ONCA 2017

The appellant received notice of fundamental changes to his employment contract in July 2007, with working notice until September 1, 2009.

In October 2008, the respondents sought to impose immediate changes requiring the appellant to close his neighbourhood office and relocate to an Allstate-operated office.

The appellant refused and was terminated for cause on November 6, 2008.

The trial judge found the termination was proper.

On appeal, the court found that the Neighbourhood Office Agent Amendment (NOA) precluded the respondents from unilaterally imposing the relocation during the notice period, as it constituted a fundamental change to the agreed business model.

The appeal was allowed in part, with the appellant entitled to compensation for the balance of the notice period.

The appellant appealed his conviction for second-degree murder arising from a home invasion robbery of a drug dealer during which the victim was fatally stabbed.

The Crown's case relied heavily on testimony from the appellant's accomplice who pleaded guilty to manslaughter.

The appellant raised four grounds of appeal concerning jury instructions: the failure to give a Vetrovec warning, the failure to give a W.(D.) instruction, the instruction on common purpose liability, and improper re-examination.

The appellant also appealed his sentence of life imprisonment with no parole eligibility for 22 years.

The court dismissed all grounds of appeal, finding that defence counsel's tactical decisions at trial were reasonable and that the trial judge properly exercised his discretion in jury instructions.

The appellant appealed her convictions on four offences relating to marijuana grow-operations and one count of breach of recognizance, as well as seeking leave to appeal her sentence.

She argued that her guilty pleas were invalid because she was uninformed of immigration consequences, that the facts did not support her pleas, that her counsel was in a conflict of interest, and that she was deprived of effective assistance of counsel.

She also challenged the sentence as unfit due to failure to consider immigration consequences and claimed the forfeiture orders were grossly disproportionate.

The Court of Appeal dismissed the conviction appeal and denied leave to appeal sentence, finding the guilty pleas were informed, no conflict of interest existed, the appellant received effective assistance of counsel, and the forfeiture orders were part of the accepted plea offer.

An appeal under Part XX.1 of the Criminal Code against a disposition of the Ontario Review Board dated April 6, 2017.

The appellant sought a conditional discharge and argued against residing in a group home, preferring to live with either his friend or stepfather.

The Court of Appeal found ample evidence supporting the Board's refusal to grant a conditional discharge and its requirement that the appellant continue residing in the group home.

The appeal was dismissed.

The appellant appealed his conviction entered by the Superior Court of Justice on July 4, 2016.

The principal issue was whether the trial judge erred in finding that a reasonable person in the officer's position would have believed reasonable and probable grounds existed to arrest the appellant.

The Court of Appeal upheld the trial judge's analysis, finding that she stated the correct test, correctly examined the totality of the circumstances, and that those circumstances supported the objective reasonableness of the search.

The appeal was dismissed.

Appeal from a conviction and sentence imposed by Justice Randall W. Lalande of the Ontario Court of Justice on November 2016 and January 4, 2017, respectively.

The matter was adjourned to February 15 for full argument on the merits, with one hour allocated for the appeal.

The appellant appealed the dismissal of a motion for summary judgment in an action brought by the respondents.

The appellant sought to end the Ontario action based on a previously dismissed lawsuit brought by the respondent against the appellant in India relating to the same cause of action.

The appellant invoked res judicata and abuse of process defences, and relied on a provision of the Indian Civil Procedure Code.

The motion judge denied the motion, finding that the respondent had never been served in the Indian action and no disposition had been made on the merits.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's treatment of the Indian law provision or in the application of res judicata and abuse of process doctrines.

The appellant was convicted after a jury trial of two counts of possessing narcotics for the purpose of trafficking and one count of possessing proceeds of crime.

The evidence was obtained through a general warrant under s. 487.01 of the Criminal Code, which authorized covert entry into a leased unit to locate and observe narcotics.

The appellant appealed on grounds relating to the jury charge and the validity of the general warrant.

The Court of Appeal allowed the appeal, finding that the general warrant was improperly issued as it was used to circumvent the more stringent requirements of a Controlled Drugs and Substances Act s. 11 warrant.

The court set aside the convictions and ordered a new trial.

The appellant was convicted of possession of oxycodone, Percocet, and clonazepam for the purpose of trafficking.

The central issue on appeal concerned the admissibility of text messages extracted from the appellant's seized cellphone.

The Crown sought to admit incoming text messages requesting drugs as hearsay evidence under the principled exception to the hearsay rule.

The trial judge admitted the messages and instructed the jury they could be used for the truth of their contents.

The appellant appealed, arguing the messages were improperly admitted and the jury was inadequately instructed.

The Court of Appeal upheld the conviction, finding the incoming text messages were properly admissible under the principled exception to the hearsay rule based on threshold reliability and necessity, and that the jury charge adequately addressed the dangers of hearsay evidence.

The appellant, a contractor, challenged an international commercial arbitral award arising from a US$258 million pipeline construction project in Madagascar.

The appellant sought to set aside portions of the award on grounds of lack of jurisdiction over counterclaims, failure to exercise jurisdiction over prolongation costs, denial of procedural fairness regarding retention monies, hydro seeding costs, and costs awards, and violation of public policy regarding alleged double recovery from forfeiture of tranche payments and liquidated damages.

The application judge dismissed all claims.

