OCA 2011

The appellant appealed the trial judge's dismissal of its action to declare a trust declaration void as a sham or fraudulent conveyance.

The Court of Appeal found that the trial judge erred by failing to consider the respondent's own testimony, which demonstrated he believed he retained voting control of the assets purportedly held in trust.

As the respondent had not separated himself from the beneficial interest, the certainty of intention was missing, rendering the trust void.

The appeal was allowed and the trust declaration was declared void.

The appellant sought leave to appeal from a summary conviction appeal court decision upholding his conviction for refusing to provide a breath sample.

He argued he was denied a fair trial as a self-represented accused, alleged improper police motive, and sought a constitutional exemption from the mandatory minimum sentence.

The Court of Appeal dismissed the application for leave to appeal, finding the trial judge provided sufficient assistance, there was no evidence of improper motive, and no discretion existed to grant a constitutional exemption.

The appellants appealed an order of the Superior Court of Justice, seeking to correct a formal judgment regarding a mortgage principal amount, challenge a costs order, and request a stay of enforcement.

The Court of Appeal allowed the appeal in part solely to correct the principal amount in the formal order.

The remainder of the appeal was dismissed, as the costs order was appropriate and the stay request had been addressed in subsequent orders.

The appellant appealed his committal for extradition and sought judicial review of the Minister's decision to surrender him to the United States on charges of conspiracy to traffic cocaine.

The appellant argued there was insufficient evidence to show he was a member of the conspiracy before the drug shipment was seized.

The Court of Appeal dismissed the appeal and the application for judicial review, finding that wiretap communications immediately following the loss of the shipment provided sufficient evidence from which a reasonable inference of his prior involvement could be drawn.

The appellant appealed a 14-year sentence imposed following guilty pleas to a series of violent offences against eight victims.

The sentence was based on a joint submission.

The appellant argued the sentence was harsh and excessive.

The Court of Appeal dismissed the appeal, noting the appellant's lengthy criminal record, the viciousness of the assaults, attempts to obstruct justice, and the fact that the trial judge was bound to accept the joint submission unless it was contrary to the public interest.

The court found the sentence fit.

The appellant appealed his conviction and nine-month sentence.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's credibility assessments and findings of fact regarding the admissibility of a statement.

The sentence appeal was also dismissed, as the nine-month jail term was deemed appropriate and within the range for the offence.

The appellants appealed an order of the Superior Court of Justice.

The Court of Appeal for Ontario dismissed the appeal, agreeing with the reasons of the motion judge and finding the appeal had no merit.

Costs were awarded to the respondents.

The appellant appealed his convictions for two counts of theft.

On the first count, the Court of Appeal upheld the conviction, finding that the trial judge's conclusion on recent possession was reasonable and supported by circumstantial evidence.

On the second count, the Court allowed the appeal and entered an acquittal, concluding that the evidence did not support a finding that the appellant possessed the stolen items found in an apartment rented by someone else.

Consequently, the appellant's sentence was reduced from three years to two years, plus pre-trial custody credit.

The appellant husband appealed an order refusing his application for the partition and sale of the matrimonial home and requiring him to transfer his 50 percent interest to the respondent wife for $1.

The parties separated in 1994, and the husband unilaterally stopped making agreed-upon support payments in 2001.

The Court of Appeal dismissed the appeal, finding that the husband's arrears in support payments, with interest, exceeded the value of his share of the equity in the home.

The application judge's result was upheld on the basis of this equitable set-off.

The appellant appealed his convictions for possession of stolen goods and his 15-month sentence.

The Crown's case relied on video surveillance identifying the appellant supervising the export of stolen high-end vehicles.

The appellant argued the video quality was insufficient for identification.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's assessment of the video quality was reasonable.

The sentence appeal was also dismissed, as the 15-month sentence was not manifestly unfit given the appellant's prior criminal record and his directing role in the sophisticated scheme.

The appellant appealed his convictions for robbery and breaking and entering, arguing the trial judge erred in admitting a co-perpetrator's out-of-court statement, failed to properly caution himself about unsavoury witnesses, and seeking to introduce fresh evidence of a witness's recantation.

