David M. Paciocco

This is a costs endorsement following a judgment by the Court of Appeal for Ontario, which had previously dismissed both the appellant's appeal and the respondents' cross-appeal.

The Court determined the costs payable, awarding the primary respondents $50,000 from the appellant, despite the respondents seeking over $71,000 and the appellant proposing $40,000.

The Court was not persuaded by the appellant's public interest argument or the relevance of costs awarded in a comparable case that were based on party agreement.

Additionally, the Law Foundation of Ontario, which responded to the cross-appeal, was awarded $10,000 in costs from the primary respondents.

The appellants, Joseph Campisi and Campisi LLP (lawyers), appealed a lower court decision that reopened a contingency fee agreement (CFRA) under the Solicitors Act, declared it unenforceable, ordered an assessment of fees, and ordered repayment of $150,000 for excessive fees related to an Accident Benefit Claim.

The Court of Appeal confirmed jurisdiction to hear the appeal.

The lawyers challenged the finding that the Accident Benefit Claim fee was "excessive and unreasonable" and the costs order.

The Court of Appeal dismissed the appeal, finding no error in the application judge's interpretation of the Solicitors Act (ss. 24 and 25) or in her assessment of the reasonableness of the fees, which considered factors beyond just hourly rates.

The costs award was also upheld.

The appellants, Dellen Millard and Mark Smich, appealed their convictions for the first-degree murder of Laura Babcock.

The Crown's theory was that Millard killed Babcock due to a love triangle, and Smich assisted him, including by incinerating her body.

The Court of Appeal dismissed all conviction appeals, finding no reversible errors in the trial judge's jury instructions regarding reasonable doubt, party liability, after-the-fact conduct, or the use of rap lyrics as adopted admissions.

However, applying the Supreme Court's decision in Bissonnette, the court allowed the sentence appeals solely to quash the consecutive parole ineligibility periods imposed under s. 745.51 of the Criminal Code.

Dellen Millard and Mark Smich appealed their first-degree murder convictions for the death of Timothy Bosma.

The appeals raised issues concerning the admissibility and jury instructions on bad character evidence in a joint trial with antagonistic defences, jury instructions on planning and deliberation, and the propriety of closing addresses by the Crown and co-counsel.

The Court of Appeal dismissed both appeals, finding no reversible error in the trial judge's decisions regarding evidence admissibility, jury instructions, or the sufficiency of corrective instructions for closing arguments.

The appellant appealed his conviction for second-degree murder and sought leave to appeal his sentence of life imprisonment with 13 years parole ineligibility.

The conviction appeal raised three grounds: error in jury instruction on after-the-fact conduct evidence for provocation, error in not compelling the Crown to call a witness, and error in not permitting the defence to call that witness.

The sentence appeal argued the trial judge erred by not properly considering the appellant’s immigration status and certainty of deportation in determining parole ineligibility.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no error in the jury instructions or the witness ruling, and upholding the sentencing decision as entitled to deference.

This decision addresses two related appeals.

In the main appeal (C70874), Physicians’ Dialysis Center Inc. (PDC), and Drs.

George Wu and Gordon Wong appealed a trial judgment that found them unjustly enriched at the expense of Drs.

Perkins and Boll, and liable for general and punitive damages due to abuse of trust and breach of fiduciary duty.

The appellants argued errors in the interpretation of a Memorandum of Understanding (MOU) concerning compensation for clinic space and services, and that the claims were statute-barred.

The Court of Appeal dismissed this appeal, upholding the trial judge's findings on unjust enrichment, contract interpretation (clarifying payments were for overhead, not extra billing), and the application of the limitations period.

In the second appeal (COA-22-CV-0392), Dr. Donald Kim appealed the denial of his share in interpleaded funds, and this appeal was granted.

The appellants appealed the dismissal of their action for damages following a truck fire, asserting claims for breach of contract (failure to provide first-party insurance) and negligent misrepresentation (regarding insurance coverage).

The Court of Appeal dismissed the breach of contract claim, affirming the trial judge's interpretation that the respondent was only obligated to make existing insurance available, not to secure full coverage.

