David M. Paciocco

The appellants were convicted of three counts of possessing narcotics for the purpose of trafficking and possession of proceeds of crime following a warrantless search of their apartment and a subsequent search pursuant to a warrant.

The trial judge found the warrantless search unconstitutional but admitted the evidence under section 24(2) of the Charter.

The appellants appealed, arguing the trial judge erred in his section 24(2) analysis by failing to consider the searching officer's misleading testimony and by improperly emphasizing objective grounds while diminishing the lack of subjective grounds.

The Court of Appeal allowed the appeal, finding the trial judge committed material errors in his Charter analysis, excluded the evidence, and substituted verdicts of acquittal on all charges.

The appellants appealed an order of the Superior Court of Justice dated June 18, 2018.

The appeal was allowed on consent, as counsel for the appellants explained that relevant authorities were not brought to the attention of the motion judge.

The order was set aside and replaced with an order as per the consent order filed.

The appellants appealed a summary judgment decision granting the respondent judgment on its claim without set-off or stay pending the counterclaim.

The appellants raised three grounds of appeal: (1) that the motion judge failed to apply the appropriate test on summary judgment regarding equitable set-off and the interconnection of the claims; (2) that the motion judge erred in granting partial summary judgment; and (3) that the motion judge erred in piercing the corporate veil to impose personal liability on the individual appellant.

The Court of Appeal upheld the lower court decision on all grounds, finding that the claims were not so closely connected as to warrant equitable set-off, that no inconsistency issues arose from the partial judgment, and that the circumstances supported personal liability based on the individual's control and direction of the company's actions.

The appellant appealed the dismissal of his family law proceedings under rule 1(8) of the Family Law Rules.

The motion judge had given the appellant an opportunity to make a partial payment of $5,000 to avoid dismissal.

The appellant failed to make this payment.

The motion judge considered the appellant's failure to comply with this order, his history of non-compliance with court orders dating back to 2006, and multiple costs orders against him.

Finding no exceptional circumstances warranting discretionary relief, the motion judge dismissed the proceedings.

The Court of Appeal found no error in the motion judge's exercise of discretion and dismissed the appeal.

The appellant was convicted of trafficking in property obtained by crime and possession of property obtained by crime after police discovered $1,136,555 in cash in his vehicle.

The primary issue at trial was whether the Crown proved beyond a reasonable doubt that the appellant knew the funds were proceeds of crime.

The appellant testified he believed the money was "Shoah Gelt" (money belonging to Jewish people in Europe or Asia seeking to move funds to safety).

The trial judge rejected this testimony and convicted the appellant.

On appeal, the appellant challenged the conviction on three grounds: improper application of the W.(D.) test, insufficient reasons for conviction, and a grossly disproportionate sentence.

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

The appellant was arrested on a surety warrant that had been rescinded by an administrative judge over a month prior to the arrest, but the rescission was not recorded on CPIC.

A pat-down search incident to arrest and a subsequent strip search yielded cocaine and marijuana.

The trial judge found the arrest lawful and the searches reasonable.

On appeal, the court found the arrest was unlawful because: (1) the surety warrant had been validly rescinded by the administrative judge; (2) the arresting officer lacked reasonable grounds for the arrest; and (3) the police failed to make reasonable inquiries when the appellant informed them the warrant had been dealt with in court.

The court also found the strip search violated section 8 of the Charter.

The evidence was excluded under section 24(2) and verdicts of acquittal were substituted.

The appellant appealed a trial judge's finding that the parties had reached an oral agreement whereby the respondents had an option to purchase unit 116 from the appellant.

The appellant disputed both the existence of the agreement and whether there was sufficient part performance to take the agreement out of the Statute of Frauds.

The Court of Appeal upheld the trial judge's findings, finding no legal error in the determination that consensus had been reached on material terms, that part performance was established through the provision of free ski lessons, and that the trial judge's credibility findings were entitled to deference.

The appellant was convicted of possession of a firearm obtained by crime, possession of property obtained by crime, break and enter to steal a firearm, and break and enter with intent to commit an indictable offence.

The appellant appealed on the grounds that the trial judge misapprehended the evidence and incorrectly applied the rules of circumstantial evidence in finding that the appellant was the perpetrator of the break-in and that the rifle was a firearm within the meaning of the Criminal Code.

The Court of Appeal dismissed the appeal, finding that the trial judge's conclusions were well-grounded in the evidence and that there was no reasonable alternative inference.

The appellant appealed a summary judgment granted in favour of the respondent.

The appellant argued that the motion judge erred by deciding the case on summary judgment when the record was deficient.

The Court of Appeal rejected this submission, finding that the motion judge was able to analyze the legal relationship based on the evidentiary record.

The court determined that the appellant was the purchaser of travel products on behalf of its customers and the respondent was the seller, making the appellant responsible for the invoices.

The appeal was dismissed with costs.

The appellant appealed his conviction on charges of possession of cocaine for the purpose of trafficking, possession of marijuana for the purpose of trafficking, and possession of oxycodone.

The trial judge dismissed the appellant's Charter application alleging breaches of sections 8 and 9 rights based on an anonymous Crime Stoppers tip and subsequent police surveillance.

The Court of Appeal found that the trial judge erred in applying the Debot factors, concluding that the anonymous tip was neither credible nor compelling, and that the surveillance provided minimal corroboration.

The court determined that the police lacked reasonable and probable grounds to arrest the appellant, thereby breaching his Charter rights.

Under section 24(2) analysis, the court found that exclusion of the evidence was appropriate given the seriousness of the state conduct, the profound impact on the accused's Charter-protected rights, and the need to maintain public confidence in the administration of justice.

