David M. Paciocco

The respondent brought a motion to quash an appeal on the ground that the order under appeal was interlocutory and not final, placing it outside the jurisdiction of the Court of Appeal.

The order arose from ongoing family law proceedings and required the appellant to make monthly spousal and child support payments, with a provision allowing the respondent to strike the appellant's pleadings on financial issues if payments were not made.

The appellant argued he could not pay and that the consequence clause created a "catch 22" preventing his participation in ongoing proceedings.

The Court of Appeal held that the order was interlocutory and quashed the appeal, finding the jurisdictional issue was plain and obvious.

The appellant, a commercial condominium unit owner, sought to amend the condominium declaration to allow its employees access to recreational common elements (swimming pool, gymnasium, library, squash court) that were restricted to dwelling unit holders and their guests.

The application judge dismissed the application, holding that restrictions on the use of common elements need not be listed in Schedule F of the declaration under the Condominium Act.

The Court of Appeal affirmed, finding no error in the application judge's interpretation of the statutory provisions or his use of the zoning by-law to explain the declaration's proper interpretation.

The appellants challenged an application judge's decision denying them interest on legacies under their father's will.

The testator's final will left monetary legacies of $530,000 each to his two daughters and the residuary estate to his son.

The daughters challenged the will on grounds of undue influence but were unsuccessful.

They then claimed entitlement to interest on their legacies under the common law "rule of convenience," which provides for interest on legacies delayed beyond one year from the testator's death.

The application judge exercised discretion to deny interest, citing the daughters' status as estate trustees and their role in causing delay through the will challenge.

The Court of Appeal allowed the appeal, holding that the "rule of convenience" applied and that the application judge erred in principle by linking entitlement to interest to the reasonableness of distribution within the executor's year, by giving undue weight to the will challenge, and by characterizing interest as a reward or penalty.

The appellant was convicted of sexual assault following a judge-alone trial.

The trial judge found the complainant's evidence credible and rejected the appellant's testimony that the sexual activity was consensual.

On appeal, the appellant raised six grounds of appeal challenging the conviction.

While the Court of Appeal rejected the first three grounds (misapplication of burden of proof, improper use of silence, and improper use of lack of embellishment), it allowed the appeal on three remaining grounds: the trial judge's failure to inspect the complainant's shirt despite defence counsel's reasonable expectation that he would do so; the trial judge's erroneous admission and use of reply evidence from the appellant's roommate to establish a collusion theory without proper foundation; and most significantly, the trial judge's application of markedly different levels of scrutiny to the credibility of the complainant and the appellant.

The Court found that cumulatively, these errors undermined the fairness of the trial and constituted a miscarriage of justice.

The appellant, Solstice Two Limited, appealed a decision granting relief from forfeiture to the respondent, Valeria Scicluna, who had advanced $293,685 toward the purchase of a condominium but failed to close due to job loss.

The application judge awarded the recovered funds to the bankruptcy trustee rather than to Scicluna.

The Court of Appeal dismissed both the appeal and cross-appeal, upholding the relief from forfeiture as appropriate given the grossly disproportionate nature of the forfeiture and confirming that the funds properly vest in the bankruptcy trustee under the Bankruptcy and Insolvency Act.

The appellants appealed a motion judge's decision regarding their right of access to waterfront property through membership in Cedar Ridge Waterfront Park Corporation (CRRC).

The motion judge found a common intention that lot purchasers would have water access through CRRC membership.

The Court of Appeal allowed the appeal, holding that the right of access was contractual in nature, not an easement or easement by estoppel.

The court found that the documentation and circumstances were inconsistent with the creation of an easement, including the requirement to assign membership to subsequent purchasers and the absence of typical easement indicia such as metes and bounds descriptions.

This appeal concerns the division of a Canadian Forces pension as family property under the Family Law Act.

The appellant sought to divide her pension through monthly payment splits at source, while the respondent sought an immediate lump-sum transfer.

The trial judge ordered a lump-sum transfer to satisfy an equalization payment of $313,002.

The Court of Appeal upheld this decision, finding that the Pension Benefits Division Act only permits lump-sum divisions of federal pensions and that section 10.1(5) of the Family Law Act does not preclude lump-sum transfers when a pension is in pay.

The court dismissed the appeal and awarded costs to the respondent.

Two consolidated appeals concerning whether a claim for contribution and indemnity represents property of a bankrupt that vests in the Trustee under section 71 of the Bankruptcy and Insolvency Act, and whether a bankrupt can advance such a claim when the Trustee refuses to do so and a creditor has obtained a lifting of the stay of proceedings.

The appellants sought to issue third party claims for contribution and indemnity against a co-defendant.

The motion judge dismissed the motion, finding that the claim constituted property vested in the Trustee and that the undischarged bankrupt lacked capacity to deal with it.

The Court of Appeal allowed the appeal, holding that a claim for contribution and indemnity is property under the BIA and that the motion judge erred in failing to consider relief under section 37 of the BIA.

An appeal from a conviction and sentence was dismissed as abated following the death of the appellant.

The appeal had been brought from a conviction entered on October 25, 2012 and a sentence imposed on December 31, 2012 by Justice Richard Lococo of the Superior Court of Justice, sitting with a jury.

The appellant appealed the dismissal of his claim on the grounds that it was struck out as outside the jurisdiction of the Superior Court.

The claim was based solely on an alleged infringement of the Human Rights Code, which is prohibited under s. 46.1(2) of the Human Rights Code.

The motion judge found no alternative cause of action in the statement of claim.

