OCA 2016

The appellant was convicted of aggravated assault after a complainant was stabbed in the eye with a beer bottle during a party.

On appeal, the appellant argued the trial judge made several errors, including failing to remedy the Crown's improper reference to inadmissible statements in its opening address, failing to properly instruct the jury on the use of an exculpatory statement, and failing to instruct the jury on the possibility of collusion among key Crown witnesses.

The Court of Appeal agreed that these three errors of law cumulatively resulted in an unfair trial.

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

The appellant appealed an order appointing his mother and sister as guardians of property and personal care for his incapable sister.

The appellant argued the application judge made unreasonable findings of fact, unfairly disregarded his evidence, and failed to consider the incapable sister's best interests.

The Court of Appeal dismissed the appeal, finding that the application judge's findings were supported by the evidence, including the finding that the appellant's actions were financially motivated.

The application judge properly scrutinized the management plans and concluded it was in the incapable sister's best interests to remain with her mother.

The appellant, a commercial truck driver, appealed his conviction for criminal negligence causing death and his sentence of five years' imprisonment and a fifteen-year driving prohibition.

The appellant had fallen asleep at the wheel, drifted into oncoming traffic, and caused a fatal head-on collision after falsifying his driving logs to avoid rest obligations.

The Court of Appeal dismissed the conviction appeal, finding the trial judge properly instructed the jury on the elements of the offence and the distinction from dangerous driving causing death.

The sentence appeal was also dismissed, as the sentence was not demonstrably unfit given the appellant's deliberate disregard for safety rules and the need for specific deterrence.

The respondents were wholly successful on the appeal and sought partial indemnity costs totaling over $111,000.

The appellants conceded the respondents were entitled to costs but argued the amounts sought were excessive, proposing a total of $30,000.

The Court of Appeal fixed the costs payable by the appellants at $20,000 for Vicentini, $10,000 for Ford Credit, and $10,000 for Personal Insurance, inclusive of disbursements and HST.

The appellant was convicted of attempt murder, aggravated assault, and assault with a weapon after stabbing an unarmed victim at a house party.

On appeal, the appellant argued the trial judge erred by failing to properly instruct the jury regarding bad character evidence about a prior knife incident.

The Court of Appeal dismissed the appeal, finding that the trial judge's mid-trial corrective instruction was adequate and the failure to include a further limiting instruction in the final charge did not constitute reversible error.

The appellant appealed a decision allowing her long-term disability (LTD) insurer to deduct the amount of a Non-Earner Benefit (NEB) she received from her auto insurer following a second accident.

The appellant argued that based on the 'apples to apples' principle, the NEB (a non-income benefit) should not be deducted from LTD payments (an income benefit).

The Court of Appeal dismissed the appeal, holding that the 'apples to apples' principle applies to statutorily-mandated deductions from tort awards, whereas this deduction was governed by the clear and unambiguous language of the LTD insurance policy, which permitted the deduction of 'any disability benefit'.

The appellant brought an application under s. 11 of the Solicitors Act to assess paid accounts rendered by the respondent solicitors.

The application judge dismissed the application, finding no special circumstances justified a referral, noting the appellant's principal was a sophisticated lawyer and businessman who paid the detailed accounts voluntarily.

On appeal, the appellant argued the judge failed to independently assess if the fees were excessive based on partial indemnity costs sought on a motion.

The Court of Appeal dismissed the appeal, finding no error in principle or unreasonable result in the application judge's exercise of discretion.

The appellants sought to re-open their appeal of a decision dismissing their action against the respondent for terminating a commercial contract.

The appellants sought to advance a new legal argument based on repudiation, which had not been raised at trial or on the initial appeal.

The Court of Appeal dismissed the motion, holding that it would be unfair to permit a new legal issue after more than 10 years of litigation and that re-opening the appeal was not in the interests of justice.

The infant respondent was struck by a vehicle while crossing a street on his way to school.

The trial judge found the appellant municipality liable because the accident occurred during the time a crossing guard was required to be present but was absent.

The trial judge also found the infant respondent was not contributorily negligent.

The municipality appealed, challenging the trial judge's factual findings regarding the timing of the accident and the assessment of contributory negligence.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of the evidence or application of the standard of care for children.

The applicant sought leave to appeal a summary conviction appeal court decision that set aside his acquittal for operating a motor vehicle with a prohibited blood alcohol concentration and ordered a new trial.

The trial judge had acquitted the applicant after finding that a 13-month delay in inspecting the Intoxilyzer meant it was 'operated improperly', defeating the statutory presumption of identity.

The summary conviction appeal court found this was an error of law.

The Court of Appeal refused leave to appeal, noting that second appeals in summary conviction proceedings are exceptional, the proposed ground involved well-settled law, and the substantive issue was already controlled by Supreme Court jurisprudence.

The appellant wife appealed a summary judgment that retroactively reduced and prospectively terminated the respondent husband's spousal support obligations.

