OCA 2009

The appellant appealed a decision of the motion judge granting summary judgment and dismissing the action.

The Court of Appeal found no error in the motion judge's decision and dismissed the appeal, awarding costs to the respondent in the amount of $6,000.

The plaintiff brought a class action against Health Canada for negligent regulation of a jaw implant device, limiting her claim to damages attributable to Health Canada's proportionate degree of fault.

The defendant brought a third-party claim against the dental surgeon and hospital for contribution and indemnity.

The Court of Appeal upheld the dismissal of the third-party claim, confirming that because the plaintiff limited her claim to the defendant's several liability, the defendant had no right to contribution.

The Court also clarified that fault can be apportioned against non-parties under the Negligence Act.

The appellant mother appealed an order striking her pleadings and granting final sole custody of the parties' two young children to the respondent father.

The motion judge had struck the mother's pleadings due to her repeated failure to comply with interim orders requiring her to return the children from Quebec to Ontario.

The Court of Appeal allowed the appeal, finding that while the motion judge had the power to strike the pleadings, it was a material error to make a final custody order without sufficient evidence to determine the best interests of the children under section 24 of the Children's Law Reform Act.

The matter was remitted for an expedited determination of custody and access.

The appellant appealed his convictions and sentence for sexual assault and sexual interference involving a seven-year-old child.

He argued the trial judge applied uneven scrutiny to the evidence and erred by taking judicial notice of DNA properties when concluding that the absence of his DNA on the complainant did not raise a reasonable doubt.

The Court of Appeal found no error in the trial judge's credibility assessments.

While the trial judge did err by taking judicial notice of DNA persistence without expert evidence, the Court applied the curative proviso, finding the error harmless given the overwhelming credibility findings.

The sentence appeal was also dismissed, as the trial judge properly considered the neighbour relationship as a low-end breach of trust.

The Law Society and the respondent lawyer brought separate appeals from a Divisional Court decision that set aside a Law Society Appeal Panel's order upholding a finding of professional misconduct and disbarment.

The Divisional Court had remitted the matter to a new hearing panel due to breaches of natural justice.

The Court of Appeal dismissed both appeals.

It held that the Hearing Panel breached natural justice by refusing a brief adjournment to allow the lawyer to be represented by counsel, and by proceeding immediately to the penalty phase without adequate notice.

The Court also upheld the Divisional Court's refusal to stay the proceedings for undue delay, binding the new hearing panel to the original findings on delay up to the start of the first hearing.

The appellant, a private citizen, sought to lay an information before a justice of the peace in Toronto for offences allegedly committed in another administrative region.

The justice refused to receive the information, citing a lack of territorial jurisdiction.

The appellant's application to compel the justice to receive the information was dismissed by the Superior Court.

On appeal, the Court of Appeal held that 'territorial jurisdiction' in section 504 of the Criminal Code refers to the entire Province of Ontario, not administrative regions.

The appeal was allowed, and the justice was ordered to receive the information.

The Crown appealed a Summary Conviction Appeal Court decision that had overturned the respondent's conviction for having care or control of a motor vehicle while impaired.

The trial judge had found that there was a risk of danger because the respondent might continue her journey once her vehicle was pulled from the ditch.

The Court of Appeal held that this finding was open to the trial judge on the evidence and that the Summary Conviction Appeal Judge erred in interfering with it.

The appeal was allowed and the conviction and sentence were restored.

The appellants appealed a trial judgment declaring that a lease agreement for a municipal solid waste demonstration plant expired on January 28, 2003, and ordering the third party to indemnify the respondent municipality.

The Court of Appeal upheld the trial judge's interpretation that the automatic three-year extension was triggered when the facility first accepted waste, not when it was fully completed.

The Court also upheld the finding that the third party was bound by an indemnity undertaking contained in its proposal, which was incorporated into the agreement between its wholly-owned subsidiary and the municipality.

The appellant appealed a trial judge's finding that the parties cohabited continuously for more than three years and were "spouses" under Part III of the Family Law Act.

The appellant argued the trial judge erred in her factual findings and in her use of evidence from the respondent's psychiatrist.

The Court of Appeal dismissed the appeal, finding the trial judge applied the correct test and her findings were adequately supported by the evidence, including her conclusion that the respondent's infidelities did not negate the spousal relationship.

The respondent was injured in a motor vehicle accident and received income replacement benefits for 104 weeks.

