OCA 2020

The applicant, convicted of historical sexual offences against a child in his family's foster care and sentenced to seven years' imprisonment, applied for bail pending appeal.

The court found that while the applicant was not a flight risk or a danger to the public, the grounds of appeal were weak and did not clearly surpass the 'not frivolous' standard.

Balancing the public interest in the enforceability of the judgment against the reviewability interest, the court concluded that a reasonable member of the public would find the applicant's detention necessary to maintain public confidence in the administration of justice.

The application for bail pending appeal was dismissed.

Jereemy Tan, the moving party, sought an extension of time to file a notice of appeal against a Superior Court decision that authorized a Receiver to disclaim an agreement of purchase and sale for a property.

The moving party's counsel inadvertently missed the 10-day appeal deadline, believing it was 30 days.

The Court of Appeal granted the extension, finding the delay was short and excusable, prejudice to respondents negligible, and the proposed appeal met the low threshold for merit.

The court also determined the appeal was "as of right" under sections 193(b) and (c) of the Bankruptcy and Insolvency Act, as the decision could affect other similar cases and involved property exceeding $10,000 in value.

The applicant sought leave to appeal his convictions and sentence for dredging and filling shore lands without a work permit under the Public Lands Act.

He had been fined $3,000 for each conviction, placed on probation, and made subject to a rehabilitation order.

The Court of Appeal dismissed the application for leave to appeal, finding that the proposed grounds of appeal had no merit and did not meet the high threshold of raising a question of law essential in the public interest or for the due administration of justice.

The moving parties, survivors of the St. Anne's Indian Residential School, appealed an order directing their Request for Directions to be heard by a judge of the British Columbia Supreme Court rather than the Ontario Superior Court of Justice.

They brought a motion for a stay of the transfer order pending appeal and to expedite the appeal.

The Court of Appeal determined the transfer order was final for the purposes of appeal, applied the RJR-MacDonald test rather than the strong cause approach, and granted the stay, finding a serious question of interpretation regarding the Court Administration Protocol, potential for irreparable harm from inconsistent results, and that the balance of convenience favoured a stay.

The appellant, a disbarred lawyer and unlicensed immigration consultant, was convicted of providing unauthorized immigration advice for consideration and counselling misrepresentation under the Immigration and Refugee Protection Act.

She appealed her convictions, arguing that the charging provisions were ultra vires the federal government, violated section 7 of the Charter, and that the trial judge made numerous evidentiary and instructional errors.

The Court of Appeal dismissed the appeal, finding the provisions were validly enacted under the federal criminal law power, were neither vague nor overbroad, and that the trial judge made no errors in her rulings or jury instructions.

The appellant, who held himself out as a healer, appealed his convictions on five counts of sexual assault against adult female patients.

He argued the trial judge erred in allowing the cross-count application of similar act evidence and in his approach to the issue of consent regarding one complainant.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's admission of the similar act evidence to establish the actus reus, nor in his conclusion that the complainant did not subjectively consent and that the appellant failed to take reasonable steps to ascertain consent.

The appellant, Canada Investment Corporation (CIC), appealed an order directing that surplus proceeds held for CIC from a receivership sale be paid to the respondent creditors.

The respondents had successfully challenged the validity of CIC's pre-assignment expenses in a related action.

The Court of Appeal dismissed the appeal, finding that the claims process did not require a statement of claim, the onus correctly shifted to CIC to dispute the Receiver's recommendation, and issue estoppel precluded CIC from re-litigating the quantification of pre-assignment expenses already decided in the related action.

The appellant, a former grade seven teacher, appealed his convictions and sentence for committing indecent acts and sexual invitation involving a 12-year-old student.

The appellant argued the trial judge erred in assessing the complainant's credibility, failing to address a motive to fabricate, and misapplying the burden of proof.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's credibility findings or assessment of the evidence.

The sentence appeal was also dismissed, as the two years less a day sentence was fit and the trial judge properly considered the appellant's mental health.

The appellant was convicted of first-degree murder.

On appeal, he argued the trial judge erred by excluding a co-accused's out-of-court hearsay statements, admitting the co-accused's guilty plea and agreed statement of facts, and improperly instructing the jury on post-offence conduct.

The Court of Appeal dismissed the appeal, finding the trial judge properly applied the principled exception to the hearsay rule, correctly admitted the edited guilty plea to preserve trial fairness, and provided a clear and error-free jury instruction regarding post-offence conduct.

The appellant condominium corporation appealed the trial judge's factual findings on an off-set issue and the costs disposition.

The respondent cross-appealed on costs.

The Court of Appeal dismissed the appeal on the off-set issue, finding no palpable and overriding error in the trial judge's factual findings.

However, the Court allowed the appellant's costs appeal and dismissed the respondent's cross-appeal, as the parties agreed the trial judge erred in principle by determining success on a distributive-costs basis.

