OCA 2010

The appellant appealed his conviction for sexual assault and his one-year custodial sentence.

The conviction arose from the sexual assault of a seriously intoxicated 16-year-old girl.

The appellant argued the trial judge erred in assessing the complainant's credibility, relying on confirmatory evidence, misapprehending communication evidence, and drawing an adverse inference regarding an uncalled witness.

The Court of Appeal dismissed the conviction appeal, finding no errors in the trial judge's careful scrutiny of the evidence.

The sentence appeal was also dismissed, as a custodial sentence was entirely appropriate given the vulnerability of the young victim.

The appellants appealed the judgment of Justice Tausendfreund of the Superior Court of Justice dated November 4, 2009.

The Court of Appeal for Ontario dismissed the appeal without costs in a brief endorsement.

The appellants appealed convictions for two counts of first degree murder and two counts of conspiracy to commit murder arising from planned execution-style killings.

They argued that undisclosed police criminal-record checks on prospective jurors created an unfair jury selection process and that the trial judge's final charge contained multiple reversible errors, including inadequate Vetrovec cautions and erroneous instructions on duress, conspiracy, included offences, bad character, and written jury materials.

The court held that any positive criminal-record information should have been disclosed, but the appellants failed to show a reasonable possibility that the non-disclosure affected the verdict or the overall fairness of the trial, particularly given trial counsel's awareness and inaction.

Although aspects of the charge were imperfect, the instructions were adequate when read as a whole and the prosecution case was overwhelming.

The appeals were dismissed.

The applicant sought judicial review of the Minister of Justice's decision ordering his surrender to the United States to face fraud charges.

The applicant argued that his significant health problems would not be adequately treated in the Florida prison system and that the Minister should have obtained formal assurances.

The Court of Appeal dismissed the application, finding that the Minister did not act unreasonably in relying on information from United States authorities and in declining to request specific assurances as a precondition to surrender.

The appellant, the Attorney General of Canada, brought a motion to stay the declaration of invalidity of s. 96 of the Royal Canadian Mounted Police Regulations pending the outcome of the appeal.

The appeal had been adjourned pending the Supreme Court of Canada's decision in Fraser v. Ontario (A.G.).

Applying the RJR-MacDonald test, the Court of Appeal granted the stay, expiring 30 days after the release of the Fraser decision.

However, the court imposed conditions requested by the respondents to allow the Associations to communicate with employees using internal systems and property without interference.

The Ontario-resident plaintiffs purchased Mexican vacation packages from the defendant Sunwing in Ontario.

The plaintiffs suffered serious injuries in a bus accident in Mexico caused by the negligence of the driver.

The bus was operated by Best Day, a Mexican company contracted by Sunwing.

Best Day entered into indemnity agreements with Sunwing agreeing to Ontario jurisdiction.

The plaintiffs sued Sunwing and Best Day in Ontario.

Best Day moved to dismiss or stay the action for lack of jurisdiction and forum non conveniens.

The motion judge dismissed the motion.

The Court of Appeal dismissed Best Day's appeal, finding a real and substantial connection to Ontario and that Ontario was the convenient forum.

The moving parties brought a motion for security for costs of an appeal and for the costs awarded on a summary judgment motion.

The moving parties relied on the residual 'other good reason' category under rule 61.06 of the Rules of Civil Procedure.

The motion judge dismissed the motion, finding no compelling reason to order security for the costs of the appeal or to require an advance payment of the summary judgment costs award, which was automatically stayed by the appeal.

The appellant appealed a motion judge's decision to decline jurisdiction and permanently stay its application against the respondent arbitration centre.

The Court of Appeal upheld the stay, finding the motion judge properly exercised his discretion based on forum non conveniens, as the underlying arbitration was rooted in Quebec.

However, the Court allowed the appeal in part to set aside additional relief granted by the motion judge that was neither requested by the respondent nor consistent with declining jurisdiction.

The appellants, a bank and a payment processor, appealed a trial judgment finding them liable for improperly debiting the respondent merchant's bank account for MasterCard fines and credit card replacement costs.

The Court of Appeal dismissed the appeal, finding that the payment processor was not merely an agent of the bank and that the merchant agreements, which were contracts of adhesion, did not contain provisions making the merchant liable for the specific fines or replacement costs.

Furthermore, the bank failed to prove that the merchant's conduct caused the need to replace the credit cards.

