OCA 2009

The appellant appealed his convictions for two counts of sexual assault, arguing the trial judge erred in assessing credibility, applied differential scrutiny to the witnesses, and misapplied the burden of proof.

The Court of Appeal found no error in the trial judge's use of the appellant's denial of a sexual relationship with the complainant's sister to assess his credibility.

The court also held that the trial judge did not apply a differential standard of scrutiny or reverse the onus of proof.

The appeal was dismissed.

The appellant appealed his conviction, arguing that the Crown's reference to uncontradicted evidence violated section 4(6) of the Canada Evidence Act and that the trial judge's answer to a jury question undermined their right to disagree.

The Court of Appeal dismissed the appeal, finding that stating evidence is uncontradicted does not amount to a comment on the failure to testify, and that the trial judge correctly instructed the jury on their right to disagree.

The appellant was convicted by a jury of sexually assaulting two young brothers.

During the trial, a Crown witness testified that his son had called the appellant a 'rapist pedophile'.

The trial judge refused the appellant's application for a mistrial, opting instead to give a mid-trial curative instruction to the jury.

On appeal, the appellant argued the trial judge erred in refusing the mistrial and in failing to repeat the caution in his closing instructions.

The Court of Appeal dismissed the appeal, finding the trial judge's exercise of discretion was not clearly wrong and the mid-trial instruction was sufficient to remove the potential prejudice.

The appellant appealed his convictions and sentences for sexually assaulting the two young daughters of his long-term partner.

He argued the trial judge improperly pooled credibility assessments and applied uneven scrutiny to the evidence.

The Court of Appeal dismissed the conviction appeal, finding the trial judge properly assessed credibility and was entitled to consider the totality of the appellant's evidence under the W.D. framework.

The sentence appeal was also dismissed, as the six-year total sentence fell within the established range for such offences.

The appellant appealed his convictions for two counts of assault and his sentence of 12 months' imprisonment consecutive to a sentence he was already serving.

The appellant argued the trial judge erred in her credibility assessment and that the Crown's cross-examination was abusive.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's credibility findings, which were supported by police observations of bite marks, and concluding the cross-examination was relevant.

The sentence appeal was also dismissed, as the sentence was fit given the domestic context, the injuries, and the appellant's lengthy criminal record.

The appellant pleaded guilty to dangerous driving causing death and dangerous driving causing bodily harm after a collision.

He was sentenced to 18 months' imprisonment and a five-year driving prohibition.

He appealed the sentence, arguing for a conditional sentence.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's conclusion that a conditional sentence would not adequately address denunciation and general deterrence.

The appellant appealed a trial judgment regarding custody, divorce, property claims, and spousal support.

The parties delivered a joint factum consenting to a new trial.

The Court of Appeal allowed the appeal and ordered a new trial on all issues, finding that the trial judge failed to properly address the best interests of the child, did not give reasons for refusing the divorce claim, and failed to deal with property and spousal support claims.

The appellant, who suffers from schizoaffective disorder and was found not criminally responsible, appealed an Ontario Review Board disposition ordering his continued detention in a minimum-secure facility.

He argued the Board erred by failing to adequately consider a conditional discharge.

The Court of Appeal found that the Board did err by failing to consider whether the appellant would consent to medication conditions and by failing to properly analyze the mechanisms under the Criminal Code and Mental Health Act for returning him to the hospital if he decompensated.

However, the appeal was dismissed due to fresh evidence showing the appellant had stopped taking his medication, decompensated, and been returned to a medium-secure unit.

The moving parties brought a motion to set aside an order dismissing their application to extend the time to file a notice of appeal from a 2007 judgment.

The Court of Appeal found no error in the motion judge's finding that the moving parties failed to explain their two-year delay or their failure to appear before the original judge.

The motion was dismissed with costs.

The appellant mother appealed an order varying a custody and access order that changed the child's primary residence to the respondent father.

