OCA 2010

Following an appeal from an order striking the appellant's statement of claim, the successful respondents sought their costs.

The Court of Appeal found no reason to deprive the successful party of its costs and awarded the respondents $5,188 inclusive of GST and disbursements.

The respondent sought costs following a one-day appeal.

The court noted the costs claimed were well beyond the usual range and that the respondent's motion to quash the appeal had been dismissed.

Taking into account the complexity, importance of the issues, amount at issue, and the result achieved, the court fixed costs awarded to the respondent at $50,000 inclusive of disbursements and GST.

The appellant appealed a summary conviction appeal decision, arguing the trial judge failed to find the officer had objectively reasonable and probable grounds to believe the roadside screening device was working before demanding a blood sample.

The Court of Appeal dismissed the appeal, finding that the trial judge was alive to the need for both subjective and objective grounds, and that such a finding was implicit in the reasons.

The summary conviction appeal judge also correctly found a basis for reasonable and probable grounds.

Following the outcome of the appeals, the court awarded costs to the respondent in the amount of $43,000, inclusive of GST and disbursements.

The appellant appealed his convictions, arguing that statements he made to police should have been excluded under s. 24(2) of the Charter due to a s. 10(b) breach.

The Court of Appeal agreed that the statements were taken in violation of s. 10(b).

However, the Court held that even if the statements were excluded, the verdicts would necessarily have been the same, as the appellant was the sole occupant of his own car, and a loaded gun was found on the back seat underneath his coat.

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

The appellant appealed the restitution order made at trial following a conviction for fraud.

The trial judge found the amount of fraud was at least $15,645, which was justified by the evidence.

However, the trial judge made an arithmetical error in calculating the final amount.

The Court of Appeal allowed the appeal in part, varying the restitution order to $10,845.

The appellants appealed a summary judgment enforcing a debenture, arguing that a factual dispute over the exercise of an option and a claim for equitable set-off based on alleged misrepresentations raised triable issues.

The Court of Appeal dismissed the appeal, finding that the debenture created a stand-alone debt unaffected by the option agreement, and that the alleged misrepresentations did not go to the root of the respondent's claim.

The appellant appealed his convictions and sentence for sexual offences, including rape.

He argued that the trial judge misused discreditable conduct evidence, erred in a severance ruling, and that the Crown's cross-examination was improper.

The Court of Appeal dismissed the conviction appeal, finding no errors in the trial judge's careful reasons and ample reason to disbelieve the appellant.

The sentence appeal was also dismissed, as the sentence was fit given the serious nature of the offences, the vulnerability of the victims, and the appellant's prior record for sexual assault.

The appellants, commercial tenants, were locked out by their landlord for rent arrears.

To regain entry, they signed minutes of settlement and a promissory note guaranteeing the landlord's lawyer's fees.

When sued on the settlement, the appellants brought a third party claim against the lawyer for economic duress.

The Court of Appeal upheld the motion judge's decision to strike the third party claim, finding that the lawyer's routine conduct in advancing her client's position did not constitute the illegitimate pressure required for economic duress.

The Crown appealed a Superior Court decision dismissing its application for certiorari.

The preliminary inquiry justice had discharged the respondent on a charge of first degree murder, finding insufficient evidence of planning and deliberation.

The Court of Appeal held that the justice's sufficiency determination, even if arguably incorrect, did not constitute a jurisdictional error reviewable on certiorari.

The appeal was dismissed.

The appellant appealed his convictions and sentence for sexual offences, including child pornography, involving a 15-year-old complainant.

He argued the trial judge erred in assessing the complainant's actions regarding consent, failed to properly apply the W.(D.) framework for credibility, and misused recent complaint evidence.

The Court of Appeal dismissed the appeal, finding the trial judge adequately explained why the complainant's trauma negated consent, properly rejected the appellant's evidence, and correctly admitted the recent complaint as narrative and demeanour evidence.

The conviction for child pornography was upheld as the trial judge rejected the appellant's claim that the complainant said she was 18.

The sentence appeal was also dismissed.

