David M. Paciocco

The Court of Appeal for Ontario dismissed Dwayne Thomas’s appeal from a six-and-a-half year sentence for sexual assault and breach of trust.

The court found the trial judge was entitled to exceed the usual sentencing range due to the aggravated breach of trust and the victim’s vulnerability as an incarcerated person.

The court rejected arguments that the trial judge failed to give sufficient weight to rehabilitation, the harshness of incarceration for a former correctional officer, and post-sentencing rehabilitative efforts.

The decision affirms the priority of deterrence and denunciation in sentencing for sexual assault by persons in positions of authority.

The Court of Appeal for Ontario allowed the appeal of Barrington Grant’s conviction for possession of a loaded firearm.

The appellant had challenged the admissibility of evidence obtained under a warrant, but his application was dismissed at trial.

After his conviction, related proceedings involving the same information to obtain (ITO) resulted in stays due to disclosure issues.

The Crown conceded the appeal in light of these developments and a prior Court of Appeal decision in R. v. Khamo, which quashed a conviction based on the same evidence.

The court set aside the conviction, ordered a new trial, and entered a stay of proceedings.

The appellant, Marnie Affleck, appealed the dismissal of her claim for negligent infliction of nervous shock and defamation against Sunrise Senior Living, Inc., Sunrise of Erin Mills, and several individuals.

The Court of Appeal upheld the trial judge’s findings, agreeing that the respondents’ actions were reasonable and that the defamation claim was not pleaded with sufficient specificity.

The court also found no error in the trial judge’s factual findings or costs award, and dismissed the appeal with costs.

The Court of Appeal for Ontario dismissed Enbridge Gas Inc.'s appeal, upholding the Divisional Court's finding that the 1957 franchise agreement between Enbridge and the County of Essex had not expired under the rule against perpetuities.

The court found that the Ontario Energy Board (OEB) erred in law by misapplying the rule against perpetuities, focusing on the duration of the right rather than the vesting of the interest.

The court also held that the Divisional Court was not bound by its earlier decision in Dawn-Euphemia and that the OEB could not impose a new franchise agreement unless the existing one had lapsed or was about to lapse.

The Court of Appeal for Ontario dismissed Jennifer Stride’s motion for security for costs against Syra Group Holdings in relation to Syra’s appeal of a wrongful dismissal judgment.

The court found that the requirements for security for costs under Rules 61.06(1)(b) and (c) were not met, as Stride was not a defendant or respondent in the original action and there was insufficient evidence that Syra was liquidating assets to avoid payment.

The court also noted that the strength of the appeal was not weak and that more compelling proof of evasion was required.

Each party was ordered to bear their own costs for the motion.

The Court of Appeal for Ontario granted an extension of time to appeal an order validating two technically deficient wills under s. 21.1(1) of the Succession Law Reform Act.

The moving parties, who had not opposed the application at first instance, explained their delay and raised serious issues about the testamentary intentions of the deceased and the application judge’s process.

The court found no undue prejudice to the responding party and dismissed a cross-motion for security for costs.

The Court of Appeal for Ontario dismissed the conviction and sentence appeals of Corey and Curtis Murray, who were convicted of second degree murder in the death of Trevor Seraphine.

The main issues on appeal concerned the police failure to preserve certain surveillance video evidence and the Crown’s late disclosure of the loss of this evidence.

The court found that while the loss of evidence breached the appellants’ Charter rights, the trial judge’s remedial jury instructions were adequate and a stay of proceedings was not warranted.

The court also upheld the 20-year parole ineligibility periods, finding them fit in the circumstances.

The Court of Appeal for Ontario considered a motion by Mary McInnis, acting in person, for an extension of time to perfect her appeal in estate litigation, and a cross-motion by Sharon Hartin to dismiss the appeal for delay.

The court found that transcripts were required for the appeal and that the perfection deadline had not yet begun, rendering the extension motion moot.

The court declined to dismiss the appeal for delay, citing the appellant’s self-represented status, confusion over the rules, and lack of prejudice to the respondent.

The court imposed a deadline for the appellant to order transcripts or seek relief, failing which the respondent may move for dismissal for delay.

The Court of Appeal for Ontario declined jurisdiction to hear Dwayne Gordon’s application for judicial release pending retrial on human trafficking charges, following the setting aside of his convictions.

The court found that the Superior Court of Justice was better suited to conduct the contested bail hearing, particularly given the Crown’s desire to cross-examine the proposed surety.

The decision clarifies the exclusive and concurrent jurisdiction of the appellate and trial courts regarding bail release after an order for a new trial, and the circumstances in which the appellate court will exercise its jurisdiction.

The appellant, Z.V., appealed convictions for sexual assault and choking with intent to commit an indictable offence.

The appeal raised two grounds: (1) that the trial judge misapprehended the complainant’s evidence regarding consent to oral sex, and (2) that the trial judge erred by using a finding of fabrication in the appellant’s evidence as circumstantial evidence of guilt without independent evidence of fabrication.

