David M. Paciocco

The Court of Appeal for Ontario considered motions to set aside an administrative dismissal of an appeal and to extend the time to perfect the appeal, as well as a cross-motion for conditions to protect assets pending appeal.

The court granted both the motion and cross-motion, reinstating the appeal and imposing conditions to address the risk of asset dissipation.

The decision discusses the relevant factors for setting aside an administrative dismissal and for granting an extension of time, including the merits of the appeal, the explanation for delay, and the best interests of the children.

The court also imposed specific conditions to ensure transparency and protect the respondent’s interests.

The Court of Appeal for Ontario granted the moving party, M.H., several orders following the administrative dismissal of O.K.'s family law appeal.

The court awarded costs for motions, declared the costs awards to be "support orders" under the Family Responsibility and Support Arrears Enforcement Act, 1996, and directed the issuance and enforcement of support deduction orders.

The decision clarifies the enforceability of costs awards as support orders and the process for their enforcement through the Family Responsibility Office.

The appellant, Shafaq Joya, appealed the Ontario Review Board’s decision to continue his conditional discharge and deny his Charter application for an absolute discharge.

The Court of Appeal for Ontario dismissed the appeal, finding that the Board’s assessment of risk and refusal to grant an absolute discharge were reasonable and supported by the evidence.

The court also found no Charter breach, as the Board’s decision was based on public safety, not resource limitations.

The appellant, Josiah Lowe, appealed his sentence of three years' imprisonment for three counts of robbery, possession of property obtained by crime over $5,000, and wearing a disguise with intent.

He argued that the sentencing judge misapplied the law regarding anti-Black racism, erred by prioritizing denunciation and deterrence, and erred in crediting his bail conditions.

The Court of Appeal found no error in the sentencing judge’s application of the law or principles and dismissed the appeal.

The Court of Appeal for Ontario considered an appeal by 100 Bloor Street West Corporation regarding the calculation of realty taxes and a substantial indemnity costs award in a commercial lease dispute with Barry’s Bootcamp Canada Inc. The court upheld the motion judge’s decision requiring the landlord to use a single, consistent method for calculating realty taxes attributable to both the leased premises and the building’s parking garage, rejecting the landlord’s attempt to “mix-and-match” calculation methods.

However, the court allowed the appeal on costs, finding the original award excessive and reducing it to $300,000 plus disbursements.

The decision clarifies the contractual interpretation of lease provisions granting discretion to landlords and the principles governing costs in complex commercial litigation.

The appellant, Donald Snoek, appealed the disposition of the Ontario Review Board, which found him a significant risk to public safety.

The Court of Appeal dismissed the appeal, finding no basis for a conditional discharge at this time and holding that arguments about alternative conditions should be made at a future hearing before the Board.

The Court of Appeal for Ontario granted leave to appeal on three issues arising from the acquittal of Luis Benevides, a worker charged under the Occupational Health and Safety Act after a workplace accident.

The case addresses the proper application of the directed verdict test, the determination of worker responsibility under the Act, and the use of private business contracts in defining statutory obligations.

The court declined to grant leave on the issue of whether the trial justice erred by considering due diligence and foreseeability at the directed verdict stage.

The Ontario Court of Appeal dismissed the appeal of Robert Paul Ireland from a judgment declaring his Facebook posts defamatory of the Ontario Federation of All Terrain Vehicle Clubs, ordering their removal, and enjoining further defamatory posts.

The court found no procedural unfairness or error in the application judge’s decision, holding that Mr. Ireland’s failure to file a notice of appearance precluded him from participating in the application, and that the Federation’s courtesy in providing him with information did not create further obligations.

The court also rejected arguments regarding service and limitations, and found no reviewable error in the application judge’s findings on defamation and available defences.

The Court of Appeal for Ontario allowed Pafco Insurance Company’s appeal from a motion judge’s decision regarding the interpretation of the “insured person” definition in the standard Ontario Automobile Policy 44R family protection endorsement.

The court held that the motion judge erred in finding that Ashley Kerr was not an “insured person” under Joe Hesch’s 44R endorsement with Kent and Essex Mutual Insurance Company.

The correct interpretation, supported by prior case law and industry commentary, is that coverage is available to an insured person occupying their own vehicle if family protection coverage is in force on that vehicle.

The court clarified the priority of coverage and the pro rata sharing of excess damages between insurers.

The Court of Appeal for Ontario dismissed the appeal of Vahid Mehdizadeh Asiyaban and 2468692 Ontario Ltd. against Halime Khatoun Aghdasi.

The trial judge had found that the appellant falsified evidence and solicited false testimony in support of a property claim in family litigation.

The Court held that the trial judge was entitled to reject the appellant’s uncorroborated evidence and found no basis to interfere with the credibility findings.

