OCA 2013

The moving parties sought an extension of time to serve a Notice of Appeal from an order dismissing their motion to set aside an order for the assessment of the respondent's bills under the Solicitors Act.

The moving parties had mistakenly sought leave to appeal in the Divisional Court.

The Court of Appeal applied the five-factor test for extending time and found that the intention to appeal was formed in time, the delay was explained, and there was no prejudice.

Despite concerns about a conflict of interest involving the moving parties' counsel, the court found an arguable legal issue regarding the interpretation of an Associate Agreement and granted a 15-day extension.

The appellant, a primary insurer, sought a declaration that the respondent, an excess insurer, had a duty to contribute to defence costs incurred on behalf of their common insured.

The primary policy contained a duty to defend, while the excess policy did not and stipulated that defence costs eroded its policy limit.

The Court of Appeal dismissed the appeal, holding that the doctrine of equitable contribution did not apply because the primary and excess policies did not cover the same risk.

The primary insurer was held to its bargain with the insured, and the excess insurer was not required to contribute to defence costs.

The appellant appealed his conviction under ss. 153(3) and 160 of the Customs Act for defrauding Canada Customs by retaining rather than remitting duties and taxes.

He argued that the trial judge's reasons were insufficient, applied the wrong burden of proof, and that the verdict was unreasonable.

The Court of Appeal dismissed the appeal, finding that the trial judge's reasons were sufficient and clearly demonstrated the appellant's knowledge of the fraudulent activity as the directing mind of the company.

The court also found no error in the application of the burden of proof and concluded that the verdict was reasonable based on ample evidence.

The appellant's proposed wind power project was cancelled by the Ontario government during an election campaign.

The appellant sued for damages, alleging misfeasance in public office, claiming the government acted in bad faith for electoral expediency and specifically targeted the appellant to cripple it financially.

The motion judge struck the statement of claim.

On appeal, the Court of Appeal allowed the claim for misfeasance in public office to proceed, but only on the narrow basis that the government's conduct was specifically targeted to injure the appellant financially.

The court held that core policy decisions based on electoral expediency do not constitute bad faith for the purposes of misfeasance in public office.

The appellant, a property owner, confronted two trespassers poaching fish from his private pond.

He fired a shotgun and held one trespasser at gunpoint.

He was convicted of assault with a weapon and using a firearm while committing an indictable offence.

On appeal, he argued the trial judge erred in instructing the jury on the defence of property, that the Kienapple rule barred multiple convictions, and that the mandatory minimum one-year sentence for the firearm offence violated s. 12 of the Charter.

The Court of Appeal dismissed the appeal, finding no error in the jury charge, that Kienapple did not apply because the offences had distinguishing elements, and that the mandatory minimum sentence was not grossly disproportionate.

The appellant appealed his sentence of seven years' imprisonment for possession of a loaded, prohibited firearm and other firearms offences.

He challenged the constitutionality of the five-year mandatory minimum sentence under s. 95(2)(a)(ii) of the Criminal Code for a second or subsequent offence.

The Court of Appeal held that the mandatory minimum sentence violated s. 12 of the Charter as it would be grossly disproportionate in reasonable hypothetical scenarios, and could not be saved under s. 1.

The provision was declared of no force and effect.

However, the appellant's seven-year sentence was upheld as fit given his extensive criminal record and the gravity of his offences.

The appellant, a repeat firearms offender, appealed his global sentence of eight years' imprisonment for eight firearm-related offences, including possession of a restricted firearm and breaches of two firearms prohibition orders.

He argued the sentencing judge erred in imposing consecutive sentences for the prohibition breaches, that the global sentence offended the parity principle, and that the mandatory minimum sentence was unconstitutional.

The Court of Appeal dismissed the appeal, finding no error in the consecutive sentences and concluding the global sentence was fit and did not offend the parity principle.

The Court declined to address the constitutional challenge as the sentence was justified regardless of the mandatory minimum.

The appellant pled guilty to multiple charges arising from a series of robberies and break and enters, including robbery with a firearm, unlawful confinement, and use of a firearm in the commission of unlawful confinement.

On appeal, he argued that the Kienapple principle precluded multiple convictions for these offences arising from the same incidents.

The Court of Appeal held that while the unlawful confinement convictions could stand, the convictions for using a firearm in the commission of unlawful confinement must be stayed, as they punished the same criminal wrong as the robbery with a firearm convictions.

The court varied the sentences on the armed robbery convictions to maintain the total sentence of seven years and nine months' imprisonment.

The Crown appealed the sentence imposed on the respondent for possession of a loaded prohibited firearm.

The trial judge had declared the three-year mandatory minimum sentence unconstitutional under s. 12 of the Charter and imposed a five-month conditional sentence.

The Court of Appeal upheld the declaration that the mandatory minimum violates s. 12 of the Charter, relying on its companion decision in R. v. Nur.

However, the Court found that the trial judge made unsupported findings of fact that improperly mitigated the offence.

The Court concluded the original sentence was manifestly inadequate and requested further submissions to determine an appropriate sentence.

