David M. Paciocco

A self-represented litigant appealed eight decisions from the Superior Court of Justice dismissing his actions as frivolous and vexatious under Rule 2.1.01 of the Rules of Civil Procedure, and a vexatious litigant designation under section 140 of the Courts of Justice Act.

The appellant's claims related to complaints about interactions with government agencies, law enforcement, and mental health and medical personnel spanning multiple years and incidents.

The Court of Appeal upheld all dismissals, finding the pleadings fell far short of procedural requirements, failed to advance any justiciable cause of action, and exhibited hallmarks of vexatious proceedings including rambling discourse, grandiose damage claims, and repetitious allegations across multiple proceedings.

The Crown appealed a motion judge's order striking its third party claim.

The Court of Appeal allowed the appeal, finding it was not plain and obvious that the Crown's third party claim had no reasonable prospect of success.

However, the respondent plaintiff amended his pleading to include language that would render the Crown's third party claim subject to being struck.

As a result, while the appeal was allowed, the practical outcome remained that the Crown's third party claim was struck.

The court awarded costs in accordance with the motion judge's decision, with each party bearing their own costs of the appeal.

The appellant appealed his sentence for two counts of possession of morphine and heroin for the purpose of trafficking while incarcerated in a federal penitentiary.

The sentencing judge imposed a two-year sentence but did not specify whether it was concurrent or consecutive to the appellant's existing robbery sentence.

The sentencing judge later amended the Information to indicate the sentence was consecutive without notifying or reconvening the parties.

The appellant was released on statutory release based on the concurrent interpretation, but was re-arrested after the amendment.

The Court of Appeal held that the sentencing judge was functus officio and lacked jurisdiction to amend the sentence, as the amendment was not consistent with the judge's manifest intentions and the failure to notify and reconvene the parties seriously compromised the appearance of fairness.

This is a costs endorsement following the dismissal of an appeal by Willowbrook Nurseries Inc. against Royal Bank of Canada.

The Court of Appeal awarded costs to the respondent bank in the amount of $20,000.00 all-inclusive for the costs of the appeal.

The appellant appealed a decision of the Superior Court of Justice dismissing an application.

The Court of Appeal reversed the application decision.

As a result, the costs order awarded to the respondent in the amount of $45,000 was set aside, and costs in the application were awarded to the appellant on a partial indemnity basis in the same amount, inclusive of HST and disbursements.

The appellant brought four related actions against various respondents arising from dealings that occurred primarily in the United States between 2001 and 2016.

The respondents moved to dismiss or stay the actions on the ground that Ontario courts lacked jurisdiction due to the absence of a real and substantial connection to the province.

The motion judges granted the motions and dismissed all actions.

On appeal, the Court of Appeal considered whether Ontario jurisdiction existed based on: (1) consulting contracts allegedly entered into at Toronto airport; (2) products being advertised, marketed, and distributed in Ontario; and (3) respondents carrying on business in Ontario.

The Court of Appeal upheld the dismissals, finding no real and substantial connection to Ontario and affirming that mere advertising or distribution through third-party retailers does not constitute carrying on business in the jurisdiction.

The appellant imported four Hereford cattle from the United States in 1996, three of which were later discovered to be infected with anaplasmosis due to falsified American health documentation.

The Canadian government quarantined the appellant's herd and ordered the destruction of seven infected cattle.

The appellant received compensation under sections 51 and 53 of the Health of Animals Act.

The appellant subsequently sued the Crown for negligence, claiming damages for business losses and reputational harm.

The motion judge granted summary judgment dismissing the action, finding that section 9 of the Crown Liability and Proceedings Act barred the claim.

The Court of Appeal upheld this decision, holding that section 9 operates to prevent actions for additional compensation arising from the same factual basis as the compensated loss.

The appellant appealed a Superior Court decision that set aside a master's order reinstating his action to the trial list.

The action had been dismissed for delay multiple times and reinstated on consent.

The parties agreed to a fourth timetable with a consent order under Rule 48.14(4) requiring the appellant to meet an August 18, 2016 deadline for restoration.

The appellant met the deadline and the master reinstated the action.

The appeal judge allowed the respondents' appeal, but the Court of Appeal reversed, holding that the master correctly focused on delay subsequent to the consent order rather than the entire history of delay.

The court affirmed that the respondents' consent to the order was binding and that there was no relevant delay requiring explanation.

The appellant, a minor injured when a barista poured scalding hot water on her hands at a Starbucks location, appealed the motion judge's decision striking the Statement of Claim against the individual defendants (the barista and store manager).

The motion judge had struck the claim on two grounds: that it did not disclose a reasonable cause of action and that suing the individuals constituted an abuse of process.

The Court of Appeal allowed the appeal, holding that employees can be personally liable for their own negligence while acting within the scope of employment, and that naming individual defendants for discovery purposes does not constitute an abuse of process when a proper cause of action has been pleaded against them.

The appellant appealed the trial judge's decision denying probate of a 2012 will and dismissing the probate application.

The trial judge found suspicious circumstances surrounding the preparation and execution of the will, determined that the appellant failed to prove the testator's testamentary capacity, and held that the appellant failed to establish the testator's knowledge and approval of the will's contents.

The Court of Appeal upheld the trial decision on all grounds, finding that the suspicious circumstances displaced the presumption of testamentary capacity, placing the burden on the appellant to prove capacity.

The court also rejected the appellant's application to admit fresh evidence on appeal, finding the due diligence requirement was not met.

The appellant husband appealed a trial judgment in a matrimonial property dispute.

