ONCA 2019

The appellant was convicted of manslaughter in the death of a five-and-a-half-month-old child.

He appealed on the sole ground that the trial judge applied uneven scrutiny to the Crown and defence evidence.

The appellant did not dispute that the child died from intentionally applied significant force causing a fatal brain injury, nor that the child's body was covered in extensive bruising.

Only the appellant and the child's mother had the opportunity to cause the fatal injury.

The Court of Appeal dismissed the appeal, finding that the trial judge did not apply uneven scrutiny and was entitled to make the credibility findings and reach the decision she did.

The appellant was convicted of sexual interference and invitation to sexual touching involving his stepdaughter but acquitted of sexual assault.

On appeal, the court found that the trial judge erred by allowing improper cross-examination regarding the complainant's motive to fabricate and by using the absence of proved motive to enhance the complainant's credibility.

The Crown's extensive questioning required the appellant to speculate about the complainant's motives, thereby improperly shifting the burden of proof.

The court held that such cross-examination violates long-standing jurisprudence and that the absence of evidence of motive cannot be used to bolster credibility.

The appeal was allowed and a new trial was ordered.

The appellant appealed his conviction for second-degree murder in the death of his girlfriend.

The Crown's theory was that the appellant killed her in a dispute about his drug abuse and theft of money to acquire drugs.

The appellant claimed he witnessed a drug dealer kill the victim.

The appeal addressed three grounds: (1) admissibility of a police statement taken in hospital; (2) jury direction regarding prior inconsistent statements as evidence of consciousness of guilt; and (3) rulings on third-party suspect evidence.

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

Appeal from a conviction for possession of child pornography.

The sole issue on appeal was whether the trial judge erred in reviewing the Information to Obtain (ITO) that formed the basis for the search warrant used to seize the DVD containing child pornography.

The appellant argued that information excised from the ITO had the potential to taint the issuing justice.

The Court of Appeal found that the excisions were made consistently with established principles and that sufficient reasonable grounds remained to support the issuance of the warrant.

The appeal was dismissed.

The appellant appealed a summary judgment decision granting specific performance of an agreement of purchase and sale for a Toronto property.

The respondent sought to purchase the property for $4.5 million but the transaction failed to close on the scheduled date.

The central issue was whether the appellant's conduct in providing an altered estoppel certificate and delivering the correct certificate only one hour before the 6:00 p.m. closing deadline precluded it from relying on the time-of-the-essence clause.

The Court of Appeal upheld the summary judgment, finding that the appellant's misconduct prevented it from enforcing the strict closing deadline and that specific performance was an appropriate remedy.

A teenage plaintiff was catastrophically injured when she deliberately jumped from a moving school bus on the last day of Grade 8 as part of an informal tradition among graduating students.

The bus operator had received prior reports of students jumping from buses but failed to report these incidents to the school as required by its own handbook.

A jury found the defendant 75 per cent liable and the plaintiff 25 per cent contributorily negligent, awarding substantial damages.

The defendant appealed on grounds of improper jury charge regarding causation and contributory negligence, erroneous removal of the mitigation issue from the jury, and failure to deduct statutory accident benefits.

The Court of Appeal upheld the jury verdict on causation and contributory negligence, found the trial judge erred in removing mitigation from the jury but determined no miscarriage of justice resulted, and remitted the statutory accident benefits deduction issue to the Superior Court for determination.

The appellant appealed his conviction for sexual assault following a six-day trial.

He raised two grounds of appeal: first, that the trial judge improperly relied on the complainant's absence of motive to lie in assessing her credibility; and second, that the trial judge impermissibly allowed a speculative theory that the complainant had been drugged with GHB into the trial.

The Court of Appeal dismissed both grounds, finding that the trial judge's analysis of the absence of motive was consistent with established precedent and that the GHB issue, while arising from defence counsel's error, did not compromise trial fairness or affect the conviction, which was based on the complainant's credibility and corroborating evidence.

