OCA 2012

The appellant appealed four orders striking out his Statements of Claim against the City of Hamilton and the Government of Ontario.

The claims involved allegations of failure to fund employment assistance programs, failure to ensure a competitive job market, and requests for the legislature to enact laws addressing alleged abuses of power.

The Court of Appeal agreed with the motion judges that the claims disclosed no reasonable cause of action or were outside the purview of the courts.

The appeals were dismissed.

Appeal from an Ontario Review Board disposition order under Part XX.1 of the Criminal Code.

The appellant challenged the reasonableness of a detention order and a 50 km radius restriction requiring proximity to the hospital.

The court held that the disposition was supported by the record and reflected the least restrictive disposition agreed to by the parties before the Board.

Although fresh evidence showed the appellant was doing well, that progress was for the next Board hearing and did not render the earlier disposition unreasonable.

The applicant sought judicial review of a Surrender Order made by the Minister of Justice, arguing that outstanding charges in Macedonia affected the reasonableness of the decision to extradite him to the United States.

The Court of Appeal dismissed the application, holding that the outstanding charges in Macedonia were for entirely different offences and did not affect the reasonableness of the decision to extradite.

The appellant appealed an order striking its claim and dismissing its action.

The Court of Appeal had previously adjourned the appeal pending the outcome of related judicial review proceedings in the Divisional Court.

After the Divisional Court dismissed the judicial review application and leave to appeal was denied, the Court of Appeal dismissed this appeal, finding that the allegations in the appellant's pleadings were in substance the same as those rejected by the Divisional Court.

The court held that allowing the re-litigation of those allegations in a second proceeding would be an abuse of process.

The appellant appealed his robbery conviction, arguing that the eyewitness description varied from his appearance.

The Court of Appeal dismissed the appeal, finding that the trial judge adequately explained why he discounted the discrepancies and reasonably relied on the remarkable coincidence that the appellant was found with the co-perpetrator minutes after the robbery wearing a shirt matching the eyewitness description.

The appellant appealed his conviction for sexual assault.

The trial judge had acquitted the appellant of the most serious offences due to grave doubts about the complainant's credibility, but convicted him of sexual assault based entirely on a statement made to a police officer.

The Court of Appeal found that the trial judge erred by focusing solely on whether the statement was made, without determining whether it was truthful, especially since the complainant's evidence did not correspond to the act described in the statement.

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

The respondent commenced an action alleging the appellants fraudulently obtained and illegally transmitted its satellite programming to apartment tenants.

The appellants moved to stay the action under s. 7(1) of the Arbitration Act, relying on an arbitration clause in the residential subscriber agreement.

The Court of Appeal upheld the motion judge's dismissal of the stay, finding the appellants could not invoke the arbitration clause without acknowledging they were parties to it.

The Court also agreed that a partial stay under s. 7(5) was inappropriate as it would cause a multiplicity of proceedings, given that only a few of the 23 defendants were potentially bound by the agreement.

The appellant appealed the dismissal of his action for delay.

He had sued the respondent insurer in 2002 for breach of contract relating to disability benefits.

After the exchange of pleadings in 2003, essentially no progress was made for over seven years, during which the appellant declared personal bankruptcy and failed to produce medical evidence.

The Court of Appeal upheld the motion judge's finding that the delay was inordinate, inexcusable, and gave rise to a presumption of prejudice that was not rebutted.

The appeal was dismissed.

The young person appealed their conviction, arguing the trial judge failed to consider self-defence under s. 34(1) of the Criminal Code.

The Crown conceded the appellant relied on s. 34(1), but the trial judge only addressed s. 34(2).

The Court of Appeal found an air of reality to the s. 34(1) defence, noting the trial judge made no finding that the appellant intended to cause grievous bodily harm and the findings did not establish disproportionate force.

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

The applicants brought a motion to quash the respondents' appeals from two procedural orders made by a case management judge in a multi-party vexatious litigation application.

The Court of Appeal determined that the orders in question, which subjected the application to case management, quashed summonses with leave to reapply, and left fraud allegations open for future determination, were purely interlocutory.

Consequently, the court lacked jurisdiction to entertain the appeals, and they were quashed with costs awarded to the applicants.

The young person appealed their conviction and sentence for robbery.

The appellant argued the trial judge misapprehended circumstantial evidence regarding identification and erred in principle during sentencing by departing from a probation officer's recommendation.

The Court of Appeal dismissed the conviction appeal, finding the trial judge correctly assessed the circumstantial evidence matching the appellant's clothing and appearance to the perpetrators.

