OCA 2012

The appellant appealed a jury conviction for sexual assault arising from sexual activity at a house party involving an intoxicated complainant and later DNA confirmation.

The court held that the jury charge was fatally deficient because it failed to properly put the defence position, conflated actual and mistaken belief in consent, misstated the burden of proof by implying the accused had to prove consent beyond a reasonable doubt, and referred to wilful blindness without defining it.

Although the charge also included unnecessary references to vitiating factors unsupported by the evidence, that error alone was not reversible.

Considering the cumulative effect of the charge errors, the court declined to apply the curative proviso, quashed the conviction, and ordered a new trial.

Two priority disputes arose between insurers regarding the payment of statutory accident benefits to independent contractors injured while operating commercial vehicles.

The contractors operated as sole proprietorships and were named insureds under their personal-use vehicle policies, but not under the commercial fleet policies.

The Court of Appeal held that under s. 66(1)(a) of the Statutory Accident Benefits Schedule, an insured vehicle can be made available for an individual's regular use by their own sole proprietorship.

Consequently, the contractors were deemed named insureds under the commercial fleet policies, making the commercial insurers responsible for paying the accident benefits.

The appellant appealed his conviction for sexual assault causing bodily harm against his former partner, with whom he was engaged in a custody dispute.

He argued the trial judge misapprehended evidence regarding a note written by the complainant, the nature of her injuries, and her motive to fabricate the allegations to gain an advantage in family court.

The Court of Appeal dismissed the appeal, finding it was open to the trial judge to accept the complainant's explanations and reject the defence's hypotheses.

A fresh evidence application regarding post-trial custody proceedings was also dismissed.

The appellant faced allegations before the Ontario Securities Commission regarding an alleged Ponzi scheme.

He sought a third-party production order from a court-appointed receiver in an unrelated proceeding to obtain documents for his defence.

The motion judge granted partial production.

On appeal, the Court of Appeal held that the appellant was not an 'interested person' in the receivership because he sought the documents for a collateral purpose.

Furthermore, the Court found it inappropriate for the Superior Court to make interlocutory procedural orders regarding a proceeding pending before a tribunal.

The appeal was dismissed and the receiver's cross-appeal was allowed.

The Crown appealed the accused's acquittals on drug trafficking charges, arguing the trial judge erred in excluding intercepted text messages.

The trial judge had ruled that the wiretap authorization required police to be certain the target was using the cellphone before intercepting text messages, finding a breach of section 8 of the Charter.

The Court of Appeal allowed the appeal, holding that the trial judge's interpretation was unworkable and inconsistent with the authorization as a whole, which specifically exempted non-oral telecommunications from live monitoring requirements.

The Court found no section 8 breach and ordered a new trial.

The respondent law firm sued the appellant for unpaid legal bills arising from divorce proceedings.

The appellant counterclaimed for an order that the bills be referred for assessment, alleging his lawyer failed to address a material change in circumstance and a mathematical error in an arbitration award.

The motion judge granted summary judgment for the law firm, finding the request for assessment disingenuous because the appellant had promised to pay.

The Court of Appeal allowed the appeal, holding that the request was not tactical as the factual basis was known to the solicitor during the relationship, and referred the accounts for assessment.

The appellants sought to appeal an order of the Superior Court of Justice.

The Court of Appeal quashed the appeal for lack of jurisdiction, finding that the order sought to be appealed was interlocutory and therefore no appeal lay to the Court of Appeal.

Costs were awarded to the respondent in the amount of $3,000.

The appellants appealed an order striking their plea of equitable fraud.

The Court of Appeal allowed the appeal, finding that it was not 'plain and obvious' that a claim in equitable fraud could not succeed, citing relevant jurisprudence.

The order striking the plea was set aside, the defendants' motion was dismissed, and the appellants were permitted to amend their statement of claim.

The appellants appealed an order refusing to set aside a default judgment and refusing an adjournment.

The Court of Appeal dismissed the appeal, finding that sufficient facts were pleaded and admitted by default to establish that the appellants diverted trust funds under the Construction Lien Act.

This conduct fell within the exception to discharge under s. 178(1)(d) of the Bankruptcy and Insolvency Act for misappropriation or defalcation while acting in a fiduciary capacity.

The appellant appealed the order of the lower court.

The Court of Appeal found no basis to interfere with the order and dismissed the appeal, awarding costs to the respondent in the amount of $2,500.

The appellant was convicted of sexual assault and two counts of breach of recognizance, and sentenced to 40 months' imprisonment in addition to 16 months' pre-trial custody.

