OCA 2016

The appellant appealed his convictions for aggravated sexual assault arising from his failure to disclose his HIV-positive status before engaging in unprotected anal intercourse with two complainants.

The appellant argued the trial judge erred by failing to instruct the jury to acquit if they found the complainants were reckless or prepared to assume the risks of unprotected sex.

The Court of Appeal dismissed the appeal, holding that a complainant's past risky sexual behaviour does not negate an accused's legal duty to disclose a significant risk of serious bodily harm.

The court also found no reversible error in the trial judge's failure to give a Vetrovec warning, his jury instructions on the evidence, or his failure to give a limiting instruction regarding the appellant's text messages.

The respondent was injured when he tripped over a motorcycle parked on a walkway between trailers at a campsite.

The appellant insurer denied statutory accident benefits, arguing the incident did not meet the definition of an 'accident' under the Statutory Accident Benefits Schedule.

The application judge found that the temporary parking of the motorcycle constituted an ordinary or well-known use of the vehicle, satisfying the purpose test.

The Court of Appeal upheld the decision, confirming that parking a vehicle is an ordinary and well-known activity to which vehicles are put, and dismissed the appeal.

The Receiver brought a motion for directions to determine whether the debtor required leave to appeal an Approval and Vesting Order that transferred the debtor's property to a purchaser.

The debtor argued it had an automatic right of appeal under sections 193(a), (b), and (c) of the Bankruptcy and Insolvency Act.

The Court of Appeal held that the order did not involve future rights, would not affect other cases of a similar nature in the proceeding, and did not involve property exceeding $10,000 in value within the meaning of the Act.

The motion was granted, the debtor's notice of appeal was quashed, and a timetable was set for a leave to appeal motion.

The appellant, a secondary insurer, paid for a claimant's expensive prescription drug after the respondent, the primary insurer, denied coverage.

The appellant later sued the respondent for reimbursement.

The motion judge found the appellant's claim was partially statute-barred because it was discovered when the appellant first learned of the denial in October 2009.

The Court of Appeal reversed, holding that the appellant could not have reasonably discovered its claim until the respondent finally produced the policy wording in September 2011.

The appeal was allowed and the respondent was ordered to fully reimburse the appellant.

The appellants retained the respondent lawyer to represent them in a motor vehicle accident claim.

The respondent issued the statement of claim more than two years after the accident.

The appellants subsequently sued the respondent for professional negligence.

The respondent successfully moved for summary judgment on the basis that the professional negligence action was statute-barred.

On appeal, the Court of Appeal set aside the summary judgment, finding that under s. 5(1)(a)(iv) of the Limitations Act, 2002, the appellants did not discover their claim against the respondent until the defendants in the underlying motor vehicle action amended their statement of defence to plead a limitations defence.

The appellants appealed a trial judgment finding them liable for over $10 million for fraudulent misrepresentation and other torts.

The sole ground of appeal was that the trial judge erred in refusing their request for an adjournment on the eve of trial to retain new counsel, after they had filed notices of intention to act in person.

The Court of Appeal dismissed the appeal, finding that the trial judge properly balanced the competing interests, including the appellants' ability to defend themselves, the prejudice to the respondent, and the public interest in the efficient resolution of trials.

The appellant appealed his convictions for two counts of sexual assault, arguing he was denied a fair trial due to ineffective assistance of trial counsel.

He alleged his counsel failed to cross-examine the complainant on certain text messages and conducted a perfunctory examination-in-chief.

The Court of Appeal dismissed the appeal, finding that counsel's decision not to use the text messages was a deliberate tactical decision within the range of reasonable professional assistance.

Furthermore, the appellant failed to demonstrate prejudice, as the text messages largely corroborated the complainant's account.

The appellants, a second mortgagee and a tenant of a commercial property, appealed a motion judge's order regarding the distribution of a holdback from a receiver's sale.

The appellants argued that rent arrears owed by the tenant merged in a prior judgment and did not vest in the purchaser, that the second mortgagee had priority over the purchaser's claim for rent arrears, and that the tenant was entitled to a credit for a payment made under a side agreement.

The Court of Appeal dismissed the appeal, finding that the vesting order explicitly transferred the lease and rent arrears to the purchaser, that the motion judge properly adjusted the accounts between the parties, and that the purchaser was not bound by the side agreement.

The appellant appealed his convictions and sentence for firearms offences, mischief, and intimidating a justice system participant.

The charges arose after the appellant fired a high-powered rifle into the home of a witness scheduled to testify against his friend.

The Court of Appeal dismissed the conviction appeal, finding no reversible error in the trial judge's credibility findings or conclusion that the appellant had exclusive access to the firearm.

The sentence appeal was also dismissed, as the imposition of consecutive sentences for distinct wrongs was appropriate and the total sentence of eight years was not unreasonable given the gravity of the offences.

An administrative error imposing victim fine surcharges was quashed.

