OCA 2013

The respondent was charged with driving while holding a hand-held wireless communication device after a police officer observed her holding a cellphone while stopped at a red light.

The respondent claimed she had only momentarily picked it up after it fell to the floor.

The trial court convicted her, but the appeal judge allowed her appeal, finding that 'holding' required sustained physical contact.

The Court of Appeal allowed the Crown's appeal and restored the conviction, holding that the ordinary meaning of 'holding' and the road safety objectives of the Highway Traffic Act dictate a complete prohibition on having a cellphone in one's hand while driving, regardless of the duration.

The respondent was convicted of driving while holding a hand-held wireless communication device contrary to s. 78.1(1) of the Highway Traffic Act.

The appeal judge allowed the appeal, holding that the Crown must prove the cellphone was capable of receiving or transmitting.

The Crown appealed.

The Court of Appeal allowed the appeal and restored the conviction, holding that the requirement for a device to be capable of receiving or transmitting applies only to prescribed devices, not to cellphones.

The appellant appealed his convictions for aggravated assault, forcible confinement, and breaking and entering, relying on fresh evidence and asserting ineffective assistance of counsel.

The Court of Appeal found that while fresh expert evidence showed the blood pattern on the screen door was not caused by a baseball bat, the presence of the appellant's blood and fingerprints inside the house and on the door provided ample evidence of his participation.

The court also rejected the ineffective assistance claim regarding a height disparity, noting it was a deliberate tactical decision by trial counsel.

The application to adduce fresh evidence and the appeal were dismissed.

The appellant appealed a trial decision finding that the crash of his twin-engine airplane was not an 'accident' under his insurance policy.

The trial judge had concluded the crash was not an accident because the appellant attempted to take off with only one engine engaged, yet also found he did not know he was running an extraordinary risk.

The Court of Appeal held that the trial judge's reasons were unclear as to whether the appellant was reckless or merely negligent, and found she did not apply the correct standard.

The appeal was allowed and a new trial was ordered.

The appellant was convicted of sexual assault after engaging in sexual activity with the complainant, who mistakenly believed he was her boyfriend.

The trial judge rejected the defence of honest but mistaken belief in consent, finding the appellant failed to take reasonable steps to ascertain consent.

On appeal, the Court of Appeal found that the trial judge misapprehended material evidence regarding the appellant's knowledge of the complainant's intoxication, the visibility in the tent, the timeline of events, and physical differences between the appellant and the boyfriend.

These errors undermined the trial judge's credibility assessment and reasonable steps analysis, resulting in a miscarriage of justice.

The appeal was allowed and a new trial ordered.

The appellant appealed an order striking out claims for breach of contract based on representations in an information folder regarding the Can-Am Fund.

The Court of Appeal upheld the motion judge's finding that it was plain and obvious no cause of action existed for breach of contract, given the governing statutory scheme and warnings in the materials.

The application for leave to appeal the costs order was also dismissed.

The appellant appealed his convictions and sentences for threatening death, assault, sexual assault, and breach of probation against his former intimate partner.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's credibility assessment.

However, the sentence appeal was allowed because the trial judge imposed a sentence substantially higher than the Crown's suggested range without providing reasons or an opportunity for submissions.

The global sentence was reduced from 6 years to 3 years and 8.5 months.

The appellant appealed his conviction for sexual assault and his designation as a long-term offender.

At trial, the complainant's mother testified about a phone call during which the complainant stated the appellant was touching her.

The trial judge found it would be dangerous to convict on the complainant's evidence alone but used the mother's hearsay evidence as confirmatory.

The Court of Appeal held that while the prior consistent statement was admissible to rebut an allegation of recent fabrication, the trial judge erred by using it for the truth of its contents to confirm the complainant's allegations.

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

The appellant appealed his conviction for sexual assault, arguing the trial judge erred in assessing credibility and failing to consider the defence of mistaken belief in consent.

The Court of Appeal dismissed the appeal, finding the trial judge properly treated the case as a credibility contest between diametrically opposed accounts.

The court held that the trial judge's rejection of the appellant's evidence was reasonable and that the defence of mistaken belief in consent did not arise on the facts.

The appellant appealed an application judge's decision finding that a 1998 gas storage lease replaced earlier oil and gas agreements, leaving the appellant without gas storage rights after the 1998 lease terminated.

