OCA 2015

The appellant appealed his convictions for firearms offences and conspiracy to commit unlawful confinement, as well as his ten-year sentence.

He argued there was insufficient evidence he knew about a firearm in the driver's side door pocket of the car he was driving.

The Court of Appeal upheld the trial judge's finding that the totality of the evidence, including the appellant's possession of other weapons and the proximity of the firearm, proved his knowledge.

The sentence appeal was also dismissed, with the court finding the trial judge properly considered the appellant's prior record for similar violent offences and his poor prospects for rehabilitation.

The appellant appealed his convictions for firearm offences and his sentence, arguing that the trial judge erred in dismissing his Charter application to exclude a loaded handgun found during a warrantless search incident to arrest.

The Court of Appeal upheld the trial judge's finding that the police had reasonable and probable grounds to arrest the appellant based on corroborated information from multiple confidential informants.

The court also agreed with the trial judge's s. 24(2) Charter analysis admitting the evidence.

The sentence appeal was allowed on consent solely to increase the appellant's pre-trial custody credit to a 1.5 ratio in accordance with R. v. Summers, but was otherwise dismissed.

The appellant appealed a preservation order requiring him to deliver luxury vehicles or their sale proceeds to the respondent trustee in bankruptcy, and freezing his bank accounts.

The appellant argued he only acquired a beneficial interest in the vehicles when a court declared a trust agreement valid, years after his bankruptcy.

The Court of Appeal dismissed the appeal, finding the appellant's beneficial interest existed at the time of his bankruptcy pursuant to the trust agreement, and the motion judge made no error in principle in exercising his discretion to make the preservation order.

The appellant was convicted of fraud and uttering forged documents for her role in a mortgage fraud scheme.

She appealed her conviction, arguing that the trial judge's decision to hear evidence from a Crown witness before ruling on her s. 11(b) Charter application, and the 15-month delay in delivering reasons for that ruling, created a reasonable apprehension of bias.

She also appealed the $25,000 restitution order, arguing the trial judge failed to consider her ability to pay.

The Court of Appeal dismissed both appeals, finding no cogent evidence of bias and noting the trial judge explicitly considered the appellant's financial circumstances.

The appellant appealed his conviction for aggravated assault, arguing that the verdict was unreasonable.

He contended that the trial judge erred by placing too much reliance on the victim's companion, disregarding expert evidence on the victim's blood alcohol level, and unjustifiably discrediting the evidence of the appellant and his companions.

The Court of Appeal dismissed the appeal, finding that the appellant was merely inviting the court to re-weigh the evidence, and that the trial judge's treatment of the evidence was perfectly reasonable.

The plaintiff appealed the dismissal of its motion for a declaration that the defendant was in contempt of court for failing to preserve electronic records.

The defendant moved to quash the appeal to the Court of Appeal for lack of jurisdiction, arguing the order was interlocutory.

The Court of Appeal granted the motion to quash, holding that an order dismissing a contempt motion is interlocutory because the merits of the case remain to be determined, and therefore the appeal lies to the Divisional Court with leave.

The appellant appealed his convictions for possession of child pornography, arguing the trial judge erred in admitting images found on his computer.

A computer repair technician discovered the images and called police, who viewed them without a warrant before seizing the computer.

The trial judge found breaches of section 8 of the Charter but admitted the evidence under section 24(2), noting the reduced expectation of privacy at a repair shop and the high reliability of the evidence.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's section 24(2) analysis.

The appellant appealed his convictions for two counts of first-degree murder, arguing the trial judge erred in instructing the jury on how intoxication relates to planning and deliberation, and unfairly commented on the defence toxicologist's evidence.

The Court of Appeal dismissed the appeal, finding the jury instructions contained all essential legal elements and properly directed the jury to consider intoxication separately for intent and for planning and deliberation.

The court also found the trial judge's comments on the expert evidence were supported by the record and not objected to by trial counsel.

The appellants challenged the refusal to stay an Ontario action arising from contractual arrangements negotiated and signed in Ontario concerning Nigerian oil and gas assets, while parallel proceedings had been commenced in Nigeria.

The Court of Appeal held that comity is not a stand-alone consideration but is embedded in the forum non conveniens analysis, and found no error in the motion judge's conclusion that Ontario had jurisdiction and that Nigeria was not clearly the more appropriate forum.

The court also refused to consider proposed fresh evidence consisting of reasons from the Nigerian court because those reasons were available before the motion below and did not satisfy the Palmer test.

The appeal was dismissed with costs.

The appellants and the respondent insured brought motions to disqualify the law firm appointed by the insurer from continuing to represent the insured on an appeal and cross-appeal.

The underlying action involved a motor vehicle accident where the jury found the insured solely responsible, primarily for negligent parental supervision (uncovered), but also for an unsuitable choice of unloading area (potentially covered).

The insurer-appointed counsel filed a cross-appeal challenging the only finding that could trigger coverage.

The Court of Appeal granted the motions, finding a reasonable apprehension of a conflict of interest, and ordered the insurer to pay for independent counsel to represent the insured.

