OCA 2015

The appellants appealed a summary judgment granted to the respondent tenant for breach of a commercial lease.

The motion judge had found that the parties made an oral agreement to extend the lease commencement date and that the appellants terminated the lease in bad faith.

The Court of Appeal set aside the summary judgment, finding that the motion judge's factual conclusions regarding the oral agreement were not supported by the evidence, and that he erred by relying on the unpleaded doctrine of part performance.

The Court deferred deciding whether to remit the matter or determine the issues itself, requesting further written submissions from the parties.

The tenant appellants appealed a motion judge's refusal to set aside a default judgment obtained by the landlord respondent.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's decision because the appellants failed to provide affidavit evidence explaining their delay in responding to the Statement of Claim or establishing a plausible defence.

The court noted the respondent's undertaking to credit the appellants for any re-rental amounts received and directed that the final judgment be adjusted accordingly.

The appellant, who was found unfit to stand trial due to an intellectual disability, appealed a Review Board disposition ordering his continued detention.

He argued the Board erred in finding he remained a significant threat to the public and in failing to impose the least onerous disposition, specifically a conditional discharge.

The Court of Appeal upheld the Board's finding on significant threat as reasonable, but agreed the Board erred by failing to consider whether a conditional discharge could ensure public safety.

The matter was remitted to the Review Board to consider a conditional discharge.

The appellant appealed his designation as a dangerous offender and the imposition of an indeterminate sentence following a guilty plea for sexual interference.

He argued the sentencing judge misapprehended evidence regarding his ability to manage his risk in the community using sex-drive reducing medication (Lupron) and sought to introduce fresh evidence of his progress on the medication.

The Court of Appeal dismissed the appeal, finding the sentencing judge reasonably concluded that the mere possibility of taking medication did not adequately reduce the high risk he posed to the public.

The court also dismissed the application to adduce fresh evidence, noting it was not credible due to the appellant's manipulative nature and was more appropriately a matter for parole authorities.

The appellant appealed an order regarding funds held in court related to an estate.

The respondents moved to dismiss or stay the appeal, alleging the real litigant was a declared vexatious litigant.

The Court of Appeal dismissed the appeal, noting that the underlying application had not been advanced for over 10 years, the beneficiaries were elderly, and the appellant's agent could not justify retaining the funds in court.

The appeal was found to be devoid of merit.

The appellant appealed his convictions for trafficking in crack cocaine and possession of the proceeds of crime, arguing the trial judge misapprehended identification evidence and rendered an unreasonable verdict.

The Court of Appeal found that the trial judge was entitled to rely on police testimony regarding the seller's location in the vehicle and physical description.

The appeal was dismissed as the trial judge did not misapprehend the evidence and the verdict was reasonable.

The appellant was convicted of two counts of invitation to sexual touching of a child and acquitted of sexual assault.

On appeal, the appellant argued that the verdicts were inconsistent because there was no evidence the child did not comply with the invitations, which would have constituted sexual assault.

The Court of Appeal dismissed the appeal, finding no necessary logical inconsistency.

The court noted the jury may have misunderstood that the appellant's participation in the physical contact amounted to an assault, but this error would have enured to the appellant's benefit and did not undermine the convictions.

The self-represented appellant father appealed a summary judgment order granting sole custody of the two teenaged children to the respondent mother, with access at the children's discretion.

The father argued the motion judge erred in hearing the summary judgment motion after the matter was set for trial, in applying the evidentiary burden, and in assessing the children's best interests.

The Court of Appeal dismissed the appeal, finding the motion judge correctly applied the summary judgment framework and properly considered the children's best interests, including their expressed wishes not to have court-ordered access with the father.

The appellant appealed his sentence, arguing he was entitled to enhanced credit (1.5 to 1) for pre-sentence custody after his bail was revoked.

He had consented to his detention without a show cause hearing.

The Court of Appeal held that an accused whose prior form of release is cancelled under s. 524(8) of the Criminal Code is 'detained in custody' under that section, regardless of whether a separate detention order is made following a show cause hearing.

Consequently, the appellant fell within the exclusion in s. 719(3.1) and was not entitled to enhanced credit.

The appeal was dismissed.

The appellant mother appealed a custody and access order that granted the respondent father generous access to their children, arguing that the father had attempted to kill her during a vacation in Jamaica.

The trial judge had found the mother's allegations not credible, relying heavily on hearsay evidence from a blood expert who testified at the father's Jamaican criminal trial.

The Court of Appeal allowed the appeal, finding that the trial judge erred in admitting the hearsay evidence without threshold reliability, demonstrated a reasonable apprehension of bias through uneven scrutiny of the evidence, and failed to properly assess the best interests of the children, particularly regarding domestic violence.

