OCA 2009

The appellant appealed his conviction and sentence.

The Court of Appeal dismissed the conviction appeal, finding the trial judge was entitled to conclude the first breath sample was taken within two hours, triggering the statutory presumption.

However, the sentence appeal was allowed because the trial judge imposed an illegal combination of a penitentiary term and three years' probation.

The sentence was varied to a reformatory term of two years less a day and three years' probation, while the lifetime driving prohibition was upheld.

The appellant appealed his conviction, arguing that the trial judge failed to fairly and fully assess his alibi defence before finding guilt based on the credibility of the Crown's case.

The Court of Appeal dismissed the appeal, finding that the trial judge carefully reviewed the alibi and provided several valid reasons for rejecting it, including the strength of the Crown's case and the appellant's failure to testify.

The appellant appealed his conviction and sentence, arguing the trial judge failed to fairly put the defence's position to the jury and erred in instructing the jury regarding the complainant's past criminal lifestyle.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's charge and recharge adequately addressed the defence theory and any concerns about the complainant's lifestyle.

The sentence appeal was also dismissed, with the court finding the sentence fit.

The appellant appealed his conviction and sentence.

The Court of Appeal dismissed the conviction appeal, finding sufficient evidence on the record to support a finding of actual knowledge or wilful blindness.

The sentence appeal was allowed in part; the custodial portion was moot as it had been served, but the restitution order was set aside on the Crown's concession.

The appellant appealed his convictions and sentence for trafficking in cocaine, possession of the proceeds of crime, offering to sell cocaine, and possession of cocaine for the purpose of trafficking.

At trial, the appellant's primary defence was mistaken identification, claiming he did not sell drugs to the undercover officer and offering exculpatory explanations for circumstantial evidence.

The Court of Appeal found no error in the trial judge's appreciation of the evidence or legal analysis, noting the trial judge's conclusions were reasonable and grounded in the evidence.

The sentence appeal was also dismissed, as the sentence was appropriate given the seriousness of the offences, the appellant's lengthy record, and the paramount considerations of denunciation and deterrence.

The appellant appealed his convictions for possession of cocaine for the purpose of trafficking and simple possession of cannabis resin, arguing that the police lacked reasonable and probable grounds to arrest him following a controlled delivery of a package containing cocaine.

The Court of Appeal found that the police had both subjective and objective reasonable grounds to arrest the appellant after he received the package and left the residence shortly after with a bag capable of carrying it.

The court upheld the trial judge's finding of no Charter breaches under sections 8 and 9.

However, the court quashed the appellant's summary conviction for simple possession of marijuana on consent, as it should not have been tried together with exclusively indictable offences.

The appellant appealed a decision confirming the downgrading of his driving licence from Class B to Class G due to a diagnosis of congestive heart failure.

The appellant argued that the decision-makers failed to consider all medical evidence and improperly applied the legislation.

The Court of Appeal dismissed the appeal, finding no error in the Tribunal's consideration of the evidence or its reliance on nationally recognized medical standards.

The appellant, a lawyer, represented the respondent Crossen in matrimonial litigation against the respondent Mirkopoulos.

Crossen terminated the retainer and settled with Mirkopoulos, with the agreement stating each party would bear their own costs.

The appellant sued both for her unpaid fees of $217,773.24, alleging collusion.

The trial judge dismissed the collusion claim but found Mirkopoulos liable in contract, reducing the fees to $50,000.

The Court of Appeal allowed Mirkopoulos's cross-appeal, finding the contract claim was not pleaded and unsupported by evidence.

The Court dismissed the appellant's appeal on the collusion claim, finding the settlement was not a secret arrangement designed to defeat the solicitor's claim.

The employer appealed a Divisional Court decision dismissing its application for judicial review of an arbitral award.

The board of arbitration had ruled that the employer's policy of random drug testing for safety-sensitive employees, absent reasonable cause, violated the collective agreement's requirement to treat employees with dignity and respect.

The Court of Appeal held that while the Divisional Court erred in applying the patent unreasonableness standard instead of reasonableness, the board's decision was reasonable.

The board did not err by referencing the 'Canadian model' of arbitral jurisprudence, nor did it improperly rely on facts outside the record or amend the collective agreement.

The appellant appealed her conviction and sentence.

She abandoned her conviction appeal, which was consequently dismissed.

