David M. Paciocco

The Court of Appeal for Ontario heard an appeal regarding the calculation of the 10% levy payable to the Class Proceedings Fund under O. Reg. 771/92 of the Law Society Act.

The appellant, Her Majesty the Queen in right of Ontario, argued the levy should apply only to settlement funds actually received by class members.

The respondent, Christopher Welsh, contended it should apply to the total settlement funds available.

The Court dismissed the appeal, affirming the motion judge's interpretation that the levy applies to the amount of settlement funds to which class members were "entitled" regardless of whether they claimed their entitlement.

The appellant, convicted of aggravated sexual assault and sentenced to ten years' incarceration, appealed both the conviction and sentence.

The conviction appeal was based on claims of ineffective trial counsel, including failures in cross-examination, calling witnesses, eliciting expert opinion, and exploring photo tampering, as well as suggestions of improper discussions and conflict of interest.

The sentence appeal argued the trial judge erred in treating lack of remorse as an aggravating factor and in identifying primary sentencing objectives inconsistent with Gladue factors.

The Court of Appeal dismissed the conviction appeal, finding no basis for incompetence and noting the strong Crown case supported by forensic evidence.

It also dismissed the sentence appeal, finding that even if the trial judge erred regarding remorse, it had no impact given other serious aggravating factors, and that deterrence and denunciation were appropriate objectives.

This is an appeal from convictions for dangerous driving causing bodily harm.

The appellant, Joseph Bradley, was convicted after an accident where unbuckled passengers in his vehicle were severely injured.

The appeal raised three grounds: the trial judge conflated the actus reus and mens rea of the offence, erred by considering the unbuckled status of passengers relevant to the actus reus, and failed to address factual causation.

The Court of Appeal dismissed the appeal, finding that the trial judge's reasons, read holistically, demonstrated proper findings on all elements.

The court affirmed that "all the circumstances" under s. 249(1) of the Criminal Code can include factors like unbuckled passengers, as they enhance the dangerousness of the driving, and that implicit findings on causation are acceptable if apparent from the decision.

The appellant appealed his convictions on two counts of robbery, arguing the trial judge erred in admitting his videotaped interview without a Prosper warning.

The Court of Appeal dismissed the appeal, deferring to the trial judge's factual finding that the appellant had not asserted his right to counsel, thereby negating the requirement for a Prosper warning.

The applicant, Cecil Seerattan, sought release pending appeal of his domestic violence convictions, arguing his guilty plea was uninformed and misinformed regarding immigration consequences, and that the trial judge erred in denying an adjournment to set aside the plea.

The Crown opposed release, contending the appeal lacked merit.

The Court of Appeal granted the release, finding the appeal was not frivolous.

The court determined there was a firm foundation that the applicant was misinformed about the collateral immigration consequences of his plea and that he was subjectively prejudiced as a result.

Public interest considerations, including the trial judge's plea to immigration authorities and the applicant's successful bail history, also supported release.

This is an appeal from convictions for breach of trust against an Ontario Provincial Police officer, Cst.

Kara Darnley, related to two incidents: the "witness record incident" and the "drug investigation file incidents." The Crown alleged Cst.

Darnley abused her position out of loyalty to her fiancé.

The trial judge convicted her of breach of trust for both incidents but acquitted her of obstruction of justice for the witness record incident.

Cst.

Darnley appealed, citing errors in jury directions on reasonable doubt and the "public good" element of breach of trust, inconsistent verdicts, and misapplication of the entrapment defence.

The Court of Appeal found significant errors in the reasonable doubt instruction and that the verdicts for the witness record incident were inconsistent.

It also found errors in the entrapment analysis, specifically regarding the "average person" test and the elevation of moral standards for police officers.

The appeal was allowed, with an acquittal substituted for the witness record breach of trust conviction and a new trial ordered for the drug investigation file breach of trust conviction.

The appellant, A.G., appealed convictions for assault causing bodily harm and the imposed sentence.

The Court of Appeal found that the trial judge reasonably inferred the appellant's participation and encouragement in the assault as a joint principal, noting common participation in a continuing event.

The court also upheld the sentence, concluding that the appellant's failure to plead guilty and express contrition, unlike co-accused, justified a more onerous sentence.

Both the conviction appeal and the sentence appeal were dismissed.

The appellants, judgment creditors of 798839 Ontario Limited (39), appealed a summary judgment decision.

The original motion judge found that 39 had not satisfied the contractual prerequisites to acquire an interest in a mining development, specifically by failing to expend the required funds on the specified property, with a portion diverted to another project.

The Court of Appeal dismissed the appeal, affirming the motion judge's interpretation of the contract and finding no error in her consideration of the factual matrix.

The court emphasized that contractual interpretation must primarily rely on the plain language of the agreement and that surrounding circumstances should not overwhelm the text or create a new agreement.

The purchaser obtained an order for specific performance, a vesting order, and substantial indemnity costs after a failed real estate transaction.

The vendor appealed and obtained a certificate of stay for the costs order.

The purchaser moved to set aside the certificate of stay, arguing the costs were to be collected via an abatement, not a direct payment.

