OCA 2016

The Ontario Electricity Financial Corporation (OEFC) brought a motion to stay portions of judgments requiring it to pay approximately $160 million in retroactive payments to several non-utility generators, pending its application for leave to appeal to the Supreme Court of Canada.

The Court of Appeal dismissed the motion, finding that OEFC failed to establish a serious issue to be adjudicated, as the proposed appeal issues were highly fact-specific and lacked precedential value.

Furthermore, OEFC failed to demonstrate that it would suffer irreparable harm if the stay was not granted.

The appellants appealed their convictions for second degree murder and obstruction of justice.

The primary grounds of appeal related to the reasonableness of the verdict, the trial judge's refusal to admit third-party suspect evidence, jury instructions on out-of-court statements and identification evidence, and alleged Crown misconduct during cross-examination and closing addresses.

The Court of Appeal found that while the Crown's conduct fell below the expected standard of propriety, the trial judge's strong corrective instructions were sufficient to cure the damage and preserve the right to a fair trial.

The appeal was dismissed.

The appellant appealed his conviction for first degree murder in the killing of a taxicab driver.

He argued that the trial judge erred in her instructions on the use of his police statements and post-offence conduct, and that the Crown's cross-examination was improper.

He also alleged ineffective assistance of trial counsel for failing to lead evidence of a 'family conspiracy' by his co-accuseds' family to frame him.

The Court of Appeal dismissed the appeal, finding no errors in the trial judge's instructions or the Crown's cross-examination, and concluding that trial counsel's tactical decisions were sound and did not constitute ineffective assistance.

The moving party sought an order permitting the late filing of a notice of appeal from a motion judge's dismissal of its summary judgment motion.

The summary judgment motion had been based on a limitation period defence.

The Court of Appeal determined that the motion judge's dismissal was an interlocutory order, not a final order, because the formal order did not reflect a binding determination on the limitation period and the matter was sent to trial.

Consequently, the Court of Appeal lacked jurisdiction to hear the appeal, and the motion for late filing was dismissed.

The moving party, an outdoor recreational alliance, sought leave to appeal its convictions under the Public Lands Act and the Fish and Wildlife Conservation Act arising from a public protest where members cleared a decommissioned road on Crown land.

The Court of Appeal dismissed the motion for leave to appeal, finding that the proposed grounds of appeal did not raise questions of law alone, nor were they essential in the public interest or for the due administration of justice as required by section 131 of the Provincial Offences Act.

The appellant was convicted of regulatory offences under the Food and Drugs Act for selling BZP, a recreational substance similar to an amphetamine.

On appeal, he argued that BZP did not fall under the definition of 'drug' because the Act was not intended to apply to recreational substances.

The Court of Appeal dismissed the appeal, holding that the modern principle of statutory interpretation supports an inclusive definition of 'drug' that encompasses substances modifying organic functions, regardless of whether they are intended for medicinal, therapeutic, or recreational use.

The court also declined to hear a new constitutional challenge to the definition and upheld the finding that the appellant illegally advertised BZP as a preventative for addiction.

The appellants appealed an order voiding transfers of funds used to purchase two condominiums, which were found to be fraudulent conveyances intended to defeat the respondent's claims for spousal and child support arrears.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's application of the badges of fraud to shift the evidential burden, nor in his assessment of fraudulent intent at the time of the transactions.

A motion to introduce fresh evidence was also dismissed for failing to meet the Palmer test.

This appeal concerned a priority dispute between insurers over statutory accident benefits payable after a motor vehicle accident, turning on whether the injured claimants were principally dependent for financial support on the named insured at the time of the accident.

The court held that appeals from insurance arbitrations are governed by the administrative law framework, and that the applicable standard of review was reasonableness rather than correctness.

Applying that standard, the court found the arbitrator's decision unreasonable because it imposed an impermissible permanence requirement on a recent relationship, adopted a categorical approach inconsistent with the dependency jurisprudence, and relied on speculation rather than the evidentiary record.

The appeal was dismissed and the respondent insurer remained entitled to have the arbitrator's award set aside.

Following the release of the court's reasons on appeal, the parties agreed on the costs of the application.

The Court of Appeal ordered costs of the application to the appellants in the agreed amount of $35,000, inclusive of disbursements and HST.

The Court of Appeal issued a costs endorsement following a successful appeal by the appellant municipality.

Based on the agreement of the parties, the court awarded the appellant $8,000 for the costs of the appeal.

The court also awarded the appellant $50,000 for the costs of the underlying application, as submitted by the respondents.

The appellant, a police officer convicted of attempted murder, applied for release from custody pending his appeal.

The Crown conceded the appeal was not frivolous and the appellant would surrender into custody, but argued his detention was necessary in the public interest.

The Court of Appeal granted the application, finding that the merits of the appeal regarding inconsistent verdicts shifted the balance in favour of reviewability, and that a fully informed public would not find his release contrary to the public interest.

