OCA 2015

The Regional Municipality of Durham appealed the dismissal of its motion requiring Zurich Insurance Company Ltd. to defend it in an automobile negligence action.

Durham was an additional insured under a policy held by its winter maintenance contractor.

The statement of claim included allegations related to the contractor's work as well as other allegations against Durham.

The Court of Appeal allowed the appeal, holding that the insurer has an unqualified duty to defend the entire action where pleadings allege facts that trigger coverage, even if the defence furthers the defence of uncovered claims.

The insurer was ordered to provide Durham with independent counsel at its expense, subject to a potential apportionment of costs at the end of the proceedings.

The appellants appealed an order recognizing the respondents' common user rights over narrow parcels of land fronting Lake Simcoe, known as the 'Slivers'.

The application judge found that the respondents, as owners of lots in the subdivision, had openly and continuously used the Slivers since 1950, satisfying the requirements under the Registry Act and Land Titles Act.

The Court of Appeal dismissed the appeal, finding no error in the application judge's assessment of the uncontradicted affidavit evidence and declining to restrict the user rights to bathing purposes.

The applicant sought judicial review of the Minister of Justice's decision to surrender him to France for attempted murder.

The applicant argued that the Minister lacked authority to order surrender for attempted murder because the Authority to Proceed was limited to aggravated assault.

The Court of Appeal dismissed the application, finding that the Minister's decision was reasonable and that the Minister is not required to align the surrender offence with the offence listed in the Authority to Proceed.

The appellant receiver sought to appeal an interlocutory order refusing to cancel a letter of credit posted as security in a civil action.

The receiver argued the Court of Appeal had jurisdiction under s. 193 of the Bankruptcy and Insolvency Act because the motion was styled in both the civil action and the receivership proceedings.

The Court of Appeal quashed the appeal, holding that the substance of the order was a refusal to vary an order in a civil action, not an order in bankruptcy proceedings.

The proper route of appeal was to the Divisional Court with leave.

The appellant was convicted by a jury of sexual assault and unlawful confinement against his domestic partner.

He was subsequently designated a dangerous offender and sentenced to an indeterminate period of detention.

He appealed the convictions, arguing the trial judge erred in his jury instructions regarding corroboration, consent, and the justification under s. 27 of the Criminal Code.

He also appealed the dangerous offender designation and the indeterminate sentence.

The Court of Appeal dismissed the appeal, finding no errors in the jury instructions and upholding the dangerous offender designation and sentence based on the appellant's extensive history of domestic violence and treatment-resistant personality disorders.

The appellant was convicted of multiple historical sexual offences and assault causing bodily harm against two of his daughters.

At trial, extensive evidence of the appellant's uncharged violent behaviour and strict discipline was admitted without objection.

The trial judge failed to provide a promised limiting instruction prohibiting propensity reasoning based on this bad character evidence.

Furthermore, the trial judge failed to instruct the jury that they could not use the evidence of one complainant to bolster or confirm the credibility of the other.

The Court of Appeal found these omissions constituted errors in law, allowed the appeal, quashed the convictions, and ordered a new trial.

The appellant mother appealed a summary judgment order making her child a Crown ward without access.

The child had been in the care of the children's aid society for over four years and consistently expressed a strong desire not to have contact with the mother, following allegations of physical and sexual abuse.

The Court of Appeal upheld the motion judge's finding that there was no triable issue regarding access, as the mother could not establish that an ongoing relationship would be meaningful and beneficial to the child.

The court also found no error in the motion judge's reliance on hearsay evidence from the child's therapists and social workers, which is expressly permitted under the governing child protection legislation.

The appellant mother appealed a trial judge's order awarding sole custody of two children to the respondent father.

The mother argued the trial judge erred by proceeding in her absence, demonstrated bias, and ignored evidence of her good parenting and the father's domestic violence.

The Court of Appeal dismissed the appeal on the custody and bias issues, finding no error in the trial judge's conduct or factual findings.

The appeal was allowed only to correct a miscalculation of child support arrears agreed upon by the parties.

The appellant appealed the trial decisions regarding custody, equalization of net family property, spousal support, and costs following a high-conflict separation.

The Court of Appeal dismissed the custody appeal as moot since the children were now adults.

The court upheld the trial judge's calculation of net family property, finding no error in excluding the pre-marriage mortgage on the matrimonial home or in denying an unequal division.

The spousal support award of $10,000 per month and the discretionary costs awards were also affirmed, with the court emphasizing deference to trial judges in family law matters.

The appellants blocked a laneway on their property that the respondents used to access their homes.

The right-of-way had been registered on the appellants' title until 1960 but was not renewed within the 40-year expiry period under Part III of the Registry Act.

The application judge granted an injunction protecting the respondents' use of the laneway, relying on s. 113(5)(a)(iv) of the Registry Act, which exempts unregistered rights-of-way that are openly enjoyed and used.

