David M. Paciocco

The appellant, convicted of first-degree murder, appealed on three grounds: the trial judge's failure to provide a standalone instruction on collusion, the admission of in-dock identification evidence from an eyewitness who previously failed to identify him, and the refusal to grant a mistrial following prejudicial remarks by the Crown in closing arguments.

The Court of Appeal dismissed the appeal, finding that the trial judge's general cautions on witness credibility were sufficient to address collusion concerns, the discretionary decision to admit in-dock identification evidence was not erroneous given the strong corrective instructions provided, and the Crown's improper remarks did not warrant a mistrial as they were adequately cured by the trial judge's clear instructions to the jury.

The appellant, Neighbour’s Drug Mart Ltd., appealed the Divisional Court's dismissal of its judicial review application.

The original decision by the Executive Officer of the Ontario Public Drug Programs terminated Neighbour’s Health Network System Agreement, revoked its billing privileges under the Ontario Drug Benefit Act, and suspended its entitlement to payment due to false or unsubstantiated claims.

Neighbour’s argued the Divisional Court erred by misapprehending the record, imposing an unsupported sanction, and creating absolute liability.

The Court of Appeal dismissed the appeal, finding no reversible error in the Divisional Court's application of the reasonableness standard or its conclusions regarding the owner's responsibility and the regulatory scheme's honour system.

The court also rejected the argument that the Executive Officer's consent to a change of control precluded subsequent termination, emphasizing the new owner's assumption of all liabilities.

Vertical Horizons Contracting Inc. appealed a trial judgment that ordered it to pay the City of Markham $22,291.25 after a set-off, stemming from a breached contract for sanitary sewer system replacement.

The appellant argued that issues with water and soil caused additional expenses and challenged the trial judge's finding of contractual breach.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings or interpretation of the contract, which held the appellant responsible for the work methodology and the impacts of site conditions beyond the initial 30 metres of pipe installation.

The appellant, Andre Appleton, was convicted of second-degree murder and aggravated assault following a stabbing incident.

On appeal, he argued that the trial judge erred in instructing the jury that evidence regarding a potential third-party suspect (Ibrahim Muhia) was irrelevant and in effectively directing that another individual (SHG) was the second man involved in the fight.

The Court of Appeal found that the trial judge erred by improperly restricting the jury's consideration of evidence that could have raised a reasonable doubt about the appellant's guilt, particularly concerning the identity of the stabber and co-participants.

The Court held that no formal third-party suspect application was required as the Crown had already made Muhia's potential involvement a live issue.

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

The appellant sought to overturn a trial judgment that dismissed her application for a declaration of trust over a residential property and damages.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the trial judge's credibility assessments or factual findings, particularly given the trial judge's finding that the appellant's evidence was "inherently improbable" and exaggerated.

No error of law was demonstrated.

The appellants sought to set aside a default judgment issued against them after an uncontested trial, and requested related relief.

The Court of Appeal dismissed the appeal, finding no inappropriate conduct by the plaintiff or error by the trial judge in conducting an uncontested trial.

The court emphasized that an appeal is not the proper route to seek to set aside a default judgment; rather, a motion under Rule 19.08(2) of the Rules of Civil Procedure should be brought first.

The appellant, Mr. Flight, appealed two orders from a motion judge concerning three issues: whether the transfer of a "Trustee Action" to him required the Trustee's consent, the Trustee's production of documents, and the motion judge's costs award.

The Court of Appeal dismissed the appeal, finding no reversible error in the motion judge's conclusions regarding document production or the costs award.

The court also noted that the issue of Trustee consent for the action transfer had been previously addressed in a prior decision and was currently under reserve by another motion judge, thus requiring no further comment from the Court of Appeal.

NWG Investments Inc. appealed the motion judge's dismissal of its 2014 action for delay, which stemmed from events in 2007-2008.

The motion judge found the delay inordinate, inexcusable, and prejudicial.

NWG challenged only the finding of prejudice.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's assessment of prejudice, which included factors like document availability, witness relevance, and memory.

The court reiterated the plaintiff's obligation to move an action expeditiously and rejected the argument that the decision rewarded defendants for "lying in the weeds."

This appeal concerned the interpretation and breach of a "Buyback Provision" (BBP) in an agreement for the transfer of property.

The appellant, Mr. Quinn, argued that the BBP was an option requiring strict compliance, which the respondents, Ms. Jones and Mr. Jones, failed to meet.

The Court of Appeal characterized the BBP as an option but found that Mr. Quinn's agent acted in bad faith by obstructing the respondents' attempts to exercise the option.

The appeal was dismissed, upholding the lower court's order for specific performance of the buyback, with a minor clarification regarding the return of items.

The Court of Appeal for Ontario considered an appeal and cross-appeal, along with motions to quash.

The parties agreed that the appeal and cross-appeal were sufficiently interrelated to be heard together to avoid duplication and ensure consistency.

Consequently, the court, on consent, dismissed both motions to quash without costs, ordering the consolidated appeal and cross-appeal to proceed.

The appellant, J.D., appealed his conviction for sexual assault and sought leave to appeal his three-year imprisonment sentence.

The conviction appeal grounds included allegations of reasonable apprehension of bias by the trial judge, improper use of voir dire testimony, an unreasonable verdict, and the trial judge's failure to grant s. 278 applications for disclosure of the complainant's medical records.

The sentence appeal ground related to the trial judge's alleged misapprehension of the potential immigration consequences of the sentence.

