OCA 2013

The appellant appealed his conviction and sentence.

He provided satisfactory proof that he is a full status Métis.

The Court of Appeal varied his probation order by deleting the condition requiring him to abstain from owning, possessing, or carrying weapons as defined in the Criminal Code.

The appeal was otherwise dismissed.

The appellants appealed a trial judge's decision declining to enforce a mediated settlement under Rule 49.09 of the Rules of Civil Procedure.

The trial judge had found that the respondent was stressed and emotional during the brief mediation, and that enforcing the settlement would result in a real injustice.

The Court of Appeal dismissed the appeal, holding that the trial judge's factual findings were supported by evidence and her discretionary decision not to enforce the settlement was entitled to deference.

The court noted that the appellants suffered no financial prejudice from the partial implementation of the settlement.

The appellant appealed an order regarding standing under Rule 38.11.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the appellant was at best contingently affected by the recognition order and thus did not have standing.

Costs were awarded to the respondent in the amount of $20,000.

The respondent was convicted at trial based on overwhelming circumstantial evidence.

The Summary Conviction Appeal Court (SCAC) ordered a new trial, finding the trial judge failed to consider a second police officer's evidence regarding the respondent's broken zipper, which the SCAC judge believed supported the respondent's alibi.

The Crown appealed.

The Court of Appeal allowed the appeal, finding that the SCAC judge, not the trial judge, had misapprehended the evidence.

The trial judge had properly considered the evidence and rejected the alibi.

The convictions were restored.

The appellant was convicted of production, conspiracy to produce, and possession of marijuana for the purpose of trafficking in connection with two rural grow operations.

On appeal, the appellant argued that the trial judge erred by admitting hearsay evidence from a Ministry of Transportation database, admitting real estate documents protected by solicitor-client privilege, and failing to exclude search evidence obtained under invalid general warrants pursuant to section 24(2) of the Charter.

The appellant also argued the verdicts were unreasonable.

The Court of Appeal dismissed the appeal, finding no error in the admission of the evidence and concluding that the cumulative circumstantial evidence reasonably supported the convictions.

The appellant appealed his convictions for two counts of robbery, arguing the trial judge failed to properly instruct the jury on the frailties of eyewitness identification evidence and the alibi defence.

The Crown's case rested entirely on the eyewitness identification of two victims who had a brief, stressful encounter with the assailant and provided generic descriptions lacking distinctive features.

The Court of Appeal found the jury instructions deficient, particularly regarding the failure to connect the standard instruction on eyewitness frailties to the specific concerns of the case and the lack of a Hibbert caution regarding in-dock identification.

The convictions were quashed and acquittals entered.

The appellant, a third mortgagee, appealed a summary judgment dismissing its action for damages for an alleged improvident sale and for an accounting under s. 27 of the Mortgages Act.

The appellant argued the motion judge applied the wrong test, the sale was improvident, and the second mortgagee was not entitled to add the first mortgage payout to its claim.

The Court of Appeal dismissed the appeal, finding that while the wrong test was applied, the respondent took reasonable precautions to obtain the true market value of the property.

The court also held the respondent was entitled to the payout amount under the doctrine of equitable subrogation.

The appellant garnishee appealed an order directing payment to the respondent judgment creditor.

The Court of Appeal dismissed the appeal, finding it was open to the motion judge to conclude the appellant had not established any debt owed to him by the debtor company to justify an offset.

The court also upheld the order for direct payment to the respondent, as there was evidence the respondent was the only execution creditor.

The appellant mother appealed a Superior Court decision dismissing her appeal from an Ontario Court of Justice order making her two children Crown wards with no access.

The children, diagnosed with Fetal Alcohol Spectrum Disorder, were apprehended at birth.

The mother argued the trial judge erred in overemphasizing the risk of ongoing litigation and the need for finality.

The Court of Appeal dismissed the appeal, finding the trial judge's inferences were reasonable and there was no error in the weight assigned to the children's need for finality.

Fresh evidence regarding a failed foster placement did not alter the conclusion that Crown wardship without access remained in the children's best interests.

The appellant appealed his sentence of life imprisonment with 12 years of parole ineligibility for a murder conviction.

He argued that the unforeseen statutory consequences of a subsequent drug sentence on his overall period of parole ineligibility rendered the murder sentence unfit.

The Court of Appeal dismissed the appeal, holding that the subsequent drug sentence and the order of proceedings had no bearing on the fitness of the sentence imposed for the murder conviction.

A guest at the appellant's resort drowned in an unattended indoor swimming pool.

A Ministry of Labour inspector ordered the resort to report the death under s. 51(1) of the Occupational Health and Safety Act, which requires reporting when a person is killed or critically injured from any cause at a workplace.

The Ontario Labour Relations Board and the Divisional Court upheld the order, finding the pool was a workplace because employees sometimes worked there.

