OCA 2014

In a bankruptcy appeal arising from a disallowed proof of claim, the court considered when service of a notice of disallowance became effective for purposes of the 30-day appeal period under s. 135(4) of the Bankruptcy and Insolvency Act.

Although the trustee's notice was actually delivered to the law firm identified for correspondence on April 17, 2012, it was addressed to the creditor rather than care of counsel, and there was no acceptance of service by the law firm.

The court held that resort had to be made to the deeming provisions in the Rules of Civil Procedure, making service effective on the fifth day after mailing.

The notice of appeal filed on May 18, 2012 was therefore in time.

The appeal was allowed, the Superior Court order set aside, and the Registrar's order restored.

The appellant appealed an order dismissing his civil wrongful-conviction action as an abuse of process and alternatively staying it under s. 106 of the Courts of Justice Act.

The action alleged negligence, misfeasance, malicious prosecution, conspiracy, misrepresentation, and Charter breaches arising from the non-disclosure of potentially exculpatory alibi evidence in a murder prosecution.

The court held that the prior criminal reference did not determine all issues raised in the civil action and was not intended to bind future proceedings after the conviction was quashed and a new trial ordered.

The motion judge also erred in relying on delay and changed positions by the appellant to justify a stay.

The appeal was allowed and the dismissal and stay orders were set aside.

In a pending conviction appeal involving child pornography offences, the Crown sought directions limiting full compliance with the Court of Appeal’s ineffective assistance protocol, and the self-represented appellant sought an order under s. 683(3) to examine or cross-examine former trial counsel.

The court held that the protocol is flexible and may be varied on a case-by-case basis, and it was unnecessary and inappropriate to make a preliminary merits determination of the ineffective assistance ground.

Given the existing record, the court permitted the Crown to decline the full fresh evidence process contemplated by the protocol, subject to any further order of the panel hearing the appeal.

The appellant’s request to examine or cross-examine former trial counsel was dismissed because the proposed questioning would not materially advance the claim.

The appellant challenged an order requiring him to execute transfers of certificates of possession over reserve parcels to satisfy a judgment debt owed to the respondent band.

The appeal turned on whether the Superior Court had jurisdiction to make that order and whether certificates of possession were immune from seizure under s. 29 of the Indian Act.

The court held that a certificate of possession merely evidences an Indian's right of possession, while underlying title to reserve land remains with the Crown.

Reading ss. 29 and 89(1) harmoniously and in light of the statutory scheme and legislative history, the court held that the possessory interest is real or personal property of an Indian that may be seized or executed upon in favour of an Indian or a band.

The appeal was dismissed and appeal costs were added to the debt.

The Crown appealed a stay of proceedings granted on the basis of alleged unreasonable delay in a prosecution for child pornography offences.

Applying the Morin framework, the court held that although the Crown's disclosure delay was disproportionate, only five and a half months of the total delay was unreasonable Crown delay, with the balance consisting of neutral intake time, defence delay, and acceptable institutional delay.

The court found the trial judge erred in the assessment of prejudice by failing to distinguish prejudice caused by delay from prejudice arising from the charges and bail conditions themselves, and by underweighting the seriousness of the offences and the public interest in a merits determination.

The appeal was allowed, the stay was set aside, and the matter was ordered to proceed to trial.

The appellant appealed his sentence of six years for breaching a Long Term Supervision Order (LTSO) by failing to report and travelling to restricted areas without committing any substantive offences.

The Court of Appeal found the sentence disproportionate, noting it gave undue emphasis to deterrence and inadequate emphasis to rehabilitation and reintegration, contrary to the principles in R. v. Ipeelee.

The appeal was allowed, and the sentence was reduced to four years concurrent on both counts.

Five criminal appeals arising from a major gang investigation challenged informer-privilege procedures, wiretap authorizations, general warrants, covert searches, no-knock take-down warrants, a warrantless vehicle search, jury instructions, and expert opinion evidence.

