OCA 2015

Five police officers appealed their convictions for attempting to obstruct justice and perjury arising from a warrantless search of a drug suspect's apartment and subsequent efforts to conceal it.

The officers argued various trial errors, including Charter violations regarding the use of their preliminary inquiry testimony, improper jury instructions, and abuse of process.

The Court of Appeal dismissed the conviction appeals, finding no reversible errors.

The Crown cross-appealed the 45-day conditional sentences.

The Court allowed the cross-appeal, finding the sentences demonstrably unfit for police officers committing perjury and obstruction of justice, and substituted 3-year custodial sentences, but stayed their operation due to the passage of time.

The franchisor sued the franchisees for breach of contract, and the franchisees counterclaimed for rescission of the franchise agreement under s. 6(2) of the Arthur Wishart Act, alleging the franchisor failed to disclose ongoing litigation against a competing business.

The motion judge granted partial summary judgment dismissing the rescission claim, finding the undisclosed litigation was not a stark and material deficiency.

The Court of Appeal dismissed the franchisees' appeal, holding that summary judgment was appropriate and that the litigation, which was commenced to protect franchisees, was not a material fact and its omission did not amount to a complete failure to provide a disclosure document.

The appellant was convicted of robbery and sentenced to two years less a day for aiding and abetting by renting a car used in the offence.

She appealed both conviction and sentence.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's inferences from circumstantial evidence were reasonable.

However, the sentence appeal was allowed because the trial judge erred in treating the home invasion aspect as an aggravating factor when there was no evidence the appellant knew it would involve a home invasion.

The sentence was reduced to time served.

The appellant was found not criminally responsible on account of mental disorder and appealed a hybrid detention disposition made by the Ontario Review Board.

The appellant argued that the Board erred in finding he posed a significant risk to public safety and in failing to grant an absolute or conditional discharge.

The Court of Appeal dismissed the appeal, holding that the Board's finding of significant risk was supported by the evidence, including the unanimous opinion of the treatment team.

The Court also rejected the appellant's procedural fairness arguments regarding the late delivery of a hospital report and alleged bias.

The appellant was convicted of impaired operation of a motor vehicle after causing a four-vehicle accident.

He testified that he was not impaired while driving but consumed a large amount of alcohol immediately after the accident (bolus drinking).

The trial judge disbelieved the appellant, relying on toxicological evidence based on a seven-ounce consumption scenario, but ignored evidence based on a ten-ounce scenario that could have supported the appellant's claim.

The summary conviction appeal judge dismissed the appeal, finding the error immaterial.

The Court of Appeal allowed the appeal, quashed the conviction, and ordered a new trial, holding that the failure to consider the ten-ounce toxicology evidence was a material misapprehension of evidence relevant to the appellant's credibility.

The Crown appealed the sentence of three years less a day imposed on the respondent for 36 offences, including assault, assault with a weapon, and criminal harassment, committed against two domestic partners.

The trial judge had improperly credited the respondent with one year for 133 days of pre-sentence custody based on an unsupported Charter breach.

The Court of Appeal found the original sentence manifestly unfit given the serious aggravating factors, including assaults on pregnant victims and blatant disregard for probation orders.

The appeal was allowed and the sentence was increased to 4.5 years' imprisonment.

The appellant appealed a disposition of the Ontario Review Board.

The Court of Appeal dismissed the appeal, finding that the Board's risk assessment and disposition were reasonable and supported by reasons that bear a somewhat probing examination.

The appellant appealed his conviction, arguing that the trial judge erred in his application of the Grant framework after finding a section 8 Charter breach due to the failure to disclose a confidential informant's criminal record in the Information to Obtain (ITO).

The appellant also argued the trial judge misapprehended inconsistencies in the surveillance evidence.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the trial judge's decision to admit the evidence.

The trial judge reasonably accepted that the officer omitted the record to protect the informant's anonymity, and the surveillance evidence consistently described activities indicative of drug transactions.

The applicant, a permanent resident detained as a flight risk and danger to the public under the Immigration and Refugee Protection Act, appealed the dismissal of his habeas corpus application.

Pending the appeal, he brought a motion for a stay of any potential future deportation order.

The Court of Appeal dismissed the motion, finding it premature as no deportation order had yet been made, and holding that the appeal did not raise a serious issue to be tried because the IRPA provides a complete and comprehensive scheme for reviewing detention.

The appellants, members of the Bandidos motorcycle gang, appealed their convictions for multiple counts of first degree murder and manslaughter arising from the execution-style killings of eight fellow gang members.

The central issue on appeal was whether the trial judge erred in ruling that the common law defence of duress was unavailable to persons charged as parties to murder.

The Court of Appeal held that the trial judge erred in law, as the common law defence of duress remains available to parties to murder.

