OCA 2016

The appellant appealed his conviction and sentence but died prior to the release of the decision.

The Court of Appeal considered whether to exercise its discretion to hear the appeal despite the general rule of abatement upon death.

Finding no issue of general importance or special circumstances, the court held that the appeal abated and dismissed it.

The appellant mother appealed a Superior Court decision that dismissed her appeal of a summary judgment order granting Crown wardship of her two children with no access.

The mother alleged ineffective assistance of counsel on the summary judgment motion and sought to introduce fresh evidence.

The Court of Appeal found no error in the appeal judge's conclusion that motion counsel performed competently and followed instructions.

The Court also denied the admission of fresh evidence, noting it was an attempt to re-litigate the case and would not have changed the outcome.

The appeal was dismissed, upholding the Crown wardship order.

The appellant appealed a trial judgment finding it breached an oral contract to pay a 5% commission on balloon sales to a retail chain.

The appellant argued the trial judge made palpable and overriding errors in fact-finding and improperly relied on discovery evidence.

The Court of Appeal dismissed the appeal, finding the trial judge's conclusions were amply supported by the record and the improper admission of discovery evidence caused no substantial wrong.

The respondent's cross-appeal regarding a pre-trial costs order was allowed, as the trial judge lacked authority to alter the motion judge's order.

The appellant appealed his convictions and six-year sentence for historical sexual offences.

He argued the trial judge failed to resolve an inconsistency between the complainant's prior statement and her trial testimony regarding whether her mother and brother entered the room during the assaults.

The Court of Appeal dismissed the conviction appeal, finding the inconsistency did not detract from the overall claim of repeated sexual misconduct and the trial judge's reasons were sufficient.

The sentence appeal was also dismissed as the sentence was proportional to the gravity of the offences.

The appellant appealed a trial judgment finding she was unjustly enriched by receiving a $200,000 share of a winning lottery ticket.

The respondent, a former employee, had contributed to the ticket before leaving his job, while the appellant joined the workplace lottery pool after the ticket was purchased.

The Court of Appeal upheld the trial judge's finding that the ticket was co-owned by the original contributors and rejected the appellant's argument that the pool constituted an ongoing partnership under the Partnerships Act.

The appeal was dismissed.

The appellant electrical contractor appealed trial judgments finding it breached sub-contracts for integrated security systems at two correctional facilities by refusing to perform disputed wiring and termination work.

The Court of Appeal upheld the trial judge's findings on the scope of work and mitigation of damages, dismissing the corporate appellant's appeals.

However, the Court allowed the individual appellant's appeal, setting aside his personal liability for breach of trust under s. 13(1) of the Construction Lien Act, finding insufficient evidence that he assented to or acquiesced in conduct amounting to a breach of trust.

The appellant commenced construction lien and breach of trust actions that were dismissed for delay at a status hearing after more than 13 years.

The appellant moved to set aside the dismissal, arguing its former counsel had misled it about the progress of the actions.

The motion judge dismissed the motion, finding the appellant failed to provide an acceptable explanation for the delay.

The Court of Appeal upheld the decision, confirming that a commercial plaintiff has an obligation to supervise its counsel and move its actions forward expeditiously.

The appellant was convicted of sexual offences against a complainant who was between 13 and 19 years old at the time.

The appellant, who was in a position of trust, appealed the conviction and the sentence of 7 years' imprisonment.

On appeal, he argued the trial judge erred in applying the W.(D.) principles and improperly treated the case as a credibility contest.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's credibility assessment or application of legal principles.

The sentence appeal was also dismissed as the sentence was fit and within the appropriate range.

The appellant appealed his convictions for assault and breach of probation arising from a domestic dispute.

At trial, the judge erroneously excluded exculpatory statements made by the appellant to a police officer.

The Crown conceded the error but argued the curative proviso should apply.

The Court of Appeal held that the error was not harmless or trivial, as the convictions relied heavily on the complainant's credibility, which was contested.

The curative proviso could not be applied, and the convictions were quashed.

Following a successful appeal, the Court of Appeal for Ontario determined the quantum of costs.

The appellant was awarded agreed-upon costs of $12,860.70 for the original motion and $20,000 for the appeal, inclusive of disbursements and taxes.

The respondent's dog bit four people, prompting the appellant medical health officer to issue an order requiring the dog to be euthanized.

After breaching an interim consent order that allowed him to keep the dog pending appeal, the respondent's appeal was dismissed and he was ordered to surrender the dog.

Instead, he sent the dog to the United States.

The appellant brought a motion for contempt, which the motion judge dismissed on the technicality that the respondent was asked to surrender the dog to the SPCA rather than the Humane Society as specified in the order.

The Court of Appeal allowed the appeal, finding it had jurisdiction because the dismissal of the contempt motion was a final order.

The Court held the motion judge erred by adopting a formalistic approach, as the respondent clearly breached the spirit and intent of the euthanasia order.

