David M. Paciocco

The appellants were convicted of manslaughter following a trial by judge and jury.

Their convictions on break and enter to commit robbery were stayed pursuant to the Kienapple principle.

The appellants appealed their manslaughter convictions on various grounds and sought leave to appeal their sentences.

The Crown also sought leave to appeal the sentence imposed on one appellant.

The Court of Appeal found that the jury charge on the critical counts of manslaughter was insufficient to meet the functional requirements for an adequate jury charge, particularly in failing to adequately relate the evidence to the key issues and the parties' positions.

The conviction appeals were allowed and a new trial was ordered on all original charges.

The appellant appealed the order of the Superior Court of Justice striking his statement of claim without leave to amend.

The lower court judge found that the statement of claim did not adhere to the rules of pleading and was frivolous and vexatious, and that the claim was fatally flawed such that it could not be remedied by granting leave to amend.

The Court of Appeal upheld the lower court's decision and dismissed the appeal.

A secondary market misrepresentation class action was brought against a coal mining company and its former CFOs and directors following the company's restatement of financial statements for 2010-2012.

The motion judge granted leave to proceed against the company but denied leave against the individual defendants, finding they had established a reasonable investigation defence.

The Court of Appeal reversed, holding that the motion judge erred by treating the leave motion as a mini-trial and failing to consider significant credibility issues and gaps in the evidentiary record.

The court found that the defendants' position—that they should evade liability because they previously made material misrepresentations in the restatement but are now telling the truth—was inconsistent with fundamental securities regulation principles requiring scrupulous continuous disclosure.

Appeal from a first degree murder conviction arising from the death of a victim who was strangled and subsequently subjected to post-mortem sexual interference.

The appellant challenged the admission of confessions made during a "Mr. Big" undercover operation, the validity of a one-party consent wiretap authorization, and the first degree murder conviction based on section 231(5)(b) of the Criminal Code.

The court upheld the conviction, finding that the Mr. Big statements were admissible under the Hart test, the wiretap authorization was properly issued, and the evidence supported a finding that the murder and sexual assault formed a single continuous transaction despite the post-mortem nature of some sexual acts.

The respondents were seriously injured in a motorcycle accident in Minnesota caused by a state-owned truck operated by a state employee.

Due to Minnesota's statutory damage cap under the Tort Claims Act, they recovered only US$500,000 (inclusive of legal fees), despite damages exceeding that amount.

They sought the shortfall from their Canadian insurer under an underinsured motorist endorsement (OPCF 44R).

The insurer refused, arguing Minnesota was not "inadequately insured" and that legal fees were not recoverable.

The motion judge found in favor of the respondents on both issues.

On appeal, the court held that Minnesota was an inadequately insured motorist despite being self-insured and having statutory immunity, but reversed the finding that legal fees could be claimed as special damages.

The appellant was convicted by jury of first degree murder in the death of Clifford Fair.

The Court of Appeal allowed the appeal, finding the first degree murder conviction unreasonable and entering an acquittal on that charge.

The court ordered a new trial on second degree murder due to errors in the trial judge's instruction on the use of after-the-fact conduct evidence.

The evidence established that the appellant struck the deceased with an aluminum pipe during a confrontation in the appellant's apartment, but the court found insufficient evidence to support findings of planning and deliberation required for first degree murder.

The trial judge's misdirection permitted the jury to improperly use after-the-fact conduct (burial, dismemberment, and statements) as evidence of intent and planning, rather than limiting its use to establishing that the appellant unlawfully caused the death.

The appellant was convicted of four counts of armed robbery, four counts of forcible confinement, and breaking and entering a dwelling house to commit an indictable offence following a home invasion robbery.

The trial judge rejected the appellant's Charter application challenging the admissibility of statements made to police before consulting with counsel.

The Court of Appeal found that the trial judge erred in multiple respects regarding the requirement to provide a Prosper warning.

The trial judge incorrectly found that the appellant was not reasonably diligent in seeking legal advice by choosing to wait until the next day to speak to his lawyer of choice, failed to recognize that an apparent change of mind about seeking counsel without delay triggers the Prosper warning requirement, and erred in finding that a standard police caution was an adequate substitute for a Prosper warning.

