Court of Appeal

The appellant mother appealed a trial judge's decision awarding custody of the child to the respondent father.

The Court of Appeal found no basis to interfere with the trial judge's carefully considered reasons, which focused on the child's best interests.

The trial judge had also ordered the father to pay for the mother's airfare to facilitate access due to her limited means.

The appeal was dismissed with costs fixed at $4,000.

The appellant appealed his conviction for sexual assault, arguing the trial judge erred regarding the complainant's capacity to consent and competency to testify.

The Court of Appeal dismissed the appeal, holding that capacity to consent and competency to testify are distinct issues.

The court found that even if the trial judge erred on capacity, she accepted the complainant's version of events, which indicated no consent.

Furthermore, the appellant's own testimony showed he failed to take reasonable steps to ascertain consent.

The defendants in a personal injury action brought a motion for an extension of time to file a Notice of Cross-Appeal.

The trial judge had instructed the jury on causation using the 'material contribution' test, and the jury found in favour of the plaintiff.

Following a recent Supreme Court of Canada decision clarifying that the 'but for' test is the standard for causation, the defendants sought to cross-appeal.

The Court of Appeal granted the motion, finding that the delay was reasonably explained, the cross-appeal had considerable merit, and the justice of the case favoured allowing the cross-appeal to proceed alongside the plaintiff's appeal.

The appellant appealed a summary judgment dismissing her professional negligence action against her former solicitor.

The action stemmed from a previous lawsuit where the solicitor had concerns about the appellant's mental competency.

The Court of Appeal found no evidence that the solicitor breached the standard of care in the unusual circumstances of the case.

The appeal was dismissed with costs.

Canada Post Corporation brought an application for an injunction to restrain the appellant from violating its exclusive privilege to collect and deliver international mail under section 14(1) of the Canada Post Corporation Act.

The appellant argued that the Act provided a complete code with specific penalties, precluding civil proceedings, and raised equitable defences of laches, delay, and estoppel.

The Court of Appeal held that Canada Post has the right to seek an injunction to enforce its statutory privilege, as the penalty provisions alone are insufficient to protect its mandate.

The Court further held that equitable defences cannot be raised against a Crown agent to prevent the operation of a public policy statute.

The appeal was dismissed.

The respondent was convicted of sexual assault against a child and received a conditional sentence.

The trial judge refused the Crown's request for a DNA databank order and a sex offender registry order, reasoning that the respondent did not present an ongoing risk to the community.

The Crown appealed.

The Court of Appeal allowed the appeal, finding that the trial judge erred in principle by failing to apply the 'grossly disproportionate' test required by the Criminal Code and by minimizing the public interest in registration.

The Court set aside the trial judge's refusal and made the requested orders.

The appellant was convicted of attempted murder and robbery.

On appeal, he argued for the first time that his s. 10(b) Charter rights were violated when police elicited an unrecorded statement from him after he requested counsel but before he was given an opportunity to consult one.

The Court of Appeal allowed the issue to be raised, finding a sufficient evidentiary record and no prejudice to the Crown.

The Court held that subsequent recorded statements, taken after the appellant consulted counsel, were tainted by the initial breach due to their close temporal and contextual connection.

The statements were excluded under s. 24(2) as conscriptive evidence, and a new trial was ordered.

The appellant appealed from a conviction entered by the Ontario Court of Justice.

The Court of Appeal dismissed the conviction appeal, finding that despite alleged errors in the trial judge's reasons, the core of the decision was clear and there was no basis to interfere.

The sentence appeal was abandoned.

The appellant pleaded guilty to eighteen offences, including ten for fraud under $5,000, and was sentenced to 18 months' imprisonment plus 161 days of pre-trial custody.

She appealed the custodial portion of her sentence, arguing the sentencing judge erred in granting only 1:1 credit for pre-trial custody without providing an ascertainable rationale.

The Court of Appeal found this to be an error in principle, allowed the appeal, and reduced the sentence to time served based on a 2:1 credit for pre-trial custody.

The appellant appealed a four-year sentence for a non-residential break and enter.

The sentencing judge had heavily weighed the aggravating factor that the appellant recruited his 14-year-old daughter and her boyfriend to commit the offence.

The Court of Appeal held that while this was a serious aggravating factor, increasing the sentence by almost three years for it was too harsh.

The appeal was allowed and the sentence was reduced to three years total, comprising 15 months of pre-trial custody credit and 21 months of new custody.

The appellant appealed the sentence imposed by the trial judge, arguing that the trial judge erred in principle with respect to a joint submission.

