David M. Paciocco

Appeal from a trial judgment setting aside a separation agreement due to material non-disclosure of a significant asset (a client book valued at $120,000).

The trial judge awarded equalization payments, increased child support, but denied spousal support.

The appellant challenged the valuation of the book, the quantification of the respondent's income for child support purposes, and the dismissal of her spousal support claim.

The Court of Appeal allowed the appeal in part, finding errors in the trial judge's assessment of income (removal of 15% business expense deduction and three-year averaging methodology), awarding retroactive child support for 2010, remitting 2011 child support arrears for determination, and awarding non-compensatory spousal support for ten years based on the respondent's misrepresentations regarding income and assets.

The appellant was charged with making available and possession of child pornography following a lawful search of his residence and computer that revealed over 3,900 unique images, with 750 immediately accessible and evidence of active sharing through file-sharing software.

The appellant pleaded guilty to making available child pornography and was sentenced to the mandatory minimum of 12 months imprisonment less credit for pre-sentence custody, plus probation and ancillary orders.

On appeal, the appellant challenged his conviction and sentence on three grounds: (1) abuse of process arising from the Crown's election to proceed by indictment rather than summarily; (2) improper treatment of a Notice of Constitutional Question; and (3) unreasonable delay in breach of section 11(b) of the Canadian Charter of Rights and Freedoms.

The Court of Appeal dismissed all grounds of appeal, finding no abuse of process, no valid constitutional question, and that the delay, while substantial at approximately 38 months, was reasonable under both the transitional Morin framework and the new Jordan framework, given the complexity of child pornography investigations, the appellant's own conduct causing delay, minimal prejudice, and the seriousness of the offence.

This is an appeal of a motion judge's decision to strike the Crown's third party claims against 15 non-government, non-profit organizations that operated youth detention centres under contract with the Crown.

The plaintiff alleged negligence, breach of fiduciary duty, and breach of Charter rights arising from the use of solitary confinement in youth detention centres.

The plaintiff limited his claim to damages attributable to the Crown's proportionate degree of fault.

The motion judge struck the Crown's third party claims, relying on the principle from Taylor v. Canada (Health Canada) that when a plaintiff limits damages to a defendant's proportionate fault, the defendant cannot pursue contribution and indemnity claims.

The Crown appealed, arguing it was not plain and obvious that third party claims had no reasonable prospect of success, particularly regarding vicarious liability and breach of fiduciary duty claims.

The appellants challenged the trial judge's interpretation of a contractual term, his factual finding regarding waiver of the time limit for performance, and his damages award.

The Court of Appeal applied the deferential standard of review established in Sattva Capital Corp. v. Creston Moly Corp. and found that the trial judge's interpretation of the poorly drafted contractual clause was reasonable and that there were no palpable and overriding errors in the factual findings.

The award of reliance damages was also found to be reasonable.

The appeal was dismissed with costs to the respondent.

The appellant purchased a cottage property through an online auction conducted by the respondent auction company.

After the high bid was accepted and a purchase and sale contract executed, the sellers refused to close.

The appellant subsequently negotiated a second purchase and sale contract directly with the sellers and the sale closed.

The auction company claimed entitlement to the buyer's premium from the appellant's escrow deposit, arguing the two contracts were effectively one continuous agreement.

The Court of Appeal allowed the appeal, holding that the buyer's premium was not payable when the sale failed to close due to the seller's default, and that the subsequent direct purchase did not trigger the obligation to pay the premium under the auction contract.

The appellant appealed a trial judgment in a motor vehicle accident case, alleging various trial errors constituted a miscarriage of justice, including leading questions by plaintiff's counsel, mention of independent medical examinations, discussion between counsel and plaintiff after cross-examination, mention of insurance, admission of opinion evidence from a body shop manager regarding vehicle speed, and the trial judge's charge excluding a zero award of general damages.

The appellant also sought leave to appeal the costs award, alleging the trial judge failed to give sufficient weight to proportionality.

