David M. Paciocco

The appellant and respondent were in a short, unstable common law relationship.

They purchased a property together, registering ownership as 90% to the appellant and 10% to the respondent.

After the relationship ended and the property was sold at a loss, the trial judge found the appellant was unjustly enriched by the respondent's contributions to the property and mortgage, and that the parties were engaged in a joint family venture.

The trial judge awarded the respondent 41% of the sale proceeds based on an unexecuted agreement.

The Court of Appeal allowed the appeal, finding no unjust enrichment as the property sold at a loss and the respondent was compensated by her 10% interest.

The Court also found the evidence did not support a joint family venture, and the trial judge erred in enforcing an unexecuted agreement to alter the property interests.

The Court ordered 90% of the proceeds be remitted to the appellant.

The appellant union brought a defamation action against the respondents over a television broadcast and newspaper column suggesting the union supported terrorism and Hamas.

The trial judge found the statements defamatory but dismissed the action, upholding the defences of fair comment, responsible communication, and statutory privilege.

On appeal, the Court of Appeal affirmed the trial judge's findings, concluding that the statements were recognizable as opinions based on known facts, could be honestly held, and were not made with malice.

The appeal was dismissed.

The Court of Appeal issued a costs decision following an appeal where success was divided.

The appellant succeeded in setting aside a permanent stay of proceedings due to a change in the law, but the court remitted the stay motion for reconsideration rather than finding no abuse of process.

The respondents successfully resisted an order relating to disclosure and an Anton Piller issue.

Consequently, the court ordered each party to bear their own costs of the appeal.

The costs of the original stay motion were reserved to the judge rehearing the motion, or to be resolved under r. 37.09(3) of the Rules of Civil Procedure if the motion is abandoned.

The United States sought the extradition of the respondent for child luring offences.

The respondent successfully applied for a stay of the extradition proceedings, arguing that the failure of domestic police and Crown to disclose communications with US authorities during his prior domestic prosecution constituted an abuse of process.

The Court of Appeal allowed the appeal and set aside the stay, holding that the extradition judge exceeded his jurisdiction.

The alleged misconduct lacked a sufficient nexus to the committal hearing, and the concerns raised fell within the exclusive purview of the Minister of Justice at the surrender stage.

The appellants defaulted on a commercial loan secured by a collateral mortgage.

The respondent lender invoked an acceleration clause to demand the outstanding principal and unaccrued future interest.

The appellants argued the contract did not permit accelerating future interest and that section 17 of the Mortgages Act capped their liability.

The Court of Appeal dismissed the appeal, holding that the contract's plain language included future interest in the accelerated indebtedness.

Furthermore, the Court clarified that section 17 of the Mortgages Act only applies to defaults in the payment of principal occurring after the contractual maturity date, not to defaults during the term of the mortgage.

The Crown appealed a conditional sentence of two years less a day imposed on the respondent for sexually assaulting his stepdaughter when she was a child.

The sentencing judge had imposed the conditional sentence primarily due to the collateral consequences incarceration would have on the respondent's dependent adult son.

The Court of Appeal allowed the appeal, finding the sentence demonstrably unfit given the high moral culpability of the offender and the gravity of the offence.

The Court substituted a three-year custodial sentence, noting that collateral consequences cannot overwhelm other sentencing principles such as denunciation and deterrence.

The appellant, a unit owner in a vacant land condominium, appealed an application judge's decision regarding her claims against neighbouring unit owners and the condominium corporation.

The neighbours had breached the condominium declaration by altering grading and removing vegetation without approval, and the corporation had failed to promptly enforce a halt work order.

The Court of Appeal found that the application judge erred by failing to adjudicate the appellant's oppression claims under s. 135 of the Condominium Act.

The Court held that the conduct of both the neighbours and the corporation was oppressive and unfairly disregarded the appellant's interests.

The Court granted declarations of oppression and ordered the corporation to have proper regard for the appellant's interests in future approvals, but declined to order the neighbours to remediate the grading.

The Court also found the application judge erred by determining costs without allowing the parties to make submissions, and directed the parties to provide written costs submissions to the Court of Appeal.

The appellant appealed the dismissal of her sexual battery claim against her former husband and a defamation judgment against her for a Facebook post alleging he sexually and physically abused her.

The Court of Appeal found that while the trial judge erred by placing the burden on the appellant to prove non-consent in the battery action, this did not result in a miscarriage of justice because the trial judge made affirmative findings that she had consented.

The Court also held that the trial judge correctly required the appellant to prove the truth of her allegations in the defamation action, declining to extend the reverse onus for consent in battery cases to defamation claims involving allegations of battery.

The appeal was dismissed.

The appellant, a former foster parent, appealed the striking of his claims against child welfare agencies for negligence, misfeasance in public office, and Charter breaches arising from an investigation into allegations of sexual assault.

The Court of Appeal upheld the striking of the negligence and Charter claims, confirming that child welfare agencies do not owe a duty of care to foster parents.

However, the Court allowed the appeal in part, restoring the misfeasance in public office claim against one agency, finding that the pleadings and particulars sufficiently alleged bad faith and collaboration with malicious adoptive parents.

The appellant appealed his convictions for threatening bodily harm, threatening to cause damage to property, intimidation of a justice system participant, and criminal harassment.

He argued that the Crown failed to prove the particulars of one count, and that the trial judge erred in her jury instructions, evidentiary rulings, and failure to inquire into his fitness to stand trial.

The Court of Appeal dismissed the appeal, finding that the Crown proved the offences as particularized, the jury was properly instructed, and there were no grounds to suggest the appellant was unfit to stand trial.