The court held that an ex parte, in camera first-stage informer privilege hearing was proper, that Criminal Code ss. 186(1.1) and 487.01 were constitutionally valid, and that the wiretap authorizations and general warrants were lawfully issued and executed.

Although one warrantless vehicle search was conducted in an unreasonable manner and one aspect of the conspiracy jury charge was erroneous, the evidence was properly admitted under s. 24(2) and the charge error caused no substantial wrong.

All convictions were upheld and all appeals were dismissed.

The applicant sought leave to appeal a sending order made under the Mutual Legal Assistance in Criminal Matters Act after arguing that certain records fell outside the scope of the gathering order and that the motion judge misinterpreted both the gathering order and governing appellate authority.

The court held that appeals under the Act are limited to questions of law alone and found that at least some proposed grounds were arguably mixed fact and law.

It further held that the proposed issues were fact-specific, lacked broader importance, and had weak merits in light of authority establishing that a judge at a sending hearing need not determine whether material was gathered in accordance with the gathering order or whether it would afford evidence of an offence in the requesting state.

Leave to appeal was refused and the application was dismissed.

The applicant sought review of a detention order pending an extradition hearing arising from United States drug trafficking allegations involving substantial quantities of cocaine and MDMA.

The court applied the deferential extradition bail review standard, requiring demonstration of an error in principle by the application judge.

It held that the judge was entitled to find a serious primary-ground flight risk in light of the strength of the foreign case, the prospect of a very lengthy sentence, the scale of the alleged trafficking operation, and the limits of the proposed surety and monitoring plan.

The application was dismissed.

The appellant appealed an order dismissing his action against an insurer and counsel retained to defend a small claims proceeding arising from a motor vehicle accident.

He alleged intentional torts and harm arising from defence trial tactics and notice of reliance on allegedly embarrassing and irrelevant information.

The court held the action was an abuse of process, constituted an impermissible collateral attack on the small claims decision, and disclosed no cause of action because opposing counsel owed no duty of care to the opposing party.

The appeal on the merits was dismissed, leave to appeal costs was denied, and appeal costs were fixed.

The appellant municipality appealed the dismissal of its application for judicial review of a ministerial order prohibiting public access to certain Crown lands adjacent to Bala Falls for safety reasons.

It argued that the site was subject to a protected portage under s. 65(4) of the Public Lands Act and that s. 3 required the frontage to be set aside for recreational and access purposes.

The court held that s. 28 of the Public Lands Act is not subject to ss. 3 or 65(4), and that the minister's decision to restrict access was reasonable given the public safety concerns.

The court also held that the common law right of navigation does not include a right to portage over another's land.

The appeal was dismissed with costs to each respondent.

The appellant challenged multiple drug and criminal organization convictions following a jury trial, arguing the trial judge inadequately answered a jury question on constructive possession, failed to caution on voice identification evidence, and failed to instruct that uncertainty on voice identification could itself raise a reasonable doubt.

The court held the supplemental instruction on possession was erroneous because it conflated control over the place with control over the item, but found the error materially affected only the marijuana possession for the purpose of trafficking count arising from drugs found in common areas.

The remaining conviction grounds failed because the charge as a whole adequately conveyed the burden of proof and identity requirements, and a specific voice-identification caution was not mandatory on this record.

Leave to appeal sentence was granted; the sentence on the cocaine possession for the purpose of trafficking count was reduced to ten months, but the global sentence otherwise stood.

The appellant, who was 17 at the time of the offences, appealed the imposition of an adult sentence following his conviction for second degree murder and offering an indignity to a dead body.

He argued that the sentencing judge mischaracterized the jury’s implied factual findings and erred in concluding that the presumption of diminished moral culpability under the Youth Criminal Justice Act had been rebutted.

The court held that, on the evidentiary record and jury instructions, the finding that the appellant inflicted at least one stab wound reasonably flowed from the verdict.

The court further held that the sentencing judge undertook a full and balanced analysis under s. 72 of the YCJA and properly concluded that a youth sentence would not be sufficient to hold the appellant accountable.

