OCA 2016

The wife amended her divorce application to claim an unequal division of net family property under s. 5(6) of the Family Law Act, alleging the husband recklessly depleted assets on extra-marital affairs.

The motion judge struck the claim without leave to amend, relying on summary judgment rules and civil pleading standards.

The Court of Appeal allowed the appeal in part, holding that the motion judge erred by applying civil rules to family law pleadings and by striking the s. 5(6) claim without notice.

However, the Court struck specific inflammatory paragraphs detailing the husband's conduct under r. 1(8.2) of the Family Law Rules, as they were unrelated to financial consequences.

The applicant, convicted of second-degree murder and other offences, applied under s. 684(1) of the Criminal Code for the appointment of government-funded counsel for his appeal.

The Crown conceded that the appeal was sufficiently complex to warrant counsel but opposed the application on the basis that the applicant had not exhausted his Legal Aid remedies or been transparent about his finances.

The Court of Appeal found that while the applicant lacked candour regarding his historical finances, his current financial situation demonstrated he had no assets or other sources of funding.

The application was granted and counsel was appointed.

The appellant appealed a motion judge's order transferring his damages claim to the Small Claims Court and striking his claim for declaratory relief regarding professional misconduct.

The Court of Appeal dismissed the appeal, finding no error in the transfer as the damages claimed were within the Small Claims Court's jurisdiction.

The Court also upheld the striking of the declaratory relief claim, noting that allegations of professional misconduct are properly matters for the Law Society.

The appellants appealed the dismissal of their solicitor negligence action, arguing the trial judge failed to consider the solicitor's duty to warn about the consequences of signing a mortgage discharge.

The Court of Appeal dismissed the appeal, noting that at trial, the appellants claimed they never met the solicitor, and their counsel conceded the action would fail if the trial judge found they had indeed signed the documents.

Because the trial judge accepted the solicitor's evidence that the meeting occurred, the duty to warn was not a live issue.

The applicant was convicted of sexual assault and sentenced to eight months' imprisonment.

His summary conviction appeal was dismissed as abandoned after he failed to perfect it, and a subsequent application to re-open the appeal was denied.

The applicant sought leave to appeal to the Court of Appeal and to introduce fresh evidence regarding a surveillance video and a deportation order resulting from his sentence.

The Court of Appeal found it had jurisdiction under s. 839 of the Criminal Code, admitted the fresh evidence regarding the deportation order, and allowed the appeal in part, permitting the applicant to re-open his summary conviction appeal as it relates to sentence only.

The appellant appealed his convictions for impaired operation of a motor vehicle causing death and driving while disqualified following a fatal snowmobile accident.

The sole issue at trial was the identity of the driver.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's treatment of the appellant's statements, application of the burden of proof, or admission of reply evidence.

The respondents brought a motion to quash an appeal from a trial judge's order declaring a mistrial and discharging the jury.

The appellant argued the order was final because it went to the jurisdiction of the court.

The Court of Appeal held that the trial court did not lose jurisdiction but expressly retained it, making the mistrial declaration an interlocutory order.

The motion to quash the appeal was granted.

The appellant was convicted of aggravated assault following a bar fight where the complainant was stabbed.

The appellant admitted to being present and involved in the fight but denied stabbing the complainant.

The conviction relied heavily on the complainant's eyewitness testimony.

On appeal, the appellant argued the trial judge erred by failing to provide a specific jury instruction on the frailties of eyewitness identification.

The Court of Appeal agreed, finding that the trial judge was obligated to specifically call the jury's attention to the dangers of eyewitness identification, both generally and in the specific circumstances of the case.

The appeal was allowed and a new trial ordered.

The Court of Appeal for Ontario issued a costs endorsement following an appeal and motion for leave to appeal under the Companies' Creditors Arrangement Act.

The court fixed the costs of the appeal and the motion for leave to appeal at $25,000, inclusive of disbursements and taxes, payable by the appellant union to the respondent.

The appellant insurer appealed a decision dismissing its application for a preliminary determination of whether the respondent was involved in an 'accident' under the Statutory Accident Benefits Schedule.

The insurer argued this was a coverage issue that had to be determined by a court before the mandatory dispute resolution scheme under s. 279 of the Insurance Act applied.

The Court of Appeal dismissed the appeal, holding that the s. 279 scheme is a comprehensive alternative dispute resolution process that governs all disputes concerning entitlement to statutory accident benefits, including whether a claimant qualifies as an insured person involved in an accident.

The moving party sought leave to appeal an order of the Divisional Court that dismissed her appeal under Rule 2.1 of the Rules of Civil Procedure.

