David M. Paciocco

The moving party, Paul Taylor, sought to vary a motion judge's order that granted a stay of an eviction order on terms, specifically challenging the requirement to pay rent arrears.

The Court of Appeal for Ontario dismissed the motion, finding no error in the motion judge's decision, which had properly applied the test for a stay and respected principles for self-represented litigants.

The court concluded that the motion judge's decision represented an appropriate balancing of all relevant factors and competing interests.

This decision concerns a motion for reconsideration brought by Niagara North Condominium Corporation No. 6 and Simpson Wigle Law LLP, seeking to overturn a previous Court of Appeal decision (2019 ONCA 762) that allowed Jean Temedio to conduct an out-of-time assessment of legal accounts.

The moving parties argued the panel relied on a special circumstance (findings by Taylor J. regarding the reasonableness of legal costs and the corporation's conduct) that was not properly before the court.

The Court of Appeal denied the motion for reconsideration, finding that the reasonableness of accounts was squarely before the court, Taylor J.'s decision was referenced by both parties, and it was not decisive to the original appeal's outcome.

The court also noted that challenges to Taylor J.'s decision constituted an improper collateral attack.

The appellant, Susan Opal McKay, appealed the dismissal of her claim for adverse possession over an eight-foot wide strip of land adjacent to her property, which is owned by the respondent, Joel Paul Vautour.

The dispute arose after the respondent removed an old paddock fence and replaced it with a fence on the surveyed boundary line.

The appellant argued that the paddock fence established the true boundary and that her predecessors in title had acquired possessory title prior to the land being converted to the land titles system in 2003.

The Court of Appeal upheld the trial judge's decision, finding that the appellant failed to meet the burden of proof for adverse possession, specifically lacking cogent evidence of open, notorious, constant, continuous, peaceful, and exclusive use with the intention to exclude the true owner for any ten-year period before June 16, 2003.

The court also found that the existence of another wooden fence on the actual boundary line and the ambiguous nature of the paddock fence's purpose undermined the appellant's claim.

The appeal was dismissed with costs awarded to the respondent.

The appellants, former members of an incorporated church's congregation, were expelled.

They commenced an action to void the expulsion, alleging the church failed to follow its internal procedures and violated their rights.

The motion judge granted summary judgment, finding no underlying contract.

The Court of Appeal allowed the appeal, holding that the church's constitution and by-laws constituted a contract binding on both members and the organization.

The court found a genuine issue for trial regarding whether the contractual provisions for expulsion were breached, as the respondents failed to adduce sufficient evidence of the procedures followed.

The appellant, Bruce Wilson, appealed his jury convictions for sexual assault, kidnapping, and uttering death threats, and his subsequent dangerous offender designation with an indeterminate sentence.

The conviction appeal challenged the trial judge's corrective instruction to the jury regarding defence counsel's closing arguments about untested DNA samples.

The sentence appeal argued that "Lord Coke's principle" which generally prohibits relying on subsequent convictions to aggravate a prior offence's sentence, should apply to dangerous offender proceedings.

The Court of Appeal dismissed both appeals, finding no error in the corrective instruction and holding that Lord Coke's principle does not apply to dangerous offender determinations, as these proceedings are forward-looking and focus on future public safety and patterns of behaviour.

An appeal from a summary judgment motion dismissing a claim for breach of confidence.

The appellant, a pharmaceutical company, alleged that the respondent misused confidential information regarding a potential equipment manufacturer (HED International) that was disclosed during a due diligence period for a failed asset purchase agreement.

The motion judge dismissed the claim, finding no detriment to the appellant.

The appellate court upheld the dismissal, finding that although the motion judge's approach to detriment was overly narrow, the appellant suffered no detriment as a matter of fact because it was not ready to manufacture its products and could not have benefited from direct access to the equipment manufacturer.

The appellant was convicted after trial of two counts each of production and possession for the purpose of trafficking in marijuana, and theft of electricity, arising from the operation of two marijuana grow operations in residential premises owned by the appellant.

The appellant received a blended sentence of 15 months imprisonment followed by one year probation.

On appeal, the appellant challenged both the conviction and the sentence.