The appellants sued the respondent for damages after allegedly finding a mouldy piece of chicken in a box of cereal.

The parties reached a settlement to dismiss the action without costs, but the appellants later attempted to resile from the agreement, claiming it was accepted in haste and under stress.

The motion judge enforced the settlement against the adult appellants.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that the appellants failed to establish grounds, such as mistake or significant compromise, to justify setting aside the settlement.

The appellant commenced a negligence action against the respondent dentists for substandard dental implant procedures.

The respondents successfully moved for summary judgment, arguing the action was statute-barred under the Limitations Act, 2002.

On appeal, the appellant argued the motion judge erred in applying the discoverability test.

The Court of Appeal dismissed the appeal, finding the claim was discoverable when the appellant's new dentist explained the nature of the problem and advised he would have conducted the procedure differently, which occurred more than two years before the action was commenced.

The appellant appealed an order setting aside a 2005 amending agreement to a separation agreement, declaring the respondent the sole owner of a property, and ordering prospective spousal support.

The respondent cross-appealed on issues including retroactive support, pre-judgment interest, and costs.

The Court of Appeal upheld the applications judge's decision to set aside the agreement due to the appellant's significant financial non-disclosure and unconscionability.

The appeal was dismissed in its entirety.

The cross-appeal was allowed only to award pre-judgment interest on the retroactive child and spousal support order.

The appellant was convicted of assault and break and enter to commit assault arising from a home invasion.

She was sentenced to two years less a day imprisonment followed by two years of probation.

On appeal, she argued the trial judge erred by not imposing a conditional sentence.

The Court of Appeal dismissed the appeal, finding the trial judge correctly concluded a conditional sentence was unfit given the seriousness of the offence, the appellant's role as a principal, and the need for denunciation and deterrence.

The appellant appealed his convictions for possession of a controlled substance for the purpose of trafficking and possession of property obtained by crime.

He was arrested during the execution of a search warrant in an apartment, holding cash and a knife, moments after being seen on a balcony where drugs were later found.

The Court of Appeal held that the drug convictions were unreasonable because the circumstantial evidence did not support guilt as the only reasonable inference.

However, the court upheld the proceeds of crime conviction, finding no other reasonable explanation for the cash.

The appellant, a criminal defence lawyer, was convicted of smuggling drugs into the Toronto Jail for a former client during a professional visit.

On appeal, he argued that the trial judge applied uneven scrutiny to the evidence and erred in refusing to order the production of third party records relating to the prevalence of drug smuggling at the jail.

The Court of Appeal allowed the appeal, finding that the trial judge subjected the appellant's evidence to a stricter level of scrutiny than the Crown's evidence, and erred in concluding that the third party records were not likely relevant.

A new trial was ordered.

The applicant sought judicial review of the Minister of Justice's decision to surrender him to the United States, arguing that extradition would violate his section 7 Charter rights due to risks to his personal safety as a cooperating inmate.

The Court of Appeal dismissed the application, finding that the Minister reasonably balanced the risks against the protective measures available in the U.S. prison system.

The Court held that the applicant did not face a level of risk beyond that of most cooperating inmates and that potential placement in a special housing unit would not amount to cruel and unusual punishment.

The appellant purchaser sought the return of its deposit after aborting a commercial real estate transaction due to environmental issues and a Ministry of the Environment Certificate of Prohibition registered on title.

The motion judge granted summary judgment dismissing the claim, finding the purchaser had waived the environmental condition and failed to adduce evidence that it had not received the environmental order.

The Court of Appeal dismissed the appeal, affirming that the waiver of the environmental condition effectively waived the title objection, and that the purchaser bore the evidentiary burden on summary judgment to prove it had not received the order.

Following a successful appeal setting aside a series of ex parte 'investigative receivership' orders, the successful appellants sought costs against both the original applicant and the court-appointed receiver.

The Court of Appeal held that both were liable for costs.

The applicant was liable on a partial indemnity scale because he initiated and supported the proceedings.

The receiver was held personally liable for costs on a substantial indemnity scale because it acted as a 'real litigator' and pursued an impermissibly overreaching roving receivership, losing its objectivity as an officer of the court.

The Court also clarified that substantial indemnity costs are calculated as 1.5 times partial indemnity costs under Rule 1.03, rather than as a percentage of full indemnity costs.

The appellants were acquitted of first degree murder and convicted of second degree murder.

They appealed their convictions on the basis that the trial judge erred during jury selection by unilaterally ordering the use of static triers for challenges for cause, despite the appellants' requests for rotating triers and the absence of an application under s. 640(2.1) of the Criminal Code.

The Court of Appeal held that the improper use of static triers deprived the appellants of their statutory right to rotating triers, rendering the court improperly constituted to try them.

The curative proviso in s. 686(1)(b)(iv) could not apply.

The Court also found the trial judge erred in failing to answer a jury question regarding closing arguments.

The appeal was allowed and a new trial ordered for second degree murder.