OCA 2015

The moving party sought to stay a final divorce order while remaining in contempt of multiple Ontario court orders requiring her to return the parties' child from Poland to Canada.

The respondent brought a cross-motion to prohibit the moving party from proceeding until her contempt was purged.

The Court of Appeal granted the cross-motion, exercising its discretion to refuse to hear the moving party's request for a stay because doing so while she remained in contempt of closely connected child custody orders would be manifestly unjust and an abuse of process.

The appellant, who was found not criminally responsible for violent offences in 2002, appealed the Ontario Review Board's refusal to grant her an absolute discharge.

The Board had ordered the continuation of her conditional discharge, finding she remained a significant threat to public safety due to her history of medication non-compliance, limited insight into her mental illness, and lack of a concrete follow-up plan.

The Court of Appeal dismissed the appeal, holding that the Board did not misapply the test for significant threat to public safety and that its conclusion was reasonable and supported by psychiatric evidence.

The appellants appealed their convictions for numerous drug, proceeds of crime, and firearms offences following a jury trial.

The appellant Duncan also appealed his sentence.

The appellants argued that the trial judge's jury instructions were inadequate, particularly in relating the evidence to the legal issues and presenting the defence's position.

The Court of Appeal dismissed the appeals regarding the drug and proceeds of crime convictions, finding the jury instructions adequate.

However, the Court allowed Duncan's appeal on the two firearms convictions, finding the trial judge failed to properly instruct the jury on the elements of trafficking by offer and conspiracy to possess an unauthorized firearm, and erred in applying a reverse onus for the conspiracy charge.

The firearms convictions were set aside and a new trial ordered.

Duncan's global sentence was reduced from 15 years to 14 years to reflect the overturned convictions.

The appellant, a former high school teacher, appealed his conviction for the sexual exploitation of a student.

He argued that the trial judge materially misapprehended the evidence, applied a harsher standard of scrutiny to his testimony, and erred in admitting similar act and post-offence conduct evidence.

The Court of Appeal dismissed the appeal, finding that the trial judge's credibility assessments were fair, the admission of similar act evidence from another student was reasonable, and the post-offence conduct evidence was properly used to assess credibility and the trajectory of the relationship.

The Crown appealed a trial judge's decision to stay proceedings against the respondent on charges of possession for the purpose of trafficking and possession of stolen property.

The trial judge entered the stay on his own initiative when the trial Crown was 22 minutes late due to a conflicting sentencing matter in Superior Court.

The Court of Appeal allowed the appeal, finding that while the trial judge was right to be displeased, a stay of proceedings was not warranted as there was no prejudice to the respondent's right to a fair trial and the integrity of the justice system was not diminished.

The appellant appealed his conviction for dangerous driving causing bodily harm, arguing the verdict was unreasonable, the trial judge misapprehended evidence, and failed to explain the marked departure finding.

The Court of Appeal dismissed the appeal, finding no material misapprehensions of evidence and ample support for the trial judge's findings of fact.

The appellant sought leave to appeal a decision of the summary conviction appeal court, arguing that the judge erred in inferring an agreement under s. 786(2) of the Criminal Code to regularize proceedings instituted beyond the limitation period.

The Court of Appeal refused leave to appeal, finding that the judge had an adequate evidentiary foundation to infer the agreement.

The court held that the correctness of this conclusion raised a question of mixed fact and law, which cannot be appealed under s. 839(1)(a) of the Criminal Code.

The appellants appealed a decision dismissing their action for delay pursuant to Rule 48.13(14).

The appellants had failed to comply with a timetable set at a first status hearing and could not provide a satisfactory explanation at a second status hearing.

The Court of Appeal found no error in the motion judge's discretionary decision, noting that the appellants were only spurred into action by the issuance of status notices.

The appeal was dismissed with costs awarded to the respondents.

The appellants, students in a post-graduate program, brought a class action against the respondent college for a misleading statement in its course calendar regarding the opportunity to complete industry designations.

At the damages trial, the judge awarded aggregate damages under the Consumer Protection Act but excluded the third cohort of students from the class.

The Court of Appeal allowed the appeal, reinstating the third cohort into the class, finding that reliance is not required for a Consumer Protection Act claim.

The Court dismissed the respondent's cross-appeal, upholding the trial judge's award of aggregate damages.

State Farm paid statutory accident benefits to its insured motorcyclist who was injured after swerving to avoid a left-turning vehicle insured by Aviva.

State Farm sought indemnification from Aviva under the loss transfer provisions of the Insurance Act.

The arbitrator found the Aviva-insured driver 100% at fault under rule 5(1) of the Fault Determination Rules, concluding that 'ordinary rules of law' does not mean pure tort law and must be informed by Rule 3.

The application judge set aside the award and apportioned fault 50/50 based on tort law.

The Court of Appeal allowed the appeal and restored the arbitrator's award, holding that rule 5(1) does not require a pure tort law analysis and that Rule 3 applies to all fault determinations under the Rules.