The Court of Appeal allowed the appeal, finding that the motion judge lacked jurisdiction to vary the order because there was no explicit finding of a material change in circumstances.

Furthermore, the motion judge erred by resolving conflicting affidavit evidence without a trial and by failing to adequately consider the child's best interests.

The original custody order was restored following a six-week transition period.

The self-represented applicant sought leave to appeal his conviction, challenging the inferences drawn by the trial judge regarding his state of mind.

The Court of Appeal refused leave to appeal, finding that the arguments did not raise questions of law or issues of significance beyond the specific case.

The appellant sought leave to appeal a conviction for which a sentence of 12 months' probation was imposed three years prior.

The Court of Appeal refused leave, noting the question of law had no significance beyond the case, the argument on the reasonableness of the conviction was not strong, and the sentence did not engage significant liberty interests.

The appellant appealed his sentence, seeking a reduction to avoid adverse immigration consequences.

The immigration authorities were treating the original sentence as a two-year sentence due to the length of pre-trial custody.

With the consent of the Crown, the Court of Appeal allowed the appeal and reduced the sentence to 53 weeks, resulting in an effective sentence of two years less a week for immigration purposes.

The appellants appealed a summary judgment dismissing their counterclaim.

The Court of Appeal allowed the appeal, finding that genuine issues for trial existed regarding whether the Consumer Protection Act applied to a handwritten estimate for a construction contract, and whether the contract was exempt from the Act as part of a real estate transaction.

The matter was remitted for trial.

The Crown appealed a non-custodial sentence imposed on the respondent.

The trial judge had relied on the victim's wishes, which were found to be borne of love rather than fear, and the respondent's genuine remorse.

The Court of Appeal dismissed the appeal, finding no error in the sentence and noting that the offences were out of character and the respondent was making progress with substance abuse issues.

The employee was terminated from his position as CFO but agreed to the assignment of his employment contract to an affiliated company within the corporate group.

The trial judge found that the contract was terminated and awarded the employee two years' severance pay.

On appeal, the Court of Appeal held that the trial judge erred in law by concluding the contract was terminated rather than assigned, and by reversing the burden of proof regarding an alleged forbearance agreement.

The appeal was allowed, setting aside the severance award, and the employee's cross-appeal for negligent misrepresentation against the individual defendant was dismissed.

The appellants appealed a trial judgment finding the individual appellant personally bound by a contract and denying credit for the residual value of used equipment.

The Court of Appeal dismissed the appeal, holding that the trial judge properly relied on handwritten entries and signatures rather than pre-printed clauses, making the doctrine of contra proferentem inapplicable.

The Court also found no error in denying credit for the equipment, as unchallenged evidence indicated it had no market value.

The appellants appealed the motion judge's refusal to set aside an earlier order, the ruling that rule 11.02 did not apply, and the decision to strike their pleadings for non-compliance with a previous order.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's decisions given the unexplained three-month delay in bringing the motion and the appellants' extensive delays in the action.

The appellant appealed a Superior Court decision dismissing his application for certiorari and prohibition based on alleged reasonable apprehension of bias and procedural unfairness by the trial judge.

The Court of Appeal dismissed the appeal, finding the trial judge's frustration with delays in a summary impaired driving proceeding and counsel's inability to cooperate was understandable and did not reflect bias.

The court remitted the matter to the Ontario Court of Justice for trial to proceed expeditiously.

The appellant was convicted of aggravated assault after a 48.5-month non-appellate delay.

The application judge found 23 months of delay attributable to the Crown but dismissed the appellant's section 11(b) Charter application, applying the 'clearest of cases' standard and finding no prejudice to trial fairness.

The Court of Appeal held that the application judge erred in law, as a stay is the mandatory minimal remedy for a section 11(b) breach and proof of actual prejudice to trial fairness is not required.

The Court upheld the attribution of delay to the Crown, allowed the appeal, set aside the conviction, and entered a stay of proceedings.