OCA 2011

The appellants, two insurance companies, appealed a declaration that the respondents were entitled to coverage under an automobile insurance policy.

The insurers argued that the application judge erred in her interpretation of a policy exclusion for a 'race' or 'speed test'.

The Court of Appeal dismissed the appeal, finding that the application judge correctly applied the rule that insurance contracts are to be strictly and narrowly interpreted.

Furthermore, there was ample evidence to support the conclusion that the insured was participating in a driver education program to improve driving skills, rather than engaging in a speed test.

The respondent, a former bankrupt, brought a motion to dismiss the appellant's appeal of three costs orders.

The appellant cross-moved for leave to appeal.

The Court of Appeal dismissed the appeal in respect of the first two costs orders, finding they had either been finally disposed of previously or were significantly out of time with no satisfactory explanation for the delay.

The Court granted leave to appeal the third costs order but ordered the appellant to post $75,000 in security for costs within 30 days, failing which the remainder of the appeal would be dismissed.

The appellant was convicted of first degree murder and manslaughter in relation to the deaths of two sisters.

He appealed, arguing the trial judge made several evidentiary errors, including admitting frail eyewitness non-identification evidence, excluding evidence of the co-accused's motive and prior bad acts, admitting hearsay statements of the deceased, and failing to properly instruct the jury on the defence theory regarding the co-accused's prior inconsistent statements.

The Court of Appeal dismissed the appeal, finding no errors in the trial judge's discretionary evidentiary rulings or jury instructions.

The appellant brought a motion to re-open his previously dismissed appeal against a robbery conviction.

The motion was based on the Crown's failure to disclose a partially vetted jury panel list at trial.

The Court of Appeal expressed doubt about its jurisdiction to re-open an appeal already decided on the merits.

Regardless, the court found no miscarriage of justice, as the non-disclosure did not impact the jury's impartiality or prejudice the appellant's right to make full answer and defence.

The motion was denied.

The Director of the Ontario Disability Support Program appealed a decision holding that child support payments made to the mother of a disabled adult were not 'income' attributable to the disabled adult under the ODSPA.

The Court of Appeal dismissed the appeal, finding that characterizing child support paid to a custodial parent as the disabled adult's income would undermine the disabled adult's right to apply independently for benefits and would unfairly discriminate against disabled children of separated parents.

The child support payments are not payments made 'to or on behalf of or for the benefit of' the disabled adult until the mother actually uses them for the adult's benefit, at which point exemptions for disability-related expenses may apply.

The appellant pleaded guilty to attempted break and enter and related offences, receiving a sentence of two years less a day and three years' probation.

He appealed the sentence, arguing the trial judge erred by denying credit for five months of pre-trial custody without providing reasons.

The Court of Appeal agreed the trial judge erred in principle by failing to provide reasons for denying credit.

However, given the appellant's lengthy criminal record and the fact that the offences occurred shortly after his statutory release, the Court concluded the sentence was not demonstrably unfit and dismissed the appeal.

The appellants appealed an order dismissing their joint venture action against the respondents.

The individual appellant had commenced the action while she was a discharged bankrupt, but the cause of action arose before her bankruptcy and was not disclosed to her trustee.

The motion judge found the claim was a nullity and refused to exercise equitable jurisdiction to regularize the proceeding due to the appellant's failure to disclose the asset.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's refusal to grant equitable relief given the appellant's non-disclosure and the subsequent delay.

The appellant employer appealed a trial decision finding it liable for negligent misrepresentation regarding pension options.

The deceased employee had selected a single life pension, and his spouse signed a waiver form provided by the employer that deviated from the Superintendent approved form.

The Court of Appeal dismissed the appeal, holding that the employer's waiver form deviated in substance from the prescribed form under the Pension Benefits Act and was therefore invalid.

The spouse was entitled to damages equivalent to the joint and survivor pension benefits.

Following the release of the court's endorsement in the appeals, counsel for the respondents wrote to the court concerning the disposition of the agreed upon costs.

The Court of Appeal issued an addendum awarding costs of $14,000 to the estate trustee and another $14,000 to the bank, inclusive of disbursements and taxes.

The young person appealed convictions for robbery and related offences arising from a home invasion by four masked men.

The sole issue at trial was identification, based entirely on the complainant's eyewitness testimony.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the trial judge failed to address the evolving details and increasing level of confidence in the complainant's identification evidence, which were crucial to evaluating its reliability.

The Attorney General appealed orders setting rates of compensation for amicus curiae appointed in three criminal proceedings.

