OCA 2011

Following the release of its reasons for judgment, the Court of Appeal received submissions from the parties regarding the costs of the application.

The court awarded costs of the application below to the appellant, fixed at $17,000 inclusive of disbursements and HST.

The appellant, a secured creditor, appealed an order approving a receiver's proposed purchase agreement and technology license agreement for the assets of the respondent companies.

The appellant argued that the proposal was identical to one previously rejected by another judge.

The Court of Appeal dismissed the appeal, finding that the new proposal differed significantly and that the motion judge appropriately applied the Soundair principles in approving the transaction, given the changed circumstances and the need to sell the subsidiary as a going concern.

The appellant appealed his sentence for drug offences committed while on probation for the same offence.

The Court of Appeal found no error with the global sentence given the appellant's record and the nature of the drugs.

However, the court agreed that the trial judge erred by failing to give credit for pre-sentence custody.

Leave to appeal was granted, the appeal was allowed, and the sentence on count 6 was reduced to 22 months' imprisonment.

The appellants appealed the dismissal of their claim for breach of contract and unjust enrichment regarding $89,500 they advanced to the respondents, directly and through their son, who was the respondents' lawyer.

The trial judge had found no loan agreement existed between the parties and excluded key documents citing solicitor-client privilege.

The Court of Appeal held the trial judge erred in excluding the documents, as they related to requests for personal living expenses and not legal advice.

The Court found the documentary evidence clearly established loan contracts for $78,500 of the funds.

The appeal was allowed, judgment was granted for $78,500 plus interest, and the remaining $11,000 claim was remitted for a new trial.

The appellant was injured in a motor vehicle accident and sued the tortfeasors, their insurer, and her own insurer under an OPCF 44R endorsement.

The tortfeasors' insurer took an off-coverage position and settled with the appellant for the $200,000 statutory minimum.

The appellant's insurer successfully moved for summary judgment, arguing the tortfeasors' policy limits were never legally reduced and the release barred the action.

The Court of Appeal allowed the appeal, holding that an insurer's off-coverage position and settlement do not reduce liability limits 'by operation of law' without a legal determination.

However, the appellant's action against her own insurer could proceed, wherein she would bear the burden of proving the tortfeasors' policy breach.

The appellants appealed an order dismissing their motion to set aside a registrar's dismissal of their personal injury action for delay under Rule 48.14.

The action was dismissed in 2007 after the appellants' former lawyer failed to set the action down for trial or respond to the status notice.

The Court of Appeal found the delay between 2006 and 2010 to be inexcusable, attributing it almost entirely to the appellants' counsel.

The Court held that the finality principle outweighed the lack of actual prejudice to the respondents, noting the appellants still had recourse through a solicitor's negligence action.

The appeal was dismissed.

The Institute of Chartered Accountants of Ontario (ICAO) appealed a Divisional Court decision that quashed professional misconduct convictions against three auditors regarding their 1997 audit of Livent Inc. The auditors cross-appealed the Divisional Court's decision upholding other convictions.

The Court of Appeal allowed the ICAO's appeal, finding that the Discipline Committee did not breach procedural fairness and provided adequate reasons for its findings of misconduct.

The Court also held that subsequent legislative amendments retroactively validated the Discipline Committee's costs award.

The auditors' cross-appeal was dismissed, and the Discipline Committee's original decisions and penalties were reinstated.

The appellants appealed a summary judgment regarding monies owing on a second mortgage, arguing the motion judge erred in her treatment of the burden of proof, the interests of justice under Rule 20.04(2.1), and the finding of no genuine issue requiring a trial.

The Court of Appeal dismissed these grounds, finding the evidence insufficient to establish an agreement terminating liability upon giving up possession of the house.

The court also dismissed an application to introduce fresh evidence under the Palmer test.

However, the court allowed the appeal in part, reducing the judgment by $6,705.58 due to a lack of evidence supporting awards for service of notices of sale and additional legal fees.

The appellant was convicted of firearms offences and aggravated assault following an unprovoked shooting in a parking lot after a basketball game.

He appealed his convictions, arguing the verdict was unreasonable due to frailties in the eyewitness identification evidence and that the trial judge improperly handled jury questions.

He also appealed his 8-year sentence, arguing it was unfit given his youth.

The Court of Appeal dismissed the appeal, finding the eyewitness evidence was reliable, the trial judge appropriately addressed the jury's questions, and the sentence was fit given the gravity of the offences.

