OCA 2016

The appellants were convicted by a jury of robbery, having their faces masked, assault with an imitation handgun, and using an imitation handgun.

One appellant was also convicted of resisting a peace officer.

On appeal, the appellants argued the trial judge erred in his instructions on party liability for the firearm offences.

The Court of Appeal agreed, finding the jury was not properly instructed that a non-gun-wielding intruder must know the other intruder had a firearm to be found guilty as a joint principal.

The appeal was allowed for the joint convictions and disguise charges, but the conviction for resisting arrest was upheld as the appellant's actions constituted active resistance.

The appellant was convicted of seven drug charges and sentenced to three years' imprisonment after police found a substantial quantity of drugs hidden in a garage where he was present.

On appeal, he argued the trial judge erred in assessing the circumstantial evidence of possession and that the sentence was excessive.

The Court of Appeal dismissed the appeal, finding the trial judge properly applied the test for circumstantial evidence and reasonably inferred the appellant exercised primary control over the drugs for distribution.

The sentence was upheld as fit given the nature and quantity of the drugs.

The appellants appealed a partial summary judgment that allowed the respondent's action for wrongful dismissal and awarded damages based on a one-year notice period.

The motion judge had refused to admit new evidence regarding an employment contract the respondent signed with another firm shortly after termination.

The Court of Appeal allowed the appeal, finding the motion judge erred in failing to admit the new evidence, which raised issues about the respondent's actions and intentions.

The Court set aside the order and referred the entire matter for trial alongside the existing counter-claim and oppression action.

The appellant appealed a decision upholding a Consent and Capacity Board finding that she was incapable of consenting to psychiatric treatment.

The appellant argued that her symptoms were caused by physical ailments rather than a mental condition, and that the Board misapplied the test for capacity from Starson v. Swayze.

The Court of Appeal dismissed the appeal, finding that the Board applied the correct legal test and reasonably concluded that the appellant was unable to appreciate the consequences of refusing treatment because she could not recognize the possibility that she was affected by a mental condition.

The appellants appealed an order of the motion judge.

The motion judge found that the appellants had not paid the $300,000 required to extend a grace period, there was no evidence a lender was prepared to advance the balance of funds under a settlement agreement, and the respondent reasonably refused to sign a consent to lift a Mareva injunction.

The Court of Appeal found these findings were fully supported by the record, rejected the proposed fresh evidence, and dismissed the appeal with costs.

The appellant appealed a summary judgment order finding that its relationship with the respondent was that of franchisor and franchisee, entitling the respondent to rescind their agreements under the Arthur Wishart Act due to a lack of disclosure.

The Court of Appeal upheld the finding on liability but found the motion judge's reasons for quantifying damages insufficient.

The appeal was dismissed regarding liability, and the matter was remitted to the motion judge to determine the quantum of damages in excess of the conceded amount.

The appellant appealed his convictions for firearms and drug offences, as well as his sentence of eight years' imprisonment.

He argued the trial judge erred by failing to give a W.(D.) instruction regarding defence witnesses, by finding he lacked standing to challenge a search under section 8 of the Charter, and by denying enhanced pre-trial custody credit for harsh lockdown conditions.

The Court of Appeal dismissed the appeal, finding no W.(D.) instruction was required, the appellant was merely a privileged visitor with no reasonable expectation of privacy in the searched residence, and there was no evidence of adverse effects from the lockdown conditions to warrant enhanced credit.

The Crown appealed the respondent's acquittal for driving with a blood alcohol level over the legal limit.

The trial judge had excluded breath sample evidence under s. 24(2) of the Charter, finding a s. 8 breach because the police officer lacked reasonable grounds to suspect alcohol in the respondent's body, despite smelling alcohol and an admission of consumption 10 hours prior.

The summary conviction appeal court upheld the acquittal.

The Court of Appeal allowed the Crown's appeal, holding that the odour of alcohol and admission of consumption were sufficient to form reasonable suspicion, and the absence of impairment signs or the possibility of alcohol elimination did not negate that suspicion.

A new trial was ordered.

The appellant appealed his conviction and sentence for counselling murder.

While in jail for sexual assault, the appellant solicited a fellow inmate to kill the complainant so she could not testify against him.

The trial judge convicted the appellant based on the testimony of the fellow inmate and surreptitiously recorded conversations.

The Court of Appeal dismissed the conviction appeal, finding the offence of counselling was complete upon solicitation and the trial judge did not err in relying on the unsavoury witness's evidence.

The sentence appeal was also dismissed, as the nine-year sentence (reduced to five years for pre-trial custody) was proportionate given the aggravating factor that the target was a justice system participant.

A commercial premises was largely destroyed by fire, causing the tenant to cease operations and stop paying rent.