The respondent raised a preliminary objection that the Court of Appeal's jurisdiction was ousted by a subsequent Ontario Energy Board order designating the lands as a gas storage area.

The Court of Appeal dismissed the preliminary objection, holding that the Board's order did not oust the court's jurisdiction to hear an appeal from a final order interpreting contractual rights.

On the merits, the Court upheld the application judge's interpretation that the 1998 lease was intended to replace, rather than supplement, the earlier agreements regarding gas storage rights.

The appellant appealed a committal order for extradition to Japan, arguing that the extradition was an abuse of process because Japanese authorities intended to question him on an unrelated matter in addition to prosecuting the offence for which extradition was sought.

The appellant also raised concerns about potential mistreatment during custodial interrogation.

The Court of Appeal dismissed the appeal, holding that a legitimate dual purpose does not render the proceeding an abuse of process.

The court also found no evidence before the extradition judge regarding potential mistreatment, noting that the Minister had already addressed this issue and obtained undertakings from Japanese authorities.

The appellant appealed his conviction, arguing that similar fact evidence was improperly admitted and that the jury charge was inadequate regarding potential 'tainting' of evidence.

The Court of Appeal dismissed the appeal, finding the similar fact evidence admissible, particularly given the defence evidence concerning semen stains.

The court also held the jury charge was adequate, noting the lack of objection from the defence at trial.

The appellant municipality appealed the dismissal of its motion for summary judgment, which sought to dismiss the respondent's claim for $8.9 million in unfunded transit liabilities as statute-barred.

The dispute arose from a by-law transferring transit responsibilities from the appellant to the respondent, which required the parties to negotiate the allocation of unfunded liabilities.

The Court of Appeal held that the limitation period did not begin to run until the appellant's municipal council passed a formal resolution denying responsibility and refusing to arbitrate, as the by-law imposed an ongoing obligation to negotiate.

The appeal was dismissed.

The appellant pleaded guilty to break and enter, robbery, forcible confinement, and assault resist arrest following a home invasion involving an 86-year-old victim.

He was sentenced to eight years in addition to nine months of pre-trial custody.

On appeal, he argued the sentence was unfit because it exceeded the Crown's requested eight-year range.

The Court of Appeal dismissed the appeal, finding the trial judge properly considered a mental health and risk assessment report indicating a high risk to re-offend, and that the sentence fell within the established range for home invasions.

The appellants appealed an order dismissing their defamation action for delay.

The action arose from statements published during a 1997 municipal election.

The motion judge found inordinate delay, noting that no steps had been taken by the appellants since 2005 and that a presumption of prejudice arose, reinforced by the loss of witnesses.

The Court of Appeal found no palpable or overriding error in the motion judge's conclusions and dismissed the appeal with costs.

Following a successful appeal, the self-represented appellant sought costs of $2,060 for disbursements incurred.

The Court of Appeal found the disbursements reasonable and awarded costs to the appellant in the requested amount.

The appellant appealed a motion judge's decision finding he had no standing.

The Court of Appeal agreed with the motion judge that the appellant was not bound by the Site Plan Agreement, a conclusion also agreed to by the respondent.

The appeal was dismissed with costs fixed at $8,000.

The appellant brought a motion to reinstate his appeal against conviction and sentence for sexual offences, which he had previously abandoned in 2003.

A prior motion to reopen the appeal was dismissed in 2005 after the appellant failed to file a factum.

In the current motion, the appellant argued the appeal should be reopened because the Crown fraudulently concealed relevant case law.

The Court of Appeal dismissed the motion, finding no merit to the allegations of concealment and no error by the trial judge that would justify granting the relief.

The appellant purchaser appealed the dismissal of her application for the return of a $100,000 deposit after a real estate transaction failed to close.

The purchaser had discovered an open building permit, but the application judge found this requisition could be satisfied by title insurance.

The Court of Appeal upheld the application judge's finding that the vendors were ready to close and the purchaser's failure to respond to the vendor's proposal regarding title insurance caused the transaction to fail.

The appeal was dismissed.

The appellant employee appealed a trial judge's finding that his employer had just cause to dismiss him.

The employee had consumed four beers, driven a company vehicle without authorization, crashed it, and subsequently pled guilty to driving with a blood alcohol level over 80 milligrams.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that this constituted serious misconduct warranting dismissal despite a previously unblemished employment record.