The appellant challenged a family law judgment respecting custody, access, equalization, and treatment of a third party's interest in the matrimonial home.

The Court of Appeal applied the deferential standard governing custody determinations and upheld the finding that the children's primary residence should remain with the respondent notwithstanding an earlier Office of the Children’s Lawyer recommendation favouring the appellant.

The court also held that property entitlements must be determined before equalization, and because the respondent's mother was on title and was not made a party, no order could affect her asserted 50% ownership interest.

The deduction of additional amounts advanced by the mother as loans from the respondent's net family property was likewise upheld on the evidentiary record.

The appeal was dismissed with fixed costs to the respondent.

The appellant father appealed the dismissal of his motion to vary a final custody order to implement a week-about residential schedule.

The trial judge found no material change in circumstances since the order was made.

On appeal, the father argued the mother's concession of one extra day of access constituted an acknowledgment of a material change, and that his changed employment circumstances warranted a variation.

The Court of Appeal dismissed the appeal, holding that the mother's concession was contemplated by the original order and did not constitute a material change, and found no error in the trial judge's assessment of the father's employment changes.

The mother's motion to adduce fresh evidence was also denied.

The plaintiff brought a motion to dismiss the Registrar's orders dismissing his previous motions for delay.

The defendant brought a cross-motion to refer the proceeding to a panel of the Court of Appeal for a determination under Rule 2.1 of the Rules of Civil Procedure that the proceeding is frivolous, vexatious, and an abuse of process, and to stay the plaintiff's motions pending that determination.

The court granted the cross-motion, finding that the plaintiff's repeated motions appeared to be frivolous, vexatious, and an abuse of process, and stayed the plaintiff's motions pending the panel's determination.

The applicant, a member of the Ontario College of Teachers, was found to have committed professional misconduct.

After his appeal to the Divisional Court was dismissed, he failed to seek leave to appeal to the Court of Appeal in time.

His motion for an extension of time was dismissed, and his subsequent motion to review that decision was dismissed by the Registrar for failure to file documents.

The applicant brought a motion to restore his review motion.

The Court of Appeal dismissed the motion, finding no prospect of success, a pattern of delay, and no merit in the underlying proposed appeal.

The moving party sought to lift a stay of proceedings previously granted by the Court of Appeal on the basis of forum non conveniens.

Following the stay, the moving party's attempt to pursue a class action in the United States for pre-explosion misrepresentations was dismissed on procedural grounds, and the responding party conceded the claim was governed by Ontario law.

The Court of Appeal found these new developments constituted facts arising after the order that justified lifting the stay to avoid an injustice, allowing the moving party to proceed with the claim in Ontario.

The appellants, an engineering firm and its principal, appealed a trial judgment apportioning liability for damages between them and their insurers.

The trial judge found the appellants liable in negligence and breach of contract for errors and delays in engineering drawings for a construction project.

The trial judge apportioned 45% of the damages to the appellants and 55% to the insurers, based on an exclusion clause for delay.

The Court of Appeal allowed the appeal, finding that all delays were caused by the appellants' negligence in having to correct errors, which was covered under the policy.

The insurers' cross-appeal regarding the assessment of damages and the date used for foreign currency conversion was dismissed.

The appellant and her boyfriend were charged jointly with importing cocaine after returning from St. Lucia with drugs hidden in their luggage.

The boyfriend pled guilty to importing the cocaine found in his bag.

At trial, the appellant claimed she was a blind courier set up by her boyfriend, and sought to introduce evidence of his guilty plea and its underlying facts.

The trial judge excluded the evidence as hearsay.

The Court of Appeal allowed the appeal and ordered a new trial, holding that while the facts underlying the plea were inadmissible hearsay, the fact of the guilty plea itself, as recorded on the indictment, was admissible under the public documents exception and necessary for the appellant to make full answer and defence.

The appellant was observed street racing and subsequently abandoned his vehicle in a stranger's driveway.

Police detained the appellant, conducted a pat-down search for officer safety, and discovered the vehicle's keys.

The appellant was arrested for careless driving and outstanding warrants.

Police impounded the vehicle as apparently abandoned under s. 221(1) of the Highway Traffic Act and conducted an inventory search, discovering a loaded handgun.

The trial judge found Charter breaches under s. 10 but admitted the handgun under s. 24(2).

The Court of Appeal upheld the convictions and the sentence of seven years' imprisonment, finding the searches lawful and the sentence fit.

The appellant was observed acting suspiciously at a gas station and fled on foot when approached by police, leaving his unlocked vehicle behind.

Police searched the vehicle without a warrant, finding a Taser and a handgun.

The trial judge admitted the evidence, finding the search was authorized as an inventory search of an abandoned vehicle under the Highway Traffic Act.

On appeal, the Court of Appeal found the vehicle was not 'apparently abandoned' and the search violated section 8 of the Charter.

Applying the Grant framework, the Court concluded the admission of the evidence would bring the administration of justice into disrepute.

The evidence was excluded and acquittals were entered.