OCA 2011

The appellant defaulted on a loan from a business associate, who subsequently assigned the debt to the respondent.

The respondent successfully sued the appellant for the balance of the loan.

On appeal, the appellant argued that the loan agreement was unenforceable due to the law against champerty and maintenance.

The Court of Appeal dismissed the appeal, holding that the assignment of a debt is not a champertous transaction and is valid under section 53 of the Conveyancing and Law of Property Act.

The appellant was convicted of manslaughter by the Court of Appeal, which substituted the conviction for second-degree murder following an appeal.

The appellant acted as a middleman in an insurance fraud scheme, recruiting arsonists to burn down a commercial building, which resulted in the death of one of the arsonists.

The Court of Appeal imposed a base sentence of 10 years' imprisonment, finding the appellant's role and the inherent danger of the arson warranted a substantial penitentiary term.

After applying credit for pre-sentence and post-conviction custody, the appellant was sentenced to 4 years and 11 months.

The appellant appealed his conviction, arguing the trial judge erred in her credibility assessments and misapprehended evidence.

He also sought to introduce fresh evidence.

The Court of Appeal dismissed the appeal, finding the trial judge gave substantial reasons for accepting the complainant's evidence and that any minor misapprehension of peripheral evidence did not affect the overall credibility assessment.

The court also declined to admit the fresh evidence, noting it would not assist the appellant's credibility.

The respondent loaned a killer whale to the appellant under a Breeding Loan Agreement.

The respondent later gave notice to terminate the agreement, but the appellant refused to return the whale, arguing the termination right was qualified by a prior Interchange Agreement and extrinsic evidence.

The application judge found the Breeding Loan Agreement was a clear, unambiguous, stand-alone contract permitting termination without cause.

The Court of Appeal upheld this decision, finding no ambiguity that would allow the admission of extrinsic evidence and concluding the termination provision was not commercially unreasonable.

The parties reached a settlement in the appeal.

The Court of Appeal for Ontario ordered that the matter be resolved according to the draft order filed.

The appellant appealed an order regarding the guardianship of the respondent.

The motion judge had mistakenly treated a motion for a time-limited appointment to obtain medical assessments as an application for permanent guardianship, believing he lacked the power to grant the former.

The Court of Appeal allowed the appeal and set aside the order, noting the judge had the necessary power under s. 58(2)(a) of the Substitute Decisions Act.

The parties agreed to mediate the matter.

The appellant franchisee operated a gas station under a one-year franchise agreement with the respondent franchisor.

The franchisee sought to rescind the agreement and claim a refund under the Arthur Wishart Act because the franchisor had not provided a disclosure document.

The franchisor successfully moved for summary judgment on the basis that it was exempt under s. 5(7)(g)(ii) of the Act, which applies to agreements valid for no longer than one year that do not involve a non-refundable franchise fee.

The Court of Appeal upheld the motion judge's finding that the agreement's one-year term and requirement to pay royalties, rather than a franchise fee, satisfied the exemption criteria.

The appellant appealed his committal for extradition and sought judicial review of the Minister of Justice's surrender order to the United States on charges relating to a massive telemarketing fraud scheme.

He argued the extradition judge lacked jurisdiction because a photocopy of the Authority to Proceed was filed, that the evidence was insufficient for fraud over $5,000, and that the surrender order improperly included a conspiracy charge.

The Court of Appeal dismissed the appeal and application, finding that the Extradition Act does not require an original Authority to Proceed, the evidence of the $7 million fraud scheme was sufficient for committal, and the double criminality principle does not require matching the foreign offence to the Canadian corresponding offence.

The appellant appealed his convictions for assault with a weapon and assault causing bodily harm, as well as his sentence, following a domestic incident where he struck his spouse with a shovel.

The Court of Appeal dismissed the conviction appeal grounds relating to unreasonable delay under s. 11(b) of the Charter and the application of the W. (D.) test for credibility.

However, the court agreed that the Kienapple principle applied, staying the conviction for assault with a weapon as it arose from the same delict.

The sentence appeal was dismissed, with the court finding the custodial sentence reasonable given the severity of the spousal abuse.

The appellant challenged his child luring conviction on the basis that text messaging by cellular telephone did not amount to communicating by means of a computer system within the meaning of the Criminal Code.

The court held that text messaging using cellular phones involves interconnected devices and computer programs performing logic and control functions, and therefore falls within s. 342.1(2).

On sentence, the court upheld a six-and-one-half-year global penitentiary term for grooming and sexually assaulting a 12-year-old after inducing her with false promises of millions of dollars.

The court confirmed that grooming may be treated as an aggravating factor and emphasized that denunciation, deterrence, separation of offenders, and child protection are paramount in sentencing adult sexual predators.

The appellants appealed a trial judge's decision to invoke Rule 52.08 of the Rules of Civil Procedure to overturn a jury's finding of negligence against the respondent doctor.