The insured, McKeown & Wood Limited, sought a declaration that its insurer, Federated Insurance Company of Canada, owed a duty to defend a third-party claim arising from a fuel tank leak.

The insurer denied coverage and later moved for summary judgment dismissing the third-party claim based on a one-year contractual limitation period in the policy.

The motion judge found the limitation period unenforceable.

On appeal, the Court of Appeal applied a correctness standard of review and held that the insurance policy was a 'business agreement' under s. 22 of the Limitations Act, 2002.

Consequently, the one-year contractual limitation period was valid and enforceable, barring the insured's claim for a defence.

The parties separated after a 27-year marriage.

At trial, the judge ordered the wife to pay an equalization payment, ordered the husband to pay indefinite spousal support based on imputed incomes, and awarded full indemnity costs to the husband.

The wife appealed the spousal support, equalization, and costs orders.

The Court of Appeal allowed the appeal in part, finding that the trial judge failed to explain the basis for imputing $484,356 in annual income to the wife, precluding meaningful appellate review.

The court also set aside the costs award, finding the trial judge misapprehended the evidence regarding the husband's settlement offer and his degree of success at trial.

The spousal support and costs issues were remitted to the trial judge, while the equalization payment was upheld.

The appellant appealed his dangerous offender designation and indeterminate sentence, arguing the sentencing judge failed to give sufficient weight to the availability of an Aboriginal-specific treatment program.

The Court of Appeal dismissed the appeal, finding it was reasonable for the sentencing judge to conclude there was no reasonable possibility of eventual control of the risk the appellant posed in the community, especially given his lengthy criminal record, history of violent offences while on drugs, and the lack of supervision that would follow a long-term offender order.

The moving party, a director of the debtor companies, sought leave to appeal orders approving the sale of a lawsuit commenced by the debtors against their secured creditor.

The receiver had accepted a credit bid from the secured creditor to purchase the action.

The Court of Appeal dismissed the motion for leave to appeal, finding that the receiver's authority to sell the action was already determined in prior unappealed orders (res judicata) and that the proposed appeal lacked prima facie merit.

The appellant, a high school teacher, appealed her conviction and 13-month sentence for sexual exploitation of a 17-year-old student.

The trial judge found that the appellant engaged in a prolonged, sexually charged relationship with the student and had sexual intercourse with him while he was intoxicated, relying on the student's testimony, corroborating witness testimony, and telecommunications data.

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

The sentence appeal was also dismissed, as the sentencing judge did not err in treating character reference letters as evidence of the appellant's position of trust rather than as mitigating factors.

The appellant appealed his convictions for possession of cocaine for the purpose of trafficking and possession of property obtained by crime.

He argued the trial judge erred in finding the arresting officer had reasonable grounds to detain him and search his vehicle, alleging breaches of ss. 8 and 9 of the Charter.

The Court of Appeal dismissed the appeal, upholding the trial judge's finding that the traffic stop under the Highway Traffic Act was lawful, even with a dual purpose of intelligence gathering.

The officer was justified in asking the appellant to step out of the vehicle to verify his identity, at which point the drugs were in plain view.

The appellant appealed a summary judgment order dismissing its claim for breach of a non-competition covenant.

The appellant alleged the respondent, as a director of a holding company, supplied a refrigerated truck to a competitor for free.

The motion judge found evidence that rental payments were being made for the truck, which permitted the rejection of the appellant's claim.

The Court of Appeal found no error and dismissed the appeal.

The appellant was convicted of aggravated assault, possession of a weapon for a dangerous purpose, and assault following a brawl in a restaurant where he brandished a knife and a patron was stabbed.

The appellant testified he brandished the knife in self-defence and the stabbing was accidental.

The trial judge refused to leave self-defence to the jury, finding it incompatible with accident, and directed the jury that the first two elements of the weapons charge were proven.

The Court of Appeal allowed the appeal and ordered a new trial, holding that the trial judge usurped the jury's fact-finding function, erred in finding self-defence and accident incompatible, and improperly directed a verdict on essential elements.

The appellant's home was damaged during exterior restoration work when the contractor failed to properly seal areas against water.

The appellant's insurer denied coverage based on a 'faulty workmanship' exclusion.

The motion judge granted summary judgment to the insurer, finding the exclusion precluded claims for both direct and resulting damage.

The Court of Appeal allowed the appeal, holding that the 'faulty workmanship' exclusion must be interpreted narrowly to exclude only direct damage, preserving coverage for resulting damage under the all-risks policy.

The appellant appealed his conviction for break, enter, and theft under $5,000, and sought leave to appeal his sentence of six months' imprisonment and 24 months' probation.

The appellant argued the trial judge erred by excluding spontaneous exculpatory statements, reversing the onus of proof regarding alibi evidence, and failing to caution himself on eyewitness identification evidence.

The Court of Appeal dismissed the conviction appeal, finding no errors in the trial judge's evidentiary rulings or assessment of the evidence.

The sentence appeal was also dismissed, as the trial judge properly considered the mitigating factors and the sentence was not unfit.