A new hearing on custody and access was ordered.

The appellant municipality appealed an application judge's interpretation of a development agreement regarding the costs of operating a pumping station.

The Court of Appeal found no error in the application judge's conclusion that the costs of operation, as distinct from maintenance and repair, are to be borne by the municipality and not the developer.

The appeal was dismissed.

The appellant appealed a jury verdict that apportioned liability 90% to the appellant and 10% to the respondent.

The Court of Appeal applied the rigorous test for setting aside a civil jury verdict, which requires the verdict to be so plainly unreasonable and unjust that no jury acting judicially could have reached it.

Finding the apportionment decision did not meet this threshold, the court dismissed the appeal with costs.

The appellant was convicted of second-degree murder after shooting a man during a drug transaction.

At trial, the judge charged the jury on self-defence under s. 34(2) of the Criminal Code but not under s. 35.

On appeal, the appellant argued the trial judge misdirected the jury on the unlawful assault requirement of s. 34(2) and erred by failing to leave s. 35 with the jury.

The Court of Appeal dismissed the appeal, finding no error in the jury instructions on s. 34(2) when read as a whole, and concluding there was no air of reality to a s. 35 defence because the appellant, as the initial aggressor drawing a loaded handgun, could not claim he commenced the assault without intent to cause death or grievous bodily harm.

The plaintiff commenced an action for negligence after a fire on the defendant's railway lands damaged its business.

The action was struck from the trial list due to outstanding undertakings and later administratively dismissed for delay after a motion judge refused to restore it.

The Court of Appeal allowed the appeal, finding the motion judge erred in principle by focusing on allocating blame for the delay rather than whether the plaintiff's explanation was reasonable, and by presuming prejudice from the passage of time.

The Court reweighed the evidence, found the plaintiff's explanation acceptable and no non-compensable prejudice to the defendant, and ordered the action restored to the trial list.

The appellant appealed his convictions for possession of heroin for the purposes of trafficking and breaking and entering.

The Court of Appeal dismissed the appeal regarding the drug conviction, finding the trial judge reasonably concluded the large quantity of heroin and other indicia supported trafficking.

However, the Court allowed the appeal regarding the break and enter conviction, finding the trial judge's one-sentence reasons insufficient and failing to address the frailties of the eyewitness identification evidence.

A new trial was ordered for the break and enter count.

The appellant, a unit owner and former director of the respondent condominium corporation, appealed a costs order made against him.

The application judge had ordered the appellant to pay $45,000 in costs but failed to clearly determine whether the appellant had acted in bad faith or was merely negligent, which was critical to determining his entitlement to indemnification under the condominium's by-laws.

The Court of Appeal allowed the appeal, set aside the costs order, and remitted the matter to the application judge to clarify the findings and reassess the costs.

The appellant appealed his sentence, arguing the sentencing judge failed to consider Gladue principles and the jump principle.

The Court of Appeal dismissed the appeal, finding the sentence fit given the appellant's extensive criminal record, breach of probation, and the risk posed to a police officer.

The Court also held that the sentence increase was measured and did not violate the jump principle.

The appellant appealed his four-year sentence for criminal harassment and assault of his former partner.

He argued the trial judge erred by denying 1.5:1 credit for pre-sentence custody, sentencing him to a penitentiary term for treatment, and imposing a demonstrably unfit sentence.

The Court of Appeal found the trial judge erred in denying the 1.5:1 credit based on the likelihood of bail denial, applying the Summers principle to grant the enhanced credit.

However, the court dismissed the other grounds, finding the penitentiary sentence was not imposed solely for treatment and the four-year total sentence was not demonstrably unfit given the egregious domestic abuse.

The appellant was convicted of aggravated assault following an on-ice collision during a recreational no-contact hockey game.

The trial judge rejected the defence's evidence that the collision was accidental, finding instead that it was a deliberate blindside hit.

On appeal, the Court of Appeal found that the trial judge engaged in impermissible speculative reasoning by relying on her own personal knowledge of hockey strategy and on-ice injuries to reject the defence witnesses' testimony.

The appeal was allowed, the conviction quashed, and a new trial ordered.

The appellant appealed his five-year sentence for firearms trafficking, arguing the sentencing judge erred by not giving credit for his bail conditions and that the sentence was unfit due to the potential unconstitutionality of the three-year mandatory minimum.

The Court of Appeal dismissed the appeal, finding the bail conditions were not stringent and the trial judge reasonably exercised her discretion not to grant credit.

The court presumed the mandatory minimum was constitutional as it was not challenged, and held the five-year sentence was fit given the appellant's profit motive and knowledge the guns would be used for criminal purposes.