The Court of Appeal dismissed both the appeal and the leave to appeal on costs, finding no error in the trial judge's handling of the trial events or costs decision.

The moving party sought review of a single judge’s refusal to extend the time to file a notice of motion for leave to appeal from the Divisional Court’s dismissal of an application for judicial review of a social benefits tribunal decision.

The Court of Appeal applied the leave to appeal framework from Sault Dock Co. v. Sault St. Marie (City).

It held that the proposed appeal did not raise a question of law or an issue of public importance and was of interest only to the parties.

Because the proposed appeal lacked merit, the interests of justice did not support granting an extension of time.

The motion was dismissed without costs.

The Crown appealed an acquittal on charges of impaired driving and driving over 80 milligrams of alcohol per 100 millilitres of blood.

The trial judge acquitted on both counts, finding the Crown could not prove impairment and could not rely on the presumption of identity in s. 258(1)(c) to establish the blood alcohol level at the time of driving.

The Crown sought to rely on the included offence of care or control over 80, but the trial judge rejected this, holding that s. 258(1)(c) applied only to the charged offence.

The summary conviction appeal judge upheld the acquittals on fairness grounds.

The Court of Appeal allowed the Crown's appeal on the included offence issue, holding that the presumption of identity applies to included offences and that it is not unfair to convict on an included offence arising from the same facts as the charged offence.

The Crown appealed the acquittal of an on-duty police officer charged with dangerous operation causing death.

The officer was operating an undercover police vehicle at approximately 109 km/h in a 60 km/h zone when it struck and killed an 18-year-old pedestrian who was jaywalking.

The trial judge declined to leave the included offence of dangerous driving with the jury, finding no realistic scenario where dangerous driving could be proven without causation of death.

The appellate court upheld this decision but found reversible error in the jury charge, which treated causation as a live issue despite the trial judge's earlier ruling that it was not realistically available to the jury.

The court also found the charge misdirected the jury on the actus reus and mens rea elements of dangerous driving by focusing on the collision and the victim's conduct rather than the manner of driving itself.

The appellant appealed his conviction for aggravated assault and his sentence.

The trial judge found that while the appellant initially acted in self-defence during an altercation with an intruder in his apartment, he went beyond the limits of self-defence by continuing to strike the victim with a metal object after the threat had diminished.

The conviction appeal was dismissed as the trial judge's findings were supported by the evidence.

However, the sentence appeal was allowed.

The appellate court found the trial judge erred in principle by failing to recognize the significant mitigating factors arising from the appellant's initial justification in self-defence and the victim's role as an aggressor and trespasser.

The sentence was reduced from six years to time served (approximately two and one-half years).

The appellant was convicted of sexual assault and sentenced to 18 months imprisonment.

The sole issue at trial was consent.

The complainant testified she did not consent to sexual intercourse that occurred in her dormitory room.

The appellant did not testify but provided a police statement claiming the sexual activity was consensual.

The trial judge found the complainant credible and the appellant's statements unbelievable, convicting him based on the circumstances of the incident and the appellant's pattern of dishonesty.

The appellant appealed both conviction and sentence on multiple grounds, all of which were dismissed.

The appellant appealed a summary judgment decision dismissing its claims against multiple respondents related to alleged breaches of exclusion and limitation of liability clauses in entertainment contracts.

The appellant raised an allegation of reasonable apprehension of bias based on comments made by the motion judge regarding a public policy argument.

The Court of Appeal rejected the bias allegation, finding the judge's comments were directed at the merits of the unsupported public policy claim, not at the appellant's indigenous culture or beliefs.

The Court upheld the motion judge's interpretation of the contractual provisions and rejection of the unconscionability argument.

The appeal was dismissed with costs awarded to the respondents.

The appellant appealed a Superior Court decision dismissing an application for judicial review of a Crown decision to stay a private prosecution.

The appellant alleged that the Crown's decision to stay the prosecution constituted an abuse of process, arguing that the decision was not evidence-based and that failing to prosecute what the appellant characterized as indisputable perjury harmed the integrity of the administration of justice.