A dissenting judge would have allowed the appeal on one count, finding the Crown failed to prove the specific allegation particularized in the indictment.

The appellant was committed to stand trial for aggravated assault following a preliminary inquiry where the sole identification evidence was a manifestly unreliable in-dock identification.

He brought an unsuccessful certiorari application to quash the committal, arguing the preliminary inquiry judge committed jurisdictional error by failing to apply the Supreme Court's decision in Hay to discharge him.

The Court of Appeal dismissed the appeal, holding that Hay did not overturn established authority prohibiting preliminary inquiry judges from weighing the reliability of direct evidence.

The Court further held that even if Hay created an exception for directed verdicts, it does not apply to preliminary inquiries.

The appellant appealed his convictions and 12-year sentence for human trafficking, assault, forcible confinement, and related offences.

He argued that the trial judge provided insufficient reasons by failing to address inconsistencies in the complainant's evidence and improperly relied on a co-worker's testimony as corroboration.

The Court of Appeal dismissed the appeal, finding that the trial judge clearly understood the credibility issues, acknowledged the co-worker's motive to lie, and reasonably relied on independent video evidence and the co-worker's testimony to confirm the complainant's account.

Leave to appeal the sentence was denied as no basis for intervention was identified.

The appellant appealed his convictions for drug trafficking and weapons offences, as well as his sentence.

He argued that the search of his residence was unreasonable, the trial judge failed to apply the rule in W.(D.), and the verdict was unreasonable based on circumstantial evidence.

The Court of Appeal dismissed the conviction appeal, finding the Charter issue was not properly before the court and the trial judge correctly applied the relevant legal standards.

The sentence appeal was allowed in part to credit the appellant for 48 days of pre-sentence custody, reducing his sentence on one count.

The parties separated after a 32-year marriage.

Before the marriage, the respondent wife received shares in her father's business.

During the marriage, an estate freeze was executed, transferring the growth value of the shares to a new family trust settled by her father for $100.

The trial judge, feeling bound by prior appellate jurisprudence, excluded the wife's interest in the trust from her net family property as a gift after marriage.

The Court of Appeal allowed the appeal in part, distinguishing the prior case and holding that the trust interest was traceable to the pre-marital gift.

The trust interest was included in net family property, but the equalization payment was reduced to $18 million under s. 5(6) of the Family Law Act due to unconscionability.

Retroactive spousal support was ordered, but prospective support was denied.

The trial costs award against the appellant husband was upheld.

The appellant appealed his five-year sentence for firearms offences, seeking to admit fresh evidence of harsh pretrial detention conditions, specifically an incident involving excessive use of force by correctional officers.

The Court of Appeal admitted the fresh evidence, finding that the sentencing judge would have given greater mitigating effect to the punitive character of the pretrial detention had she been aware of the incident.

The appeal was allowed and the sentence was reduced by six months.

The Crown appealed the respondent's acquittal on a charge of intimidation by blocking or obstructing a highway under s. 423(1)(g) of the Criminal Code, arising from his leadership role in the 'Freedom Convoy' protests in Ottawa.

The trial judge had acquitted the respondent on the basis that the offence required proof of threats or violence and an intent to intimidate individuals when occurring in the context of a political protest.

The Court of Appeal allowed the appeal, holding that the trial judge erred in law by reading in elements not found in the text of the provision and by treating the political protest context as a defence to otherwise criminal conduct.

The Court substituted a conviction, finding that the respondent's conduct in blocking highways to compel the government to change its COVID-19 policies satisfied all elements of the offence.

The appellant appealed his sentence for multiple drug trafficking and firearms offences.

He argued the 14-year sentence was crushing and that the sentencing judge erred by treating his flight from police as an aggravating factor, given the presentence report detailed his negative experiences with police, including anti-Black racism.

The Court of Appeal rejected the first ground but agreed the trial judge's findings on flight were incongruent with her acceptance of his negative police experiences.

The appeal was allowed in part, and the net sentence was reduced from 11.5 years to 11 years.

The appellant pleaded guilty to multiple drug and firearms offences and was sentenced to a net term of just over 8 years' imprisonment.

He appealed his sentence, arguing that new evidence of harsh pre-sentence custody conditions, including lockdowns and triple-bunking, justified a reduction.

The Court of Appeal dismissed the appeal, finding that the sentencing judge had implicitly accounted for the likelihood of harsh conditions when imposing a sentence at the bottom of the proper range.

The court also rejected arguments that the sentencing judge misapprehended the appellant's drug addiction or his role as a street-level dealer.

The appellant appealed his conviction for failing to comply with a release order by communicating with the complainant in his pending human trafficking trial.

The communication occurred when third parties approached the complainant with a phone connected to a video call with the appellant, who smirked at her.

The Court of Appeal dismissed the appeal, finding it was open to the trial judge to conclude that the smirk was an intentional communication and that the appellant knew the complainant could see him.

The court also held that the trial judge's reasons, though brief, were sufficient for appellate review.

The appellant was convicted of multiple charges of assaulting and threatening his children, and breaching bail orders.

On appeal, he argued that the trial judge failed to consider that the youngest complainant's evidence might have been inadvertently tainted by her older sibling.

The Court of Appeal found no reversible error, noting that the trial judge was entitled to conclude there was no evidence of influence regarding the specific assaults that formed the basis of the convictions.

The court also declined to interfere with the trial judge's credibility findings, which rejected the appellant's claim that he was framed.

The appeal was dismissed.