OCA 2010

The appellant appealed a motion judge's order that permanently stayed certain allegations in an assessment of costs proceeding and required her to order transcripts as a condition of proceeding.

The Court of Appeal upheld the stay of allegations relating to the mortgagee's solicitor's alleged refusal to allow mortgage redemption, noting such issues must be litigated between the mortgagor and mortgagee, not on an assessment of the solicitor's costs.

However, the Court set aside the transcript requirement as the necessary transcript was already available, and ordered each party to bear their own costs.

The appellant was acquitted at trial of impaired driving after the trial judge excluded breathalyzer evidence, finding the officer lacked objective reasonable and probable grounds for the breath demand.

The summary conviction appeal court overturned the acquittal and ordered a new trial.

The appellant appealed, arguing the summary conviction appeal judge improperly altered the transcript of her oral reasons and erred in her legal analysis of reasonable and probable grounds.

The Court of Appeal held that while altering transcripts of oral reasons is inappropriate, it did not affect the outcome.

Applying the Supreme Court's guidance in Shepherd, the Court found the officer's subjective belief was objectively reasonable given the appellant's erratic driving, flushed face, and admission of alcohol consumption.

The appeal was dismissed.

The appellant appealed a disposition by the Ontario Review Board.

The Court of Appeal found no error in the Board's disposition and agreed that certain comments did not need to be incorporated into the formal order.

The Court urged the hospital to make best efforts to obtain linguistic assistance for the appellant to meaningfully participate in rehabilitative efforts.

The appeal was dismissed.

The Crown appealed the respondent's acquittals on charges of production of marijuana and bribery.

The trial judge had excluded the respondent's statements to police under s. 24(2) of the Charter, finding breaches of ss. 9, 10(a), and 10(b) due to the respondent's language difficulties.

The Court of Appeal upheld the exclusion of evidence for the marijuana charge.

However, the Court allowed the appeal regarding the bribery charge, holding that the statements offering money to police constituted the actus reus of a new offence and did not flow causally from the Charter breaches.

A new trial was ordered for the bribery charge.

The appellant appealed his sentence, specifically challenging his designation as a Dangerous Offender.

The Court of Appeal dismissed the appeal, finding that the designation and its associated stigma were entirely warranted in this case.

The appellant appealed an order finding its bid in a receivership sale process to be invalid.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the agreed process required parties to submit their final and best offer by a specified date and that the bids were to remain confidential.

As such, an auction was not contemplated, and the appellant's bid was properly ruled invalid.

The appellants appealed the dismissal of their medical malpractice action arising from the death of the patient due to a pulmonary embolism following arthroscopic knee surgery.

The appellants argued the respondent orthopaedic surgeon was negligent in failing to warn the patient about the symptoms of a pulmonary embolism upon discharge.

The trial judge found the respondent met the standard of care, as the patient was not at a heightened risk of a pulmonary embolism at the time of discharge.

The Court of Appeal (majority) dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of the evidence and application of the standard of care.

The appellant was convicted of paying for sexual services from a person under 18 years of age.

He appealed, arguing the trial judge erred in her jury instructions regarding his defence of mistake of age.

The Court of Appeal allowed the appeal, finding the trial judge gave conflicting and confusing instructions on the burden of proof concerning whether the appellant took all reasonable steps to ascertain the complainant's age.

The conviction was quashed and a new trial ordered.

The appellants appealed a trial decision regarding a stolen backhoe that police recovered and turned over to the respondents for storage.

The appellants argued the respondents had a duty to investigate the ownership of the backhoe.

The Court of Appeal dismissed the appeal, upholding the trial judge's conclusion that the police, not the respondents, had the responsibility to investigate ownership.

The Court also found no error in the trial judge's credibility assessments.

Following the release of its reasons on appeal, the Court of Appeal received written submissions on costs.

The successful respondent, the Municipality of Clarington, was awarded costs of the appeal fixed at $15,000 on a partial indemnity basis, inclusive of GST and disbursements.

The appellants appealed a judgment of the Superior Court of Justice.

On consent, the Court of Appeal dismissed the appeal and ordered two of the appellants to pay costs of $8,000 to the respondent.

