OCA 2011

The appellant appealed an order dispensing with the requirement for his signature on a listing agreement for the sale of the matrimonial home, and the refusal of an adjournment.

The Court of Appeal dismissed the appeal, finding the motion judge did not exercise his discretion unreasonably in refusing the adjournment.

The appellant suffered no prejudice because the sale proceeds were ordered to be held in trust pending agreement or further court order.

The court stayed the order for 14 days to allow the appellant to remove his personal belongings.

The appellant appealed a global sentence of 22 months.

The Court of Appeal found the overall sentence fit but held the trial judge erred by refusing to consider parole ineligibility when assessing pre-trial custody credit.

Applying recent jurisprudence, the Court increased the pre-trial custody credit to 2:1, resulting in the sentence being varied to time served.

The plaintiffs obtained a judgment against a bankrupt property maintenance company for injuries sustained in a slip and fall.

They subsequently brought an action against the company's insurer under s. 132 of the Insurance Act.

The insurer argued it was not liable because the insured failed to provide notice of the claim.

The Court of Appeal held that notice provided by a co-defendant property owner was effective under the policy's liability conditions, which allowed notice to be given 'by or for' the insured.

Alternatively, the court found the plaintiffs were entitled to relief from forfeiture under s. 129 of the Insurance Act, as the failure to give timely notice constituted imperfect compliance and the insurer suffered no prejudice.

The appellants appealed a decision striking out their Amended Notice of Application against a notary public for disclosing no reasonable cause of action.

The appellants alleged they unknowingly signed powers of attorney revoking their interest in foreign property, which were notarized by the respondent notary in their absence.

The Court of Appeal allowed the appeal, finding it was not plain and obvious that the notary owed no duty of care to the appellants when she affixed her signature, knowing the legal effect it would carry in the foreign jurisdiction.

The appellant appealed her conviction, arguing claims of self-defence or accident.

The Court of Appeal dismissed the appeal, finding that the objective medical evidence provided a sufficient basis for the trial judge to reject the appellant's testimony, and noting no other evidence supported her claims.

The appellant, a Canadian mining company headquartered in Ontario, sued its former chief operating officer, an Australian national, for breach of contract and fiduciary duty relating to a mining project in Serbia.

The motion judge dismissed the action for want of jurisdiction and stayed it on grounds of forum non conveniens.

The Court of Appeal allowed the appeal, finding a real and substantial connection to Ontario because the employment contract was governed by Ontario law, damages were sustained in Ontario, and the respondent had significant ongoing contact with the province.

The Court also held that the respondent failed to demonstrate that another jurisdiction was clearly more appropriate.

The appellant appealed the denial of a prohibition application, arguing that a Justice of the Peace must be legally trained to conduct a fair trial of provincial offences charges.

The Court of Appeal dismissed the appeal, affirming its previous decisions that legal training is not required and noting that recent legislative changes have further strengthened the qualifications and training of Justices of the Peace.

The appellant was convicted of manslaughter after fatally stabbing the deceased in the appellant's apartment.

At trial, the appellant claimed self-defence.

The trial judge instructed the jury that they could consider the appellant's failure to retreat from his own home when assessing the reasonableness of his actions.

The Court of Appeal held that this was an error in law, as there is no duty to retreat from one's own home when attacked, nor is it a factor for the jury to consider under section 34(2) of the Criminal Code.

The appeal was allowed and a new trial ordered.

The appellant appealed an order interpreting a release executed following the settlement of a dispute.

The Court of Appeal upheld the application judge's finding that the release covered the claim for removal of excess fill, as the facts were known to the appellant when the release was executed.

The Court also upheld the reduction of a letter of credit and the imposition of additional terms.

The appeal was dismissed with costs.

HSBC Bank Canada brought a motion for an order that Jack Lechcier-Kimel requires leave to appeal an order adding HSBC as a creditor in his bankruptcy application.

Lechcier-Kimel brought a cross-motion for leave to appeal.

The Court of Appeal held that leave is required because adding a party does not involve future rights under s. 193 of the Bankruptcy and Insolvency Act.

The court further held that a single judge has jurisdiction to grant leave.

Leave to appeal was refused because the proposed grounds of appeal lacked prima facie merit.

The appellant appealed an order granting summary judgment to enforce an Illinois default judgment.

The appellant argued there was no real and substantial connection between Illinois and the claim or the appellant, and that enforcing the judgment was contrary to public policy.

