OCA 2009

The appellant, convicted of sexual assault against his wife, brought a motion under s. 683(1)(b) of the Criminal Code to cross-examine her in aid of a fresh evidence application on appeal.

The appellant sought to introduce evidence of the complainant's post-conviction allegations and conduct in family court proceedings to show she fabricated the sexual assault allegations to secure child custody.

The Court of Appeal granted the motion, finding it arguable that the fresh evidence could affect the result, and ordered the cross-examination subject to strict conditions to protect the complainant.

The appellant sued a national credit agency, alleging it published inaccurate credit information regarding her default on a debt owed to a bank.

The motion judge granted summary judgment dismissing the action, finding the report of default was correct as the debt arose under a personal guarantee.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that there was no genuine issue for trial.

The appellant appealed his conviction for impaired care and control of a motor vehicle, arguing that the trial judge reversed the burden of proof and based the decision on how long it takes a person to wake up.

The Court of Appeal dismissed the appeal, agreeing with the summary conviction appeal judge that the trial judge's decision was properly based on factual findings.

The parties made written submissions regarding costs following an appeal.

The Court of Appeal determined that costs should be awarded on a partial indemnity scale rather than an elevated scale.

The court awarded the respondent a total of $61,000 in costs, which included amounts for proceedings before the professional discipline appeal panel, the lower court stay motion, the lower court appeal, and the appellate proceedings, after setting off a previous costs award in favour of the appellant.

The Crown appealed a summary conviction appeal court decision that acquitted the respondent of driving with a blood alcohol concentration over 80.

The appeal judge had found insufficient evidence that the respondent's breath sample was received 'directly' into the approved instrument as required by s. 258(1)(c)(iii) of the Criminal Code.

The Court of Appeal held that the provision does require the sample to be received directly into the instrument, but found there was ample circumstantial evidence from the breath technician to support the trial judge's conclusion that this requirement was met.

The appeal was allowed and the conviction restored.

Following a successful appeal that dismissed the respondent's class action claim, the appellants sought costs on a partial indemnity basis.

The Law Foundation of Ontario, administering the class proceedings fund, argued against a costs award under s. 31(1) of the Class Proceedings Act, claiming the case involved novel issues and public interest.

The Court of Appeal rejected this argument, finding the case merely applied existing Supreme Court precedent.

Costs were awarded to the appellants, fixed at $55,000 for the appeal and $125,000 for the action.

The appellant bank issued letters of credit to secure payment for shrimp supplied by the respondent to the bank's customer.

The letters of credit required delivery receipts as a precondition to payment.

The bank's customer failed to provide the receipts, and the bank used the proceeds from the sale of the shrimp to pay down the customer's line of credit instead of paying the respondent.

The Court of Appeal upheld the trial judge's finding that the bank was disentitled from relying on the defence of strict documentary compliance because it colluded with its customer to defeat the purpose of the letters of credit and breached its implied duty of good faith.

The plaintiff sued the defendants for negligence and breach of fiduciary duty regarding the transfer of shares.

The defendants pleaded that the plaintiff failed to mitigate her damages by not seeking a court order to freeze the account.

The plaintiff claimed she relied on her solicitor's advice.

The defendants then brought a third-party claim against the solicitor for contribution and indemnity under the Negligence Act.

The motion judge struck out the third-party claim as disclosing no cause of action.

The Court of Appeal dismissed the appeal, holding that a defendant cannot claim contribution from a plaintiff's solicitor for advice given regarding the mitigation of damages caused by the defendant's own wrong.

The appellant pleaded guilty to robbery and failure to comply with a youth sentence.

The sentencing judge accepted a joint submission that included a one-day jail sentence to allow the appellant to collect his belongings.

However, this inadvertently triggered s. 743.5(1) of the Criminal Code, converting his remaining youth sentence into an adult sentence.

On appeal, with the Crown's consent, the court varied the sentence to time served to reflect the parties' original intent.

The court also corrected the weapons prohibition to a lifetime ban under s. 109(3) due to the appellant's prior robbery convictions.

The appellant appealed his sentence of 60 days intermittent after pleading guilty to production and trafficking of marijuana.

He argued the trial judge failed to sufficiently consider his medical condition when declining a conditional sentence.

The Court of Appeal dismissed the appeal, finding the trial judge clearly based the lenient intermittent sentence on the appellant's medical condition and implicitly factored in pre-trial custody.

