Court of Appeal

The appellant was convicted of robbery with a firearm and related offences following a jury trial and sentenced to five years' imprisonment.

The sole issue at trial was identification.

The appellant appealed from conviction and requested leave to appeal sentence.

The Court of Appeal dismissed the conviction appeal, finding that the trial judge's charge on eyewitness identification evidence was adequate given the strength of the circumstantial evidence, and that the trial judge had vetted the charge with counsel.

The court also found that photo line-up evidence had no probative value as witnesses could not identify the fleeing passenger, and that the surveillance video instruction was adequate.

Leave to appeal sentence was granted but the sentence appeal was dismissed, as the trial judge had imposed the minimum sentence for very serious offences and had not disregarded pre-sentence custody or house arrest bail.

The appellant was convicted of second-degree murder for killing a 2½-year-old child in his care and assault causing bodily harm.

He was acquitted of aggravated assault.

The appellant appealed his convictions and sentence, arguing that the jury instructions were inadequate, that the murder conviction was unreasonable, and that the verdicts were inconsistent.

The Court of Appeal upheld the convictions, finding that the jury was properly instructed, that the evidence supported the murder conviction, and that the verdicts were reconcilable based on their different elements and temporal distinctions.

On sentencing, the appellant sought to introduce fresh evidence of his Aboriginal status, which was admitted but found insufficient to warrant a reduction in the 15-year period of parole ineligibility.

The appellant alleged she was sexually assaulted by a taxi driver employed by the respondent taxi company.

She sued the taxi company on grounds of vicarious liability, negligence, and breach of fiduciary duty.

The motion judge granted summary judgment dismissing all claims against the taxi company.

On appeal, the appellant challenged the dismissal of her vicarious liability claim.

The Court of Appeal upheld the motion judge's decision, finding that the alleged sexual assault was only coincidentally linked to the taxi company's activities as a taxi dispatching business and did not meet the test for vicarious liability established in Bazley v. Curry.

The appellant appealed his sentence for break and enter to commit theft and break and enter with intent.

He had pleaded guilty and received a suspended sentence with two years' probation, with pre-sentence custody credited at 1.5:1 (198 days from 132 days).

The enhanced credit resulted in a custodial sentence exceeding 180 days, triggering mandatory deportation as a convention refugee and barring him from appealing the deportation order.

Fresh evidence on appeal demonstrated that trial counsel failed to appreciate the immigration consequences of the enhanced credit.

The Court of Appeal allowed the appeal on consent of the Crown and reduced the pre-sentence custody credit by 19 days to 179 days, thereby avoiding the immigration consequences.

The appellant appealed from the dismissal of his motion to set aside a settlement and consent order dismissing his action.

The appellant acknowledged signing the settlement but argued he did so following a lengthy examination while suffering from a headache and other ailments, claiming incapacity.

The motion judge found the appellant had not met his burden of proof and there was no legally justifiable reason to set aside the settlement.

The Court of Appeal affirmed this decision, finding the evidence fell short of establishing incapacity.

The appellant also challenged the costs award, but the court found the official transcript supported the formal order and declined to interfere.

The appellant appealed his conviction for drug trafficking offences and firearm-related offences, as well as seeking leave to appeal his sentence.

The conviction appeal challenged the application judge's Charter ruling regarding the sufficiency of the information to obtain for a search warrant and the application of s. 24(2) of the Criminal Code.

The Court of Appeal dismissed the conviction appeal, finding no reversible errors in the application judge's analysis.

On the sentence appeal, the Court granted leave and allowed the appeal in part, reducing the sentence for the s. 86(1) firearm offence from two years to one year imprisonment concurrent, as the original sentence exceeded the statutory maximum for a first offender.

The Court upheld the trial judge's characterization of the appellant as a mid-level drug dealer based on the evidence.

A pawnbroker brought an application under s. 490(7) and (9)(c) of the Criminal Code seeking return of a diamond seized by police during a criminal investigation.

The diamond had been stolen from the deceased and pawned to the pawnbroker, from whom police seized it.