The Court of Appeal dismissed the appeal but granted the appellant leave to bring a motion in Superior Court within 45 days to amend his statement of claim to bring it within the court's jurisdiction.

The appellant appealed a judgment declaring her to be a vexatious litigant.

The appellant raised over 20 grounds of appeal, arguing that her various actions, proceedings, and appeals against the respondent condominium corporation and related parties were warranted and did not constitute misuse of the court process.

The appellant also alleged systemic bias against self-represented litigants and argued that the application judge should have recused herself.

The Court of Appeal upheld the vexatious litigant designation, finding that the appellant's proceedings were frivolous, vexatious, and constituted collateral attacks on finally determined matters.

The court rejected allegations of bias and found no basis to interfere with the application judge's findings.

The appellant appealed a decision declaring that no valid Agreement of Purchase and Sale existed between a builder and a purchaser.

The builder agreed to construct a home in Welland.

The purchaser made unilateral amendments to Schedule D of the agreement (striking out "builder's samples" in six places) without the builder's knowledge or consent.

When a dispute arose over the choice of kitchen cabinet supplier, the application judge found no meeting of the minds due to the parties' fundamentally different understandings of the contract terms, particularly regarding supplier selection.

The Court of Appeal upheld the decision, finding the application judge's factual findings were entitled to deference and that the builder had acted reasonably throughout the dispute.

The appellant appealed a trial judgment awarding damages for wrongful termination of a promotional contract.

The trial judge found that the contract required the respondent to promote the appellant's product, not serve as a brand ambassador, and that the morals clause was not violated by the private transmission of nude photographs within an intimate relationship, particularly where the act occurred before the contract was executed.

The trial judge awarded $162,500 in damages representing outstanding periodic payments over the four-year contract term.

The appeal was dismissed.

The appellant, injured in 1997 while unloading goods from a truck, brought a civil action against the Workplace Safety & Insurance Board and the Workplace Safety & Insurance Appeals Tribunal seeking compensatory damages of $1,710,455 and punitive damages of $15 million.

The respondents moved to dismiss for lack of jurisdiction and to strike the pleadings as disclosing no reasonable cause of action.

The motion judge granted the motions, holding that the Superior Court lacks jurisdiction over claims against these bodies and that relief must be sought through judicial review.

The appellant appealed, arguing the motion judge erred in dismissing the claim for lack of jurisdiction and in striking the pleadings for failing to disclose a cause of action for bad faith or misfeasance in public office.

The Court of Appeal dismissed the appeal, holding that the statutory scheme under the Workplace Safety and Insurance Act vests exclusive jurisdiction in the Board and Tribunal, and that circumventing this scheme through a civil action constitutes an abuse of process.

The court also held that bad faith is not independently actionable and that the pleadings failed to disclose a reasonable cause of action for misfeasance in public office.

The appellant appealed his convictions for three historical sexual offence charges on the basis that the trial judge erred in denying two s. 11(b) Charter applications regarding unreasonable delay.

The first application was decided under the Morin test, and the second under the Jordan test.

The Court of Appeal found that the trial judge erred in calculating the delay period and in assessing the relevant factors.

The trial judge incorrectly attributed delay to the defence when much of it was attributable to Crown disclosure practices and procedural issues.

The properly calculated delay of over 17 months substantially exceeded the Morin guideline of 8-10 months for provincial trials.

The case was not complex, and the prejudice to the accused was not modest as the trial judge had found.

The appeal was allowed, convictions were set aside, and the proceedings were stayed.

The Ontario Provincial Police and the Crown appealed an order by Nordheimer J. determining that certain materials seized under a search warrant were subject to litigation privilege and therefore not potentially evidence in any criminal proceeding.

The Court of Appeal held that the order affected the enforcement or implementation of the search warrant, which is a judicial order made in a criminal investigation.

The court determined that judicial orders directed at the enforcement or implementation of a criminal order are themselves criminal in nature.

Consequently, no appeal lies to the Court of Appeal in a criminal proceeding under the Courts of Justice Act, and the appeal was quashed.

An appeal from a Superior Court decision dismissing a habeas corpus application challenging the appellant's reclassification from medium to maximum security and subsequent transfer to a penitentiary outside Ontario.

The appeal was rendered moot when the appellant was transferred back to medium security prior to the extension of time being granted.

The Court of Appeal dismissed the appeal as moot, finding that the current habeas corpus proceeding was the preferable forum to address the lawfulness of the appellant's present detention.

An appeal from a Superior Court decision dismissing a habeas corpus application challenging the appellant's reclassification from medium to maximum security and subsequent transfer to a penitentiary outside Ontario.

The appeal was rendered moot when the appellant was reclassified back to medium security and subsequently released on parole while the appeal was pending.

The Court of Appeal declined to exercise its discretion to hear the moot appeal, noting that the issues sought to be raised were not properly raised before the application judge and that attempting to expand upon the legal principles established in Mission Institution v. Khela without a proper factual foundation would provide limited assistance.

The appellant appealed a conviction entered by Justice Chapin of the Ontario Court of Justice on July 15, 2014.

The appeal was allowed on consent.

The conviction was quashed and an acquittal was entered.

The appellant husband appealed from a motion judge's order that struck his reply factum, rectified an overpayment of trust funds, and struck his pleadings for failure to comply with court orders.

The Court of Appeal allowed the appeal on three grounds: the husband was denied the opportunity to respond fully to the wife's motion to strike; the motion judge overstated the wife's efforts to move the case to trial; and the motion judge failed to consider whether lesser remedies would suffice.

The court set aside the order striking the pleadings and substituted specific disclosure orders with consequences for non-compliance.