OCA 2015

The applicant, who was convicted of tax evasion and sentenced to 11 months' imprisonment and a significant fine, applied under s. 684 of the Criminal Code for state-funded counsel to represent him on his conviction appeal and the Crown's sentence appeal.

The Court of Appeal dismissed the application, finding that the applicant failed to demonstrate any arguable grounds of appeal or that he lacked the financial means to retain counsel privately.

The court noted the applicant had earned nearly $3,000,000 during the taxation years in question and failed to provide a credible explanation for the disappearance of those funds.

The appellant appealed a decision granting the equitable remedy of rectification to correct mistaken share redemptions that triggered unintended tax consequences.

The application judge found that the respondents had a continuing intention to carry out loan arrangements on a tax-neutral basis and that the share redemptions were a mistake.

The Court of Appeal dismissed the appeal, holding that under the binding authority of Juliar, the critical requirement for rectification is proof of a continuing specific intention to undertake a transaction on a particular tax basis, which the respondents had established.

The appellant advanced funds to finance the cost of repairs by third parties to an aircraft owned by the respondent.

It brought a motion for a declaration that it had a non-possessory lien under the Repair and Storage Liens Act.

The motion judge dismissed the claim, finding the appellant was not a 'repairer' under the Act.

On appeal, the Court of Appeal upheld the decision, confirming that advancing funds to finance repairs does not constitute making a repair or bestowing skill, labour, or money on the aircraft.

The appeal was dismissed.

The appellant was charged with impaired driving.

A police officer, certified as a Drug Recognition Expert (DRE), evaluated the appellant and concluded his ability to drive was impaired by cannabis.

The trial judge excluded the DRE's opinion evidence after a Mohan voir dire, leading to an acquittal.

The summary conviction appeal judge overturned the acquittal, finding the evidence admissible under the Criminal Code without a voir dire.

The Court of Appeal dismissed the appeal, confirming that section 254(3.1) of the Criminal Code implicitly renders DRE opinion evidence admissible to prove drug-impaired driving without the necessity of a Mohan voir dire.

The appellant appealed the dismissal of his action against the Crown and members of the Ontario Labour Relations Board.

The motion judge had dismissed the action on several grounds, including judicial immunity, improper notice, non-compliance with the Proceedings Against the Crown Act, and improper collateral attack, characterizing the action as an abuse of process.

The Court of Appeal agreed with the motion judge's reasoning and dismissed the appeal, awarding costs to the respondents.

The appellant appealed his conviction for sexual exploitation under s. 153(1) of the Criminal Code.

He argued the trial judge erred in characterizing his relationship with the complainant as exploitative.

The Court of Appeal dismissed the appeal, finding the trial judge's conclusion was fully justified given the appellant was 11 years older, acted as the complainant's drug supplier and street protector, and took advantage of the resulting power imbalance.

The moving party, who was in significant default on two mortgages held by the responding party, sought an urgent stay of a writ of possession pending her appeal of a summary judgment order.

The Court of Appeal applied the RJR-MacDonald test and dismissed the motion.

The court found no serious question to be determined, as the moving party admitted to substantial arrears and her arguments regarding technical defects in the eviction notice and lack of notice to her adult children under Rule 60.10(2) were without merit.

The court also found no irreparable harm and held that the balance of convenience overwhelmingly favoured the responding party, given the lack of payments for over four years.

The Court of Appeal for Ontario issued an appeal book endorsement directing that an order go as per the amended draft order filed by the parties.

The appellant son appealed a judgment setting aside the transfer of his mother's home to him based on non est factum and undue influence, and dismissing his counterclaim for equitable remedies.

The Court of Appeal upheld the trial judge's findings, noting the mother's limited English, recent widowhood, and lack of independent legal advice.

The counterclaim was properly dismissed due to the appellant's lack of clean hands and prematurity.

The appeal and a related motion were dismissed with costs.

The appellant appealed the trial judge's damages assessment of $270,735 for the tort of conversion of large metal die blocks.

The appellant argued damages should be based on scrap metal value rather than replacement cost, challenged the finding that it purchased 90% of the missing blocks, and disputed a $7,500 award for the respondent's lost time and productivity.

The Court of Appeal dismissed the appeal, finding the die blocks were useable and properly valued at replacement cost, the factual findings were supported by evidence, and the employee costs were directly connected to investigating the conversion.

The appellant appealed an order declaring a child to be a child of the marriage and requiring him to pay retroactive and ongoing child support, as well as spousal support.