The appellant appealed a motion judge's decision finding her action was statute-barred.

She sought to admit a 2003 cheque as fresh evidence to show a payment on the mortgages.

The Court of Appeal dismissed the application to adduce fresh evidence because the appellant provided no explanation for failing to adduce it before the motion judge, and dismissed the appeal.

The appellant appealed his conviction for possession of child pornography, arguing the trial judge misapplied the burden of proof, failed to give reasons for rejecting his evidence, failed to self-instruct on a Vetrovec warning for his ex-wife's testimony, and erred in conducting an unassisted handwriting comparison.

The Court of Appeal dismissed the conviction appeal, finding no errors in the trial judge's assessment of the evidence or his cautious approach to the handwriting comparison.

The Crown's cross-appeal on sentence was allowed on consent, adding probation conditions and a SOIRA order.

The appellant was convicted of conspiracy to defraud and defrauding the Government of Canada of over $3 million.

He appealed his conviction and sentence, arguing unreasonable delay under s. 11(b) of the Charter and that the trial judge erred by failing to instruct the jury that his silence at trial could not be used against him.

The trial judge had relied on Supreme Court of Canada obiter dicta suggesting s. 4(6) of the Canada Evidence Act prohibited such an instruction.

The Court of Appeal held that the SCC obiter was non-binding and conflicted with earlier binding SCC ratio, meaning the instruction could have been given.

However, the court found the jury instructions as a whole were adequate and the delay was reasonable given the complexity of the proceedings.

The appeal from conviction and the three-year sentence were dismissed.

The appellant appealed his conviction for first-degree murder and home invasion.

The Crown's case relied on statements made by the appellant during a 'Mr. Big' operation, cell phone records, and a tacit admission to a friend.

On appeal, the appellant argued the trial judge erred by permitting prohibited propensity reasoning, ruling that the defence violated the rule in Browne v. Dunn, and instructing the jury on the co-conspirator's exception to the hearsay rule.

The Court of Appeal dismissed the appeal, finding no impermissible propensity reasoning, upholding the Browne v. Dunn ruling as fair, and concluding the hearsay instruction caused no prejudice.

The appellant appealed his nine-year sentence for robbery and attempted robbery using an imitation firearm and disguise.

He argued the sentence overemphasized his dated record and failed to account for the totality and gap principles.

The Court of Appeal agreed, finding the sentencing judge failed to properly account for an effective ten-year gap between the appellant's prior robbery convictions and the present offences.

Leave to appeal was granted, and the total sentence was reduced to seven years.

The appellant, who was struck by a vehicle as a child pedestrian, appealed the dismissal of her action following a jury trial.

She argued the trial judge erred in permitting cross-examination on a hospital record and in the jury charge regarding the driver's duty of care and proper lookout.

The Court of Appeal dismissed the appeal, finding the trial judge's limiting instructions cured any prejudice from the cross-examination and the jury charge adequately equipped the jury to assess the driver's negligence and reverse onus.

The appellant appealed his designation as a dangerous offender, arguing he should have been designated a long-term offender.

The Court of Appeal dismissed the appeal, finding the sentencing judge did not err in concluding there was no reasonable possibility of successful treatment to control the risk the appellant posed in the community.

The appellant appealed a disposition of the Ontario Review Board that restricted his possession or use of cell phones, portable wireless communication devices, and computers.

The Court of Appeal found no basis to interfere with the Board's decision, but clarified that the restriction on computer use was intended to prevent internet access and did not preclude the appellant from using a computer that has no internet connection.

With that clarification, the appeal was dismissed.

The appellants appealed an order dismissing their motion to decline jurisdiction.

The Court of Appeal upheld the motion judge's finding that there was a real and substantial connection between the Ontario court and the claim, satisfying the test for jurisdiction simpliciter under both Muscutt and Van Breda.

The Court also found no error in the motion judge's exercise of discretion regarding the forum non conveniens analysis, noting that even if recent Supreme Court jurisprudence attenuated the juridical advantage point, there were sufficient other bases to support the decision.

The appeal was dismissed with costs fixed at $12,000.