Stephen T. Goudge

On a family law appeal, the appellant challenged the inclusion of sick leave credits in net family property, the retirement age used for pension valuation, a paragraph of the judgment characterized as a support order triggered by default in payment, and the trial costs order.

The court held that the evidentiary record supported the trial judge’s treatment of the sick leave credits and pension valuation, and that the impugned paragraph was authorized on consent and properly viewed as support rather than conversion of a property order.

The court declined to interfere with the costs ruling, including the application of Rule 49.

The appeal was dismissed subject only to a consent variation reducing the equalization payment.

The appellant appealed convictions for sexual assault and forcible confinement arising from a jury trial in which the central issue was whether the complainant consented to sexual activity.

After the defence evidence, the Crown sought a jury instruction on vitiated consent under s. 273.1(2)(c) of the Criminal Code on the theory that the appellant was the complainant’s drug supplier and had abused a position of power.

The Court of Appeal held that this theory had not been properly advanced from the outset and lacked an adequate evidentiary foundation, particularly given the complainant’s denial of any consent-based drug dependency scenario.

The jury charge on vitiated consent was inadequate and potentially confusing, and the court could not conclude the verdict was safe.

The appeal was allowed, the verdict was set aside, and a new trial was ordered.

On appeal from an order striking portions of a statement of claim, the court held that the fraud claim was not tenable.

However, the pleading against the individual defendants disclosed a cause of action based on unjust enrichment and should not have been struck out on that basis.

The appellant was granted leave to amend within 30 days to remove references to fraudulent conduct and properly plead unjust enrichment.

Given the divided success, the court ordered no costs at the appeal or below.

The appellant sought leave to appeal and appealed a six-year penitentiary sentence imposed after a conviction for aggravated assault.

He argued that the sentencing outcome was unfair because the Crown accepted he did not know his accomplice had a knife or intended to use it.

The court held that this distinction was irrelevant because the appellant was a principal in the planning and execution of a brutal assault and robbery, having brought and used a garrote and continued the attack after seeing the knife.

Although youth, guilty plea, cooperation with police, and a non-violent prior record were mitigating factors, the sentence was warranted by the gravity of the offence.

Leave to appeal sentence was granted, but the appeal was dismissed.

The Crown appealed a sentence imposed after convictions for impaired driving causing death and impaired driving causing bodily harm.

The Crown argued that the offences required a penitentiary sentence and that the sentencing judge erred by placing excessive weight on the offender's exemplary character and the wishes of the victims' families opposing custody.

The court held that the sentencing judge carefully considered the evidence, sentencing principles, and relevant case law, and did not overemphasize those factors.

Finding no error in the imposition of a conditional sentence and no basis for appellate intervention, the court dismissed the appeal.

The appellant sought to withdraw a guilty plea to welfare fraud over $5,000 on the basis that it was not voluntary.

The court held that the plea was entered after significant pressure arising from a pending obstruct justice charge, the prospect of immediate arrest and custody, and comments made by the presiding judge to an emotionally distraught accused caring for an infant.

Applying the governing law on the voluntariness of guilty pleas, the court concluded the plea was not made voluntarily and unequivocally.

The conviction and sentence were set aside and a trial was ordered.

The appellant employer appealed an order holding that it was not relieved from liability under the no-fault provisions of the Insurance Act after its employee, driving a leased vehicle in the course of employment, was involved in a motor vehicle accident.

The Court of Appeal held that an employer is not a person 'present at the incident' under s. 267.1(1) merely because its employee was involved.

However, the employer qualified as an 'other person' under s. 267.1(7), with the result that it was protected from vicarious liability for pecuniary loss caused by the employee and remained liable only for pecuniary loss arising from its own independent negligence.

The appeal was allowed and the order below was set aside.

The appellant challenged the trial judgment in an employment-related unjust enrichment dispute arising from extra hours worked in exchange for equivalent time off.

The court held that there was a juristic reason for the respondent's retention of the benefit because the parties' contract contemplated compensation through equivalent time off.

Since the appellant voluntarily placed himself beyond the point of enforcing that contractual entitlement, he could not establish the absence of juristic reason.

The appeal was dismissed without costs.

The appellant sought leave to appeal and, if granted, appealed from the dismissal of his summary conviction appeal respecting convictions for two assaults and uttering death threats.

The court held that complaints about the summary conviction appeal judge's refusal to revisit credibility findings on an overextended collateral property issue did not raise an issue of law.

However, the sentences imposed below were conceded to be blended and therefore illegal.

Leave to appeal was granted, the conviction appeal was dismissed, and the sentence appeal was allowed with concurrent 90-day custodial sentences and the probation order left in place.

The appellant appealed a sexual assault conviction and a nine-month custodial sentence arising from brief acts of sexual intercourse where consent was the sole live issue.

The court held that the trial judge's findings, including the appellant's own admissions, confirmed a lack of consent in relation to the second sexual act.

The conviction appeal was dismissed.

However, given the appellant's youth, lack of record, family support, the short duration of the acts, and the absence of a need for probation, the sentence was found excessive and reduced to six months.

The appellant challenged her jury conviction for aggravated assault arising from injuries to an infant diagnosed as shaken baby syndrome, arguing several procedural errors in the conduct of the trial.

The court held that the impugned rulings concerning transcript requests, witness exclusion, disclosure of an expert report, jury note-taking, and cross-examination were all within the trial judge's discretion and disclosed no reversible error.

On sentence, both sides sought leave to appeal from a conditional sentence of two years less a day followed by three years' probation.

