OCA 2016

The appellant was convicted of sexual assault after having intercourse with a sleeping woman.

He appealed his conviction, arguing the trial judge erred in rejecting the defence of consent, failing to consider the defence of honest but mistaken belief in consent, and admitting text messages into evidence.

He also appealed his 15-month sentence, introducing fresh evidence that he faced deportation as a permanent resident.

The Court of Appeal dismissed the conviction appeal, finding no air of reality to the mistaken belief defence as the victim was asleep.

The sentence appeal was also dismissed, as a sentence of less than six months to avoid deportation would be manifestly unfit for the offence.

The applicant sought leave to appeal her convictions and sentences for driving without insurance and surrendering false evidence of insurance.

She had been convicted at an ex parte trial and fined $12,500, which she argued she could not afford.

The Court of Appeal dismissed the motion for leave to appeal the convictions, finding no viable due diligence defence.

However, the Court granted leave to appeal the sentence, noting the appeal judge failed to inquire into the applicant's financial circumstances or consider relief from the mandatory minimum fines under s. 59(2) of the Provincial Offences Act.

The accused, a political worker during the 2011 federal election, was convicted under the Canada Elections Act for his role in a 'robo-calls' scheme that directed voters to false polling stations.

He was sentenced to nine months' incarceration and 12 months' probation.

Both the accused and the Crown appealed the sentence.

The Court of Appeal dismissed both appeals, finding that the sentencing judge properly balanced the mitigating factors of the youthful first-time offender with the need for denunciation and deterrence for an unprecedented electoral fraud offence.

The Court declined the Crown's request to establish a sentencing range of two to five years for electoral fraud.

The appellants appealed an order dismissing their motion to strike an individual Crown Attorney as a defendant in an action alleging prosecutorial misconduct.

The Court of Appeal allowed the appeal, holding that section 8 of the Ministry of the Attorney General Act grants individual Crown Attorneys immunity from being named personally in such actions, substituting the Attorney General as the proper defendant.

The motion judge erred in relying on case law that predated the enactment of section 8 in 2009.

The appellant sought leave to appeal his conviction for driving over 80, arguing that a 13-minute delay in obtaining an alcohol screening device violated his right to counsel and that the failure to use a N.I.S.T. thermometer raised a reasonable doubt about the breath test results.

The Court of Appeal dismissed the application for leave to appeal, finding that the proposed grounds of appeal were case-specific, did not raise questions of general importance to the administration of justice, and lacked strong merit.

The appellant was convicted of second degree murder and four counts of aggravated assault after firing a semi-automatic weapon outside a bar, killing an innocent bystander.

He was sentenced to life imprisonment with parole eligibility set at 22 years.

On appeal, he challenged his convictions based on alleged errors in the jury charge regarding witness credibility, oath-helping, post-offence conduct, and eyewitness identification.

He also appealed his sentence, arguing the trial judge failed to adequately consider his circumstances as an Aboriginal offender and the jury's recommendations.

The Court of Appeal dismissed the appeal, finding no errors in the jury instructions and concluding the 22-year parole ineligibility period was fit given the egregious circumstances of the offence and the appellant's background.

The moving party, Dr. Chandra, sought an extension of time to file a notice of appeal from a jury verdict dismissing his $130 million libel and invasion of privacy action against the CBC.

The jury had found that the defamatory broadcast alleging scientific fraud was true.

The Court of Appeal denied the extension, finding that the moving party failed to form a timely intention to appeal, provided no satisfactory explanation for the delay, and that the proposed appeal lacked merit.

The court also noted the moving party's lack of candour and attempts to encumber his only Ontario asset, concluding that the justice of the case required dismissing the motion.

The appellant appealed her conviction and 18-month sentence for procuring a young person to become a prostitute.

She argued the trial judge erred in instructing the jury that her belief about the complainant's prior involvement in prostitution had to be reasonable, that the verdict was unreasonable, and that the trial judge improperly commented on her failure to testify.

The Court of Appeal found the jury instruction error was harmless, there was sufficient evidence to support the conviction, and the trial judge's comment was not an improper reference.

The sentence appeal was also dismissed, as the trial judge appropriately emphasized deterrence and denunciation.

The appellants were successful on the appeal, cross-appeal, and a motion to admit fresh evidence.

The respondent sought costs despite his lack of success, relying on an indemnity provision in a share purchase agreement triggered 'in the event of default'.

The Court of Appeal rejected this argument, holding that the provision could not be used to indemnify the respondent for unsuccessful appellate proceedings.

Costs of the appeal were awarded to the appellants on a partial indemnity basis fixed at $20,000.

The appellants appealed a trial judge's order regarding the withdrawal of Branch 1-7 from the Polish Alliance of Canada (PAC) and the ownership of branch assets.

The Court of Appeal upheld the finding that the branch's withdrawal was invalid due to insufficient notice and lack of unanimous consent.

However, the Court found the trial judge erred in declaring that the individual appellants had resigned from PAC and were barred from reapplying, holding instead that they remained members in good standing.