The landlord sought coverage for lost rental income from its insurer, who denied the claim on the basis that the tenant remained legally obligated to pay rent.

The motion judge found the lease was frustrated and ordered the insurer to pay.

On appeal, the Court of Appeal upheld the result but for different reasons, finding that the loss of anticipated rental income triggered the business interruption coverage regardless of the tenant's continuing legal obligations.

The insurer was required to pay the claim and could subsequently pursue the tenant via subrogation.

The appellant appealed his conviction for a drug offence, arguing the trial judge misapprehended evidence and made inconsistent findings of fact regarding his head injury when assessing his credibility.

The central issue at trial was whether the appellant knew a package he received contained cocaine.

The Court of Appeal found no material misapprehension of evidence and no inconsistency between the trial judge's reasons for judgment and reasons for sentence.

The appeal was dismissed.

The appellant appealed his conviction for sexual offences, arguing that the trial judge's questioning of him at the end of his evidence rendered the trial unfair and that the trial judge erred in assessing a witness's credibility.

The Court of Appeal dismissed the appeal, finding that the trial judge's questions were primarily for amplification and did not impair the fairness of the trial.

The Court also deferred to the trial judge's credibility findings regarding the witness, concluding they were fully supported by the record.

The appellants appealed the dismissal of their action seeking to hold the respondent personally liable for half of their jointly owned corporation's debt.

The appellants argued that an agreement to share profits equally implied an agreement to share debts equally, and that the respondent had admitted personal liability.

The Court of Appeal dismissed the appeal, upholding the trial judge's finding that the parties understood they were limiting their personal liability by operating through a corporation and had not agreed to assume personal liability for corporate debts.

The appellant was convicted of sexual assault after engaging in sexual intercourse with the sleeping complainant.

He appealed his conviction and sentence, arguing the trial judge erred in her credibility analysis, misapplied the W.(D.) framework, and misinterpreted forensic evidence.

The Court of Appeal dismissed the appeal, finding the trial judge's credibility analysis was reasonable, she properly applied W.(D.) without shifting the burden of proof, and the forensic evidence was neutral.

The 30-month sentence was upheld as fit.

The appellant appealed his convictions for multiple firearms offences, including weapons trafficking.

The Court of Appeal held that agreeing to purchase a firearm does not constitute a 'transfer' under s. 99 of the Criminal Code, quashing that conviction.

The Court also applied the Kienapple principle to stay three of the remaining five convictions, finding they arose from the same transaction and constituted a single criminal wrong.

The appellant's total sentence was reduced by three years.

The appellant was convicted of fraud over $5,000 for failing to report a $9,500 Canada Pension Plan payment to the Ontario Disability Support Program for over five months.

On appeal, she argued the trial judge erred by not expressly addressing whether a reasonable person would consider the delay dishonest given the complexity of the social assistance system.

The Court of Appeal dismissed the appeal, finding the trial judge correctly stated the law and reasonably concluded the appellant's knowing delay and immediate withdrawal of the funds constituted a dishonest act.

The appellant appealed an order requiring him to attend a mental examination under s. 105(2) of the Courts of Justice Act to determine if he required a litigation guardian.

The Court of Appeal dismissed the appeal, finding no error in principle or overriding and palpable error in the motion judge's exercise of discretion, given previous court orders and expert reports concerning the appellant's conduct.

The moving party sought an extension of time to appeal a vesting order and to perfect an appeal of a foreign judgment recognition order.

The responding party brought a cross-motion to dismiss the motion and for security for costs.

The Court of Appeal dismissed the moving party's motion, finding that he had persistently disregarded the Rules of Civil Procedure and previous court orders, including failing to pay costs and post security for costs.

The justice of the case favoured the responding party.

Sobeys appealed a decision finding it contractually obligated to directly fund a pension plan deficit following the termination of a warehousing and transportation agreement with Tibbett.

The Court of Appeal upheld the application judge's findings that the parties had entered into a new agreement for Sobeys to assume direct responsibility for the deficit, that Tibbett had acted with due diligence, and that the claim was not statute-barred because Tibbett was not notified of Sobeys' refusal to fund the deficit until 2013.

The appeal was dismissed.

The appellant was convicted of aggravated assault after stabbing a neighbour during a physical altercation on her driveway.

The fight was instigated by the neighbours over noise from a leaf blower.

The appellant claimed she acted in self-defence to protect her husband, who was involved in the melee.

The trial judge rejected the self-defence claim, finding that the victim was not applying force or engaged with the husband at the moment of the stabbing.

The Court of Appeal dismissed the appeal, holding that the trial judge properly applied the law of self-defence and did not impermissibly weigh the appellant's response to a nicety.