David M. Paciocco

The appellant appealed his conviction, primarily challenging the lawfulness of a strip search conducted in the presence of a female officer, arguing it violated his Charter rights.

The Court of Appeal upheld the trial judge's finding that exigent circumstances justified the female officer's continued involvement during the appellant's violent resistance, and that the evidence obtained from the search was admissible.

The appeal was dismissed.

The Court of Appeal for Ontario heard an appeal concerning convictions and sentencing.

Counsel for both the appellant and the Crown agreed that the matter should be remitted to the trial judge for sentencing on the failure to provide necessaries charge.

The Court ordered the remittal.

The appellants appealed a decision refusing to set aside a default judgment against them for unpaid freight services and breach of statutory trust.

A five-judge panel of the Court of Appeal was convened to reconsider its prior decision in Umlauf v. Umlauf regarding deemed admissions on default.

The Court overruled Umlauf, holding that while facts pleaded in a statement of claim are deemed admitted when a defendant is noted in default, conclusions of law and mixed fact and law are not.

However, the Court dismissed the appeal, finding the motion judge made no error in refusing to set aside the default judgment because the appellants failed to file an adequate record and the evidence supported the findings of a 2% monthly interest agreement and the director's personal liability for knowing assistance in the corporation's breach of statutory trust.

The appellant challenged a family law order requiring him to pay child support and spousal support, alleging unfair trial management, misapprehension of evidence, errors in law regarding support, unjust enrichment, joint family venture, child support, and credibility assessments.

The Court of Appeal dismissed the appeal, finding no basis for the appellant's arguments, affirming the trial judge's comprehensive reasons, balanced trial management, and well-supported credibility assessments, particularly regarding the appellant's lack of credibility concerning his relationship and finances.

The court also upheld the discretionary lump sum spousal support award.

The appellant appealed his convictions for sexual offences against his daughter, arguing the trial judge erred in refusing to review the complainant's personal journals, failing to consider her motive to lie, and assessing credibility.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's discretionary decision that reviewing the highly private journals was not necessary in the interests of justice, given the availability of other evidence to support the appellant's motive theory.

The Court also found the trial judge properly considered the motive theory and made reasonable credibility findings supported by the evidence.

The appellant, O.A., appealed convictions for six firearms offences, including discharging a firearm with intent to endanger life, arising from an incident where he allegedly shot at a car.

The appeal challenged the trial judge's findings regarding misapprehension of evidence concerning car dents and the reasonableness of the verdict based on circumstantial evidence.

The Court of Appeal dismissed the appeal, finding no material misapprehension of evidence and that the trial judge's conclusion of guilt was the only reasonable inference available, even without expert evidence or recovery of the firearm.

The court affirmed that common sense inferences are permissible and that the definition of "firearm" under the Criminal Code could include replica or BB guns if they cause similar damage.

The sentence appeal was abandoned.

The appellant, Patrick Schlaepfer, appealed his 14-month sentence for production of marijuana, arguing the sentencing judge erred in denying "Downes credit" for onerous interim judicial release conditions.

The Court of Appeal found the sentencing judge made legal and palpable errors by attributing delay to the appellant, misapprehending evidence of his medical issues, and faulting him for not seeking bail variations.

The Court allowed the appeal, finding the appellant's untreated complex medical condition during two years of release was punitive, warranting mitigation.

The sentence was reduced by an additional 5 months, resulting in a net sentence of 4.8 months.

The appellant, a police officer, arrested an individual who was highly intoxicated by methamphetamine.

He later transferred custody to the OPP without seeking medical assistance, and the individual subsequently died of methamphetamine toxicity.

The trial judge convicted the appellant of failing to provide the necessaries of life and criminal negligence causing death.

On appeal, the Court of Appeal upheld the conviction for failing to provide the necessaries of life, finding the appellant's failure to seek medical assistance was a marked departure from the standard of care.

However, the Court quashed the conviction for criminal negligence causing death, concluding that the trial judge's finding that the appellant deliberately misled the OPP was unreasonable and that causation was not established.

The appellant appealed an order varying a default judgment to include a declaration that the judgment debt survives his bankruptcy under s. 178(1)(d) of the Bankruptcy and Insolvency Act.

The appellant argued the motion judge erred by admitting fresh evidence and finding the pleadings sufficiently particularized a claim for misappropriation while acting in a fiduciary capacity.

The Court of Appeal dismissed the appeal, holding that fresh evidence is admissible on a Rule 59.06(2) motion to vary, and the pleadings were sufficient to ground the claim.

The appellant, Marcia Motayne, appealed her conviction for fraud over $5,000, stemming from a large-scale payroll fraud exceeding $900,000 perpetrated through her employer's system.

The appellant, as Director of Finance, had exclusive control over the payroll, and the fraudulent transfers were linked to her bank accounts and directly benefited her and her family.

On appeal, she argued the trial judge erred in the jury charge regarding reasonable doubt, the elements of fraud, and motive, and demonstrated a reasonable apprehension of bias.

The Court of Appeal dismissed the appeal, finding that the jury charge, when viewed functionally, was adequate.

The court held that any minor errors in the charge were harmless given the overwhelming evidence against the appellant, to which the curative proviso applied.

Furthermore, the court found no basis for a reasonable apprehension of bias by the trial judge.

The respondent sought substantial indemnity costs following the dismissal of the appellants' appeal from a summary judgment on mortgage defaults.