The appellants challenged the trial judge's decision to discharge a civil jury on the grounds of complexity, arguing it violated sections 7 and 15 of the Charter.

The Court of Appeal dismissed the appeal, finding that the Charter does not confer a right to a jury trial in civil matters.

The court held that the jeopardy of a civil damages award does not engage section 7, and the class of civil defendants denied a jury trial does not form an analogous ground under section 15.

The appellant appealed his convictions for sexual assault with a weapon, unlawful confinement, and robbery, as well as his sentence.

The Court of Appeal dismissed the conviction appeal, finding the verdict was reasonable and the trial judge's intervention during cross-examination was adequately addressed by jury instructions.

However, the sentence appeal was allowed because the trial judge erred by treating the conduct of the defence as an aggravating factor.

The total sentence was reduced from 11 years to 10 years, resulting in 8 years net of pre-trial custody credit.

The appellant appealed his convictions and sentence of 10.5 years for historical sexual offences against five young female victims over a 25-year period.

The appellant argued the trial judge erred in using hearsay evidence of prior consistent statements and misapplied evidence in evaluating his credibility.

The Court of Appeal dismissed the conviction appeal, noting the appellant was bound by trial counsel's strategic concession regarding the hearsay evidence.

The sentence appeal was also dismissed, as the sentence appropriately reflected the appellant's moral blameworthiness and breach of trust.

The appeal was allowed on consent regarding one summary conviction count, which was quashed.

The appellant appealed his conviction for sexual assault, arguing the trial judge engaged in an impermissible line of reasoning regarding photographs taken during the incident.

The Court of Appeal dismissed the appeal, finding that the trial judge's essential conclusion—that the complainant did not consent and was asleep during the assault—was firmly based on the evidence, including the photographs and post-offence conduct.

The impugned comments formed only a minor part of the trial judge's reasoning.

The appellant seized collateral from a third party who had purchased it from the debtor, arguing its security interest attached upon possession under s. 11(2)(b) of the Personal Property Security Act.

The Court of Appeal dismissed the appeal, holding that the seizure did not constitute possession sufficient for attachment under s. 11(1) to defeat the third party's interests, as the appellant did not have a signed security agreement prior to the seizure.

The appellant appealed a trial judgment regarding an easement claim based on the doctrine of Lost Modern Grant.

The appellant argued the trial judge erred in limiting the relevant 20-year period to the time before the property's conversion to the Land Titles system in 2001.

The Court of Appeal agreed the trial judge erred in law but found the error did not result in a substantial wrong or miscarriage of justice.

The sole witness relied upon by the appellant was deemed unreliable, and the evidence was insufficient to establish the required 20 years of open and continuous use.

The appeal was dismissed.

The appellant guarantor appealed a summary judgment enforcing a demand guarantee in favour of the respondent bank.

The appellant argued the claim was statute-barred under the Limitations Act, 2002, asserting the limitation period began either when the principal debtor defaulted or when the bank sent an initial courtesy letter.

The Court of Appeal dismissed the appeal, holding that a demand guarantee requires a clear and unequivocal demand before it is enforceable, and the limitation period does not commence until such demand is made.

The court found the bank's initial letter was not a demand, and the action was commenced within the two-year limitation period following the actual demand.

The appellants appealed an order striking portions of their statement of claim against the respondents, which included claims related to religious indoctrination at a private school.

The Court of Appeal upheld the motion judge's finding that there is no tort of religious indoctrination and that certain claims were non-justiciable.

However, the Court granted the appellants leave to amend their pleadings to clarify a theory of breach of fiduciary duty based on the respondents' alleged failure to educate the students in accordance with Anglican faith and values.

The Court also restored several paragraphs that had been struck for being redundant, irrelevant, or argumentative.

The appeal was allowed in part.

The appellant appealed a motion judge's finding of contempt for deliberately breaching a court order.

The Court of Appeal dismissed the appeal, finding that the motion judge applied the proper legal principles and that the conclusion was open to him on the evidence.

Costs of $5,000 were awarded to the respondent.

The appellant appealed a motion judge's decision dismissing a claim of civil conspiracy against a respondent solicitor.

The Court of Appeal agreed with the motion judge that the pleaded facts provided no foundation for the claim.

The appeal was dismissed with costs fixed at $5,000.