OCA 2011

The appellant appealed his conviction for break and enter, arguing the trial judge erred in relying on the doctrine of recent possession without rejecting the complainant's vague description of the intruders.

The Court of Appeal dismissed the conviction appeal, finding the trial judge gave no weight to the vague descriptions and was entitled to rely on recent possession.

The Crown appealed the 12-month sentence, arguing it was outside the range for home invasions and failed to consider psychological harm.

The Court of Appeal dismissed the sentence appeal, finding no error in the trial judge's approach given the offender's circumstances and the lack of submissions on psychological harm at trial.

The appellants commenced a medical malpractice action in 1995 following a motorcycle accident in 1994.

Fifteen years later, the respondents successfully moved to dismiss the action for delay under Rule 24.01.

The appellants appealed, arguing the motion judge erred in finding inexcusable delay and presumed prejudice, particularly given the availability of medical records.

The Court of Appeal dismissed the appeal, upholding the motion judge's findings that the 15-year delay was inordinate and inexcusable, and that the appellants failed to rebut the presumption of prejudice given the potential loss of evidence from unrecorded team discussions.

The appellant appealed a committal order for extradition to the United States on a charge equivalent to conspiracy to traffic in cocaine.

He argued that the evidence only demonstrated an attempt to enter into a conspiracy and that the extradition judge improperly relied on expert evidence to find an agreement.

The Court of Appeal dismissed the appeal, finding that wiretap evidence and the appellant's subsequent arrest for importing cocaine supported an inference of an ongoing agreement, and that the expert evidence was properly used to interpret coded conversations.

The appellant appealed an order striking his statement of claim without leave to amend.

The Court of Appeal agreed with the motion judge that the statement of claim was deficient as it failed to plead facts supporting the legal claims.

The appeal was dismissed with costs awarded to the respondent.

The respondents brought a motion before the Court of Appeal regarding the appellants' proposed fresh amended notice of appeal.

The court held that the motion judge's finding on the interpretation of the franchise agreement was a final order and properly appealable.

However, the remaining issues decided under Rule 20 were interlocutory, as the motion judge merely found genuine issues requiring a trial without finally determining them.

The motion was granted, with costs awarded to the moving parties.

The appellant, who was found not criminally responsible on a charge of murder, appealed a decision of the Ontario Review Board ordering his detention at the Centre for Addiction and Mental Health with community living privileges.

He sought a conditional discharge and travel privileges to India.

The Court of Appeal dismissed the appeal, finding the Board's decision reasonable given the appellant's ongoing threat to public safety, the risk of relapse, and concerns regarding medication compliance while travelling.

The appellant appealed his sentence, arguing the trial judge erred in calculating pre-sentence custody credit.

The Crown conceded the trial judge failed to give credit for an 86-day period because he was unaware bail had been revoked.

The trial judge also erred by giving only one-for-one credit for another 30-day period based on a breach of recognizance charge that was later withdrawn.

The Court of Appeal rejected the Crown's argument that one-for-one credit should apply to the entire period to maintain the overall sentence.

The appeal was allowed and the sentence was reduced by 202 days.

The conviction appeal was abandoned.

The appellant, a police officer, appealed the dismissal of his application for certiorari to quash his committal to stand trial on charges of breach of trust, obstruction of justice, and conspiracy to obstruct justice.

The appellant argued that the evidence from the preliminary inquiry only showed he attempted to assist a friend navigate the criminal justice system.

The Court of Appeal dismissed the appeal, agreeing with the reviewing judge that the totality of the evidence, including intercepted communications and the appellant's use of his position to access court officials, was sufficient to justify the committal to stand trial.

The appellants appealed a decision refusing to quash their committal for trial.

They argued the preliminary inquiry justice lost jurisdiction by refusing to allow them to call witnesses who had provided information relevant to judicial pre-authorizations, which they intended to use to establish Charter breaches.

The preliminary inquiry justice and the appeal judge treated the proposed witnesses as sub-affiants who could only be cross-examined with leave.

The Court of Appeal dismissed the appeal, holding that the witnesses were properly characterized as sub-affiants and that the refusal to allow their cross-examination at the preliminary inquiry did not impair the appellants' right to make full answer and defence.

The respondent contractor was retained to construct a new home.

He performed most of the work, but the owners installed the well, septic system, and fireplaces.

The respondent was charged with failing to register as a builder under the Ontario New Home Warranties Plan Act.

He was acquitted at trial and on appeal on the basis that he was not a 'builder' because he did not perform all the work.