The Court of Appeal concluded that the appellant's statements should be excluded under section 24(2) of the Charter as their admission would bring the administration of justice into disrepute.

Without these statements, the Crown's case could not proceed, and the convictions were quashed with acquittals entered.

An appeal and cross-appeal concerning a contractual dispute between two friends and their respective companies regarding an employment agreement.

The trial judge found that an oral employment agreement was reached in October 2003 between Mark Couper and Vitaquest International LLC, and that Vitaquest repudiated the agreement in early March 2005.

The appellants challenged the trial judge's finding that Couper was entitled to damages equivalent to base pay for the period October 2003 to March 2005.

The respondent cross-appealed on the issue of whether he was entitled to a US$5 million payment.

The Court of Appeal dismissed both the appeal and cross-appeal, upholding the trial judge's findings.

The appellant, a unionized employee of Lakehead District School Board, sought long-term disability benefits following a motor vehicle accident.

The respondent Sun Life Assurance Company of Canada, which administered the benefits under contract with the school board, denied her claim.

The appellant commenced an action against Sun Life seeking a declaration of total disability and an order for payment of benefits.

The motion judge dismissed the action for lack of jurisdiction, finding the dispute arose from the interpretation and administration of the collective agreement.

The Court of Appeal upheld this decision, holding that the dispute was arbitrable under the collective agreement and that Sun Life, as a mere agent of the school board, lacked standing to be sued directly.

The appellant's remedy lay in arbitration against the school board.

A client appealed a decision confirming an assessment officer's assessment of a lawyer's fees and disbursements at $125,602.83.

The lawyer had been retained under a contingency fee agreement that provided for hourly billing if the retainer was terminated.

After the solicitor-client relationship broke down, the client retained new counsel and later self-represented.

The client settled a claim against Food Basics for $30,000, with the settlement agreement providing that costs be paid directly to the lawyer.

The assessment officer rejected the client's argument that an undertaking limiting recovery to $50,000 applied, finding that the undertaking no longer governed once the client self-represented.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error and confirming the assessment officer's jurisdiction and reasoning.

The appellant, a debt collector, was laid off when the respondent lost its contract with Capital One.

The respondent subsequently received a $6.675 million settlement from Capital One.

The appellant brought a class action alleging the respondent breached employment contracts by failing to pay commissions on the settlement payment.

The motion judge granted summary judgment dismissing the class action.

The Court of Appeal upheld the dismissal, finding that the motion judge did not err in interpreting the Commission Agreement as requiring employees to exceed a "breakeven" financial target to earn commissions, which laid-off employees could not satisfy.

The court also found no error in the motion judge's interpretation of the Settlement Agreement and upheld the use of summary judgment as an appropriate procedure.

The moving party sought to review and set aside a chambers judge's decision denying its request for security for costs against the respondent.

The security was sought for the main action, the appeal, and the cross-appeal in the Divisional Court, in the aggregate amount of $485,316.23.

The chambers judge had refused the order based on delay in bringing the motion, the fact that trial costs had not been determined, the respondent's construction lien judgment in its favour, and the excessive amount claimed for appeal costs.

The appellate panel upheld the chambers judge's decision, finding that considerable deference was owed and that the chambers judge had properly applied the law and reasonably concluded that the justice of the case required refusal of the security order.

The appellant appealed a trial judge's finding that advancements of funds from his father totalling $157,414 were gifts rather than loans.

The advancements were invested in the matrimonial home held in the appellant's name.

The characterization of these funds as gifts or loans directly affected the calculation of the appellant's net family property in the family law proceeding.

The trial judge found the advancements were gifts and therefore included in the appellant's net family property.

The appellant argued the trial judge reversed the burden of proof and erred in fact and law.

The Court of Appeal upheld the trial judge's decision, finding no reversals of the burden of proof and no palpable and overriding errors in the evaluation of evidence.

The appellant appealed the dismissal of his Fresh as Amended Statement of Claim under Rule 21.01 for failing to disclose a reasonable cause of action.