The Crown argued that courts have no jurisdiction to fix the rate of compensation for amicus curiae, as only Parliament can allocate public funds.

The Court of Appeal dismissed the appeals, holding that both superior and statutory courts have the jurisdiction to fix the rate of compensation for amicus curiae as a necessary incident of their jurisdiction to appoint amicus.

The court found that such orders do not infringe constitutional principles and are authorized by the Proceedings Against the Crown Act and the Financial Administration Act.

The trial judges did not err in setting rates that exceeded legal aid rates, as amicus serves the court and the administration of justice, and the rates were based on appropriate factors.

The mother brought an application under the Hague Convention for the return of her 13-year-old child to Mexico.

The child had previously made a successful refugee claim in Canada based on allegations of abuse by the mother.

The motion judge ordered the child's return.

The father appealed.

The Court of Appeal allowed the appeal, finding that the motion judge erred by failing to conduct a meaningful risk assessment regarding the return of a recognized refugee.

The court set aside the return order and directed a new hearing.

The appellant sought leave to appeal a Summary Conviction Appeal Court decision that set aside his acquittal for impaired driving and ordered a new trial.

The appellant argued the appeal judge made a clear error of law.

The Court of Appeal found no error, agreeing with the appeal judge that the trial judge misapprehended the evidence and failed to apply the proper legal principles from Stellato, specifically that any degree of impairment is sufficient and that fatigue does not foreclose the effect of alcohol.

Leave to appeal was refused.

The appellant failed to appear for his appeal from an order dismissing his motion to set aside an uncontested trial judgment in a protracted matrimonial dispute.

The Court of Appeal dismissed the appeal as abandoned due to his non-attendance.

The Court further noted it would have dismissed the appeal as an abuse of process, as the appellant had wilfully breached multiple court orders regarding financial disclosure and support payments, and had been 'gaming the process'.

The appellant racetrack owner refused to permit the respondent to race his horses at its tracks unless he signed an access agreement.

The respondent refused and sought a declaration from the Ontario Racing Commission (ORC) that he could not be required to sign the agreement.

The ORC dismissed the application, but the Divisional Court found the ORC's decision unreasonable.

On appeal, the Court of Appeal held that the ORC's decision was reasonable, as the access agreement did not deny the respondent an opportunity to be heard before the ORC, nor did it give the appellant absolute unfettered power to arbitrarily exclude him.

The appeal was allowed and the ORC's decision restored.

The appellant was convicted of manslaughter following a second trial for a 1985 shooting outside an after-hours club.

He appealed his conviction, arguing the trial judge erred by failing to correct Crown counsel's closing submissions regarding his failure to retreat and his alleged lack of fear.

The Court of Appeal dismissed the appeal, finding that the trial judge's instructions on self-defence were adequate and that the jury was not misled by the Crown's submissions.

The appellant appealed a motion judge's order finding that her insurer was obliged to defend and indemnify the respondent, Hertz Canada Limited, under s. 277(1.1) of the Insurance Act.

The Court of Appeal held that s. 277(1.1) imposes no duty on the appellant's insurer to defend on behalf of Hertz, as it speaks only to priorities of payment.

The Court also found that the indemnity issue could not be resolved on the current record.

The appeal was allowed in part and the order varied.

The appellants appealed an order dismissing their claim.

The Court of Appeal upheld the motion judge's finding that the limitation period had expired in September 2006, two years after the trustee had knowledge of the underlying facts.

The subsequent acquisition of corporate control by a new individual did not restart or affect the running of the limitation period against the corporation.

The appeal was dismissed with costs.

The parties were common law spouses who separated after 23 years.

The trial judge awarded the respondent lump sum spousal support of $135,000, finding that the appellant had hidden assets and there was a real risk he would not pay periodic support.

The appellant appealed, arguing that lump sum support should only be awarded in very unusual circumstances based on prior case law.

The Court of Appeal dismissed the appeal, clarifying that the court's discretion to award lump sum support is not restricted to rare cases, and upheld the trial judge's decision based on the appellant's non-disclosure and the need for a clean break.

The moving party sought leave to appeal a Superior Court decision convicting it of failing to report a discharge of a contaminant under the Environmental Protection Act.

The incident involved fly-rock from a blasting operation that damaged a house and a vehicle.

The moving party argued that the duty to report requires a more than trivial environmental impact.

The Court of Appeal granted leave to appeal, finding that the interpretation of the duty to report raises a question of law and is essential in the public interest.