The matter was remitted to the trial judge to determine the quantum of costs.

Six groups brought motions for leave to intervene as friends of the court in an appeal concerning the Ontario government's 'Student Choice Initiative', which allowed students to opt out of certain ancillary fees.

The underlying application quashed the government directives.

The motion judge granted leave to intervene to all six groups, finding that the appeal raises issues with far-reaching impacts on publicly-funded universities and colleges, and that each proposed intervener would provide useful and distinct perspectives without causing injustice to the parties.

The appellant appealed his convictions and sentence for offences arising from a home invasion robbery.

He argued the trial judge failed to properly analyze circumstantial evidence and contradictions in the victim's testimony, and erred in principle during sentencing by confusing the roles of the assailants.

The Court of Appeal dismissed the conviction appeal, finding the verdicts reasonable and supported by the totality of the evidence.

The sentence appeal was also dismissed, as the 6.5-year sentence was fit given the appellant's prior record and the aggravating nature of home invasions, though the assault conviction was conditionally stayed under the Kienapple principle.

The parties made written submissions regarding the costs of the appeal and a related motion for leave to adduce fresh evidence.

The Court of Appeal ordered no costs as between the respondent and the Nealon appellants.

The respondent was awarded costs of the appeal on a partial indemnity basis in the amount of $40,000, inclusive of disbursements and HST, against the Garber appellants.

The appellant was convicted of multiple weapons offences based entirely on circumstantial evidence after a police officer witnessed a single gunshot and briefly chased the fleeing suspect.

The Crown's case relied on the appellant's DNA found on the recovered handgun, a fleeting description by the officer, and grainy surveillance videos showing the appellant in the vicinity over an hour prior.

The Court of Appeal found the trial judge's verdict unreasonable, concluding that the totality of the evidence was too generic to establish the appellant's identity as the shooter beyond a reasonable doubt.

The appeal was allowed and acquittals were entered.

The appellant appealed his conviction by a jury for aggravated assault arising from a group altercation.

He argued the verdict was unreasonable due to flaws in the eyewitness identification evidence and alternatively sought a new trial on the basis that the trial judge misdirected the jury regarding the identification evidence.

The Court of Appeal dismissed the appeal, finding there was ample circumstantial and descriptive evidence to support the conviction, including bloodstain evidence matching the victim on the appellant's shirt.

The Court also held that the trial judge's charge clearly distinguished between descriptive evidence and in-court identification, and would not have misled the jury.

The appellants appealed a trial decision finding that a binding oral contract existed between the parties regarding a real estate development project, and ordering specific performance.

The trial judge found that the respondent's principal invested in the project on the condition that his son's company would build houses on 25% of the lots.

The Court of Appeal upheld the trial judge's findings that the oral contract's essential terms were certain, that a subsequent shareholder agreement's entire agreement clause did not invalidate the oral contract because it was not brought to the respondent's attention, and that specific performance was the appropriate remedy given the unique nature of the development and the inadequacy of damages.

The appellant appealed the imposition of a lifetime driving prohibition following his guilty pleas to several offences, including driving while disqualified.

The Crown conceded that the trial judge erred in imposing a lifetime prohibition, as the maximum available under the Criminal Code at the time was five years.

The Court of Appeal allowed the appeal, set aside the lifetime prohibition, and substituted a five-year driving prohibition, noting the appellant's criminal record and the nature of the offences.

The applicant applied for bail pending appeal pursuant to s. 679 of the Criminal Code.

The applicant had previously been convicted and his appeal was dismissed, but he subsequently applied to re-open his appeal against conviction to adduce fresh evidence.

Because the formal order dismissing the appeal had not been entered, the court was not functus officio and permitted the application to re-open to proceed.

The motion judge held that the original notice of appeal remained operative, granting jurisdiction under s. 679(1)(a) to consider and grant the applicant's request for bail.

The appellant sought to enforce letters of request from a Florida court to obtain documents from the former Ontario lawyers of his ex-wife and daughter for use in a Florida action for parental alienation.

The application judge dismissed the application on public policy grounds, finding it would interfere with solicitor-client privilege and client confidentiality.

The Court of Appeal dismissed the appeal, holding that the hearing was procedurally fair and the application judge properly exercised his discretion in refusing to enforce the letters of request because they sought presumptively privileged documents.

The plaintiffs moved for directions regarding motions for leave to file fresh evidence, seeking a sequencing protocol to determine whether the defendants' fresh evidence was protected by litigation privilege before disclosing their own fresh evidence.

The motion judge declined to order the proposed protocol, directing the parties to perfect their appeals and schedule an appeal management conference to determine the procedure.

The motion judge also granted the plaintiffs leave to file an over-length 54-page factum, but ordered them to pay $2,000 in costs for failing to seek permission beforehand.