The Court of Appeal dismissed the appeal from conviction, finding no error in the trial judge's analysis of the search warrant validity and the sufficiency of the evidentiary predicate.

The appeal from sentence was also dismissed as the sentence was fit, though the victim surcharge was set aside.

An appeal of a stay of proceedings granted under s. 11(b) of the Canadian Charter of Rights and Freedoms in a workplace fatality case.

The respondents were charged with offences under the Occupational Health and Safety Act following the death of a worker at a gold mine.

The trial was scheduled to begin approximately three months beyond the 18-month presumptive ceiling established in R. v. Jordan.

The application judge stayed the charges, finding the Crown had failed to develop and follow a concrete plan to minimize delay in this particularly complex case.

The Court of Appeal allowed the appeal, finding the application judge had misinterpreted the particularly complex case exception by using the presumptive ceiling as a benchmark for assessing the Crown's conduct, rather than assessing whether the Crown reasonably attempted to minimize delay occasioned by the case's complexity.

An insurer appealed a decision finding that an insured's adult daughter was covered under a homeowner's insurance policy after she was injured falling from a porch.

The daughter had lived with her mother for over 60 years, paid rent, and performed household chores.

The policy excluded coverage for persons residing in the household except residence employees.

The application judge found the daughter was not a residence employee but was covered as a tenant.

The Court of Appeal allowed the insurer's appeal, holding that once a person is established as a member of the household, they cannot be covered as a tenant under the exclusion clause, regardless of whether they pay rent.

An inmate serving a life sentence for first-degree murder appealed the dismissal of his habeas corpus application challenging his emergency transfer from a medium-security to a maximum-security institution and the increase in his security classification.

The inmate alleged procedural unfairness based on inadequate disclosure of information under the Corrections and Conditional Release Act (CCRA) and argued the Warden's reclassification decision was unreasonable.

The Court of Appeal upheld the lower court's decision, finding that the Institution complied with statutory disclosure requirements, adequately justified information withheld under CCRA s. 27(3), and that the Warden's decisions were reasonable and procedurally fair.

The appellant appealed a Family Court decision resolving numerous issues arising from his separation from the respondent, a common law partner.

The appeal involved three main categories of claims: financial rulings (spousal support, child support, unjust enrichment), property-related claims (the Shirrick property and Magdalan property), and a claim for wrongfully withdrawn funds.

The Court of Appeal upheld the trial judge's findings on all grounds, finding no legal errors or palpable and overriding errors of fact.

The court confirmed the trial judge's determination that the Shirrick property was jointly owned at separation and that the appellant was not entitled to an increased share based on greater financial contributions.

The court also upheld the dismissal of the Magdalan property claim, finding no causal connection between the respondent's refusal to participate in the purchase and the appellant's losses.

The appeal was dismissed with costs awarded to the respondent.

The appellant appealed his conviction on nine offences arising from an armed robbery of a salon, including use of a firearm, robbery, wounding, and assault.

The trial judge had upheld the validity of two search warrants (residential and digital video recorder) despite Charter challenges.

The Court of Appeal found that both warrants were issued without reasonable and probable grounds due to material non-disclosure in the Information to Obtain affidavits.

The affiant officer failed to make full and frank disclosure regarding the reliability of licence plate evidence, vehicle colour discrepancies, and other material facts.

The digital video recorder evidence, which was crucial to the Crown's case, should have been excluded under s. 24(2) of the Charter.

Without this evidence, the Crown's case was gutted, and acquittals were ordered.

The appellant was convicted of first-degree murder in the death of his mother in a fire.

Following conviction, he raised a defence of not criminally responsible on account of mental disorder (NCR).

The jury rejected the NCR defence.

On appeal, the appellant challenged the trial judge's answer to a jury question regarding whether the appellant would be eligible for insurance proceeds if found NCR.

The Court of Appeal found that the trial judge erred by failing to instruct the jury that it could not consider the financial consequences of an NCR verdict.

The court held that the error was not harmless and that the curative proviso was unavailable.

The conviction was set aside and a new second-stage trial on the NCR issue was ordered.