The trial judge found that a declaration of trust and a $300,000 second mortgage were sham documents designed to defeat the respondent wife's interest in the matrimonial condominium.

The trial judge awarded the respondent an equalization payment of $100,500 and rejected an unequal division of property.

The Court of Appeal upheld the trial judge's findings, finding no basis to interfere with the credibility assessments or the detailed reasons for finding the documents to be shams.

The appeal was dismissed with costs awarded to the respondent.

An appeal of conviction and sentence for historical sexual offences.

The appellant, a pediatrician, was convicted of three counts of indecent assault relating to two former female patients, with offences spanning from 1964 to 2013.

The trial judge found the appellant guilty based on the complainants' evidence while rejecting his denials.

The Court of Appeal allowed the appeal and set aside all three convictions, ordering a new trial based on multiple misapprehensions of evidence by the trial judge, including erroneous inferences drawn from uncontradicted evidence and improper reliance on the absence of motive to lie as a credibility enhancer.

The appellant appealed a trial judgment granting sole custody of the parties' nine-year-old son to the respondent, as well as the trial judge's decisions regarding the matrimonial home valuation, division of notional proceeds, treatment of chattels, and a $125,000 costs award.

The parties had cohabited for 14 years and separated in May 2014.

The Court of Appeal dismissed the appeal on all grounds except for a calculation error relating to child support arrears, which was corrected.

The court upheld the custody award, finding the trial judge properly applied the best interests of the child test, and upheld the property division and costs award as discretionary decisions entitled to deference.

The appellant, a 52-year-old investment advisor, was petitioned into bankruptcy in 2011 by RBC Dominion Securities Inc. after misappropriating $5 million from clients.

While in bankruptcy, he had a net monthly income of $14,600 with surplus monthly income of $12,500 but failed to make any surplus income payments.

The registrar in bankruptcy ordered that as a condition of discharge, the appellant pay $284,346 in surplus income at $5,000 per month, plus an additional $5,000 per month for six years ($360,000 total), with discharge suspended for two years.

The appellant appealed, arguing the treatment of surplus and other income was in error and that the lower court judge improperly rewrote the registrar's decision.

The Court of Appeal dismissed the appeal, finding the registrar's order was discretionary, well-supported by evidence, and reasonable given the appellant's substantial income and ability to pay.

A nursery business appealed a trial judgment dismissing its claim against its bank for breach of the duty to perform the lending agreement in good faith.

The appellant argued the bank acted in bad faith by refusing to extend additional credit and placing the account in Special Loans without reasonable notice of a change to the prevailing course of lending conduct.

The appellant also argued the bank's discretionary decision was objectively unreasonable.

The Court of Appeal upheld the trial judgment, finding the bank did not breach its duty of good faith, that it was the appellant who sought to change the prevailing course of conduct by requesting additional credit without first repaying prior temporary overdraft accommodation, and that a bank's decision whether to lend new money is a subjective business decision not subject to objective reasonableness review.

The Crown sought leave to appeal a Summary Conviction Appeal Court decision that set aside a conviction for impaired operation of a motor vehicle and ordered a new trial.

The SCAC judge found that the respondent's s. 10(a) Charter rights had been breached because he was not properly informed that he was subject to a criminal investigation when questioned in the ambulance.

The Crown argued the SCAC judge erred in finding a detention occurred and that the respondent was deprived of an opportunity to make submissions on relevant case law.

The Court of Appeal denied leave to appeal, finding that neither the significance nor clear error branches of the applicable test were met.

The appellant was convicted after a jury trial of two counts of possessing narcotics for the purpose of trafficking and one count of possessing proceeds of crime.

The evidence was obtained through a general warrant under s. 487.01 of the Criminal Code, which authorized covert entry into a leased unit to locate and observe narcotics.

The appellant appealed on grounds relating to the jury charge and the validity of the general warrant.

The Court of Appeal allowed the appeal, finding that the general warrant was improperly issued as it was used to circumvent the more stringent requirements of a Controlled Drugs and Substances Act s. 11 warrant.

The court set aside the convictions and ordered a new trial.

The appellant appealed the dismissal of a motion for summary judgment in an action brought by the respondents.

The appellant sought to end the Ontario action based on a previously dismissed lawsuit brought by the respondent against the appellant in India relating to the same cause of action.

The appellant invoked res judicata and abuse of process defences, and relied on a provision of the Indian Civil Procedure Code.

The motion judge denied the motion, finding that the respondent had never been served in the Indian action and no disposition had been made on the merits.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's treatment of the Indian law provision or in the application of res judicata and abuse of process doctrines.

The appellant appealed his convictions for sexual assault and sexual touching of a thirteen-year-old cousin.

The primary ground of appeal was that the appellant received ineffective assistance from trial counsel.

The Court of Appeal rejected this argument, noting that trial counsel had conducted an extensive and rigorous cross-examination of the complainant.

The trial judge had provided detailed reasons for disbelieving the appellant and accepting the complainant's evidence, finding consistency on core issues.

The Court found no basis to suggest that a different approach by trial counsel would have led to a different result.

The appeal was dismissed.

The appellants, a condominium developer and related entities, appealed a jury verdict awarding damages to the respondents for injuries sustained when an A-frame sign placed on a downtown Toronto sidewalk struck the plaintiff in the face during windy conditions.

The jury found both the developer and the sign contractor liable, apportioning fault 94% to the developer and 6% to the contractor.

The appellants challenged the trial judge's instructions on duty of care, apportionment of liability, and foreseeability.

The Court of Appeal dismissed the appeal, finding no material misdirection warranting intervention.

The cross-appellant's challenge to costs awards was also dismissed.