David M. Paciocco

The appellant, S.M., appealed his conviction for sexual assault, arguing that the trial judge erred by misapprehending the complainant's evidence regarding her alleged financial motive to fabricate and by failing to properly consider the implausibility of the assaults given the proximity of sleeping children.

The Court of Appeal dismissed the appeal, finding no material misapprehension of evidence by the trial judge and concluding that the trial judge adequately addressed the implausibility argument.

The court affirmed the trial judge's entitlement to believe the complainant's testimony.

This is a costs endorsement following an appeal.

The Court of Appeal for Ontario ordered the appellants to pay full indemnity costs to the respondents in the amount of $25,973.05, inclusive of disbursements and applicable taxes.

The decision was made after the appeal from a Superior Court of Justice judgment.

J.P., convicted of sexual assault and sentenced to three and a half years incarceration, was denied release pending appeal by a single judge.

J.P. sought a panel review of that decision, arguing the motion judge erred in principle by relying on public safety, misassessing the appeal's strength, and incorrectly finding serious compliance issues.

The Court of Appeal dismissed the request for a release order, finding no palpable and overriding error or material error in principle in the motion judge's decision, which was based on the public confidence component of the public interest test, incorporating public safety and compliance concerns.

This is an appeal concerning the interpretation of an assignment agreement related to parking lot revenue.

The appellant, 200 Ferrand Realty Limited, and the respondent, 1284225 Ontario Limited, shared revenue from a parking lot. 1284225 Ontario Limited, despite having assigned its rights, attempted to negotiate new parking rates with the parking space provider.

The application judge implied a term into the parking agreement granting 1284225 Ontario Limited participative status in rate setting, without providing parties an opportunity to be heard on this issue.

The Court of Appeal allowed the appeal, finding no basis for the implied term, and held that 1284225 Ontario Limited, not being a party to the parking agreement, had no right to participate in rate formulation or negotiation.

The court clarified that 1284225 Ontario Limited's interest is governed by 200 Ferrand Realty Limited's duty of good faith under the assignment agreement.

The appellants appealed a provisional summary judgment order made against them in a mortgage action.

They had defaulted on a syndicated mortgage loan and alleged fraud against the lenders, including the respondents.

The motion judge granted summary judgment, finding no genuine issue requiring a trial and no evidentiary basis for the fraud claims against the respondents.

The Court of Appeal dismissed the appeal, affirming the motion judge's decision.

The court held that the motion judge correctly applied summary judgment principles, including the holistic approach and the "best foot forward" rule, and properly exercised discretion regarding necessary parties and the risk of inconsistent findings with a related fraud action.

The applicant sought to appeal a summary judgment order but failed to perfect the appeal by not filing an issued and entered order.

A prior motion to dispense with this requirement was denied by a single judge of the Court of Appeal.

The applicant then brought a motion before a panel of the Court of Appeal to set aside or vary that denial order.

The panel dismissed the applicant's request, finding no error in principle or unreasonable result in the motion judge's decision, and noted the applicant's failure to provide particulars for his allegations.

The appellant, convicted of drugging and sexually assaulting 14 women and designated a dangerous offender with an indeterminate sentence, appealed his convictions on three counts and his sentence.

The Court of Appeal dismissed both appeals.

The court found no reviewable error in the trial judge's credibility assessments, the use of similar fact evidence (despite a procedural oversight which was deemed harmless), or the determination that a determinate sentence would not adequately protect the public given the appellant's high risk of reoffending due to antisocial personality disorder and psychopathy.

The appellants, representing a class of Ontario Shoppers Drug Mart franchisees, appealed a summary judgment decision regarding their entitlement to Professional Allowances paid by generic drug manufacturers.

The Court of Appeal upheld the motion judge's findings that Shoppers breached the 2002 franchise agreement by retaining the allowances, which constituted 'revenue', but did not breach the 2010 agreement, which explicitly allowed Shoppers to retain such concessions.

The Court also upheld the application of a rolling limitation period and the refusal to award aggregate damages due to the idiosyncratic nature of the profit-sharing model.

However, the Court allowed the appeal regarding the quantification of damages, finding that Shoppers breached its duty of good faith by arbitrarily allocating $129 million as out-of-province rebates to avoid sharing the funds with Ontario franchisees, bringing the total Professional Allowances received to $1.084 billion.

Marc Gauthier appealed his conviction for first-degree murder of Tammy Avery.

The appeal raised two main issues: the admissibility of a voicemail left for his doctor (Dr. Morrison) and the voluntariness of confessions made to police and correctional officers.

The Court of Appeal found no reasonable expectation of privacy in the voicemail, as it constituted criminal harassment, and thus it was admissible.

While the court found the trial judge erred in admitting the confessions due to an inadequate evidentiary record regarding voluntariness, it applied the curative proviso, concluding that this error did not impact the verdict as the confessions only confirmed the undisputed fact of the killing, not the mens rea for first-degree murder.

The appeal was dismissed.

The appellant, George Nnane, appealed his convictions for two counts of fraud, alleging ineffective assistance of trial counsel.

The Court of Appeal found that trial counsel's performance fell below the standard of reasonable professional judgment, specifically by failing to adequately cross-examine a key witness, projecting disbelief of the appellant's testimony during examination-in-chief, and delivering an ineffective jury address.

Despite a strong Crown case, the court concluded that the cumulative effect of counsel's conduct undermined the fairness of the trial.

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

The sentence appeal was not addressed.

The appellants, Wesley Moore and St. Jacobs Carpenter House Inc., appealed an order requiring them to cease operating an unlicensed retirement home.

