OCA 2016

The appellants, the biological parents of a child, appealed a Superior Court decision that upheld a trial judge's order making the child a Crown ward with no access.

The Court of Appeal dismissed the appeal, finding no procedural unfairness, bias, or palpable and overriding error in the lower courts' decisions.

The Court emphasized the child's need for permanency and stability after being in the care of the respondent for over five years, concluding that the child should be placed for adoption without further delay.

The bankrupt brought a motion to quash the trustee's appeal from the dismissal of a contempt motion, arguing the order was interlocutory and should be appealed to the Divisional Court.

The Court of Appeal dismissed the motion to quash, finding that under s. 193 of the Bankruptcy and Insolvency Act, an appeal from an order of a bankruptcy judge lies to the Court of Appeal regardless of whether it is final or interlocutory.

The Court also granted leave to appeal under s. 193(e) if required, given the serious allegations and issues of general importance to bankruptcy practice.

The appellant appealed an order retroactively reducing the respondent's child and spousal support obligations.

The Court of Appeal upheld the motion judge's finding that the respondent's job loss and subsequent re-employment at a lower salary constituted a material change in circumstances.

However, the Court allowed the appeal in part, finding that the motion judge erred by retroactively varying support without conducting the proper legal analysis under the D.B.S. framework.

The matter was remitted to the motion judge to determine whether retroactive change is warranted, the date of retroactivity, and the quantum of support.

The appellant appealed the dismissal of her motion to remove the respondent as estate trustee of their father's wills pending litigation over the wills' validity.

The appellant challenged the wills, which left the bulk of the multi-million dollar estate to the respondent, citing lack of testamentary capacity, undue influence, and the respondent's conflict of interest in intermingling the family business with his own company.

The Court of Appeal allowed the appeal, finding the motion judge erred by prematurely deciding the ultimate issue of testamentary capacity and by ignoring the respondent's significant conflicts of interest.

The respondent was removed as trustee pending the litigation, and an independent trustee was appointed.

The appellant sued the respondent for business losses allegedly caused when the respondent damaged a telephone cable, interrupting the appellant's phone service.

The trial judge dismissed the claim, entirely rejecting the evidence of the appellant's owner on credibility grounds.

On appeal, the appellant sought to introduce fresh evidence to explain document discrepancies and argued the trial judge's interventions during testimony rendered the trial unfair.

The Court of Appeal dismissed the appeal, finding that while some of the trial judge's questioning was improper, it did not compromise the overall fairness of the trial, and the fresh evidence would not have altered the trial judge's strong adverse credibility findings.

The appellant appealed his convictions for two counts of possession of cocaine for the purpose of trafficking.

He argued the convictions were unreasonable because no cocaine was seized during the transactions and the substance could have been methamphetamine.

He also argued the trial judge erred by admitting intercepted communications without a Carter ruling.

The Court of Appeal dismissed the appeal, finding that the circumstantial evidence, including intercepted communications, police surveillance, and physical evidence found upon arrest, overwhelmingly established the substance was cocaine.

Although the trial judge erred in failing to make a Carter ruling, the error was harmless given the strength of the other evidence.

The appellant was convicted of sexual offences against his step-daughter.

He appealed his convictions, arguing the trial judge erred by allowing the Crown to re-examine the complainant on his prior discreditable conduct, admitting a police officer's lay opinion evidence regarding the mother's demeanour upon learning of the allegations, and giving an unbalanced corrective instruction regarding defence counsel's closing submissions.

The Court of Appeal dismissed the appeal, finding the trial judge properly varied his ruling on discreditable conduct after defence cross-examination created a distorted view of the appellant's character.

The Court also held that the demeanour evidence was admissible lay opinion, and any error in admitting the officer's opinion that the reaction was 'odd' was cured by the trial judge's jury instructions.

The appellant was convicted of conspiracy to export ecstasy into the United States and sentenced to six years' imprisonment.

He appealed both the conviction and sentence.

The appellant argued that the trial judge erred in assessing the credibility and corroboration of a co-conspirator who testified for the Crown after receiving a reduced sentence in the U.S. The Court of Appeal found no error in the trial judge's assessment of the evidence, including recorded phone calls that demonstrated the appellant's involvement.

The court also upheld the six-year sentence, noting the large quantity of drugs and the appellant's use of a courier to take the cross-border risk.

The appeals were dismissed.

The appellant appealed a finding of civil contempt and a 30-day jail sentence for failing to comply with a default judgment requiring him to provide an accounting and produce financial documents.

The appellant argued the motion judge failed to articulate the test for contempt, erred in ordering production of documents from a Crown disclosure brief, and violated principles of fundamental justice.

The Court of Appeal dismissed the appeal, finding the motion judge correctly applied the test for contempt beyond a reasonable doubt, properly rejected the appellant's excuse regarding the Crown brief, and afforded the appellant procedural fairness.

The appellant pleaded guilty to break and enter and breach of probation, receiving an eight-month sentence based on a joint submission.