The appellant challenged the trial judge's findings on the child's status, his income, and the respondent's ability to contribute.

The Court of Appeal dismissed the appeal, finding no error in principle or serious misapprehension of evidence by the trial judge.

The court also declined to admit fresh evidence regarding the appellant's income, noting it lacked cogency and that the trial order already provided a mechanism for adjusting support based on annual income tax returns.

The appellants, foreign corporations and an individual, appealed a motion judge's order dismissing their motion to dismiss the action for want of jurisdiction or to stay it on the basis of forum non conveniens.

The respondent municipality sued for breach of contract, fraud, and conspiracy regarding a waste management agreement.

The Court of Appeal upheld the motion judge's finding that the respondent established a 'good arguable case' for jurisdiction based on the pleadings and evidence of agency.

The court also deferred to the motion judge's conclusion that Ontario was the appropriate forum given the torts and contract were connected to the province.

The appellant appealed an order appointing the Law Society of Upper Canada as trustee of the professional legal practice materials of a deceased lawyer.

The appellant argued for a neutral third party to handle the materials.

The Court of Appeal dismissed the appeal, finding the appointment authorized under the Law Society Act and concluding the Law Society is the appropriate neutral party to manage and dispose of the client files and computers.

Metrolinx purchased a railway corridor from CN and requested that Enbridge relocate six gas pipelines crossing under the railway.

A dispute arose over who should bear the relocation costs.

The application judge found that under the historical agreements, Enbridge was responsible for the costs, and that CN had assigned these rights to Metrolinx.

The Court of Appeal dismissed Enbridge's appeal, holding that the application judge made no palpable and overriding error in interpreting the complex commercial agreements.

The appellant sought to add the respondent as a defendant to an action for unpaid benefits.

The motion judge declined to add the respondent as a party.

On appeal, the Court of Appeal upheld the decision, finding that any liability the respondent might have for the unpaid benefits stems from a collective agreement and would be arbitrable, meaning the respondent is not a proper party to the action.

The appellants appealed an order dismissing their action as an abuse of process.

The motion judge found that the appellants could have raised their allegation of being specifically targeted in prior judicial review proceedings regarding the FIT program.

The Court of Appeal upheld the decision, confirming that the abuse of process doctrine applies to issues that could have been determined in earlier administrative processes, and found no error in the motion judge's refusal to exercise her discretion to allow the action to proceed.

The Crown appealed the sentence imposed on the respondent for breaking into a home, stealing a loaded handgun, and selling it for drugs.

The sentencing judge imposed a one-year sentence for the firearm offence and a consecutive 12-month conditional sentence for the break and enter.

The Court of Appeal found the conditional sentence was illegal because the maximum penalty for break and enter is life imprisonment.

The majority allowed the appeal, imposing a three-year global sentence and ordering the respondent to serve the remaining 479 days in custody, emphasizing denunciation and deterrence.

The dissenting judge would have stayed the remaining sentence to avoid reincarceration.

The appellant appealed a formal order containing only support orders made by the trial judge, including an order for retroactive support of $53,800.

The Court of Appeal determined it lacked jurisdiction to hear the appeal, as the order fell within the jurisdiction of the Divisional Court under s. 19(1.2) of the Courts of Justice Act.

The appeal was transferred to the Divisional Court.

This is a companion appeal to Unifund Assurance Company v. D.E. and L.E. The appellant insurance company appealed a declaration that it had a duty to defend and indemnify the respondent parents and their minor daughter in an underlying action relating to alleged bullying and harassment.

Applying the reasons from the companion appeal, the Court of Appeal found the application judge erred in interpreting the exclusion clause.

The court also held that the minor daughter was excluded from coverage as the underlying claim was strictly for intentional torts of assault and battery.

The appeal was allowed, and the court declared the insurer had no duty to defend or indemnify.

The insurer appealed from a declaration that it owed a duty to defend and indemnify insured parents sued in negligence for allegedly failing to prevent their daughter's bullying of another student.

The Court of Appeal held that the negligence claim was properly pleaded and was not derivative of the intentional tort claim against the daughter.

However, the court found that the policy exclusion for failure to take steps to prevent physical, psychological or emotional abuse, molestation or harassment was unambiguous and squarely captured the pleaded failures to investigate, remedy, discipline, and prevent the harassment.

The insurer therefore had no duty to defend or indemnify in the underlying action.