OCA 2011

The appellant sought to strike his guilty plea to a charge of refusing to provide a breath sample, arguing he received misleading advice from counsel regarding the consequences of the plea.

The summary conviction appeal judge dismissed the appeal because the appellant failed to demonstrate a viable defence.

The Court of Appeal found the appeal judge applied the wrong legal test, noting the focus should have been on whether the plea was informed, not whether a viable defence existed.

However, the Court denied leave to appeal due to the significant delay and the absence of a miscarriage of justice.

The appellant appealed his convictions for robbery, assault with a weapon, and use of an imitation firearm while committing robbery.

At trial, the judge did not leave the defence of self-defence with the jury, concluding there was no air of reality to the defence based on a pre-emptive strike.

The Court of Appeal found that, taking the appellant's evidence at its highest, there was a basis for leaving self-defence with the jury under s. 37 of the Criminal Code, given the complainant's history of bullying and aggression towards the appellant.

The appeal was allowed, the convictions were set aside, and a new trial was ordered.

The appellants sued the respondent police officers and municipality for negligent and malicious investigation after criminal charges against the appellant were dropped.

The motion judge dismissed the action as statute-barred under the six-month limitation period in the Public Authorities Protection Act.

On appeal, the Court of Appeal held that while the cause of action arose when the charges were dropped rather than upon arrest, the claim was still issued one day late.

The Court further held that the 'special circumstances' doctrine does not permit the commencement of a new action after a limitation period expires, and that the respondents did not require leave under Rule 2.02 to bring their motion.

The appellants appealed an order finding that Ontario had jurisdiction over the plaintiffs' claims for breach of contract and fraudulent misrepresentation.

The Court of Appeal upheld the motion judge's finding that the claims fell within Rule 17(2) of the Rules of Civil Procedure, establishing a presumption of jurisdiction simpliciter based on a real and substantial connection to Ontario.

The Court also deferred to the motion judge's conclusion that Ontario was the convenient forum, noting the location of parties and witnesses.

The appeal was dismissed.

The appellant appealed the sentence imposed for a home invasion committed against his ex-wife in the presence of their children.

The Court of Appeal dismissed the appeal, finding the sentence, which included a three-year probation period, to be fit and even lenient given the horrific nature of the offence.

Although the appellant had taken courses while incarcerated to address anger management and addiction issues, the court found no basis to interfere with the trial judge's sentence.

The applicants, a natural gas utility and a locator company, sought leave to appeal a Superior Court decision that ordered a new trial on charges under the Occupational Health and Safety Act and the Technical Standards and Safety Act.

The charges arose from a fatal natural gas explosion caused when an excavator struck an unmarked pipeline.

The Court of Appeal dismissed the application for leave to appeal, finding that the proposed grounds of appeal did not raise questions of law alone that were essential in the public interest or for the due administration of justice under section 131 of the Provincial Offences Act.

The appellant appealed his conviction and sentence, arguing the trial judge erred by allowing his full criminal record before the jury and by finding the arresting officer did not use excessive force.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's detailed reasons or application of legal principles.

The sentence appeal was abandoned and also dismissed.

The appellant sought leave to appeal a judgment of the Superior Court of Justice.

The Court of Appeal denied leave, finding that the proposed appeal was fact-driven, raised no important legal issues, and lacked strong merits.

The moving party sought leave to appeal an order sanctioning the monitor's methodology for distributing funds in Nortel's Health and Welfare Trust under the CCAA.

The Court of Appeal dismissed the motion, finding that the interpretation of the specific termination clause was not of significance to the practice, the appeal was not prima facie meritorious, and granting leave would unduly hinder the progress of the restructuring.

Costs were awarded to the Monitor.

The appellant franchisee appealed an order appointing a receiver over its business.

The franchisee argued that the franchisor had forgiven its debt for unpaid royalties and advertising contributions through two letters, and that the application judge erred in considering PST arrears not pleaded in the notice of application.

The Court of Appeal dismissed the appeal, finding that the letters were merely proposals requiring acceptance, which never occurred.

The court also held that the PST default was properly considered as it was raised in supporting affidavits without causing prejudice, and rejected new arguments regarding jurisdiction, waiver, and estoppel.

The young person appealed their conviction for assault and robbery, arguing the trial judge erred in relying on the evidence of a tainted witness.

The Court of Appeal dismissed the appeal, finding the trial judge properly instructed himself in accordance with Vetrovec and reasonably relied on independent confirmatory evidence, even though it did not directly implicate the appellant.

The appellants appealed the dismissal of their solicitor's negligence action.

The appellants alleged that the respondent solicitor, who acted for multiple parties in a corporate restructuring prior to the individual appellant's bankruptcy, failed to recommend independent legal advice and failed to discuss alternative transactions.

The Court of Appeal dismissed the appeal, finding that the solicitor did not breach his fiduciary duty or act negligently, as he took instructions from the appellant's designate, the transactions were straightforward, and the appellant was a sophisticated businessman who understood the documents.

Furthermore, the appellants failed to establish any damages, as the shares and debt involved had no value.

The appellant appealed a jury verdict finding no negligence on the part of the respondent in a motor vehicle accident.

The Court of Appeal dismissed the appeal, finding ample evidence that the appellant had the means to avoid the collision but failed to do so, including attempting to pass in a no-passing zone while the respondent was signaling a left turn.

The court concluded that a jury acting judicially could reasonably have reached this verdict.

The appellant participated in a home-invasion robbery during which his gun discharged, killing an occupant.

He was convicted of second degree murder under s. 229(c) of the Criminal Code.

On appeal, he challenged the constitutionality of s. 229(c), arguing it violated s. 7 of the Charter by not requiring an intent to cause serious bodily harm.

The Court of Appeal dismissed the appeal, holding that subjective foresight of death combined with an unlawful object is a constitutionally sufficient mens rea for murder.

The court also upheld the trial judge's jury instructions, Vetrovec warning, and the 15-year parole ineligibility period.

The appellant judgment creditor attempted to enforce a judgment through a sheriff's sale of the debtor's home.

The sheriff required mortgage discharge statements, which the respondent mortgagees refused to provide citing privacy concerns.

The Court of Appeal upheld the application judge's finding that the Personal Information Protection and Electronic Documents Act (PIPEDA) prohibited the disclosure of the mortgage statements without the debtor's consent, as they constituted personal information and no statutory exemption applied.

The appellant appealed his conviction for aggravated assault, arguing the trial judge erred in rejecting his self-defence claim under s. 37 of the Criminal Code by focusing solely on the complainant's injuries.

The incident, captured on video in a holding cell, showed the appellant provoking the complainant and then punching him once in the face, causing serious injuries.

The Court of Appeal dismissed the appeal, finding the trial judge properly considered the video evidence and the injuries to determine that the force used by the appellant was excessive in the circumstances.

The appellant pled guilty to breaching a court order and was sentenced to 18 months imprisonment.

The trial judge gave no credit for 42 days of pre-sentence custody.

On summary conviction appeal, the judge granted 1:1 credit but refused 2:1 credit, reasoning that parole eligibility could not be considered for pre-sentence custody if it could not be considered for post-sentence custody.

The Court of Appeal held this was an error in principle, as pre-sentence custody does not count towards parole eligibility.

The appeal was allowed, and the appellant was granted 2:1 credit, reducing his sentence to 15 months.