Sarah E. Pepall

The appellant appealed his conviction for breaking and entering into a dwelling house contrary to s. 348(1)(b) of the Criminal Code.

The trial judge convicted the appellant based on fingerprint evidence linking him to a theft of over $4,000 from a condominium unit where he worked as a concierge.

The appellant raised three grounds of appeal: (1) the reliability of the fingerprint evidence; (2) a violation of s. 11(b) Charter rights regarding trial delay; and (3) a violation of s. 7 Charter rights regarding the failure to preserve video evidence.

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

The appellant appealed the dismissal of part of its application for relief arising from a fire at an adjoining semi-detached property.

The appellant sought recovery of losses caused by the fire and subsequent conduct of the respondent and its predecessor.

The key issue was whether the respondent, having purchased the damaged property several months after the fire, became liable for damages caused to the appellant's property prior to the respondent's acquisition.

The Court of Appeal upheld the application judge's decision, finding that the respondent had no involvement in and could not be responsible for damages accrued before it acquired the property.

The court also reduced the respondent's costs award on appeal.

The appellant appealed his sentence of 9 years less 18 months pre-sentence custody for aggravated assault with a weapon.

He argued that the sentencing judge erred in failing to consider whether intent to kill was the only available inference and that the sentencing judge failed to apply the principle of proportionality given the mitigating factors.

The Court of Appeal dismissed the appeal, finding that the sentencing judge carefully balanced the mitigating and aggravating factors and was entitled to consider the appellant's intent to kill as a seriously aggravating factor.

The sentence was found to be fit in the circumstances.

The respondent, who operated a body rub parlour licensed by the City of Vaughan, was charged with contravening a municipal by-law governing the hours of operation of body rub parlours.

He challenged the constitutionality of the by-law, arguing it was ultra vires the municipality because it constituted criminal law.

A justice of the peace and the Ontario Court of Justice agreed, finding the provisions were criminal in pith and substance and invaded federal authority.

The Court of Appeal allowed the appeal, holding that the pith and substance of the hours of operation provision was business licensing, falling within provincial authority over property and civil rights and licensing.

The court found the lower courts erred by focusing exclusively on extrinsic evidence while ignoring intrinsic evidence, and by failing to recognize that municipalities may legislate to suppress conditions conducive to crime when anchored in a valid provincial head of power.

The appellant sought to appeal a costs order made by Gibson J. of the Superior Court of Justice dated May 24, 2016.

The appellant did not seek leave to appeal.

The Court of Appeal dismissed the proposed appeal, finding no basis to interfere with the discretionary costs order.

Costs were fixed at $250 inclusive of disbursements and applicable taxes in favour of the respondent.

The appellant sought leave to appeal a 16-month global sentence imposed for trafficking in crack cocaine while on probation.

Although the sentencing judge initially misunderstood counsel's submission regarding the proposed sentence, the Court of Appeal found the sentence was fit given the nature of the offense, the quantity and type of drugs involved, and the breach of probation.

The sentencing judge appropriately declined to impose an unfit sentence to avoid adverse immigration consequences for the appellant.

Leave to appeal was granted but the appeal was dismissed.

Self-represented long-term disability beneficiaries sought leave to appeal a sanction order from the Superior Court of Justice in the Nortel Networks CCAA proceedings.

The applicants challenged their binding status under the 2009 Representation Order for Disabled Employees and the 2010 Employee Settlement Agreement.

The Court of Appeal dismissed the motion for leave to appeal, finding that the stringent test for leave in CCAA proceedings was not met.

The proposed appeal lacked merit, the applicants were bound by the settlement agreement, and further delays in the protracted litigation were to be avoided.

The court also rejected a late-filed notice of constitutional question challenging sections 6(1) and 11 of the CCAA.

The appellant appealed his conviction for robbery and related offences arising from a jewellery store robbery, as well as his sentence of 12 years imprisonment.

The appellant advanced three grounds of appeal on conviction: that the verdict was unreasonable as the evidence was equally consistent with him being a fence rather than a perpetrator; that the trial judge failed to provide a Vetrovec caution regarding an unsavoury witness; and that the trial judge misapprehended evidence.