The appeal was allowed in part, with the trial judge's order amended accordingly.

The appellant agreed to purchase a commercial property from the respondent for $9 million, subject to a vendor take-back mortgage.

The transaction failed to close after the parties could not agree on the terms of a secondary financing agreement.

The motion judge granted summary judgment to the respondent, allowing it to retain $1.2 million in deposits.

On appeal, the appellant argued the motion judge erred in interpreting the agreement's secondary financing and escrow deed provisions.

The Court of Appeal dismissed the appeal, finding the motion judge's interpretation of the strict terms for secondary financing was commercially reasonable and supported by the record.

The appellant was convicted of arson after a fire was intentionally set in a farmhouse.

The Crown's theory was that the appellant set the fire to avoid admitting she lacked funds to close a property purchase, which would have exposed her double life.

The trial judge accepted this theory and sentenced her to 18 months' imprisonment.

On appeal, the appellant argued the trial judge erred in admitting discreditable conduct evidence, reversed the burden of proof, misapprehended evidence, and erred in denying a conditional sentence.

She also sought to adduce fresh evidence.

The Court of Appeal dismissed the conviction and sentence appeals, finding no errors and concluding the fresh evidence lacked sufficient probative value.

The husband appealed the trial judge's equalization payment and spousal support orders, arguing errors in determining the matrimonial home, denying a tax liability deduction, and calculating support.

The wife cross-appealed the denial of pre-judgment interest, indexing, security for support, and compensatory support, as well as the treatment of mortgage payments on excluded property.

The Court of Appeal dismissed both the appeal and the cross-appeal, finding no errors in the trial judge's factual findings or exercise of discretion, though it amended a review clause on consent.

The appellant, who was found not criminally responsible for assault and suffers from treatment-resistant schizophrenia, appealed a disposition of the Ontario Review Board ordering his continued detention at a maximum security psychiatric facility.

The appellant argued the Board should have conducted its own inquiries or ordered an independent assessment due to a lack of unanimity among his treatment team regarding his placement.

The Court of Appeal dismissed the appeal, finding the Board's decision was reasonable, balanced the appellant's continuing threat to public safety with his liberty interests, and reflected the least onerous and least restrictive disposition.

Following the dismissal of the Crown's appeal from costs ordered against it in forfeiture proceedings under the Controlled Drugs and Substances Act, the respondents sought costs of the appeal.

The Court of Appeal declined to award costs, noting that costs are generally not awarded against the Crown in criminal proceedings absent a Charter infringement, serious Crown misconduct, or exceptional circumstances.

The court found no serious misconduct by the Crown on the appeal itself, and no exceptional circumstances justifying a costs award.

Furthermore, the court noted that section 683 of the Criminal Code precludes a costs award on the appeal.

The appellant appealed convictions for sexual touching and sexual assault involving young complainants subject to a publication ban.

He argued that the trial judge erred in relying on demeanour, in finding that he minimized his opportunity to offend, and in assessing the evidence of both complainants, including one child’s prior statement under s. 715.1 of the Criminal Code.

The court held that demeanour was only one non-dispositive factor in the credibility analysis, that the minimization finding was supported by the record, and that the trial judge’s treatment of the complainants’ evidence disclosed no reversible error.

The appeal was dismissed.

The appellant appealed a summary judgment dismissing his negligence action against the Association of Professional Engineers of Ontario (APEO) regarding the processing of his engineering license application.

The motion judge found that the APEO owed no duty of care, or alternatively, was protected by statutory immunity under s. 45(1) of the Professional Engineers Act absent bad faith.

The Court of Appeal agreed that there was no evidence of bad faith, malice, or abuse of power by the APEO.

The appeal was dismissed with costs.

The plaintiffs commenced an action in Ontario seeking $400 million in damages and served the defendants in Guatemala, a non-Hague Convention state, in accordance with Ontario's Rules of Civil Procedure.

The defendants appealed the validation of service, arguing that Rule 17.05(2) must be interpreted in accordance with customary international law and comity, which would require service to comply with Guatemalan law.

The Court of Appeal dismissed the appeal, holding that service under Rule 17.05(2) does not violate Guatemalan sovereignty or international law, and that the rule provides a clear choice of service methods that rebuts any presumption of conformity with foreign law.

Following a successful appeal, the Court of Appeal determined the appellant's costs for the underlying action.

The court awarded the appellant costs of the underlying action, including summary judgment motions but excluding costs associated with a cross-claim, on a partial indemnity basis in the amount of $65,231.79.

The court declined to make an order regarding additional costs sought by the appellant's shareholders' counsel.

The appellant was convicted of impaired driving and sentenced to a one-year driving prohibition and a $1,200 fine.

He sought leave to appeal the dismissal of his summary conviction appeal, arguing the trial judge and summary conviction appeal judge erred in their allocation of delay periods under the Morin analysis for his s. 11(b) Charter application.

The Court of Appeal denied leave to appeal, finding the summary conviction appeal judge was entitled to review and characterize the reasons for delay, and no clear error of law or question of general significance was raised.