OCA 2009

The appellants' home was damaged by fire.

Their insurer denied their claim, alleging a material change in risk and false statements.

The insurer paid the mortgagee under the Standard Mortgage Clause and then sued the appellants for subrogation, obtaining summary judgment.

On appeal, the Court of Appeal held that an insurer's right to subrogation under the Standard Mortgage Clause requires two preconditions: payment to the mortgagee, and establishing that it has no liability to the insured mortgagor.

Because the insurer's liability to the insured was a genuine issue for trial, the summary judgment was set aside and the actions were consolidated.

Following a successful appeal by the St. Clair Region Conservation Authority, the court determined the quantum of trial costs.

The parties had previously agreed that the Township's costs of $51,539.81 would be paid by the unsuccessful party.

The Region sought $50,000 for its trial costs.

The court reduced the Region's trial costs to $18,000, noting that the appeal clarified a novel issue under the Occupiers' Liability Act and that the total costs burden on the respondents would otherwise be disproportionate.

The appellant appealed a summary conviction appeal decision that upheld a peace bond.

The Court of Appeal declined to admit fresh evidence, finding it added nothing of substance.

The Court agreed with the summary conviction appeal judge that there was a sufficient basis to grant the peace bond, though noting it would have been prudent for the trial judge to hear a summary of the circumstances.

The appeal was dismissed.

The Crown appealed the sentence imposed by the trial judge, arguing the respondent had the ability to pay a fine.

The Court of Appeal dismissed the appeal, finding it was open to the trial judge to conclude the respondent lacked the ability to pay based on the record.

At the Crown's request, a $1,600 victim surcharge was quashed.

The appellant appealed her conviction, arguing that the trial judge erred in finding no air of reality to support a finding of manslaughter and in her ruling regarding choice of counsel.

The Court of Appeal dismissed the appeal, agreeing with the trial judge's analysis and conclusions on both grounds.

The appellant appealed a disposition of the Ontario Review Board ordering his detention in a medium secure unit.

The appellant and amicus curiae argued the Board erred by not ordering a hybrid disposition that would allow the hospital to move him to minimum security at its discretion, as recommended by psychiatrists.

The Court of Appeal held the Board was entitled to reject the psychiatric evidence and require an early review hearing instead.

The appeal was dismissed, but the Board was ordered to convene the requested early review hearing forthwith.

The moving party sought to review an order of a single judge of the Court of Appeal that dismissed a motion to stay a writ of possession pending appeal.

The moving party's home had been sold for default of mortgage payments.

The Court of Appeal dismissed the motion to review, finding no grounds to set aside the order as the mortgage was undisputedly in default and the documents relied upon did not establish a renewal or compromise.

The appellants appealed the dismissal of their professional negligence action against the respondent lawyer on a summary judgment motion.

The appellants alleged the respondent negligently conducted a property transfer by naming improper vendors.

The motion judge found no genuine issue for trial because, even if the respondent was negligent, the appellants suffered no damages as no person with the right to sell the properties would have done so for the proposed price.

The Court of Appeal agreed that without damages, there is no sustainable action in negligence, and dismissed the appeal.

The appellant insurer appealed a motion judge's decision regarding the quantum of housekeeping expenses under section 22 of the Statutory Accident Benefits Schedule.

The motion judge had found that the defence was weak and did not raise a serious issue for trial, relying on a previous finding that housekeeping and home maintenance would exceed the statutory maximum of $100 per week.

The Court of Appeal found no error in the motion judge's reasons and dismissed the appeal with costs.

The self-represented appellant appealed an order of the Superior Court of Justice.

The Court of Appeal dismissed the appeal, finding no error in the lower court's decision.

The Court held that the applicable statute prevailed over the Rules of Court regarding notice requirements, meaning notice was not required.

Consequently, there was no breach of natural justice or procedural fairness, and the judges below had jurisdiction to make their orders.

Costs of $2,500 were awarded to the respondent.

Following the release of an endorsement in this appeal, the parties sought clarification regarding paragraph two and the disposition of costs for the proceedings below and the motion for leave to appeal.