Four months later, an amendment to the Immigration and Refugee Protection Act came into force retrospectively, rendering him inadmissible to Canada for serious criminality with no right of appeal due to the sentence length.

The appellant sought to reduce his sentence to five and a half months to preserve his right of appeal against deportation.

The Court of Appeal allowed the appeal, finding that the reduced sentence remained proportionate to the gravity of the offence and the offender's circumstances.

The appellants appealed an order dismissing their motion to find the respondent in civil contempt for failing to comply with multiple court orders requiring financial disclosure and an accounting in aid of execution of a $3.5 million judgment.

The Court of Appeal allowed the appeal, finding that the motion judge failed to properly apply the three-part test for civil contempt from Carey v. Laiken, erred by treating the self-represented respondent's unsworn oral submissions as evidence without allowing cross-examination, and erred by discharging the respondent from his obligations under prior orders without such relief being requested.

The matter was remitted to the Superior Court for determination by a different judge.

The appellant appealed a trial judgment dismissing his personal injury action following a motor vehicle accident.

The trial judge had found the appellant failed to prove his injuries or causation, making it unnecessary to determine the statutory threshold under the Insurance Act.

The Court of Appeal raised the issue of jurisdiction on its own motion and concluded that, because the judgment contained no declaratory relief regarding the threshold, the appeal and cross-appeal properly lay to the Divisional Court under s. 19(1.2) of the Courts of Justice Act.

The proceedings were transferred accordingly.

The appellants brought a motion to raise new issues on appeal regarding the eligibility of a juror who was a former auxiliary police officer.

They sought to argue that the juror was ineligible under the Juries Act and, alternatively, under the Charter.

The Court of Appeal permitted the appellants to advance the statutory interpretation argument but denied permission to advance the Charter argument, with full reasons to follow in the appeal judgment.

The appellant appealed the dismissal of his motion for an order to allow the late filing of his statement of claim regarding the sale of allegedly defective dairy cows.

The appellant failed to file the statement of claim within the 30-day deadline after issuing a notice of action.

The Court of Appeal upheld the motion judge's decision, finding no error in the conclusion that the appellant's explanation for the delay lacked necessary detail and that the respondent suffered prejudice due to the expiry of the limitation period.

The appeal was dismissed.

The appellant appealed the dismissal of his claims for a beneficial interest in the family home or equitable damages for services rendered to his mother, as well as the dismissal of his application to revoke his sister's power of attorney.

The Court of Appeal allowed the appeal in part, finding the trial judge erred in allocating the burden of proof for unjust enrichment by requiring the appellant to prove a 'net benefit'.

Applying the correct framework from Kerr v. Baranow, the Court awarded the appellant $438,113 in equitable damages for domestic services.

The Court also admitted the trial judge's findings of undue influence as fresh evidence and revoked the sister's power of attorney.

The appellant was convicted of possession of cocaine for the purpose of trafficking and breach of recognizance after police found him with crack cocaine in a bathroom of an apartment.

He appealed the convictions, arguing that the police violated his Charter rights under sections 8, 9, 10(a), and 10(b) by unlawfully entering the apartment and detaining him.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the appellant lacked standing to assert a section 8 claim as he had no reasonable expectation of privacy in the apartment, and that his brief detention and subsequent arrest did not violate his section 9 or 10 rights.

The appellant was a passenger in a vehicle stopped by police following a 911 call reporting two men with handguns.

The police conducted a high-risk takedown and arrested the appellant.

A search incident to arrest revealed marijuana and cash, and a subsequent strip search at the station revealed cocaine.

The appellant was convicted of possession of cocaine for the purpose of trafficking.

On appeal, he argued the police lacked objectively reasonable and probable grounds for the arrest, rendering the search unlawful under sections 8 and 9 of the Charter.

The Court of Appeal dismissed the appeal, finding the police had objectively reasonable and probable grounds to arrest based on the detailed and corroborated information from the 911 callers.

The appellant brought a motion for reconsideration to re-open his appeal, arguing that the court's reasons disclosed a misapprehension of material evidence.

The Court of Appeal dismissed the motion, finding that the appellant's reliance on Rule 59.06 was misplaced as no order had yet been taken out.

The court held that the appellant failed to demonstrate the rare circumstances required to re-open an appeal prior to the entering of an order, noting that his arguments had already been considered and rejected, and his proper recourse was his pending application for leave to appeal to the Supreme Court of Canada.

The moving party, a self-represented litigant, brought a motion to vary an order of a single judge of the Court of Appeal.

The single judge had declined to direct the issuance of a notice of appeal, grant a declaration regarding a previous order, and consolidate appeals.

The Court of Appeal dismissed the motion to vary, finding that the moving party failed to identify any sustainable legal basis to interfere with the order and had brought the motion without leave, contrary to a previous order.

The appellant appealed the dismissal of his application for a declaration that a laneway on his property was private and not a public highway.

The municipality asserted the laneway was built on an existing public road to which it held title.

The Court of Appeal found no palpable and overriding error in the application judge's assessment of the survey and historical evidence, which established that the road had been dedicated and accepted as a public highway.

The appeal was dismissed.