Eileen E. Gillese

The appellant, a corporate officer and sole director, appealed a judgment finding him personally liable for civil fraud arising from his company's failure to deliver 3 million NIOSH certified N95 masks during the COVID-19 pandemic to a Quebec hospital network, after receiving over US$11 million in advance payment.

The Court of Appeal dismissed the appeal, holding that the trial judge applied the correct threshold for recklessness in finding civil fraud and that the law clearly supports personal liability of officers and directors for fraudulent conduct, without needing to assess whether the conduct was "tortious in itself" or exhibited a "separate identity or interest."

The appellant pleaded guilty to fraud after failing to declare over $50,000 in earnings and COVID-19 benefits while receiving Ontario Works assistance, collecting approximately $16,000 to which she was not entitled.

She received a six-month conditional sentence and a restitution order.

On appeal, the appellant sought to set aside her guilty plea, arguing it was involuntary due to mental health conditions and uninformed because she was unaware those conditions might have provided a defence.

The Court of Appeal found the plea was voluntary, as the record showed active participation in the year-long process leading to the plea, and informed, as the appellant failed to establish subjective prejudice.

The appeal was dismissed.

The appellant was convicted by jury of two counts of trafficking cocaine and one count of assaulting a peace officer with a weapon after police executed a search warrant on his apartment.

He appealed on the grounds that the trial judge erred in failing to instruct the jury on the defence of mistake of fact regarding the assault charge, and in failing to relate the evidence summary to material issues and the defence position.

The court found no merit in either ground, holding that the trial judge's instructions adequately required the Crown to prove beyond a reasonable doubt that the appellant knew the officer was a peace officer engaged in executing his duty, which effectively encompassed the mistake of fact defence.

The appeal from conviction was dismissed, and the sentence appeal was dismissed as abandoned.

The appellant appealed a Family Court order compelling compliance with prior security-for-costs and costs orders in ongoing family proceedings.

The Court of Appeal held it lacked jurisdiction because the order was a final Family Court order made only under provincial legislation, engaging s. 19(1)(a.1) of the Courts of Justice Act.

The court emphasized that such appeals lie to the Divisional Court, not the Court of Appeal.

It also noted procedural options to avoid delay where jurisdictional transfer issues arise, including consent transfer orders or motions to quash.

On an estate appeal, the appellants challenged findings that upheld a later will, dismissed their application, and refused costs relief.

The court found legal and palpable-and-overriding errors in the trial-level analysis of suspicious circumstances, knowledge and approval, conflict concerns surrounding the drafting solicitor, and undue influence evidence.

The court held the impugned will invalid, granted related relief dismissing the connected Small Claims Court action, and set aside the costs order.

Applying modern estate-costs principles, the court ordered a blended costs result, including substantial indemnity costs personally against the respondent for part of first-instance costs, with the remaining amounts payable from the estate.

The appellant challenged a bankruptcy order and a related post-judgment Mareva order granted at the request of a court-appointed monitor holding a substantial judgment debt.

The court held the bankruptcy order was appealable as of right under s. 193(c) of the Bankruptcy and Insolvency Act and treated the Mareva order as a final order appealable under s. 6(1)(b) of the Courts of Justice Act in the circumstances.

On the merits, the court found no reversible legal or discretionary error in rejecting objections to the monitor’s authority, rejecting allegations of collateral purpose, and refusing dismissal or adjournment under ss. 43(7) and 43(10) of the Bankruptcy and Insolvency Act.

The court also upheld continuation of the Mareva relief as complementary to bankruptcy administration and dismissed the appeal with agreed costs.

The appellants, holders of 2025 series senior secured notes, appealed the final order approving a CBCA plan of arrangement that restructured $270 million in pari passu senior secured notes issued in three series.

The arrangement extended the maturity dates of all notes and was approved by 75 percent of senior noteholders voting as one class, though only 20 percent of 2025 noteholders voted in favour.

The Court of Appeal dismissed the appeal, finding it was moot because the plan had been implemented without a stay, and that it constituted a collateral attack on the interim order establishing the single-class voting classification, from which leave to appeal had already been denied.

The court further held that the application judge applied the correct test under s. 192 of the CBCA, made factual findings entitled to deference, and committed no reviewable error in finding the arrangement fair and reasonable or in dismissing the oppression remedy application.

