OCA 2015

The appellant appealed his convictions and seven-year sentence for historical sexual offences, including indecent assault and buggery, committed against four complainants between 1968 and 1978.

He argued the trial judge made unreasonable credibility findings and failed to address evidentiary conflicts.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's credibility assessments were reasonable and adequately explained.

The sentence appeal was also dismissed, though a lifetime SOIRA order was reduced to 20 years on consent.

The appellant developer earned municipal development credits and sold the land with an agreement that the purchaser would pay the appellant the credits once established.

The land was subsequently sold twice without this covenant, eventually to the respondent, who developed the property and received the credits.

The appellant sued the respondent for unjust enrichment.

The Court of Appeal dismissed the appeal, finding that the respondent was not enriched because it had paid a premium for the property in expectation of receiving the credits.

The appellants appealed a decision finding that the respondent insurance company did not have a duty to defend them in a defamation action arising from an internet video.

The application judge had concluded that the substance of the claim did not implicate the appellants as employees acting in the course of their employment.

The Court of Appeal allowed the appeal, finding that the application judge failed to consider cross-claims and third-party claims, which established a mere possibility that the appellants were acting in the course of their employment.

The appellant was convicted of first degree murder, second degree murder, attempted murder, and aggravated assault following a series of altercations that began at a pub and ended with two men fatally stabbed.

On appeal, the appellant argued the first degree murder verdict was unreasonable, the jury was improperly instructed on after-the-fact conduct and self-defence, a Crown expert was biased, and he should benefit from retrospective application of new self-defence laws.

The Court of Appeal dismissed the appeal, finding ample evidence of planning and deliberation, no reversible error in the jury instructions, and that the proposed fresh expert evidence did not meet the test for admission.

The appellant was convicted of manslaughter as a party under s. 21(2) of the Criminal Code after his co-accused stabbed the victim during a group fight.

On appeal, the appellant argued the trial judge erred in her instructions to the jury on self-defence, consent, and the use of a prior inconsistent statement.

The Court of Appeal allowed the appeal and ordered a new trial, finding that the trial judge's instruction on consent was confusing and may have improperly led the jury to consider the stab wounds when determining if the victim consented to the initial fight.

The appellant was convicted of second-degree murder following a fatal stabbing during a parking lot altercation.

On appeal, he argued that he should benefit retrospectively from the new self-defence provisions in the Criminal Code, and that the trial judge erred in refusing to leave the defence of provocation with the jury and in her W.(D.) instructions regarding self-defence and exculpatory statements.

The Court of Appeal dismissed the appeal, holding that the new self-defence provisions are substantive and apply prospectively only.

The court also found no error in the trial judge's assessment that provocation lacked an air of reality, nor in her jury instructions.

The appellant was convicted of possession of stolen property and driving offences after a stolen car crashed into a parked truck.

At trial, the appellant claimed a man named 'Steve' was driving.

The trial judge rejected this evidence but made three errors of law: mischaracterizing the defence as an alibi, improperly applying the adverse inference under s. 258(3) of the Criminal Code to the issue of identity, and misusing the appellant's criminal record.

The Court of Appeal found that despite these errors, the evidence against the appellant was so overwhelming that no substantial wrong or miscarriage of justice occurred.

The appeal was dismissed using the curative proviso.

The appellants appealed the dismissal of their medical malpractice action following the death of a 22-year-old man in hospital.

The deceased had been switched from morphine to Dilaudid by the respondent physician, and the appellants alleged the dosage was excessive and caused his death by opioid overdose.

The trial judge accepted the respondent's expert evidence that the dosage met the standard of care and that the cause of death was not an opioid overdose.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's approach to liability, standard of care, or causation.

The appellant was convicted of sexual assault, sexual interference, and invitation to touch for a sexual purpose against his five-year-old great-niece, as well as possession of child pornography.

On appeal, he argued the trial judge erred in her jury instructions regarding the complainant's prior consistent statements and the use of the child pornography evidence.

The Court of Appeal found no error regarding the prior statements but held the trial judge erred by failing to expressly instruct the jury that the child pornography evidence could not be used to determine guilt on the sexual abuse charges.

The convictions for the sexual offences were quashed and a new trial ordered.

The conviction for possession of child pornography was upheld, but the sentence was reduced to time served after applying the correct pre-sentence custody credit.

The appellant, a court-appointed interim receiver, filed a proof of claim with the respondent trustee in bankruptcy for its fees and disbursements.

The trustee disallowed the claim, and the application judge dismissed the appellant's appeal of that disallowance.

The Court of Appeal dismissed the appeal, holding that an interim receiver cannot bypass the procedural requirement of passing its accounts by submitting unliquidated and non-approved fees to a trustee in the form of a proof of claim.

The appellants were convicted by a jury of conspiracy to traffic in cocaine and possession of proceeds of crime.

