OCA 2011

The moving parties brought motions within an ongoing family law appeal.

The Court of Appeal granted an order directing the Office of the Children's Lawyer to represent the child on the appeal.

The court set strict timelines for the filing of fresh evidence and factums to ensure the appeal could proceed on its scheduled dates, emphasizing the best interests of the child.

The respondent mother was ordered to permit the OCL reasonable access to the child.

The appellant appealed a decision of the Ontario Review Board ordering that he continue to be subject to a conditional discharge.

He argued for an absolute discharge, supported by a doctor's opinion.

The Court of Appeal dismissed the appeal, finding that the Board's decision was not unreasonable given the appellant's continuing pattern of criminal behaviour, impulsivity, and need for monitoring.

The appellants sought leave to amend their statement of claim in an action arising from a neighbour dispute over a right-of-entry permit and property excavation.

The motion judge denied leave to add claims for negligent misrepresentation and breach of fiduciary duty against the municipality and its by-law officer, and struck portions of the claim as a collateral attack on a prior injunction order.

The Court of Appeal upheld the dismissal of the negligent misrepresentation and fiduciary duty claims, finding no special relationship or reliance.

However, the Court allowed the appeal regarding collateral attack, holding that the appellants were seeking damages for the respondents' actions rather than attempting to invalidate the prior order.

The appellant appealed the dismissal of his claim for injuries suffered in a slip and fall on a municipal sidewalk following a major snow and ice storm.

The appellant argued the municipality was grossly negligent for failing to clear the sidewalk within 36 hours as per its policy.

The Court of Appeal dismissed the appeal, agreeing with the trial judge that the municipality's response to the extraordinary storm was completely reasonable and did not amount to gross negligence under s. 44(9) of the Municipal Act.

The appellants appealed an order dismissing their application for pre-certification production of automotive pricing information from a non-party, JATO Dynamics Ltd. The appellants argued the motion judge applied the wrong test under Rule 30.10 of the Rules of Civil Procedure and ignored factors from the Ballard Estate decision.

The Court of Appeal found the motion judge conducted an appropriate Rule 30.10 analysis and properly exercised his discretion.

The appeal was dismissed with costs.

The appellant was convicted of sexual assault and designated a long-term offender.

He was sentenced to six years' imprisonment in addition to 31 months of pre-sentence custody, followed by a 10-year supervision order.

He appealed the sentence, arguing the sentencing judge erred by crediting his pre-sentence custody on a 1-to-1 basis rather than an enhanced basis.

The Court of Appeal dismissed the appeal, finding no error in the sentencing judge's exercise of discretion, particularly given the appellant's dangerousness and the unlikelihood of early release.

The appellant physician appealed a trial judgment finding him 25% liable for negligence in failing to timely diagnose a newborn with phenylketonuria (PKU).

The infant had two borderline elevated screening tests, and the appellant ordered a third screening test rather than a diagnostic quantitative test.

The appellant argued the trial judge erred by failing to apply the 'respectable minority principle' from ter Neuzen, asserting his decision was supported by expert evidence.

The Court of Appeal dismissed the appeal, holding that the trial judge properly weighed the conflicting expert evidence, found the defence expert's opinion unreliable, and correctly concluded the standard of care required a diagnostic test.

The Crown appealed a declaration that the process for setting the remuneration of Case Management Masters violated the constitutional principle of judicial independence.

The respondents cross-appealed, seeking a broader remedy than a simple declaration of invalidity.

The Court of Appeal dismissed the appeal, finding that linking the Masters' salaries in perpetuity to a specific civil service classification without an independent commission violated the requirement for an independent, effective, and objective process.

The cross-appeal was also dismissed, as a simple declaration of invalidity was the appropriate remedy.

The suspension of the declaration of invalidity was extended for 12 months.

The appellants appealed the sentence imposed for civil contempt.

They argued the motion judge erred by imposing a significantly longer sentence than suggested by counsel without advising them beforehand.

The Court of Appeal dismissed the appeal, finding that the motion judge did not owe deference to the trustee's submissions on sentence and that the sentence was fit to vindicate the due administration of justice in the context of the contempts.

The appellant appealed the sentence imposed by the trial judge, arguing an error in the assessment of the reasonable possibility of eventual control of his risk of reoffending in the community.

