David M. Paciocco

Appeal from a summary judgment enforcing personal guarantees against the appellants in connection with an equipment lease agreement.

The appellants, who signed personal guarantees relating to Altavision Plus Inc.'s obligations under a 2009 equipment lease with Maxium Financial Services Inc., challenged the motion judge's decision on four grounds: (1) misinterpretation of the governing law clause; (2) failure to recognize a defence based on Maxium's failure to claim insurance coverage; (3) loss of standing due to assignment of receivables to Sun Life; and (4) unreasonableness of the costs award.

The Court of Appeal dismissed all grounds of appeal and upheld the summary judgment.

This is a costs endorsement following an appeal in a family law matter involving custody of a child.

The respondent father sought costs on a full recovery basis totaling $105,350.14 for the motion to stay, motion to admit fresh evidence, and the appeal.

The appellant mother sought either no costs or a modest award due to her strained financial circumstances, having already been ordered to pay $200,000 in trial costs and earning approximately $40,000 annually.

The court awarded costs to the respondent father in the reduced sum of $40,000, considering the length and complexity of the proceedings, the importance of the issues, proportionality, and the appellant's financial circumstances.

The appellant appealed a summary judgment decision awarding damages for breach of an unconditional agreement of purchase and sale.

The appellant claimed the agreement was frustrated by a government policy announcement that caused real estate prices to drop 20-30 percent, preventing her from obtaining financing and selling her own home.

The Court of Appeal upheld the lower court's decision, finding that frustration did not apply because the appellant deliberately chose not to include financing or sale conditions in her offer to make it more attractive to the vendor.

The court held that the policy announcement did not constitute a "radical change" in the appellant's obligations and that the appellant knowingly assumed the risk of being unable to obtain financing.

The appellants sought to appeal an order quashing their motion to set aside a Mareva injunction, certificates of pending litigation, and Norwich orders.

The Court of Appeal determined that the quashed order was interlocutory in nature, not final, as it did not finally determine the real matter in dispute—whether fraud was perpetrated—but rather addressed collateral issues pending trial.

The court held that interlocutory orders must be appealed with leave to the Divisional Court pursuant to section 19(1)(b) of the Courts of Justice Act, not directly to the Court of Appeal.

The motion to quash the appeal was granted without prejudice to the appellants' right to seek leave to appeal to the Divisional Court.

A law firm (Robins Appleby LLP) obtained a fee judgment against its former client (Todd Family Holdings Inc.) for unpaid legal fees after successfully prosecuting a lawsuit that resulted in a $2.2 million judgment and approximately $1 million in costs.

The client subsequently retained new counsel (GMS Law Professional Corporation) on a contingency fee basis to pursue an appeal of the original judgment.

When the new counsel obtained a costs award, Robins issued garnishment notices to intercept the funds.

The client and new counsel sought a charging order and priority over Robins' charging order, and sought to vacate the garnishment notices.

The motion judge denied all relief.

On appeal, the Court of Appeal for Ontario upheld the motion judge's decision, finding that the client failed to establish the prerequisite for a charging order (inability or unwillingness to pay fees) and that absent exceptional circumstances, a former lawyer may enforce a fee judgment without violating the duty of loyalty owed to a former client.

The appellant appealed his conviction for sexual assault, sexual interference, and uttering threats to cause death, as well as seeking leave to appeal his sentence of three years' imprisonment.

The sole ground of appeal from conviction concerned the sequence in which the trial judge disposed of a constitutional challenge to section 119(4) of the Youth Criminal Justice Act and a third party records application under section 278.3 of the Criminal Code.

The appellant argued the trial judge erred by first dismissing the third party records application and then treating the constitutional application as moot.

The Court of Appeal found no reversible error, holding that the appellant failed to demonstrate the extrajudicial measures record was potentially relevant, and therefore the Crown's duty to inquire was not triggered.

The sentence appeal was dismissed as the trial judge properly considered aggravating and mitigating factors.

