OCA 2015

The appellant sought full indemnity costs for his successful appeal and two underlying motions regarding his bankruptcy discharge and the treatment of a personal injury settlement.

The Court of Appeal declined to award full indemnity costs, finding that the Trustee's conduct was not reprehensible and that Rule 49.10 did not apply to grant a defendant substantial indemnity costs.

The court awarded the appellant partial indemnity costs of $5,000 for the motion before Spence J. and $10,000 for the appeal.

The appellant appealed his convictions for possession for the purpose of trafficking and possession of proceeds of crime.

The arrest followed a routine traffic stop where an officer smelled fresh marijuana and found over three kilograms of marijuana and cash.

The appellant argued the search violated s. 8 of the Charter.

The trial judge had concerns about the arresting officer's credibility but accepted the evidence of a second officer, concluding there were reasonable and probable grounds for the stop.

The Court of Appeal found no error in the trial judge's assessment of the evidence and dismissed the appeal.

The applicant sought leave to appeal a summary conviction appeal court decision that dismissed his appeal from a conviction.

The Court of Appeal refused leave, noting that the applicant sought to re-litigate issues already decided at trial and on summary conviction appeal, relied on well-settled legal principles, and raised issues intertwined with findings of fact.

The court emphasized that an appeal under s. 839 is not a second appeal from the trial judgment.

The appellant tenant sued the respondent landlord for damages arising from two sewer backups, alleging breach of lease, negligence, and misrepresentation.

The motion judge struck most claims, finding they were barred by the lease's covenant to insure.

On appeal, the Court of Appeal held that while the covenant to insure barred the negligence and breach of contract claims, it was not plain and obvious that it or the 'entire agreement' clause barred the negligent misrepresentation claim.

The Court also allowed the tenant's claim that the landlord was estopped from relying on the covenant to insure for the second backup to proceed.

The respondent, previously convicted of sexual interference and subject to a s. 161 prohibition order barring him from school grounds, attended a secondary school for a 'spa day' where he interacted with students.

He pleaded guilty to breaching the order and was granted an absolute discharge at trial.

The Crown appealed.

The Court of Appeal allowed the appeal, finding the sentence failed to apply principles of denunciation and deterrence.

The absolute discharge was set aside and replaced with a six-month custodial sentence followed by three years of probation.

Following the dismissal of the appellant's appeal, the respondents sought costs.

The appellant did not file responding submissions.

The Court of Appeal awarded costs to the fully successful respondents, fixed at $5,000 on a partial indemnity basis.

The appellant insurer appealed a declaration that it had a duty to defend the respondent OSPCA in three separate actions alleging malicious prosecution, false arrest, and defamation arising from animal cruelty investigations.

The insurer argued that coverage was excluded by policy clauses regarding willful violation of penal statutes and by the fortuity principle, which precludes coverage for intentional harm.

The Court of Appeal dismissed the appeal, finding that the OSPCA Act is not a penal statute, exceeding a search warrant is not a Criminal Code offence, and the fortuity principle did not apply because the policies expressly covered intentional torts like malicious prosecution and the plaintiffs did not plead that the OSPCA intended the specific harm suffered.

The appellant brought a motion for summary judgment against the respondents on an alleged guarantee of a $30,000 loan.

The motions judge dismissed the motion and granted the respondents' cross-motion for summary judgment, dismissing the action against them.

On appeal, the Court of Appeal upheld the motions judge's findings that there was no agreement to guarantee the loan and that, in any event, an oral guarantee would be unenforceable under section 4 of the Statute of Frauds.

The appeal was dismissed.

The appellants, who had been in immigration detention for lengthy periods awaiting deportation, brought applications for habeas corpus in the Ontario Superior Court.

The application judge declined jurisdiction, finding that the Immigration and Refugee Protection Act (IRPA) provided a comprehensive statutory review mechanism as broad and advantageous as habeas corpus.

The Court of Appeal allowed the appeals, holding that where the legality of a continuing lengthy detention of uncertain duration is challenged, the IRPA review process is less broad and less advantageous than habeas corpus.

The Court found that habeas corpus places the onus on the Minister to justify the detention and is available as of right, unlike the discretionary judicial review process under the IRPA.

A heavy commercial vehicle insured by the appellant rear-ended a stopped vehicle, causing it to rear-end a third vehicle insured by the respondent.

The respondent paid statutory accident benefits to its insured and sought indemnification from the appellant under the loss transfer provisions of the Insurance Act.

The arbitrator and the Superior Court judge held that the appellant was 100 per cent responsible for the entire chain reaction under section 9(4) of the Fault Determination Rules.

The Court of Appeal allowed the appeal, holding that the word 'incident' in section 9(4) refers only to the specific collision between two vehicles, meaning the appellant was only at fault for the collision with the middle vehicle and not required to indemnify the respondent.

