Dennis R. O'Connor

This was a family law costs ruling following a protracted international custody and access dispute involving Hague Convention return proceedings in Brazil and subsequent litigation in Ontario.

The court held the applicant was fully successful in the Hague Convention proceeding and entitled to full indemnity costs for that process.

In the Ontario proceeding, the court found divided success on the major custody issue, but concluded the respondent's unreasonable conduct significantly prolonged the litigation and increased the applicant's costs.

The court declined to find bad faith, but awarded the applicant a reasonable costs amount for the Ontario proceedings in addition to the Brazil-related costs.

The Court of Appeal for Ontario issued a costs endorsement following an appeal and cross-appeal.

The appellant was awarded costs of the appeal on a partial indemnity scale fixed at $45,000.

The appellant and other responding insurers were awarded additional costs fixed at $20,000.

The plaintiffs sued their former lawyers for negligence, breach of fiduciary duty, and breach of the duty of loyalty, alleging the lawyers facilitated a Ponzi scheme and failed to disclose the plaintiffs' interests during an Ontario Securities Commission investigation while representing other clients.

The defendant lawyers moved to strike portions of the statement of claim, arguing their statements and omissions before the OSC were protected by the doctrine of absolute privilege.

The Court of Appeal dismissed the appeal, holding that it is not plain and obvious that absolute privilege immunizes a lawyer from a client's claim for breach of loyalty based on statements made while representing different clients in a quasi-judicial proceeding.

The appellants sought to certify a class action against a private religious school, its former headmasters, and the local Anglican Diocese for historical abuse.

The motion judge refused certification against all respondents, but specifically dismissed the action against the Diocese for failing to disclose a reasonable cause of action.

The appellants appealed to the Court of Appeal.

The Court held it had jurisdiction under s. 6(1)(b) of the Courts of Justice Act to hear the appeal regarding the Diocese, as it was a final order dismissing the action, not merely a refusal to certify.

On the merits, the Court upheld the dismissal, finding the pleadings failed to establish sufficient proximity to ground a duty of care or a fiduciary relationship between the Diocese and the students.

The Court declined to join the appeal regarding the other respondents, transferring it to the Divisional Court.

The accused was charged with manslaughter following the death of her common-law spouse, who was cut during an altercation at a house party.

The Crown sought to admit a portion of the accused's statement to police made during a 15.5-hour interrogation.

The court found that the police lacked reasonable and probable grounds to arrest the accused, rendering her detention unlawful and a breach of section 9 of the Charter.

Furthermore, the police violated the accused's right to silence by using a Commissioner of Oaths to compel a KGB statement under threat of criminal sanction.

The court excluded the statement under both the common law confessions rule and section 24(2) of the Charter.

The appellants appealed the motion judge's refusal to certify a class action against the respondents.

The Court of Appeal declined to exercise its discretion under s. 6(2) of the Courts of Justice Act to hear the appeal regarding the refusal to certify the action against the College, Farnsworth, and the Estate of Haig.

The court directed that the appeal involving those parties be transferred to the Divisional Court.

The appellant appealed the sentence imposed for a single act of sexual intercourse with a 13-year-old by a person in a position of trust.

The Court of Appeal noted that the upper end of the range for this type of offence is more than five years.

The court concluded that while the sentence imposed was high, it was not manifestly unreasonable.

The appeal was dismissed.

The appellant appealed from convictions, arguing that the trial judge erred in his approach to collusion between complainants, failed to address a specific defence submission, and unreasonably admitted a videotaped statement after a two-year delay.

The Court of Appeal dismissed the appeal, finding that the trial judge adequately addressed the potential tainting of evidence, that the omitted defence submission would not have affected the outcome, and that the trial judge reasonably exercised his discretion to admit the videotaped statement given the reasons for the delayed disclosure.

The appellant dentist appealed a permanent injunction enforcing a non-solicitation covenant in a management agreement with the respondent dental centre operator.

The appellant had copied patient lists before leaving the centre to start a new practice nearby.

The Court of Appeal dismissed the appeal, finding that the respondent had a valid proprietary interest in the goodwill of its business model, the non-solicitation covenant was reasonable and did not offend the regulatory scheme for dentists, and any alleged fee-splitting arrangement was a matter for the regulator and did not invalidate the contract.

The appellant appealed his sentence of five and one half years imprisonment for criminal harassment, attempting to obstruct justice, and breaching a court order.

The appellant had a lengthy criminal record, including related offences against other women, and persisted in harassing the victim despite police warnings and court orders.

