OCA 2012

The appellant law firm appealed a motion judge's order excluding its final account from a court-ordered assessment of its accounts, and a subsequent order awarding the respondents full indemnity costs.

The Court of Appeal dismissed the appeal regarding the exclusion of the account, finding that the appellant failed to deliver the account 'forthwith' as explicitly required by the prior Assessment Order.

However, the Court allowed the appeal regarding costs, substituting a partial indemnity award because there was no finding of reprehensible conduct by the appellant to justify a full indemnity scale.

The appellants appealed a judgment interpreting the Constitution of a religious society and upholding a freezing order on memberships.

The Court of Appeal affirmed the application judge's finding that a 'bona fide member' only required payment of dues for the last two calendar years, rejecting the appellants' argument for a 24-month probationary period.

The Court also upheld the freezing order, finding it was validly passed by the Executive Committee in response to a forcible takeover and was justified to restore calm.

The appeal was dismissed with costs.

The Minister of Finance appealed a decision finding that the OMERS Board and its wholly-owned subsidiaries were Crown agencies exempt from paying land transfer tax under the Land Transfer Tax Act.

The Court of Appeal dismissed the appeal, endorsing the motion judge's conclusion that the government had de jure control over the OMERS Board, making it a Crown agency.

The Court also agreed that the statutory scheme allowed the OMERS Board to act through wholly-owned subsidiaries, which were therefore also Crown agencies entitled to the tax exemption.

The appellants were convicted of first degree murder following a home invasion robbery where the victim was bound and shot.

At trial, they advanced a cut-throat defence, each accusing the other of being the shooter.

On appeal, they argued the trial judge misdirected the jury on the elements of constructive first degree murder under s. 231(5)(e) of the Criminal Code and party liability under s. 21(2).

The Court of Appeal held that while s. 21(2) can form the basis for first degree murder, the trial judge failed to adequately instruct the jury on what factual findings were required to conclude the non-shooter actively participated in the killing.

The appeals were allowed in part, the first degree murder convictions were set aside, and convictions for second degree murder were substituted.

The applicant sought judicial review of the Minister of Justice's decision to order his surrender for extradition to the United States, and appealed the committal order.

The Court of Appeal dismissed the application, finding that the Minister reasonably addressed the relevant factors in the Cotroni assessment and properly considered the applicant's personal circumstances.

The appellant appealed a committal order related to drug trafficking.

The Court of Appeal dismissed the appeal, finding ample evidence to support the committal order, including direct evidence from two accomplices and circumstantial evidence linking the appellant to the individual engaged in the trafficking.

The appellant appealed her convictions on three charges of fraud, seeking to withdraw her guilty pleas.

She argued that she had a potential defence of duress.

The Court of Appeal dismissed the appeal, finding that the transcripts of the guilty pleas offered no support for withdrawal and that her alleged duress did not meet the requirements of section 17 of the Criminal Code.

The appellant appealed the dismissal of her application for an equalization of net family property and spousal support.

The application judge found the equalization claim was statute-barred as the parties separated more than six years before the application was commenced, and declined to extend the limitation period under s. 2(8) of the Family Law Act.

The spousal support claim was dismissed because the appellant failed to establish financial hardship or need.

The Court of Appeal upheld the application judge's findings and dismissed the appeal.

The appellant appealed his convictions for firearm-related offences, arguing the trial judge erred in admitting evidence obtained during an illegal search of his apartment.

The police had executed a search warrant without reasonable and probable grounds.

The trial judge excluded drug-related evidence but admitted the firearms evidence under s. 24(2) of the Charter, applying the Grant framework.

The Court of Appeal upheld the trial judge's decision, finding no error in the conclusion that the police did not act in bad faith and that there is a heightened public interest in the prosecution of firearms offences.

The appellant Ministry appealed a Divisional Court decision dismissing its application for judicial review of an order by the Information and Privacy Commissioner.

The Commissioner had ordered the disclosure of a record containing the first three characters of Ontario postal codes and the corresponding number of registered sex offenders residing in each area.

The Ministry argued the record was exempt from disclosure under s. 14 of the Freedom of Information and Protection of Privacy Act, claiming it could lead to identifying offenders' whereabouts.

The Court of Appeal dismissed the appeal, agreeing with the Divisional Court that the Commissioner's conclusion was reasonable, as the Ministry failed to provide sufficient evidence to support its concerns.

The appellants appealed convictions arising from a vicious, pre-meditated group assault intended to intimidate a victim from testifying at an upcoming murder trial, arguing that the trial judge failed to provide an adequate Vetrovec warning regarding an unsavoury key witness and misdirected the jury on confirmatory evidence.