The Court of Appeal found no error, noting that the trial judge effectively applied the required test and correctly concluded that the proposed sentence, including three years of probation, would be insufficient to protect the public interest given the appellant's history of breaching probation orders on at least six other occasions.

Leave to appeal sentence was granted, but the appeal was dismissed.

The appellant was acquitted at trial of failing to comply with a breath demand.

The Crown successfully appealed to the Summary Conviction Appeal Court, which ordered a new trial on the basis that the trial judge found the appellant had feigned compliance, which is tantamount to a refusal.

The appellant sought leave to appeal to the Court of Appeal.

The Court of Appeal agreed that the trial judge's findings amounted to a feigned attempt to blow and denied leave to appeal.

The appellant appealed a summary judgment order that dismissed his claims against his former employer regarding changes to his compensation structure and unpaid trailer fees.

The Court of Appeal upheld the motion judge's finding that the limitation period barred claims respecting changes to the compensation structure.

However, the Court found that the limitation period did not apply to the limited claim for trailer fees earned by the appellant and received by the employer in the first quarter of 2000 before his departure.

The appeal was allowed in part against the corporate respondent only.

The appellant appealed a trial judgment granting a non-suit.

The Court of Appeal found that the trial judge erred because there was probative evidence of the oral contract contended for by the appellant.

The appeal was allowed, the judgment was set aside, and judgment was ordered for the appellant with costs.

The appellant, a member of the Aroland First Nation (Treaty 9), was charged with hunting moose without a licence in Treaty 3 territory.

He argued he had a constitutionally protected right to hunt there because he was married to a member of the Lac Seul First Nation (Treaty 3) and had been accepted into that community.

The justice of the peace acquitted him, but the appeal judge entered a conviction.

The Court of Appeal allowed the appeal and restored the acquittal, finding that the appellant was entitled to shelter under Treaty 3 rights as he was hunting in accordance with Ojibway custom and had been accepted by the Treaty 3 community to share in their harvest.

The appellant was convicted of manslaughter following a group assault on a 15-year-old boy.

On appeal, the appellant challenged the trial judge's jury instructions regarding eyewitness identification, party liability, and the failure to give a Vetrovec warning for a specific witness.

The appellant also argued the trial judge erred in permitting the Crown to cross-examine a witness on prior inconsistent statements under section 9(2) of the Canada Evidence Act.

The Court of Appeal dismissed the appeal, finding no errors in the trial judge's instructions or evidentiary rulings.

The appellants, members of the Walpole Island First Nation, were convicted of hunting without a licence in the Robinson-Superior Treaty territory.

They argued they were sheltering under the treaty rights of the Michipicoten First Nation, an Ojibway community that is a signatory to the treaty.

The Court of Appeal held that while Aboriginal persons can shelter under another First Nation's treaty rights if supported by custom, the appellants failed to establish they had obtained the necessary communal consent in advance to share in the harvesting resource.

The appeal was dismissed.

The Crown appealed the dismissal of a certiorari application regarding a preliminary inquiry judge's decision to discharge the accused on charges of aggravated assault and failing to provide the necessaries of life.

The charges related to injuries suffered by the accused's infant children.

The Crown argued the preliminary inquiry judge failed to consider the totality of the evidence and impermissibly weighed competing inferences.

The Court of Appeal dismissed the appeal, finding no error in the certiorari judge's conclusion that the preliminary inquiry judge properly considered the evidence and engaged only in the limited weighing permissible for circumstantial evidence at a preliminary inquiry.

The appellant brought a proposed class proceeding alleging the respondent bank received interest on cash advances in violation of the criminal interest rate provisions of the Criminal Code.

The motion judge refused to certify the action, finding that restitution and breach of contract claims lacked common issues and that a class proceeding was not the preferable procedure.

The Divisional Court affirmed.

The Court of Appeal allowed the appeal and certified the class proceeding, holding that sections 23 and 24 of the Class Proceedings Act could be used to assess and distribute aggregate damages, thereby resolving the common issues problem.

The Court also found that a class proceeding was the preferable procedure to achieve judicial economy, access to justice, and behaviour modification.

The defendants appealed an order dismissing their motion to set aside a default judgment.

The motion judge had found the defendants moved expeditiously and adequately explained their default, but dismissed the motion solely because the defence was not adequately fleshed out in the affidavit.

The Court of Appeal allowed the appeal, finding the motion judge erred by treating the principles for setting aside default judgments as rigid preconditions and failing to consider the balance of prejudice between the parties.