The Court of Appeal found no error in the trial judge's analysis and upheld the conclusion that the risk could not be satisfactorily addressed through Parole Board controls.

The appeal was dismissed.

The appellant appealed his 3-year sentence for break and enter and theft, arguing the sentencing judge failed to give adequate reasons and failed to consider his expressions of remorse.

The Court of Appeal dismissed the appeal, finding the reasons were sufficient as the judge adopted the Crown's submissions and emphasized public protection.

The Court also found the appellant's remorse was not genuine, as he disputed factual findings and blamed the victims.

The appellant sought leave to appeal a summary conviction appeal court decision upholding his conviction under the Fisheries Act.

The Court of Appeal dismissed the application, finding no arguable errors of law regarding the interpretation of an inspection under the Act, the admissibility of expert evidence, or the defences of officially induced error and due diligence.

The appellant was ordered to pay $10,000 and complete required remediation work.

The appellant was convicted of second degree murder after intentionally setting fire to his home, knowing his paraplegic estranged wife was inside.

He appealed his conviction, arguing the trial judge failed to consider the police's failure to video record a three-hour interaction prior to his videotaped confession when assessing its reliability.

The Court of Appeal dismissed the appeal, finding the trial judge properly assessed the voluntariness and reliability of the confession, and correctly applied the W.D. principle.

The appellant appealed his conviction for child luring, arguing the trial judge erred by convicting him after finding the complainant told him she was 16 and appeared to be 16.

The Court of Appeal dismissed the appeal, holding that the trial judge properly considered all relevant circumstances in the 'reasonable steps' inquiry mandated by s. 172.1(4) of the Criminal Code and did not misapprehend the evidence.

The appellants appealed a summary judgment declaring a franchise agreement validly rescinded under the Arthur Wishart Act and finding that the individual appellant and a subleasing entity were franchisor's associates.

The Court of Appeal upheld the finding regarding the individual appellant, as he owned 50% of the franchisor's shares and ran its day-to-day business.

However, the court allowed the appeal regarding the subleasing entity, finding no evidence that it exercised significant operational control over the franchisee, and directed that issue to proceed to trial.

The appellants appealed an order enforcing a settlement agreement.

The respondent had purported to accept a Rule 49 offer to settle after a supervisor was appointed over the corporate appellants and after transferring his interest in a shareholder loan to his daughter.

The Court of Appeal allowed the appeal, finding that the supervision order contained a stay provision and Rule 11 applied to the transfer of interest.

Consequently, accepting the offer and bringing the motion to enforce were steps in the proceeding that required leave of the court, which was not obtained.

The appellants appealed an order finding them in contempt of a receivership order.

They argued the motion judge erred by declining to draw an adverse inference against the receiver for failing to call two independent witnesses, and that this failure reversed the burden of proof.

The Court of Appeal dismissed the appeal, holding that drawing an adverse inference is discretionary and the motion judge made no palpable and overriding error in his findings of fact and credibility.

Class counsel appealed a motion judge's order fixing their fees at $14.5 million instead of the requested $27.5 million following the settlement of a class action regarding payday loans.

The Court of Appeal held that the motion judge did not err in applying section 32(4) rather than the base fee/multiplier approach in section 33(7) of the Class Proceedings Act, as the fee agreement was not approved by the court.

The Court also upheld the motion judge's decision to treat the fees of consultants and other lawyers retained on a contingency basis as disbursements.

However, the Court allowed the appeal in part, ruling that the representative plaintiff's $3,000 compensation should be paid out of the settlement fund rather than out of class counsel fees.

The appellant appealed his conviction for aggravated assault following an incident outside a bar where the complainant suffered a fractured cheekbone.

The appellant argued the trial judge erred in assessing the complainant's credibility and reversed the burden of proof by drawing an adverse inference from the appellant's failure to locate an alternate suspect.

The Court of Appeal dismissed the appeal, finding the trial judge properly applied the W.D. framework and used common sense in assessing credibility without shifting the evidentiary burden.

The Court of Appeal issued an endorsement regarding the costs of an appeal and a motion in the Superior Court.

The court ordered that the appellant, the Attorney General of Canada, be awarded costs in the cause in both courts, fixed at a total amount of $35,000 inclusive of disbursements and taxes.