OCA 2016

The Court of Appeal for Ontario appointed amicus curiae to vet ineffective assistance of counsel claims raised by four appellants.

The amicus was directed to assess the specificity of the grounds alleged and determine whether the claims, if established, were capable of constituting ineffective assistance of counsel.

The amicus was ordered to report back to the court by July 11, 2016, to facilitate moving the appeals forward.

The appellant mother appealed an order made following a finding of contempt against her for failing to comply with a child access schedule.

The motion judge had ordered the appellant to purge her contempt by transferring 122 days of access to the respondent father over a two-year period.

The Court of Appeal allowed the appeal and set aside the order, finding that the motion judge failed to adequately consider the best interests of the children when making such a substantial change to the custodial arrangements.

The matter was remitted for a fresh hearing.

The appellant municipality appealed a trial judgment finding it liable under the Occupiers' Liability Act for catastrophic injuries sustained by the respondent at a municipal mountain bike park.

The respondent fell from a wooden obstacle and was rendered quadriplegic.

The trial judge found the municipality breached its duty of care by failing to post proper warning signs, negligently promoting the park, failing to monitor risks, and failing to provide an adequate progression of qualifiers.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's application of the duty of care, standard of care, causation, or assessment of contributory negligence.

The appellant appealed his convictions for assault, uttering death threats, and firearm offences, as well as his nine-year sentence.

He argued the trial judge applied uneven scrutiny to the evidence of the complainant and defence witnesses.

The Court of Appeal dismissed the conviction appeal, finding the trial judge properly assessed the evidence and sought independent confirmation for the complainant's testimony.

The sentence appeal was allowed in part only to correct an error in pre-sentence custody credit, granting enhanced credit at a 1.5:1 ratio, while upholding the overall sentence length.

The appellant, who was found Not Criminally Responsible for breach of recognizance and criminal harassment, appealed the Ontario Review Board's decision to continue his conditional discharge.

He argued the finding that he posed a significant threat to public safety was unreasonable and sought an absolute discharge.

The Court of Appeal dismissed the appeal, finding the Board's decision reasonable and supported by evidence, including the appellant's lack of insight, refusal to take medication, and intended cannabis use, which experts testified would increase his risk of physical aggression.

The appellants appealed a trial judgment declaring the respondent the beneficial owner of a half interest in a family home.

The house was purchased in 1974 with title taken in the names of two adult children, as the mother did not qualify for a mortgage.

The mother paid the deposit, mortgages, and expenses using pooled family resources and rental income.

The trial judge found the mother had no money of her own and rejected her resulting trust claim.

The Court of Appeal allowed the appeal, finding the trial judge made a palpable and overriding error by conflating the mother's money with its source.

The Court held the mother was the sole beneficial owner by way of a purchase money resulting trust.

The appellant, an Aboriginal man adopted by non-Aboriginal parents, pleaded guilty to serious firearms and robbery offences and was sentenced to 13 years' imprisonment.

The sentencing judge declined to consider the appellant's Aboriginal heritage, finding no causal link between his background and the offences.

On appeal, the Court of Appeal held that the sentencing judge erred by requiring a causal connection and failing to consider the intergenerational systemic factors that bore on the appellant's moral blameworthiness.

The Court admitted fresh evidence of the appellant's reconnection with his Aboriginal heritage and reduced the global sentence to nine years.

The appellant appealed a summary judgment dismissing his medical malpractice action against his former family doctor.

The appellant alleged the doctor negligently removed surgical staples from his knee, causing permanent injury.

The Court of Appeal upheld the motion judge's findings that the action was statute-barred, as the appellant knew of the material facts giving rise to the claim more than two years before commencing the action.

The Court also agreed that the claim required expert medical evidence, as it was not one of the clearest of cases where such evidence could be dispensed with.

The appeal was dismissed.

The appellant was convicted of drug and breach charges after police found cocaine during a search.

The initial investigative detention on the street was lawful, but the police subsequently arbitrarily detained the appellant in a cruiser, failed to provide him with his right to counsel, and conducted two unreasonable searches, including a strip search where an officer gratuitously inflicted pain.

The trial judge found multiple Charter breaches but admitted the evidence.

On appeal, the Court of Appeal held that the trial judge erred in his s. 24(2) analysis by treating the absence of systemic police misconduct as a mitigating factor, failing to consider the impact on the appellant's Charter rights, and overemphasizing the seriousness of the charges.

The evidence was excluded and acquittals were entered.

The appellant retained a motor carrier to transport cargo, which was subsequently destroyed in a collision.

After obtaining a default judgment against the carrier for the full value of the cargo, the appellant sought payment from the carrier's insurer under s. 132(1) of the Insurance Act.

The insurer denied coverage, alleging the carrier made a material misrepresentation on its insurance application regarding contracts superseding its standard bill of lading.