The Court of Appeal dismissed the appeal, holding that abuse of process is not a tool for assessing the quality or reasonableness of prosecutorial decisions, but rather addresses egregious Crown conduct that seriously undermines the fairness of proceedings or the integrity of the administration of justice.

The court found no foundation for an abuse of process finding.

The appellant appealed a decision of the Summary Conviction Appeal Court judge that set aside a stay of proceedings and ordered a new trial.

The Court of Appeal found no legal or factual basis for the stay of charges based on the police's failure to lay the information within the statutory time limit or serve the summons timely.

The court rejected the appellant's argument that the possibility of mitigating a driving suspension sentence constituted a credible Charter violation justifying a stay of serious criminal charges.

Leave to appeal was refused.

The appellant sought leave to appeal a Summary Conviction Appeal Court decision dismissing his appeal of a conviction.

The appellant raised two grounds: an ineffective assistance of counsel claim and an argument that the fee arrangement with his counsel constituted a prohibited contingency fee under the Solicitors Act.

The Court of Appeal found the appellant's evidence regarding ineffective assistance to be totally incredible and rejected the contingency fee argument as having no basis on the record.

Leave to appeal was refused.

The appellant was convicted of first-degree murder after a jury trial.

He appealed on two grounds: (1) that the trial judge erred in admitting a hearsay statement made by the deceased victim identifying the appellant as the shooter under the principled hearsay exception, and (2) that the trial judge erred by failing to give a "no probative value" instruction regarding the appellant's post-offence flight.

The Court of Appeal dismissed both grounds of appeal, finding that the hearsay statement should have been admitted under the spontaneous statement exception and that a no probative value instruction was unnecessary in the circumstances.

Appeal from a trial judgment concerning a dispute between a former unmarried couple over property rights in development properties.

The trial judge found that a property development agreement (PDA) existed between the parties despite a cohabitation agreement containing broad waivers of property rights.

The trial judge set aside the cohabitation agreement as it applied to the development properties under section 56(4)(b) of the Family Law Act, finding that neither party understood the consequences of the agreement regarding their property development venture.

The trial judge awarded the respondent $3,325,000 plus interest and costs.

The appellant appealed on three grounds: the trial judge erred in setting aside the agreement only as to development properties; in not setting aside the entire agreement including the spousal support waiver; and in calculating the amount owing under the PDA.

The appellant sought leave to appeal a Summary Conviction Appeal Court decision that dismissed his appeal from convictions for assault and sexual assault.

The appellant argued that the trial judge erred by confusing the distinction between a proved absence of motive to lie and the absence of evidence of a motive to lie.

The Court of Appeal denied leave to appeal, finding that the legal principle was well-settled and the merits of the appeal were not strong.

The trial judge's statement that she did not find a motivation to fabricate was a rejection of the defence submission rather than a positive finding that no motive existed.

The appellant appealed the Ontario Review Board's disposition dated December 21, 2016, which ordered his continued detention in maximum security at Waypoint Centre for Mental Health Care.

The appellant had previously been detained at Ontario Shores with community privileges.

He advanced two grounds of appeal: first, that the Board misapprehended evidence regarding when he decompensated after being moved to the minimum-security unit; and second, that the Board failed to address the impact of a medication change on his behaviour.

The Court of Appeal dismissed the appeal, finding no misapprehension of evidence and confirming that the Board was aware of and properly considered the medication change in its decision.

The appellant was convicted of multiple sexual offences against his girlfriend's daughter and four of her friends, all primary school girls aged 10-12 at the time of disclosure.

The appellant appealed on the grounds that the trial judge erred in allowing similar fact evidence by failing to properly apply the burden of proof regarding unintentional collusion between the victims.

The Court of Appeal found that while the trial judge erred in not subjecting unconscious collusion to the same evidentiary burden as actual collusion, the error was harmless and did not occasion a substantial wrong or miscarriage of justice.

The appeal was dismissed.