OCA 2014

The moving parties, a group of affiliated companies, sought leave to appeal a judgment setting aside an ex parte CCAA Initial Order.

The respondents, creditors of a Singapore subsidiary, successfully argued before the application judge that the CCAA court lacked jurisdiction over the subsidiary.

A single judge of the Court of Appeal held he had jurisdiction to hear the leave motion but refused leave, finding no error in the application judge's conclusion that the real debtors were Singapore companies with little connection to Canada and that the evidence did not support the initial ex parte findings of insolvency and intertwined finances.

Crown appeal from an acquittal following a judge-alone trial on charges of accessing and possessing child pornography discovered on a computer owned by the respondent but used by his partner.

The trial judge found the respondent suspicious that his partner may have downloaded prohibited material but concluded he lacked actual knowledge and acquitted him on the basis of “innocent possession.” The Court of Appeal held the trial judge misapplied both the doctrine of wilful blindness and the innocent possession doctrine.

However, the court concluded the factual findings did not establish the knowledge or control required for possession under the Criminal Code.

The acquittal was therefore upheld.

The appellant mother appealed an order changing the primary residence of her children to the respondent father unless she relocated to Waterloo.

The Court of Appeal upheld the finding of a material change in circumstances due to the mother's failure to relocate as contemplated in a prior settlement.

However, the Court allowed the appeal and remitted the matter for a new hearing, finding that the lower courts failed to conduct the required analysis of whether changing the children's primary residence was in their best interests.

The appellants appealed a motion judge's decision to use expanded fact-finding powers under Rules 20.04(2.1) and (2.2) of the Rules of Civil Procedure to grant summary judgment and avoid a trial.

They also challenged the partial indemnity costs award of $24,294.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's exercise of discretion and no basis to interfere with the costs award.

Following the dismissal of the appeal and cross-appeal, the Court of Appeal considered the parties' costs submissions.

The court declined to award costs to any party, citing the tragic circumstances of the case and the reasonableness of the appeal, which raised bona fide legal issues.

The appellant appealed his conviction for forgery-related offences concerning a forged consent to set aside a vexatious litigant order.

He argued the trial judge erred by failing to stay the proceedings for unreasonable delay under s. 11(b) of the Charter.

The Court of Appeal upheld the trial judge's finding that, after attributing 19 months of the delay to the appellant and finding no actual prejudice, a stay was not warranted.

The Court also found no error in the trial judge's conclusion that the appellant forged and presented the consent document.

The appeal was dismissed.

The moving party brought a motion to set aside a 2009 decision of the Court of Appeal that dismissed his appeal regarding a building permit and zoning by-law.

The court found that the proposed fresh evidence did not meet the test for admission and the motion did not meet the criteria for reopening a decision under Rule 59.06.

The court dismissed the motion as frivolous, vexatious, and an abuse of process under Rule 2.1.02(1), and prohibited the moving party from making further motions without leave.

The appellant appealed his convictions for three counts related to child prostitution and his sentence of four and a half years.

He argued the trial judge erred in refusing an adjournment to call a witness and that the trial judge's conduct created a reasonable apprehension of bias.

The Court of Appeal dismissed the conviction appeal, finding the trial judge properly exercised his discretion regarding the adjournment and conducted the trial impartially.

The sentence appeal was also dismissed, as the trial judge properly applied the principle of totality and the Tang factors, resulting in a fit sentence.

The appellant landlord appealed the dismissal of its action for unpaid rent against the respondent commercial tenants.

The trial judge had dismissed the action on the basis that the landlord forfeited its right to sue for rent by re-entering the premises before the 15-day statutory period expired under the Commercial Tenancies Act.

The Court of Appeal allowed the appeal in part, finding that the trial judge erred by failing to consider whether the premises had been abandoned, which would allow immediate re-entry without prejudicing the claim for rent.

A trial of an issue was ordered to determine the application of the Act, including the issue of abandonment.

The appellant appealed his sentence, seeking enhanced credit for 20 months of pretrial custody.

The trial judge had only given 1 month of enhanced credit for 44 lock-down days.

Applying the Supreme Court of Canada's decision in Summers, the Court of Appeal allowed the appeal and granted 1.5 to 1 credit for the entire 20 months of pretrial custody, reducing the sentence accordingly.

The appellant sought leave to appeal his global sentence of 13 years for attempted murder and breaches of firearms prohibition and recognizance orders.

