OCA 2010

The young person appealed her sentence of four months closed custody and two months open custody for aggravated assault and possession of a weapon for a dangerous purpose.

The Court of Appeal found the original sentence was fit at the time it was imposed.

However, based on remarkable fresh evidence demonstrating the young person's strict compliance with restrictions, excellent educational progress, and strong family support over the past two years, the court allowed the appeal to permit her to continue her rehabilitation.

The appellants, including the Minister of Agriculture of Guyana and a state-owned company, appealed the dismissal of their motion to dismiss a defamation claim on the grounds of state immunity.

The motion judge found that the Minister's statements, made in the context of an ongoing trademark dispute, fell within the commercial activity exception under s. 5 of the State Immunity Act.

The Court of Appeal upheld the decision, applying the contextual approach from Kuwait Airways Corp. v. Iraq, and concluded that the statements promoted Guyana's brand and disparaged a competitor, thus constituting commercial activity.

The appellant, a paralegal, was convicted of theft, forgery, and fraud after stealing personal injury settlement funds from vulnerable clients.

He was sentenced to 23 months' incarceration and ordered to pay $141,752 in restitution.

He appealed the restitution order, arguing the trial judge failed to consider his inability to pay.

The Court of Appeal dismissed the appeal, holding that in cases of breach of trust, the claims of the victims are paramount.

The court found the trial judge properly considered the appellant's future employment prospects and the lack of evidence regarding the whereabouts of the stolen funds.

The appellant mother appealed a motion judge's order dismissing her request to increase spousal support after her child support was reduced.

The reduction occurred because the youngest child changed her primary residence to live with the respondent father, and the mother was paying no child support for that child.

The appellant also challenged the motion judge's allowance of the respondent's business expenses for calculating child support.

The Court of Appeal dismissed the appeal, finding the motion judge's discretionary decisions reasonable.

The appellant appealed his conviction for first degree murder, arguing the trial judge erred in dismissing a motion for a directed verdict of acquittal on first degree murder, in her jury instructions regarding the timing of the victim's injuries, and in failing to give a limiting instruction on post-offence conduct.

The Crown's theory was that the appellant killed the victim while forcibly confining him.

The Court of Appeal found no error in the trial judge's application of the Arcuri test for a directed verdict, nor in the jury instructions when read as a whole.

The appeal was dismissed.

The respondents issued a notice of action against the appellant within the two-year limitation period under the Warsaw Convention but failed to serve it within the six-month period under the Rules of Civil Procedure.

The master granted an extension of time for service, which was affirmed by the Divisional Court.

The appellant appealed, arguing the claim was extinguished under Article 29 of the Convention.

The Court of Appeal dismissed the appeal, holding that once a claim is issued within the two-year period, the Convention is satisfied and subsequent procedural requirements, including time for service, are governed by the Ontario Rules.

In six family law cases, a Superior Court judge exercised parens patriae jurisdiction to order the Office of the Children's Lawyer (OCL) to represent children or conduct investigations, bypassing the statutory request process.

The OCL appealed these mandatory orders.

The Court of Appeal allowed the appeals, holding that the judge erred by circumventing the existing statutory structure under the Courts of Justice Act, which grants the OCL discretion to accept or decline requests for involvement based on its resources and intake criteria.

The appellant failed to appear for the appeal.

On consent, the Court of Appeal dismissed the appeal as abandoned with costs as per the draft order.

The appellant appealed his conviction for refusing to provide a breath sample.

The Court of Appeal dismissed the appeal, finding that the conviction did not depend on accepting the police evidence, as the appellant's own evidence established both the actus reus and mens rea of the offence.

The appellant sought leave to appeal a summary conviction appeal decision that upheld her conviction for refusing to provide a breath sample.

The Court of Appeal refused leave, finding that the trial judge had compelling reasons to reject the appellant's evidence, the appeal judge's reasons were sufficient under the Sheppard test, and the proposed fresh evidence could not have affected the verdict.

The appellant appealed his sentence, having already served his term of imprisonment but expressing concerns about his ability to comply with the probation terms.

The Court of Appeal found the sentence fit given the seriousness of the offence and the appellant's record.