The appellant mother appealed a decision making her older child a Crown ward with no access.

She sought to introduce fresh evidence, arguing that the expert witness, Dr. Benoit, gave contradictory evidence in a subsequent trial regarding her younger child and lacked expertise on the effects of Cortisol.

The Court of Appeal dismissed the fresh evidence motion, noting the lack of expert evidence to support the appellant's claims.

The court upheld the trial judge's reliance on Dr. Benoit's parental capacity assessment and dismissed the appeal, emphasizing the child's need for stability in a potential adoptive home.

The appellant appealed a disposition of the Ontario Review Board that continued his detention order rather than granting a conditional discharge.

The Board had concluded that a detention order was the least onerous and least restrictive disposition, primarily because it allowed for immediate return to the hospital in the event of decompensation.

The Court of Appeal found the Board's decision reasonable, noting the appellant's recent decompensation and the need to demonstrate longitudinal stability in the community.

The appeal was dismissed.

The appellant appealed a 25-month sentence.

The Court of Appeal reduced the sentence to two years less a day, less pre-trial custody, taking into account immigration ramifications that were not before the trial judge.

The moving party tenant sought a stay pending appeal of an order dismissing its application for relief from forfeiture under the Commercial Tenancies Act.

The landlord had terminated the lease based on a redevelopment clause.

The court held that a stay of a dismissal order was of no benefit and treated the motion as a request for an interim injunction under s. 134(2) of the Courts of Justice Act.

The motion was dismissed because the appeal lacked merit and the balance of convenience favoured the landlord, who needed the premises to begin pre-sales for a redevelopment project.

The appellant appealed against a disposition order of the Ontario Review Board under section 672.81(1) of the Criminal Code.

The Court of Appeal found no error in the Board's decision and concluded there was no basis for finding it unreasonable.

The appeal was dismissed.

The appellants appealed their convictions for second degree murder, and one appellant appealed his sentence.

The victim was killed by a group of assailants who mistakenly believed he was their intended target.

The Court of Appeal dismissed the conviction appeals, finding no reversible errors in the trial judge's instructions on reasonable doubt, the right to disagree, mistaken identity, or the defence of abandonment.

The sentence appeal was also dismissed, upholding the 17-year parole ineligibility period due to the brutal nature of the murder.

The appellant appealed a bankruptcy order.

The Court of Appeal upheld the application judge's findings that the respondents were owed more than $1,000 due to a prior costs order and that the appellant was unable to pay his debts as they came due within six months of the application.

The appeal was dismissed.

The appellants brought a motion in writing to amend the court's previous judgment to address the issue of costs granted by the motions judge.

The Court of Appeal dismissed the motion, noting that the appellants had failed to mention the costs award in their notices of appeal, factum, or oral argument.

The court held that it was too late to raise the issue and that allowing the motion would be unfair and prejudicial to the respondents.

Costs of the motion were awarded to the respondents in the amount of $5,000.

The appellant appealed his convictions for firearm offences, arguing the trial judge erred in admitting a statement he made to police during the execution of a search warrant.

The appellant, who was handcuffed, cold, and shivering after stun grenades were deployed, was asked by police where his coat was, leading to the discovery of a firearm.

The Court of Appeal found the trial judge made three errors in assessing voluntariness: erroneously finding a partial caution was given, failing to consider the cold as an inducement, and misapprehending evidence about whether the appellant was offered other jackets.

The appeal was allowed and a new trial ordered.

The appellants appealed an order granting a mistrial in a motor vehicle accident damages trial.

The trial judge ordered a mistrial after finding that the cumulative effect of inflammatory comments made by the appellants' trial counsel during closing arguments impaired trial fairness and could not be cured by a correcting instruction.

The trial judge also declined to decide the issue of damages herself, preserving the respondents' right to a jury trial.

The Court of Appeal dismissed the appeal, deferring to the trial judge's assessment of the impact of counsel's statements and her decision to order a mistrial.

Following an appeal where success was divided, the parties made written submissions on costs.

The appellant succeeded on the central issue of the court's jurisdiction, while the respondents succeeded on the issues of venue transfer and striking out portions of the statement of claim.

The Court of Appeal awarded the appellant $12,000 in costs for the appeal, reflecting her success on the primary issue but acknowledging the divided outcome.

The costs order for the first instance motion was varied to no costs, as success on that motion was also divided.