The application judge granted the order without notice to the estate of the deceased, who had an ownership interest in the diamond.

The estate appealed, arguing it was entitled to participate in the application.

The Court of Appeal allowed the appeal, finding that although the pawnbroker met the statutory notice requirements by notifying the Attorney General, the application was made on an ex parte basis and the pawnbroker failed to make full and frank disclosure of material facts, including the estate's competing claim to the diamond.

A police officer with the Niagara Regional Police was convicted of conspiracy to smuggle cheese into Canada from the United States without paying required duties, related customs offences, and breach of trust by a public official.

The appellant organized a scheme with another constable to smuggle approximately $133,000 worth of cheese across the border, evading approximately $325,000 in duties.

The appellant was sentenced to three months' imprisonment for the smuggling offences and one month consecutive for breach of trust.

On appeal, the appellant challenged his breach of trust conviction and sought leave to appeal both sentences.

The Court of Appeal dismissed the conviction appeal and the sentence appeal, finding the trial judge's inferences regarding the CPIC query were reasonable and the sentences were fit.

The appellants appealed the motion judge's order striking their statement of claim without leave to amend on grounds of being time-barred and constituting an abuse of process.

The Court of Appeal found that while most of the claims were properly struck as statute-barred under the Limitations Act, 2002, the motion judge erred by not separately considering paragraph 39 of the statement of claim, which alleged a new claim arising from the dissolution of a corporate defendant in 2013.

The court allowed the appeal in part, setting aside the order with respect to paragraph 39 and remitting the matter for further consideration.

The estate of a deceased tenant brought an action in Superior Court for $500,000 in damages for injuries suffered when the deceased allegedly slipped and fell over a damaged carpet in a residential rental unit.

The motion judge dismissed the action, concluding the Superior Court lacked jurisdiction because the claim fell within the exclusive jurisdiction of the Landlord and Tenant Board and was outside the one-year limitation period prescribed under the Residential Tenancies Act, 2006.

The Court of Appeal allowed the appeal, holding that the Act does not grant the board exclusive jurisdiction over all claims of non-repair.

Where damages exceed the board's monetary jurisdiction, a party may commence proceedings in Superior Court.

Additionally, the one-year limitation period for board applications does not apply to Superior Court actions for non-repair; instead, the two-year limitation period under the Limitations Act, 2002 applies.

Hercules Moulded Products Inc. appealed a summary judgment dismissing its claims against Stewart Title Guaranty Company for indemnification under a Commercial Lender Endorsement title insurance policy.

The claims arose from problems with two adjacent properties in Windsor, Ontario that Hercules held as security for a mortgage.

The issues included: (1) the cost of filling an excavation ordered by the City of Windsor, added to the tax bill; (2) development agreements registered on title; and (3) an alleged encroachment.

The Court of Appeal affirmed the dismissal on two primary grounds: first, the excavation matter was excluded from coverage under the policy's non-disclosure provision as it was known to Hercules but not disclosed to Stewart before the policy date; and second, the development agreements and encroachment caused no actual loss or damage as required by the policy.

In this family law appeal, the father sought an extension of time to perfect his appeal from a trial judgment concerning custody, access, equalization, and child support.

The mother sought security for costs for both the appeal and unsecured trial costs.

The court granted the father's motion for an extension of time and dismissed the mother's motion for security for costs, finding that neither criterion under Rule 61.06(1)(a) was satisfied.

The father was awarded costs of $1,000 for the extension motion and $2,000 for the security for costs motion.

This is a costs endorsement following an appeal decision released on May 8, 2017.

The appellants were successful on appeal and the cross-appeal was dismissed.

The appellants sought partial indemnity costs in the amount of $38,105.67, including disbursements and HST.

The respondent did not dispute the quantum but argued that no costs should be awarded or alternatively that costs should be left to the application judge or awarded in the cause.

The court awarded costs to the appellants in the full amount requested, applying the ordinary practice that the successful party on appeal receives reasonable, fair and proportionate partial indemnity costs.