The Court of Appeal dismissed the appeal, finding the hearsay statement was properly admitted, the trial judge did not need to explicitly articulate a Vetrovec warning to himself, and the fresh evidence of the recantation was incredible and lacked sufficient impeachment value to affect the verdict.

The appellant appealed a civil forfeiture order regarding a property where police discovered a sophisticated marijuana grow operation.

The appellant claimed he had leased the property to a man he met at a casino and had no knowledge of the operation, which the application judge rejected.

The Court of Appeal dismissed the appeal, finding no error in the application judge's factual findings, his conclusion that there was no evidence to rebut the presumption of unlawful activity, or his determination that forfeiture was in the interests of justice.

The City of Hamilton appealed a trial judgment finding it liable in negligence.

The Court of Appeal dismissed the appeal, holding that the trial judge applied the correct standard of care and that her findings were supported by the evidence.

The Court also found that the trial judge correctly applied the 'but for' test for causation, noting that causation is a practical question of fact best answered by ordinary common sense.

The appellant appealed a trial judgment finding it breached a marketing agreement by unilaterally reassigning four counties from the respondent's territory.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the respondent had complied with its obligation to develop the market to the extent possible, that the entire agreement clause governed over prior understandings, and that extrinsic evidence properly identified the nine counties as the respondent's work zones.

The Children's Aid Society apprehended the respondent mother's children and placed them in foster care.

While a child protection application was pending before the court, the mother filed a service-related complaint with the Child and Family Services Review Board regarding the Society's failure to place the children with willing family members and its refusal to provide reasons.

The Society challenged the Board's jurisdiction, arguing all matters should be heard by the court.

The Court of Appeal held that the Board correctly assumed jurisdiction, as the specific service-related complaints had not been decided by and were not before the court, interpreting section 68.1(8) of the Child and Family Services Act.

The Crown appealed the dismissal of three counts under the Occupational Health and Safety Act against a general contractor and a subcontractor following a workplace fatality.

The trial judge had dismissed the counts on the basis that they were duplicitous and failed to disclose an offence.

The Court of Appeal allowed the appeal, finding that the trial judge confused overlapping counts with duplicitous ones, and erred in collapsing the information.

A new trial was ordered on the dismissed counts.

The appellant appealed an order refusing leave to amend her Statement of Claim to add her insurer as a defendant.

The proposed amendment sought a determination of catastrophic impairment.

The motion judge held that while multiple applications for catastrophic impairment are not strictly precluded under s. 40(4) of the Statutory Accident Benefits Schedule, a subsequent application under the same sub-paragraph requires evidence of a material change in circumstances.

Finding no such change, the motion judge refused the amendment.

The Court of Appeal agreed with the motion judge's interpretation and found no error in her decision to refuse the amendment based on the record before her.

The appeal was dismissed.

The appellant appealed his fraud conviction, arguing the verdict was unreasonable due to unreliable bookkeeping by a witness.

The Court of Appeal dismissed the appeal, finding the bookkeeping irrelevant to the fraud finding.

The trial judge was entitled to rely on other witness evidence and the defence's admission that the appellant received the money from the joint venture.

The appellant was convicted of possession of cocaine for the purpose of trafficking and possession of a loaded prohibited firearm after police found drugs and a gun in his apartment while he was asleep on the balcony.

On appeal, the Court of Appeal found that the trial judge committed two reversible errors.

First, the trial judge improperly reversed the burden of proof by holding that the appellant was legally deemed to be in possession of the contraband by virtue of his tenancy.

Second, the trial judge improperly devalued the appellant's credibility by misapprehending evidence to find a breach of the rule in Browne v. Dunn and by incorrectly concluding he was fed answers during examination-in-chief.

The appeal was allowed and a new trial ordered.

The appellant appealed the dismissal of his motion to set aside two previous orders under Rule 25(19)(b) of the Family Law Rules.

He argued the motion judge failed to take a contextual approach to setting aside a default judgment and that the previous judge lacked jurisdiction.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that alleged legal errors or jurisdictional issues are not 'mistakes' correctable under Rule 25(19)(b), but rather appealable errors.