The Court of Appeal allowed the appeal, holding that the Act is consumer protection legislation requiring a broad interpretation.

A contractor who performs a significant portion of the construction is a 'builder' even if the owner is responsible for some work.

The appellant appealed an order made under Rule 59.06 that reopened proceedings previously terminated by a consent dismissal.

The respondent argued the appeal should have been brought to the Divisional Court with leave, as the order was interlocutory.

The Court of Appeal agreed, holding that an order reopening a matter under Rule 59.06 is interlocutory because it does not finally determine the rights of the parties.

The appeal was dismissed without prejudice to the appellant seeking leave from the Divisional Court.

The appellant's claim for long-term disability benefits was denied in 1995.

She commenced an action in 2006, which was dismissed on summary judgment for being outside the two-year limitation period prescribed by her employee benefit plan.

On appeal, the appellant argued the term 'covered event' was ambiguous and that a rolling limitation period should apply.

The Court of Appeal dismissed the appeal, finding the term 'covered event' was clear in context and occurred only once or twice, not monthly, precluding a rolling limitation period.

The appellants appealed a summary judgment in favour of the respondent bank for mortgage, line of credit, and credit card debts.

The appellants argued that 'Bill-Consumer Purchases' documents they submitted were legal tender for their debts.

The Court of Appeal dismissed the appeal, finding that the documents had no commercial value and the debts remained unpaid.

The Crown appealed the acquittal of a police officer charged with breach of trust for allegedly providing confidential police documents to a criminal organization.

The trial judge had acquitted the accused, finding a reasonable doubt based on the accused's explanations for his cellphone contact with a gang member's spouse and the possibility of third-party theft of the documents.

The Court of Appeal allowed the appeal and ordered a new trial, holding that the trial judge erred in law by assessing the evidence in a piecemeal fashion rather than considering the totality of the evidence, and by failing to account for key evidence that undermined the defence's theory.

The appellants appealed a summary judgment order dismissing their claim against the respondent for knowing assistance in breach of fiduciary duty.

The dispute arose from the sale of the appellants' shares in a family-owned shopping mall to the remaining family members, who then sold a 50% interest to the respondent at a higher valuation.

The Court of Appeal upheld the motion judge's finding that there was no evidence the respondent had actual knowledge of the alleged fraudulent and dishonest conduct or breach of fiduciary duties towards the appellants.

The appellants appealed the trial judge's assessment of damages for future loss of income in a personal injury action arising from a motor vehicle accident.

The appellants argued the trial judge erred by failing to order disclosure of settlement amounts from two subsequent accidents and by failing to deduct those amounts from the damages award.

They also argued the statutory trust for future collateral benefits should extend to future pension benefits.

The Court of Appeal dismissed the appeal, finding the global assessment method prevented double recovery and the claim regarding pension benefits was speculative.

The appellant settled her claims against her insurer in 2003 and signed a final release.

After a 2004 action to set aside the settlement was dismissed on consent, she commenced a second action in 2009 alleging conspiracy to cause economic harm.

The Court of Appeal upheld the summary judgment dismissing the 2009 action, finding that the six-year limitation period had expired based on the appellant's own pleadings, and that she had led no evidence to support the conspiracy claim.

The appellant appealed his convictions for credit card offences, obstruction of a peace officer, and breach of probation, as well as his global sentence of five years and four months.

He argued the trial judge misapprehended evidence and made unreasonable findings.

The Court of Appeal dismissed the conviction appeal, finding the circumstantial evidence overwhelming.

The sentence appeal was also dismissed, as the sentence was fit given the appellant's 23-year criminal record for similar offences.

The appellant appealed his dangerous offender designation, arguing there was insufficient evidence of a pattern of violence and that the predicate offence was intended as a property offence.

The Court of Appeal dismissed the appeal, finding the trial judge reasonably concluded there was a pattern of violence against women in their homes.

The Court also agreed that a long-term offender designation was unrealistic given the appellant's history of failing to follow through with therapy and the level of supervision required.

The respondent was charged with speeding and sought a stay of proceedings for unreasonable delay under s. 11(b) of the Charter on the day of trial.

The justice of the peace refused to hear the motion because the respondent had not served notice on the Attorney General of Ontario.

On appeal, the provincial offences appeal court held that notice was not required because the prosecution was conducted by a municipality, and granted the stay.

The Court of Appeal allowed the Crown's appeal, holding that the term 'Government of Ontario' in s. 109 of the Courts of Justice Act includes municipalities, and therefore notice to the Attorney General of Ontario is required when seeking a Charter remedy in a Provincial Offences Act prosecution.