The Court of Appeal dismissed the conviction appeal, finding no reasonable apprehension of bias, no improper use of voir dire evidence, and that the verdict was reasonable given the appellant's admissions.

The court upheld the dismissal of the s. 278 applications, characterizing them as a fishing expedition.

Leave to appeal sentence was granted, but the sentence appeal was dismissed, as the trial judge's error regarding immigration consequences did not impact the fitness of the sentence, which was within the appropriate range for forced penetration.

The appellant, Alexander Shaulov, appealed a decision from a case management judge that effectively removed "Non-LSO parties" from his lawsuit against the Law Society of Ontario.

Shaulov had sued the LSO and other parties after repeatedly failing the barrister exam.

The case management judge had previously struck claims against the Non-LSO parties and stated that to re-plead against them, Shaulov would need consent or leave of the court under Rule 26.02 of the Rules of Civil Procedure.

The Court of Appeal quashed the appeal, finding it lacked jurisdiction because the case management judge's decision was interlocutory, not a final order, and therefore an appeal would require leave to the Superior Court.

The Court of Appeal for Ontario heard an appeal concerning a "Lender Fee" in a multimillion-dollar loan agreement.

The motion judge had ruled that the balance of the fee was an unenforceable penalty clause and granted relief against forfeiture, also suggesting it was not earned as the loan was not advanced.

The Court of Appeal reversed this decision, holding that the Lender Fee was consideration for obtaining the loan commitment, not a stipulated remedy for breach, and therefore the doctrines of unenforceable penalty clauses and relief against forfeiture did not apply.

The court further clarified that the fee was not contingent on the loan being advanced based on the contract's terms.

The appeal was allowed, ordering the balance of the fee to be paid to the lender.

Melissa Hart brought a motion under rr. 59.06(2)(a) and 61.16(6.1) seeking to withdraw a previous Court of Appeal decision and requesting a rehearing of the appeal, alleging the court overlooked her evidence.

The motion was dismissed pursuant to Rule 2.1.03(1) of the Rules of Civil Procedure because Ms. Hart had been declared a vexatious litigant under s. 140(1) of the Courts of Justice Act.

This order prohibited her from commencing or continuing any proceedings in any court without leave of a judge of the Superior Court of Justice, which she had not obtained.

The court also directed staff not to accept any further filings from Ms. Hart without such leave.

The Crown appealed a stay of charges granted under s. 11(b) of the Charter due to unreasonable delay.

The trial judge found that defence counsel acted reasonably in not accommodating earlier trial dates offered by the Crown, which would have brought the case within the *Jordan* ceiling.

Consequently, the delay was not attributed to the defence, and the charges were stayed as the original schedule exceeded the 18-month ceiling.

The Court of Appeal upheld the trial judge's finding of fact regarding defence counsel's reasonableness, noting it was entitled to deference, and found no error in the application of law, dismissing the appeal.

The appellant appealed a conviction for fraud, arguing that the trial judge erred in a factual finding regarding an interest rate.

The Crown conceded the error, but the Court of Appeal found that this mistaken finding played no material role in the trial judge's determination that the fraud charge had been proven beyond a reasonable doubt.

The appellant also abandoned a second ground of appeal.

Consequently, the appeal was dismissed.

The Ontario Review Board failed to fulfill its obligation to impose the least onerous and least restrictive disposition by declining to implement a joint submission for a detention order with community living privileges without considering less onerous alternatives.

The Court of Appeal allowed the appeal, ordering the implementation of the joint submission with an additional condition for a three-month review by the Board to assess compliance and determine the appropriate disposition.

The appellants sought to certify a class proceeding against pharmaceutical companies for negligently manufacturing valsartan, alleging contamination with NDMA and NDEA, which are potential carcinogens.

The claim was for damages related to an increased risk of cancer, costs of medical services and monitoring, refunds for drugs, and psychological damages.

The motion judge dismissed the certification, finding no viable cause of action based on concrete injury.

The Court of Appeal dismissed the appeal, affirming that claims for genotoxic injury (molecular changes without perceptible effect), psychological harm (not meeting the 'serious and prolonged' or 'ordinary fortitude' thresholds), and pure economic loss (as the product was discarded and not imminently dangerous) were not compensable in tort.

The court also upheld the dismissal of claims for battery, consumer protection breaches, Competition Act breaches, and unjust enrichment, concluding that the pleadings did not disclose viable causes of action or meet commonality criteria for certification.

The appellants, several local governments, appealed the dismissal of their application for declarations and injunctions against Canadian National Railway Company (CN) regarding the construction of an intermodal hub.

The appellants sought to compel CN to comply with over 65 provincial and municipal laws.

The application judge dismissed the application, finding that the majority of the claims lacked a factual foundation and were premature, and that the three specific bylaws at issue impaired the core of the federal railway undertaking under the doctrine of interjurisdictional immunity.

The Court of Appeal upheld the decision, confirming that the construction and operation of the intermodal hub is a vital part of a federal railway undertaking and that the municipal bylaws requiring official plan amendments impaired this core federal power.

The appeal and the application for leave to appeal costs were dismissed.

The appellants, a family, sued a hospital and medical professionals for medical malpractice after their son suffered a severe brain injury at birth.

The trial judge discharged the jury mid-trial and then dismissed the action.

On appeal, the Court of Appeal for Ontario found that the trial judge failed to provide adequate reasons for discharging the jury, which is a fundamental right.

The reasons were conclusory, did not explain which comments were prejudicial, or why corrective instructions would be insufficient.

The appellate court could not meaningfully review the decision.

Consequently, the appeal was allowed, and a new trial was ordered.