Robert A. Blair

The Court of Appeal reviewed written submissions regarding the costs of an appeal.

The court declined to award costs on a substantial indemnity scale.

Costs of the appeal were fixed in favour of the respondent at $12,500 inclusive of GST and disbursements.

The appellant appealed an order dismissing his action as an abuse of process.

The motions judge had concluded that commencing a new action against individual defendants after the court refused to amend the claim to name them in a prior action constituted an abuse of process.

The Court of Appeal found this was an error in principle, as the prior decision was purely procedural and did not deal with the merits of the claim.

The appeal was allowed and the action was permitted to proceed.

The appellants appealed a judgment of the Superior Court, alleging a reasonable apprehension of bias based on comments made by the trial judge during a costs endorsement.

The trial proceeded undefended after defence counsel advised she was instructed not to attend.

The Court of Appeal found that the impugned comments, while unfortunate, were made after judgment was granted and in response to a request for solicitor and client costs, and tended to support rather than attack the defendant's interests.

The test for reasonable apprehension of bias was not met, and the appeals were dismissed.

The Children's Lawyer appealed an order requiring it to prepare a report and mandating that the report be authored by a different worker than the one who prepared a previous report.

The Court of Appeal allowed the appeal, finding that the judge of first instance lacked jurisdiction to require a report to be made or to dictate which designated worker must author it.

The Court held that while a judge may request a different worker, it remains for The Children's Lawyer to decide whether to participate on those terms.

The appellant appealed a summary judgment dismissing its claim regarding a commercial lease.

The appellant argued that a lease was assigned to it or that an oral agreement for a five-year lease was reached.

The Court of Appeal upheld the motions judge's finding that there was no valid assignment in writing as required, and that the evidence did not support an oral agreement.

The appeal was dismissed with costs.

The appellant appealed an order dismissing his solicitor negligence action for delay under Rule 24.01(1).

This was the appellant's third action dismissed for delay, stemming from a 1956 construction contract dispute.

The Court of Appeal found no error in the motion judge's findings that the appellant was responsible for the delay, that there was no justifiable excuse, and that the defendants suffered prejudice.

The appeal was dismissed.

The accused was stopped for erratic driving and admitted to consuming alcohol.

The police officer demanded a breath sample for an approved screening device, which the accused unequivocally refused.

The summary conviction appeal judge acquitted the accused, holding that a valid demand under s. 254(2) of the Criminal Code requires the device to be immediately ready and the officer to explain the consequences of refusal.

The Court of Appeal allowed the Crown's appeal and restored the conviction, finding that s. 254(2) does not mandate these prerequisites, particularly when the accused outright refuses to provide a sample.

In a supplementary endorsement, the Court of Appeal addressed the costs of the appellant's unsuccessful stay motion, which had been reserved to the panel hearing the appeal.

The court awarded the respondent costs of the motion fixed at $5,000, inclusive of disbursements and GST.

The respondent was acquitted of impaired driving causing bodily harm and driving 'over eighty' after the trial judge excluded breath sample results under s. 24(2) of the Charter, finding a breach of the respondent's s. 10(b) right to counsel.

The trial judge concluded the respondent was not afforded adequate privacy while speaking to duty counsel from a hospital room.

The Crown appealed.

The Court of Appeal allowed the appeal and ordered a new trial, holding that the respondent's subjective belief that his conversation was not private was unreasonable in the circumstances, as he was left alone in a room, the officer stood 20 feet away, and the respondent never expressed any privacy concerns to the officer.

The appellant appealed a trial judgment regarding child and spousal support, custody and mobility, and equalization.

The appellant argued the trial judge erred in calculating his income, allowing the respondent to relocate to New York with the children, discounting family loans for equalization purposes, and managing the trial proceedings.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors in the trial judge's factual findings, application of the mobility test, or valuation of the debts.

The court also held that while the trial judge erred in restricting cross-examination on an expert report, it did not deprive the appellant of a fair trial.

The appellant appealed her sentence, arguing it was unfit and that a probation condition regarding her residence was unduly punitive.

The Court of Appeal found the sentence fit, noting the appellant committed the serious offence while on probation for a similar offence and had previously re-offended after receiving a conditional sentence.

