OCA 2011

The appellant appealed his convictions for attempted choking and threatening, as well as his sentence of 18 months' imprisonment plus pre-trial custody and 3 years' probation.

He argued the trial judge misapprehended evidence and applied uneven scrutiny to the testimony.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's reasons satisfactory and her credibility assessments sound.

The sentence appeal was also dismissed, as the sentence was within the proper range for a serious domestic violence offence and adequately reflected principles of deterrence and denunciation.

The appellant was convicted of manslaughter following a stabbing during a fight.

He appealed his conviction on four grounds, including an improper closing address by the Crown, misleading jury instructions regarding expert pathology evidence, an unreasonable verdict, and systemic underrepresentation of aboriginal on-reserve residents in the jury roll.

The Court of Appeal split the appeal into two parts.

The Court dismissed the first three grounds, finding the trial was fair, the jury instructions were adequate, and the verdict was reasonable.

The Court adjourned the appeal to hear submissions on the discrete issue of the jury roll composition.

The tenant obtained creditor protection under the CCAA and sent a letter to the landlord repudiating its commercial lease.

The landlord did not acknowledge or accept the repudiation.

The tenant subsequently went bankrupt, and the trustee in bankruptcy disclaimed the lease, disallowing the landlord's claim for unrecoverable expenses for the remainder of the lease term.

The landlord's successor appealed the dismissal of its motion to set aside the disallowance.

The Court of Appeal dismissed the appeal, holding that an unaccepted repudiation does not terminate a lease, and therefore the lease remained in effect at the date of bankruptcy and was subject to the trustee's statutory disclaimer.

The appellant appealed his convictions for robbery, attempted murder, and firearm offences arising from a shootout with police.

At trial, he advanced an alibi defence that was not disclosed prior to his testimony.

He argued on appeal that the trial judge erred in her jury instructions regarding the late disclosure of his alibi, the failure to call his mother as an alibi witness, and the lack of an unsavory witness caution for a key Crown witness.

He also alleged ineffective assistance of counsel for failing to serve a notice of alibi.

The Court of Appeal dismissed the appeal, finding no errors in the trial judge's instructions and concluding that defence counsel's decision not to serve a notice of alibi was a competent tactical choice.

The husband's father transferred common shares in his company to the husband as part of an estate freeze.

The trial judge found the shares were not a gift and included them in the husband's net family property for equalization.

The Court of Appeal reversed this finding, holding that the shares were a valid gift despite the father's commercial motivations and the husband's lack of knowledge of certain conditions attached to the transfer.

However, the Court of Appeal ordered a new trial because the trial judge failed to determine the wife's claim for a beneficial ownership interest in the shares via constructive trust before calculating the equalization payment.

The appellant appealed an extradition judge's order committing him for surrender to Hungary to face charges of fraud over $5,000.

The appellant argued there was insufficient evidence in the Records of the Case identifying him as the perpetrator who created false car leasing documents and entered into fraudulent loan agreements.

The Court of Appeal dismissed the appeal, finding that the summaries of evidence, including witness testimony and documentary evidence, when read as a whole, provided sufficient evidence to support the inference that the appellant was the perpetrator of the frauds.

The appellants appealed a summary judgment decision, arguing that the motion judge exceeded her authority under the former Rule 20 by making findings of fact and credibility determinations.

The Court of Appeal dismissed the appeal, holding that motion judges had a limited power to make such findings when determining whether there was a genuine issue for trial.

The court awarded costs of $15,000 to the respondents.

The appellants appealed a motion judge's decision regarding the tolling of the limitation period for a solicitor's negligence claim arising from a criminal proceeding.

The Court of Appeal allowed the appeal, holding that it is artificial to distinguish between the trial phase and the sentencing phase when addressing allegations of solicitor's negligence.

The limitation period did not begin to run until the trial was complete and the sentence was imposed.

The appellant appealed his conviction for aggravated assault, arguing the trial judge provided inadequate reasons and misapprehended the evidence of the complainant's sister regarding an alleged admission.

The Court of Appeal dismissed the appeal, finding the trial judge adequately scrutinized the sister's testimony and did not assign it undue prominence given the formidable circumstantial evidence of identity.

The court also found no misapprehension of evidence regarding the appellant's acknowledgement of involvement in the altercation.

The parties were joint venturers in property development who had a falling out, leading to the appointment of a Receiver to sell properties in Waterloo, London, and Oshawa.

The motion judge approved the Receiver's amended sales process, which included a stalking horse offer from the respondent, despite finding that the respondent had engaged in tactical conduct to derail the original sales process.

