OCA 2012

The appellants appealed a Superior Court judgment regarding a debt and share pledge.

The Court of Appeal dismissed the appeal, finding that the respondent's retention of shares did not extinguish the underlying debt, given his undertaking to return the shares once the principal debt was paid in full.

The court also upheld the trial judge's findings regarding notice of a guarantee.

The appellant, a chronic bank robber, committed nine 'note pass' bank robberies while unlawfully at large on a temporary absence pass.

He was serving the remaining nine years of a previous 12-year sentence.

The sentencing judge imposed a 14-year sentence consecutive to the remaining nine years, resulting in a global sentence of 23 years.

On appeal, the Court of Appeal found that while the 14-year sentence was appropriate on its own, the global sentence of 23 years violated the totality principle and was unduly long and harsh.

The sentence was varied to 11 years concurrent, to be served consecutively to the remaining nine years, resulting in a global sentence of 20 years.

The insured was involved in a motor vehicle accident while impaired and in breach of a police undertaking to abstain from alcohol.

His insurer denied coverage, arguing the breach meant he was not 'authorized by law' to drive under Statutory Condition 4 of the automobile insurance policy.

The application judge declared the insurer was required to defend and indemnify the insured.

The Court of Appeal dismissed the insurer's appeal, holding that 'authorized by law' refers to the validity and terms of a driver's licence, not to personal undertakings given to police.

The appellant appealed a finding of contempt for failing to comply with a court order requiring him to transfer 'any and all other evidence or documents in his possession' to a supervising solicitor.

The appellant had retained copies of the materials and later disseminated them.

The Court of Appeal dismissed the appeal, holding that the retained copies fell within the scope of the order.

The Court also rejected the argument that the appellant could not be in contempt of an order that was later set aside, noting that the order had to be complied with while it was in force.

The appellant appealed a motion judge's decision to strike out portions of his amended Statement of Claim and Defence to Counterclaim that challenged the validity of a prior judgment.

The motion judge found that the appellant's attempt to relitigate the issue, after declining to participate in a previous motion where he had notice and an opportunity to be heard, constituted an abuse of process.

The Court of Appeal agreed and dismissed the appeal, awarding costs to the respondents.

The appellant appealed an order finding his proposed counterclaim for fraud, breach of fiduciary duty, and misrepresentation was statute-barred.

The Court of Appeal dismissed the appeal, finding the appellant was aware of the restrictions on his share redemption rights more than two years before issuing the counterclaim.

The Court also rejected the appellant's new argument that a six-year limitation period under the Securities Act applied.

The appellant was convicted of first degree murder after discharging his trial counsel near the end of the Crown's case.

The trial judge refused the appellant's request for a lengthy adjournment to retain his former preliminary inquiry counsel, finding the request was a sham designed to secure a 'mouthpiece' who would follow unethical instructions.

The trial judge then appointed the discharged trial counsel as amicus curiae.

On appeal, the Court of Appeal upheld the trial judge's discretionary decisions, finding no error in the refusal of the adjournment or the appointment of former counsel as amicus curiae.

The appellant appealed an order striking his pleadings.

The motion judge had struck the pleadings due to the appellant's failure to pay a prior costs order, lack of diligence in providing financial disclosure, and failure to respond to the respondent's efforts to resolve the matter.

The Court of Appeal held that the motion judge properly exercised her discretion in refusing an adjournment and striking the pleadings.

The appeal was dismissed with costs.

The appellant appealed an order requiring her to pay the fees and disbursements of an equitable receiver.

A prior court order had provided that if the appellant paid the outstanding judgment by a certain date, any further equitable receivership costs would be to the account of another party.

The appellant satisfied the judgment by the deadline, but the order under appeal erroneously included costs incurred after that date.

The respondent agreed the order was in error.

The Court of Appeal allowed the appeal, set aside the relevant paragraph of the order, and referred the matter back to the motion judge for reassessment.

The self-represented appellant appealed a trial judgment following a jury verdict, arguing the trial judge erred in several evidentiary rulings, including the exclusion of a video and Building Code extracts, the admission of a psychiatric report, and the redaction of an occupational therapist's report.

She also argued the jury verdict should have been set aside and that transcript errors infringed her right to a bilingual trial.

The Court of Appeal dismissed the appeal, finding no errors in the trial judge's discretionary evidentiary rulings, ample evidence to support the jury's verdict, and that the transcript errors did not affect the jury's appreciation of the evidence or deprive the appellant of any grounds of appeal.

The appellant appealed his convictions for firearms offences arising from an intended armed robbery.

