OCA 2009

The appellants appealed an order granting the respondent relief from forfeiture of a 10% interest in a land development project.

The respondent had acquired the interest from her former common-law husband through a matrimonial order, subject to the appellants' security interest for a loan.

After the husband defaulted, the respondent tendered full payment of the loan shortly after the deadline.

The Court of Appeal upheld the application judge's finding that the respondent met the three-part test for relief from forfeiture, noting her conduct was reasonable and there was a substantial disparity between the value of the forfeited property and the damage caused by the breach.

The appellant appealed the dismissal of his motion under Rule 59.06 to set aside a previous decision dismissing his action for abuse of process.

He argued that under s. 31 of the Workplace Safety and Insurance Act, only the Appeals Tribunal could determine whether his right to maintain a lawsuit could be taken away.

The Court of Appeal dismissed the appeal, noting that the previous dismissal of his action was upheld on the alternate ground of abuse of process, as he had claimed compensation from the Board, was denied, and had a right of appeal under the Act which he had not pursued.

The court held he could not circumvent his statutory appeal right by suing in court.

The appellant was convicted of second degree murder following a street altercation where he stabbed the deceased.

At trial, the judge declined to leave the defence of provocation with the jury, finding no air of reality to the defence because the appellant disavowed anger as the trigger for his actions.

On appeal, the Court of Appeal held that the trial judge erred.

Despite the appellant's testimony that he acted out of fear, there was evidence from which a properly instructed jury could infer that he acted in the heat of passion or sudden loss of self-control due to the deceased's insults and actions.

The appeal was allowed and a new trial ordered.

The appellant appealed his convictions for sexual assault, invitation to sexual touching, and sexual interference involving two of his step-granddaughters, as well as his sentence.

He argued the trial judge erred in assessing the young complainants' credibility and failed to adequately consider the possibility of collusion or tainting.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's reasons were detailed and properly addressed the evidence's frailties.

Leave to appeal the sentence was granted, but the sentence appeal was dismissed, as the court rejected the argument that the sentencing judge improperly punished the appellant for a lack of remorse.

The appellant landlord appealed an order granting the respondent tenants specific performance of an option to purchase contained in a commercial lease.

The landlord argued that damages were a sufficient remedy, the option was a clog on the equity of redemption, and the option provision was ambiguous.

The Court of Appeal dismissed the appeal, finding that specific performance was appropriate because the property was unique to the tenants due to their significant investments.

The court also held that there was no mortgage between the parties to create a clog on the equity of redemption, and the option provision was unambiguous.

The appellant appealed his conviction for offences related to a marijuana grow operation.

The trial judge found that the house was used solely for cultivating marijuana, the appellant was inside for at least thirteen minutes, and he had a key to the front door.

The Court of Appeal held that the trial judge was entitled to infer possession (knowledge and control) from these facts, especially absent any evidence from the appellant.

The appeal was dismissed.

The appellants appealed a declaration that the respondent's claims were not released by bankruptcy due to defalcation under s. 178(1)(b) of the Bankruptcy and Insolvency Act.

The Court of Appeal dismissed the appeal, finding that the appellants' failure to invest funds as agreed, failure to recover them, and failure to account for them amounted to serious misconduct and moral turpitude within a fiduciary relationship, satisfying the test for defalcation.

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

The respondent sought to maintain only its claim for damages.

The Court of Appeal agreed with the motion judge that the claim for damages was not foreclosed by res judicata and dismissed the appeal with costs.

The appellants were convicted of robbery with a firearm and conspiracy to commit robbery.

On appeal, one appellant argued his s. 11(b) Charter right to be tried within a reasonable time was violated, while the other argued the verdict was unreasonable.

The Court of Appeal dismissed both of these grounds.

However, both appellants also argued the trial judge's charge to the jury was fatally flawed regarding both the conspiracy and robbery counts.

The Court agreed, finding the charge failed to adequately explain the law, the three-step process for conspiracy, and the evidence relevant to each appellant's position.

The appeals were allowed and a new trial was ordered.

The self-represented accused appealed a Superior Court order requiring him to provide an undertaking as a condition precedent to receiving Crown disclosure.

The Crown moved to quash the appeal for lack of jurisdiction.

