David M. Paciocco

The appellant appealed the dismissal of a claim for adverse possession against the respondent property owner.

The appellant argued that the application judge erred by departing from agreed facts in concluding that adverse possession had not been established, particularly regarding whether the respondent had been excluded from the disputed property.

The Court of Appeal upheld the dismissal, finding that the application judge's findings were fully supported by the agreed facts, affidavits, and cross-examination evidence.

The court distinguished between exclusion of uninvited persons and exclusion from the owner's intended use of the property.

The appellant appealed from a motion judge's order requiring disclosure of all documents and communications relating to a settlement agreement between the appellant and its creditor, Zodax.

The respondent sought annulment of the appellant's bankruptcy proposal, alleging that the Zodax settlement was entered into secretly and fraudulently to obtain court approval without proper disclosure to creditors.

The motion judge ordered production, finding that the integrity of the bankruptcy proposal process outweighed settlement privilege.

The Court of Appeal granted leave to appeal and dismissed the appeal, holding that while settlement privilege is a class privilege that generally applies, it may be subject to exceptions where competing public interests require disclosure, particularly where allegations of fraud in the proposal process are raised.

The appellants appealed the dismissal of their motion to set aside a default judgment in a wrongful dismissal action.

The appellants' statement of defence had been struck after they failed to attend a motion hearing, and they were subsequently noted in default.

The motion judge dismissed their motion to set aside the default, finding that the circumstances leading to the default had not been adequately explained and that setting aside the judgment would prejudice the respondent and impair the integrity of the justice system.

The Court of Appeal upheld the motion judge's decision, finding that the appellants' pattern of delay and failure to attend court proceedings justified the refusal to set aside the default judgment.

The appellant was convicted after a two-week jury trial of possession of a prohibited firearm without a license, possession of an over-capacity magazine, possession of a firearm with a defaced serial number, possession of cocaine for the purpose of trafficking, and possession of proceeds of crime.

He was sentenced to nine years and three months' imprisonment.

On appeal, the Court of Appeal found that the trial judge erred in failing to provide limiting instructions to the jury regarding photographs of a firearm found on the appellant's cell phone, and in failing to provide a W.(D.) instruction regarding the testimony of the appellant's brother.

The Court set aside the convictions on the firearm-related counts and ordered a new trial on those counts, while upholding the drug and proceeds convictions.

The appellant appealed his conviction on four sexual offences involving his 16-year-old daughter.

The trial judge found the appellant guilty based on the complainant's testimony regarding two incidents of fondling, corroborated by explicit messages sent immediately after the first incident and a photograph showing an inappropriate cuddle.

The appellant's primary ground of appeal challenged the trial judge's rejection of his girlfriend's alibi evidence.

The Court of Appeal upheld the conviction, finding the trial judge properly applied the W. (D.) test and was entitled to reject the girlfriend's evidence in light of her friendship with the appellant, the opportunities he had to be alone with his daughter, and her role in photographing the inappropriate cuddle.

The appellant lender advanced a mortgage secured by a commercial property in Kingston, Ontario, paying off a prior first mortgage and tax arrears but not the respondent's second mortgage.

When the borrower defaulted and the property was sold under power of sale, the appellant claimed priority over the respondent's mortgage based on equitable subrogation.

The motion judge granted summary judgment in favour of the respondent, finding that the appellant knew the respondent would not postpone her mortgage and that it would be inequitable to grant subrogation for a mortgage more than double the value of the one replaced.

The Court of Appeal dismissed the appeal, upholding the motion judge's discretionary decision to deny equitable subrogation.

The appellants were convicted of two counts of breaching a regulation under the Conservation Authorities Act.

At trial, they were sentenced to fines of $5,000 each and a two-year probation order requiring reconstruction of a seawall.

The Conservation Authority appealed to the Provincial Offences Appeal Court, seeking removal of a home addition as a sentencing term.

The POAC judge allowed the appeal, set aside the original sentence, remitted the fines, and ordered removal of the addition.

The appellants appealed to the Court of Appeal for Ontario, arguing the POAC judge exceeded the scope of appellate review by reversing factual findings without identifying palpable and overriding error.

The Court of Appeal allowed the appeal, finding the POAC judge impermissibly substituted his own findings regarding whether the conduct constituted a flagrant and deliberate breach of the regulations.

The appellant appealed his convictions for dangerous driving causing bodily harm and failing to stop at the scene of an accident, as well as a stayed charge of criminal negligence causing bodily harm.

The charges arose from the appellant's deliberate use of his vehicle to dislodge a person hanging from the passenger side door.

The Court of Appeal upheld all convictions, finding no error in the trial judge's assessment of witness credibility, his inferences regarding vehicle speed and the appellant's knowledge of running over the victim, or his rejection of necessity and self-defence arguments.

The court also upheld the sentencing decision regarding the driving suspension.

The appellants, a developer, appealed from a summary judgment that dismissed claims for conspiracy and negligent and fraudulent misrepresentation against appraisers, and ordered a mini-trial on claims of negligence, inducing breach of contract, and intentional interference with economic relations.

The Court of Appeal upheld the dismissal of the conspiracy and misrepresentation claims, finding no reasonable reliance and no evidence of conspiracy.

The court also set aside the mini-trial order and dismissed the remaining claims, finding they had no possibility of success due to lack of reliance, absence of unlawful conduct, and expiration of the limitation period.

The Crown appealed an acquittal on drug charges.

The trial judge had acquitted the accused on the basis that there was no forensic evidence connecting the accused to illicit items in a safe, concluding that the accused lacked the requisite knowledge of the presence of drugs.

The Court of Appeal held that this was an error of law, as constructive possession can be proven by circumstantial evidence without forensic evidence.