The appellant insurer appealed a Divisional Court judgment dismissing its application for judicial review of a decision by the Director's Delegate.

The Director's Delegate had found that the two-year limitation period for the respondent to apply for mediation regarding a denied non-earner benefit did not begin to run until the insurer provided the medical report it relied upon in its denial.

The Court of Appeal dismissed the appeal, finding the Director's Delegate's interpretation of the home statute was reasonable and entitled to deference.

The appellant was convicted of kidnapping and sexually assaulting a 12-year-old girl, designated a dangerous offender, and given an indeterminate sentence.

On appeal, he argued the trial judge misapprehended eyewitness identification, cell tower, and DNA evidence, and erred in rejecting a determinate sentence with long-term supervision.

The Court of Appeal dismissed the conviction appeal, finding no material misapprehension of evidence and noting the overwhelming case against the appellant.

The sentence appeal was also dismissed, as the trial judge reasonably concluded the appellant's risk could not be managed in the community.

The mother of a child subject to Crown wardship proceedings brought a motion for an extension of time to file a Notice of Appeal of a decision dismissing the father's appeal.

The mother had not participated in the trial or the initial appeal.

The Court of Appeal applied the Kefeli factors and dismissed the motion, finding that the mother had not formed an intention to appeal within the relevant period, failed to provide a sufficient explanation for the delay, and that her appeal lacked merit as she had not seen the child in over three years and had not participated in the proceedings below.

The appellant appealed a decision making his daughter a Crown ward without access for the purpose of adoption.

He argued the trial judge made palpable and overriding errors and sought to adduce fresh evidence on appeal, including his intention to reunite with the child's mother and the mother's Jewish heritage.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors.

The court held that the fresh evidence did not warrant interfering with the trial judge's conclusion that Crown wardship without access remained in the child's best interests, as the appellant failed to rebut the presumption against access and the child required permanency.

The appellant appealed his conviction and sentence for discharging a firearm with intent to endanger life.

The Court of Appeal dismissed the conviction appeal, finding no merit to the claims of ineffective assistance of counsel or unreasonable verdict.

However, the sentence appeal was allowed.

The Court applied a 1.5:1 credit for pre-sentence custody and reduced the sentence to the mandatory minimum of five years, emphasizing the need for restraint when sentencing a youthful first offender with excellent prospects for rehabilitation.

The appellant construction company sued the respondent city for alleged breaches of the Occupational Health and Safety Act after discovering asbestos at a work site.

The motions judge granted summary judgment to the city, finding the appellant failed to prove it suffered actual damages and refusing to grant declaratory relief for hypothetical future claims by employees.

The Court of Appeal dismissed the appeal, upholding the finding that the appellant's claims for administrative and legal costs lacked evidentiary support, and agreeing that declaratory relief was inappropriate where the dispute had yet to arise and could affect third-party rights.

The appellant appealed his conviction and sentence for possession of a loaded prohibited firearm.

He argued the trial judge erred in assessing the credibility of unsavoury Crown witnesses, misapprehended evidence regarding a co-accused's guilty plea, and applied uneven scrutiny to the evidence.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's credibility assessments or treatment of the evidence.

The appellant also appealed his three and one-half year sentence, arguing it was unfit following the Supreme Court's decision striking down the mandatory minimum.

The Court dismissed the sentence appeal, holding that the offence fell at the 'true crime' end of the spectrum and the sentence was fit given the paramount principles of denunciation and deterrence.

The appellant was convicted of second degree murder and possession of a weapon dangerous to the public peace following the stabbing death of his girlfriend.

At trial, the Crown relied heavily on an eyewitness who was highly intoxicated at the time of the offence.

The appellant was also found in a near-comatose state of alcohol intoxication at the scene.

On appeal, the appellant argued the trial judge failed to adequately instruct the jury on how the eyewitness's reliability and the appellant's extreme intoxication related to reasonable doubt and the requisite intent for murder.

The appellant also argued the verdict was unreasonable.

The Court of Appeal dismissed the appeal, finding the jury instructions were adequate and the verdict was one a properly instructed jury could reasonably render.

The appellant was convicted of sexually assaulting the complainant while she was sleeping.

At trial, the appellant denied any sexual contact, but on appeal argued the trial judge erred by not considering the defence of honest but mistaken belief in consent.

The Summary Conviction Appeal Judge found no air of reality to this defence.

The Court of Appeal denied leave to appeal, finding no clear error in the lower court's conclusion that a defence incompatible with the accused's own testimony lacked an air of reality.

The appellant sought leave to appeal a summary conviction appeal judge's decision dismissing his appeal from a conviction for driving with a blood alcohol level over 0.80.

The appellant argued the trial judge's reasons were inadequate.

The Court of Appeal denied leave, finding no clear error by the summary conviction appeal judge and noting the case involved well-settled legal principles with no broader significance to the administration of justice.