The appellant appealed his conviction for dangerous driving, possession of a stolen vehicle and licence plates, possession of cocaine for the purposes of trafficking, and two counts of failing to comply with a probation order.

The appellant, who represented himself at trial, claimed the trial judge failed to provide adequate assistance by instructing the jury to disregard a double hearsay statement that the appellant had relied upon in his closing address.

The statement allegedly came from a third party suggesting he had loaned the stolen vehicle to the appellant.

The Court of Appeal dismissed the appeal, finding the trial judge properly assisted the self-represented appellant and correctly instructed the jury to disregard the hearsay evidence.

Two consolidated appeals concerning insurance coverage and the duty to defend.

The application judge found that The Guarantee Company of North America and The Co-operators General Insurance Company had a duty to defend Ryan Reeb in an underlying negligence action, and ordered that three insurers (including Royal & Sun Alliance) share defence costs equally on a going-forward basis.

The appellants challenged the orders on grounds of limitation periods and contractual restrictions.

The Court of Appeal dismissed the appeals, upholding the application judge's reasoning that the duty to defend is an ongoing obligation applied on a rolling basis, that the limitation period does not bar claims for prospective costs, and that the equal cost-sharing arrangement was properly determined.

An appeal under Part XX.1 of the Criminal Code regarding the disposition of the Ontario Review Board dated March 14, 2019.

Although the parties agreed the appeal was moot, there was a dispute regarding the wording of the endorsement.

The court agreed with the appellant's proposed wording and dismissed the appeal as moot, noting that a subsequent Ontario Review Board hearing determined the appellant should be transferred to St. Joseph's Healthcare in Hamilton due to a treatment impasse with the Centre for Addiction and Mental Health.

The appellant appealed his drug-related convictions arising from a search warrant execution at his residence.

The trial judge found a breach of the appellant's s. 10(b) Charter right to counsel without delay but admitted the evidence under s. 24(2).

The Court of Appeal found the trial judge committed errors of principle in her s. 24(2) analysis by: (1) attenuating the seriousness of the breach based on police compliance with the duty not to question before counsel contact; and (2) treating the impact of the breach as neutral because the appellant failed to demonstrate that the delay prevented meaningful consultation with counsel.

The Court of Appeal concluded the s. 10(b) breach was serious and its impact significant, and that exclusion of the evidence was warranted to maintain the integrity of the administration of justice.

A provincially incorporated contractor providing construction services to federally regulated telecommunications companies sought to challenge a provincial labour relations board's certification of its construction technicians as a provincially regulated bargaining unit.

The contractor argued that its construction technicians performed work vital, essential, or integral to federal undertakings and should therefore be subject to federal labour jurisdiction.

The Court of Appeal reversed the Divisional Court's decision, holding that the presumption of provincial jurisdiction over labour relations was not displaced.

The court found that the federal undertaking (Rogers) was not dependent on the contractor's construction technicians, and that the proper focus in derivative jurisdiction analysis is whether the federal undertaking is dependent on the particular employees in question, not whether the work performed is generally important to the federal undertaking.

The appellant insurance company appealed from a motion judge's order declaring that it had a duty to defend claims against the respondents arising from an accidental death caused by an all-terrain vehicle operated on the respondents' property containing a private airstrip.

The appellant argued the motion judge erred by going beyond the pleadings and speculating about coverage.

The Court of Appeal upheld the motion judge's decision, finding that the motion judge correctly applied the pleadings rule and gave the widest latitude to the allegations in determining whether they raised a claim within the policy.

The court affirmed that the duty to defend is broader than the duty to indemnify, requiring only the mere possibility that a claim falls within the insurance policy.

The appellant was convicted of conspiracy to export cocaine and sentenced to five and a half years imprisonment.

On appeal, the appellant challenged the trial judge's jury instruction on the element of conspiracy, specifically regarding the formation of an agreement.