The appellant appealed an order of the Superior Court of Justice referring his solicitor's account dated February 28, 2016 for assessment under the Solicitors Act.

The Court of Appeal determined that it lacked jurisdiction to hear the appeal because the order was interlocutory rather than final in nature.

The order concerned a preliminary procedural matter directing referral for assessment, not the substantive determination of the account's quantum.

The appellant retained the right to defend the quantum of his account during the assessment process.

Consequently, the appeal was quashed.

This appeal concerns whether a partial stay of proceedings should be granted in favour of arbitration in a class action involving both consumer and non-consumer claims against TELUS Mobility for alleged undisclosed billing practices (rounding up calls to the next minute).

The appellants argued that the motions judge erred in refusing to stay the non-consumer claims pursuant to section 7(5) of the Arbitration Act, 1991.

The appellants contended that the Court of Appeal's decision in Griffin v. Dell Canada Inc. had been overtaken by the Supreme Court's decision in Seidel v. TELUS Communications Inc. The Court of Appeal dismissed the appeal, holding that Griffin remains binding authority in Ontario and has not been overtaken by Seidel, as the two cases were decided in materially different legislative contexts.

The appellant appealed his conviction for robbery with a firearm on two grounds: (1) whether his right to trial within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms was breached, and (2) whether the trial judge's finding that the gun used in the robbery was a firearm was unreasonable.

The appeal was heard after the Supreme Court's landmark decision in R. v. Jordan, which fundamentally changed the approach to s. 11(b) claims by establishing a presumptive 30-month ceiling for trial completion.

The Court of Appeal dismissed both grounds of appeal and upheld the conviction.

The appellant was convicted of unlawfully importing cocaine into Canada contrary to s. 6(1) of the Controlled Drugs and Substances Act and sentenced to 15 years imprisonment, less credit for pre-sentence custody.

He appealed on two grounds: that the trial judge failed to address his defence meaningfully and failed to undertake proper analysis under the third step of the R. v. W.(D.) inquiry.

The Court of Appeal dismissed the appeal, finding that the trial judge adequately addressed the defence theory that the appellant was an unwitting "blind mule" and properly applied the reasonable doubt standard.

The evidence established that cocaine was found in the appellant's luggage, and the only live issue was knowledge.

The trial judge rejected the defence assertion that unknown baggage handlers planted the drugs, finding it speculative and unsupported by evidence.

The appellant was convicted of possession of child pornography under s. 163.1(4) of the Criminal Code based on 55 images found in the temporary Internet files on a shared computer.

The trial judge misapprehended expert evidence regarding how images are automatically cached in temporary Internet files, incorrectly concluding the appellant had deliberately downloaded the images.

The summary conviction appeal judge similarly misapprehended the evidence and dismissed the appeal.

The Court of Appeal granted leave to appeal and set aside the conviction, finding that accessing child pornography is not a lesser included offence of possession, and that amending the information to charge accessing would prejudice the appellant.

An appeal from a Superior Court judgment concerning vehicle possession and operation.

The trial judge found that neither the vehicle owner nor the son consented expressly or impliedly to possession or operation of the truck by Hayes.

The Court of Appeal upheld this finding as being open to the trial judge on the evidence.

The appeal was dismissed with costs fixed at $10,000 payable to the respondent.

The appellant was convicted of multiple counts of possession for the purpose of trafficking and possession of proceeds of crime after police discovered drugs and cash following an anonymous call reporting a break-in at his residence.

The appellant sought to exclude the evidence, alleging that police had staged the break-in and made the anonymous call in breach of his Charter rights.

The pre-trial judge dismissed the application, finding the appellant had not met the burden of proving the illegality of the warrantless entry.

The Court of Appeal allowed the appeal on two grounds: (1) the trial judge erred in finding he lacked authority to permit the defence to record testimony with a high-quality microphone for voice identification analysis; and (2) the trial judge erred in placing the burden of proof on the appellant rather than the Crown to justify the warrantless entry.