The appellant loaned money to his son, secured by a mortgage on the son's home.

Years later, the son's former spouse sought to sell the home to satisfy an equalization payment and sought a declaration that the mortgage was statute-barred.

The application judge agreed, finding the 10-year limitation period had expired and no valid acknowledgment existed.

On appeal, the appellant sought to introduce fresh evidence and argued promissory estoppel.

The Court of Appeal dismissed the appeal, refusing to admit the fresh evidence as it could have been adduced at trial and would not have affected the result.

The court also upheld the finding that promissory estoppel did not apply and noted the appellant's conduct disentitled him to equitable relief.

The appellants appealed a summary judgment decision regarding a software licensing dispute.

The motion judge found that the respondent breached the licence agreement and infringed copyright by using the software on operating systems other than AIX, but did not breach the agreement by using it on multiple servers.

The Court of Appeal upheld the motion judge's interpretation of the contract, finding no server restriction but confirming the AIX operating system restriction.

However, the Court allowed the respondent's cross-appeal in part, finding that the motion judge erred in dismissing the estoppel defence regarding the AIX restriction, and directed that the estoppel issue proceed to trial alongside the limitation defence and damages.

The applicant sought judicial review of the Minister of Justice's surrender order for extradition.

The applicant argued the Minister erred in refusing disclosure of correspondence related to the termination of his Ontario prosecution and in assessing the Cotroni factors.

The Court of Appeal dismissed the application, finding no air of reality to the disclosure claim and concluding the Minister's Cotroni assessment was reasonable.

The appellant appealed a 10-year sentence imposed for sexual interference, breach of probation, and breach of prohibition.

At trial, the Crown and defence had presented a joint submission for a 7-year sentence, which the trial judge rejected.

The Court of Appeal allowed the appeal, finding that the trial judge erred by not following the joint submission and by imposing a demonstrably unfit sentence that ignored the facts of the offence.

The sentence was reduced to the jointly submitted 7 years.

The appellant father sought to relocate with his seven-year-old child from Kincardine to Whitby, relying on a notice provision in a consent order.

The motion judge held that a motion to change was required and dismissed the motion, finding no material change in circumstances.

The Court of Appeal upheld the decision, agreeing that the proposed move contradicted the schooling and access clauses of the order, necessitating a motion to change.

The court also found no error in the motion judge's conclusion that the father's concerns about the stigma of past false abuse allegations were foreseeable at the time of the original order.

The appeal and leave to appeal costs were dismissed.

The appellant appealed an order declaring him a vexatious litigant under s. 140 of the Courts of Justice Act.

He argued the application judge erred by denying his request for an adjournment due to illness and by failing to consider his self-represented status, language barriers, and alleged brain injury.

The Court of Appeal dismissed the appeal, finding the application judge reasonably exercised his discretion to deny the adjournment given the appellant's history of unpaid costs and lack of proper medical evidence.

The Court also found no error in the application judge's decision to declare the appellant a vexatious litigant based on his repeated, meritless litigation against his former lawyers.

The appellant appealed his conviction, arguing the Justice of the Peace erred in finding he was functus officio.

The appellant had tendered evidence of valid insurance, but the Crown introduced fresh evidence on appeal proving the insurance letter was false.

The Court of Appeal dismissed the appeal, holding that even if the Justice of the Peace erred, there was no miscarriage of justice under section 120(1)(b) of the Provincial Offences Act.

The Crown sought leave to appeal a summary conviction appeal decision that affirmed the accused's acquittal.

The Crown argued the case raised important questions about a detainee's obligation of diligence under section 10(b) of the Charter.

The Court of Appeal denied leave, finding that the police officer failed to afford the detainee a reasonable opportunity to contact counsel of his choice or facilitate that contact, and thus the proposed questions were not raised on the facts.

The respondent school board expropriated the appellant's property to build a new secondary school.

The board later authorized a land swap with the city to facilitate a joint development on the site.

The appellant argued this triggered section 41(1) of the Expropriations Act, requiring the board to offer the property back because it was no longer needed for the board's purposes.

The Court of Appeal dismissed the substantive appeal, finding the board had not abandoned its purpose of building a school and related amenities.

However, the court allowed the costs appeal, reducing the application judge's costs award to the partial indemnity amount originally sought by the board.

The appellant appealed a disposition of the Ontario Review Board, arguing that he should have received an absolute discharge as he was no longer a significant threat to public safety, or alternatively, that the Board failed in its inquisitorial role regarding the timing of his 24-hour supervised community living placement.

The Court of Appeal dismissed the appeal, finding ample evidence that the appellant required ongoing supervision to ensure medication compliance and prevent relapse.

The Court also noted that the Board had appropriately questioned the hospital on the timing of the placement, and fresh evidence indicated a bed would soon be available.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

The respondent was awarded costs of the appeal in the amount of $20,000, inclusive of disbursements and applicable taxes.