ONCA 2017

The appellant appealed the dismissal of his action for malicious prosecution against the respondent.

The trial judge had applied the correct legal test from Miazga v. Kvello Estate, which requires proof of four elements: initiation of prosecution by the defendant, termination in the plaintiff's favour, absence of reasonable and probable cause, and malice.

The appellant challenged the trial judge's findings on the second, third, and fourth elements.

The Court of Appeal found that the trial judge's conclusions were supported by the evidence and that the appellant failed to discharge his evidentiary burden on the balance of probabilities.

The appeal was dismissed.

The Attorney General appealed a Superior Court decision that appointed two amici to assist on an appeal challenging the trial judge's appointment of amici in a complex family law custody and access case.

The appeal judge imposed a stay of proceedings conditional on the Attorney General negotiating a mutually acceptable rate of compensation with the appointed amici.

The Court of Appeal allowed the Attorney General's appeal, finding that Criminal Lawyers' Association does not impose an obligation on the Attorney General to negotiate rates with court-appointed amici, and that a stay is only appropriate where amicus assistance is truly essential and no other qualified counsel can be found.

The court set aside the stay and remitted the matter for the appointment of one amicus from counsel willing to accept legal aid rates.

The appellants appealed a judgment from the Superior Court of Justice rendered by Justice Paul B. Kane following a jury trial.

The Court of Appeal allowed the appeal and awarded the appellants costs of the appeal in the amount of $22,000.

The costs of the trial were reserved to the discretion of the judge presiding over the re-trial.

The appellant appealed a trial judgment that found she was a partner in a law firm rather than an employee.

The appellant argued that the trial judge failed to properly apply the control and dependency test established in McCormick v. Fasken Martineau DuMoulin LLP.

The Court of Appeal upheld the trial judgment, holding that McCormick does not establish control and dependency as an all-purpose test for determining partnership status.

Instead, courts must examine all surrounding circumstances, the substance of the relationship, the behaviour of the parties, and their intentions.

The trial judge's findings of fact, which supported a partnership relationship, were available on the evidence and no palpable and overriding error was demonstrated.

The appellant appealed both his conviction and sentence for trafficking in fentanyl and using a forged prescription.

The conviction was based entirely on circumstantial evidence of identity.

The trial judge found the appellant guilty of three counts of using a forged document and three counts of trafficking in fentanyl, sentencing him to six years imprisonment less eighteen months credit for pre-sentence custody.

The appellant argued the verdict was unreasonable because the evidence was insufficient to prove identity beyond a reasonable doubt and that another person could have impersonated him using fake identification.

The Court of Appeal upheld the conviction, finding the circumstantial evidence of identity was sufficient and that the trial judge properly applied the legal standard for convictions based on circumstantial evidence.

The court also dismissed the sentence appeal, finding the six-year sentence was fit and proportionate to the appellant's role in the trafficking ring.

A self-represented plaintiff sought leave to appeal from a Divisional Court order quashing her appeal for lack of jurisdiction.

The original claim against the defendants sought damages totaling $350,000 but failed to articulate any recognizable cause of action.

The Superior Court dismissed the action as frivolous, vexatious, and an abuse of process.

The Divisional Court quashed the subsequent appeal on jurisdictional grounds due to the monetary amounts involved exceeding its jurisdiction.

The Court of Appeal dismissed the motion for leave to appeal as frivolous, vexatious, and an abuse of process, and imposed restrictions on future motions by the plaintiff without prior written leave from a panel.

The appellant appealed his conviction on the ground that the verdict was unreasonable and unsupported by the evidence.

The trial judge had convicted the appellant of several offences arising from his conduct at his father's business premises, where he appeared agitated, made gestures suggesting he was armed, and a loaded handgun was subsequently found at the rear of the building.

The Court of Appeal upheld the conviction, finding that the case was circumstantial in nature but that the trier of fact could reasonably conclude that the appellant's guilt was the only reasonable conclusion on the totality of the evidence.

