Susan E. Lang

The Crown appealed a summary conviction appeal judge's decision that overturned the accused's four sexual assault convictions.

The summary conviction appeal judge had found that the trial judge erred by failing to consider the exculpatory value of acquittals on four other counts and by limiting the cross-examination of a Crown witness.

The Court of Appeal allowed the appeal and restored the convictions, holding that the acquittals had no exculpatory value on the other counts and that the trial judge properly limited cross-examination that lacked relevance and probative value.

The Crown appealed the conditional sentences imposed on four court officers convicted of assaulting a handcuffed and shackled prisoner in a holding cell.

The trial judge had imposed conditional sentences ranging from 45 to 90 days.

The Court of Appeal found the sentences demonstrably unfit, emphasizing that the respondents committed a collective, premeditated, and vicious assault on a defenceless prisoner and attempted to cover it up.

The Court held that such a breach of trust by officers in the justice system requires a sentence emphasizing general deterrence and denunciation, normally calling for a custodial term.

The appeal was allowed and additional custodial terms ranging from 30 to 60 days were imposed.

The appellants appealed their convictions.

The Crown conceded that the trial judge erred in foreclosing the appellants from challenging the factual underpinnings of the counselling to commit murder charges for which the appellant Vanderheyden stood convicted.

The Court of Appeal agreed, noting that the counselling convictions provided a significant boost to the credibility of two unsavoury witnesses.

The court found that the curative proviso could not be applied, as it could not be satisfied that Vanderheyden would not have testified had the trial judge ruled differently.

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

The appellants were convicted of possession of stolen property under $5,000 and fraud over $5,000 arising from the sale of a motorcycle containing stolen components.

They appealed their convictions, arguing the trial judge erred in his jury instructions regarding recent possession, wilful blindness, after-the-fact conduct, and the failure to give a Vetrovec warning.

They also appealed their conditional sentences.

The Court of Appeal dismissed the conviction appeal, finding the jury instructions were adequate when read as a whole and no Vetrovec warning was required.

The sentence appeal was also dismissed, as the sentences were not demonstrably unfit.

The appellants appealed a trial judgment finding a prescriptive easement over disputed lands.

The trial judge found that the previous owners did not give permission or a license for the use of the lands, and any agreement related only to a fence.

Alternatively, if permission was given, it was not renewed.

The Court of Appeal found evidence to support these findings and saw no basis to interfere.

The appeal was dismissed with costs awarded to the respondents.

The appellant, a paralegal, acted as an agent for an accused in a Provincial Offences Act trial.

After the trial, the justice of the peace initiated proceedings under s. 50(3) of the Act and barred the appellant from appearing before him as an agent.

The appellant's application for certiorari was dismissed by the Superior Court.

On appeal, the appellant argued the justice of the peace lacked jurisdiction to make the order after the trial concluded and alleged a reasonable apprehension of bias.

The Court of Appeal dismissed the appeal, finding that the justice of the peace had jurisdiction under the second branch of s. 50(3), which relates to an agent's general conduct and understanding of their duties, and that there was no reasonable apprehension of bias.

The Crown appealed a nine-month sentence imposed on the respondent for sexually assaulting his developmentally delayed wife.

The Court of Appeal found the trial judge erred in principle by treating the absence of extraneous violence as a mitigating factor and by failing to properly consider the respondent's history of prior sexual abuse against the victim.

The Court held the sentence was demonstrably unfit, allowed the appeal, and increased the sentence to two years less a day, while also correcting the SOIRA order to 20 years.

The appellant was sentenced for a breach of the Environmental Protection Act and received fines and probation.

The probation order included a condition restricting his ability to work in the environmental business.

The appellant appealed, arguing the condition was purely punitive.

The Court of Appeal dismissed the appeal, finding the condition was appropriate under the Provincial Offences Act to prevent similar unlawful conduct and contribute to rehabilitation, given the appellant's lack of remorse and failure to appreciate the seriousness of his non-disclosure of data regarding PCB contamination.

The probation end date was amended to account for stays pending appeal.

The appellant appealed a disposition of the Ontario Review Board, arguing that the Board failed to apply the 'least onerous and least restrictive' test under s. 672.54 of the Criminal Code when it denied a community living condition.

The Court of Appeal dismissed the appeal, finding that the Board was aware of and applied the correct test.

The Court held that the evidence, including the appellant's continuing substance abuse and personality disorder, amply supported the Board's conclusion that a community placement condition did not meet the mandated test.

The Crown appealed the total sentence of seven years and a $250,000 restitution order imposed on the respondent for his involvement in a $2.7 million armoured car theft and subsequent cocaine trafficking offences committed while on bail.

The Court of Appeal found the sentencing judge erred in principle by imposing an inadequate sentence for the drug offences and by failing to explain the totality reduction and the low restitution amount.