The Court of Appeal dismissed the appeal, finding that the trial judge's sentence was fit, entitled to deference, and appropriately prioritized deterrence, denunciation, and the separation of the offender from society.

The appellant appealed his sentence of 3.5 years' imprisonment for sexual assault and incest, arguing the sentencing judge erred by only granting 1:1 credit for pretrial custody spent in administrative segregation.

The Court of Appeal dismissed the appeal, finding the sentencing judge properly exercised his discretion by weighing the harsh conditions against other factors, including the appellant's outstanding charges, breach of bail, and significant criminal record.

The Greater Essex County District School Board appealed a Divisional Court decision upholding an Ontario Labour Relations Board (OLRB) ruling.

The OLRB found that the school board's construction management activities fell within the definition of 'construction industry' under the Ontario Labour Relations Act, and that receiving compensation for these activities constituted operating a business.

The OLRB also found the school board and other property owners were 'unrelated persons' under the 'non-construction employer' definition.

The Court of Appeal dismissed the appeal, finding the OLRB's decision reasonable and its reasons sufficient.

The appellant appealed a trial judgment that implied a term into a commercial agreement requiring the appellant to enter into a contract with QVC UK to provide the respondent's products for broadcast on the Shopping Channel.

The Court of Appeal dismissed the appeal, finding it was open to the trial judge to imply the term because the agreement made no practical sense without it, and the entire agreement clause did not preclude this implication.

The court noted the same result could have been reached through standard contractual interpretation.

The appellant, a licensed funeral director, appealed a Divisional Court decision upholding the Licence Appeal Tribunal's revocation of her licence for professional misconduct.

The appellant argued the Tribunal erred by not deferring to the Discipline Committee's penalty decision and that there was no evidence her conduct endangered the public.

The Court of Appeal dismissed the appeal, finding the Tribunal hearing was de novo under the Funeral Directors and Establishments Act, requiring no deference, and that the Tribunal's findings of deceitful conduct were well-supported by the evidence.

The appellant appealed a decision of the Ontario Review Board ordering his detention in a Secure Forensic Unit with the possibility of transfer to a General Forensic Unit.

The Court of Appeal admitted fresh evidence showing the appellant had absented himself from the hospital for four months before surrendering the day before the appeal hearing.

The Court dismissed the appeal, finding that the fresh evidence of elopement and the resulting flight risk concerns were sufficient to sustain the Board's hybrid disposition, while urging an expedited fresh review by the Board.

The appellant, a foster parent, was convicted of sexual assault, sexual exploitation, and sexual interference against his foster child.

He appealed the convictions, arguing the trial judge erred in assessing credibility, particularly regarding his erectile dysfunction, the complainant's inconsistent statements, the improbability of the allegations, and the rejection of his own testimony.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's credibility assessments or factual findings.

The appellant appealed his global sentence of three years' imprisonment for multiple drug and firearms offences, arguing it was unfit after his conviction for possession of a loaded firearm was overturned on a previous appeal.

The Court of Appeal dismissed the sentence appeal, finding that the combination of drugs and guns is a serious aggravating factor and the three-year sentence remained fit and appropriate to achieve denunciation and deterrence.

The court also upheld the 30-day concurrent sentence for breaching a recognizance condition prohibiting cellphone possession.

The appellant appealed his sentence of 18 months' incarceration for possession of oxycodone for the purpose of trafficking.

He argued the sentence was manifestly unfit and that the sentencing judge failed to adequately explore the principle of restraint for youthful first offenders.

The Court of Appeal dismissed the appeal, noting the appellant was 29 years old and the trial judge properly considered and rejected a conditional sentence due to the harm caused by the drug.

The court found the sentencing judge balanced general deterrence and rehabilitation, and provided adequate reasons.

The appellant appealed his convictions for sexual assault and incest, arguing the trial judge erred in permitting the Crown to call reply evidence regarding the timing of a pizza order.

The appellant claimed this was a collateral issue.

The Court of Appeal dismissed the appeal, finding the evidence was helpful in resolving an essential issue in the case, as it supported the complainant's timeline and undermined the appellant's evidence regarding his whereabouts prior to the assault.

The appellant, acting in person, appealed his conviction for first degree murder.

He argued that the trial judge erred in refusing to allow the jury to consider his third party suspect defence and in giving a mid-trial instruction that all evidence pointed to the accused and away from the third party suspect.

The Court of Appeal dismissed the appeal, finding no air of reality to the third party suspect defence as there was no admissible evidence linking the third party to the murder.

The Court also held that the trial judge's mid-trial instruction, provoked by the appellant's defiance of court orders, did not amount to a directed verdict and occasioned no substantial wrong or miscarriage of justice.