The court held that the sentence was within range on the exceptional facts and that the trial judge did not err in principle by imposing a conditional sentence or by setting the probationary terms.

The appellant appealed conviction and sentence, arguing error in the admission and use of a letter, improper reliance on sexual activity evidence as bad character evidence, and unfair cross-examination.

The court held that although the Crown had no basis to tender the letter in its case in chief, no prejudice resulted because the appellant would inevitably have testified and the letter could then have been used in cross-examination.

The court further found the trial judge used the impugned evidence only in assessing credibility and not for propensity reasoning.

The appeal was dismissed.

The appellants challenged a s. 37 order sustaining Crown objections to questions that might reveal the identity of a confidential source described in a wiretap affidavit.

The Court of Appeal held that even if the source acted as a police agent in an unrelated stolen-goods transaction, that did not convert the source into an agent for all purposes or in relation to the appellants' drug investigation.

The court further held that, even assuming the Crown's earlier characterization of the source as an agent in the wiretap materials created prejudice and amounted to an abuse of process, compelled disclosure of identity was unavailable because informer privilege must be protected if it in fact applies.

Any appropriate remedy would instead lie, if warranted, in a Garofoli challenge to the authorization and possible exclusion of intercepted evidence.

On an employer's appeal from the dismissal of its appeal from a Board of Inquiry decision, the court considered the legality under the Human Rights Code of a workplace alcohol and drug testing policy for employees in safety-sensitive positions.

The court held that substance abuse, including perceived substance abuse, is a handicap and applied the unified three-step BFOR analysis from Meiorin to assess whether the impugned rules were justified.

Random drug testing, pre-employment drug testing, and mandatory disclosure, reassignment and reinstatement rules were discriminatory and not justified, but random alcohol testing could be justified as a BFOR if sanctions for a positive result were individually tailored.

The court also held that the Board lacked jurisdiction to inquire into the policy's drug-testing provisions, set aside the finding of a s. 13(1) breach, upheld the mental anguish award, and otherwise dismissed the appeal.

The union appealed from a Divisional Court decision quashing an arbitrator's ruling that he had jurisdiction to determine an employee's entitlement to long-term disability benefits as against an insurer.

The collective agreement required the employer only to maintain the group insurance policy in force and pay premiums, obligations the employer had admittedly fulfilled, and the policy was not incorporated into the collective agreement.

Applying correctness review and the essential character analysis under labour arbitration jurisprudence, the court held the dispute was between the employee and the insurer under the insurance policy, not a dispute arising from the interpretation, application, administration or violation of the collective agreement.

The arbitrator therefore lacked jurisdiction, and also lacked authority to add the insurer to the arbitration.

The appellant union appealed from the dismissal of an application for judicial review of a labour arbitration award.

The dispute concerned whether an employee’s claim for weekly indemnity benefits under an insurance policy required by a collective agreement fell within the exclusive jurisdiction of a labour arbitrator where the employer had complied with its obligation to provide and pay for the policy.

The court, relying on its reasons in a companion appeal, held that the claim against the insurer was not arbitrable in those circumstances.

Applying curial deference on a patent unreasonableness standard, the court found the arbitrator’s interpretation of the collective agreement was open to him and upheld the dismissal of the grievance.

The appeal concerned whether a labour arbitrator had exclusive jurisdiction to determine an employee’s entitlement to long term disability benefits payable under an insurance policy maintained pursuant to a collective agreement.

The court held that recent jurisprudence, including Pilon, did not extend arbitral jurisdiction to a dispute between an employee and an insurer over policy benefits where the issue was the insurer’s liability under the policy.

The arbitrator also erred in joining the insurer as a party defendant where no dispute properly implicating the insurer was before him.

The appeal was dismissed and the Divisional Court’s order quashing the award was upheld.

In a defamation appeal arising from newspaper reports about an incident at a municipal sewage treatment plant, the court upheld the trial judge’s findings that several individual defendants defamed the plaintiffs by falsely implying criminal threats or assault.

The court also upheld the striking of the jury notice, given the statutory bar to jury trials on factual issues and damages in claims against a municipality and the inextricable overlap of issues.

However, the court allowed the municipality’s appeal, holding that s. 5(1) of the Libel and Slander Act required independent written notice to all defendants, including a non-media municipal defendant alleged to be vicariously liable.

Because no timely notice was given and the limitation period had expired, the claim against the municipality was barred.

The appellant appealed a 16-year penitentiary sentence imposed following guilty pleas to robbery, wounding, committing an indictable offence while disguised, and possession of a stolen vehicle.

The offences involved an armed robbery by a 17-year-old offender during which the victim was shot and left permanently paralyzed.

The court held that the sentencing judge properly considered the offender's youth, limited prior record, difficult background, and pre-trial custody, but was entitled to give significant weight to poor rehabilitation prospects, public protection, and denunciation.

Leave to appeal was granted, but the sentence appeal was dismissed as the sentence, while at the high end of the range, was not unfit.

The appellant appealed his aggravated assault conviction arising from a group attack in which the Crown relied on party liability under s. 21(1)(b) of the Criminal Code.

During deliberations, the jury asked when any accused had first told police that the complainant had grabbed a co-accused by the testicles, and the trial judge answered only that there was no evidence on that point.

The Court of Appeal held that, in the circumstances, the answer was inadequate because it failed to explain that the accused had no obligation to speak to police on arrest or testify at the preliminary hearing, and that no adverse inference could be drawn from silence.

The omission undermined the right to silence and may have materially affected the jury's assessment of the co-accused's defence, which in turn affected the appellant's conviction as a party.

The appeal was allowed, the conviction was set aside, and a new trial was ordered.