OCA 2010

The appellants appealed the dismissal of their medical malpractice action against a hospital, nurses, and doctors following the birth of a child who suffered severe brain damage due to oxygen deprivation prior to an emergency Caesarean section.

The trial judge dismissed the action, finding that while there were shortfalls in care, the cause of the oxygen deprivation was unknown and therefore not caused by the defendants' negligence.

The Court of Appeal allowed the appeal and ordered a new trial on liability, holding that the trial judge erred in law by deciding the issue of factual causation before determining whether the standard of care was breached, and that the trial judge's reasons were insufficient to explain why the plaintiffs' theory of liability was rejected.

The appellant appealed a disposition of the Ontario Review Board.

The Court of Appeal allowed the appeal, finding that the Board erred by failing to direct that necessary inquiries regarding the appellant's mother becoming an 'approved person' be finalized forthwith, as required by Winko.

The Board also misapprehended evidence by stating the appellant had no track record in the community, when in fact he had successfully completed several unescorted passes.

The Court substituted an order for conditional release and remitted the matter to the Board to determine appropriate conditions.

The appellant appealed his convictions for sexual assault and criminal harassment.

He argued the trial judge erred by providing supplementary reasons four days after oral reasons and by improperly assessing the complainant's delayed disclosure of the sexual assault.

The Court of Appeal dismissed the appeal, finding no error in the provision of supplementary reasons and holding that it was open to the trial judge to accept the complainant's explanation for her delayed disclosure.

The appellant appealed his convictions for two counts of sexual assault against two young cousins, as well as his four-year sentence.

He argued the trial judge erred in admitting similar fact evidence, finding no collusion between the complainants, providing inadequate reasons regarding his limited opportunity to commit the offences, and misapprehending medical evidence.

The Court of Appeal dismissed the conviction appeal, finding no errors in the trial judge's assessment of the evidence or adequacy of reasons.

The sentence appeal was also dismissed, as the four-year term was within the appropriate range.

The appellant appealed her convictions for possession of cocaine for the purpose of trafficking and possession of an imitation weapon, as well as her 36-month custodial sentence.

She argued her arrest was unlawful and challenged the admission of evidence obtained from her cell phone post-arrest.

The Court of Appeal dismissed the conviction appeal, finding the police had reasonable and probable grounds for the arrest based on informant tips and surveillance.

The sentence appeal was also dismissed, as the offences were part of a commercial enterprise and the sentence properly reflected denunciation and deterrence.

The appellant appealed an order of committal for extradition.

The Court of Appeal dismissed the appeal, finding that the anticipated evidence of an alleged co-conspirator was directly admissible against the appellant to prove both the conspiracy and the substantive offence, without engaging the co-conspirator exception to the hearsay rule.

The court also upheld the extradition judge's finding that the appellant's identification was established through a combination of circumstances.

The appellant sought judicial review of the Minister of Justice's order of surrender.

The Court of Appeal applied the narrow scope of review established in U.S.A. v. Lake and found that the Minister had considered all arguments put forward by the appellant.

The court concluded the Minister's decision was not unreasonable and dismissed the application.

The appellant appealed a conviction for sexual assault, arguing that the trial judge failed to adequately address conflicting expert evidence on the effects of crack cocaine and the complainant's capacity to consent.

The Court of Appeal held that the trial judge was alive to the dispute between the experts and that it was open to him to accept the complainant's evidence and reject the appellant's account.

The court further held that, even if the treatment of the expert evidence was inadequate, the conviction remained supported by the accepted evidence that the complainant was unable to move, speak, or think clearly and did not consent.

The conviction appeal was dismissed, and the sentence appeal was dismissed as abandoned.

The appellant was convicted of manslaughter and designated a dangerous offender after rejecting a pre-trial plea offer from the Crown.

On appeal, he argued that the trial judge erred in excluding the entirety of his spontaneous exculpatory statements made upon arrest, in instructing the jury on reasonable doubt and automatism, and in failing to stay the dangerous offender application as an abuse of process.

The Court of Appeal held that while spontaneous exculpatory statements upon arrest may be admissible if the accused testifies, the trial judge's exclusion of the statements did not cause a substantial wrong or miscarriage of justice.

The court also found no errors in the jury instructions and held that the dangerous offender application was not an abuse of process.

The appeal was dismissed.

The appellant suffered a serious head injury when she walked into a nearly invisible steel pole protruding from a parked, unidentified truck.

She sued her insurer for damages under the unidentified motorist coverage of her policy.

