David M. Paciocco

Placement agencies that supplied temporary workers to the federal government appealed assessments requiring them to pay employer health tax under the Employer Health Tax Act.

The agencies argued they were not employers of the workers because the Government of Canada managed and directed the workers.

The appeal judge found the parties were involved in a tripartite relationship and determined the agencies were the employers because they paid remuneration to the workers, held contractual obligations to the workers, and the government's contractual documentation indicated its intention that the workers be employees of the placement agencies.

The Court of Appeal upheld the decision, finding the appeal judge undertook a comprehensive review of all circumstances and did not err in concluding the agencies were employers for tax purposes.

On appeal from a trial decision regarding custody and access of a six-year-old child, the Court of Appeal found that the trial judge erred by failing to apply the "maximum contact" principle under section 16(10) of the Divorce Act.

The trial judge had ordered that the child's primary residence remain with the mother, with the father receiving only one overnight per week and alternating weekends, and had granted joint custody in name only by giving the mother ultimate decision-making authority.

The Court of Appeal allowed the appeal and set aside the orders respecting parenting time and decision-making, requiring the parties to provide written submissions on the allocation of parenting time and decision-making responsibilities in a parallel parenting model.

The appellant sought a declaration that he was the legal owner by adverse possession of land formerly part of a railway corridor contiguous to his backyard, which was owned by the City of Niagara Falls.

The application judge denied the application, finding that the appellant failed to prove the third element of the adverse possession test: that the City had been effectively excluded from possession of the disputed land in the ten years immediately prior to July 19, 1999.

The Court of Appeal upheld this decision, finding no error in the application judge's conclusion and dismissing the appeal with costs awarded to the City.

The appellant abandoned the appeal, leaving only the respondent's claim for costs of the appeal to be determined.

The court found that the appellant's expenditures on legal advice were reasonably incurred and declined to award costs on a substantial indemnity basis.

Following the approach of the judge below, the court fixed the respondent's costs at $1,500.00 all-inclusive, representing 70 percent of legal fees on a partial indemnity basis and 100 percent of disbursements.

No order was made as to costs of the attendance on the hearing date.

The appellant sought a motion to review a decision of the motion judge.

The motion judge had heard both the respondent's motion to stay proceedings and the appellant's motion for an extension of time simultaneously.

The Court of Appeal found no reversible error in the motion judge's discretionary order, as the motion judge had reasonably connected his decision on the respondent's motion to his disposition of the appellant's motion.

The motion to review was dismissed with costs fixed at $2,500.00 all-inclusive.

The appellants appealed a motion judge's discretionary decision to deny their request for an extension of time to set an action down for trial.

The appellants claimed the motion judge committed legal errors and palpable and overriding errors of fact.

The Court of Appeal upheld the motion judge's decision, finding that the appellants failed to provide an acceptable explanation for the delay and failed to demonstrate that the respondent would not suffer non-compensable prejudice.

The court found the medical evidence inadequate to establish that the appellant's medical condition prevented prosecution of the lawsuit, and noted that despite the pre-existing condition, the appellant had advanced litigation until 2015 and pursued another related action to conclusion in 2018.

The appeal was dismissed with costs awarded to the respondent.

The Court of Appeal for Ontario heard motions to quash two appeals brought by 108 Media Corporation from decisions of an application judge.

The first appeal concerned a refusal to grant leave to appeal from an arbitral award under section 45(1) of the Arbitration Act.

The second appeal concerned a decision recognizing and enforcing the arbitral award dated December 11, 2017.

The court found that no appeal lies from a refusal to grant leave to appeal on the merits and that section 50(3) of the Arbitration Act deprives a judge of jurisdiction to refuse to enforce an arbitral award except in certain circumstances not present here.

Both appeals were quashed and costs were awarded to BGOI Films Inc. on a higher scale due to the appellant's dilatory litigation strategy.

The appellant appealed his second-degree murder conviction for the shooting death of his common-law partner and the 15-year parole ineligibility portion of his sentence.

The appellant claimed the trial judge erred by preventing cross-examination regarding a polygraph test administered to a key Crown witness and by admitting expert testimony from a bloodstain analyst.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no error in the trial judge's rulings and upholding the sentencing decision despite a jury recommendation for 10 years of parole ineligibility.

The appellants appealed a motion judge's decision that the respondent Pezzack Financial Services Inc. was entitled to proceeds of a mortgage action settlement held in escrow pursuant to a Notice of Garnishment.

The appellants claimed that the garnishee held the mortgage in trust for them, either as an express trust or a resulting trust.

The Court of Appeal upheld the motion judge's findings that the claimed express trust was a sham and that the circumstances did not support a resulting trust.

The appeal was dismissed with costs fixed at $10,000.00 all-inclusive.

The appellant appealed a conviction for sexual assault, arguing that the trial judge erred by failing to consider the absence of evidence that anyone heard the alleged assault.

The appellant contended that given the complainant's evidence, it was implausible that no one would have heard anything if the assault had actually occurred.

The Court of Appeal dismissed the appeal, finding that the trial judge understood and correctly applied the law regarding absence of evidence and reasonable doubt, and that the trial judge's thorough reasons demonstrated a clear path to conviction based on the facts found.

The appellant appealed his conviction on two counts of impaired operation of a vessel causing bodily harm arising from a boating accident.

The appellant had consumed alcohol throughout the day and evening before taking control of a boat in unfamiliar waters at dusk, resulting in a collision with an island that ejected two passengers.

