Gary T. Trotter

The appellant wife appealed an order setting aside a separation agreement under s. 56(4)(b) of the Family Law Act.

The hearing judge had set aside the agreement based on a theory he raised himself, finding the wife engaged in trickery by altering the agreement without the husband's knowledge.

The Court of Appeal allowed the appeal, holding that the hearing judge's finding of trickery was procedurally unfair as it was never pleaded or put to the wife in cross-examination.

Absent this finding, there was no basis to conclude the sophisticated husband, who chose not to obtain independent legal advice, failed to understand the nature or consequences of the agreement.

The Crown appealed the accused's acquittals for child luring and obtaining sexual services from a minor.

The trial judge had excluded text messages found on the minor complainant's phone, ruling that the accused had a reasonable expectation of privacy in those messages.

The Court of Appeal allowed the appeal and ordered a new trial, holding that the accused had no reasonable expectation of privacy in text messages sent to a minor to facilitate sexual offences, particularly where the messages were voluntarily provided to police by the minor and her parent.

In a second addendum to an appeal decision regarding a partnership dispute, the court considered the appellants' payment of income taxes for a corporation.

Based on affidavit evidence and notices of assessment confirming a remittance of $8,348.36 to the Canada Revenue Agency, the court ordered that this amount be deducted from the corporation's net income figure to arrive at an after-tax income figure for the purpose of recalculating the damages owing to the respondent.

The appellant appealed his sentence and oral arguments were heard.

Following the hearing, the court reserved its decision and ordered a Post-Sentence Report.

Before the decision was released, the appellant passed away.

The Court of Appeal held that the death caused the appeal to abate and found no exceptional circumstances to exercise its residual discretion to determine the appeal.

The appeal was dismissed as abated.

The appellants appealed a summary judgment order granting the respondent a shortfall of $58,067.48 following the sale of a property under power of sale.

The appellants argued the motion judge erred in determining the sale price by 'rectifying' a Land Transfer Tax statement contrary to the Land Titles Act and reversing the burden of proof.

The Court of Appeal dismissed the appeal, finding the motion judge did not rectify the document but simply weighed the evidence to determine the actual consideration received, and that s. 78(4) of the Land Titles Act did not apply.

The moving party brought a motion to quash the responding parties' appeal of an order enforcing a settlement agreement in a construction lien dispute.

The Court of Appeal held that it lacked jurisdiction to hear the appeal, as section 71(1) of the Construction Act directs such appeals to the Divisional Court.

The Court declined to traverse the appeal to the Divisional Court because the responding parties had failed to oppose the confirmation of the associate judge's report, meaning they must first seek leave in the Superior Court to extend the time to file a motion in opposition.

The motion to quash was granted.

The appellant appealed jury convictions for historical sexual offences against a family member, alleging errors in the jury charge concerning the W.(D.) framework, eyewitness identification, and defence submissions about recovered memory.

He also sought to file fresh evidence consisting of a post-verdict juror Facebook message and a foreperson's note to argue a reasonable apprehension of jury bias.

The court held that the charge, read as a whole, adequately instructed the jury on reasonable doubt and the frailties of identification evidence, and that the trial judge's narrow corrective instruction on recovered memory was proper.

Although the fresh evidence was admitted because it bore on trial fairness, it did not rebut the presumption of juror impartiality.

The appeal was dismissed.

The corporate appellant defaulted on a Canada Small Business Financing Loan and the individual appellant was found liable as guarantor on a summary judgment motion.

On appeal, the appellants argued the action was statute-barred, improperly served, procedurally unfair, and that the bank breached obligations by not disbursing the full loan amount.

The Court of Appeal dismissed the appeal, finding no errors by the motion judge in concluding the loan was in default, the guarantee was enforceable, and the bank owed no duty of care to disburse the full amount.

The Crown appealed the respondent's acquittals on charges of sexual assault, incest, and human trafficking against his biological daughter.

The trial judge had acquitted the respondent based on reasonable doubt arising from material inconsistencies in the complainant's evidence and reliability concerns related to her hallucinations, delusions, and heavy street drug use.

On appeal, the Crown argued the trial judge relied on myths and stereotypes about mental illness and assessed the evidence piecemeal.

The Court of Appeal dismissed the appeal, finding the trial judge's reliability concerns were grounded in case-specific evidence, not stereotypes, and that he properly assessed the evidence as a whole.

The appellant challenged an order holding that a dispute over vested options to acquire shares in a related corporate entity had to be resolved in Delaware rather than under the mediation-arbitration clause in his Ontario employment agreement.

The court held that the competence-competence principle did not require referral to an arbitrator because arbitral jurisdiction could be determined through a superficial review of the contractual record.

Reading the employment agreement, option agreement, and incorporated equityholders agreement together, the court held that the options dispute was not contemplated by or connected with the employment agreement and was instead governed by the Delaware forum selection clause.

The court also rejected the argument that the forum selection clause was unconscionable, finding no improvident bargain or evidence that the chosen forum placed a remedy out of reach.

In an addendum to its earlier reasons dismissing the appeal and cross-appeal, the Court of Appeal addressed the calculation of partnership net profits for the purpose of determining the respondent's damages.

The appellants argued that notional income taxes should be deducted from amounts the trial judge ordered included in corporate income, such as diverted wages and personal expenses.

The Court rejected this argument, finding no evidence that taxes were paid on the diverted funds.

However, the Court ordered the appellants to provide Canada Revenue Agency documentation to prove actual income taxes remitted by one of the corporate defendants, which would be deducted from its net income if substantiated.