The moving parties sought to quash an appeal of an application judge's order that had granted their application under the Limited Partnerships Act to compel the responding parties to provide financial information.

The moving parties argued the order was interlocutory and therefore not appealable.

The Court of Appeal held that the application judge's order was final, as it brought the application to an end and finally determined the moving parties' entitlement to financial information.

The motion to quash was dismissed with costs.

The appellant, Dr. Colin Ward, appealed a trial judgment finding him liable for negligence in performing a laparoscopic colectomy on the respondent, Karen Armstrong, in February 2010.

The trial judge found that Dr. Ward breached the standard of care by bringing a LigaSure device within one to two millimetres of the respondent's left ureter, causing a thermal injury that resulted in stricturing of the ureter and eventual removal of the kidney.

The majority of the Court of Appeal (Paciocco and Juriansz JJ.A.) allowed the appeal, finding that the trial judge erred in law by defining the standard of care as a goal or result (avoiding injury) rather than as the means a prudent surgeon would employ.

The majority held that since the trial judge found Dr. Ward took the steps a prudent surgeon would take, he should have been exonerated.

Van Rensburg J.A. dissented, finding the trial judge's findings on standard of care were fully supported by the evidence and that staying at least two millimetres away from the ureter was a necessary step, not merely a goal.

The respondents moved under section 7(5) of the Courts of Justice Act to set aside or vary an order of the motion judge dismissing their motion for security for costs under Rule 61.06 of the Rules of Civil Procedure.

The appellants sought security for costs of both the appeal and the trial costs already awarded.

The Court of Appeal upheld the motion judge's decision, finding no error in law or principle.

The court clarified that when considering security for costs of an appeal under Rule 61.06(1)(b) in conjunction with Rule 56.01(1)(d), the reference to "costs of the defendant or respondent" must be read as "costs of the respondent in the appeal" not the costs awarded at trial.

The court found the appellants had sufficient assets in Ontario to pay the estimated appeal costs of $30,000 and that ordering security would undermine the appellants' right to appeal.

The Public Guardian and Trustee held statutory guardianship over an adult and refused an application by the adult's brother to replace it as guardian, finding the brother unsuitable to manage the adult's property and lacking a suitable management plan.

The application judge approved the Public Guardian and Trustee's refusal.

On appeal, the brother challenged the decision on grounds that the application judge failed to consider all evidence and misapplied the applicable test.

The Court of Appeal dismissed the appeal, finding no legal error, error in principle, or palpable or overriding errors of fact.

The court also rejected the appellant's request to adduce fresh evidence and declined to appoint a criminal lawyer to investigate alleged surveillance.

The appellant appealed a trial judge's decision to impute an income of $50,000 to the respondent for purposes of calculating spousal support.

The trial judge had found that the respondent was intentionally underemployed and determined that he was capable of earning between $35-$40 per hour, equivalent to approximately $75,000 annually for at least two-thirds of the year.

The Court of Appeal found no palpable and overriding error, no legal error, nor any error in principle in the trial judge's determination and dismissed the appeal.

The Crown appealed the acquittal of the respondent on charges of sexual assault, sexual interference, invitation to sexual touching, and assault involving a child victim between ages 11 and 14.

The respondent had made admissions in a voluntary police statement but denied the allegations at trial.

The trial judge found the respondent's denials not credible and characterized portions of the police statement as a confession to a sexual crime, yet acquitted the respondent.

The appellate court found the trial judge engaged in faulty reasoning, failed to make necessary findings of fact, failed to reconcile conflicting evidence, and provided insufficient reasons for the acquittal.

The court allowed the appeal and ordered a new trial on all counts.

The appellant appealed a motion judge's decision denying most of the proposed amendments to the statement of claim.

The core issue was whether the proposed amendments asserted a new cause of action after the expiry of the limitation period.

The motion judge found that the addition of allegations of an intentional tort and new heads of damages constituted a new cause of action under Rule 26.06.

The motion judge also determined that discoverability was not an issue requiring trial, based on admissions that the appellant was aware of the relevant facts in 2015.

The appeal was dismissed with limited exceptions.