The vendor moved to stay the vesting order pending appeal.

The Court of Appeal dismissed the purchaser's motion, finding the costs order was automatically stayed under r. 63.01 as an order for the payment of money.

The Court granted the vendor's motion to stay the vesting order, finding a risk of irreparable harm if the property was transferred pending appeal, and ordered the appeal expedited.

K.V. sought an extension of time to file a notice of appeal against a Superior Court judge's decision to quash a subpoena issued to the prosecuting Crown counsel in his ongoing sexual offence trial.

The Crown opposed, arguing lack of merit and delay.

The Court of Appeal granted the extension, finding the appeal not frivolous and that K.V. had a right to appeal, despite concerns about trial delay, as the complainant's evidence was complete.

This appeal concerned a massive fraud perpetrated against a Paraguayan pension fund (Cajubi) by the appellants.

The trial judge found the appellants liable for fraudulent misrepresentation and breach of fiduciary duty, awarding over $20 million in damages and punitive damages.

On appeal, the appellants raised numerous grounds, including the corporate identification doctrine, limitation periods, unpleaded conspiracy, lack of reliance, and apprehension of bias.

The Court of Appeal dismissed all grounds, affirming the trial judge's findings, particularly regarding the inapplicability of corporate attribution where it would undermine the integrity of the legal system and allow fraudsters to benefit.

The appellant, The Corporation of the City of Waterloo, sought an extension of time to perfect an appeal that was seven and a half months overdue.

The appellant failed to take steps to perfect the appeal until prompted by the respondents and the registrar, and subsequent attempts to file were rejected due to technical deficiencies.

The court dismissed the motion, finding that despite the preference for deciding cases on their merits, the appellant's repeated failure to comply with rules and procedures caused prejudice to the respondents and did not serve the justice of the case.

The applicant, convicted of first-degree murder, applied for the appointment of a special commissioner to inquire into allegations of juror misconduct.

A juror alleged undue pressure, verbal abuse, and exposure to extrinsic information during deliberations.

The Court of Appeal dismissed the application, finding that the alleged conduct was intrinsic to the deliberation process and protected by the jury secrecy rule.

The court held there was an insufficient evidentiary basis to establish extrinsic influence or obstruction of justice.

The moving parties' motion for reconsideration was previously dismissed.

The Court of Appeal ordered the moving parties to pay the responding party's costs of the motion fixed at $1,500 inclusive of taxes and disbursements.

The Court of Appeal issued a costs endorsement following an appeal.

The respondents in the appeal were ordered to pay costs to the appellant in the amount of $5,919.14 for the appeal.

Additionally, the costs order from the application below was set aside, and the respondents were ordered to pay the appellant $6,669.02 for the costs of the application below.

The appellant, the former developer of a condominium, appealed the dismissal of its application to declare the respondent condominium corporation's notices of sale against its units null and void.

The appellant had refused to pay common expenses and a special assessment levied by the new owner-elected board after the appellant turned over control with depleted accounts.

The Court of Appeal upheld the application judge's findings that the special assessment was validly levied under an adopted budget and that the notice provided sufficient and accurate reasons.

The appeal was dismissed.

The appellant appealed his convictions for criminal negligence causing death, criminal negligence causing bodily harm, and aggravated dangerous driving.

He argued that the trial judge erred in applying the modified objective test by failing to account for his state of panic after being chased by assailants, and by improperly using the automatism standard to assess mens rea.

The Court of Appeal dismissed the appeal, finding that the trial judge correctly applied the modified objective test.

The court held that a reasonable person in the appellant's circumstances would have foreseen the risk, as the imminent peril had passed, and the trial judge did not err in her consideration of the incapacity defence.

The appellant appealed his convictions for sexual assault and sexual interference, as well as his 40-month sentence.

He argued the trial judge erred by admitting a hearsay statement and by finding intercourse occurred despite a lack of forensic evidence.

The Court of Appeal dismissed the conviction appeal, finding the statement was properly admitted as part of the narrative and the lack of forensic evidence did not raise a reasonable doubt.

The sentence appeal was also dismissed, as the 40-month term was fit given the aggravating factors, including the appellant's position of trust and the complainant's age.

Alisa Chaly appealed her convictions for refusing to provide a breath sample and breach of recognizance, following an unsuccessful summary conviction appeal.

She sought leave to appeal to the Court of Appeal, arguing errors regarding arbitrary detention and the loss of booking area video.

The Court denied leave, finding no questions of law significant to the administration of justice or clear errors.

The trial judge's findings on arbitrary detention (lack of evidence) and the video loss (not negligent, no material prejudice) were upheld.

The victim surcharge was set aside by consent.

S.H. appealed convictions for sexual assault and attempting to overcome resistance by choking.

The appeal raised issues regarding the trial judge's jury instruction on cross-count evidence, treatment of a prior consistent statement, denial of a Criminal Code s. 276 application, and alleged improper Crown closing arguments.

The Court of Appeal found reversible error in the jury instruction on cross-count evidence, which the Crown conceded was erroneous and not harmless.

The convictions were set aside, and a new trial was ordered.