OCA 2009

The appellant was convicted of sexually assaulting his young nephew and niece.

On appeal, he argued that the trial judge misdirected the jury regarding the use of evidence from multiple complainants, as the Crown did not allege similar fact evidence.

The Court of Appeal agreed, finding the trial judge failed to instruct the jury to keep the evidence of each complainant separate and failed to caution against propensity reasoning.

The misdirection constituted an error in law.

The convictions were quashed, a new trial was ordered on five counts, and an acquittal was directed on one count due to an unreasonable verdict.

The appellant appealed his conviction for sexual assault against the thirteen-year-old daughter of his former partner.

The case turned entirely on credibility, with the trial judge rejecting the appellant's evidence based on three perceived inconsistencies.

The Court of Appeal found that the trial judge misapprehended the evidence underlying all three bases for rejecting the appellant's testimony.

The conviction was quashed and a new trial was ordered.

The appellant appealed the dismissal of her action against the respondents.

The motion judge had dismissed the action as an abuse of process and found no genuine issue for trial, as the underlying issue of forged guarantees had already been adjudicated in a previous action.

The appellant argued she was denied natural justice because the motion judge proceeded in her absence after she left the courtroom.

The Court of Appeal dismissed the appeal, finding no apprehension of bias, agreeing that the action was an abuse of process, and upholding the substantial indemnity costs awarded by the motion judge due to the serious allegations of dishonesty.

The respondent bank sought a writ of possession for mortgaged residential premises.

The application judge granted the writ, finding the appellants were occupants and the appellant wife was the beneficial owner.

On appeal, the Court of Appeal set aside the order, finding the bank's application was deficient because it failed to join the named mortgagor as a party and lacked the necessary documentary evidence to establish its right to possession.

The appeal was allowed and the order set aside without prejudice to the bank's right to pursue further remedies.

The appellant appealed a motion judge's decision enforcing a settlement agreement.

The appellant argued that the timing of an $80,000 payment and a letter of reference were essential terms not agreed upon.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that the timing of payment was peripheral to the contract's formation, and refusing to hear the letter of reference issue as it was not raised below.

The deceased and his first wife entered into a separation agreement requiring him to designate her as the beneficiary of a life insurance policy until March 1995.

He subsequently married the appellant and later developed Alzheimer's disease.

The deceased never revoked the first wife's beneficiary designation, and the appellant continued paying the premiums under a power of attorney.

After the deceased's death, the appellant claimed the policy proceeds, arguing unjust enrichment and seeking a constructive trust.

The Court of Appeal dismissed the appeal, finding that the beneficiary designation constituted a juristic reason for the enrichment and that the general release in the separation agreement did not override the Insurance Act requirements for changing a beneficiary.

The appellant, who was nearly 18 at the time of the offence, was convicted of second degree murder for the brutal killing of an elderly neighbour during a planned robbery.

The trial judge sentenced the appellant as an adult to life imprisonment with parole ineligibility for seven years, finding that a youth sentence would not be of sufficient length to hold him accountable or protect the public.

The appellant appealed the adult sentence, arguing the trial judge overemphasized the seriousness of the offence and failed to recognize the similar lengths of youth and adult sentences.

The Court of Appeal dismissed the appeal, holding that the trial judge properly balanced all statutory factors and correctly recognized that an adult sentence provides necessary life-long state supervision.

The appellants appealed the dismissal of their action for negligent misrepresentation against a financial institution and its vice-president.

The appellants alleged the vice-president failed to warn them about a third party's criminal conviction for fraud during a meeting.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the vice-president was unaware of the conviction, did not provide financial advice, and made remarks that amounted to mere puffery upon which reliance was unreasonable.

The plaintiff was injured in a motor vehicle accident in Michigan and brought an action in Ontario against the Michigan driver and owner, an unidentified driver, and her own Ontario insurer.

The defendants successfully moved to stay the action on the basis of forum non conveniens, arguing Michigan was the more appropriate forum.

On appeal, the Court of Appeal found the motion judge erred by failing to give weight to the plaintiff's choice of forum and by not considering the claim as a whole, including the necessary claim against the Ontario insurer.

The appeal was allowed and the stay was set aside, allowing the action to proceed in Ontario to avoid a multiplicity of proceedings.

The appellant employee suffered a mental breakdown and sued her employer for negligent infliction of mental suffering and negligent supervision, following a period of workplace restructuring, denial of a promotion, and disciplinary actions for absenteeism.

The trial judge dismissed the action, finding the employer's actions were reasonable responses to declining performance and that the employer was unaware of the employee's mental illness.

The Court of Appeal dismissed the appeal, holding that even if a free-standing tort of negligent infliction of mental suffering exists in the employment context, the trial judge's factual findings precluded liability.

The appellants were convicted of first degree murder and attempted murder following a shooting at a Toronto nightclub.