He argued the trial judge failed to consider his youth, first-time custodial status, and rehabilitative prospects, and that the sentence was outside the acceptable range.

The Court of Appeal dismissed the appeal, emphasizing that denunciation and deterrence are paramount for gun violence in public places, particularly as the appellant shot at a security guard multiple times while under prohibition orders.

The appellant appealed his conviction on the sole ground that the trial judge erred in refusing to grant an order under s. 530 of the Criminal Code that his trial be held in English.

The appellant sought this order to challenge jurors for language competency under s. 638(1)(f).

The Court of Appeal dismissed the appeal, agreeing with the trial judge that there was no basis for a s. 530 order because the appellant's trial was already scheduled to be held in English.

The appellant appealed his sentence, seeking enhanced credit for pre-trial custody.

The sentencing judge had granted 1.5:1 credit for only some of the time served, noting poor facility conditions and loss of parole eligibility.

Applying the Supreme Court's decision in Summers, the Court of Appeal held that enhanced credit is the norm and varied the sentence to allow 1.5:1 credit for all time spent in pre-trial custody.

The plaintiffs obtained a judgment against the defendant in Belgium and subsequently sought to enforce it in Ontario after discovering the defendant had moved to Canada.

After the plaintiffs obtained summary judgment recognizing the foreign judgment, the defendant appealed, triggering an automatic stay of enforcement.

The plaintiffs brought a motion to lift the stay and for security for costs.

The Court of Appeal partially lifted the stay to allow the plaintiffs to examine the defendant in aid of execution, finding the appeal appeared frivolous and the plaintiffs had suffered hardship due to delay.

The motion for security for costs was dismissed as there was insufficient evidence that the defendant lacked assets in Ontario.

The appellant, a judgment creditor of a beneficiary of an estate, sought to secure an interest in a house bequeathed by the deceased.

The deceased had granted the beneficiary only a life interest in the house.

The Court of Appeal upheld the application judge's dismissal of the claims, finding that the beneficiary had no proprietary interest in the house for the creditor to attach.

Furthermore, the Fraudulent Conveyances Act did not apply because the deceased was never indebted to the appellant.

The appeal and costs appeal were dismissed.

The moving party condominium corporation brought a motion to quash an appeal of an application judge's order appointing an arbitrator.

The responding parties sought to appeal the appointment, arguing the application judge erred in referring all issues to the arbitrator without assessing their arbitrability.

The Court of Appeal quashed the appeal, holding that section 10(2) of the Arbitration Act, 1991 explicitly precludes any appeal from a court's appointment of an arbitral tribunal.

The appellants were convicted of multiple offences related to their involvement in a large-scale clandestine drug lab producing MDMA, ketamine, and methamphetamine.

They appealed their convictions, arguing insufficient evidence of production and identification, and their sentences of 14 and 16 years, arguing the trial judge erred by treating lack of remorse as an aggravating factor.

The Court of Appeal dismissed the conviction appeals, finding ample circumstantial and identification evidence.

While the Court agreed the trial judge erred in considering lack of remorse as an aggravating factor, it upheld the sentences as proportionate given the massive scale of the operation and the danger of the drugs produced.

The appellant was convicted of criminal harassment, assault, intimidation, and uttering death threats following an altercation with his girlfriend's landlord and the building caretaker.

He appealed only the criminal harassment conviction, arguing the trial judge failed to consider all necessary elements of the offence and that the verdict was unreasonable.

The Court of Appeal dismissed the appeal, finding ample evidence that the appellant's conduct was harassing, that he possessed the requisite mens rea, and that the elderly complainant's fear for her safety was objectively reasonable.

The respondents in the underlying appeal brought a motion to quash the appeal on the basis that the order appealed from was interlocutory.

The appellant sought an adjournment of the motion, which the court denied as unnecessary for the adjudication of the motion to quash.

The court found that the order in question, which denied an adjournment and set a date for a motion to strike, was clearly interlocutory.

As such, any appeal lay to the Divisional Court with leave.

The motion was allowed and the appeal was quashed for want of jurisdiction.

The appellants appealed a decision regarding whether a leasing company's insurer is protected by the $1 million liability cap under s. 267.12 of the Insurance Act for bodily injury or death arising from the use of a leased motor vehicle.

The Court of Appeal agreed with the application judge that s. 267.12 precludes a lessee from coverage under a lessor's insurance policy beyond the qualified $1 million cap.

The appeal was dismissed.