The appellant appealed a trial judgment dismissing her claim for wrongful denial of a full-time position at a care centre.

The respondents brought motions for security for costs and access conditions to trial exhibits.

The court granted the appellant access to trial exhibits at her cost and in the presence of respondent's counsel.

The court also ordered security for costs of $20,000, finding the appeal frivolous and vexatious based on the appellant's conduct and insufficient evidence to challenge the trial judge's findings on both the limitation period and merits.

The respondents were awarded costs of $2,500 for their motion.

The Crown appealed a stay of proceedings granted by the trial judge for unreasonable delay under s. 11(b) of the Canadian Charter of Rights and Freedoms.

The accused was charged with first degree murder in December 2012 and the trial was scheduled to commence in November 2016, resulting in a total delay of 48 months.

The trial judge found that after deducting defence delay and discrete events, the net delay of 40 months exceeded the 30-month presumptive ceiling established in R. v. Jordan and was not justified by case complexity or the transitional exceptional circumstance.

The Court of Appeal allowed the Crown's appeal, finding that the trial judge erred in her complexity analysis and her application of the transitional exceptional circumstance.

The court held that the delay was justified under the transitional exceptional circumstance because the case was prosecuted almost entirely prior to Jordan's release and would not have resulted in a stay under the previous Morin framework.

The appellant appealed his sentence of 5.5 years (66 months) less 25 months credit for time in predisposition custody, resulting in a net sentence of 41 months in federal penitentiary.

The appellant pleaded guilty to possession of a prohibited firearm with readily accessible ammunition, dangerous operation of a motor vehicle, flight from police, and possession of marijuana for trafficking purposes.

The appellant contended the trial judge erred in principle by failing to apply restraint as a first-time offender and by imposing a sentence outside the range for similar offenders.

The Court of Appeal dismissed the appeal, finding the sentence fit and appropriate given the serious nature of the offences.

The appellant appealed his conviction and sentence for attempted murder, unlawful confinement, uttering death threats, and assaulting a police officer.

Although he pleaded guilty, he advanced a mental disorder defence seeking a verdict of not criminally responsible on account of mental disorder.

The trial judge rejected the NCR defence and imposed a sentence of 20 years imprisonment.

On appeal, the appellant sought leave to appeal sentence, contending it was manifestly unfit and that insufficient weight was given to his mental illness as a mitigating factor.

The Court of Appeal dismissed the appeal from conviction as abandoned and dismissed the appeal from sentence, finding the 20-year sentence was not manifestly unfit and that the trial judge had appropriately considered the appellant's mental condition.

The appellant appealed a summary judgment decision dismissing his action against the Ottawa Police Services Board for malicious prosecution, negligent investigation, and Charter infringement.

The appellant had been arrested and charged with first-degree murder, conspiracy to commit murder, and possession of explosives.

He was convicted at trial but the conviction was overturned on appeal due to misdirection and inadmissible hearsay evidence.

On retrial, the Crown's case collapsed due to evidentiary difficulties and the appellant was acquitted.

The Court of Appeal upheld the summary judgment, finding that the committal for trial and the order for a new trial constituted sufficient judicial determinations to support reasonable and probable grounds for the prosecution, absent a fundamental flaw in the criminal proceedings.

The National Gallery of Canada retained Lafleur de la Capitale Inc. for landscaping and maintenance services and required Lafleur to add it as a named insured under its comprehensive general liability policy with Intact Insurance Company.

The Gallery was added as an additional insured only insofar as its legal liability arose vicariously out of Lafleur's operations.

When a Lafleur employee died while performing maintenance work at the Gallery's premises, two actions were commenced against the Gallery by the employee's spouse and family members.

The Gallery applied for a declaration that Intact had a duty to defend.

The application judge granted the application in brief reasons that failed to address exclusion clauses or the nature of the allegations in the statements of claim.

The Court of Appeal found the application judge's reasons inadequate and did not permit meaningful appellate review, allowing the appeal and remitting the application for a new hearing.