The respondent relied on standard charge terms in the mortgages providing for substantial indemnity costs.

The appellants argued the costs were excessive and alleged improper conduct by the respondent.

The Court of Appeal found no basis to depart from the contractual terms and awarded the respondent its claimed costs of $27,289.50.

The court also ordered that the funds previously paid into court as security for costs be paid out to the respondent to satisfy the appeal costs and partially satisfy the unpaid trial costs.

The appellants, who own most of the bed of Silver Lake, sought a declaration that the lake is non-navigable under the Beds of Navigable Waters Act to prevent other cottage owners from navigating vessels over their portion of the lakebed.

The application judge dismissed the application, applying the definition of 'navigable water' from the federal Canadian Navigable Waters Act (CNWA).

On appeal, the Court of Appeal held that the application judge erred in applying the CNWA definition to a property dispute over lakebed rights.

However, the Court declined to grant the declaration sought by the appellants, noting that the application judge had not resolved the necessary factual issues and that a declaration would not resolve the underlying dispute regarding riparian rights and common law navigability.

The appeal was allowed, and the application was dismissed without prejudice to bringing a fresh application.

This is a costs endorsement from the Court of Appeal for Ontario.

The appellants were ordered to pay the respondents $25,000, all-inclusive, for the costs of the appeal.

The decision follows an appeal from an order of the Superior Court of Justice.

The appellant, convicted of second-degree murder, appealed on the ground that the trial judge erred by not providing a specific corrective instruction to the jury regarding a co-accused's counsel's speculative theory of the case.

The co-accused's counsel had suggested, without evidentiary basis, that the appellant was involved in an illegal marijuana operation and owed money, contradicting the appellant's defence that he was extorted by the deceased.

The Court of Appeal found that while the co-accused's counsel's comments were improper and lacked evidentiary foundation, the trial judge's general cautionary instructions to the jury about avoiding speculation and relying only on evidence were sufficient.

The court emphasized the high degree of deference owed to a trial judge's assessment of the impact of improper remarks and the chosen remedial steps.

The appeal was dismissed, as the court concluded that the comments did not cause a substantial wrong or miscarriage of justice.

This is an appeal from a summary judgment dismissing the appellants' action as statute-barred.

The appellants, a former employee and his investment corporation, sued the respondents for breach of a post-retirement compensation agreement, claiming a permanent 3% interest in a partnership.

The motion judge found the claims statute-barred under the Limitations Act, 2002, ruling that a single breach with continuing consequences occurred, not a series of breaches giving rise to a rolling limitation period.

The motion judge also found the request for declaratory relief was, in substance, a claim for compensatory relief and therefore also statute-barred.

The Court of Appeal upheld the motion judge's decision, dismissing the appeal.

The appellant, Farhad Feizi, appealed his conviction for opium importation, arguing that evidence from a controlled delivery and search should have been excluded under s. 24(2) of the Charter.

The challenge stemmed from inaccurate address information in the Information to Obtain (ITO) for the general warrant.

The trial judge allowed the Crown to amplify the ITO, finding the errors were made in good faith and were minor/technical.

The Court of Appeal upheld the trial judge's decision, affirming that amplification is permissible for minor, good-faith errors, even if they relate to essential components of a search warrant application, and that appellate deference is owed to such findings.

The appeal was dismissed.

This appeal arose from the appellants' default under several mortgages and guarantees.

The appellants challenged the motion judge's decision to grant interest despite the respondent's concession of charging a criminal interest rate and failing to provide timely discharge statements, and disputed the calculation of amounts owing.

The Court of Appeal dismissed the appeals, affirming the motion judge's discretionary application of notional severance for the criminal interest rate and upholding the factual findings regarding the amounts advanced.

The court found no reversible error or basis for claims of Charter violations or judicial bias.

The appellant landlord sought to recover unpaid rent and damages from former residential tenants in Small Claims Court.

The claim was dismissed by the Small Claims Court and upheld by the Divisional Court for lack of jurisdiction, on the basis that the Landlord and Tenant Board (LTB) had exclusive jurisdiction.

The Court of Appeal allowed the appeal, holding that under the relevant provisions of the Residential Tenancies Act, 2006, the LTB's jurisdiction over such claims was contingent on the tenant being in possession of the rental unit.

Since the tenants had vacated, the LTB did not have jurisdiction, and the claims properly fell within the monetary jurisdiction of the Small Claims Court.

The appellant, Siavash Taheri, appealed a judgment ordering him to pay the respondent, Sina Akhavan, over $2.4 million based on promissory notes.

Taheri argued the trial judge erred in finding two separate loans instead of one, and that the trial transcript quality prevented proper appellate review.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual and credibility findings, and that the transcript deficiencies did not impede review or cause a miscarriage of justice.

The respondent, KingSett Mortgage Corporation, moved to quash an appeal brought by 30 Roe Investments Corp. from an order appointing a receiver over nine condominium units. 30 Roe argued it had an appeal as of right under s. 193(c) of the Bankruptcy and Insolvency Act and alternatively sought leave to appeal under s. 193(e).

The Court of Appeal granted the motion to quash, confirming that no appeal as of right exists from a receivership order under s. 193(c).

The Court also dismissed the motion for leave to appeal, finding the proposed appeal lacked merit, did not raise an issue of general importance, and would unduly hinder the receivership proceedings.