Fresh evidence concerning rehabilitation, institutional placement, and possible transfer to Germany did not alter that conclusion.

The appellant appealed his conviction for first degree murder, arguing that he was deprived of a fair trial due to unfair and inflammatory cross-examination and jury addresses by Crown counsel.

The appellant also sought to introduce fresh evidence of alleged juror misconduct based on online comments made after the trial.

The Court of Appeal dismissed the appeal, finding that while some of the Crown's comments were ill-advised, they did not deprive the appellant of a fair trial when viewed in the context of the entire proceedings.

The court also dismissed the motion to admit fresh evidence, concluding it did not prove Crown misconduct or compromise the integrity of the trial.

In a wrongful dismissal action, the appellants challenged Ontario jurisdiction and argued that procedural steps they took within that challenge did not amount to attornment.

The Court of Appeal held that requests for a temporary stay and to strike the amended pleading were procedural steps confined to obtaining a proper foundation for the jurisdiction motion and did not go beyond challenging jurisdiction.

The court therefore set aside the motion judge's ruling on attornment.

Exercising its appellate power, the court dismissed the temporary stay motion on the merits because the bankruptcy stays affecting the corporate defendants were unlikely to be lifted, and it ordered no costs given divided success.

The parties were partners in a dental practice.

The appellant's wife acted as the bookkeeper and failed to allocate profits in accordance with a 2004 agreement between the parties.

The misallocation was discovered in 2009 during negotiations to terminate the partnership.

The trial judge found the 2004 agreement binding, ordered an accounting, and awarded the respondent $119,056 for the misallocated profits.

On appeal, the appellant argued the claim was barred by the limitation period, laches, and estoppel.

The Court of Appeal dismissed the appeal, finding that the misallocation was not reasonably discoverable until 2009 and that the respondent could not have acquiesced to conduct of which he was unaware.

The appellants, who provided personal indemnities to the respondent insurer for a Tarion bond on a condominium project, appealed a partial summary judgment ordering them to pay unpaid premiums, legal fees, and bond demands.

The Court of Appeal dismissed the appeal, finding no genuine issue requiring a trial.

The court rejected the appellants' arguments regarding unjust enrichment and the respondent's alleged obligation to release the bond.

The court also found no procedural error in the motion judge's decision to allow a second reply affidavit, noting the procedure was consistent with the Supreme Court's guidance in Hryniak.

The appellant appealed her conviction and sentence for setting fire to her rented home.

She argued the trial judge erred in admitting her confession to police and misapprehended evidence regarding the fire.

The Court of Appeal dismissed the conviction appeal, finding the confession voluntary and no material misapprehension of evidence under the Morrissey standard.

The sentence appeal was allowed only to vary the $91,865 restitution order from a term of probation to a free-standing order under s. 738 of the Criminal Code.

The appellant, a former condominium director, appealed a decision that upheld the validity of a condominium by-law allowing the board to disqualify a director for violating the Directors' Code of Ethics.

The appellant argued the by-law was unreasonable and inconsistent with the democratic principles of the Condominium Act.

The Court of Appeal dismissed the appeal, finding the by-law valid as it was passed by a majority of owners and the board's power to determine ethics violations was not unreasonable.

The court also upheld the application judge's discretionary decision not to immediately reinstate the appellant, noting the issue was moot as his term had expired.

The appellant, an unsecured business creditor, sought a constructive trust over funds held by the Receiver of a bankrupt company, arguing the bankrupt was unjustly enriched by the unauthorized sale of the appellant's shipping containers.

The motion judge dismissed the claim, finding no direct connection between the proceeds of the sales and the funds held by the Receiver.

On appeal, the Court of Appeal upheld the dismissal for the majority of the funds, confirming that a constructive trust requires a direct link between the property and the unjust enrichment.

However, the Court allowed the appeal in part, imposing a constructive trust over $27,244 that was directly traceable to the unauthorized sale of five containers shortly before the receivership.