OCA 2012

The appellant appealed a summary judgment dismissing her claim for non-earner benefits under the Statutory Accident Benefits Schedule as statute-barred.

The appellant argued the limitation period under s. 281.1 of the Insurance Act had not begun because the insurer failed to provide the required OCF-9 form with its notice of refusal.

The Court of Appeal found no palpable and overriding error in the motion judge's factual finding that the insurer had provided the proper notice to the appellant's lawyer.

The appeal was dismissed.

The appellant pled guilty to manslaughter after accidentally shooting his friend with a prohibited firearm while in a vehicle.

He was sentenced to seven years' imprisonment.

On appeal, he argued the trial judge failed to properly apply s. 718.2(e) of the Criminal Code regarding his Aboriginal heritage and erred in weighing aggravating and mitigating factors.

The Court of Appeal found no error in the application of s. 718.2(e) given the mandatory minimum sentence, but the majority held the trial judge failed to give sufficient mitigating weight to the appellant's positive life steps.

The appeal was allowed and the sentence reduced to five years.

The appellant appealed a trial decision granting the respondent sole custody of their three-year-old child, granting the appellant supervised access, and issuing a five-year restraining order against him.

The appellant argued the trial judge erred by refusing to adjourn the trial and by precluding him from calling his treating psychiatrist.

The Court of Appeal dismissed the appeal, finding the trial judge properly exercised his discretion to proceed given the child's best interests and the length of the proceedings.

The Court also held that the appellant failed to comply with the Family Law Rules for expert witnesses, and the psychiatrist's evidence would not have altered the overwhelming evidence supporting sole custody and supervised access.

The appellant appealed a trial judgment dismissing her solicitor negligence claim against the respondent.

She argued the trial judge erred in finding the respondent was not obliged to put in writing that he was not retained for tort and accident benefit claims, and in failing to decide whether his duty of care extended to reviewing limitation periods.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the appellant understood the scope of the retainer and that the respondent had in fact reviewed the limitation periods with her.

The appellant property owner appealed a trial judgment that denied him damages for conversion, trespass, and punitive damages, as well as costs, following the respondent Township's unauthorized entry onto his property to remove chattels.

The Court of Appeal upheld the trial judge's dismissal of the substantive damages claims, finding that the chattels had no value and that setting off trespass damages against towing and clean-up costs was appropriate.

However, the Court granted leave to appeal costs, holding that the trial judge erred in depriving the appellant of costs given his overall success at trial.

The appellant was awarded trial and appeal costs.

The plaintiff, injured at age 15 in 2002, commenced an action against the property owners in 2006.

The defendants added two other individuals as third parties.

In 2009, the plaintiff moved to add the third parties as defendants.

The master and Divisional Court dismissed the motion, finding the claim was not discovered before January 1, 2004, and that a minor could not be deemed to have discovered a claim under s. 5(1)(b) of the Limitations Act, 2002.

The Court of Appeal allowed the appeal, holding that actual knowledge does not require knowledge of legal consequences, and that the lower courts erred in law by failing to consider whether the claim was discoverable by a reasonable person with the minor's abilities and circumstances.

The appellant appealed the equalization and retroactive spousal support provisions of a trial judgment.

The Court of Appeal allowed the appeal in part, finding that the trial judge erred by overriding a prior consent order regarding the buy-out of the matrimonial home to recalculate equalization.

The court substituted a new equalization payment owed by the respondent to the appellant.

The court dismissed the appeal regarding retroactive spousal support, finding the trial judge properly concluded there was good reason for the respondent's delay in claiming support given her circumstances caring for a severely autistic child.

The appellant pleaded guilty to five counts, including sexual assault of a minor and attempting to procure a person to become a prostitute, and was sentenced to five years and two months in prison based on a joint submission.

On appeal, he argued that the agreed statement of facts did not support the convictions and that the sentence was beyond the appropriate range.

The Court of Appeal dismissed the appeal, finding that the appellant's guilty pleas were informed and unequivocal, and that the sentence was within the appropriate range for the offences.

The appellant, who became a quadriplegic following the incidents, appealed his convictions for five counts of sexual assault against a minor and his 30-month sentence.

The Court of Appeal dismissed the conviction appeal, finding no reversible errors in the jury charge and concluding the verdict was not unreasonable.

However, the Court allowed the sentence appeal, finding that incarceration was not necessary given the extraordinary circumstances of the appellant's severe physical infirmity, and reduced the sentence to two years less a day to be served conditionally.

The appellant, who suffered from a severe mental illness, was found marginally fit to stand trial and subsequently pleaded guilty to several offences, including common nuisance.

The trial judge entered findings of guilt and later found the appellant not criminally responsible on account of mental disorder (NCRMD) without conducting a plea inquiry.