The Court of Appeal quashed the appeal, holding that its statutory jurisdiction under s. 784 of the Criminal Code is limited to decisions granting or refusing relief in proceedings by way of mandamus, certiorari, or prohibition, and a motion for directions regarding disclosure undertakings does not fall within these categories.

The appellant was convicted of multiple historical sexual and physical assaults against his daughter and stepdaughters, receiving a three-year sentence.

On appeal, he argued the trial judge misapprehended evidence, failed to properly scrutinize recovered memory evidence, shifted the burden of proof, and imposed an unfit sentence given his medical needs.

The Court of Appeal dismissed the conviction appeal, finding no errors in the trial judge's assessment of credibility or application of the burden of proof.

The sentence appeal was also dismissed, as the three-year term was at the low end of the range and the evidence did not establish that correctional authorities could not meet the appellant's medical needs.

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

The Court of Appeal found no error in the motion judge's careful and thorough reasons on either of the points argued.

The appeal was dismissed with costs awarded to the respondents.

The appellant, an Aboriginal woman with a tragic history of abuse and mental health issues, abducted a newborn infant from a hospital after her own child was stillborn.

She pled guilty and was sentenced to five years' imprisonment.

On appeal, the Court of Appeal found that the sentencing judge erred by using a prior seven-year sentence as a baseline and failing to properly apply the principle of restraint and the Gladue framework for Aboriginal offenders.

The appeal was allowed, and the sentence was reduced to two and a half years' imprisonment.

The insured struck a pedestrian in a strip mall parking lot while driving alone, contrary to her G1 licence conditions.

She pleaded guilty to Highway Traffic Act offences.

Her insurer denied coverage, arguing she was not 'authorized by law' to drive under Statutory Condition 4(1).

The Court of Appeal held that the guilty pleas did not create issue estoppel in the civil action due to the minor stakes of the traffic tickets compared to the civil suit.

Furthermore, the parking lot was not a 'highway' under the Highway Traffic Act, meaning the graduated licensing restrictions did not apply at the time of the accident.

The insurer was ordered to defend and indemnify the insured.

The appellant insurer appealed a motion judge's conclusion regarding waiver.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion, which turned narrowly on the absence of a non-waiver agreement and the specific wording and timing of an August 23, 2006 letter.

The Court noted this decision does not pronounce on the general effect of a reservation of rights letter.

The appellant appealed a trial judgment awarding pre- and post-judgment interest at a compounded rate of 5.59% semi-annually for breach of contract.

The Court of Appeal dismissed the appeal, finding that the trial judge's conclusion that the appellant knew the funds would be reinvested to earn a compound return was supported by the evidence.

The court affirmed that compound interest is an appropriate measure of damages where the parties knew or should have known the disputed money would bear compound interest.

The appellant appealed a trial judgment regarding spousal status, arguing the trial judge placed undue emphasis on the parties' subjective intentions rather than objective evidence.

The Court of Appeal dismissed the appeal, finding the trial judge applied the correct legal test from Moldowich v. Penttinen, properly considered the objective evidence, and made findings of fact supported by the record.

The appellants appealed an order dismissing their motion to add party plaintiffs and granting the respondent's motion for partial summary judgment.

The motion judge dismissed the appellants' motion because they failed to file a confirmation form and did not request leave under rule 48.04(1), without permitting submissions on these issues.

The Court of Appeal allowed the appeal, finding the motion judge's orders must be set aside on grounds of natural justice and fair procedure.

The appellant appealed his conviction and sentence for break and enter, uttering a threat, and possession of a weapon.

He argued that the identification evidence was unreliable and that he was prejudiced by the loss of the weapon (a nightstick) before trial.

The Court of Appeal dismissed the conviction appeal, finding the identification evidence supported by the appellant's own statement and circumstantial evidence, and no prejudice from the missing weapon.

The sentence appeal was also dismissed, as the four-year term for a home invasion to collect a drug debt was within the appropriate range.

The appellant appealed a conviction for sexual assault, arguing the trial judge failed to explicitly apply the second step of the W.(D.) framework.

The Court of Appeal dismissed the appeal, finding that while the trial judge omitted the second step, her overall reasons, including her strong credibility findings, demonstrated she considered whether the defence evidence raised a reasonable doubt.

The court also rejected arguments regarding the burden of proof, motive to lie, and the risk of innocent collusion between the complainants.