David M. Paciocco

The appellant, Hornepayne First Nation, failed to seek leave to appeal from a Superior Court judgment within the 15-day period mandated by section 49 of the Arbitration Act, 1991, and Rule 61.03.1(3) of the Rules of Civil Procedure.

As a result of this non-compliance, the appeal was quashed.

The moving party, Ontario First Nations (2008) Limited Partnership, was awarded costs of the motion.

The appellants appealed the dismissal of their action for delay under Rule 48.14(1) of the Rules of Civil Procedure.

The motion judge had found they failed to provide an acceptable explanation for the delay, a cumulative component of the test affirmed in Faris v. Eftimovski.

The Court of Appeal upheld the dismissal, finding no palpable and overriding error in the motion judge's determination that the appellants' explanation for the delay was not acceptable, thus failing to satisfy one of the two necessary components to prevent dismissal.

The appellants, Amber Baptiste and Every Girl Counts LLC, appealed two Superior Court orders: one recognizing a California judgment against them in favour of the respondent, Michael Goguen, and another allowing enforcement of that judgment by seizing funds in Alberta.

The appellants argued the Ontario court lacked jurisdiction over funds outside the province.

The Court of Appeal dismissed the appeal, affirming the Ontario court's in personam jurisdiction over the appellants and CIBC (whose head office is in Ontario), finding it irrelevant that funds were transferred to Alberta.

The court applied principles from *Chevron Corp. v. Yaiguaje*, emphasizing that requiring assets to be present in the jurisdiction at the time of enforcement is not conducive to fairness in a globalized world.

The appellant father appealed a motion judge's orders regarding child support, arrears, and parenting time.

The parties had a separation agreement, but the mother sought to enforce its terms after a child changed residence to live with her full-time.

The Court of Appeal upheld the motion judge's calculation of child support and arrears, finding no error in applying the Guidelines.

However, the Court found the motion judge erred by issuing a final order for parenting time when he had indicated during the hearing it would be an interim order, thereby denying procedural fairness.

The appeal was allowed in part to make the parenting time order interim and to slightly reduce the costs awarded to the mother.

Jayco, Inc. appealed the dismissal of its action against the Canada Revenue Agency (CRA) and Her Majesty the Queen in Right of Canada.

Jayco sought recovery of legal costs and interest incurred while successfully contesting a GST/HST assessment.

The claims were based on theories of common law indemnity (as a statutory agent under the Excise Tax Act) and private law duty of care (negligence) owed by the CRA during an audit.

The Court of Appeal dismissed the appeal, affirming that no common law right to indemnity exists for statutory agents in this context, nor does the CRA owe a private law duty of care to taxpayers during administrative audits, distinguishing such audits from criminal investigations.

The appellant sought a declaration of sole ownership of a property based on adverse possession under the Real Property Limitations Act, arguing exclusive possession and payment of expenses for over ten years.

The trial judge found a 65% interest for the appellant and 35% for the respondents, ordering sale.

On appeal, the respondents raised a new issue: the property was registered under the Land Titles Act, which bars adverse possession claims unless the limitation period ran before registration.

The Court of Appeal dismissed the appeal, finding that the Land Titles Act issue was dispositive, as the property was registered in Land Titles at the time of purchase, preventing acquisition of title by adverse possession.

The court also upheld the trial judge's finding that the appellant had not established actual possession for the requisite period under the RPLA due to a verbal agreement, and affirmed the order for sale under the Partition Act.

The appellant, J.L., appealed his conviction for sexual assault and breach of probation, alleging errors in the trial judge's credibility assessment, including undue reliance on demeanour, incorrect use of the absence of exaggeration, and misapprehension of material evidence.

He also sought leave to appeal his global sentence.

The Court of Appeal dismissed the conviction appeal, finding that the trial judge's credibility determinations were entitled to significant deference and that no reversible errors were made regarding demeanour, absence of exaggeration, or misapprehension of evidence.

However, the court granted leave to appeal the sentence, finding that the trial judge erred in principle by imposing a sentence exceeding the Crown's recommendation without first alerting the parties and providing an opportunity for submissions.

The sentence was reduced from three years and three months to three years.

The appellants, Gilles Jozias Overtveld, Enrique M. Jurado, and Rachida Youmouri, appealed several interlocutory orders made by a case management judge in an underlying application concerning Mr. Overtveld's capacity to manage property and personal care.

The Court of Appeal determined that it lacked jurisdiction to hear the appeals as all challenged orders were interlocutory, not final.

The orders included dismissal of a contempt motion, a motion to strike the application, motions regarding access to Mr. Overtveld, a motion to remove counsel, and a motion for payment of accounts.

The court quashed the appeal, affirming that interlocutory orders do not finally dispose of the parties' rights.

Andrew Henry Ting sought to set aside a single judge's decision denying leave to appeal a civil contempt finding related to his father's foreign bankruptcy.

The Court of Appeal for Ontario dismissed the motion, holding that a panel generally lacks jurisdiction to review a single appellate judge's decision on leave to appeal under s. 193(e) of the Bankruptcy and Insolvency Act, and even if jurisdiction existed, the motion lacked merit as the original decision was sound.

This is an appeal from a motion judge's order setting aside the appellant's discharge from bankruptcy and vesting shares of a corporation (Bindaas Capital) in the trustee.

The motion judge found that the appellant, while an undischarged bankrupt, owned and operated Bindaas Capital, failed to disclose this asset, and fabricated documents to conceal his ownership.

The Court of Appeal dismissed the appeal, affirming the motion judge's findings and the discretionary decision to annul the discharge.