The appellant, a 19-year-old first offender, pleaded guilty to possession of a loaded prohibited firearm and challenged the constitutionality of the three-year mandatory minimum sentence under s. 95 of the Criminal Code.

The Court of Appeal held that the mandatory minimum sentence violates s. 12 of the Charter because it is grossly disproportionate when applied to a reasonable hypothetical offender at the regulatory end of the spectrum.

The court declared s. 95(2)(a)(i) of no force or effect, but affirmed the appellant's specific sentence of time served.

The appellant appealed his conviction, arguing the trial judge erred in admitting the complainant's spontaneous complaint and in assessing credibility.

The Court of Appeal dismissed the appeal, finding the complaint was properly admitted as part of the narrative to provide context for assessing credibility, and that the trial judge did not misapprehend the evidence or unfairly scrutinize the defence evidence.

The sentence appeal was abandoned.

The young person appealed a sentence of 12 months' closed custody and supervision followed by 12 months' probation for sexual interference.

The appellant, who had intellectual limitations and a high risk to re-offend, argued the trial judge erred by denying pre-sentence custody credit and imposing a sentence focused on incapacitation contrary to the Youth Criminal Justice Act.

The Court of Appeal dismissed the appeal, finding this was an exceptional case where denying pre-sentence credit was justified, and the sentence appropriately prioritized rehabilitation and accountability in a highly structured setting.

The appellants appealed the dismissal of their application for an assessment of a lawyer's accounts.

The accounts were paid by a court-appointed supervisor out of the appellants' funds.

The appellants did not receive copies of the accounts until two years later and brought the application shortly after.

The Court of Appeal found the application judge erred in imputing the supervisor's knowledge to the appellants and in failing to consider discrepancies in the accounts.

The appeal was allowed, and an assessment was ordered based on special circumstances.

The Crown appealed a Summary Conviction Appeal Court (SCAC) decision that overturned the accused's 'over 80' conviction and ordered a new trial.

The SCAC judge had ruled the trial judge's reasons inadequate because the trial judge failed to determine which of two police officers made the breath demand, as both officers testified the other had done so.

The Court of Appeal allowed the Crown's appeal and restored the conviction, holding that the SCAC judge erred by adding an unnecessary element of proof.

The trial judge's finding that a valid demand was made was sufficient under the Criminal Code, and the accused's compliance with the demand provided a complete answer absent a Charter challenge.

The appellant appealed his convictions for producing and possessing marijuana for the purpose of trafficking, and theft of electricity, as well as his nine-month sentence.

He argued the verdict was unreasonable and the trial judge improperly drew a negative inference from his failure to testify.

The Court of Appeal dismissed the conviction appeal, finding the circumstantial evidence supported the verdict and the trial judge properly applied the law regarding the accused's silence.

The sentence appeal was also dismissed, as the nine-month term was fit given the scale of the operation and the need for deterrence.

The appellants appealed an order granting the respondent's motion for summary judgment and dismissing their claim for rectification.

The appellants argued the motion judge applied the incorrect test for summary judgment and improperly made credibility determinations.

The Court of Appeal dismissed the appeal, finding that the motion judge correctly directed herself to whether the record raised a genuine issue requiring a trial.

The documentary record confirmed that the requirements for rectification could not be met, which was dispositive of the motion.

The appellant police officer sued the respondent police association for breach of its duty of fair representation.

The motion judge struck the claim for want of jurisdiction, finding that such claims fall within the exclusive jurisdiction of a labour arbitrator.

The Court of Appeal dismissed the appeal, holding that it was bound by its previous decision in Renaud v. LaSalle (Town of) Police Assn., which established that an arbitrator appointed under the Police Services Act has exclusive jurisdiction over these disputes.

The appellant municipality appealed a trial judgment finding it liable for malicious prosecution and awarding $550,000 in punitive damages to the respondent estate.

The deceased had been wrongfully dismissed from his position as a building inspector, after which the municipality withheld exculpatory evidence from the police, leading to criminal charges of which he was ultimately acquitted.

The Court of Appeal upheld the finding of malicious prosecution, concluding the municipality initiated the proceedings by withholding evidence.

However, the Court allowed the appeal on punitive damages in part, reducing the award to $450,000 because the trial judge failed to account for the punitive elements of the substantial compensatory damages and costs already awarded.

The respondent, convicted of first-degree murder, sought a declaration that he could apply for a ministerial review of his conviction under s. 696.1 of the Criminal Code without first seeking leave to appeal to the Supreme Court of Canada.

The application judge granted the declaration, finding that the Minister of Justice is not precluded from determining that an applicant has exhausted their rights of appeal despite not applying for leave to the SCC.

The Attorney General of Ontario appealed, and the respondent cross-appealed.

The Court of Appeal dismissed both the appeal and cross-appeal, agreeing with the application judge's analysis.

The appellant appealed a judgment dismissing his application for certiorari to set aside a committal order following a preliminary inquiry.

The appellant argued there was insufficient evidence of identification and the type of plant.

The Court of Appeal held that the preliminary inquiry judge did not commit a jurisdictional error, as there was some evidence connecting the appellant to the property and the 9,000 marijuana plants, including his admitted ownership and the testimony of a police officer.

The appeal was dismissed.