The appeal was allowed, the acquittal set aside, and a new trial ordered.

The appellant appealed his convictions for possession of a firearm, cocaine, and drug proceeds, as well as his sentence.

The trial judge found that the appellant possessed a Browning semi-automatic handgun, cocaine, and a scale that were discovered in the snow outside a bedroom window after the appellant fled a police-surveilled apartment.

The appellant argued that the trial judge should not have inferred that he personally placed these items outside, contending that others could have thrown them or that a young person who also fled could have dropped them.

The Court of Appeal upheld all convictions, finding that the trial judge's inference was reasonable based on the totality of the evidence, including the appellant's clothing capacity, his crouching action near the items, and the lack of opportunity for others to have disposed of them.

The appellant appealed his conviction for operating a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood.

He contended that the arresting officer violated his Charter rights by failing to consider whether residual mouth alcohol could have distorted the accuracy of the approved screening device (ASD) test result.

The Court of Appeal dismissed the appeal, holding that while officers should consider residual mouth alcohol as a matter of good practice, the failure to do so does not constitute a Charter violation.

The court found that the officer had reasonable grounds to arrest and make an evidential breath demand based on the information available to her at the time.

This is a costs decision on appeal from a trial judgment dismissing the appellant's action.

The respondents were entirely successful on appeal and sought costs on a partial indemnity basis.

West Face Capital Inc. sought $250,000 in costs while Brandon Moyse sought $149,905.18.

The appellant argued for reduced costs amounts.

The Court of Appeal awarded West Face $200,000 and Moyse $100,000, both inclusive of disbursements and HST, considering the respondents' complete success, the nature of the appeal involving a large record and detailed factual re-litigation, and costs thrown away due to an unnecessary adjournment.

The respondent challenged the Court of Appeal's jurisdiction to hear the appeal, arguing that the order was interlocutory and therefore required leave to appeal to the Divisional Court.

The appellant contended that the Court of Appeal had jurisdiction because the parties had reached a settlement agreement that the motion judge lacked authority to decline to enforce, making it a final decision.

The Court of Appeal found the cases relied upon by the appellant distinguishable and determined that the order was interlocutory as it did not finally dispose of the action or finally determine any claim, defence, or substantive right.

The appeal was quashed for lack of jurisdiction.

The appellant sought leave to appeal a Divisional Court decision dismissing his negligent medical diagnosis and drug treatment claim against the respondent physicians.

The appellant had failed to provide expert medical evidence establishing a breach of the standard of care despite being granted an adjournment and more than six months to obtain such evidence.

The Court of Appeal dismissed the motion for leave to appeal, finding no error in the Divisional Court's reasoning and confirming that in medical negligence cases, the plaintiff must prove the standard of care through expert evidence.

An independent contractor was engaged under a six-month Independent Consulting Agreement to provide technological consulting services for a Canadian Tire project.

The contractor disclosed a dated criminal record before commencing work and complied with security checks.

When the security report revealed the criminal record, Canadian Tire requested the contractor's replacement.

The company terminated the engagement one month into the contract under a termination clause allowing termination at the company's sole discretion.

The contractor sued for breach of contract, claiming six months' remuneration.

The motion judge awarded full damages plus costs, finding the company breached its duty of good faith performance.

The Court of Appeal affirmed the judgment, holding that although the termination clause was facially unfettered, it was subject to an implied obligation of good faith performance, and the contractor was entitled to damages for the unexpired term of the fixed-term contract with no duty to mitigate.

The appellants, defendants in a mortgage guarantee action, commenced third party claims against their former lawyer for contribution and indemnity, alleging he failed to obtain releases of their personal guarantees as instructed.

The motion judge granted summary judgment dismissing the claims as statute-barred under section 18 of the Limitations Act, 2002, finding an absolute two-year limitation period.

The Court of Appeal allowed the appeal, holding that section 18 does not establish an absolute limitation period but rather works with sections 4 and 5 of the Limitations Act to create a presumed start date subject to discoverability principles.

The court also found the motion judge erred in principle by not fully appreciating the complexity of the discoverability issue when deciding to proceed by summary judgment.

The appellant sought a declaration that his date of birth is January 1, 1951, rather than November 5, 1955, as recorded in his Iraqi identity documents when he applied for permanent residence in Canada in 1991.

The appellant wished to use the corrected date to apply for Canada Pension Plan benefits.

The Superior Court dismissed the application on three grounds: Ontario was not a proper party, the court lacked jurisdiction, and the appellant failed to prove his true date of birth.

The Court of Appeal upheld the dismissal, finding that Ontario had no demonstrated interest in the proceeding and was not a proper party.

However, the court indicated that on a proper record with the correct parties, particularly the Attorney General of Canada, the court may have jurisdiction to grant such declaratory relief.

The applicant sought to review and set aside a security for costs order made by a motion judge.

The applicant's primary argument was that the motion judge erred in relying on his legal representation as evidence of ability to pay.

The Court of Appeal dismissed the application, finding that the motion judge was entitled to reject the applicant's claims of impecuniosity given significant unpaid costs awards against him, his credibility concerns arising from findings of fraud and contempt, and his refusal to answer questions about the source of funds he has used to support himself despite millions of dollars having passed through his hands.

The appellant, a psychologist, was convicted by jury of two counts of impaired operation of a motor vehicle causing bodily harm following a two-vehicle collision.

She appealed on multiple grounds, including Charter violations, credibility assessments, jury charge errors regarding straddle evidence, and prosecutorial misconduct.

The Court of Appeal dismissed all grounds of appeal, finding no Charter breaches, no reversible credibility errors, and no miscarriage of justice despite some improper prosecutorial conduct.