The Court of Appeal found no misapprehension of the complainant’s evidence and held that the trial judge’s use of the fabrication finding was limited to credibility assessment and did not constitute an error.

The appeal was dismissed.

The appellant appealed an order striking his amended statement of claim and dismissing his action as statute-barred under the Limitations Act, 2002.

The underlying action involved allegations of water infiltration from neighbouring properties caused by the respondents' excavation of a trench, installation of a drainage ditch, and engineering of water drainage into a culvert.

The Court of Appeal allowed the appeal, finding that the motion judge erred by treating multiple distinct instances of alleged tortious conduct as a single event.

Reading the pleadings generously, it was not plain and obvious that all claims were statute-barred, highlighting the desirability of waiting until pleadings are closed before bringing a Rule 21.01(1)(a) motion on limitation issues.

Following an appeal, the court issued a costs endorsement.

The appellant was ordered to pay costs to the respondent in the amount of $5,748.88, inclusive of disbursements and applicable taxes.

The appellant appealed her convictions for drug trafficking and her 4-year custodial sentence.

She argued the trial judge erred in dismissing her application for a stay of proceedings under s. 11(b) of the Charter by mischaracterizing periods of delay, including those related to COVID-19 and a missing Information.

The Court of Appeal found no reviewable error in the trial judge's attribution of delay to the defence and exceptional circumstances.

The sentence appeal was also dismissed, as the 4-year sentence was below the established range for mid-level cocaine trafficking and the trial judge made no error in principle in rejecting a conditional sentence.

The minor respondent sued the appellant for damages resulting from a dog bite.

The appellant sought leave to issue a third party claim against the respondent's mother for negligent supervision, eleven months after the statement of defence was filed.

The motion judge dismissed the motion, finding prejudice to the respondent and a lack of merit in the proposed claim.

The Court of Appeal upheld the decision, clarifying that the test for assessing the merits of a proposed third party claim out of time is the test for an extension of time, not the strict pleadings test under Rule 21.

The appeal was dismissed.

The appellant was convicted of firearms offences and sentenced to nine years' imprisonment.

He appealed his sentence, arguing the sentencing judge failed to adequately quantify the mitigating effect of harsh pretrial conditions (Duncan credit) and sought a further reduction based on the sentence's impact on his family.

The Court of Appeal dismissed the appeal, affirming that under R. v. Marshall, harsh pretrial conditions are a mitigating factor to be weighed holistically, not a mathematical deduction.

The court also rejected the family impact argument due to insufficient evidence and the appellant's history.

The appeal concerns who is liable for outstanding municipal taxes in a receiver's sale of assets with an approval and vesting order (AVO).

The motion judge found the purchaser liable because the taxes were not yet due at closing.

The Court of Appeal reversed, holding that under s. 307(3) of the Municipal Act, liability for the taxes arose on January 1 of the relevant taxation years, prior to closing.

Therefore, the liability remained with the vendor (the receiver) and was vested out of the purchased assets by the AVO.

The self-represented moving party sought a panel review of an appeal management direction in a high-conflict family matter.

The direction had imposed a deadline for ordering transcripts and affirmed the requirement that documents be filed in English.

The Court of Appeal stayed the motion under Rule 2.1 of the Rules of Civil Procedure, finding it frivolous and vexatious.

The court noted that panel reviews of appeal management directions are not explicitly permitted and that the motion was premature, as the moving party could still seek relief from transcript requirements by bringing a motion for directions to the appeal management judge.

The appellant software company appealed the dismissal of its claim that the respondent breached a distribution agreement by copying the features and functionality of its software to create a derivative work.

The Court of Appeal upheld the trial judge's factual findings that no copying occurred and that the respondent's use of a marketing presentation was authorized.

The Court also found no error in the trial judge's evidentiary rulings, including the exclusion of an omnibus package of documents under the party admissions exception to the hearsay rule and the exclusion of an expert report that lacked necessity.

The appeal was dismissed.

The moving party sought a panel review of a single judge's order dismissing her motion for an extension of time to file a notice of appeal.

The Court of Appeal, acting on its own initiative under Rule 2.1.02, dismissed the motion for panel review as an abuse of process.

The court noted the moving party's history of bringing meritless motions and attempting to re-litigate settled issues, concluding this was the clearest of cases warranting a Rule 2.1 dismissal.

The moving party was also prohibited from bringing further motions in the proceeding without leave.

The appellant appealed a judgment enforcing a settlement agreement reached in open court regarding an estate and property dispute.

He argued the settlement should be set aside due to unconscionability, mutual mistake, and misrepresentation, claiming he did not understand the terms and was tricked by his former counsel.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's application of the test for unconscionability and concluding there was ample evidence that the appellant, who was represented by counsel, understood and agreed to the settlement.