The appellant appealed his convictions for human trafficking and related offences, arguing the application judge erred in dismissing his s. 11(b) Charter application for unreasonable delay.

The application judge found the net delay of 32.3 months exceeded the presumptive Jordan ceiling but was justified by the exceptional complexity of the case and the Crown's concrete plan to mitigate delay, which included preferring a direct indictment and streamlining counts.

The Court of Appeal upheld the application judge's findings, concluding that despite a minor calculation error regarding a bail adjournment, the overall delay was justified by the case's complexity.

The appellant was convicted of conspiring to import cocaine into Australia and sentenced to nine years' imprisonment.

The Crown's case relied heavily on cell phone data, including text messages, WhatsApp group chats, and audio recordings involving the appellant and his co-conspirators.

On appeal, the appellant challenged the admissibility of the audio recordings, the trial judge's treatment of a co-conspirator's testimony, the application of the wilful blindness standard, and the characterization of the conspiracy.

The Court of Appeal dismissed the conviction appeal, finding no reversible errors in the trial judge's evidentiary rulings or legal analysis.

The Court also dismissed the sentence appeal, holding that the nine-year sentence was fit and did not violate the principle of parity when compared to the co-accused's sentence, given the co-accused's early guilty plea.

The appellant appealed his convictions for sexual offences against four teenage and pre-teenage girls, and sought leave to appeal his sentence.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's assessment of the complainants' credibility or her conclusion that they had not colluded.

However, the Court granted leave to appeal the sentence and reduced the global sentence from eight years and four months to eight years, noting that the trial judge had imposed a sentence exceeding the Crown's submission on totality.

The appellants brought actions in Ontario against Barrick Gold Corporation for alleged human rights abuses committed by Tanzanian police at a mine in Tanzania.

The motion judge dismissed the actions for lack of jurisdiction and alternatively stayed them on the basis of forum non conveniens, finding Tanzania to be the clearly more appropriate forum.

On appeal, the appellants argued the motion judge erred in his forum non conveniens analysis by misapprehending the location of Barrick's head office, applying the wrong evidentiary standard, and failing to properly assess the risk of unfairness in Tanzania.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's discretionary weighing of factors, particularly given that the vast majority of witnesses and evidence were located in Tanzania.

The appellant was convicted of aggravated assault, assault with a weapon, and possession of a weapon after the complainant was stabbed in the torso.

The sole trial issue was identity of the assailant.

On appeal, the appellant argued that the trial judge's reasons were inadequate and that the trial judge erred in treating a post-offence apology as consciousness of guilt.

The Court of Appeal held that the reasons, though brief, were adequate when read in light of the whole record and counsel's submissions.

The court further held that the trial judge did not err in using the apology as confirmatory evidence, as no alternative explanation for it appeared on the record.

Appeal dismissed.

The appellant challenged convictions for multiple historic child sexual offences against two complainants, arguing misapprehension of evidence, improper reliance on demeanour, and erroneous credibility considerations.

The court held that any imprecision in describing the appellant’s evidence was not consequential, that demeanour was not given undue weight, and that references to lack of embellishment were permissible; although the trial judge’s reliance on counselling evidence was unnecessary, it caused no miscarriage of justice.

On sentence, the court found the custodial term fit in light of the seriousness, grooming, breach of trust, and the governing sentencing guidance for child sexual abuse.

The court clarified that an arithmetic error meant the total sentence was 11 years, not 12, and varied the internet prohibition order under s. 161(1)(d) to add tailored exceptions.

The Crown appealed acquittals on written child pornography and child luring charges arising from an online undercover operation in which the respondent exchanged sexualized messages with a person repeatedly presenting as a 14-year-old girl.

The court held that the trial judge erred in law by isolating sexually explicit messages from their full context, by treating the absence of explicit age references within particular messages as dispositive, and by allowing the respondent’s claimed role-play motive to distort the objective inquiry under s. 163.1(1)(b) and (c) of the Criminal Code.

The court further held that the trial judge misapplied the mens rea for child luring, wrongly focused on whether the respondent intended to commit the secondary offences at the meeting, and failed to consider wilful blindness in the age analysis under s. 172.1 and Morrison.

The acquittals were set aside, findings of guilt were entered on all counts, and a new trial was ordered on all counts limited to entrapment and sentencing.

The appellant appealed his convictions on three counts under the Controlled Drugs and Substances Act and sought leave to appeal his sentence.

The appellant argued the trial judge erred by failing to self-instruct on Vetrovec in relation to the co-accused's testimony and that the trial judge unevenly scrutinized the evidence.

The Court of Appeal found no error, noting ample independent corroborative evidence supported the co-accused's testimony.

On sentence, the appellant argued the trial judge failed to perform a proper Gladue analysis, but the court found no error given the Gladue Writer Program's inability to prepare a report and the trial judge's careful consideration of the appellant's circumstances.

Both the conviction appeal and sentence appeal were dismissed.

The appellant appealed convictions for firearm-related offences.

The firearm, ammunition, and an oversized magazine were seized from the appellant's home pursuant to a search warrant obtained after a threatening interaction between the appellant and his associates and a restaurant owner.

The appellant challenged the warrant through a Garofoli application, arguing the affiant mischaracterized the video evidence in the information to obtain and that the trial judge misapprehended the video surveillance evidence.

The Court of Appeal found no mischaracterization in the ITO and no error in the trial judge's assessment of the video evidence, dismissing the appeal.