The court found no palpable and overriding error in the factual findings or the exercise of discretion, and upheld the trustee's authority to pursue the after-acquired property.

The appellant, Pierre Aragon, appealed his convictions for aggravated assault, assault with a weapon, possessing a weapon, and uttering a threat, and his indeterminate dangerous offender sentence.

The convictions stemmed from a 2012 beating of Fernando Fernandes, a Loners Motorcycle Club associate, by members of a rival group.

The Court of Appeal dismissed the conviction appeal, finding the recognition evidence and extrinsic discreditable conduct evidence properly admitted.

However, the Court allowed the sentence appeal, concluding that the sentencing judge erred in identifying aggravating factors and failed to provide sufficient reasons for several rulings, including the decision to recall witnesses and the constitutional challenge.

The sentence was set aside, and a new sentencing hearing was ordered before a different judge.

This appeal concerned the interpretation of a force majeure clause in commercial leases between school boards and a multi-purpose sporting facility.

Due to province-wide COVID-19 lockdowns, the facility was unable to open, and the school boards sought rent abatement under the force majeure clause.

The application judge found the clause applied and rent was abated.

The appellant (landlord) argued that the clause required the landlord to explicitly "claim" a force majeure event for rent abatement to occur, which they had not done.

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

The court affirmed that the landlord's objective inability to provide the leased premises due to the lockdown triggered the rent abatement, regardless of an explicit claim by the landlord.

This is an appeal from the dismissal of a proposed class action and constitutional challenge as frivolous and vexatious under Rule 2.1.01 of the Rules of Civil Procedure.

The underlying action asserted a global conspiracy related to COVID-19, seeking billions in damages from various domestic and foreign entities.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's exercise of discretion, legal analysis, or factual findings, and affirmed that the case was a clear instance for applying Rule 2.1.01.

The appellants, Darko Stojanovski and Daniel Stojanovski, appealed their convictions for attempted murder and their 18-year sentences.

The central issues included the adequacy of jury instructions on party liability (aiding), the introduction of alternative Crown theories, the use of prior consistent statements for identification, and the appropriateness of the sentences.

The majority dismissed both the conviction and sentence appeals, finding the jury charge adequate and the sentences fit.

A dissenting judge would have allowed Darko's conviction appeal, arguing the jury instruction on the specific intent required for attempted murder by aiding was insufficient and misleading.

This motion concerned an application by The Class Action Clinic, University of Windsor, Faculty of Law, to intervene as a friend of the court in an appeal brought by Donald Parker.

Parker's appeal challenged an unsuccessful motion for an extension of time to opt out of a class action against Her Majesty the Queen in the Right of Ontario, concerning medical care for inmates.

The Clinic sought to provide a framework for determining extensions of time to opt out of class actions.

The court granted the Clinic's motion to intervene, finding that the Clinic could make a useful contribution to the appeal's resolution without prejudicing the parties, given the unsettled legal considerations regarding opt-out extensions in class actions.

The applicant, Joshua Isaac, sought bail pending appeal of his drug trafficking convictions.

His initial bail was revoked after he was charged with new firearms offences, allegedly committed while on bail.

The Crown opposed his re-release, arguing that his detention was necessary to maintain public confidence in the administration of justice.

The court, applying the principles from R. v. Oland, found that while the appeal grounds were not frivolous, they were not particularly strong.

Given the serious nature of the new charges, the alleged breach of prior bail conditions, and concerns about the effectiveness of the proposed supervision plan, the court concluded that re-release would diminish public confidence.

The application for bail pending appeal was denied.

The appellant appealed three convictions for sexual assault with a weapon, alleging ineffective assistance of counsel.

The appeal focused on two grounds: counsel's alleged failure to inform him about available modes of trial (including the right to a preliminary inquiry) and failure to lead evidence of the complainant's potential motive to fabricate.

The Court of Appeal dismissed the appeal, finding the appellant's fresh evidence affidavit lacked credibility and that he failed to prove he was not informed about trial modes.

The court also found that the alleged motive to fabricate was irrelevant as the allegations predated the purported motive.

The appellant was arrested during a drug investigation and searched, revealing a concealed firearm.

At trial, the judge found the arrest lacked reasonable and probable grounds, violating sections 8 and 9 of the Charter, but admitted the firearm under section 24(2).

The appellant appealed his convictions and sentence.

The Court of Appeal upheld the trial judge's section 24(2) analysis, finding no error in the balancing of the Grant factors, and concluded the total sentence of 3.5 years was fit.

The appeals were dismissed.

The appellant, E.A.P., appealed his conviction for sexual assault.

The appeal raised three grounds: undue reliance on the complainant's demeanour for credibility assessment, an overly narrow view of how consent can be communicated, and a reversal of the burden of proof on the question of mistaken belief in consent.

The Court of Appeal dismissed the appeal, finding that the trial judge's credibility assessment was holistic and not unduly reliant on demeanour, that the trial judge's view of consent was not overly narrow given the complainant's explicit refusals, and that the factual findings negated any air of reality to a mistaken belief in consent, thus no burden reversal occurred.

The appellant, found not criminally responsible, appealed a detention order issued by the Ontario Review Board (ORB).

The ORB's decision was based on the appellant's diagnosis of bipolar disorder with psychotic features, ADHD, and substance abuse disorder, which led to the index offences and posed a significant risk to public safety due to lack of insight and medication non-compliance.

The Court of Appeal dismissed the appeal, affirming that the ORB properly determined a detention order was the necessary and appropriate disposition, as a conditional discharge lacked an air of reality given the conceded significant risk and the appellant's condition.