The trial judge convicted based on the totality of circumstances, including the appellant's conduct, alcohol consumption, and expert evidence regarding blood alcohol concentration.

The Court of Appeal upheld the conviction, finding it was reasonable and supported by evidence.

The appellant also sought leave to appeal sentence and raised a Charter argument regarding the breathalyzer demand that had not been raised at trial, which the court declined to hear.

Leave to appeal sentence was granted and the victim surcharge order was quashed, but the sentence itself was upheld as within the normal range for the offence.

The appellant appealed a committal order for extradition to the United States to stand trial for Internet luring and child exploitation offences.

The Court of Appeal upheld the committal order and dismissed the application for judicial review of the Minister's surrender order.

The majority found that the search warrants were valid, that the extradition judge did not err in applying the disclosure test, and that the Minister reasonably exercised her discretion in ordering surrender.

The dissent argued that the extradition judge applied the wrong disclosure test and exercised discretion unreasonably, rendering the hearing unfair.

The appellant was convicted of forcible confinement by the Ontario Court of Justice.

The Crown alleged that the appellant, his brother, and a third man confined the complainant in a car and drove him around Rexdale to force him to contact his brother about a debt.

The confinement lasted approximately one hour with no physical harm.

The key issue at trial was identity.

The appellant appealed his conviction on grounds of unreasonable verdict, insufficient reasons, and interference with cross-examination.

He also sought leave to appeal his sentence of 60 days' intermittent custody followed by 18 months' probation.

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

The plaintiff, an employee of Darwin Productions Inc., claimed unpaid salary and a percentage ownership interest based on an alleged employment agreement.

The respondents denied the terms and moved for summary judgment on the basis that the claim was statute-barred.

The motion judge granted the summary judgment, finding no evidence of a demand obligation and concluding the cause of action arose by December 2009.

The intervenor law firm appealed, arguing the motion judge erred by failing to address anticipatory breach of contract and by finding sufficient evidence to decide factual issues on summary judgment.

The Court of Appeal allowed the appeal, finding the motion judge erred in law by not addressing the anticipatory breach argument and that there was a genuine issue requiring trial regarding the terms of the employment agreement.

The appellant appealed his conviction for sexual interference with a 14-year-old minor.

The appellant admitted to the sexual activity but claimed a mistaken belief that the complainant was of legal age.

The trial judge convicted the appellant, finding he had not taken reasonable steps to confirm the complainant's age.

The appellant argued the trial judge unreasonably relied on "selfie" photographs, engaged in impressionistic reasoning about the complainant's appearance, and failed to provide adequate reasons.

The Court of Appeal dismissed the appeal, finding the trial judge's reliance on the photographs was reasonable and that lay witnesses are permitted to express opinions about apparent age based on ordinary human experience.

The appellant was convicted of possession of marijuana for the purpose of trafficking based primarily on a police officer's identification of the appellant as the driver of a minivan that sped past the officer at 50 km/h from a distance of 15 feet.

The officer's fleeting observation lasted only seconds and was limited to describing the driver as an Asian male with dark hair.

The appellant's wallet containing an OHIP card with photograph and an inhaler were found in the vehicle, along with seven large garbage bags of marijuana.

The trial judge found these items, combined with the officer's identification, sufficient to establish the appellant's guilt.

The Court of Appeal allowed the appeal, finding the conviction unreasonable and unsupported by evidence.

The appellant appealed his sentence of indeterminate detention imposed following his conviction for robbery with a firearm.

The trial judge had designated the appellant as a dangerous offender and sentenced him to indeterminate detention.

The Court of Appeal found that the trial judge erred by applying an improper presumption that the appellant must be sentenced to indeterminate detention unless it was established that a reasonable expectation exists that Long Term Offender sentencing is sufficient.

This error was contrary to the principles established in R. v. Boutilier.

The Crown conceded the error but argued the proviso should apply.

The Court of Appeal disagreed and allowed the appeal, setting aside the sentence and ordering a new sentencing hearing to be conducted expeditiously.

The appellant was convicted of three counts of assault with a weapon, one count of aggravated assault, and one count of assault following a jury trial.

He appealed his conviction on grounds that the trial was unfair due to self-representation despite requesting counsel, and that the trial judge failed to provide proper limiting instructions on prior consistent statements and multi-count indictment evidence.

The Court of Appeal found that the trial judge erred by failing to provide a limiting instruction on the complainant's prior consistent statements made to her family doctor, mother, and family lawyer.

The court determined this error was fatal given the centrality of credibility, the substantive details of the statements, and the Crown's closing address inviting the jury to infer truthfulness from consistency.

The appellant appealed a motion judge's order dismissing his motion to amend his statement of claim.

The motion judge had refused certain amendments as statute-barred under the Limitations Act, 2002 and deferred other amendments pending the determination of an outstanding motion for partial summary judgment.

The motion judge also awarded costs against the appellant.

The appellant raised two grounds of appeal: alleged bias by the motion judge and error in refusing leave to amend.

The Court of Appeal dismissed the appeal, finding no evidence of bias and upholding the motion judge's discretionary procedural orders regarding the timing of amendments and the statute-barred nature of certain claims.

The appellant appealed his convictions for three counts of assault, one count of sexual assault, and one count of unlawful confinement arising from a domestic relationship.

The appellant was acquitted of four other charges and one charge was withdrawn.

He was sentenced to 21 months in jail and three years probation.

On appeal, the appellant challenged the trial judge's rejection of a Charter section 11(b) delay motion and raised three grounds of appeal relating to credibility evaluation and alleged errors in the trial judge's reasoning.

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