The appellant sought leave to appeal a summary conviction appeal decision, arguing that there were inconsistencies in the Crown's evidence.

The Court of Appeal noted that both the trial judge and the summary conviction appeal judge were alive to these inconsistencies, yet the trial judge accepted the Crown witness's evidence and found the case proven beyond a reasonable doubt.

The Court of Appeal concluded the inconsistencies were not stark enough to give rise to a ground of appeal under the test in R. v. R.R. and denied leave to appeal.

The applicant sought leave to appeal a summary conviction appeal court decision upholding his conviction for operating a motor vehicle with a prohibited blood-alcohol content.

The self-represented applicant argued the trial judge erred in relying on statutorily compelled statements.

The Court of Appeal refused leave, noting the issue was not raised below, lacked an evidentiary foundation, and the trial judge made no improper use of the statements.

The appellant appealed his conviction for aggravated assault arising from a fist fight at a football game.

He argued the trial judge erred in denying an adjournment to obtain a transcript for a section 11(b) Charter application, and in failing to apply the principles of R. v. W.(D.) when assessing credibility.

The Court of Appeal found no error in the denial of the adjournment.

However, the Court allowed the appeal and ordered a new trial because the trial judge's reasons suggested she believed the Crown witnesses simply because she disbelieved the defence witnesses, contrary to the W.(D.) principles.

The appellant appealed an order striking his pleadings for allegedly failing to answer undertakings, and the subsequent trial judgment made in his absence.

The Court of Appeal found that the order striking pleadings was made without sworn evidence and without full disclosure by the respondent's counsel regarding the appellant's efforts to answer the undertakings.

The Court set aside the order striking the pleadings and the trial judgment, noting that striking pleadings is an order of last resort.

The appellant taxpayer obtained a declaratory judgment that it was not required to pay retail sales tax on rented wooden pallets because they did not fall within the definition of 'returnable container' under the Retail Sales Tax Act.

In response, the legislature retroactively amended the Act to broaden the definition.

The Minister successfully moved for a determination that the retroactive amendment applied to the appellant's outstanding tax assessment appeals.

The Court of Appeal dismissed the taxpayer's appeal, holding that there is no exception to the general application of valid retroactive legislation for 'adjudicated rights' where the prior declaration merely interpreted the former law.

The appellant appealed an order allowing the respondent estate to garnish his partnership income to satisfy a debt.

The Court of Appeal upheld the garnishment but addressed a new issue raised on appeal regarding whether partnership income is protected under the Wages Act.

While finding that partnership income is not 'wages' under the Act, the Court held that equitable jurisdiction allows for the reduction of garnished amounts to protect self-employed income for living expenses.

The appeal was dismissed, but the issue of protecting the partnership income was remitted to the Superior Court.

The appellants insured a classic vehicle under a stipulated value policy and later claimed it was stolen.

After the vehicle was recovered, expert evidence at trial revealed it was not the rare, excellently preserved vehicle it was represented to be.

The jury dismissed the claim, finding the appellants gave false particulars to the prejudice of the insurer under s. 233(1)(a)(i) of the Insurance Act.

On appeal, the appellants argued the insurer waived the misrepresentation defence, failed to prove prejudice, and introduced unfair evidence suggesting fraud.

The Court of Appeal dismissed the appeal, finding no evidence of waiver or estoppel, sufficient evidence of prejudice, and that the evidence of false particulars was properly admitted.

The Crown sought leave to appeal from a Superior Court order allowing the respondent's appeal from his conviction on two counts of sexual assault and directing a new trial.

The Crown conceded the appeal did not raise an issue of broader significance but argued leave should be granted because the merits were very strong.

The Court of Appeal denied leave, finding the merits alone did not warrant granting leave in the circumstances.

The appellant appealed a summary judgment granted to his former employer for amounts due on two loans.

The appellant argued his termination was in bad faith to appropriate his book of business, but the court found no evidence to raise a triable issue, noting he committed a clear breach of corporate policy.

The Court of Appeal also upheld the motion judge's discretionary decisions denying equitable set-off and a stay pending the resolution of the counterclaim.

The appeal was dismissed with costs.