The Divisional Court had dismissed the appeal because the amount claimed exceeded $50,000, placing it outside its jurisdiction under section 19(1.2) of the Courts of Justice Act.

The Court of Appeal agreed that the Divisional Court lacked jurisdiction and dismissed the motion for leave to appeal under Rule 2.1 as devoid of merit.

The appellant moved for leave to appeal an order of the Divisional Court that dismissed her Judicial Review Application for want of jurisdiction.

The appellant had sought $1,800,000 in damages in her application.

The Court of Appeal agreed that the Divisional Court had no jurisdiction to grant such relief under section 2 of the Judicial Review Procedure Act.

The motion for leave to appeal was dismissed as devoid of merit under Rule 2.1 of the Rules of Civil Procedure.

The appellant appealed his convictions for sexual assault and related offences, as well as his sentence of 13.7 years.

He argued the trial judge erred by prohibiting cross-examination of the complainant regarding a conflict in her evidence about recent sexual activity, and by granting pre-trial custody credit at a 1:1 ratio and apportioning only half of it to the current charges.

The Court of Appeal dismissed the conviction appeal, finding the appellant failed to pursue the mandatory application process under s. 276 of the Criminal Code.

The sentence appeal was also dismissed, as the trial judge's decisions on pre-trial custody credit and apportionment were discretionary and revealed no error in principle.

The appellant appealed his conviction for sexual assault, arguing that the trial judge's reasons were insufficient to justify the conviction.

The Court of Appeal found that the trial judge's reasons, read as a whole and in context, clearly showed that he accepted the complainant's evidence of forced sexual intercourse and lack of consent.

The appeal was dismissed, as the reasons were sufficient to allow the appellant to understand his conviction and to permit meaningful appellate review.

The appellant was convicted of theft under $5,000 and possession of property obtained by crime after a stolen vehicle was found abandoned with a balaclava inside containing his DNA.

The trial judge relied on the DNA evidence and the proximity of the theft to other crimes the appellant was acquitted of.

On appeal, the Court of Appeal found the verdict unreasonable, as the DNA evidence only proved the appellant wore the balaclava at some point, not that he possessed it during the theft.

The appeal was allowed, the convictions were quashed, and an acquittal was entered.

The appellant landlord appealed an order granting the respondent tenant relief from forfeiture of a commercial sublease.

The appellant had issued notices of termination alleging the tenant permitted stolen hardwood flooring to be stored on the premises, constituting criminal activity.

The application judge found no admissible evidence of criminal activity by the tenant and granted relief from forfeiture for a minor breach regarding storage by a related company.

The Court of Appeal dismissed the appeal and a motion to admit fresh evidence, finding no palpable or overriding error in the application judge's assessment of the evidence.

The applicant sought leave to appeal a summary conviction appeal court judge's decision dismissing his application to reopen his appeal and extend the time to file a notice of appeal.

The Court of Appeal first determined it had jurisdiction under section 839(1) of the Criminal Code to hear an appeal from a decision refusing to extend time or reopen an appeal.

However, the Court dismissed the application for leave to appeal, finding that despite the lower court applying the test for an extension of time rather than reopening an appeal, there was no injustice.

The applicant had delayed five years without reasonable explanation, and there was no merit to the proposed appeal from his convictions for assault with intent to resist arrest and carrying a concealed weapon.

The appellant appealed from two orders: one striking his statement of claim for disclosing no reasonable cause of action, and another declaring him a vexatious litigant.

The Court of Appeal dismissed both appeals, finding that the statement of claim lacked factual underpinnings and that the appellant's history of numerous lawsuits supported the vexatious litigant declaration.

Costs of $7,000 were awarded to the respondents.

The applicant, convicted of sexual assault, applied under s. 684 of the Criminal Code for the appointment of counsel for his appeal after being denied Legal Aid on financial grounds.

A previous application was denied based on his girlfriend's income, but new evidence clarified she could not assist him.

The Court of Appeal granted the application, finding the applicant lacked sufficient means, had an arguable case regarding the trial judge's credibility findings, and could not effectively present the nuanced legal issues without counsel.

The moving party, a chiropractor, sought an extension of time to file a notice of motion for leave to appeal a Divisional Court decision that upheld findings of professional misconduct and a costs award against him.

The Court of Appeal applied the test for extending time, focusing on the merits of the proposed appeal.

Finding that the proposed appeals regarding costs, liability, and penalty lacked merit and did not raise an arguable question of law or matter of public importance, the court dismissed the motion for an extension of time.