On appeal, the court upheld the dismissal, finding that the tribunal had jurisdiction to hear the counterclaims, that the prolongation costs claim was addressed by the tribunal, that procedural fairness was afforded on all issues, and that the award did not violate public policy.

The moving party sought an extension of time to appeal a dismissal order from the trial court.

The dismissal was granted after the moving party failed to appoint new counsel or file a notice of intention to act in person following her previous counsel's removal from the record.

The moving party had instead attempted to set aside the dismissal order on the basis it was made without notice, which motion was dismissed.

The Court of Appeal considered the applicable principles for extending time to appeal and granted the extension on terms, finding the proposed appeal raised arguable issues and that the justice of the case favoured granting the extension despite the moving party's lack of diligence.

An appeal from a Superior Court judgment was adjourned pending receipt of the trial transcript and Digital Court Recording.

The Court of Appeal determined that it could not properly hear the appeal without these materials and ordered the Registrar to obtain copies for the panel and parties.

The appeal was rescheduled for February 2, 2018, with supplementary factums to be filed by both parties.

The appellant appealed a trial judge's dismissal of her application for retroactive spousal support covering a four and a half year period from June 30, 2010 to December 31, 2014.

The appellant argued the trial judge erred by not accounting for time spent in mediation when considering delay, by failing to address compensatory support, and by not providing reasons for departing from the Spousal Support Advisory Guidelines.

The Court of Appeal upheld the trial judge's decision, finding no error in the exercise of discretion regarding retroactive support, which carries no presumptive right.

An employee appealed a judgment regarding vesting of stock options under an employment contract.

The application judge found that a sale of substantially all of the company's assets to Lexmark constituted a triggering event causing the employee's unvested options to vest.

The Court of Appeal upheld the decision on all grounds, finding that the Option Plan was binding, the sale constituted a triggering event, the employee properly exercised the options, the employee reasonably did not mitigate by seeking employment with Lexmark, and the requirement to purchase options through a holding company was appropriate.

The appeal was dismissed with costs.

The appellant appealed his convictions for sexual assault and sexual touching of a thirteen-year-old cousin.

The primary ground of appeal was that the appellant received ineffective assistance from trial counsel.

The Court of Appeal rejected this argument, noting that trial counsel had conducted an extensive and rigorous cross-examination of the complainant.

The trial judge had provided detailed reasons for disbelieving the appellant and accepting the complainant's evidence, finding consistency on core issues.

The Court found no basis to suggest that a different approach by trial counsel would have led to a different result.

The appeal was dismissed.

Crown appeal from an acquittal on a charge of possession of narcotics for the purpose of trafficking.

The trial judge erred in law by confining his analysis to exclusive possession and failing to consider joint possession as an alternative issue raised by the facts and submissions of trial counsel.

The Court of Appeal allowed the appeal, set aside the acquittal, and ordered a new trial.

Appeal from trial judgment in matrimonial proceedings concerning ownership of property.

The trial judge found that the appellant's 50% interest in Knapton Farms Ltd. (a corporation holding farm property) and 100% interest in lot 8 (adjoining land) were beneficially owned by the respondent through resulting trust.

The Court of Appeal allowed the appeal in part, finding that the trial judge correctly applied resulting trust principles to the Knapton shares but erred regarding lot 8.

The court held that the initial 1994 transfer of lot 8 to the parties as joint owners created a presumption of joint beneficial ownership under the Family Law Act, which the respondent failed to rebut.

However, the court upheld the resulting trust finding regarding the 1996 transfer of the respondent's half-interest to the appellant.

The court also corrected the valuation of farm real estate and addressed equalization, occupation rent, and pre-judgment interest issues.

This is a second appeal in a child protection matter involving a 10-year-old child made a Crown ward with no access for adoption purposes.

The biological parents appealed the no access order.

The first appeal judge, while finding no error with the trial judge's determination, nonetheless ordered access followed by an openness hearing, made findings of ineffective assistance of counsel against trial counsel, and ordered personal costs against her.

The Court of Appeal allowed the Society's appeal, restored the trial judge's no access order, dismissed the parents' cross-appeal seeking declarations of Charter violations and miscarriage of justice, and allowed trial counsel's cross-appeal on the ineffective assistance findings and costs order.

The appellant was convicted on an indictment containing ten counts of various offences against three persons, with allegations spanning periods of 8 to 10 years.

On appeal from conviction, the appellant advanced two grounds: first, that the trial judge applied uneven scrutiny to the evidence, subjecting Crown witnesses to a less rigorous standard than defence witnesses; and second, that the trial judge improperly imposed an evidentiary burden on the appellant to explain injuries sustained by one complainant.

The Court of Appeal dismissed both grounds, finding that the trial judge's reasons reflected a cautious, even-handed approach to credibility assessment and that the trial judge's comments regarding the unexplained injuries were merely observations on the state of evidence rather than an improper shift in the burden of proof.

The appellant sought to withdraw guilty pleas to fail to remain causing death and fail to remain causing bodily harm under the Criminal Code, claiming he misunderstood the charges and believed he was pleading to Highway Traffic Act offences.

The Court of Appeal dismissed the appeal, finding that the appellant failed to meet the onus of demonstrating that his plea was not informed.

All objective evidence from plea negotiations, the plea inquiry, the plea itself, and sentencing hearing established that the charges were Criminal Code offences.