The Court of Appeal rejected all three grounds, finding that the circumstantial evidence cumulatively supported only one rational inference that the appellant was one of the two masked perpetrators, that the trial judge had properly considered the witness's credibility issues without requiring a formal caution in a judge-alone trial, and that the trial judge's factual findings were sound.

The court also found the 12-year sentence was fit.

Both the conviction appeal and sentence appeal were dismissed.

The appellant appealed his conviction for robbery of a Cash in a Flash store on November 14, 2010, arguing that the jury's verdict was unreasonable because the video evidence was extremely poor and unreliable for identification purposes.

The trial judge had given strong warnings about the frailties of the video identification evidence.

The Court of Appeal upheld the conviction, finding that while the video evidence had limitations, the totality of the evidence—including distinctive identifying details visible in multiple video recordings, photographic evidence, DNA evidence from a balaclava, and physical evidence recovered from the appellant's apartment building—provided a reasonable foundation for the jury's verdict.

The appellant appealed his convictions for sexual interference, sexual assault, and failing to comply with a recognizance, as well as his indeterminate sentence as a dangerous offender.

The trial judge found the appellant guilty based on the complainant's evidence, which was corroborated by medical findings and DNA evidence.

The appellant argued the trial judge applied uneven scrutiny to the evidence and failed to properly apply the principles from R. v. W. (R.) regarding assessment of child witness testimony.

On sentencing, the appellant argued the trial judge failed to consider Gladue factors and section 718.2(e) of the Criminal Code.

The Court of Appeal dismissed both appeals, finding no error in the trial judge's credibility assessments, proper application of the legal principles, and that Gladue considerations would not have altered the dangerous offender designation given the appellant's incurable personality disorder and paraphilias.

The appellant was convicted of robbery, using an imitation firearm in the commission of an indictable offence, unlawful confinement, and wearing a disguise with intent to commit an indictable offence.

He appealed on the basis that the trial judge erred in admitting his second statement to police.

The appellant had requested counsel after arrest but was questioned by the first officer, resulting in a first statement.

After consulting with duty counsel for four to five minutes, he was interviewed by a different officer and gave a substantially similar second statement.

The trial judge admitted the second statement, finding it was not tainted by the first.

The Court of Appeal allowed the appeal, finding the trial judge applied the wrong legal test and that the second statement was tainted by the first statement obtained in breach of the appellant's right to counsel.

The court excluded both statements under section 24(2) of the Charter and ordered a new trial.

The appellant appealed from a trial judgment awarding the respondent US$192,000 in compensatory damages plus pre-judgment interest, $25,000 in punitive damages, and $85,000 in costs in a civil fraud case.

The trial judge found that the appellant fraudulently obtained US$200,000 from the respondent, a vulnerable widow, by misrepresenting that the funds would not be traded and then investing them in call options through his personal accounts, resulting in total loss.

The Court of Appeal dismissed the appeal, finding the trial judge's reasons were sufficient, the credibility findings were supported by the record, and the punitive damages award was appropriate given the appellant's highly reprehensible conduct.

The appellant was convicted of arson under sections 433 and 434 of the Criminal Code for deliberately setting fire to his two-storey building in Espanola with the intent to collect insurance proceeds.

The Crown's case relied on evidence of motive, planning, preparation, forensic evidence linking the appellant to the fire, and testimony from a disreputable witness who was likely an accomplice.

The appellant appealed on four grounds: that the trial judge improperly used neutral evidence to confirm the accomplice's account, misused the appellant's exculpatory statements as evidence of guilt, improperly excluded relevant evidence through misapplication of the collateral fact rule, and engaged in speculative reasoning inconsistent with the burden of proof.

The Court of Appeal dismissed the appeal, finding that while the trial judge made some errors, they were not material to the conviction given the overwhelming evidence of guilt.

The applicant brought a motion for an extension of time to appeal an order denying his motion to set aside a consent order for discontinuance of his wrongful dismissal action against the respondent bank.