On appeal, they argued that the verdicts were unreasonable and that the trial judge erred in his instructions to the jury regarding eye-witness identification, post-offence conduct, and planning and deliberation.

The Court of Appeal found that the eye-witness testimony, combined with confirmatory physical evidence such as gunshot residue and hidden bullets, was sufficient to support the convictions.

The court also held that the trial judge's jury instructions were fair, balanced, and legally correct.

The appeals were dismissed.

The appellant trustee in bankruptcy appealed an order granting the Ministry of Health and Long Term Care equitable set-off.

The Ministry sought to set off $1,000,000 owed by the Crown for occupation rent of a nursing home against $4,413,285.85 owed by the bankrupt owner for over-subsidization.

The Court of Appeal dismissed the appeal, finding the application judge correctly applied the test for equitable set-off, as the cross-obligations were directly related and arose from the Ministry's decision to fund the operation directly rather than by subsidy.

The appellants appealed a summary judgment dismissing their action to discharge a 1979 debenture registered against their lands, which they claimed was unenforceable due to expired limitation periods.

The motion judge had found the debenture was not statute-barred because a receiver had been appointed and its validity was determined in a prior fraudulent conveyance action.

The Court of Appeal allowed the appeal, finding the motion judge erred in her legal conclusions and that the record did not support summary judgment for either party.

The cross-motion for summary judgment was dismissed, and the matter was ordered to proceed to trial.

Following the appellant's substantial success on appeal and at trial in a family law matter, the Court of Appeal fixed costs for both proceedings.

The court noted the respondent's unreasonable conduct in prolonging the trial and failing to make or accept reasonable offers to settle.

Applying the factors under Rule 24(11) of the Family Law Rules, the court awarded the appellant $275,000 for the trial and $25,000 for the appeal, allowing the award to be offset against the appellant's spousal support arrears.

Following the dismissal of the appeal and cross-appeal, the respondent sought partial indemnity costs of $26,457.59.

The Law Foundation of Ontario, responsible for the appellants' costs, argued for a reduction to $12,000 due to novelty, public interest, and access to justice concerns.

The Court of Appeal fixed the respondent's costs at $18,000, inclusive of disbursements and GST, reflecting the nature of the appeal and the dismissal of the cross-appeal.

The moving parties (defendants) sought an extension of time to seek leave to appeal an order denying them leave to appeal a class action certification order.

The moving parties argued that a recent Saskatchewan Court of Appeal decision quashing a similar class action created conflicting decisions.

The Court of Appeal for Ontario held that if the order denying leave was final, the appeal lay to the Court of Appeal as of right, and if interlocutory, to the Divisional Court with leave.

The court granted an extension of time to file a notice of appeal to the Court of Appeal, leaving the determination of whether the order was final or interlocutory to a panel of the court.

The appellant appealed his conviction for second degree murder and his sentence of life imprisonment with 12 years of parole ineligibility.

He argued the trial judge erred in his jury instructions regarding intoxication, the W. (D.) framework, and the temporal relationship between the actus reus and mens rea under Cooper.

The Court of Appeal found no errors in the jury instructions, noting the trial judge properly focused the jury on the appellant's actual intent and correctly applied the legal frameworks.

The court also upheld the 12-year parole ineligibility period as fit.

The appeal was dismissed.

The respondent was injured in a rear-end motor vehicle accident and claimed non-earner benefits from his insurer.

The trial judge awarded the benefits, finding the respondent suffered a partial inability to carry on a normal life that developed into chronic pain.

The Court of Appeal allowed the insurer's appeal, holding that the trial judge applied the wrong legal test.

Under the Statutory Accident Benefits Schedule, an insured must demonstrate a complete inability to carry on a normal life within 104 weeks of the accident, which requires showing an impairment that continuously prevents them from engaging in substantially all pre-accident activities.

The respondent failed to provide sufficient evidence of his pre-accident activities to satisfy this threshold.

The respondent, a real estate appraiser, was disciplined by the appellant professional institute.

He successfully sued the appellant at trial, arguing that the discipline process was procedurally unfair because he was not granted a hearing before the Investigating Committee.

The Court of Appeal allowed the appeal, finding no breach of the implied contractual duty of fairness.

The Investigating Committee's role was merely to recommend charges, not to impose sanctions, and the respondent was given an opportunity to respond in writing during the investigation.

The appellant was convicted of first degree murder and arson after his wife died in a deliberately set house fire.

The appellant appealed, arguing the trial judge misdirected the jury on after-the-fact conduct regarding his fabricated statements to an insurance adjuster, and on the burden of proof concerning his defence that the deceased committed suicide.

The Court of Appeal dismissed the appeal, finding that the circumstances of the fabricated statements could constitute independent evidence of concoction, and that the jury was properly instructed on the burden of proof and reasonable doubt.