The Court of Appeal held that the caution, framed consistently with standard jury instructions and reinforced by repeated references to the witness's frailties, was more than adequate in the context of the case as a whole.

It further held that the cited confirmatory evidence was capable of bolstering material aspects of the witness's account and was not misleading.

On sentence, the court found an error in the trial judge's statement that there were no mitigating factors, but concluded that denunciation and deterrence properly predominated and that the four-year global sentence remained fit.

The appellant appealed a judgment staying his Ontario action against the respondent on the bases of issue estoppel, jurisdiction simpliciter, and forum non conveniens.

The Court of Appeal dismissed the appeal, finding that the motion judge correctly applied the factors from Van Breda to conclude that Quebec was clearly the more appropriate forum for the dispute.

The appellant appealed an order of the Superior Court of Justice.

The Court of Appeal agreed with the reasons of the motion judge and dismissed the appeal, awarding costs to the respondent.

The appellant, a first-time offender addicted to cocaine, pleaded guilty to trafficking after selling $40 of crack cocaine to an undercover officer.

He successfully completed a drug rehabilitation program, leading the Crown and defence to jointly submit an eight-month conditional sentence.

The sentencing judge rejected the joint submission and imposed a six-month jail term, mistakenly finding the appellant was a 'middleman.' On appeal, the Crown conceded the error.

The Court of Appeal allowed the appeal, holding that the sentencing judge misapprehended the evidence and failed to apply the high threshold for departing from a joint submission.

The sentence was varied to an eight-month conditional sentence.

The appellant was convicted of importing cocaine after arriving at Pearson International Airport with cocaine dissolved in wine bottles.

On appeal, she argued the trial judge erred in instructing the jury on the knowledge requirement and in admitting opinion evidence from a border services inspector regarding her ticket purchase.

The Court of Appeal dismissed the first ground but allowed the appeal on the second ground, finding the inspector's testimony about cash payments and short-notice bookings was inadmissible, highly prejudicial opinion evidence.

The court declined to apply the curative proviso and ordered a new trial.

The appellants appealed a motion judge's decision that a restrictive covenant in a franchise agreement was not ambiguous to the point of being unenforceable as a pure question of law.

The Court of Appeal dismissed the appeal, finding that the provision was not facially ambiguous when read in the context of the entire agreement, and that any factual ambiguities would need to be determined at trial.

The appellants, two municipalities, appealed a trial judgment apportioning them 2/3 liability for a motor vehicle accident that rendered two young women quadriplegic.

The trial judge found the unlit, unmarked rural road was in a state of non-repair due to a dangerous 'accident hill' that blinded drivers.

The respondents cross-appealed, arguing the driver's 1/3 liability should be reduced to 10 percent.

The Court of Appeal dismissed both the appeal and cross-appeal, finding the trial judge's factual conclusions were amply supported by the evidence and his apportionment of fault was entitled to substantial deference.

The appellants were convicted of importing heroin and conspiring to import heroin after a controlled delivery of a package to a third party's apartment.

The Crown's case relied heavily on the evidence of the third party, who claimed the appellants orchestrated the importation.

The appellants appealed their convictions, arguing the trial judge's jury charge was fatally flawed.

The Court of Appeal agreed, finding the charge failed to properly instruct the jury on assessing credibility, gave an inadequate Vetrovec warning, improperly exhorted minority jurors to reconsider their views, and failed to separately review the evidence against each appellant.

The appeal was allowed and a new trial ordered.

The plaintiff was injured in a motor vehicle accident and subsequently received Canada Pension Plan (CPP) and Hospitals of Ontario Pension Plan (HOOP) disability benefits.

The defendants brought a motion to determine whether these benefits were deductible from any tort award for loss of income or loss of earning capacity under s. 267.8(1)2 of the Insurance Act.

The motion judge ruled they were not deductible.

The Court of Appeal dismissed the defendants' appeal, holding that the benefits fall within the private insurance exception at common law, and the statutory addition of 'loss of earning capacity' did not clearly and unambiguously change this rule.

Furthermore, the benefits were paid in respect of the plaintiff's disability, not 'in respect of the incident' as required by the statute.

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

The Court of Appeal found that the application judge erred in characterizing the delay caused by the Crown's failure to make timely disclosure, failed to consider inferred prejudice, and incorrectly treated a stay of proceedings as an extraordinary remedy.

The Court concluded that the 35-month delay, largely attributable to the Crown and institutional delay, was unreasonable.

The appeal was allowed, the convictions were set aside, and a stay of proceedings was entered.