The applicant claimed he had consented to the discontinuance with prejudice due to mistake, mental health issues, and misunderstanding.

He also alleged the judge improperly gave legal advice, that court transcripts were fabricated, and that there was a conspiracy involving the judge and others.

The chambers judge denied the extension of time, finding the appeal had no real chance of success.

The Court of Appeal dismissed the applicant's motion for review, finding the chambers judge properly exercised her discretion and that the applicant's allegations were entirely without evidentiary support.

The appellant sought to review a chambers judge's order denying an extension of time to perfect an appeal from a motion judge's decision that struck portions of the appellant's statement of claim and dismissed the action against Canada.

The appellant had failed to perfect the appeal within the required time and sought an extension nearly three years after filing the notice of appeal.

The Court of Appeal upheld the chambers judge's discretionary decision to deny the extension, finding that the chambers judge applied the correct legal test and that the justice of the case did not compel an extension given the unexplained delay and the lack of merit in the underlying appeal.

The appellant sought leave to appeal his sentence of nine and a half years imprisonment for armed robbery convictions.

He abandoned his conviction appeal and argued two errors: first, that the trial judge failed to impose a sentence as short as necessary for a youthful offender's first penitentiary sentence, and second, that the trial judge granted insufficient enhanced credit for pre-sentence custody.

The Court of Appeal allowed the appeal in part, granting the conceded reduction of 7½ months for pre-sentence custody credit but dismissing the argument regarding the length of the sentence itself.

The final net sentence was reduced to 7 years and 4½ months.

An employee who became disabled from employment as a police constable applied for long-term disability benefits under a group insurance policy issued by the respondent insurer.

When the insurer terminated the benefits, the employee sued the insurer for payment.

The motion judge struck the claim on the basis that the collective agreement governing the employee's employment granted exclusive jurisdiction over the matter to labour arbitration.

The Court of Appeal upheld the dismissal, finding that the collective agreement did more than merely oblige the employer to pay insurance premiums; it covered the terms, amount, and definition of disability benefits and made specific reference to the insurance policy.

Therefore, the employee's entitlement to benefits arose from the collective agreement, making the dispute arbitrable.

The appellant, a personal caregiver, slipped and fell at the residence of her employer, Jeanne Birnie.

She initially sued Jeanne Birnie as an incompetent person, but that action was discontinued.

A second action was commenced against Jeanne Birnie, Michael Birnie (her son), and another defendant.

Michael Birnie was dismissed from the action by consent order dated September 26, 2008.

Approximately seven years later, the appellant moved to set aside the consent order, claiming newly discovered facts regarding Jeanne Birnie's incompetence at the time of the accident.

The motion judge dismissed the motion, finding that the facts were available through reasonable diligence at the time of the consent order.

The Court of Appeal upheld this decision, finding no factual or legal basis to set aside the consent order and that the interests of justice did not support such relief.

The appellant father appealed from a motion judge's order arising from a motion to change custody and access arrangements for two children.

The motion was limited by consent order to three specific recommendations from the Office of the Children's Lawyer report.

The motion judge adopted the recommendations providing sole custody to the mother with consultation requirements, maintained the existing access schedule, and modified the geographic restriction to allow the mother to live within 30 km of the father rather than being confined to Kitchener-Waterloo.

The father sought to characterize his access time as "care and control" and sought additional decision-making authority over school and medical decisions.

The Court of Appeal upheld the motion judge's decision, finding no reviewable error and dismissing the appeal on both merits and costs.

Appeal from a family law trial decision concerning equalization of net family property, child support, spousal support, and costs.

The trial judge found the appellant had concealed substantial income through an improper insurance scheme and made extensive findings against his credibility.

The appellant, self-represented on appeal, challenged multiple aspects of the trial decision including the trial judge's treatment of his medical conditions, the respondent's asset disclosure, the award of child support, denial of occupation rent, and the costs award.

The Court of Appeal dismissed all grounds of appeal, finding no error in the trial judge's findings of fact or exercise of discretion.