OCA 2011

The appellant pleaded guilty to dangerous driving and failing to stop for police.

The Crown and defence made a joint submission for a sentence of 10 months less time in custody.

The sentencing judge purported to accept the joint submission but refused to credit the appellant's 84 days of pre-sentence custody, effectively imposing a longer sentence.

The Court of Appeal held that the sentencing judge erred by rejecting the joint submission without finding that it was contrary to the public interest or would bring the administration of justice into disrepute.

The appeal was allowed and the sentence was reduced by 84 days.

The appellant suffered severe physical and psychological injuries, including a leg amputation and clinical depression, in a motor vehicle accident.

He sought enhanced statutory accident benefits, arguing he was catastrophically impaired.

The trial judge held that physical and psychological impairments could not be combined under section 2(1.1)(f) of the Statutory Accident Benefits Schedule to meet the 55 per cent whole person impairment threshold.

The Court of Appeal reversed this decision, finding that the language of the Schedule, the purpose of the American Medical Association's Guides, and the goals of the statutory scheme permit the combination of physical and psychiatric impairments to determine catastrophic impairment.

The appellant appealed a summary judgment ordering the sale of a farm property and a subsequent order.

The Court of Appeal dismissed the appeal regarding the summary judgment, agreeing that financial imperatives required the property to be sold.

The Court allowed the appeal in part regarding the second order, permitting the appellant to amend his claim, except for asserting a claim for a vesting order or proprietary remedy.

A stay on an order for exclusive interim possession was continued with conditions.

Costs of $5,000 were awarded to the respondent.

The appellant pleaded guilty to possession of marihuana for the purpose of trafficking and was sentenced to 30 days' intermittent imprisonment and 11 months' probation.

He appealed both his conviction and sentence.

The Court of Appeal dismissed the conviction appeal for reasons set out in concurrent decisions.

However, the court allowed the sentence appeal, noting the appellant's uncontested medicinal use of cannabis for lumbar scoliosis and his efforts to comply with the Marihuana Medical Access Regulations.

With the Crown's consent, the sentence was reduced to time served and the probation order was struck out.

Five appellants appealed their convictions or the dismissal of their applications for declaratory relief regarding marijuana offences under the Controlled Drugs and Substances Act.

They argued that the offences of possession and production of marijuana had been judicially repealed by previous constitutional decisions regarding medical marijuana.

The Court of Appeal dismissed the appeals, holding that the offences remain in full force and effect, and that dissatisfaction with the medical marijuana regulations does not excuse disobedience of the law.

The appellant appealed the dismissal of his application under s. 24 of the Controlled Drugs and Substances Act for the return of seized marihuana.

The Court of Appeal first determined that the proper route to review a s. 24 order is by way of certiorari, not an appeal under the Courts of Justice Act or the Criminal Code.

On the merits, the Court held that previous constitutional decisions did not repeal the prohibition against possession of marihuana, and the appellant, who did not hold an authorization to possess under the Medical Marihuana Access Regulations, was not lawfully entitled to possess the seized marihuana.

The appeal was dismissed.

The appellants sought $207,612.83 in partial indemnity costs for the appeal against the respondent Dr. Librach, who proposed $101,571.06.

The Court of Appeal fixed the appellants' partial indemnity costs against Dr. Librach at $100,000 inclusive of taxes, plus disbursements, noting that even the respondent's proposed figure was on the high end.

The appellant, Home Depot, appealed orders authorizing a receiver to sell a property free and clear of Home Depot's leasehold and equitable interests.

The motion judge had refused to draw inferences regarding whether the first mortgagee had impliedly consented to Home Depot's lease, stating he could only rely on undisputed facts.

The Court of Appeal allowed the appeal, holding that the motion judge erred in law by applying an incorrect standard of proof and failing to draw reasonable inferences from the evidence.

The matter was remitted for a new hearing.

The appellant appealed the trial judge's monetary award for unjust enrichment, lump sum spousal support, and costs.

The Court of Appeal found no error in the trial judge's calculation of the unjust enrichment award, which properly accounted for set-offs.

The court also upheld the lump sum spousal support order, noting the trial judge properly weighed its advantages and disadvantages, including the appellant's history of late payments.

The appeal was dismissed with costs.

The appellants appealed their convictions for forcible confinement arising from a home invasion, arguing that their identity as the perpetrators was not the only reasonable inference from DNA and fingerprint evidence found at the scene.