The Court of Appeal allowed the appeal, holding that this interpretation was unreasonable as it would lead to absurd results.

The Court held that s. 51(1) requires a reasonable nexus between the hazard giving rise to the death or injury and a realistic risk to worker safety at the site.

The appellant appealed his sexual assault conviction, arguing the trial judge erred in excluding evidence that the complainant had previously made and recanted two other allegations of sexual assault.

The Court of Appeal held that the evidence did not engage s. 276 of the Criminal Code as it did not involve sexual activity.

The court found the evidence was relevant to the complainant's credibility and was not barred by the collateral fact rule, as the recantations were allegedly made in the same conversation where the complainant reported the assault by the appellant.

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

The appellant was convicted of armed robbery and firearms offences.

At trial, the victim recanted his preliminary inquiry identification of the appellant.

The Crown introduced the preliminary inquiry evidence for its truth and a video of the victim's initial photo line-up identification.

The appellant appealed, arguing the trial judge erred in his jury instructions regarding the use of the video line-up, prior inconsistent statements of a witness, and the failure to give a Vetrovec warning for the recanting victim.

The Court of Appeal dismissed the appeal, finding the jury instructions were adequate and the trial judge's cautions regarding the witness's evidence were sufficient.

The appellant sold his minority interest in two businesses and entered into agreements containing non-competition, non-solicitation, and confidentiality covenants.

The duration of the non-competition and non-solicitation covenants was tied to the period he held an indirect interest in the businesses, which could only be disposed of with the consent of third-party lenders and the board.

The Court of Appeal held that the duration of these covenants was unreasonable and unenforceable because it depended on the unpredictable consents of unascertainable third parties, creating an indeterminate period with no fixed outside limit.

The confidentiality provision, however, was upheld as reasonable.

The appellant appealed an order imposing a $500,000 administrative monetary penalty for misleading business practices under the Competition Act.

He argued he was deprived of a fair hearing due to ineffective counsel and sought to adduce fresh evidence.

The Court of Appeal dismissed the appeal, finding the application judge had no independent obligation to adjourn the hearing to allow the appellant to adduce evidence.

The court also upheld the quantum of the penalty and refused to admit the fresh evidence, as it would not have affected the result.

The appellant was convicted of second degree murder in the death of his wife.

He appealed the conviction, arguing the trial judge erred by refusing to leave the defence of provocation with the jury and by improperly instructing the jury on how to use his post-offence conduct to infer intent.

The Court of Appeal allowed the appeal, finding that there was an air of reality to the subjective element of provocation despite the appellant's testimony that he was not angry.

The Court also held that the trial judge erred in instructing the jury that they could use the appellant's bizarre post-offence conduct to infer an intent to kill, as such conduct was equally consistent with manslaughter.

A new trial was ordered.

The appellants, custom kitchen distributors, sued the respondent manufacturer for breach of contract after the respondent closed its business in 2008.

The respondent successfully moved to dismiss the action under Rule 21.01(1)(a) on the basis that the two-year limitation period had expired before the claim was issued in July 2011.

The Court of Appeal upheld the motion judge's decision, agreeing that the pleadings and particulars established the cause of action arose no later than the end of 2008 and discoverability was not an issue.

The accused, charged with second degree murder, applied for a review of a detention order under section 680(1) of the Criminal Code.

The bail judge had denied release on the secondary ground, citing the unexplained and extremely violent nature of the offence and finding the proposed sureties unsuitable.

The Court of Appeal dismissed the application, concluding there was no realistic likelihood that a panel would find the bail judge erred in denying interim release.

The respondent was charged with producing marihuana and successfully argued at trial that the Marihuana Medical Access Regulations (MMAR) violated s. 7 of the Charter because physicians were boycotting the scheme, rendering the medical exemption illusory.

The trial judge struck down the MMAR and stayed the charges.

The Crown appealed.

The Court of Appeal allowed the appeal, finding that the trial judge erred in his factual findings and misapprehended the evidentiary record.

The Court held that the respondent failed to provide medical evidence that he or the patient witnesses qualified for an exemption, and there was no evidence of a systemic boycott by physicians.

The trial judge's orders were quashed and a new trial was ordered.

The self-represented appellants, former doctoral students, sought an extension of time to perfect their appeal from a motion judge's order striking their 187-page statement of claim against the university and its staff without leave to amend.

The Court of Appeal applied the four-factor test for extending time, focusing on the merits of the appeal.

While agreeing that most of the appellants' claims (including Charter, human rights, and intentional torts) were bound to fail, the Court found that claims for negligence and breach of contract regarding the university's handling of accommodation requests and tuition fees were not plainly and obviously doomed.

Concluding the appeal had sufficient merit, the Court granted a 30-day extension to perfect the appeal.