The appeal was allowed, the total sentence was increased to nine years, and the restitution order was increased to $1 million.

The appellant appealed his convictions for sexual assault, sexual interference, and invitation to sexual touching.

He argued the trial judge erred by failing to caution the jury against using the child complainant's section 715.1 videotaped statement to bolster her trial evidence, and that the Kienapple principle should stay the latter two convictions.

The Court of Appeal dismissed the appeal, finding the jury instruction was unnecessary as the videotaped statement forms part of the trial evidence, and holding that Kienapple did not apply because the offences have different legal elements.

The respondent lawyer, acting for a purchaser, sought to enforce an agreement of purchase and sale for the appellant's property.

The appellant had signed back an offer with a three-year rent-free occupancy clause.

The respondent delivered an accepted offer along with a letter and an amending agreement proposing a one-year occupancy.

The trial judge found a binding agreement for the three-year occupancy.

The Court of Appeal reversed, holding that the delivery of the accepted offer alongside the amending agreement and letter did not constitute a clear and unequivocal acceptance of the counter-offer.

The appellant appealed a motion judge's decision finding that a proposed purchase agreement complied with the transfer provisions of a joint venture agreement.

The joint venture agreement required a co-owner to sell 'all' of its interest if selling without consent.

The Court of Appeal allowed the appeal, finding that the motion judge erred in concluding the interest was restricted to the plaza portion of the property.

The plain wording of the agreement and commercial reality dictated that the interest also included a vendor take-back mortgage and shareholder loans.

A declaration was issued that the purchase agreement did not comply with the joint venture agreement.

The appellant appealed the dismissal of her slip and fall claim following a jury trial.

She argued the trial judge erred by failing to discharge the jury after the respondents' counsel made allegedly prejudicial comments in his closing address regarding the credibility of independent witnesses.

The Court of Appeal dismissed the appeal, finding the trial judge properly exercised his discretion to retain the jury and provide a correcting instruction, and that the jury's verdict would inevitably have been the same given the evidence.

Following an appeal that increased the appellant's damages award from $236,494.91 to $251,449.46, the award exceeded the respondents' $250,000 offer to settle.

The Court of Appeal held that the ordinary rule for costs should apply.

The court awarded costs to the appellant on a partial indemnity basis, referred those costs for assessment, and awarded $900 for costs submissions at trial.

The appellants appealed a trial judgment dismissing their action for damages arising from a severe neural tube defect allegedly caused by exposure to TCE.

The Court of Appeal upheld the trial judge's rejection of the appellants' expert theory of causation, finding no palpable and overriding error.

The court confirmed that the exceptional material contribution test for causation from Resurfice Corp. v. Hanke did not apply, as the evidence established no association between TCE and the defect.

The appeal was dismissed with costs.

The appellant, Apotex Inc., appealed a motion judge's decision allowing the respondents to amend their claim to substitute two Québec representative plaintiffs in an Ontario class action.

Apotex argued that the action lacked a real and substantial connection to Ontario, that Ontario was not the convenient forum, and that the action was an abuse of process due to parallel Québec proceedings.

The Court of Appeal dismissed the appeal, finding that Ontario had jurisdiction simpliciter because Apotex resides and carries on business in Ontario.

The court also held that it was premature to determine forum non conveniens on a motion to amend, and accepted counsel's undertaking that the Québec proceedings would not advance pending the Ontario certification decision, thereby negating the abuse of process claim.

The appellants appealed a summary judgment dismissing their claim to an interest in a company.

The appellant, an undischarged bankrupt, argued that his interest should be returned to him under s. 40(1) of the Bankruptcy and Insolvency Act as property incapable of realization, and that the trustee had told him not to disclose the interest.

The Court of Appeal dismissed the appeal, finding that the trustee had not determined the property was incapable of realization, and the appellant's bare assertions about the trustee's advice lacked sufficient detail to raise a genuine issue for trial.

The appeal was dismissed with costs fixed at $9,000.

The appellant, an Aboriginal offender and residential school survivor, appealed his sentence for sexually abusing his step-daughter.

The Court of Appeal found that the trial judge erred in principle by failing to consider the appellant's Aboriginal background and upbringing under s. 718.2(e) of the Criminal Code.

Balancing the severe aggravating factors of the offence against the appellant's tragic upbringing and physical ailments, the Court granted leave to appeal and reduced the sentence to four years.

The appellant appealed his conviction for second degree murder and his sentence of life imprisonment with 20 years of parole ineligibility.

He argued the trial judge erred in his jury instructions regarding eyewitness identification evidence and the availability of a manslaughter verdict.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's comments on the evidence were acceptable and did not usurp the jury's function, and that there was no air of reality to manslaughter.

The sentence appeal was also dismissed, as the 20-year parole ineligibility period was justified by the extraordinary violence of the murder and the appellant's high moral culpability.