David M. Paciocco

The Court of Appeal for Ontario issued a costs endorsement following its dismissal of a motion by a law firm seeking a charging order or lien against damages and costs awarded to its client.

The law firm sought no costs or alternatively $2,500, arguing the issue was novel and of public importance.

The respondent sought substantial indemnity costs of $25,214.42, arguing the motion lacked merit and was an attempt to burden him with additional costs.

The court awarded costs to the respondent on a partial indemnity basis, rejecting the law firm's arguments and refusing to permit set-off against legal fees owed by the respondent.

The appellants, the Better Business Bureau of Ottawa-Hull Incorporated and Better Business Bureau of Ottawa-Hull Inc., appealed a Divisional Court decision that had allowed an appeal by Walsh Energy Inc. in a defamation action.

The trial judge had dismissed the defamation claim, finding that the BBB's D- rating assigned to Walsh was not defamatory and was protected by the defence of fair comment.

The Divisional Court reversed, finding the D- grade was defamatory and ordering a new trial on the issues of fair comment, malice, and damages.

The Court of Appeal allowed the BBB's appeal, finding that the Divisional Court erred in ordering a new trial on fair comment, as the record was sufficient to establish the defence.

The court also reduced the trial judge's costs award from $348,135.96 to $175,000 as being excessive and contrary to the fundamental objective of access to justice.

The appellant was convicted of unlawful confinement, sexual assault causing bodily harm, and uttering a death threat following a jury trial.

Approximately three years later, he was declared a dangerous offender and sentenced to an indeterminate period of incarceration.

His appeal was initially abandoned but subsequently reopened.

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

The conviction appeal was dismissed as the trial Crown's closing remarks, while potentially problematic, did not cause a substantial wrong or miscarriage of justice.

However, the sentence appeal was allowed on the basis that the trial judge violated procedural fairness by denying the appellant the right to make oral submissions during the dangerous offender hearing, instead requiring written submissions only.

A new dangerous offender hearing was ordered.

Appeal from orders of the Superior Court requiring the appellant mother to return two children to their habitual residence in England pursuant to the Hague Convention on the Civil Aspects of International Child Abduction.

The application judge declined to assess whether the grave risk of harm exception applied due to conflicting affidavit evidence and ordered the children's return.

The Court of Appeal found three errors: the application judge improperly awarded custody as a sanction for breach of the return order, lacked jurisdiction to order the appellant to return to England with the children, and erred in declining to assess the grave risk of harm exception under Article 13(b) of the Hague Convention.

The appeal was allowed and the orders were set aside.

The appellant challenged her father's will and an inter vivos transfer of his house to the respondent, alleging undue influence.

The trial judge rejected the claim.

On appeal, the appellant argued that the relationship between the testator and respondent gave rise to a presumption of undue influence that the respondent failed to rebut.

The Court of Appeal dismissed the appeal, holding that the rebuttable presumption of undue influence applies only to inter vivos transactions, not testamentary gifts.

In testamentary matters, the party attacking the will bears the onus of proving undue influence on a balance of probabilities.

Although the trial judge erred in conflating the two tests, this error did not affect the reasonableness of his conclusion that no undue influence occurred, as his findings were firmly rooted in the evidence.

The law firm sought reconsideration of the court's decision on its motion for a charging order or solicitor's lien.

The court denied the request for reconsideration, noting that the law firm had already addressed the merits of obtaining a charging order in its written submissions and that the test for a charging order and solicitor's lien is the same.

A private mortgage lender purchased mortgage insurance from an insurer and became the victim of mortgage fraud.

The lender's lawyer paid mortgage proceeds to the borrower's lawyer in trust rather than directly to the borrower.

The insurer denied coverage based on an exception clause requiring proceeds to be paid to the registered title holder.

The application judge found the exception did not apply.

The insurer appealed.

The majority of the Court of Appeal upheld the application judge's decision, holding that payment to the borrower's lawyer in trust constitutes payment to the borrower for purposes of the insurance policy.

The dissent argued the exception clause was unambiguous and applied because the funds were not paid directly to the registered title holder.

The appellant appealed a judgment of the Superior Court finding that he had repudiated an Agreement of Purchase and Sale for the respondent's business.

The application judge granted rectification of the closing date, found that the appellant had waived the deadline for closing and delivery of landlord's consent, and that the appellant had agreed to pay interim rent.

The application judge also found that the landlord ultimately delivered consent in the form of a one-page handwritten document signed by all parties in September 2014.

The Court of Appeal upheld the application judge's findings, finding no palpable and overriding error in the factual determinations regarding waiver or the interpretation of the landlord's consent document.

An appeal from an Ontario Review Board disposition detaining a not criminally responsible on account of mental disorder (NCRMD) accused in a secure forensic unit.

The appellant challenged the Board's finding that she posed a significant threat to the safety of the public.

The Court of Appeal found that the Board failed to properly apply the legal test for "significant threat" under section 672.5401 of the Criminal Code, which requires a serious risk of serious physical or psychological harm from criminal conduct.

The Board's reasons did not adequately analyze either the risk or gravity of psychological harm.

The appeal was allowed and a new hearing was directed.

The appellant appealed her conviction for fraud over $5,000 arising from an insurance fraud conspiracy investigation known as "Project Whiplash" involving staged motor vehicle collisions.

The appellant challenged the trial judge's rejection of her section 11(b) Charter application regarding trial delay.

The Court of Appeal held that even accepting the appellant's position that individually charged but related defendants should not be treated the same as co-accused persons, there was insufficient institutional or Crown delay to support a Charter violation.

The total delay of approximately ten months fell within acceptable guidelines for provincial court trials under the pre-Jordan law and was not presumptively unreasonable under the Jordan regime.

The appeal was dismissed.