The appellant was convicted of robbery with a firearm, uttering a death threat, and carrying a concealed weapon arising from a confrontation on October 4, 2014.

He received a global sentence of five years incarceration, less time served.

The appellant brought two Charter applications under section 11(b) of the Canadian Charter of Rights and Freedoms to stay the charges for unreasonable delay.

The application judge dismissed the first application, finding that although the net delay of approximately 20 months exceeded the 18-month presumptive ceiling for provincial court trials, the presumption was rebutted by transitional exceptional circumstances.

The trial judge dismissed the second application after conviction.

On appeal, the Court of Appeal found that the application judge erred in calculating the net delay by treating a 66-day period as defence delay when it was not solely attributable to the defence and had not been waived.

The corrected net delay was approximately 23 months.

The Court also found that the application judge inadequately analyzed the transitional exception, failing to properly scrutinize whether delays were reasonably incurred under the pre-Jordan framework.

The Court allowed the appeal and stayed the charges.

This is a costs endorsement on appeal from a Superior Court of Justice decision.

The Court of Appeal upheld the lower court judgment and ordered the appellant to pay costs to the respondent in the amount of $10,906.06, inclusive of taxes and disbursements.

The appellant was convicted of manslaughter in the death of a five-and-a-half-month-old child.

He appealed on the sole ground that the trial judge applied uneven scrutiny to the Crown and defence evidence.

The appellant did not dispute that the child died from intentionally applied significant force causing a fatal brain injury, nor that the child's body was covered in extensive bruising.

Only the appellant and the child's mother had the opportunity to cause the fatal injury.

The Court of Appeal dismissed the appeal, finding that the trial judge did not apply uneven scrutiny and was entitled to make the credibility findings and reach the decision she did.

The appellant was convicted of dangerous driving causing death following a collision between two tractor trailers on Highway 11 near Val Gagne, Ontario on January 11, 2016.

The appellant was sentenced to three years' incarceration plus a five-year driving prohibition.

On appeal, the appellant challenged the conviction on three grounds: that the trial judge erred in considering a near-miss incident with a Home Hardware truck as part of the dangerous driving offence; that the circumstances did not constitute a marked departure from the standard of care; and that insufficient reasons were provided.

The appellant also sought to appeal the sentence.

The Court of Appeal dismissed both the conviction appeal and the sentence appeal.

The appellant was convicted of sexual interference and invitation to sexual touching involving his stepdaughter but acquitted of sexual assault.

On appeal, the court found that the trial judge erred by allowing improper cross-examination regarding the complainant's motive to fabricate and by using the absence of proved motive to enhance the complainant's credibility.

The Crown's extensive questioning required the appellant to speculate about the complainant's motives, thereby improperly shifting the burden of proof.

The court held that such cross-examination violates long-standing jurisprudence and that the absence of evidence of motive cannot be used to bolster credibility.

The appeal was allowed and a new trial was ordered.

The appellant appealed his conviction for second-degree murder in the death of his girlfriend.

The Crown's theory was that the appellant killed her in a dispute about his drug abuse and theft of money to acquire drugs.

The appellant claimed he witnessed a drug dealer kill the victim.

The appeal addressed three grounds: (1) admissibility of a police statement taken in hospital; (2) jury direction regarding prior inconsistent statements as evidence of consciousness of guilt; and (3) rulings on third-party suspect evidence.

The Court of Appeal dismissed all grounds of appeal and upheld the conviction.

The appellant appealed his drug-related convictions arising from a search warrant execution at his residence.

The trial judge found a breach of the appellant's s. 10(b) Charter right to counsel without delay but admitted the evidence under s. 24(2).

The Court of Appeal found the trial judge committed errors of principle in her s. 24(2) analysis by: (1) attenuating the seriousness of the breach based on police compliance with the duty not to question before counsel contact; and (2) treating the impact of the breach as neutral because the appellant failed to demonstrate that the delay prevented meaningful consultation with counsel.