However, the Court allowed the appeal on the negligent misrepresentation claim, finding the trial judge erred in legal principle by not making a definitive factual finding on whether the representation was made and by misapplying the elements of the negligent misrepresentation test.

A new trial was ordered solely for the negligent misrepresentation claim.

The appellant, John Peters, appealed the dismissal of his motion for leave to bring a statutory cause of action under the Securities Act for alleged failure to disclose a material change, and for class action certification.

The alleged material change was a September 4, 2018, telephone call where the PPSC advised SNC-Lavalin that it would not be invited to negotiate a remediation agreement.

The motion judge found no reasonable possibility that the call constituted a "change" in SNC's business, operations, or capital.

SNC-Lavalin cross-appealed the costs order, which reduced their costs due to the case's legal novelty and public interest.

The Court of Appeal dismissed both the appeal, affirming the motion judge's interpretation of "material change" and application of the leave test, and the cross-appeal, upholding the discretionary costs decision.

K.K. sought bail pending his appeal of sexual offence convictions involving minor complainants.

The appeal grounds included claims that his guilty pleas were involuntary due to the trial judge's erroneous discharge of counsel and denial of an adjournment, leading to pressure to plead guilty while unrepresented.

The Court of Appeal granted bail, finding the appeal was "not frivolous" and that K.K.'s surrender could be assured with appropriate conditions.

The court also determined that detention was not necessary in the public interest, considering K.K.'s compliance with previous release terms and the ability of strict bail conditions to mitigate public safety concerns.

The appellant, Jabir Khan, appealed his convictions for possessing a restricted firearm and occupying a vehicle with a firearm.

He argued that the trial judge erred by failing to conduct a s. 24(2) analysis regarding the firearm's exclusion and materially misapprehended evidence, leading to an unreasonable verdict.

The Court of Appeal dismissed the appeal, finding that the s. 24(2) argument was inappropriately raised for the first time on appeal.

The court also found no material misapprehension of evidence, upholding the trial judge's thorough and compelling reasons for rejecting the appellant's testimony due to its illogical nature and inconsistencies with audio surveillance and circumstantial evidence.

The appellant appealed his conviction and sentence, arguing the trial judge erred in assessing the credibility and reliability of two Vetrovec witnesses.

The Court of Appeal found no error in the trial judge's cautious approach and search for confirmation.

The sentence was also found to be fit with no error in principle.

The conviction appeal and leave to appeal sentence were dismissed.

The appellant, Nathaniel Tulloch, appealed a sentence imposed after pleading guilty to robbery with an imitation firearm, robbery, and use of an imitation firearm.

The sentencing judge had accepted a joint submission for a global custodial term, but all parties inadvertently overlooked section 85(4) of the Criminal Code, which mandates that the sentence for the imitation firearm offence be served consecutively.

The sentencing judge acknowledged the error but was functus officio.

The Court of Appeal allowed the appeal, supported by the Crown, and varied the sentence to ensure the section 85(2)(a) offence was served consecutively, while adjusting the other counts to maintain the originally intended global sentence.

This is an appeal from a Superior Court order upholding an arbitral award of $29.2 million in favour of All Communications Network of Canada, Co. (ACN) against Planet Energy Corp. (Planet).

Planet sought to set aside the award, arguing it was unable to present its case due to denied discovery rights and that the award violated public policy by contravening the Energy Consumer Protection Act, 2010 (ECPA).

The Court of Appeal dismissed the appeal, finding that the application judge applied the correct standard of review and that Planet failed to demonstrate a breach of procedural fairness or that the award offended public policy.

The appellant, Knights of Columbus, appealed an order dismissing their motion for a stay of proceedings in favour of arbitration.

The motion judge had concluded that the respondent was an employee and that the arbitration clauses in subsequent contracts were invalid for want of fresh consideration.

The Court of Appeal dismissed the appeal, affirming its jurisdiction to hear the appeal despite s. 7(6) of the Arbitration Act, 1991, because the motion judge found no valid arbitration agreement existed.