The sentence appeal was also dismissed, as the trial judge made no error in principle and was entitled to weigh the appellant's poor behaviour in pre-trial custody.

The appellant appealed his sentence for setting fire to a police cruiser during the G20 riots.

The Court of Appeal upheld the custodial sentence, finding that general deterrence and denunciation were paramount and the trial judge adequately considered the appellant's personal circumstances.

However, the Court struck out the restitution order because the trial judge failed to inquire into the appellant's ability to pay, noting his addiction and sporadic employment.

The respondents challenged the constitutionality of three Criminal Code provisions relating to prostitution: operating a common bawdy-house, living on the avails of prostitution, and communicating for the purpose of prostitution.

The application judge struck down all three provisions as violating section 7 of the Charter.

On appeal, the Court of Appeal upheld the striking down of the bawdy-house provision (suspended for 12 months) and read in an exploitation requirement to the living on the avails provision.

However, the Court of Appeal reversed the application judge's decision on the communicating provision, finding it did not violate the principles of fundamental justice and was a justified limit on freedom of expression, binding the lower court to the Supreme Court's previous decision in the Prostitution Reference.

The appellant appealed jury convictions for multiple sexual offences arising from allegations by several complainants in circumstances involving crack cocaine use and alleged coercive sexual conduct.

The Court of Appeal held that, although the similar fact evidence was admitted, there was at least an air of reality to possible inadvertent collusion through media reports, rumours, and street communications, and the jury should have been left to assess that possibility when weighing the evidence.

The court also held that, after severing counts involving one complainant to preserve the accused’s ability to testify only on those counts, the trial judge erred in then admitting that complainant’s evidence as similar fact evidence, effectively undermining the accused’s right to silence and control of the defence under ss. 7 and 11(c) of the Charter.

The combined errors required a new trial.

The appellant appealed his conviction, arguing that his rights under ss. 9 and 10 of the Charter were violated during a police encounter in a parking lot.

The Court of Appeal dismissed the appeal, agreeing with the trial judge that no detention occurred until the formal arrest, as the initial interaction was preliminary and exploratory.

The court also upheld the finding that there were reasonable grounds for the arrest, making the subsequent search lawful as an incident to arrest.

The Crown appealed the sentence imposed on the respondent, arguing it was manifestly inadequate given the nature of the offences and the respondent's record for violence.

The Court of Appeal dismissed the appeal, finding that while the sentence was extremely lenient, the trial judge had the benefit of a compelling Gladue report and was entitled to give considerable weight to restorative justice principles.

The appellant appealed the dismissal of its negligence claim against the respondent electrician, alleging the respondent damaged an armoured cable during installation, causing a fire.

The trial judge accepted the respondent's denial of severely abusing or yanking the cable, which rebutted the presumption of negligence suggested by the jointly retained expert.

The Court of Appeal found no error in the trial judge's assessment of the evidence or the adequacy of his reasons, and dismissed the appeal.

The appellants appealed a summary judgment dismissing their action against the respondent insurer for breach of the duty of good faith.

The motion judge had found the action was barred by the one-year limitation period in the standard automobile policy.

The Court of Appeal allowed the appeal, holding that the cause of action did not arise until the insured's liability was finally ascertained by judgment.

Furthermore, the court held that a claim for breach of the independent duty of good faith is not a claim under the insurance contract, and is therefore subject to the general six-year limitation period rather than the one-year statutory condition.

The appellant appealed a motion judge's decision striking out his statement of claim for failing to disclose a reasonable cause of action and dismissing his motion for leave to amend.

The appellant argued he should be allowed to amend his claim to assert negligence against the respondent bank as a guarantor or surety of the corporation's obligations.

The Court of Appeal dismissed the appeal, finding no lis between the appellant and the bank because his obligations were to third parties, not the bank.

Furthermore, the court agreed that the appellant's potential claim was derivative of the corporation's claim and could only be asserted by the corporation.

The cross-appellants (the sellers) appealed a trial judgment finding them liable for negligent misrepresentation regarding the value of business inventory sold to the respondents (the buyers).

The trial judge had awarded damages to the buyers but reduced the award by 20 percent due to contributory negligence.

On appeal, the sellers argued the buyers did not reasonably rely on the misrepresentation and suffered no detriment, while the buyers argued the finding of contributory negligence was inconsistent with reasonable reliance.

The Court of Appeal dismissed the appeal, holding that the trial judge's findings of reasonable reliance, detriment, and contributory negligence were supported by the evidence and could co-exist.