The Court of Appeal concluded the s. 10(b) breach was serious and its impact significant, and that exclusion of the evidence was warranted to maintain the integrity of the administration of justice.

A young person was convicted of manslaughter, aggravated assault, careless use of a firearm, and possession of a firearm without licence or registration following a judge-alone trial.

The appellant appealed the convictions for manslaughter, aggravated assault, and careless use of a firearm, claiming self-defence.

The trial judge rejected the self-defence claim, finding that the appellant fired his gun at retreating attackers and therefore acted unreasonably.

The Court of Appeal found that the trial judge made a palpable and overriding error in finding that the appellant knew his attackers were retreating before he fired the first shot, and that the trial judge failed to properly apply the objective reasonableness standard for self-defence by imposing an unreasonably high burden on the appellant to weigh his response to a nicety within five seconds of being attacked.

The court allowed the appeal and entered acquittals on all three appealed charges.

The applicant sought review of a detention order made by a Superior Court judge under s. 680(1) of the Criminal Code.

The applicant was charged with two counts of first degree murder, one count of attempted murder, and one count of conspiracy to commit murder.

The Court of Appeal found no error of law, principle, or palpable and overriding error in the application judge's factual findings regarding the primary and secondary grounds for detention.

The court upheld the detention order, finding the application judge's conclusions about the strength of the Crown's case and the fragility of the proposed release plan to be reasonable.

The appellant appealed his conviction for sexual interference, invitation to sexual touching, and breach of recognizance arising from a relationship with a 14-year-old.

The defence position was that the alleged events never occurred.

The Court of Appeal upheld the conviction, finding that the trial judge appropriately addressed inconsistencies in the evidence and that the record contained ample corroboration of the complainant's core testimony.

Leave to appeal sentence was granted and the victim surcharge was set aside.

The appellant purchaser failed to close on an agreement of purchase and sale for a residential property in Mississauga.

After receiving multiple extensions, the appellant ultimately did not close due to inability to obtain mortgage financing.

The respondent vendors resold the property for a lower price and sued for damages.

The motion judge awarded damages for the difference in price plus consequential losses, and ordered forfeiture of the $75,000 deposit without crediting it toward the damages.

On appeal, the court upheld the damages award but reversed the deposit forfeiture issue, holding that the deposit must be credited toward the damages when the vendor suffers a loss from the purchaser's breach.

The appellant appealed a four-year penitentiary sentence imposed after conviction on counts of sexual interference and sexual assault involving a 15-year-old cousin when the appellant was 20 years old.

The single act of sexual contact resulted in pregnancy.

The appellant argued the trial judge erred in stating the appropriate sentencing range and failed to apply principles governing custodial sentences for youthful first offenders.

The Court of Appeal dismissed the appeal, finding the sentencing range was appropriate given the intimate nature of the contact, the relationship between the parties, and the significant consequences to the complainant.

The court set aside only the victim surcharge.

The appellants brought an appeal from a motion judge's decision dated December 6, 2018.

At the hearing, the appellants, who were self-represented, indicated their intention to withdraw the appeal.

After being advised of the consequences—that dismissal as abandoned would result in the motion judge's decision standing and the appeal not being heard—the appellants confirmed their understanding.

The Court of Appeal dismissed the appeal as abandoned and awarded costs to the respondent.

An appeal concerning a freedom of religion challenge to the medical and legal criteria for determining death.

The appellant's substitute decision-makers sought to prevent the withdrawal of life support and to rescind a death certificate based on the appellant's religious belief that death occurs only when the heart stops beating, not upon total brain death.

The Court of Appeal dismissed the appeal, upholding the application judge's conclusion that the claim could not succeed.

However, the court provided important guidance on the proper analytical approach to Charter rights and Charter values, clarifying that the appellant should have been presumed to be a Charter rights holder for purposes of the substantive analysis, and that the application judge erred in her methodology regarding freedom of religion analysis and Charter values application to the common law.