The appellant wife appealed a trial judge's decision on a change motion.

The Court of Appeal allowed the appeal in part, increasing the additional spousal support awarded by the trial judge due to the husband's early retirement and lump sum pension payout and other changed circumstances.

The court dismissed the wife's appeal challenging the denial of ongoing child support.

The parties were unable to agree on trial costs, and the court addressed this issue in a costs endorsement.

The appellant was convicted at trial of impaired operation of a motor vehicle causing death and dangerous operation of a motor vehicle causing death, and was sentenced to six years imprisonment.

On appeal, the appellant challenged the trial judge's factual findings regarding impairment and whether the operation constituted a marked departure from the standard of a reasonably prudent operator.

The Court of Appeal upheld the convictions, finding the trial judge's conclusions were rooted in adequate evidentiary foundation and entitled to deference.

Leave to appeal sentence was granted but the sentence appeal was dismissed as the six-year term fell within the appropriate range for similar offences.

The appellant appealed his convictions for two counts of assault and one count of sexual assault arising from incidents in a domestic relationship.

The Crown's case relied primarily on the complainant's testimony, which the appellant denied.

The appeal raised three grounds: whether the trial judge erred in failing to instruct the jury on the limited use of prior consistent statements; whether the trial judge erred in refusing to instruct the jury on the defence of mistaken belief in consent; and whether the trial judge erred in refusing to admit evidence of other sexual activity between the appellant and the complainant.

The Court of Appeal dismissed the conviction appeal and the sentence appeal.

The appellant was convicted of assault following a trial before a judge sitting without a jury on charges of sexual assault and sexual interference.

The conduct involved the appellant entering a washroom stall where a three-year-old stranger was standing with his clothing down and pulling the child's sleepers up, making contact with the child's buttocks.

The appellant appealed on the grounds that the trial judge erred in failing to apply an objective test regarding whether the conduct was within the class of ordinarily acceptable conduct in daily life, and in failing to apply the criminal standard to these issues.

The Court of Appeal dismissed the appeal, holding that the statutory definition of assault in section 265(1)(a) of the Criminal Code is exhaustive and does not require proof of socially unacceptable conduct beyond intentional and non-consensual touching.

The appellant appealed his conviction for trafficking cocaine, seeking to set aside his guilty plea on the ground that it was uninformed.

The appellant, a permanent resident, was not advised of the immigration consequences of his conviction, which rendered him inadmissible to Canada and subject to removal with no right of appeal.

The trial judge had accepted the plea after a complete plea comprehension inquiry, and the sentence was imposed pursuant to a joint submission.

The Court of Appeal admitted fresh evidence establishing that the appellant was unaware of the immigration consequences and would not have pleaded guilty had he known.

The court found the plea was uninformed and therefore invalid, set aside the conviction, and ordered a new trial.

The appellant appealed from a conviction entered after pleading guilty to carrying a concealed weapon contrary to s. 90(2) of the Criminal Code.

The Crown had elected to proceed by indictment.

The critical issue was whether the trial court had jurisdiction to receive the guilty plea.

The appellant was entitled to elect his mode of trial under s. 536(2) of the Criminal Code, but was never put to his election.

The court found that the failure to comply with the election requirements went to the jurisdiction of the trial court and could not be cured by the procedural proviso.

The conviction was set aside and a new trial was ordered.

The appellant, convicted of first-degree murder for the sexual assault and murder of a 70-year-old woman committed when he was 15 years old, appealed his sentence.

The Crown had sought and obtained an adult sentence rather than a youth sentence.

The appellant challenged the sentencing judge's decision on three grounds: failure to consider whether the presumption of diminished moral blameworthiness was rebutted, use of the appellant's testimony and denial of guilt as aggravating factors, and failure to properly weigh rehabilitation and integration principles.

The Court of Appeal dismissed the appeal, finding that although the sentencing judge erred in using the appellant's testimony as an aggravating factor, the error had no impact on the sentence and an adult sentence remained fit given the heinous nature of the crime.