The appeal was dismissed in its entirety, and the appellant was ordered to pay costs to the respondent.

The Court of Appeal for Ontario allowed the Crown's appeal from sentence, finding that the sentencing judge erred by imposing a two-year weapons prohibition under s. 51(3) of the Youth Criminal Justice Act (YCJA) following a youth's guilty plea to first-degree murder.

The Court held that the correct provision was s. 51(1), which requires a longer prohibition for offences subject to mandatory orders under s. 109 of the Criminal Code.

Both parties agreed to set aside the two-year prohibition and impose a 12-year weapons prohibition.

The Court substituted the appropriate order, noting the respondent's planning and aggravating circumstances.

Michael Katz appealed the two-year sentence imposed after pleading guilty to several offences, including possession of a loaded firearm, assaulting a police officer with a weapon, impaired operation of a motor vehicle, and failing to remain at the scene of an accident.

The Court of Appeal granted leave to appeal but dismissed the appeal, finding no error in the sentencing judge’s approach or conclusions.

The court also substituted a three-year driving prohibition, to commence from the date of sentencing, in place of the original 18-month prohibition, in accordance with the Criminal Code and relevant case law.

The Court of Appeal for Ontario allowed the Crown's appeal from acquittals entered after a trial judge excluded evidence of narcotics seized from Prince Asante's vehicle, finding the police lacked reasonable and probable grounds for arrest.

The appellate court held that the trial judge erred in law by misapplying the standard for reasonable and probable grounds, improperly discounting circumstantial and pattern evidence, and requiring proof of the accused's identity beyond what the law demands for a lawful arrest.

The acquittals were set aside and a new trial ordered.

The appellant, Randall Thring, appealed the imposition of a 20-year SOIRA order following his guilty plea to communicating for the purpose of obtaining sexual services from a person under 18.

The Court of Appeal found that the trial judge erred in treating the SOIRA order as mandatory, but held that the order was still appropriate in the circumstances.

The appeal was dismissed, and the request for anonymization of the appellant's name was also denied.

The appellant, Shawn Frederick Prindle, appealed his sentence for multiple convictions including assault, assault with a weapon, theft, mischief to property, and breach of recognizance.

He argued that the sentencing judge erred by not granting credit for time spent under strict bail conditions (Downes credit) and by rejecting a conditional sentence.

The Court of Appeal allowed the appeal in part, reducing the global sentence to 365 days’ imprisonment (with 21 days presentence custody deducted), but declined to substitute a conditional sentence, finding a custodial sentence was still required given the gravity and context of the offences.

The Court of Appeal for Ontario allowed Ernest Clayton’s appeal from a Review Board disposition finding him unfit and “permanently unfit” to stand trial.

The court held that the Board failed to apply the fitness test contextually, as required by law, and did not consider relevant evidence about the simplicity of the charges and Clayton’s ability to understand and respond to them.

The Board’s finding of permanent unfitness was also unsupported by sufficient reasons.

The matter was remitted to a differently constituted Board for a new determination of fitness.

The Court of Appeal for Ontario allowed the Crown's appeal from sentence, finding that the sentencing judge erred in imposing a conditional sentence and in failing to order a consecutive sentence for participation in a criminal organization.

The court also set aside a restitution order that was not directed to a victim.

In light of the respondent's rehabilitation and time already served, the court substituted a sentence reflecting appropriate credit and stayed the remainder of the sentence and the criminal organization conviction.

This decision concerns an appeal by Iesha Mitchell from a detention order imposed by the Ontario Review Board.

The Board had found that, although Mitchell could live in the community with certain privileges, her housing required approval by the person in charge of the Centre for Addiction and Mental Health (CAMH), and that the Mental Health Act alone would not be sufficient to manage her risk to public safety.

The Court of Appeal found no error in the Board’s reasoning, holding that the evidence supported the need for approved housing and a detention order, given the subtlety of Mitchell’s decompensation and the need for prompt intervention.

The appeal was dismissed.

The appellant, Rapinder Bains, appealed convictions for drug-related offences, arguing that the trial judge erred by applying a less onerous standard for entrapment.

The Court of Appeal found no error in the trial judge’s approach, holding that it was open to the trial judge to infer from the Agreed Statement of Facts that the officer had the requisite subjective belief to proceed.

The appeal and the sentence appeal were both dismissed.

The appellant, Hang Shi, appealed his conviction for aggravated assault arising from an incident in which his wife sustained significant injuries after a parking lot altercation.

The Court of Appeal found no merit in any of the grounds of appeal, holding that the trial judge properly assessed the reliability of the bystander’s eyewitness testimony, which was corroborated by Mr. Shi’s own text messages.

The court also found no error in the application of the burden of proof or in the treatment of after-the-fact conduct.

The appeal was dismissed.