David M. Paciocco

The appellant appealed his convictions for sexual interference, sexual assault, and assault with a weapon against his stepdaughter.

He argued the trial judge misapprehended evidence, made unsupported credibility findings, and failed to properly apply the W.(D.) framework to exculpatory evidence from the complainant's mother.

The Court of Appeal dismissed the appeal, finding the trial judge properly applied the burden of proof, made credibility findings supported by the evidence, and adequately explained his reasons for accepting the complainant's testimony over the appellant's and the mother's.

The appellants, owners of a dental clinic, appealed the dismissal of their action against a former independent contractor dentist who left to start his own practice.

The appellants alleged conversion, improper solicitation of patients and employees, appropriation of confidential information, and breach of fiduciary duty.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the dentists carried on independent practices, the departing dentist only contacted his own patients to fulfill professional obligations, and the patient information accessed was not confidential.

The court also rejected claims regarding breach of fiduciary duty and the contractual duty of good faith.

The appellants commenced an action for fraudulent misrepresentation and oppression, which an associate justice stayed under s. 7(1) of the Arbitration Act, 1991, based on arbitration clauses in the parties' agreements.

The appellants appealed to a Superior Court judge, who dismissed the appeal on the merits.

The Court of Appeal dismissed the further appeal, noting that under s. 7(6) of the Arbitration Act, there is no appeal from a court's decision to stay a proceeding under s. 7(1).

The appellant appealed a summary judgment ordering it to pay $338,984.20 in unpaid licence fees for sports fields that were closed or restricted due to COVID-19.

The appellant argued the agreements should be interpreted as 'pay-if-available', while the respondent argued payment was required for bargained-for times regardless of use.

The Court of Appeal upheld the motion judge's decision, finding no extricable errors of law or palpable and overriding errors in her application of contractual interpretation principles.

The appeal was dismissed with costs.

The appellant appealed a trial judge's damages award arising from a failed agreement of purchase and sale for a new home, arguing that the cost of certain upgrades should have been included.

The respondent cross-appealed on the issues of mitigation and costs.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's treatment of the upgrades as a deposit.

The Court also dismissed the cross-appeal on mitigation.

However, the Court allowed the cross-appeal on costs, finding that the trial judge erred by refusing to consider the costs consequences of Rule 76.13.

Because the appellant recovered less than $100,000 and it was unreasonable to continue the action under the ordinary procedure, the appellant was denied its costs of the action.

The appellant appealed his sentence of 2 years and 11 months' imprisonment for firearms and drug trafficking offences, arguing he should have received additional credit for lockdowns and triple bunking during presentence custody.

The Court of Appeal dismissed the appeal, finding that the sentencing judge was aware of the difficult circumstances and that the few additional days of lockdown and triple bunking shown in newly filed records would not impact the sentence.

The moving party sought leave to appeal from a Divisional Court order that dismissed his motion for leave to appeal under Rule 2.1.

The Divisional Court had ruled it lacked jurisdiction to hear an appeal from decisions of the Information and Privacy Commissioner.

The Court of Appeal found it had no jurisdiction to hear an appeal from a dismissal of a motion for leave to appeal to the Divisional Court.

The motion for leave to appeal was dismissed as an abuse of process under Rule 2.1.

The appellant, an undischarged bankrupt, commenced an action against his former landlord for the disposal of business assets and related mental distress.

The motion judge dismissed the action as a nullity, finding that only the trustee in bankruptcy had the capacity to sue.

On appeal, the appellant argued the assets were exempt 'tools of the trade' under the Bankruptcy and Insolvency Act.

The Court of Appeal dismissed the appeal, noting the exemption limit was only $11,300, the claim sought damages rather than the return of property, and the mental distress claim was inextricably linked to the property claim belonging to the bankrupt estate.

The appellant insurer appealed a partial summary judgment declaring it responsible for covering water damage to the respondent's property.

The insurer had denied coverage based on an exclusionary clause for water entering through basement walls, arguing it applied because water from a burst watermain entered via a pipe transecting the basement wall.

The Court of Appeal dismissed the appeal, finding that the plain meaning of 'wall' does not include a pipe, as they serve conflicting functions.

The court held that any ambiguity in the exclusionary clause must be resolved against the insurer who drafted the policy.

The appellant, a defendant in an ongoing Superior Court action, commenced a separate action against the opposing counsel and their law firm, alleging negligence, misrepresentation, fraud, and conspiracy.

The motion judge dismissed the action under Rule 2.1 of the Rules of Civil Procedure as frivolous, vexatious, and an abuse of process.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's decision, as opposing counsel owed no duty of care to the appellant and the statement of claim failed to particularize any valid causes of action.

The appellant and his ex-spouse jointly owned two abutting parcels of land.

They executed a charge on one parcel in favour of the respondent bank, and later transferred the other parcel without a severance.