The appellant insurer terminated the benefits, arguing the respondent did not meet the stricter test of suffering a complete inability to engage in any employment for which he was reasonably suited by education, training or experience.

The trial judge found the respondent met the test because he lacked the financial resources to train for long-haul trucking, which was identified as a suitable alternative.

The Court of Appeal allowed the appeal, holding that a job requiring no substantial upgrading or retraining is a suitable alternative, even if the insured lacks formal qualifications at the time of trial.

The appellant appealed her convictions for criminal negligence causing bodily harm and aggravated assault for transmitting HIV to her husband through unprotected sex.

She argued the trial judge misapprehended evidence regarding her belief that she was HIV-negative following a Canadian immigration medical assessment.

The Court of Appeal dismissed the conviction appeal, finding that while the trial judge misapprehended some evidence, it did not result in a miscarriage of justice.

However, the Court allowed the sentence appeal, reducing the two-year sentence by one day to preserve the appellant's right to appeal a potential deportation order under the Immigration and Refugee Protection Act.

The accused was arrested for impaired driving and advised of her right to counsel at the roadside, including the right to free legal advice 'right now'.

She declined to call a lawyer and was not re-advised of her rights upon arriving at the police station.

The trial judge convicted her, but the summary conviction appeal court allowed her appeal, finding the roadside caution misleading.

The Court of Appeal allowed the Crown's appeal and restored the conviction, holding that the use of the word 'now' properly conveys the immediacy of the right to counsel and does not require the officer to specify that the call will be made from the police station.

The appellant appealed a summary judgment granted in favour of the respondent by the Superior Court of Justice.

The Court of Appeal found no reason to disagree with the motion judge's analyses or conclusions, holding that it was an appropriate case for summary judgment.

The appeal was dismissed with costs awarded to the respondent.

Following a successful appeal that dismissed the respondent's summary judgment motion, the court determined the costs of the proceedings.

The appellants were awarded fixed costs for the appeal and partial indemnity costs in the cause for the motion.

The fourth parties were also awarded fixed costs for the appeal, while no costs were ordered for or against the third parties.

The appellant was convicted of possession of cocaine for the purpose of trafficking and sentenced to 4 months' imprisonment and 2 years' probation.

He appealed the sentence, arguing for a conditional sentence and a reduction based on time spent on bail pending appeal.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's conclusion that a conditional sentence would not provide sufficient deterrence, and noting no evidence of undue hardship or rehabilitation while on bail.

The self-represented appellants appealed the dismissal of their claim against the respondents.

The motion judge had dismissed the action as an abuse of process and for failing to disclose a reasonable cause of action.

The Court of Appeal agreed that the action was a collateral attack on an earlier proceeding.

The Court also denied the appellants' request for leave to amend their statement of claim to plead negligence and deceit, finding no viable cause of action for either.

The appeal was dismissed with costs.

The appellant, a commercial landlord, appealed his convictions for theft and mischief arising from his actions in changing the locks on a tenant's store and damaging/removing her property.

He argued he had a colour of right under the Commercial Tenancies Act, that the trial judge was in a conflict of interest, and that the charges were duplicative.

The Court of Appeal dismissed the appeal, finding no conflict of interest, that the Criminal Code applied, and that the trial judge reasonably rejected the colour of right defence based on the appellant's conduct and statements.

The appellants appealed a decision of the Superior Court of Justice regarding vicarious liability.

The Court of Appeal dismissed the appeal, noting that the issue did not need to be decided in light of the court's disposition in a companion case (C50105).

Costs were also addressed in the companion case.

The appellants appealed a decision finding that their section 7 notice was insufficient to alert the Crown to a claim of vicarious liability for persons acting under the authority of the Coroner's Office.

The Court of Appeal dismissed the appeal, agreeing with the Master that the Crown should not be left to guess its possible liability, in accordance with the principles in Mattick Estate.

The appellant purchased 88 lots from the respondent developer.

The parties disputed who was responsible for paying certain development charges to the municipality under their Agreement of Purchase and Sale.

The motion judge found the respondent was not required to pay charges due after the registration of the Plan of Subdivision, interpreting 'prerequisite' temporally.

The Court of Appeal allowed the appeal, holding that interpreting the contract as a whole required 'prerequisite' to mean an obligation to pay, giving effect to a clause permitting payment after registration.