The appellant had signed a Voluntary Recognition Agreement on behalf of his company with the respondent union in 2008.

He subsequently challenged the validity of the agreement before the Ontario Labour Relations Board, claiming he lacked capacity due to health issues.

The OLRB upheld the agreement's validity, and the Divisional Court dismissed his judicial review application.

The appellant then commenced a Superior Court action seeking damages, alleging misrepresentations by the union.

The motion judge struck out the claim as an abuse of process, finding that the OLRB had exclusive jurisdiction over matters relating to the validity of the collective agreement.

The Court of Appeal upheld the dismissal.

The appellant appealed a Divisional Court decision that reversed a Small Claims Court judgment finding wrongful termination.

The respondent employer terminated the appellant, a probationary employee, before completion of six months of employment without just cause.

The trial judge had disregarded the probationary clause in the employment contract, finding it was not properly communicated.

The Court of Appeal upheld the Divisional Court's reversal, holding that the probationary term was valid and unambiguous, and that probationary employees may be terminated without notice during the probationary period if the employer makes a good faith determination of unsuitability, provided the employee was given a fair and reasonable opportunity to demonstrate suitability.

The appellant received statutory notice as required by the Employment Standards Act, 2000.

The appellants appealed a motion judge's decision dismissing their summary judgment motion on the basis that the respondent's action was time-barred under the Limitations Act.

The respondent had commenced an action for dental work defects after initially pursuing a consensual resolution with the appellants.

The Court of Appeal upheld the motion judge's decision, finding that the limitation period did not begin to run until the appellants refused the respondent's request for repairs at no cost, as the respondent had reasonably relied on the appellants' ameliorative efforts to resolve the dispute without litigation.

The appellant appealed a summary judgment order dismissing a motor vehicle negligence claim.

The motion judge found that the appellant made a left-hand turn facing a yellow light in front of an oncoming truck driven by the respondent, who did not run a red light as alleged.

The motion judge concluded there was no genuine issue requiring a trial regarding the respondent's responsibility for the accident.

The appellant argued the motion judge reversed the evidentiary burden and erred in granting summary judgment.

The Court of Appeal upheld the summary judgment, finding the motion judge correctly applied the burden of proof and the appellant failed to meet the onus that shifted to her to demonstrate contributory negligence.

The appellant appealed a trial judgment finding him liable for damages based on negligence, nuisance, and the strict liability doctrine of Rylands v. Fletcher.

The trial judge found that the appellant had dumped thousands of truckloads of material on his rural property, improperly constructed a swale, and obstructed a culvert, all of which caused severe flooding to the respondent's neighbouring property over more than 12 years.

The trial judge awarded general damages of $250,000 and punitive damages of $125,000, totaling $390,000.

The appellant challenged only the damages awards.

The Court of Appeal upheld the trial judgment, finding no palpable error in the general damages award and rejecting arguments that the punitive damages were excessive or unsupported by evidence.

The respondent brought a claim for unjust enrichment to recover money she paid to acquire and renovate a house registered in the appellants' names.

The motion judge granted summary judgment in favour of the respondent, finding unjust enrichment and awarding her $221,914.11.

The appellants appealed, arguing that summary judgment was inappropriate given conflicting evidence regarding the parties' agreement and that the motion judge's reasons were insufficient.

The Court of Appeal allowed the appeal and set aside the judgment, finding that the motion judge failed to adequately explain how she resolved conflicts in evidence, made insufficient credibility findings, and failed to properly analyze the equities and mutual benefits exchanged between the parties.

The appellant appealed from a motion judge's order enforcing a settlement agreement between the appellant and the Ontario respondents arising from the appellant's suspension from the Knights of Columbus.

The appellant argued that only an agreement in principle existed and that it was not finalized by the April 22, 2016 deadline.

The Court of Appeal upheld the motion judge's finding that a binding settlement agreement had been reached, noting that the essential terms had been agreed upon, settlement funds had been provided, and the release form had been executed by some respondents before the appellant attempted to terminate the agreement.