The application judge agreed and voided the policy.

The Court of Appeal allowed the appeal, holding that the insurer failed to prove a misrepresentation because it never produced the carrier's standard bill of lading into evidence.

The appellant, Coliseum Inc., appealed a Superior Court decision that overturned an arbitrator's award in its favour regarding a commercial lease dispute with the City of Ottawa.

The dispute centered on the interpretation of Minutes of Settlement concerning the provision of an alternative site following the termination of Coliseum's lease at Frank Clair Stadium.

The Court of Appeal held that it had no jurisdiction to review the application judge's decision to grant leave to appeal the arbitral award.

However, the Court found that the application judge erred by substituting her own interpretation of the Minutes of Settlement, as the arbitrator's interpretation was reasonable and owed deference.

The appeal was allowed, and the arbitrator's award of $2,240,000 in damages was reinstated.

The applicant, convicted of two counts of first-degree murder, applied for the appointment of state-funded counsel for his appeal under s. 684(1) of the Criminal Code after being denied Legal Aid.

The court dismissed the application, finding that the applicant failed to meet his burden of proving a lack of financial means.

The applicant had not been transparent in disclosing his financial circumstances to Legal Aid and had allowed a property to be foreclosed upon by a friend without contesting the proceedings, raising questions about his financial affairs.

The appellant father appealed a Family Court order granting the mother sole custody of their two children with supervised access to him, and allowing the Children's Aid Society to withdraw its protection application.

The father argued the motions judge erred in finding a material change in circumstances, hearing the matters simultaneously, allowing the withdrawal without a full hearing, and improperly relying on a section 54 assessment report.

The Court of Appeal dismissed the appeal, finding the motions judge properly applied the test for varying custody due to parental alienation, correctly exercised discretion to hear the matters together, held an appropriate hearing for the withdrawal, and did not improperly rely on the assessment report.

The appellant appealed a trial decision that rejected his undocumented claim to a half-interest in a residential property.

The trial judge had found the appellant's evidence incredible and accepted the respondent's evidence that a $130,000 payment was a gift.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings and credibility assessments.

The court also upheld the trial judge's decisions regarding a breach of trust claim, an order for the appellant to pay $3,000 for property damage, and a no-costs award at trial.

The cross-appeal was abandoned and dismissed.

The applicant, a daycare provider convicted of manslaughter in the death of a 14-month-old infant and sentenced to six years in prison, applied for bail pending appeal.

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

The Court of Appeal assessed the strength of the applicant's grounds of appeal, which included challenges to the trial judge's use of good character evidence and the admission of an unrecorded police statement.

Finding the grounds of appeal to be arguable but weak, and given the extreme seriousness of the offence, the court concluded the applicant failed to establish that her detention was not necessary in the public interest.

The application for bail pending appeal was dismissed.

The appellant appealed his convictions on two counts of attempting to possess a firearm without a licence.

The convictions were based entirely on text messages exchanged with a co-worker who was found smuggling firearms.

The Court of Appeal found that while one text message supported a reasonable inference of a prior agreement to obtain a firearm, the trial judge's conclusion that the appellant's responses of 'Ok ok' to price quotes constituted agreements to purchase two specific firearms was unreasonable, especially since those specific firearms were not found in the co-worker's possession.

The appeal was allowed in part, and one of the two convictions was quashed.

The applicant brought a motion seeking an extension of time to appeal an order directing the sale of the matrimonial home.

The applicant filed the motion 11 months late, initially filing in the wrong court.

Applying the five-factor test for extending time to appeal, the court found the delay was lengthy, the explanation unpersuasive, and the proposed appeal devoid of merit as the record clearly showed the applicant had consented to the sale.

The motion was dismissed with costs awarded to the respondent.

The appellant appealed her conviction for assault causing bodily harm, which was entered following a guilty plea.

The Court of Appeal found the plea was invalid and not unequivocal due to shifting facts presented by the Crown, the appellant's statements suggesting a lack of mens rea, and indications she pleaded guilty primarily to be released from jail where she was allegedly denied HIV medication.

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

The appellant pleaded guilty to robbery with a firearm, unlawful confinement, and other firearms offences arising from a home invasion.

He was sentenced to 8 years, less 1:1 credit for pre-disposition custody.

On appeal, the appellant sought enhanced credit of 1.5:1 for pre-disposition custody.

The Crown conceded that under the Supreme Court's decision in Summers, the appellant was entitled to the enhanced credit.

The Court of Appeal allowed the appeal and varied the sentence to reflect the enhanced credit.

The appellant was convicted of sexual assault and unlawful confinement and sentenced to 32 months' imprisonment.

He appealed both conviction and sentence.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's assessment of the strong Crown case, which included a 911 call recording.

The sentence appeal was also dismissed, with the court noting the 32-month sentence was lenient given the premeditated nature of the abduction and confinement.