The respondent successfully applied to have the transfers declared void under the Planning Act.

On appeal, the appellant argued that section 44(1) of the Land Titles Act and notations on the register insulated the transactions from the Planning Act.

The Court of Appeal dismissed the appeal, holding that the 'Land Titles Conversion Qualified' notation only guaranteed against Planning Act contraventions up to the date of conversion, and did not oust the operation of the Planning Act for subsequent transactions.

The appellant tenant operated a duty-free store that suffered a material adverse effect due to COVID-19 border closures.

The tenant invoked a lease provision requiring the landlord to consult and discuss the impact of regulatory changes.

After negotiations failed, the tenant sought a judicially imposed rent abatement.

The motion judge dismissed the request, finding the provision was an agreement to agree, and the landlord had negotiated in good faith.

The Court of Appeal dismissed the appeal, affirming that pre-contractual subjective intentions were inadmissible, the court could not impose a rent adjustment without a contractual mechanism, and the landlord was entitled to pursue its economic self-interest during negotiations.

The appellant pleaded guilty to possession of fentanyl for the purpose of trafficking and other offences, receiving a net sentence of four years and seven months.

On appeal, he sought to introduce fresh evidence and argued the sentencing judge failed to adequately consider his drug addiction and harsh pre-sentence custody conditions as mitigating factors.

The Court of Appeal dismissed the appeal, finding the sentencing judge properly elicited information from the self-represented appellant, who had stated his addiction did not motivate the offence.

The court also held the sentencing judge appropriately weighed the harsh pre-sentence conditions against the seriousness of the offence.

The appellant father appealed a trial decision that altered a consent order regarding decision-making responsibility for his daughter.

The trial judge found a material change in circumstances due to ongoing parental conflict and assigned sole decision-making responsibility for schooling, health care, and extracurricular activities to the respondent mother.

The Court of Appeal dismissed the appeal, finding no evidence that the trial judge relied on improperly admitted documents and concluding that her factual findings were supported by the record and entitled to deference.

The appellant sought to appeal an order resulting from a reference under Rule 54 of the Rules of Civil Procedure directly to the Court of Appeal.

The respondent moved to quash the appeal for lack of jurisdiction.

The Court of Appeal granted the motion to quash, holding that there is no direct right of appeal from a reference order; a dissatisfied party must first exhaust the remedies provided under Rule 54, such as opposing confirmation of the report in the Superior Court, before appealing to the Court of Appeal.

The appellant sought a declaration of beneficial ownership of a condominium owned by the estate of the deceased, claiming an express or resulting trust.

The application judge dismissed the application, finding insufficient evidence of a trust agreement or gratuitous payments, and noting that oral evidence alone cannot create an interest in land under the Statute of Frauds.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's assessment of the evidence.

The moving party, a surgeon whose hospital privileges were not renewed in 2016, brought a motion to set aside a single judge's order dismissing his motion to set aside a Registrar's dismissal for delay.

The responding hospitals requested a dismissal under Rule 2.1 of the Rules of Civil Procedure.

The Court of Appeal found the moving party exhibited hallmarks of a vexatious litigant by exhausting all rights of review and attempting to re-determine settled issues.

The motion was dismissed as an abuse of process and a collateral attack on underlying decisions, with costs awarded to the responding parties.

The appellant appealed his first-degree murder conviction for a shooting in a bar, arguing the trial judge erred in finding he was the shooter.

The Crown's case relied on circumstantial evidence, including security video footage and a lay witness who identified an encounter with the appellant on the video.

The Court of Appeal held that the trial judge did not err in admitting the lay witness's testimony identifying the event and the appellant in the video, as it fell within exceptions to the lay opinion evidence rule.

The Court also found the trial judge adequately addressed evidentiary deficiencies and that the verdict was reasonable based on a meticulous video tracing exercise.

The appeal was dismissed.

The applicant sought a review under s. 680 of the Criminal Code of a decision denying her bail pending appeal.

Fresh evidence admitted at the hearing confirmed that the applicant's sentence on the matters under appeal would expire in three days.

The court dismissed the application as moot, noting that even if successful, a bail order could not realistically be implemented before the sentence expired.

The court rejected the applicant's argument that the underlying bail decision would prejudice future bail applications, clarifying that bail pending appeal decisions apply a different standard and do not bind future original bail hearings.

The appellant was convicted of first-degree murder and arson in the death of his intimate partner.

On appeal, he argued the trial judge erred by admitting hearsay statements made by the deceased about their relationship, failing to give a limiting instruction regarding bad character evidence, and permitting lay opinion evidence from firefighters about his demeanour at the scene.

The Court of Appeal dismissed the appeal, finding the hearsay statements were properly admitted under the state of mind exception, a bad character limiting instruction was unnecessary given the specific directions provided, and the demeanour evidence was admissible lay opinion.