However, the Court dismissed the appeals, finding no substantial wrong or miscarriage of justice because there was no air of reality to the duress defence for any of the appellants on the evidence.

LAWPRO brought a motion for directions regarding an order requiring it to pay out professional liability insurance proceeds to the applicants.

Three lawyers formerly employed by the respondent law firm had appealed a subsequent order dismissing their motion to vary the payout order, which they argued was made without notice to them.

The Court of Appeal held that the payout order was not automatically stayed under rule 63.01(1) because it was not the order under appeal.

However, applying the RJR-MacDonald test, the Court granted a discretionary stay under s. 134(2) of the Courts of Justice Act, finding that the lawyers would suffer irreparable harm if the policy was exhausted and that fairness dictated they should not be prejudiced by the applicants' failure to provide them with notice of the original motion.

The appellant, Teranet Inc., appealed a Divisional Court decision certifying a class action brought by the respondent land surveyor for copyright infringement.

The respondent alleged that the appellant's provision of electronic copies of land surveys to the public for a fee infringed the surveyors' copyright.

The Court of Appeal dismissed the appeal, finding that the Divisional Court did not err in allowing the respondent to revise its class definition and common issues on appeal, as the changes were not fundamental and did not prejudice the appellant.

The Court further upheld the certification, concluding that the revised class definition was not merits-based, the common issues would significantly advance the litigation, and the respondent was a suitable representative plaintiff despite not relying on the appellant's services.

The appellant employer appealed a partial summary judgment awarding the respondent employee 16 months' notice for wrongful dismissal.

The appellant argued the motion judge erred by applying a 'rule of thumb' of one month per year of service and by finding the respondent made reasonable efforts to mitigate his damages despite applying for only four positions in ten months.

The Court of Appeal dismissed the appeal, finding the motion judge properly applied the Bardal factors to determine the notice period and correctly concluded the respondent's mitigation efforts were reasonable given his specialized role as a radiation safety officer.

The appellants appealed a trial judgment regarding a claim for indemnity by Tarion Warranty Corporation.

The central issue was whether Tarion's claim was caught by s. 18 of the Limitations Act.

The Court of Appeal dismissed the appeal, holding that s. 18 did not apply because Tarion was not sued.

The limitation period did not begin to run until Tarion paid out money to a third party, meaning the claims were brought within the applicable limitation period.

The appellant appealed an order staying its claim.

The Court of Appeal dismissed the appeal, agreeing with the motion judge's reasons.

The respondent cross-appealed, seeking to dismiss the claim as frivolous, vexatious, or an abuse of process rather than merely staying it.

The Court of Appeal dismissed the cross-appeal, declining to vary the motion judge's order granting a stay.

Costs of $6,000 were awarded to the respondent.

The applicant mother brought a motion to stay an order requiring her to return her two children to Egypt pending her appeal of a custody decision.

The respondent father brought a cross-motion for security for costs.

Applying the RJR-Macdonald test, the Court of Appeal granted the stay, finding a serious issue to be tried regarding whether the father was actually exercising custody rights under Article 13 of the Hague Convention when the children were removed.

The court also found irreparable harm to the children if their school year was disrupted, and that the balance of convenience favoured a stay.

The father's cross-motion for security for costs was dismissed.

The appellants appealed a decision dismissing their application regarding alleged voting irregularities in a Hindu temple's By-Law vote.

The Court of Appeal upheld the application judge's finding that the appellants failed to establish an irregularity, meaning the burden of proof never shifted to the respondents.

However, the Court allowed the appeal on costs, finding the application judge misapprehended evidence when awarding substantial indemnity costs.

The costs award was reduced to partial indemnity.

The appellant was convicted of multiple counts of armed robbery and related offences based primarily on recognition evidence from a former romantic partner who identified him from a wanted poster.

The trial judge accepted this evidence while dismissing conflicting eyewitness descriptions.

On appeal, the Court of Appeal found that the trial judge erred in law by failing to critically analyze the problematic aspects of the recognition evidence and by ignoring exculpatory eyewitness testimony.

The Court concluded the verdicts were unreasonable, allowed the appeal, and entered acquittals on all counts.

The appellant appealed a costs order made by the application judge, arguing a lack of jurisdiction and inadequate notice.

The Court of Appeal dismissed the appeal, finding that the claim for further relief, a previous costs order, and a settlement offer provided adequate notice.

The court also upheld the costs order as justified because the application judge found the appellant had perjured herself, protracting the litigation.

Following a successful appeal, the appellants sought costs on a substantial indemnity basis of $54,456.00, arguing that the trial tactics of defence counsel warranted such an award.

The Court of Appeal found no basis in the conduct of the appeal for substantial indemnity costs.

The court fixed the costs of the appeal at $33,000 all-inclusive, payable to the appellants.