The appellant argued the instruction was confusing and failed to adequately direct the jury to consider what the agreement was for and whether discussions about exporting cocaine crystallized into an actual agreement.

The Court of Appeal dismissed the conviction appeal, finding the jury charge, read as a whole, clearly left all elements of conspiracy for the jury's consideration and properly framed the legal framework.

The sentence appeal was also dismissed as the sentence was within the appropriate range and the trial judge had properly considered the duration of the conspiracy.

The appellant appealed his sentence of 10 years' imprisonment (less enhanced pre-sentence custody credit of 3 years) imposed for guilty pleas to possession of a counterfeit mark, operation of a motor vehicle while disqualified, criminal negligence causing bodily harm, and failure to stop at the scene of an accident.

The appellant was a serious serial recidivist with 51 prior convictions spanning 20 years, predominantly for driving-related offences.

The incident involved a high-speed chase through city streets at speeds up to 138 km/h, resulting in a collision that caused serious injuries to the other driver.

The Court of Appeal dismissed the appeal, finding no errors in principle and upholding the sentence as appropriate given the appellant's extensive criminal record, poor rehabilitation prospects, and the need for public protection.

An insured claimed under a jewelry insurance policy for a ring valued at over $500,000 allegedly stolen during a late-night beach walk in the Dominican Republic.

The insurer denied the claim based on suspicious circumstances and the insured's prior loss of another valuable ring.

The motion judge granted summary judgment in favor of the insured, awarded punitive damages for bad faith, and ordered substantial indemnity costs.

On appeal, the court found the motion judge erred by refusing to allow the insurer to amend its pleadings to rely on fraud exclusions and by failing to consider credibility issues and suspicious circumstances relevant to whether the loss was proven.

The appeal court set aside the judgment and remitted the matter for trial.

The Crown sought leave to appeal the acquittal of the City of Greater Sudbury on charges under the Occupational Health and Safety Act arising from a fatal construction accident involving heavy equipment backing up without a signaller.

The Crown argued that the courts below erred in their interpretation of the definitions of "constructor" and "employer" under the OHSA.

The motion judge granted leave to appeal on the narrow ground that the interpretation of "employer" in the OHSA engaged a question of law alone of public interest, specifically whether a municipality contracting out infrastructure work could fall within the definition of "employer" based on the degree of control it exercises over the project.

The appellant appealed a summary judgment decision granting the respondent payment under a labour and materials payment bond.

The respondent had performed work under a subcontract with the general contractor, which subsequently abandoned the project.

The respondent then successfully bid to complete the remaining work under a new completion subcontract at more favourable terms.

The respondent claimed against the payment bond for unpaid invoices from the original work.

The appellant argued the respondent had fully mitigated its damages through the completion subcontract and therefore suffered no loss.

The Court of Appeal upheld the summary judgment, finding that the respondent's decision to bid on the completion subcontract was not an action taken to mitigate the loss from the failure to pay for the original work, but rather was a consequence of the contractor's abandonment of the project.

The Crown appealed a sentence imposed by the Ontario Court of Justice on a youth offender convicted of sexual assault.

The trial judge imposed a deferred custody order under s. 42(5) of the Youth Criminal Justice Act, finding that serious bodily harm was not caused.

The Court of Appeal found this conclusion was a clear error based on the trial judge's own findings regarding the life-altering impact of the assault.

The court held that a deferred custody order was not available and the sentence was illegal.

The appeal was allowed, the illegal sentence was set aside, and a six-month nine-day custody and supervision order was imposed with credit for time served, along with a one-year probation order and a mandatory two-year weapons prohibition.

The appellant appealed his sentence of ten years and two months imposed for arson causing bodily harm and arson causing property damage.

The Court of Appeal upheld the sentence as fit, finding that even if the trial judge erred in referring to an aggravating factor, it had no impact on the global sentence.

The court confirmed that consecutive sentences were appropriately imposed as the offences involved different elements.

Leave to appeal sentence was granted and any victim fine surcharge was set aside.