The Court of Appeal dismissed the appeals, finding that the trial judge properly considered the totality of the evidence, including the pristine condition of the mask containing DNA, the location of the fingerprint on the duct tape roll, and the victims' descriptions of the perpetrators.

The court concluded that innocent explanations for the forensic evidence were speculative rather than reasonable.

The applicant sought to reopen his sentence appeal, which had been dismissed as abandoned in March 2010.

The Court of Appeal refused the application, noting that the applicant had abandoned the appeal with the benefit of legal advice and a considered basis at the time.

The court held that subsequent doubts did not overcome the interest in finality, and there was no miscarriage of justice.

The appellants were committed for trial on a charge of conspiracy to commit murder following a preliminary inquiry.

They applied for certiorari to quash the committal, which was dismissed by the Superior Court of Justice.

On appeal, the appellants argued there was insufficient evidence of an agreement to murder the victim.

The Court of Appeal dismissed the appeal, finding that the preliminary hearing judge properly concluded there was some evidence from which a reasonable inference could be drawn that the appellants agreed and intended to murder the victim.

The respondent was seriously injured in a motor vehicle accident after losing control of her vehicle on a snow and ice-covered municipal road.

The trial judge found the appellant municipalities liable for failing to maintain the road, apportioned liability 50/50 due to the respondent's contributory negligence, and rejected the municipalities' defence under the Minimum Maintenance Standards (MMS).

On appeal, the municipalities argued the MMS provided a complete defence.

The Court of Appeal dismissed the appeal, holding that the specific MMS provisions for snow accumulation and icy roadways did not apply to the municipalities' failure to monitor weather and deploy resources before the road became icy.

The respondent's cross-appeal on the 50/50 apportionment of liability was also dismissed.

The appellant appealed the dismissal of his defamation claim following a jury trial.

He argued that the jury's verdict was perverse, that the trial judge erred in law regarding the defences of qualified privilege, responsible communication, and fair comment, and that the jury charge was unbalanced.

The Court of Appeal dismissed the appeal, finding ample evidence to support the jury's verdict, a sound basis in law for the defences left to the jury, and no unfairness in the jury charge.

Costs of $10,000 were awarded to each set of respondents.

The appellant failed to appear for his appeal and provided no documentation to support his claim of illness.

Duty counsel had no contact with the appellant.

As the appellant failed to take any steps to move the appeal forward despite case management directions, the Court of Appeal dismissed the appeal as abandoned.

The appellants appealed the dismissal of their motion to add Enbridge Gas Distribution Inc. as a defendant after the expiry of the two-year limitation period following a water heater explosion.

The Court of Appeal upheld the dismissal, finding no evidence that the appellants exercised due diligence to identify Enbridge's potential liability within the limitation period.

However, the court allowed a consent amendment to increase the damages claimed by one of the appellants.

The appellants appealed a summary judgment decision awarding the respondent damages for wrongful dismissal, specifically challenging the award of a bonus during the 19-month notice period.

The appellants argued the respondent was ineligible for a bonus because he was not actively employed on December 31st of the claim year.

The Court of Appeal dismissed the appeal, upholding the motion judge's finding that the active employment precondition was not incorporated into the employment contract or brought to the respondent's attention.

The court also upheld the motion judge's calculation of the bonus and her conclusion that there was no genuine issue requiring a trial.

The young person appealed his convictions for robbery and weapons dangerous, arguing the trial judge improperly relied on a co-accused's statement, the verdicts were unreasonable, and the reasons were inadequate.

The Crown conceded the trial judge erred in referring to the co-accused's statement but argued the proviso should apply.

The Court of Appeal dismissed the appeal, finding the evidence from the other occupants of the van was compelling and the trial judge's reasons adequately explained the basis for conviction despite the error.

The appellant appealed a decision finding that the respondent insurer had no duty to defend him against a landlord's statement of claim.

The landlord alleged arson, breach of contract, and negligence.

The Court of Appeal dismissed the appeal, holding that the arson claim fell under the intentional act exclusion, the breach of contract claim fell under the contractual liability exclusion, and the negligence claims were merely labels for what were in substance breaches of contract.

The appellants appealed a summary judgment finding them liable on a personal guarantee for a corporate debt.

The guarantee was provided via an email stating 'I will personally guarantee the debt to Pintar in full.

Signed Chris'.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the email exchange created a binding guarantee, with forbearance in collecting the debt serving as consideration.