Gary T. Trotter

The respondent purchased a commercial condominium unit with an exclusive use designation for a dental clinic and leased it to the appellant dentist.

Near the end of the lease, the appellant secretly purchased an adjacent unit, moved his practice there, and purported to assign the exclusive use designation to his new unit in perpetuity.

The application judge held that the appellant could only assign the exclusive use right for the duration of his lease term.

The Court of Appeal dismissed the appeal, finding that the application judge correctly applied contractual interpretation principles and the nemo dat principle to conclude that the tenant could not permanently divest the owner of its exclusive use right.

The Crown appealed the dismissal of charges under the Occupational Health and Safety Act against an employer and supervisor following a workplace accident.

The lower courts had excluded evidence from the Ministry of Labour's inspection of a roller, finding a breach of the respondents' Charter rights (s. 11(d)) due to the inspectors' failure to halt inspection after a lawyer's letter, poor note-taking, and not following internal policies.

The Court of Appeal found that there is no constitutional right for an accused to direct an investigation or be present during evidence inspection.

It held that inconsistencies in inspector testimony or failure to follow internal guidelines do not amount to a Charter violation.

Crucially, the respondents failed to demonstrate any prejudice to their right to make full answer and defence, especially after disposing of the evidence themselves.

The appeal was allowed, and a new trial ordered.

The appellant, Myriam Michail, moved to review a case management order that required her motion challenging the constitutionality of s. 136 of the Courts of Justice Act to be treated as a motion for leave to introduce a new issue on appeal and heard concurrently with her appeal, with a 30-day perfection deadline for the appeal.

The Court of Appeal dismissed the review motion, finding no basis to interfere with the motion judge's exercise of discretion.

The court noted that the appellant had other available remedies to obtain access to audio recordings or transcripts of the proceeding below, apart from a constitutional challenge, and had not availed herself of those remedies.

The constitutional challenge was deemed properly dealt with on the appeal itself.

Costs were awarded to the London District Catholic School Board.

The appellant, Andrew Burnett, appealed his conviction for second-degree murder on two grounds: procedural error due to email discussions about jury instructions in his absence (violating s. 650(1) Criminal Code) and a breach of his s. 10(b) Charter right to counsel.

The Court of Appeal found that while procedural errors occurred regarding the email discussions, they did not cause prejudice to the appellant.

The court also upheld the trial judge's finding that there was no breach of the implementational component of s. 10(b) Charter right, as the appellant's desire for counsel was ambivalent and he prioritized understanding the case against him.

The appeal was dismissed.

The appellant, a mortgagee, appealed a motion judge's decision that granted priority to construction lien claimants over his registered third mortgage.

The Court of Appeal dismissed the appeal, affirming that the advances made by the mortgagee did not fall within the exceptions of s. 78(2) or s. 78(6) of the Construction Act.

The court held that advances must be "made in respect of" the mortgage and the intention to secure financing must operate prospectively to gain priority over liens.

The decision reinforces the general principle of priority for lien claimants and the onus on mortgagees to clearly fall within statutory exceptions.

Libro Credit Union Limited appealed a motion judge's order that dismissed its motion for a declaration of priority over funds held by the Sheriff in garnishment proceedings.

The motion judge had incorrectly concluded that a prior order by Gorman J. had determined the priority issue, thus deeming the appellant's motion a collateral attack.

The Court of Appeal found that Gorman J. had not made such a determination and explicitly left the priority dispute open.

The appeal was allowed, the motion judge's order was set aside, and the matter was remitted to the Superior Court for a hearing on the merits of the priority dispute.

The appellant appealed a summary judgment dismissing his fraud action as statute-barred.

He alleged the respondents fraudulently stripped him of his shares in a company in January 2017, but did not commence his action until April 2020.

The Court of Appeal upheld the motion judge's findings that the claim was discoverable by February 2017, noting the appellant's former counsel had asserted belief of fraud at that time.

The Court also upheld the motion judge's discretionary refusal to grant an adjournment and dismissed the appellant's application to adduce fresh evidence.

The appellants sought to appeal two judgments.

The Court of Appeal found it lacked jurisdiction to hear the appeal of the first judgment (October 2020 Judgment) because a prior appeal of that judgment had been dismissed for delay or abandoned, constituting an impermissible collateral attack.

The court declined to exercise its power to set aside the prior dismissal, emphasizing that proper procedural rules must be followed for such a request.

The appeal concerning the second judgment (February 2021 Judgment) was adjourned and will be rescheduled.

Costs thrown away were awarded to the respondents.

The moving party, a self-represented litigant, sought leave to appeal a Divisional Court order that dismissed his appeal proceedings under Rule 2.1 of the Rules of Civil Procedure.

The interveners brought a motion under Rule 2.1 to dismiss the motion for leave to appeal.

The Court of Appeal found that the moving party raised no arguable grounds of appeal and was attempting to relitigate matters decided years earlier.

The motion for leave to appeal was dismissed as frivolous, vexatious, and an abuse of process.

The appellant, Latoya Ceballo, appealed her conviction for importing cocaine, arguing that the trial judge erred in denying her Charter application to exclude evidence.

Ceballo contended she was detained during a secondary customs inspection without being promptly advised of her Charter rights (ss. 10(a), 10(b)).

The Court of Appeal dismissed the appeal, affirming the trial judge's finding that Ceballo was not detained prior to admitting possession of cocaine.

The court reiterated that routine border inspections, including ion scans and questioning about travel, do not constitute detention.

It found no error in the trial judge's assessment that the Border Services Officer's actions were not intrusive enough, nor was there a sufficiently strong particularized suspicion or subjective decision to engage in an intrusive investigation to trigger detention.