The Court amended the wording of the probation condition to reflect the trial judge's reasons but otherwise dismissed the appeal.

The appellant appealed the dismissal of his certiorari application challenging his committal for trial on charges including attempted murder.

At the preliminary inquiry, the judge refused to hear defence submissions on the committal, which constituted a denial of natural justice.

The Court of Appeal held that this error, while going to jurisdiction, originated as a procedural irregularity and was curable under s. 686(1)(b)(iv) of the Criminal Code.

The appeal was dismissed because the appellant suffered no prejudice, as the evidence clearly supported a committal for attempted murder.

The appellant appealed his summary conviction for having care and control of a motor vehicle with a blood alcohol level over 80 milligrams.

He argued that his Charter rights under s. 8 and s. 10(b) were violated, and that the Crown failed to prove care and control.

The Court of Appeal dismissed the appeal, finding that the appellant waived his right to counsel by stating 'I'll blow first' and that there were sufficient grounds to demand a breath sample.

The court also upheld the trial judge's finding of care and control based on the appellant standing beside the vehicle with keys in the ignition.

The appellant appealed his conviction and sentence for assault, arguing he did not understand his right to counsel under s. 10(b) of the Charter.

The Court of Appeal upheld the trial judge's credibility finding that the appellant understood his rights at all material times.

The court also found the sentence was not demonstrably unfit given the serious nature of the assault.

Both the conviction and sentence appeals were dismissed.

The appellant appealed his conviction and sentence for historical sexual assault.

The Court of Appeal found the jury's verdict was not unreasonable despite inconsistencies in the complainant's evidence, which were typical for historical sexual assaults.

The Crown conceded the trial judge erred in principle by treating the appellant's refusal to accept responsibility as an aggravating factor.

However, the Court held that the six-month custodial sentence was not unfit.

The appeal from conviction and sentence was dismissed.

The appellant appealed his conviction, arguing that the trial judge erred in her jury instructions regarding the defence of honest but mistaken belief in consent and recklessness.

The Court of Appeal dismissed the appeal, finding that the instructions, read as a whole, did not invite the jury to apply an objective standard nor did they place the onus of proof on the appellant.

The appellant appealed his convictions for assault and impaired driving, as well as his sentence.

The Court of Appeal upheld the trial judge's finding that the Crown disproved self-defence under s. 34(2) of the Criminal Code, as the appellant stabbed his assailant without warning when he could have escaped.

The court also upheld the rejection of the necessity defence for impaired driving.

The sentence appeal was allowed in part, reducing the impaired driving sentence from one year to four months concurrent, based on a Crown concession.

The court declined to interfere with the trial judge's refusal to impose a conditional sentence for the assault.

The appellant appealed his conviction for mischief, arguing the case involved his fundamental right to communicate with elected officials.

The Court of Appeal upheld the summary conviction appeal judge's decision, finding that the appellant crossed the line by wilfully interfering with the lawful use and operation of his MPP's fax machine, thereby interfering with other citizens' rights to communicate.

The trial judge's finding that the appellant acted out of anger and frustration, rather than a desire to communicate, was supported by evidence.

The appellant appealed his convictions for impaired driving, dangerous driving, and assault with intent to resist arrest.

The Court of Appeal dismissed the appeal regarding the driving offences, finding no error by the summary conviction appeal judge.

However, the Court allowed the appeal on the assault charge, holding that the appellant's act of pulling his arm away to disengage from police officers did not constitute an assault in law, though it likely amounted to an offence under s. 129 of the Criminal Code.

The conviction for assault resisting arrest was set aside.

The respondents moved to stay the appellant's action and for an order for security for costs on the appeal, citing the appellant's failure to pay over $27,000 in costs awards from previous unsuccessful proceedings.

The appellant, who was suing for historical sexual and physical abuse, was impecunious and relied on a disability pension.

The Court of Appeal dismissed the motions, finding that despite the unpaid costs and the respondents' valid concerns, the impecunious appellant should not be deprived of a final opportunity to have his case considered on the merits, as the appeal was not plainly devoid of merit.