The appellant appealed from an order striking his statement of claim and dismissing his action against a federally regulated company for alleged discrimination during a 2015 job interview.

The motions judge found no viable cause of action because there is no common law tort of discrimination and the claim was statute-barred under the Limitations Act, 2002.

On appeal, the appellant argued the Superior Court was the appropriate forum and that the limitation period was suspended due to incapacity.

The Court of Appeal found no basis for appellate intervention, noting the appellant had commenced several other lawsuits during the relevant period, undermining his incapacity claim.

The motion to admit fresh evidence was also dismissed as it failed to meet the test for admission.

The appellant purchased furniture, fixtures, and equipment, including a large racking system, from insolvent tenants under a court-approved Liquidation Process Order in bankruptcy proceedings.

The appellant failed to remove the racking from the landlord's distribution centre/warehouse before the lease disclaimer date and multiple deadlines.

The trial judge dismissed the appellant's conversion claim, finding that the racking was deemed abandoned pursuant to the Sale Guidelines incorporated in the Liquidation Process Order, which provided that any fixtures or personal property left in a store after the sale termination date and lease disclaimer would be deemed abandoned.

The Court of Appeal upheld the trial judge's interpretation, holding that the deemed abandonment provision was irrebuttable when read in the context and purpose of the insolvency proceedings, and that the appellant could have sought a variation of the order through the come-back provision but failed to do so.

The appeal and the respondents' cross-appeal on damages were both dismissed.

The appellant was convicted by a jury of sexual assault arising from an incident where initially consensual sexual intercourse escalated to unprotected intercourse without the complainant's consent.

On appeal, the appellant raised three grounds: errors in the W.(D.) jury instructions, improper Crown closing submissions, and that a pre-trial s. 276/278.92 ruling led to trial irregularities amounting to a miscarriage of justice.

The Court of Appeal found no merit in any ground.

The jury instructions properly conveyed each pathway to acquittal, the Crown's closing did not cross the line into oath-helping or rhetorical excess, and the pre-trial ruling did not create any irregularity or unfairness warranting appellate intervention.

The appellant appealed the dismissal of its motion to add respondents as defendants to a lawyer's negligence and breach of fiduciary duty action, arguing the motion judge erred in determining the limitations issue on a motion to amend.

The Court of Appeal found no error, holding the appellant failed to adduce evidence to rebut the statutory presumption of discoverability under s. 5(2) of the Limitations Act, 2002, and the claims were statute barred as the motion was brought more than two years after discovery according to the unrebutted presumption.

A reference to the Court of Appeal for Ontario concerning whether legal online gaming and sports betting would remain lawful under the Criminal Code if users were permitted to participate in games and betting involving individuals outside of Canada.

The majority (Tulloch C.J.O., Gillese, Hourigan and Dawe JJ.A.) answered affirmatively, finding that section 207(1)(a) of the Criminal Code permits Ontario to conduct and manage a lottery scheme with international pooled liquidity, provided Ontario continues to conduct and manage the Ontario-based aspects of the scheme in accordance with provincial law.

The majority rejected the application of the real and substantial connection test and distinguished the Earth Future decisions.

Van Rensburg J.A. dissented, arguing that the Proposed Model would contravene the Criminal Code because it would require Ontario to conduct and manage aspects of the lottery scheme outside Ontario's territorial boundaries, contrary to the plain meaning of "in that province" in section 207(1)(a).

The appellants appealed a motion judge's decision enforcing a settlement agreement between the respondent mortgagee and the appellants regarding mortgage enforcement proceedings.

The appellants argued the settlement agreement was unenforceable because the mortgagee failed to comply with notice requirements under section 244(1) of the Bankruptcy and Insolvency Act before enforcing its mortgage.

The Court of Appeal upheld the motion judge's decision, finding that the appellants had voluntarily relinquished any claim based on section 244 when they entered into the settlement agreement with full knowledge of that claim, having previously raised it in their statement of defence.

The court found no basis for appellate intervention and dismissed the appeal with costs.

The appellant was convicted of two counts of unlawful possession of a controlled substance and various firearms offences following a traffic stop.

During the stop, police discovered a restricted firearm, ammunition, and an extended magazine in a satchel in the appellant's vehicle, as well as cocaine and oxycodone tablets in the centre console.

The trial judge found that while the appellant's s. 9 Charter rights were not breached, his s. 8 rights were violated when the satchel was searched without legal authority.