The jury had found that the respondent's delay in transferring the appellant to another facility caused his paraplegia.

The Court of Appeal upheld the trial judge's decision, finding that while the respondent breached the standard of care by delaying the transfer, the appellants failed to adduce any expert evidence proving that an earlier transfer would have resulted in a timely diagnosis and surgery to prevent the paralysis.

The appeal was dismissed.

The appellant appealed the dismissal of his claims against the Crown.

The Court of Appeal dismissed the appeal, finding no merit in the claims even if they were not statute-barred by the Limitations Act.

The Court noted that the section 15 Charter claim was too vague and lacked evidence to permit meaningful analysis.

Costs of $8,000 were awarded to the respondent, though the Crown undertook not to enforce the order due to the appellant's financial circumstances.

The appellants appealed a judgment finding Oren Nirenberg personally liable for inducing Zurich Insurance to breach its contract with the respondent.

The parties had a joint venture to share commissions from group insurance policies sold to Seneca College employees.

Nirenberg directed Zurich to forward all commissions to his company instead of the respondent, which Zurich did.

The Court of Appeal upheld the trial judge's finding that Zurich's failure to pay the respondent was a breach of contract, and Nirenberg intentionally induced that breach.

The appeal was dismissed.

The employer, Hudson's Bay Company, cross-appealed a trial judgment declaring that it was not a beneficiary of a pension plan trust fund and not entitled to surplus assets on plan termination.

The Court of Appeal applied the framework from Schmidt v. Air Products of Canada Ltd. and found that the original trust agreement created an irrevocable trust for the exclusive benefit of the plan members.

The Court distinguished the recent Supreme Court of Canada decision in Burke v. Hudson's Bay Co., noting that the originating documents in this case contained exclusive benefit language that precluded the employer from claiming the surplus.

The cross-appeal was dismissed.

The appellant appealed her convictions for possession of a loaded prohibited firearm and heroin, arguing the trial judge erred in dismissing her motion to exclude evidence under s. 24(2) of the Charter.

The contraband was found during a warrantless search of her knapsack after police responded to a 911 call about a hostage situation.

The Court of Appeal found that the search violated the appellant's s. 8 Charter rights, as it was not justified by exigent circumstances or the Waterfield doctrine.

However, applying the Grant framework, the Court concluded the evidence should not be excluded under s. 24(2) because the police acted in good faith in a chaotic situation and the law regarding police powers in such circumstances was uncertain.

The appeal was dismissed.

The appellant appealed his convictions, arguing that the Crown improperly cross-examined and argued about the complainant's motive to fabricate, and that the guilty verdicts were inconsistent with an acquittal on an incest charge.

The Court of Appeal dismissed the appeal, finding that the trial judge gave a proper curative instruction regarding the Crown's conduct and that the verdicts were not inconsistent, as it was open to the jury to accept some of the complainant's evidence while rejecting other parts.

The appellant appealed his convictions on the basis that the trial judge erred in finding his evidence not credible.

The trial judge's primary reason for rejecting the appellant's credibility was a finding that the appellant deliberately failed to disclose his complete criminal record.

The Court of Appeal found this was not a fair basis for rejecting the evidence, as the incomplete record was due to an inadvertent error by both Crown and defence counsel, and the appellant readily admitted the missing convictions during cross-examination.

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

The appellant was convicted of second degree murder based on strong DNA evidence linking his blood to the crime scene.

On appeal, he argued the trial judge erred in his jury instructions regarding the use of the appellant's pre-trial statements, specifically by failing to give an O'Connor instruction and by incorrectly stating that prior inconsistent exculpatory statements were not evidence unless adopted at trial.

The Court of Appeal found no error in omitting the O'Connor instruction given the independent evidence of concoction.

While the court agreed the trial judge erred in his instruction on prior inconsistent statements, it applied the curative proviso under s. 686(1)(b)(iii) of the Criminal Code, concluding the error caused no substantial wrong or miscarriage of justice given the overwhelming DNA evidence.

The appeal was dismissed.

The appellant appealed his summary conviction, arguing that the trial judge failed to consider evidence corroborating his claim that he could not communicate in English.

The Court of Appeal dismissed the appeal, finding that the trial judge expressly referred to the evidence but accepted the police officers' evidence as equally credible, concluding the appellant had not met his burden.

The appellant appealed his conviction for mischief over $5,000 relating to property damage where his plumbing company had worked.

He argued the trial judge provided insufficient reasons regarding his alibi defence, misapplied the W.(D.) test, and improperly relied on photo line-up evidence.

The Court of Appeal dismissed the appeal, finding the trial judge adequately explained her credibility findings, properly directed her mind to whether the defence evidence raised a reasonable doubt, and placed little to no weight on the photo line-up.