The Court of Appeal dismissed the appeal, finding that while the connection between Illinois and the appellant was not strong, there was a real and substantial connection between Illinois and the plaintiff's claim, which is sufficient to enforce the foreign judgment.

The court also found no public policy reason to refuse enforcement.

The appellant, charged with marijuana possession, production, and possession for the purpose of trafficking, appealed two Superior Court decisions dismissing his applications to prohibit prosecution.

He argued that the relevant provisions of the Controlled Drugs and Substances Act had been invalidated by various courts and were offences unknown to law.

The Court of Appeal dismissed the appeals, noting that it had previously confirmed the provisions remain in full force and effect.

The appellant appealed his conviction under s. 95(2) of the Criminal Code.

Based on fresh evidence, the Crown conceded the conviction could not stand, but the appellant agreed he was guilty of the lesser included offence of unauthorized possession of a firearm.

The Court of Appeal substituted a conviction for the lesser included offence and dismissed the sentence appeal, finding the original sentence remained fit.

The appellant appealed his conviction, arguing that the trial judge erred in her Vetrovec warning to the jury regarding a 'mixed witness' who gave evidence favourable to both the Crown and the defence.

The appellant contended that the trial judge should not have directed the jury to look for confirmatory evidence of the exculpatory portions of the witness's testimony.

The Court of Appeal dismissed the appeal, finding that the trial judge made it clear the jury could accept the testimony without confirmatory evidence.

The Court noted that the instruction was fair to the appellant, as it did not repeat strong inculpatory evidence and provided a path to accept the exculpatory evidence without confirmation.

Furthermore, defence counsel did not object to the charge at trial.

The appellant appealed his conviction for impaired driving, arguing that his continued detention after a lawful traffic stop was arbitrary under s. 9 of the Charter, and that the breathalyzer technician's observations of his impairment should have been excluded under s. 24(2).

The Court of Appeal dismissed the appeal, finding that the initial detention was lawful under s. 216(1) of the Highway Traffic Act and the continued detention was justified to investigate his dangerous driving.

The court held that the technician's observations were not conscriptive evidence and did not arise from a Charter violation.

The appellant was convicted of manslaughter after striking the victim in the head with a metal bar during an altercation in a truck.

On appeal, the appellant argued that the trial judge erred by failing to correct a misstatement in the Crown's closing address regarding when certain photographs of the truck's interior were taken, and by accepting the jury's verdict before answering a question the jury had asked about those photographs.

The Court of Appeal dismissed the appeal, finding that the misstatement did not require a correcting instruction and that the trial judge acted appropriately in accepting the verdict with the agreement of counsel.

The appellants, former executives of Livent, appealed their convictions and sentences for large-scale commercial frauds involving the falsification of financial statements.

The Court of Appeal dismissed the conviction appeals, finding that the trial judge's reasons were adequate, the verdicts were reasonable, and the trial judge properly assessed the credibility of unsavoury accomplice witnesses.

However, the Court allowed the sentence appeals, reducing the penitentiary terms because the Crown failed to prove the actual amount of financial loss or that the company's bankruptcy was caused solely by the fraud.

Following an appeal where the appellants achieved divided success, the Court of Appeal determined the appropriate costs awards for both the appeal and the trial.

The appellants were awarded reduced partial indemnity costs for the appeal to reflect their divided success.

For the trial costs, the respondents were awarded their agreed costs against the unsuccessful appellant, and a Sanderson order was made allowing the respondents to recover the trial costs they owed to the successful co-appellants from the unsuccessful appellant.

The appellant was convicted of possession of cocaine for the purpose of trafficking and simple possession of cocaine and ecstasy, receiving a five-year sentence.

The drugs were found in his apartment following a gunfight, though he was acquitted of weapons charges and his role in the trafficking operation was unclear.

On appeal, the Court of Appeal found the five-year sentence disproportionate for the small amount of cocaine (14.87 grams) and held the trial judge erred by failing to consider the appellant's rehabilitation efforts and assistance to police.

The appeal was allowed and the sentence reduced to time served (14 months and nine days).

The appellants appealed a sealing order that redacted the amounts to be paid under two proposed settlement agreements in a CCAA proceeding.

The appellants argued the sealing order unjustifiably infringed the open court principle.

The Court of Appeal dismissed the appeal, finding that litigation settlement privilege applied to the settlement agreements until approved by the court.

The court held that the sealing order was a minimal intrusion on the open court principle, the requirement to sign a confidentiality agreement did not impose an undue burden, and the respondents did not waive privilege by complying with the court order.