However, the trial judge exercised discretion under s. 24(2) of the Charter to admit the evidence.

The appellant appealed both conviction and sentence.

The Court of Appeal dismissed both appeals, finding no error in the trial judge's s. 24(2) analysis despite a minor misstatement regarding the Grant factors, and finding the sentence not manifestly unfit.

The appellant appealed his conviction on five counts (three counts of distributing intimate images without consent, one count of criminal harassment, and one count of sexual assault) on the basis that the trial judge erred in refusing to stay the conviction for delay contrary to s. 11(b) of the Charter.

The trial judge found that the net delay of 506 days did not exceed the 18-month presumptive ceiling established in Jordan by attributing 196 days to defence delay.

On appeal, the court reconsidered the attribution of three disputed periods of delay in light of subsequent Supreme Court and Court of Appeal decisions, ultimately finding that the net delay was 515 days, which remained within the reasonable time threshold for a provincial court trial.

The appellant appealed his conviction for possession of fentanyl for the purpose of trafficking.

He challenged the trial judge's dismissal of his Charter application seeking to exclude evidence obtained from a search of his person and vehicle.

The appellant argued that the police used a false pretext of a seatbelt violation under the Highway Traffic Act to arbitrarily detain him and search for drugs in violation of sections 8 and 9 of the Charter.

The Court of Appeal upheld the trial judge's findings, concluding that the initial stop was lawful based on an actual seatbelt violation, and that the subsequent search was authorized under the Cannabis Control Act based on reasonable grounds to believe cannabis was in the vehicle.

The appeal was dismissed.

Appeal of a family law trial decision involving a short marriage with a religious ceremony in July 2017 and civil ceremony in April 2019.

The trial judge dismissed the appellant's claims for a resulting or constructive trust in the matrimonial home and for equalization of net family property, finding the appellant not credible due to inconsistent financial disclosure, use of false names, doctored bank statements, and manipulative conduct.

The trial judge imputed annual income of $86,553 to the appellant for child support purposes, awarded the respondent a $20,000 Mehr payment under the marriage contract, and ordered costs of $85,000.

The Court of Appeal dismissed all grounds of appeal, finding no palpable and overriding errors, no denial of natural justice, no bias, and no basis to interfere with the costs award.

The appellant was convicted after a judge-alone trial of sexual assault contrary to s. 271 of the Criminal Code and sentenced to 38 months imprisonment.

On appeal, the appellant challenged the conviction on the basis that the trial judge convicted him on a theory different from that advanced by the Crown, denying him the right to make full answer and defence.

The appellant also sought leave to appeal the sentence, arguing that the trial judge erred in principle by treating his failure to address mental health issues as an aggravating factor and by failing to apply the totality principle.

The Court of Appeal dismissed the conviction appeal, finding that the trial judge's reasons addressed the case as presented by the Crown and that the conviction was based on the Crown's theory of sexual assault based on absence of subjective consent.

The Court granted leave to appeal the sentence but dismissed the sentence appeal, finding that while the trial judge made erroneous references, they had no material impact on the sentence imposed, which fell within the appropriate range for this type of offence.

The appellant appealed her conviction resulting from a guilty plea to possession of cocaine and methamphetamine for the purpose of trafficking and possession of a concealed weapon.

She challenged the validity of her guilty plea, claiming it was not voluntary, unequivocal, and informed.

She also alleged ineffective assistance of counsel on the basis that counsel failed to assist her in striking her plea and failed to oppose a no-contact order with her co-accused.

The court found that the trial judge conducted an extensive inquiry to ensure the appellant understood the plea and its consequences, and that the appellant's plea was voluntary, unequivocal, and informed.

The court also found that counsel's assistance was not ineffective, as counsel reviewed disclosure, advised on trial prospects, and followed the appellant's instructions throughout the proceedings.

The appeal was dismissed.

The appellant appealed both his conviction for sexual assault and his sentence of two years and six months' imprisonment.

The trial judge found the appellant's testimony unreliable, evasive, inconsistent, and self-serving.

The trial judge also found that a text message sent by the appellant to the complainant after the incident, in which he said he was "sorry" multiple times, constituted an admission and was corroborative of the complainant's account.

The appellant argued that his use of the word "sorry" was culturally customary and not an apology.

The Court of Appeal found no basis for appellate intervention in the trial judge's credibility assessments and dismissed both the conviction appeal and the sentence appeal.