The court also found no material misapprehension of evidence by the trial judge.

The appellant, found not criminally responsible, appealed the Ontario Review Board's decision to impose a detention order instead of a conditional discharge, arguing procedural unfairness due to lack of notice regarding the rejection of a joint submission.

The Court of Appeal found that a joint submission for conditional discharge did exist, despite the Crown's initial reservation and a dispute over a cannabis condition.

However, the court determined that the Board members' probing questions during the hearing provided adequate, albeit not ideal, notice that the joint submission was in peril.

Fresh evidence of the appellant's subsequent readmissions to hospital further supported the reasonableness of the detention order.

The appeal was dismissed.

The applicant sought bail pending appeal after being convicted of sexual assault, uttering death threats, and breaching a release order, resulting in a three-and-a-half-year imprisonment sentence.

The application for bail pending appeal was dismissed.

The court found that while the appeal was not frivolous and the applicant would likely surrender, detention was necessary in the public interest due to an extensive criminal history, including prior sexual assault and harassment convictions, and a significant track record of breaching court orders, which outweighed the proposed surety's assurances.

The appellants, David Kaczmarek and Terrell Sullivan, appealed their convictions for sexual assault and Mr. Sullivan also appealed his sentence.

The trial judge had found the complainant lacked the capacity to consent due to extreme intoxication and did not agree to the sexual activity.

The Court of Appeal upheld the trial judge's finding of incapacity, rejecting arguments that the judge erred in the order of findings, equated lack of memory with incapacity, or reversed the burden of proof.

Mr. Kaczmarek's claim of ineffective assistance of counsel, alleging his counsel prevented him from testifying, was also dismissed, as the court found counsel's advice was sound and the decision not to testify was ultimately Mr. Kaczmarek's.

Mr. Sullivan's sentence appeal was dismissed, with the court affirming that continuing sexual activity after consent is withdrawn is not less morally blameworthy than engaging in sexual activity with someone who never consented or lacked capacity.

The applicant, J.M., sought an order from the Court of Appeal for Ontario under s. 684(1) of the Criminal Code for state-funded counsel to represent him in his appeal against a sexual assault conviction, after Legal Aid Ontario denied funding.

A chambers judge had previously dismissed a similar application.

The Court of Appeal dismissed the application, holding that there is no right of appeal from a chambers judge's refusal to appoint funded counsel under s. 684.

The court clarified that while it has concurrent jurisdiction with a single judge to consider such applications, it would only exercise this de novo jurisdiction if there were a sufficient change in circumstances since the initial decision, which was not present in this case.

The court also affirmed that provincial legislation cannot create rights of appeal in criminal matters.

The appellants, April Vuong and Hao Quach, appealed their convictions for large-scale fraud and their 6-year sentences.

They argued that their s. 11(b) Charter right to be tried within a reasonable time was infringed, that the trial judge erred in permitting a forensic accountant to testify as a non-expert witness, and that their sentences were unfit.

The Court of Appeal dismissed all appeals, finding that the delay was justified under the Jordan transitional exceptional circumstance, that any error regarding the witness testimony was cured by the Criminal Code's proviso, and that the sentences were fit and within the appropriate range for a sophisticated Ponzi scheme.

This addendum clarifies the payment deadline for fines imposed in the main appeal decision (2021 ONCA 665).

The respondent requested clarification, and the court ordered that the fines be paid within seven days of the release of this addendum.

The appellants, Zhang Jian Fan and Jian Ling, appealed their convictions and sentences for large-scale cannabis production offences under the Controlled Drugs and Substances Act.

They asserted a defence of honest but mistaken belief that their operation was properly licensed.

The trial judge rejected their credibility and found their mistake was one of law, not fact.

The Court of Appeal upheld the trial judge's finding that the appellants' belief was not credible and, alternatively, that their mistake was one of law regarding the scope and application of the licences, not a mistake of fact about the existence of a licence.

The Court also upheld the sentences, finding them proportionate, while setting aside victim surcharges.

The Crown appealed a summary conviction appeal judge's decision that reduced fines and eliminated a custodial sentence for environmental offences under the Canadian Environmental Protection Act (CEPA).

The Court of Appeal agreed with the appellate judge that the sentencing judge erred in principle by comparing the case to one involving deliberate environmental harm, thus upholding the elimination of the custodial sentence for the individual respondent.

However, the Court of Appeal disagreed with the reduction of fines, finding no error in the original sentencing judge's imposition of separate fines for each count, and restored the original fines for both the corporate and individual respondents.

The appellant, G.B., appealed convictions for sexual assault, sexual interference, and invitation to sexual touching against his granddaughter.

The trial judge rejected the appellant's evidence, including his attempt to manufacture a motive for the complainant to lie (a car loan dispute).

The Court of Appeal found no error in the trial judge's assessment of the appellant's evidence or her finding that the complainant had no motive to fabricate, though it cautioned against relying on an "apparent lack of motive" to bolster credibility.

The court applied the curative proviso, finding that any error did not overwhelm the trial judge's careful reasons.

The appeal was dismissed.

The appellants, condominium owners, appealed a permanent injunction issued by the Superior Court of Justice.

The injunction restricted the male appellant's communication and conduct due to a long-standing pattern of harassment, rude behavior, and interference with the condominium corporation's board and employees, in violation of the Condominium Act.

The Court of Appeal dismissed the appeal, affirming the application judge's jurisdiction, the appropriateness of the injunction under s. 134(3) of the Condominium Act, and the fairness of the proceedings despite the denial of an adjournment and the appellant's failure to file a proper affidavit.