Appeal from a trial judgment dismissing the appellant's action for misuse of confidential information and spoliation.

The appellant alleged that the respondent West Face Capital Inc. improperly obtained and used confidential information about the appellant's bid to acquire WIND Mobile Inc., allegedly obtained from a former employee who moved to West Face.

The trial judge dismissed all claims, finding that the appellant failed to prove that confidential information was provided to West Face or that any such information was used in West Face's successful competing bid.

The trial judge also found that the appellant's choice to terminate negotiations due to a break fee demand, rather than West Face's competing bid, caused the failure of the appellant's acquisition.

The Court of Appeal upheld the trial judgment and dismissed the appeal, as well as the application for leave to appeal the costs orders.

A law firm sought a charging order or solicitor's lien on funds awarded to its client in a successful civil action.

The client had recovered $390,000 in damages and $550,000 in costs at trial, with an additional $50,000 in costs awarded on appeal.

The law firm claimed $360,836.88 in unpaid fees and sought to secure this amount through either a charging order under the Solicitors Act or a lien under the court's inherent jurisdiction.

The client contested the amount owed and initiated an assessment process.

The Court of Appeal dismissed the motion, finding that while it had jurisdiction to grant such relief, the law firm failed to establish that the client was unable or unwilling to pay.

The appellants appealed a motion judge's order staying an action for damages for conspiracy to injure.

The motion judge found that the essence of the dispute was an unfair labour practice under section 76 of the Labour Relations Act, 1995, and that the Labour Relations Board therefore had exclusive jurisdiction.

The appellants argued that the essence of their claim was conspiracy to injure, with labour relations matters being merely incidental.

The Court of Appeal upheld the motion judge's decision, finding that an examination of the statement of claim did not support the appellants' characterization and that the tribunal would need to decide matters clearly within the Board's purview, such as the propriety of a grievance filed by the union.

Appeal from a trial judge's decision granting sole custody of a child to the respondent mother and permitting relocation from Toronto to Nova Scotia.

The appellant father challenged the custody award, relocation decision, access schedule, and costs award.

The Court of Appeal upheld the trial judge's decisions on custody and relocation, finding they were supported by the record and within the trial judge's discretion.

The court modified the access schedule by removing a four-hour restriction on overnight visits with the child's grandparents, finding it inconsistent with the trial judge's own findings regarding the child's relationship with the paternal grandparents.

The costs award was upheld as within the trial judge's discretion.

The appellant appealed his convictions on two counts of fraud and one count of uttering a forged document.

He challenged the application judge's denial of his pre-Jordan section 11(b) application for a stay of proceedings based on trial delay, and his Rowbotham application for state-funded legal representation.

The Court of Appeal upheld the application judge's decisions, finding that the delay did not exceed Morin guidelines when properly calculated, and that the appellant failed to establish indigence or that his fair trial rights would be materially compromised without counsel.

An appeal under Part XX.1 of the Criminal Code against the disposition of the Ontario Review Board dated May 25, 2017.

The appellant challenged the Board's removal of the possibility of community living from her disposition conditions.

The Board had acted on a joint position to detain the appellant in the secure unit with potential transfer to the general forensic unit but not to the community.

The appellant's treating physician testified that community living was not a realistic goal given the appellant's recent incidents of unauthorized absence and violence towards hospital staff, and that the frustration of an unattainable condition had contributed to the appellant's anger and violent behavior.

The Court of Appeal upheld the Board's decision, finding it entirely reasonable to remove the community living condition based on the evidence.

This is a costs endorsement following an appeal where the appellants were successful in overturning orders from the Superior Court of Justice.

The respondents had been successful on the main issue regarding whether a possible third party claim constituted a chose in action that vested in the Trustee in Bankruptcy.

However, the appellants were successful in obtaining the right to have the issue of whether they should be allowed to advance third party claims heard and determined within the section 37 application.

The court found divided success on the appeal.

The appellant appealed his conviction for drug trafficking and his sentence.

The appeal raised two grounds: first, that the trial judge failed to indicate she was not relying on improper expert opinion evidence regarding drug quantities; and second, that the trial judge erred in her section 24(2) Charter analysis by admitting evidence obtained following a section 10(a) breach.

The Court of Appeal dismissed both grounds, finding that the trial judge was not required to explicitly reference the improper evidence and that the trial judge properly analyzed the causative link between the breach and the evidence as real evidence rather than conscriptive statements.

A condominium corporation issued a clean status certificate to the respondent when he purchased a unit in 2013.

When the respondent requested a new status certificate in 2016 to market the unit for sale, the corporation noted that the unit layout had been altered without Board consent, contrary to the declaration.

The respondent sought a declaration that the corporation was estopped from noting such matters in the subsequent certificate.

The application judge granted the relief sought, finding the corporation bound by its earlier clean certificate.

The Court of Appeal allowed the appeal, holding that while the corporation is bound by its earlier certificate as against the original purchaser, it is not estopped from disclosing newly discovered matters in subsequent certificates.

The corporation's obligation to disclose material information to prospective purchasers overrides any estoppel argument.

The appellant was convicted of ten counts relating to possession of a prohibited firearm and ammunition following a search warrant execution at a boarding house where a shotgun and ammunition were found in his basement apartment.

A partial palm print was found on a plastic bag containing shotgun shells.

The Crown called expert evidence on friction ridge analysis to connect the print to the appellant.

The trial judge permitted the Crown to recall a witness to provide additional expert opinion on the same issue after the first expert's testimony was deemed unsatisfactory.

The appellant appealed on two grounds: (1) that the trial judge erred in allowing the Crown to recall the witness, and (2) that the trial judge misapprehended the expert evidence.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's discretionary decision to permit the witness recall and no misapprehension of the expert evidence regarding the friction ridge analysis.