On appeal, the Court of Appeal set aside the guilty pleas, findings of guilt, and NCRMD verdicts, holding that the trial judge's failure to conduct a plea inquiry vitiated the pleas given the appellant's mental state and lack of understanding of the consequences.

The appellant appealed from orders granting summary judgment and dismissing her claims against the Crown and Seneca College.

She alleged wrongful denial of student aid funding and an improperly assigned failing grade in a nursing course.

The Court of Appeal upheld the motions judge's findings that student aid was discretionary and restricted due to an unrefunded overpayment, and that the appellant failed the course despite numerous opportunities to rewrite the exam.

The appeal was dismissed, and fresh evidence was not admitted.

The appellant husband appealed an order declaring that each party had an equal interest in the former matrimonial home, which was located on an Indian reserve.

The appellant sought sole ownership and exclusive possession of the home.

Applying the Supreme Court of Canada's decision in Derrickson, the Court of Appeal held that provincial courts lack the authority to make orders concerning the possession, ownership, or disposition of property on a reserve governed by the Indian Act.

The appeal was allowed in part to vary the lower court's order, clarifying that the equal interest in the home was for equalization purposes only.

The appellant, a retail tenant, appealed the dismissal of its breach of contract claim against its landlord for failing to provide additional parking spaces.

The trial judge found a breach but concluded the appellant failed to prove the breach caused a loss, as expert evidence showed vacant spaces were available during peak periods.

The Court of Appeal upheld this finding and dismissed the appeal.

However, the Court granted leave to appeal the trial costs order, finding the trial judge erred in using non-Rule 49 offers to offset time spent on an unsuccessful defence.

The Court awarded the respondents $200,000 in trial costs and $30,000 in appeal costs.

The appellant appealed his conviction and sentence for offences involving two child victims at a licensed daycare in his home.

The Court of Appeal dismissed the appeal, finding ample evidence to support the trial judge's conclusions and no misapprehension of evidence.

The court also upheld the sentence as fit and within the appropriate range, noting the appellant's position of trust.

The appellant appealed his convictions for careless storage of a firearm and his sentence of 12 months' imprisonment and a five-year weapons prohibition.

The Court of Appeal dismissed the conviction appeal, finding the trial judge properly instructed the jury on the marked departure standard of care.

The sentence appeal was allowed, as the trial judge erred in treating rehabilitative prospects as a neutral factor and failed to explain why consecutive sentences were justified.

The sentence was varied to time served and the prohibition order was reduced to two years.

Following the release of the main appeal judgment, the respondents CB Richard Ellis Limited, John Lafontaine, Karen Pickernell, and Carl Lavoie requested costs of the appeal.

They had filed a factum but made no oral submissions.

The Court of Appeal agreed with the appellant that awarding a full counsel fee would be duplicative, and instead awarded these respondents one half of the costs awarded to the other respondents, fixed at $3,750 inclusive of disbursements and taxes.

Following a successful appeal by the Attorney General of Canada, the parties made written submissions on costs.

The respondents, who were unsuccessful on the appeal, sought costs on the basis that they were public interest litigants raising issues of broad public importance regarding s. 2(d) of the Charter.

The appellant sought costs following the event.

The Court of Appeal set aside the application judge's costs award and ordered no costs for the appeal, finding that while the case raised issues of broad public interest and the jurisprudence had shifted during the appeal, there was no rationale for awarding costs to unsuccessful public interest litigants.

The appellant appealed his conviction, challenging the trial judge's Charter ruling regarding the timing of his detention by police.

The appellant argued he was detained and handcuffed before verbally identifying himself under a false name, contrary to the trial judge's finding.

The Court of Appeal dismissed the appeal, concluding there was ample evidence to support the trial judge's factual finding that the detention occurred after the false identification.

The appellant appealed a motion judge's order regarding child support and section 7 expenses under the Federal Child Support Guidelines.

The appellant challenged the imputation of her income, the denial of nanny expenses, the treatment of university expenses, and the order allowing direct payment of section 7 expenses rather than through the Family Responsibility Office.

The Court of Appeal dismissed the appeal, finding no error in principle or significant misapprehension of evidence by the motion judge.

The appellant appealed his conviction for weapons offences, arguing the trial judge erred in dismissing his application for a stay of proceedings based on unreasonable delay under s. 11(b) of the Charter.

The appellant challenged the trial judge's attribution of intake and institutional delay, as well as the assessment of prejudice.

The Court of Appeal found the trial judge reasonably characterized the initial four months as neutral intake and properly allocated the delay caused by an adjournment.

The court also upheld the trial judge's finding that the appellant failed to establish significant prejudice.

The appeal was dismissed.