On appeal, the Court of Appeal held that the motion judge erred by disregarding the respondent's conduct when exercising her discretion, as the conduct undermined the integrity of the court-supervised sales process.

The appeal was allowed in part, and the Waterloo property was ordered sold to the appellant in accordance with his original bid.

The appellant was convicted of refusing to provide a breath sample after she unequivocally refused a roadside demand.

She appealed, arguing the demand was invalid because the police officer did not have an approved screening device (ASD) with him and there was no evidence one could be made available 'forthwith'.

The Court of Appeal dismissed the appeal, holding that the offence under s. 254(5) of the Criminal Code is complete upon an outright refusal to a valid demand.

The Crown is not required to prove that an ASD was present or could have been made available forthwith when the accused has already categorically refused to comply.

The appellant was convicted of conspiracy to commit arson and second degree murder after a co-conspirator died in an explosion while setting fire to a commercial building for insurance fraud.

On appeal, the appellant argued the trial judge erred in her treatment of Vetrovec witnesses, admitted improper discreditable conduct evidence, and rendered an unreasonable verdict on the murder charge.

The Court of Appeal dismissed the evidentiary grounds but found the murder conviction unreasonable, as the evidence did not establish the appellant had subjective foresight of the likelihood of death.

The court substituted a conviction for manslaughter and reduced the sentence for conspiracy to commit arson from ten years to six years to respect the parity principle.

The appellant appealed a motion judge's decision to stay its application in favour of arbitration.

The dispute arose from a comprehensive settlement agreement regarding tobacco smuggling, which contained an arbitration clause.

The appellant sought declarations regarding whether a class action brought by a tobacco board constituted a released claim under the agreement, affecting the respondent's right to escrow settlement payments.

The Court of Appeal allowed the appeal in part, holding that while the arbitrator had jurisdiction to determine issues under section 7 of the agreement, the court must determine issues under section 15 because the tobacco board was not a party to the arbitration agreement and its rights were directly implicated.

The appellant appealed a judgment fixing the amounts owing under a commercial lease.

The Court of Appeal dismissed the appeal, finding no error in the application judge's interpretation of the offer to lease and renewal document.

The court also found no unfairness in the application judge fixing the actual amounts owing, as the appellant had a fair chance to present its position on quantification.

The appellant appealed an order refusing to set aside a default judgment.

The Court of Appeal found that the respondent had not properly proved its default judgment.

Although this issue was not raised before the motion judge, the Court held it was in the interests of justice to set aside the default judgment to allow the appellant to contest the quantum of the claim and pursue a counterclaim for rental arrears.

The appeal was allowed, the default judgment was set aside, and the motion judge's costs award was varied.

The appellant was injured in a motor vehicle accident and commenced an action against the driver, believing him to be the owner based on a police report and an insurer's pleading.

Counsel later received a Crown brief containing a licence plate search that identified the respondents as the true owners, but a law clerk missed this information.

The respondents were sued more than two years after the accident, and a motion judge dismissed the claim as statute-barred.

The Court of Appeal allowed the appeal, finding that counsel acted with reasonable diligence in relying on the initial information until the contrary information actually came to their attention.

The appellants appealed a decision dismissing their Rule 59 motion as an abuse of process in a bankruptcy proceeding.

The Court of Appeal dismissed the appeal, agreeing with the motion judge's thorough reasons and finding the fresh evidence tendered by the appellant to be of no assistance.

Costs of $17,500 were awarded to the respondent.

The appellant appealed a judgment enforcing a mortgage guarantee.

The appellant argued there was an implicit understanding that he would not be liable under the guarantee until the full mortgage amount was advanced, and that the respondent's failure to pursue $50,000 in a Crown forfeiture proceeding precluded the claim.

The Court of Appeal dismissed the appeal, finding no support for the implicit understanding in the mortgage or commitment letter, and holding that the failure to pursue the funds in the forfeiture proceeding did not preclude the claim against the guarantor.

The appeal was dismissed with costs.

The appellant voluntarily agreed to appear on the reality television show Dragons' Den and signed a consent agreement that precluded the two actions he subsequently commenced.

The appellant argued that it would be unconscionable to enforce the consent.

The Court of Appeal dismissed the appeal, finding that the appellant was given ample time to read the consent, did not ask for more time, and signed it without expressing any concern, making its enforcement not unconscionable.

The appellant appealed an order dismissing its motion to stay the respondents' action based on an exclusive forum selection clause in their agreements.

The Court of Appeal dismissed the appeal, finding that even if the clause applied, the respondents had shown 'strong cause' not to enforce it.

The court noted the appellant's delay in raising the jurisdictional issue, its inconsistent positions, and the risk of inconsistent verdicts between Canada and the United States.