The motion judge dismissed the claim, finding that the appellant was not 'struck by' or 'hit by' the truck because it was stationary.

The Court of Appeal allowed the appeal, holding that the words 'struck by' and 'hit by' should be interpreted broadly in light of the remedial purpose of the coverage, and that contact with a stationary vehicle satisfies the requirement.

The appellant appealed his conviction for sexual assault, raising three grounds: failure to consider exculpatory portions of out-of-court statements, applying uneven scrutiny to the evidence, and improperly admitting similar fact evidence.

The Court of Appeal found no error in the trial judge's treatment of the statements, noting they were only probative of the appellant lying to police.

The court also found the trial judge properly cautioned himself against uneven scrutiny and reasonably admitted the similar fact evidence.

The appeal was dismissed.

The Crown appealed the respondent's acquittals on drug and gun charges, arguing the trial judge erred in excluding evidence under s. 24(2) of the Charter.

The trial judge had found that the police breached the respondent's s. 10(b) rights by asking an officer safety question after he requested counsel, which led to the discovery of marijuana and a gun in the trunk.

The Court of Appeal held that the trial judge committed material errors in his s. 24(2) analysis, including failing to consider the respondent's own testimony, the reason for the delay in the search, and the context of the officer safety question.

The appeal was allowed, the acquittals set aside, and a new trial ordered.

The appellants appealed a trial judgment finding them liable for negligent misrepresentation.

The trial judge found that the respondent, a potential investor, reasonably relied on assertions from the CEO of the appellant private company regarding its present value.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings on misrepresentation and reliance, and upholding the damages calculation as reasonable.

The appellant trustee in bankruptcy appealed a motion judge's decision that estopped the trustee from claiming the bankrupt's interest in his late father's estate.

The bankrupt had received an absolute discharge before the trustee moved for a declaration that the inheritance vested in the estate.

The Court of Appeal allowed the appeal, finding no evidence that the trustee made any representation to abandon its claim or that the bankrupt relied on such a representation to his detriment.

The inheritance remained vested in the trustee for the benefit of creditors.

The appellant appealed a disposition of the Ontario Review Board.

The Court of Appeal noted merit in the argument that the Board improperly focused on the risk of the appellant breaching a release order rather than the risk to public safety.

However, based on fresh evidence that the appellant had relapsed into substance abuse and was returned to the institution, the Court declined to interfere with the Board's order.

The appeal was dismissed, with the Court noting the appellant could renew his argument for a conditional discharge at his next Board hearing.

The appellant appealed his sentence for assault causing bodily harm, an included offence of wounding.

The appellant struck the victim in the face, causing her to stumble and fall down the stairs.

The Court of Appeal dismissed the appeal, finding the sentence was entirely justified as the appellant was properly held responsible for all of the victim's injuries.

The appellant appealed his conviction, arguing he was deprived of the opportunity to effectively challenge the police conduct in obtaining a search warrant because the trial judge did not give the Crown an opportunity to show the warrant was properly granted on the unredacted information.

The Court of Appeal dismissed the appeal, finding the case was controlled by R. v. Blake.

The defence had not requested a review of the unredacted information or judicial summaries, nor challenged the confidential informant claim at trial.

The Crown appealed a disposition of the Ontario Review Board granting the respondent a conditional discharge.

The respondent, who suffers from paranoid schizophrenia, had previously caused the death of a police officer while psychotic and unmedicated.

The Court of Appeal found the Board's decision unreasonable, noting the respondent's history of medication non-compliance, social isolation, and lack of relationship with his treatment team.

The Court allowed the appeal, set aside the conditional discharge, and reinstated the hospital detention order permitting residence in the community.

The appellant mother appealed a trial judgment ordering joint custody of the parties' two children, arguing the parents could not communicate, there was a history of domestic violence, and the order lacked a dispute resolution mechanism.

The Court of Appeal dismissed the appeal, finding the trial judge had an evidentiary basis to conclude the parties could effectively communicate once court orders preventing contact were lifted.

The court also found no error in the trial judge's assessment of the domestic abuse allegations or the access schedule.

The appellant operated a business arranging hotel accommodations for sports teams, receiving commissions from the hotels but no remuneration from the teams.

He was charged with acting as an unregistered travel agent under the Travel Industry Act, 2002.

The justice of the peace acquitted him, finding he did not sell travel services to the teams as a principal.

The Ontario Court of Justice reversed the acquittal and entered a conviction.

The Court of Appeal dismissed the appeal, holding that the statutory definition of 'travel agent' includes a person who sells travel services to consumers as an agent for the provider of those services.