Despite commending the appellant's sincere efforts at rehabilitation and addressing her drug addiction, the Court of Appeal found the original sentence to be fit and dismissed the sentence appeal.

The appellant appealed an order striking portions of its statement of claim and restricting leave to amend.

On consent, the order was amended to preserve a misrepresentation claim against two defendants.

The Court of Appeal also narrowed a restriction on amending the claim, holding that the appellant was only precluded from pleading facts that would amount to a collateral attack on a prior approval decision, rather than all facts known prior to that decision.

The appeal was otherwise dismissed, upholding the motion judge's decisions to strike references to settlement discussions and to refuse leave to amend an oppression claim.

The appellant appealed an order declaring its registered lien against the respondent's equipment invalid.

The respondent had leased equipment to a related company of the appellant under an agreement that expressly prohibited the creation of any liens without prior written consent.

The appellant, knowing of this prohibition, performed work on the equipment and registered a lien under the Repair and Storage Liens Act.

The Court of Appeal dismissed the appeal, finding that the appellant knew of the prohibition, the respondent did not consent to the lien, and the contractual prohibition applied to all types of liens, including those under the Act.

The appellant appealed his robbery conviction, arguing his s. 10(b) Charter right to counsel was violated when police questioned him after he asked to speak to a specific lawyer.

The trial judge found the appellant was eager to tell his story and only wanted to ensure his lawyer was available for his bail hearing the next day.

The Court of Appeal upheld the trial judge's findings, concluding the appellant was not interested in consulting counsel before speaking to the police and therefore his rights were not violated.

The appeal was dismissed.

The plaintiffs appealed a Divisional Court decision that restored a master's order requiring them to post security for costs.

The Court of Appeal dismissed the appeal, confirming that the standard of review on an appeal from a master is the same as from a judge, as set out in Housen v. Nikolaisen.

The court found no basis to interfere with the master's analysis of the evidence or application of principles regarding security for costs.

The appellants appealed a judgment finding them in breach of a vehicle lease for failing to maintain insurance.

The Court of Appeal dismissed the appeal, holding that the respondent was entitled to act on the default and was not obligated to exercise its option to place the insurance itself or accept proposed replacement insurance, especially after learning the entities arranging the insurance were under investigation for fraud.

The appellant was convicted of incest against his developmentally challenged daughter.

On appeal, he argued the trial judge erred in handling the issue of the complainant's motive to fabricate and that Crown counsel engaged in misconduct.

The Court of Appeal found that the Crown improperly cross-examined witnesses on the complainant's motive to fabricate, made inflammatory comments in closing, and improperly injected personal opinion.

The trial judge failed to provide necessary corrective instructions.

The cumulative effect of these errors undermined the fairness of the trial.

The appeal was allowed and a new trial ordered.

The appellant appealed his conviction and sentence, arguing the trial judge erred in assessing the complainant's credibility and in refusing to allow him to show his arms to demonstrate he had no tattoos.

The Court of Appeal dismissed the appeal, finding the trial judge fully appreciated the evidence, acknowledged the complainant's lies, and gave adequate reasons for accepting her testimony.

The court also held that the ruling on demonstrative evidence was a matter of the trial judge's discretion.

The appellant's vehicle was seized by police as proceeds of crime and held under a detention order.

The appellant, claiming to be an innocent third party, commenced a civil action to recover the vehicle and seek damages for its detention.

The Court of Appeal upheld the motion judge's decision to dismiss the action, agreeing that the Criminal Code provisions for innocent third party remedies constitute a complete code, precluding parallel civil proceedings absent allegations of actionable police misconduct.

The appellant appealed an order of the Superior Court of Justice to the Court of Appeal.

The respondent raised a jurisdictional issue, arguing that the appeal properly lies to the Divisional Court under section 10(1) of the Estates Act.

The Court of Appeal agreed and quashed the appeal, awarding costs of $3,000 to the respondent.

Manitoba Public Insurance (MPI) brought a motion for directions regarding an unpaid costs award of $12,000 from a priority dispute over accident benefits.

MPI was successful in the underlying arbitration and application, but took no part in the subsequent appeal between Allstate and the Motor Vehicle Accident Claims Fund.

The Court of Appeal ordered Allstate, as the unsuccessful party on the appeal, to pay MPI's $12,000 costs from the lower proceedings, plus $1,000 for the costs of the motion.