He argued the trial judge erred in instructing the jury on his evidence regarding an innocent association, failing to instruct the jury on the knowledge element of the section 95 charge (knowing the gun was loaded), and failing to stay the section 94 conviction based on the Kienapple principle.

The Court of Appeal dismissed the appeal, finding that any error regarding the innocent association evidence was of no consequence, the omission of the knowledge element caused no substantial wrong given the context of an intended armed robbery, and the trial judge correctly concluded that Kienapple did not apply.

The appellant appealed his drug convictions, arguing the trial judge erred in admitting evidence under s. 24(2) of the Charter after finding his s. 9 rights were violated by an arbitrary roadside stop.

The Crown cross-argued that the stop was lawful.

The Court of Appeal upheld the trial judge's finding that the stop was arbitrary, as the police lacked reasonable suspicion.

However, the Court found the trial judge erred in his s. 24(2) analysis by finding exigent circumstances where none existed and by relying on unsupported evidence regarding another officer's grounds to detain.

The appeal was allowed, convictions quashed, and a new trial ordered.

The appellant, a serial sexual murderer, appealed a disposition of the Ontario Review Board directing his continued detention at the Oak Ridge Division of the Mental Health Centre in Penetanguishene.

The appellant conceded he remained a significant risk to public safety but argued that a transfer to a medium secure unit at the Brockville Mental Health Centre would be the least onerous and least restrictive disposition.

The Court of Appeal dismissed the appeal, finding that the Board reasonably considered the appellant's ongoing minimization of his sexually deviant offences, the potential for reduced staff diligence in a medium secure setting, and the equivalent treatment modalities available at both facilities.

The Court concluded the Board made no error in its assessment of the statutory criteria and the appellant's placement.

The appellant appealed a trial judge's decision regarding an estate and corporate accounting dispute.

The Court of Appeal dismissed the fact-driven appeal, finding no basis to interfere with the trial judge's conclusion regarding the amount allowed for mortgage costs.

Costs of the appeal were agreed at $10,000.

The applicant, who was found not criminally responsible (NCR), was granted an absolute discharge by the Ontario Review Board.

The Crown appealed, which automatically suspended the absolute discharge under s. 672.75 of the Criminal Code, reverting the applicant to a conditional discharge.

The applicant brought a motion challenging the constitutionality of the automatic suspension.

The Court of Appeal held that it had jurisdiction to hear the motion and found that s. 672.75 violates ss. 7 and 9 of the Charter by depriving the NCR accused of liberty without due process and arbitrarily detaining them.

The violations were not saved by s. 1.

The court declared the offending words in s. 672.75 of no force and effect, suspended for 12 months.

The appellant appealed a trial decision regarding a property dispute over waterfront access.

At the outset of the trial, the trial judge disclosed that his wife was a real estate agent specializing in waterfront properties in the area and had clients connected to the dispute, but he declined the appellant's request to recuse himself.

The Court of Appeal found that the trial judge's wife's deep and multi-layered connections to the properties and witnesses created a reasonable apprehension of bias.

The appeal was allowed and a new trial was ordered.

The appellants were convicted of first-degree murder and attempted murder following a jury trial.

During deliberations, the jury reported an impasse three times.

On the third occasion, the trial judge delivered an exhortation that singled out one juror, stating she had an incorrect understanding of reasonable doubt and instructing the other jurors to disabuse her of this error.

The appellants appealed, arguing the exhortation was improper.

The Court of Appeal allowed the appeal, finding the trial judge misconceived the juror's understanding of the law and improperly pitted the majority against the minority.

A new trial was ordered.

The appellant appealed his convictions for sexual assault and uttering a death threat, arguing the trial judge misapprehended the complainant's evidence and erred in applying the third stage of the W.D. analysis.

The Court of Appeal found that the trial judge did not misapprehend the evidence regarding the appellant's boasting or the complainant's description of his post-assault behaviour.

The trial judge was entitled to reject the appellant's evidence and accept the complainant's evidence to find the charges proved beyond a reasonable doubt.

The appeal was dismissed.

The appellants succeeded on a limitation issue in a class action appeal and sought costs for the appeal and the motion below.

The Court of Appeal declined to alter the motion judge's order that costs of the motion remain in the cause.

For the appeal, the court recognized the appellants' success but modified the costs award because the appeal raised a novel issue of law and involved access to justice considerations in a class action.

The court awarded costs of the appeal in the cause, fixing them at $20,000 for the Timminco appellants, $20,000 for the Photon Consulting appellants, and $10,000 for the Walsh appellant.

The appellants appealed a summary judgment decision regarding the operation of a limitation period.

The sole issue was whether the respondent repudiated the agreement when it demanded repayment in March 2008.

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