The Court of Appeal clarified that paragraph two applied only to respondents who advanced claims against the appellant in the 2006 action.

The court remitted the issue of costs for the proceedings below to the motion judge, as other parties not involved in the appeal had participated and could be affected.

The court ordered no costs for the two earlier motions in the Court of Appeal.

The appellants appealed the dismissal of their motion to add two further plaintiffs to the action.

The Court of Appeal upheld the motion judge's finding that the two-year limitation period had expired and that this was an attempt to add new parties rather than correct a misnomer.

The appeal was dismissed, though the court noted that the validity of an assignment agreement between the appellants and a third party remained undetermined.

The Attorney General of Canada appealed an order regarding the compellability of two witnesses and the disclosure of certain memoranda, asserting public interest immunity and deliberative secrecy under s. 37 of the Canada Evidence Act.

The Court of Appeal allowed the appeal in part, finding that while certain paragraphs of one memorandum contained statements of fact not covered by deliberative secrecy, the trial judge erred in finding the public interest in disclosure outweighed deliberative secrecy for the remaining information.

The court restricted the scope of questioning and excluded another memorandum from evidence entirely.

Following a request for clarification and further submissions respecting costs in relation to an initial disciplinary hearing, the Court of Appeal ordered that the costs for that hearing be reserved to the Tribunal presiding over the re-hearing.

The appellant was convicted of robbery, unlawful confinement, and other offences arising from a home invasion.

The Crown alleged she acted as an aider or formed a common intention with the principals under s. 21(2) of the Criminal Code.

On appeal, the appellant argued the trial judge's jury instructions were confusing and failed to explain the essential elements of the offences.

The Court of Appeal agreed, finding the instructions failed to link the general principles of party liability to the specific offences charged and improperly commingled the alternative grounds of liability.

The appeal was allowed, convictions quashed, and a new trial ordered.

The appellant sought to introduce new evidence on appeal.

The Court of Appeal dismissed the appeal, noting that the proper time to introduce the evidence was before the motion judge.

The appellant had failed to file responding materials or attend the peremptory hearing, leaving the motion judge with uncontroverted evidence.

The appellant acknowledged his default and that the motion judge made no error.

The appellants appealed a judgment of the Superior Court of Justice.

The Court of Appeal dismissed the appeal for the reasons given in a related file endorsement, awarding costs to the respondent.

The accused was charged with impaired driving and driving over 80.

Before the trial concluded, the 'evidence to the contrary' provisions of s. 258(1) of the Criminal Code were amended by Bill C-2, altering the requirements for the Carter defence.

The trial judge and summary conviction appeal judge held that the amendments did not apply retrospectively and acquitted the accused.

The Crown appealed.

The Court of Appeal allowed the appeal, holding that the amendments are essentially evidentiary in nature and do not eliminate the defence, but merely alter its evidentiary content.

Therefore, the amendments apply retrospectively to trials continuing after their enactment.

The appellant, an ordained minister, appealed his conviction for sexual assault and his four-year sentence.

He argued the trial judge failed to adequately correct the Crown's misstatement that a relationship of trust alone vitiates consent under s. 273.1(2)(c) of the Criminal Code.

The Court of Appeal dismissed the conviction appeal, finding the jury instructions as a whole correctly required proof of an abuse of the position of trust.

The sentence appeal was also dismissed; although the trial judge misapprehended some evidence, the four-year sentence remained fit given the serious breach of trust against a vulnerable complainant.

The Crown appealed a youth court disposition of 12 months' probation for a young person who, with an accomplice, robbed a convenience store using an imitation firearm and a knife.

The Court of Appeal found the sentence unfit as it failed to recognize the seriousness of the offence and hold the young person accountable.

The Court also found the youth court judge erred by failing to make a mandatory DNA order.

Acknowledging the young person's exceptional rehabilitative progress, the Court substituted a sentence of three months' deferred custody followed by 12 months' probation, and ordered a DNA sample.