The court held that any future problems with probation terms should be addressed through an application under s. 732.2 of the Criminal Code.

Leave to appeal sentence was granted, but the appeal was dismissed.

Following a change in corporate control, the new management of Echo Energy Canada Inc. sought to assess the paid accounts of three law firms retained by the former management.

The application judge dismissed the application, finding no 'special circumstances' under s. 11 of the Solicitors Act.

On appeal, the Court of Appeal allowed the appeal in part.

The Court found that the application judge erred in principle by adopting a lawyer-focused perspective and failing to consider evidence that the former directors may not have acted in the company's best interests when approving the accounts of litigation counsel (Lenczner and Voorheis).

Special circumstances were established for those accounts.

However, the appeal regarding the corporate counsel (McCarthy) was dismissed as no special circumstances were shown.

The appellants appealed a jury's damages award of nearly $1 million following a motor vehicle accident where liability was conceded.

The appellants argued the trial judge improperly interfered by questioning witnesses to assist the plaintiff's case, unfairly diminished the defence's position in the jury charge, and that the damages were excessive.

The Court of Appeal dismissed the appeal, finding the trial judge's questions were largely for clarification and non-confrontational, noting that experienced trial counsel did not object.

The court also found the jury charge was fair and balanced, and saw no basis to interfere with the damages award.

The appellant appealed an order refusing to set aside a default judgment.

The Court of Appeal dismissed the appeal, finding that while it might have granted relief for the failure to move promptly, the appellant's claims were merely bald conclusory allegations and raised no arguable defence on the merits.

The appeal was dismissed with costs of $10,000, and the writ of possession and eviction order were stayed for 30 days.

The appellant was convicted of two unrelated counts of first degree murder following a joint trial.

The Crown's case relied heavily on statements obtained during a 'Mr. Big' operation and testimony from unsavoury witnesses.

The appellant appealed, arguing the trial judge erred in refusing to sever the counts and in denying a mistrial application after a witness blurted out highly prejudicial, inadmissible evidence.

The Court of Appeal allowed the appeal, finding the trial judge erred in principle by concluding the absence of similar fact evidence militated against severance.

The Court held that the risk of impermissible propensity reasoning was overwhelming and ordered a new trial with the counts severed.

The appellant corporations were placed into receivership.

The boards of directors retained counsel to oppose the receivership and represent the corporations' interests.

The motion judge held that the boards did not have the right to retain counsel without court approval but awarded partial costs on an equitable basis.

On appeal, the Court of Appeal held that the boards retained residual authority to retain counsel without prior approval of the receiver or the court to challenge the receivership or the receiver's actions.

The Court ordered that the reasonable legal fees for the receivership litigation be paid out of the corporations' assets.

The young person appealed his conviction for robbery of a fast food delivery driver.

The sole issue at trial was identification, which the trial judge determined based on video surveillance, clothing seized upon arrest, and cell phone records.

The Court of Appeal found no error in the trial judge's reliance on the video surveillance or her application of the Nikolovski principle to compare the accused with the person in the video.

The appeal was dismissed.

The appellant appealed a conviction entered by a Summary Conviction Appeal Judge.

The Court of Appeal dismissed the appeal, agreeing with the summary conviction appeal judge that the breath test evidence should not have been excluded under s. 24(2) of the Charter.

The trial judge had not had the benefit of the Supreme Court's decision in R. v. Grant and failed to consider the officers' good faith and the minimal intrusiveness of the breath test.

The applicant mother sought an extension of time to appeal a summary judgment finding her children in need of protection under the Child and Family Services Act.

The Court of Appeal dismissed the motion, finding it lacked jurisdiction to hear the appeal.

Pursuant to the Courts of Justice Act, appeals from such child protection orders lie to the Divisional Court, not the Court of Appeal.

The appellant appealed his conviction, arguing that the trial judge failed to provide an adequate review of the evidence and failed to provide a balanced charge to the jury.

The Court of Appeal dismissed the appeal, finding that while the trial judge could have provided a fuller explanation of the evidence, the charge was adequate in the circumstances and the jury would have understood the defence advanced.