dismissed the appeal, finding that the terms 'facilitation' and 'in association with' are well-understood and not impermissibly vague or overbroad.

The court also upheld the trial judge's finding that the appellants deliberately invoked their membership in the organization to inspire fear, and affirmed the sentence imposed.

The moving parties, two individual defendants, brought a motion to strike a notice of cross-appeal delivered by the respondents.

The moving parties argued that because they had not appealed the trial judgment and the cross-appeal raised issues unrelated to the main appeal brought by other defendants, the respondents were required to commence a fresh appeal rather than a cross-appeal.

The motion judge dismissed the motion, holding that Rule 61.07 of the Rules of Civil Procedure is broad enough to permit a cross-appeal even where the issues and parties differ from those in the main appeal.

Following a successful appeal, the appellant police service sought costs of over $90,000.

The Court of Appeal awarded the appellant $20,000 for the costs of the underlying application.

However, the court found the requested appeal costs unreasonable, noting the appeal involved novel issues that the appellant had an institutional interest in resolving.

The court fixed the appeal costs at $25,000, payable by the respondent.

No costs were ordered for or against the interveners.