The core issues were whether their facility met the statutory definition of a "retirement home" under the Retirement Homes Act, 2010, specifically regarding the provision of "care services" (meals and drug administration), and whether the application judge erred in finding an abuse of process or in ordering the cessation of operations.

The Court of Appeal upheld the application judge's findings, confirming that the facility provided at least two care services, including a broad interpretation of "administration of a drug" to encompass assistance.

The court also rejected the abuse of process argument and affirmed the judge's power to issue a cease and vacate order under the Act.

The appeal was dismissed with costs.

This endorsement addresses the question of costs for the applications below, following an appeal decision (2023 ONCA 524) where the Court of Appeal found the application judge erred in granting an injunction against the appellants (Cowie et al.) based on a band council resolution.

The original injunction was granted to Hiawatha First Nation to prohibit construction of a gas station.

Although the appellants were successful on appeal, no costs were awarded for the appeal itself due to their concession regarding the applicability of a new Land Code.

The application judge had awarded Hiawatha First Nation $235,000 in costs.

This endorsement reduces that award to $117,500, all-inclusive, considering the conduct of both parties and the appellants' socially responsible concession.

The Crown moved for a publication ban on the Court of Appeal's decision in R. v. Reimer, 2024 ONCA 519, which overturned a sexual assault conviction and contained references to the complainant's other sexual activity.

The motion was brought in light of the Supreme Court's decision in R. v. T.W.W., 2024 SCC 19, regarding court openness in s. 276 determinations.

The court applied the Sherman Estate test, finding the first component (serious risk to important public interest) met due to privacy concerns.

However, the second component (necessity) was not met as alternative measures (anonymization, removal of biographical info, prior in camera proceedings and publication ban at trial) sufficiently mitigated the risk.

The third component (proportionality) also weighed against the ban, as the benefits did not outweigh the significant negative effects on the open court principle and the precedential value of the decision, which provides guidance on complex issues related to consent and s. 276.

The motion for a publication ban was dismissed.

Lee Marrazzo appealed his conviction for trafficking in narcotics and his four-year global sentence.

The conviction appeal argued that circumstantial evidence left open an innocent inference that he did not know the transaction involved narcotics, suggesting he believed it was a loan-sharking deal.

The Court of Appeal dismissed the conviction appeal, finding ample evidence to infer Marrazzo's knowledge of the drug transaction based on his actions and intercepted comments.

For the sentence appeal, Marrazzo argued the trial judge erred in assessing his role and failed to credit him for medical hardships in custody.

The Court of Appeal found no error in the assessment of his role but agreed that the trial judge failed to adequately address his unmet medical needs when calculating Duncan credit.

Consequently, the Court granted leave to appeal sentence, set aside the original sentence, and substituted a reduced global sentence of 46 months.

The appellant, found not criminally responsible due to mental disorder, appealed the Ontario Review Board's disposition.

The Board had rejected both a conditional discharge and a community living clause, despite the hospital's recommendation for the latter for therapeutic and practical reasons.

The Court of Appeal found the Board erred in rejecting the inclusion of a community living clause, as it was deemed therapeutically beneficial and practically necessary for the appellant's progress and access to appropriate care.

The appeal was allowed to vary the disposition to include the community living provision, while upholding the Board's decision against a conditional discharge.

The appellant, J.S., appealed convictions for sexual offences against three step-grandchildren and the imposed global sentence of 30 months' imprisonment.

The Court of Appeal dismissed the appeal against conviction, finding no basis to intervene.

The sentence appeal was partially allowed, reducing a lifetime Sex Offender Information Registration Act (SOIRA) order to 20 years with the Crown's consent, and imposing conditional stays of proceedings on three sexual assault counts, without altering the overall 30-month sentence.

The appellant, Daniella Marciano, appealed her conviction for possession of stolen goods, arguing that as a self-represented litigant at trial, she did not understand how evidence was to be presented and that the trial judge failed to adequately ensure her understanding.

The Court of Appeal dismissed the appeal, finding that the trial judge had adequately explained the evidentiary process, interjected with appropriate explanations, and ensured the appellant understood the implications of not testifying.

The court concluded that the trial judge fully discharged his obligation of providing a fair trial to the unrepresented accused.

The appellant, Ghana Ariharan, appealed his sentence for fraud over $5,000 and failing to comply with an undertaking.

The sentencing judge imposed an 18-month custodial sentence (less pre-sentence credit) and a concurrent three-month sentence, along with a restitution order and fine in lieu of forfeiture of $81,995.00.

The appellant argued his restitution efforts were not adequately considered and the breach of undertaking sentence was excessive.

The Court of Appeal found the restitution efforts insignificant and the breach sentence not excessive.

However, the court agreed the trial judge erred in calculating the restitution and forfeiture amounts, adjusting them to $77,795.00.

The appeal was allowed to this extent and otherwise dismissed.

The appellant, Dellen Millard, brought an appeal.

The court rejected his argument that a judge's mere presence on a panel that previously ruled adversely against him raised a reasonable apprehension of bias.

However, the court granted his request for an adjournment to prepare written submissions, putting the matter over to a future Kingston inmate sitting.

Mr. Stephens, convicted of mischief and failing to comply with a probation order in 2009, sought to reopen his appeal to argue for a not criminally responsible on account of mental disorder (NCR) defence.

He had previously been found NCR for unrelated 2011 offences.

His summary conviction appeal of the 2009 convictions was dismissed in 2014, and subsequent motions to reopen were also dismissed.

He brought a new motion relying on a 2024 psychiatric assessment.

The Court of Appeal dismissed the motion, finding that the new report lacked the cogency to establish an NCR defence or to justify reopening the appeal, especially given the applicant's own inconsistent factual account of the events.