The plaintiff was injured when she fell off an elevated dance floor at a nightclub.

She sued the nightclub, but later learned during discoveries that the landlord may have been involved in renovating the dance floor.

She subsequently sued the landlord, who moved for summary judgment arguing the claim was statute-barred.

The motion judge found the claim was not discoverable until the discovery of the nightclub's representative.

The Court of Appeal dismissed the landlord's appeal, finding no error in the motion judge's conclusion that the plaintiff had not shown a lack of diligence in investigating the claim.

The appellants entered into an agreement with the respondent to build and operate a car dealership.

The respondent terminated the agreement after the appellants failed to meet construction deadlines.

The trial judge found the termination was unreasonable but held that an exclusion clause protected the respondent from liability for damages.

On appeal, the appellants argued the exclusion clause should not apply to an unreasonable termination.

The Court of Appeal dismissed the appeal, finding the trial judge's interpretation of the broadly worded exclusion clause was reasonable and not tainted by palpable and overriding error.

The appellant appealed his conviction for fraud, arguing that the Crown failed to establish the actus reus because the alleged victim, Legal Aid Ontario, did not rely on the fraudulent conduct.

The Court of Appeal dismissed the appeal, applying the principle from R. v. Riesberry that proof of fraud does not always require showing reliance or inducement, provided there is a sufficient causal connection between the fraudulent act and the victim's risk of deprivation.

The appellant was arrested for drug trafficking and subjected to a 'bedpan vigil' search authorized by a general warrant.

He was detained for 43 hours, handcuffed to cell bars, and experienced severe withdrawal symptoms without medical supervision.

The Court of Appeal held that while a general warrant can authorize a bedpan vigil search, the warrant was defective because it purported to authorize indefinite detention, violating the requirement to bring an arrested person before a justice without unreasonable delay.

The court also found the search was conducted in an unreasonable manner, violating the appellant's Charter rights.

The evidence was excluded under s. 24(2) of the Charter, the convictions were set aside, and an acquittal was ordered.

On a civil appeal arising from historic sexual and physical abuse allegations based largely on recovered memories, the court held that the trial judge erred by using expert psychological evidence to corroborate the truth of the respondent's allegations and resolve a credibility contest.

Expert evidence could explain memory processes and damages, but could not be used to decide the ultimate issues of credibility, reliability, and liability.

The court therefore set aside the judgment, dismissed the assault claim, and held that a new trial was unnecessary because the admissible evidence was evenly balanced.

The court also allowed the appellant's defamation counterclaim in part, finding that qualified privilege did not protect defamatory communications sent to a former friend who had no reciprocal interest or duty to receive them.

The appellant, a 43-year-old Aboriginal man, appealed his sentence of two years less a day followed by two years' probation for possession for the purpose of trafficking in heroin and oxycodone.

The appellant argued for a reduction based on pre-trial custody credit.

The Court of Appeal found no error in principle, noting the offences involved commercial trafficking in Schedule 1 drugs by an addict to support his habit.

The appeal was dismissed, with the court reiterating the trial judge's recommendation that the sentence be served at the Ontario Correctional Institute.

The appellant appealed his conviction for counseling perjury and attempting to obstruct justice.

He argued the trial judge failed to provide adequate assistance while he was self-represented and erred by refusing to discharge his counsel after a breakdown in the solicitor-client relationship.

The Court of Appeal found the trial judge provided reasonable assistance but erred in forcing counsel on the unwilling appellant.

This error prevented the appellant's main defence theory from being advanced in closing submissions, resulting in an unfair trial.

The appeal was allowed, the conviction set aside, and a new trial ordered.

The appellant appealed his convictions for criminal harassment and assault, and sought leave to appeal his sentence of three years' imprisonment.

The conviction appeal was dismissed.

The appellant, who suffers from Asperger's Syndrome, had a lengthy criminal record but had never previously received a penitentiary sentence.

The Court of Appeal found that the three-year sentence offended the proportionality principle and the "step" principle.

The court granted leave to appeal the sentence, allowed the appeal, and substituted a sentence of time served plus one day, as the appellant had already served over 27 months.

The appellants, two brothers, were involved in an altercation at a cottage party.

Jordan punched the victim in the eye, causing permanent blindness, and Ryan subsequently kicked and punched the victim while he was on the ground.

Jordan was convicted of aggravated assault and sentenced to 21 months' imprisonment, while Ryan was convicted of the included offence of common assault and received a suspended sentence.

On appeal, the Court of Appeal dismissed both conviction appeals, finding that the trial judge reasonably rejected Jordan's self-defence claim and correctly treated Ryan's assault as part of the same transaction.

However, the Court allowed Jordan's sentence appeal, reducing his sentence to nine months' incarceration because the trial judge failed to apply the restraint principle for young first offenders.