Following the release of reasons for judgment, the Court of Appeal for Ontario fixed the costs of the motion payable to the appellant at $12,000 for fees and $1,000 for disbursements, plus H.S.T.

The appellant appealed his convictions on six counts of sexual assault against a child complainant.

He argued the trial judge erred in dismissing his application to introduce evidence of the complainant's prior allegations against another individual without holding a hearing, and that Crown counsel's comments during the trial rendered it unfair.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's exercise of discretion regarding the evidentiary application and concluding that the Crown's comments did not result in trial unfairness.

The appellant appealed his convictions for sexual assault, assault, forcible confinement, and uttering threats against his common law partner, alleging ineffective assistance of counsel.

The Court of Appeal found that trial counsel failed to properly execute an effective cross-examination, failed to cross-examine the complainant on prior inconsistent statements, and effectively abandoned the defence in closing submissions.

Concluding that these failures undermined the reliability of the verdict and the appearance of a fair trial, the Court allowed the appeal, quashed the convictions, and ordered a new trial.

The appellant appealed a disposition of the Ontario Review Board that rejected a conditional discharge.

The Court of Appeal found that, aside from a comment regarding the appellant being treatment consent incapable, the Board's decision was reasonable and amply supported by the evidence.

The appeal was dismissed.

The appellant appealed his conviction on the basis that the trial judge erred in instructing the jury that his failure to call or report to the police could be considered as consciousness of guilt.

The Court of Appeal agreed, finding that the direction infringed the holding in R. v. Turcotte.

The court declined to apply the curative proviso as the Crown's case was not overwhelming and the error could have impacted trial fairness.

The appeal was allowed and a new trial ordered.

The appellant appealed his conviction and sentence.

The sentence appeal was abandoned.

On the conviction appeal, the appellant argued the conviction was unreasonable.

The Court of Appeal held that it was open to the trial judge to infer that the jacket containing drugs belonged to the appellant, given the documents found in the wallet inside the jacket.

The appeal was dismissed.

The appellant appealed his conviction, arguing the trial judge misapprehended the nature of his denials during his statement to the police.

The Court of Appeal dismissed the appeal, finding the trial judge's characterization of the statement as cryptic and short on details was reasonably open to her.

The appeal from sentence was dismissed as abandoned.

Multiple appellants challenged jury convictions for two first degree murders and attempted murder arising from a retaliatory gang-related shooting.

The court rejected allegations of unfair trial management, unfair jury instructions, improper admission of prior K.G.B. statements and preliminary inquiry evidence, erroneous refusal of severance, improper admission of intercepted artistic expression, and misdirection on cell phone location evidence.

Applying a threshold reliability analysis informed by Khelawon, the court upheld admission of a key unavailable witness's prior statements.

The court also dismissed a fresh evidence application concerning synchronization of 911 and carrier clocks, holding the proposed evidence would not reasonably have affected the verdict given the broader evidentiary record.

The appellant appealed his convictions for assault and gun storage offences.

The Court of Appeal found that evidence of the appellant's refusal to answer police questions about a gun cabinet key was improperly admitted and repeated in the jury charge.

Additionally, the Crown failed to disclose a property report relevant to the gun storage charges.

Given the potential adverse inference on the appellant's credibility, the court quashed all convictions and ordered a new trial.

The appellant laid a private information against his ex-wife alleging perjury, arson, and fraud.

At the pre-enquete, the justice of the peace refused to issue process, finding insufficient evidence.

The appellant applied for an order in lieu of mandamus, which was dismissed by the Superior Court.

On appeal, the appellant argued the justice erred by failing to consider hearsay evidence under s. 540(7) of the Criminal Code.

The Court of Appeal dismissed the appeal, holding that the justice's refusal was based on the overall insufficiency and speculative nature of the evidence, not merely its inadmissibility, and that evidentiary errors generally do not amount to jurisdictional errors remediable by mandamus.

The appellant appealed his sentence of six months' imprisonment for failing to comply with a probation order.

He had contacted a young woman whom he was previously convicted of assaulting, in breach of a no-contact condition.

Despite the Crown and defence suggesting shorter sentences, the sentencing judge imposed a longer term, emphasizing specific deterrence due to the appellant's lengthy criminal record and history of breaches.

The Court of Appeal found no error in principle and dismissed the appeal, holding that the sentence was fit.