The husband cross-appealed the dismissal of his motion to set aside a 2005 consent order and a 1985 marriage contract.

The Court of Appeal allowed the wife's appeal, finding the motion judge made palpable and overriding errors in interpreting the wife's and her new partner's income tax returns to impute income.

The court substituted a new spousal support order with a step-down approach but no termination date.

The husband's cross-appeal was dismissed, as there was no basis to set aside the consent order and the marriage contract was unenforceable.

The appellant tenant commenced an application for a declaration of a valid lease after the respondent landlord terminated the tenancy and took possession of the premises.

Three years later, the appellant moved to direct a trial of the issues and amend its pleadings to claim damages for wrongful termination and loss of inventory.

The motion judge dismissed the motion, finding the proposed amendments raised new causes of action that were statute-barred.

The Court of Appeal allowed the appeal, holding that the proposed damages claim was an alternative remedy arising from the same factual nexus originally pleaded in the application and supporting affidavit, and therefore did not constitute a new cause of action.

The appellant appealed a trial judgment finding it liable for breach of contract and awarding $11 million in damages to the respondent, who had purchased the action from a bankrupt IT company.

The Court of Appeal upheld the trial judge's finding that the appellant's representative had actual authority to bind the company to the contract.

However, the Court allowed the appeal regarding damages, finding the trial judge erred by assessing damages as of the end of a five-year business plan rather than the date of the breach.

Applying a discounted cash flow analysis as of the date of breach, the Court reduced the damages award to $1.3 million.

The appellants appealed a permanent injunction restraining them from contravening the Town of Georgina's Site Alteration By-law by importing fill onto their property.

The appellants argued that the Aggregate Resources Act permitted them to import fill to rehabilitate a former aggregate pit.

The Court of Appeal dismissed the appeal, finding that the specific conditions of the appellants' licence and site plans required rehabilitation using only onsite materials.

The Court also found no conflict between the injunction and the Act, as the By-law explicitly exempted authorized rehabilitation activities.

The appellant, a 19-year-old, was convicted of importing nearly 2 kg of cocaine and sentenced to 4.5 years' imprisonment.

She appealed her conviction and sentence, arguing the trial judge erred in instructing the jury on her out-of-court statements, the W.(D.) framework, and her criminal record.

The Court of Appeal dismissed the conviction appeal, finding no reversible errors in the jury charge.

The sentence appeal was also dismissed, as the sentence fell within the established range for first-time couriers importing large amounts of cocaine and appropriately accounted for her youth.

The appellant appealed her convictions for aggravated assault, uttering a death threat, possession of a weapon, and breach of probation, and sought to re-open her sentence appeal.

She sought to introduce fresh evidence consisting of Prisoner Detain Sheets to challenge the trial judge's credibility findings.

The Court of Appeal dismissed the conviction appeal, finding the fresh evidence could not reasonably be expected to have affected the result and that the trial judge made no palpable and overriding error.

The sentence appeal was allowed to increase the pre-sentence custody credit to 1.5:1.

The appellant was convicted by a jury of trafficking one kilogram of cocaine and sentenced to eight years' imprisonment.

He appealed his conviction, arguing the trial judge erred in failing to correct Crown misstatements and in correcting defence counsel's instructions on circumstantial evidence.

The Court of Appeal dismissed the conviction appeal, finding no errors in the jury charge.

However, the Court allowed the sentence appeal, finding the trial judge erred by relying on unproven prior trafficking, failing to apply the principle of parity, and imposing a sentence at the upper end of the range for a first offender.

With the admission of fresh evidence in the form of a Gladue report, the sentence was reduced to five years.

The appellant appealed the dismissal of his action against the respondent airline for a refund of a cancelled flight.

The Court of Appeal upheld the motion judge's finding that the two-year limitation period had expired under both the Montreal Convention and the Limitations Act, 2002.

The court noted that the appellant's efforts to obtain a refund directly from the airline did not extend the limitation period.

The appellant insurer appealed the dismissal of its summary judgment motion regarding uninsured automobile coverage.

The respondent argued the Court of Appeal lacked jurisdiction because the order was interlocutory, not final.

The Court of Appeal agreed, holding that unless a motion judge explicitly invokes Rule 20.04(4) to make a binding determination of law, an order dismissing summary judgment is presumed interlocutory.

The appeal was quashed for lack of jurisdiction.

The respondents were charged with tax offences.

During the trial, the Crown directed a stay of proceedings under s. 579 of the Criminal Code.

The respondents subsequently sought costs against the Crown under s. 24(1) of the Charter for alleged prosecutorial negligence and Charter breaches.

The Summary Conviction Court judge held he retained jurisdiction to hear the costs application, which was upheld on certiorari by the Superior Court.

The Crown appealed.

The Court of Appeal allowed the appeal, holding that once the Crown exercises its discretion to stay proceedings, the trial judge becomes functus and lacks jurisdiction to entertain a Charter costs application.