They appealed their convictions on the grounds that jurors were exposed to extrinsic information (including internet searches and old newspaper articles) during the trial, and that the trial judge erred in her instructions on the co-conspirator hearsay exception.

The Court of Appeal dismissed the appeal, finding no reasonable possibility that the extrinsic information affected the verdict given the trial judge's instructions and the nature of the information.

The court also upheld the trial judge's conspiracy instructions as compliant with the Carter and Mapara framework.

The landlord appealed a Divisional Court decision upholding a Landlord and Tenant Board order granting rent rebates to three tenants of cottage sites.

The landlord argued that applying the security of tenure provisions of the Residential Tenancies Act would extend the 20-year leases beyond 21 years, thereby contravening the subdivision control provisions of the Planning Act and rendering the leases void.

The Court of Appeal dismissed the appeal, finding it was bound by its previous decision in Matthews v. Algoma Timberlakes Corp., which held that the rent control provisions of the RTA applied to similar land leases.

The court declined to address the potential conflict between the RTA and the Planning Act as the landlord had not sought to overrule Matthews or requested a five-judge panel.

The appellants appealed a summary judgment dismissing their legal malpractice action against the respondent lawyers.

The action alleged the respondents delayed applying for catastrophic impairment benefits and failed to advance Family Law Act claims for the injured party's brothers.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the appellants failed to put their best foot forward by providing evidence of damages not compensated by the underlying $1.4 million settlement.

The appellants appealed an order striking their statement of claim under Rule 21.01 based on the expiry of a limitation period.

The Court of Appeal allowed the appeal, finding that the motion judge erred because a plaintiff is not obligated to plead discoverability until a statement of defence pleading a limitation period is delivered.

The court also clarified that the exception allowing a claim to be struck for a limitation period prior to a defence is confined to cases with no legal or factual complexities.

The appellant appealed his conviction, arguing the trial judge erred in rejecting his evidence.

The Court of Appeal found that the trial judge's third reason for disbelieving the appellant—that he perjured himself at a PSA hearing—was unsupported by the trial record.

Because this error greatly affected the credibility assessment, the appeal was allowed, the convictions were set aside, and a new trial was ordered.

The Crown appealed the respondents' acquittals on drug and firearms charges.

The trial judge had excluded evidence found during a search of the respondents' home, ruling that the Information to Obtain (ITO) lacked objectively reasonable grounds and excluding the evidence under s. 24(2) of the Charter.

The Court of Appeal allowed the appeal, finding that the trial judge erred in weighing the first Grant factor.

Given the trial judge's finding of good faith by the police, the lack of objective grounds alone did not justify excluding the evidence.

The acquittals were set aside and a new trial was ordered.

The appellant, a federal inmate convicted of offences committed prior to the enactment of the Abolition of Early Parole Act (AEPA), appealed the dismissal of his habeas corpus application.

He argued that the retroactive abolition of accelerated parole review (APR) violated his rights under s. 11(i) of the Charter.

Applying the companion decision in Canada (Attorney General) v. Lewis, the Court of Appeal held that the abolition of APR appreciably increased the appellant's expected incarceration time, constituting an unjustified variation in punishment.

The appeal was allowed, and the appellant was declared eligible for the APR regime.

The appellant, a federal inmate convicted of drug offences committed before the Abolition of Early Parole Act (AEPA) came into force but sentenced after, appealed the dismissal of his habeas corpus application.

He argued that the AEPA's abolition of accelerated parole review (APR) violated his s. 11(i) Charter right to the benefit of the lesser punishment.

Relying on the companion case of Canada (Attorney General) v. Lewis, the Court of Appeal held that the abolition of APR appreciably increased the appellant's incarceration time, constituting a variation in punishment that violated s. 11(i) and was not saved by s. 1.

The appeal was allowed, and the appellant was declared entitled to the APR regime.

The appellant sought to enforce a settlement agreement between a developer and a municipality regarding public access to a woodlot, relying on section 86 of the Ontario Municipal Board Act.

The motion judge dismissed the motion, finding no legal obligation for the developer to permit access.

The Court of Appeal dismissed the appeal, holding that the appellant should have first sought relief from the Ontario Municipal Board, which has the expertise to interpret the settlement agreement and its own orders, rather than applying directly to the Superior Court.

The appellant appealed the dismissal of his action to set aside three inter vivos monetary transfers and a testamentary bequest of Canada Savings Bonds made by his late father to the respondent, his sister.

The appellant argued the trial judge erred in finding sufficient corroborating evidence to rebut the presumptions of resulting trust and undue influence, and that the testamentary gift adeemed when the bonds were placed in a joint account.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the father had donative capacity, was not subject to undue influence, and intended the transfers as gifts.

The Court also found the bonds did not adeem as they were never endorsed by the father and remained registered in his name.