The appellant, a first offender with a history of serious mental illness, appealed the sentence.

The Court of Appeal reviewed institutional records indicating the appellant had resisted treatment in custody.

Given the brutality of the assault and the risk posed to the community, the Court found no error by the trial judge and dismissed the sentence appeal.

The appellant was convicted of drug-related offences based on evidence obtained through wiretap authorizations.

On appeal, he argued that the trial judge erred in refusing leave to cross-examine the affiant of the supportive affidavits, that he was improperly named as a 'known' person in the authorizations, and that the authorizations required live monitoring at all locations.

The Court of Appeal dismissed the appeal, finding that the appellant had abandoned his application to cross-examine the affiant at trial, that the standard for naming a 'known' person under s. 185(1)(e) of the Criminal Code was met, and that the live monitoring requirement was properly restricted to specific locations.

The appellant appealed his conviction, arguing the trial judge misapprehended evidence and failed to properly apply the W.(D.) test for assessing credibility.

The Court of Appeal found no misapprehension of evidence, noting the trial judge carefully reviewed the complainant's testimony and provided ample explanation for accepting it independent of rejecting the appellant's evidence.

The court also found the trial judge properly applied the W.(D.) test, having acquitted the appellant on two other counts.

The appeal from conviction was dismissed.

The appellant was acquitted at trial of diamond smuggling charges after the trial judge found that a 'hard entry' by an Emergency Response Team violated his s. 8 Charter rights and excluded the evidence.

The summary conviction appeal court allowed the Crown's appeal and ordered a new trial, relying on the Supreme Court's intervening decision in Cornell.

The Court of Appeal granted the appellant leave to appeal but dismissed the appeal, holding that the police must be allowed latitude in tactical entry decisions and that the hard entry was reasonable given the unknown risks, including the potential presence of weapons.

The appellant condominium corporation appealed the dismissal of its claim against the respondent bank.

The appellant's property manager had improperly transferred funds from the appellant's trust account at the bank, causing a loss of over $370,000.

At trial, the appellant succeeded against the property manager but its claim against the bank was dismissed.

On appeal, the appellant sought damages in negligence against the bank.

The Court of Appeal dismissed the appeal, finding that the appellant had not advanced negligence as a distinct claim at trial, likely for tactical reasons to avoid a contributory negligence defence.

The applicant sought leave to appeal under s. 839(1)(a) of the Criminal Code from a summary conviction appeal court decision dismissing his appeal from an assault conviction.

The sole issue raised was whether the trial judge erred in dismissing an application for a stay of proceedings based on unreasonable delay.

The Court of Appeal refused leave to appeal, applying the test from R. v. R.(R.), finding that the proposed grounds of appeal lacked significance to the general administration of justice and the merits of the appeal were not very strong.

The applicant's sentence of a conditional discharge and probation did not constitute a significant deprivation of liberty warranting an exception.

The appellant brought a motion to transfer a family law appeal from the Court of Appeal to the Divisional Court.

The appeal was from an order made under section 23 of the Children's Law Reform Act at a Family Court branch.

The respondent opposed the motion, arguing the order was final and should be heard by the Court of Appeal.

The court applied the statutory provisions and precedent, concluding that appeals of such orders lie to the Divisional Court.

The motion was granted and the appeal was transferred.

The appellant appealed his conviction for drug trafficking and the dismissal of his entrapment claim, arguing the trial judge's findings were unreasonable and the reasons inadequate.

The Court of Appeal dismissed the appeal, finding that the trial judge's rejection of the appellant's credibility and the evidence of an agreement to sell heroin to an undercover officer supported the conviction.

The court also held that the entrapment argument failed, as the police conduct was investigatory and followed by conduct amounting to trafficking.

The appellants appealed an order denying an adjournment and granting summary judgment to the respondent.

The Court of Appeal dismissed the appeal, finding no error by the motion judge as the appellants had failed to file any material in defence of the claim despite a previously ordered timetable.

The court noted the appellants were merely seeking time to rearrange their affairs, which was not a remedy available to them.

The appellant appealed his conviction and sentence, arguing the trial judge misapprehended material aspects of the evidence.

The Court of Appeal dismissed the appeal, finding the trial judge specifically addressed the discrepancies raised, including the location of a truck, a phone call, an MSN message, and the complainant's description of the appellant's anatomy.

The Court held the trial judge properly explained why the complainant's evidence was reliable and supported by corroborating evidence.