Rob P. Armstrong

The appellants, representative plaintiffs in a certified class action, appealed a motion judge's decision dismissing their request to amend the list of common issues to include questions regarding constructive trust, disgorgement, and waiver of tort.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that it would be unfair to add a potential new cause of action at this late stage of the proceedings.

The Court noted that the remedies of constructive trust and disgorgement remain available to the appellants at the second stage of the trial, as originally contemplated in the certification order.

The appellant was convicted of attempted murder and break and enter after attacking his former partner and her new partner.

He was designated a dangerous offender and sentenced to an indeterminate penitentiary term.

On appeal, he argued the sentencing judge erred by relying on statements he made during a pre-trial fitness assessment, claiming they were protected under s. 672.21 of the Criminal Code.

The Court of Appeal dismissed the appeal, applying R. v. Jones to hold that such statements are admissible at the sentencing stage to accurately evaluate the danger posed by the offender.

The Court also found the appellant had consented to the admission of the psychiatric evidence.

The appellant appealed his conviction for sexual assault.

He argued the trial judge erred in rejecting his explanation for DNA evidence, applied unequal scrutiny to the evidence of intoxicated witnesses, and misused evidence of vaginal bleeding.

The Court of Appeal dismissed the appeal, finding the trial judge's credibility assessments were entitled to deference and that she did not err in her treatment of the evidence.

The appellant appealed his convictions for sexual assault and drug offences, as well as his three-year custodial sentence.

He argued the trial judge erred by refusing to sever the charges, admitting improper confidential informer hearsay evidence, and failing to credit banked pre-trial custody.

The Court of Appeal dismissed the appeal, finding the trial judge properly applied the framework for severance, the evidence in question was not hearsay, and there was no proven link between the banked pre-trial custody and the current charges.

The appellant appealed his conviction for aggravated assault and his one-year custodial sentence.

He argued the trial judge misapprehended evidence regarding his role in a gang attack and provided insufficient reasons.

The Court of Appeal dismissed the appeal, noting the appellant gave two voluntary statements to police explicitly acknowledging his role in the assault.

The court also upheld the sentence, finding it fit given the sudden and vicious nature of the attack by multiple people.

The appellants appealed an order granting a mistrial in a motor vehicle accident damages trial.

The trial judge ordered a mistrial after finding that the cumulative effect of inflammatory comments made by the appellants' trial counsel during closing arguments impaired trial fairness and could not be cured by a correcting instruction.

The trial judge also declined to decide the issue of damages herself, preserving the respondents' right to a jury trial.

The Court of Appeal dismissed the appeal, deferring to the trial judge's assessment of the impact of counsel's statements and her decision to order a mistrial.

The appellants appealed a trial judge's finding that they did not suffer a serious and permanent impairment under s. 35(5) of the Insurance Act following a motor vehicle accident.

The Court of Appeal found no palpable and overriding error in the trial judge's factual findings, including the finding that any impairment contributing to the breakdown of the appellant's marriage was not proven to be serious and permanent.

The appeal was dismissed with costs awarded to the respondent.

The appellant trustee in bankruptcy appealed a motion judge's decision that estopped the trustee from claiming the bankrupt's interest in his late father's estate.

The bankrupt had received an absolute discharge before the trustee moved for a declaration that the inheritance vested in the estate.

The Court of Appeal allowed the appeal, finding no evidence that the trustee made any representation to abandon its claim or that the bankrupt relied on such a representation to his detriment.

The inheritance remained vested in the trustee for the benefit of creditors.

The appellants appealed an order regarding the admissibility of proposed expert evidence.

The Court of Appeal dismissed the appeal, holding that the trial judge, rather than a motion judge, should determine the admissibility of expert evidence to avoid a multiplicity of proceedings, ensure full context, and prevent tactical preliminary steps.

The court noted that even if a motion judge has such jurisdiction, it should only be exercised in the rarest of cases.

The appellant appealed a trial judgment granting sole custody of the children to the respondent.

The appellant argued the trial judge erred by rejecting the expert evidence of Dr. Weinberger without explanation.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the trial judge's disposition and noting it could not retry the case.

The appellant appealed from a jury trial decision, arguing that the respondent's counsel made a misstatement of law during the opening statement.

The Court of Appeal dismissed the appeal, finding that the trial judge's immediate correction and explicit jury charge were sufficient to cure the error and ensure a fair trial.

Other complaints regarding the opening statement were also dismissed as not serious enough to warrant striking the jury.

The appeal was dismissed with costs fixed at $5,000.