The Court of Appeal dismissed the appeal, holding that s. 113(5)(a)(iv) is not restricted to prescriptive easements and protects once-registered rights-of-way that are no longer validly registered, provided the dominant tenement owners continuously and openly enjoy and use the right-of-way from the expiration of the 40-year period.

The appellant appealed a summary conviction appeal court decision upholding a discretionary firearms prohibition order under s. 110 of the Criminal Code and a weapons prohibition in his probation order, following a conditional discharge for a minor assault.

The Court of Appeal allowed the appeal and deleted the prohibition orders, noting the assault was minor, isolated, and did not involve a weapon.

The court also considered the appellant's lack of a criminal record, his safe use of firearms for competitive shooting, and his completion of an anger management course.

The appellant was convicted of attempted murder after breaking into his ex-girlfriend's home and attacking her with a knife.

He was sentenced to 11 years' imprisonment, less credit for pre-sentence custody.

He appealed the sentence, arguing the trial judge erred in balancing aggravating and mitigating factors.

The Court of Appeal dismissed the appeal, finding no error in principle and concluding the sentence fell within the acceptable range for attempted murder in a domestic context.

The appellant appealed his conviction for possessing child pornography found on his laptop.

He argued the trial judge misapprehended evidence regarding his knowledge of the files, specifically whether desktop icons were visible.

The Court of Appeal dismissed the appeal, finding the trial judge properly considered the evidence and reasonably concluded the appellant must have seen the icons and known of the files.

The court held the verdict was supported by ample evidence and was not unreasonable.

The appellant pleaded guilty to criminal negligence causing death after her two-year-old daughter died of heat stroke.

She was sentenced to 6 years' imprisonment less 6 months' credit for time served.

On appeal, she argued the sentencing judge erred in his findings regarding her beating of the child, in refusing credit for pre-trial house arrest, and in determining the sentencing range.

The Court of Appeal dismissed the appeal, finding no error in the sentencing judge's factual findings, exercise of discretion regarding pre-trial custody credit, or the fitness of the sentence given the high level of moral blameworthiness and vulnerability of the victim.

The appellant physician appealed a partial summary judgment order in a medical malpractice action arising from the delayed diagnosis of a brain tumour.

The appellant had admitted breach of the standard of care and causation, leaving only contributory negligence and the specific list of injuries to be determined.

The Court of Appeal dismissed the appeal, finding no denial of procedural fairness, no error in the burden of proof regarding contributory negligence, and no error in the motions judge's listing of specific injuries based on uncontradicted expert reports.

The appellant appealed his conviction for weapons trafficking under s. 99 of the Criminal Code.

He argued that the Crown failed to prove he knew the sale of the gun was unauthorized, and that the finding he aided and abetted the transfer was unreasonable.

The Court of Appeal dismissed the appeal, finding that the defence had conceded the knowledge element at trial by focusing exclusively on whether the appellant played a role in the transfer.

The Court also held that the trial judge's conclusion regarding aiding and abetting was amply supported by the evidence.

The applicant sought leave to appeal to the Court of Appeal, raising an argument of judicial bias.

The Court refused leave, finding that the bias argument was specific to the case, did not raise an issue of significance to the general administration of justice, and was not a strong argument, having already been rejected by the summary conviction appeal court judge.

The appellant appealed her convictions for fraud and use of a forged document.

The charges arose from her cashing Canada Savings Bonds in her sister's name using an allegedly forged power of attorney.

The appellant claimed the funds were hers and placed in her sister's name to hide them during a marital breakdown.

The trial judge convicted the appellant, finding that even if the funds were hers, cashing bonds in her sister's name constituted fraud, and placed the onus on the appellant to prove the power of attorney was valid.

The Court of Appeal found the trial judge erred in law on the elements of fraud, improperly shifted the burden of proof regarding the power of attorney, and failed to meaningfully analyze the complainant's evidence.

The appeal was allowed and the convictions were quashed.

The applicant was convicted of a terrorism offence in 2010 and received a sentence functionally equivalent to over six years.

Years later, legislative amendments allowed the government to revoke the citizenship of individuals with terrorism sentences of five years or more.

Facing citizenship revocation, the applicant sought an extension of time to appeal his sentence.

The Court of Appeal granted the extension, finding that the severe collateral consequences and the retrospective nature of the legislation meant the interests of justice favoured allowing the applicant to seek a sentence reduction.

The mother appealed a trial decision granting sole custody to the father, dismissing her financial claims, and alleged judicial bias because the father's mother worked at the courthouse.

The father cross-appealed the trial judge's decision to reduce the mother's child support obligations by $350 per month for access costs.

The Court of Appeal dismissed the mother's appeal, finding no error in the custody decision, no basis for the financial claims, and no reasonable apprehension of bias.

The Court allowed the father's cross-appeal, removing the access cost deduction and correcting a typographical error in the mother's income for child support purposes, setting ongoing support at $765 per month.