Corporations defrauded by their bookkeeper through forged cheques and unauthorized payroll payments sought partial summary judgment against their bank on strict liability and negligence claims.

The motion judge granted partial summary judgment on the strict liability claim relating to cheque fraud, finding no genuine issue to be tried on the bank's business banking agreement defence or limitations defence.

The bank appealed, arguing the motion judge erred in granting partial summary judgment, misapplied the discoverability test for limitations, and erred in finding no evidence supporting the business banking agreement defence.

The Court of Appeal allowed the appeal, finding that partial summary judgment was inappropriate due to risk of overlap in evidence between the cheque fraud and payroll fraud claims, and that the motion judge misapplied the modified objective test for discoverability by conducting a purely subjective inquiry.

The appellant was convicted of sexual interference and sexual assault by the trial judge.

On appeal, the appellant challenged the conviction on the basis of errors in the trial judge's reasoning regarding the complainant's motive to fabricate.

The Court of Appeal found that the trial judge erred by transforming an absence of evidence of motive to fabricate into a proven lack of motive, which improperly enhanced the complainant's credibility.

The court distinguished between "absence of proved motive" and "proved absence of motive" finding that the former does not logically establish truthfulness.

The conviction was set aside and a new trial was ordered.

The appellant appealed from an order of the Superior Court dismissing his preliminary motion to challenge the authenticity of a joint venture agreement through forensic document examination.

The Court of Appeal found that the motion judge had mischaracterized the nature of the preliminary motion and made material factual errors in his analysis.

The court allowed the appeal, set aside portions of the October order, and reinstated the April order pending the appellant's opportunity to bring a motion in Superior Court regarding the document's authenticity.

The court also preserved the respondent's right to pursue relief if the appellant failed to bring such motion within 30 days.

The respondent retained its costs award from the application judge, and no costs were awarded on the appeal.

The appellants purchased railway land in Niagara Falls from Canadian National Railway Company (CN) in 2008, with CN taking back a mortgage.

The appellants defaulted and CN sued.

The appellants brought a third-party action against their solicitors (McMillan LLP, Philip Thompson, and Marssa Giahi) for negligence, claiming they failed to properly advise about a Director's order under the Environmental Protection Act registered on title.

The respondents obtained summary judgment dismissing the third-party claim.

The appellants appealed, arguing the motion judge erred in applying Rule 20 principles and that genuine issues for trial existed regarding the duty of care, knowledge of the Director's order, and causation.

The Court of Appeal upheld the summary judgment, finding no negligence claim against McMillan due to lack of involvement in the final transaction, and no duty to warn Thompson and Giahi given the "as is" agreement and client's explicit instructions not to investigate environmental concerns.

The appellant tenant and respondent landlord disagreed over the interpretation of their commercial lease on two points: whether the leased premises included a parking area owned by the City of London and licensed to the landlord, and whether the landlord's right to exclusive use of office space permitted the landlord to lease that space to a third party.

The application judge found against the tenant on both points.

On appeal, the Court of Appeal upheld the application judge's decision regarding the parking area but reversed on the office space issue, finding that the lease language clearly distinguished between "use" (reserved exclusively to the landlord) and "access or entry" (afforded to the landlord and invitees), and therefore the landlord could not lease the office to a third party.

The appellants appealed a summary judgment decision granted in favour of the respondent on a motion concerning the interpretation of paragraph 20 of a Licence Agreement between Gro-Bark and Eacom.

The motion judge granted summary judgment by simply adopting the respondent's factum without engaging in the required contractual interpretative exercise or articulating the basis for his findings.

The Court of Appeal found that the motion judge failed to properly analyze the evidence and explain his reasoning, and therefore allowed the appeal and set aside the decision.

On appeal from a trial judgment in a personal injury case arising from a motorcycle accident, the appellants challenged the trial judge's decisions regarding collateral benefits deductions under the Insurance Act.

Specifically, they contested the trial judge's refusal to deduct an overpayment of income replacement benefits and short-term disability benefits from the jury's award.

The appellants argued that if successful on either issue, the respondent's judgment would fall below their Rule 49 settlement offer, warranting a costs adjustment.

The Court of Appeal upheld the trial judge's decisions on both issues and dismissed the appeal.

The applicant sought a stay of execution of the Court of Appeal's order pending disposition of its application for leave to appeal to the Supreme Court of Canada.

The Court of Appeal had reinstated an arbitrator's multi-million-dollar damages award against the applicant for breach of a purchasing and management agreement relating to solar energy projects.

The applicant argued that the arbitrator exceeded his jurisdiction by awarding damages for lost profits.

The motion judge dismissed the stay application, finding that while the applicant met the threshold for a serious issue to be tried, the balance of convenience strongly favoured denial of the stay given the respondent's severe liquidity problems and existential risks if the stay was granted, as opposed to the applicant's substantial financial resources.

The appellant, appearing self-represented, failed to appear for the hearing of his appeal on April 17, 2019.

Despite attempts by counsel for the respondents and the court to contact the appellant at the phone number he had provided, he could not be reached.

The court dismissed the appeal as abandoned and awarded costs to the respondents in the amount of $5,000 all-inclusive.

On appeal from a trial judgment involving an oil tank leak at a residential property.

The trial judge found Thompson Fuels negligent for failing to conduct required comprehensive inspections and water testing of fuel oil tanks, but found the Technical Standards and Safety Authority (TSSA) not liable.

The plaintiff was found 60% contributorily negligent and Thompson Fuels 40% liable.

The appellate court upheld the trial judgment with one adjustment regarding betterment related to a line of credit.

The court addressed complex issues including the enforceability of exclusion clauses in consumer contracts, the application of regulatory obligations to civil liability, Pierringer agreements, and the calculation of damages in environmental contamination cases.