The Court upheld the motion judge's finding that there was no fresh consideration for the contracts containing the arbitration clauses, making them invalid.

It also clarified that the motion judge's preliminary finding on the respondent's employment status was not a final determination for the underlying action.

The appellant, Antonio Doria, appealed the dismissal of his action against the respondents, which was brought after he had already received and collected an arbitration award for the same damages.

The motion judge dismissed the action as an abuse of process under Rule 21.01(3)(d), finding that the plaintiff was attempting to re-litigate damages claims.

The Court of Appeal upheld the dismissal, confirming that Section 139 of the Courts of Justice Act does not confer an absolute right to pursue separate actions against jointly liable parties if it constitutes an abuse of process, especially when a full opportunity to adjudicate the claim has already occurred and the award collected.

The Court also dismissed the appellant's request for leave to appeal the costs award.

The Joseph Lebovic Charitable Foundation (appellant) appealed the dismissal of its bankruptcy application against the Jewish Foundation of Greater Toronto (respondent).

The appellant had donated over $19 million to a Donor Advised Fund (DAF) with the respondent, which it considered an irrevocable gift.

After the founder's death, his executor sought to direct the remaining DAF funds to specific charities, which the respondent did not follow.

The appellant initiated bankruptcy proceedings, alleging the respondent ceased to meet liabilities.

The motion judge dismissed the application, finding no debt, no act of bankruptcy, and no special circumstances for a single-creditor application, and that the application was an abuse of process.

The Court of Appeal upheld the motion judge's decision, finding no palpable and overriding error of fact or errors of law, and affirmed the elevated costs award due to the abuse of process.

The appellant, Awale Hussein, appealed his conviction for second-degree murder and sought leave to appeal the parole ineligibility component of his sentence.

The conviction appeal was based on alleged errors in dismissing a Corbett application (allowing cross-examination on his criminal record) and in the jury charge regarding police investigation inadequacies.

The sentence appeal argued errors in disregarding juror recommendations for parole ineligibility and treating absence of motive as an aggravating factor.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no errors in principle or unreasonable exercises of discretion by the trial judge.

The appellant, Michael St. Clair, appealed his conviction for possession and careless storage of a prohibited firearm and ammunition.

The appeal stemmed from an unsuccessful Charter application to exclude seized evidence, where the police had inexplicably lost surveillance video referenced in the information to obtain (ITO) the search warrant.

The application judge found a breach of the appellant's s. 7 Charter rights (right to make full answer and defence) due to the lost video but, as a remedy under s. 24(1) of the Charter, only excised references to the appellant "exhibiting the characteristics of an armed person" from the ITO, not all references to the video.

The application judge concluded that sufficient grounds remained in the ITO to uphold the search warrant and found no s. 8 Charter breach, thus dismissing the exclusion application.

The Court of Appeal dismissed the appeal, affirming that the automatic excision rule (typically for s. 24(2) breaches) does not apply to s. 7 breaches arising from lost evidence, where remedies under s. 24(1) are flexible and contextual.

The Court found the application judge's chosen remedy appropriate, as the ITO still contained ample corroborated information to support the warrant's issuance.

The appellant tenant appealed an application judge's declaration that the respondent landlord reasonably exercised its discretion under a commercial lease to allocate realty taxes using a 'Proportionate Share' calculation.

The tenant argued the application judge committed an extricable error of law under the Wastech framework by misidentifying the purpose of the discretionary clause.

The Court of Appeal dismissed the appeal, finding no extricable error of law or palpable and overriding error in the application judge's interpretation of the negotiated lease, and held that the landlord's use of the proportionate share method was reasonable.

This is a motion to quash an appeal of an order for payment out of court.

The Court of Appeal for Ontario determined that the order for payment out of funds, made after the merits of the action had been finally decided, was an interlocutory order.

Consequently, the Court of Appeal lacked jurisdiction to hear the appeal, as appeals from interlocutory orders lie with the Divisional Court.

The motion to quash the appeal was granted, with costs awarded to the moving parties.