Ian V.B. Nordheimer

The Justice Centre for Constitutional Freedoms (JCCF) appealed a motion judge's order requiring it to pay $156,461.99 in costs following an unsuccessful interlocutory injunction motion brought by students against Seneca College's COVID-19 vaccination policy.

The Court of Appeal found the costs order fundamentally flawed because the motion judge failed to determine if the litigation was public interest litigation and did not apply the correct legal tests for awarding costs against a non-party (the "person of straw" test or abuse of process).

The Court clarified that fundraising or promoting a case on a website does not constitute abuse of process.

The Court also stated that JCCF's refusal to disclose whether it was indemnifying the students was a relevant consideration for costs.

The appeal was allowed, the costs order set aside, and the matter remitted to the motion judge for a fresh determination.

The appellant, Steven Browne, sought leave to appeal a 14-year sentence imposed following guilty pleas to attempted murder with a firearm and discharging a firearm with intent to wound.

He argued the sentencing judge erred by exceeding the Crown's suggested range and by failing to give adequate credit for collateral consequences (Suter factors), disadvantaged background (Morris factors), and harsh pre-sentence custody conditions (Duncan factors).

The Court of Appeal dismissed the appeal, finding no error in principle or unfitness in the sentence, and that the sentencing judge properly considered the relevant factors without disproportionately reducing the sentence.

The appellant, a Markham city councillor, appealed the dismissal of her anti-SLAPP motion (pursuant to s. 137.1 of the Courts of Justice Act) against an action brought by a developer.

The developer's action alleged defamation and other torts arising from the councillor's opposition to a development and her report to the police regarding an incident with the developer.

The Court of Appeal found that the motion judge erred by adopting an overly narrow interpretation of "expression relating to a matter of public interest" and by conflating the stages of the s. 137.1 test.

The Court clarified that reporting concerns to the police and a city councillor's actions related to their public duties are matters of public interest, warranting a broad interpretation at the initial stage of the anti-SLAPP analysis.

The appeal was allowed, and the matter was remitted to a different judge to consider the second stage of the s. 137.1 test.

Following the dismissal of an appeal, the Court of Appeal for Ontario considered the appellant's claim for costs on a substantial indemnity scale.

The court found no exceptional circumstances to justify substantial indemnity costs and instead fixed the appellant's costs on a partial indemnity scale in the inclusive sum of $15,000.

The appellants appealed a motion judge's order striking their statement of claim in its entirety without leave to amend, in a product liability action concerning an implanted medical device (Essure).

The Court of Appeal set aside the order, granting leave to amend the statement of claim.

The court clarified that leave to amend should only be denied in the clearest of cases and that, in product liability claims, identifying a specific manufacturing or design defect is not always required at the pleading stage to disclose a cause of action.

The Crown appealed the conditional sentence imposed on the respondent for serious firearms and drug offences, including possession of a prohibited firearm, pointing a firearm, and cocaine trafficking.

The Court of Appeal found that the sentencing judge erred in principle by misunderstanding the "true crime" characterization of the offences and by misapprehending mitigating factors.

The court emphasized that possession of a loaded handgun is a serious offence normally attracting a penitentiary term, and the mitigating factors in this case were not strong enough to warrant a conditional sentence.

The appeal was allowed, the original sentences were set aside, and a total effective sentence of four and one-half years of imprisonment was imposed.

C.H. appealed convictions for mischief under $5000, uttering threats, common assault, and sexual assault committed against his former fiancée.

The appeal raised several grounds, including the trial judge's treatment of character evidence, application of the rule in R. v. W.(D.), evaluation of motive and delay in reporting, treatment of exculpatory evidence for sexual assault, and misuse of a prior consistent statement.

The Court of Appeal dismissed the appeal, finding no reversible error in most grounds.

While acknowledging an error in the trial judge's hypothetical comment on exculpatory evidence for sexual assault and the misuse of a prior consistent statement, the court concluded these errors did not contribute to the convictions or warrant setting them aside.

The appellant, Ahmad Mohammad (also known as Ahmad Yousef), brought three appeals from Superior Court orders dismissing his actions under Rule 2.1.01 of the Rules of Civil Procedure.

The Court of Appeal considered dismissing the appeals and revoking the appellant's fee waivers under the Administration of Justice Act.

The court found the proceedings to be frivolous, vexatious, and an abuse of process, lacking intelligible grounds or causes of action.

The panel review motions for two appeals (McMaster University and Chaimowitz) were dismissed under r. 2.1.02, and the third appeal (Google) was dismissed under r. 2.1.01 for failure to perfect.

The court also revoked the appellant's fee waivers and prohibited further fee waiver requests without judicial permission.

No costs were awarded.

The appellants, U.K. and R.P., appealed their convictions for sexual assault, arguing the trial judge erred in jury instructions regarding fabrication as post-offence conduct and the application of the W.(D.) principles.

The Court of Appeal found that the trial judge erred by instructing the jury on fabrication of trial evidence without independent evidence, and by providing a deficient fabrication instruction that failed to distinguish between disbelieved and fabricated evidence, explain independent evidence, or require consideration of alternative explanations.

Furthermore, the trial judge erred in the W.(D.) instruction by conflating the appellants' evidence and treating defence evidence as an all-or-nothing proposition.

These errors were deemed prejudicial, going to the heart of credibility assessment and the burden of proof.

The court declined to apply the curative proviso.

The appellant, a young person, appealed convictions for sexual assault and unlawful confinement.

The Court of Appeal allowed the conviction appeal and ordered a new trial, finding that the trial judge's reasons were insufficient as they did not provide an adequate pathway to support the convictions, particularly regarding the appellant's role as a party to the offences.

The trial judge's instruction on party liability under section 21 of the Criminal Code was found to be erroneous, and the reasons failed to specify how the appellant aided or abetted the commission of the offences.

The appellant, D.G., appealed his conviction for sexual assault.

The trial judge had found significant credibility issues with the complainant's evidence, including inconsistencies and missing journals, but still convicted.

The Court of Appeal found the trial judge's reasons inadequate for failing to explain how he could believe the complainant's evidence despite these identified credibility problems.

The appeal was allowed, the conviction set aside, and a new trial ordered.

The appellant, an inmate, appealed a Superior Court decision dismissing his action against the Commissioner of the Correctional Service of Canada under Rule 2.1.01 of the Rules of Civil Procedure.

The original action alleged deliberate power cuts to his cell and sought damages and an order for an extension cord.

The Superior Court dismissed the action as frivolous, vexatious, and an abuse of process, noting jurisdictional issues and a lack of cause of action, and ruled against the admissibility of the appellant's affidavit evidence.

The Court of Appeal upheld the dismissal, finding no clear error or misdirection by the motion judge, and affirmed that Rule 2.1.01 is intended for summary dismissal of such claims, precluding the need for affidavit evidence.

The appellant, Mostafa Alkhalil, appealed his conviction for sexual assault and unlawful confinement, and sought leave to appeal his six-year sentence.

The Court of Appeal dismissed both the conviction appeal and the sentence appeal.

The court found no misapprehension of evidence by the trial judge regarding the victim's testimony.

It affirmed that the trial judge correctly considered the appellant's creation of an expectation of trust and the victim's lack of consent as aggravating factors.

The sentence was deemed proportionate and consistent with sentencing principles for serious sexual offences involving vulnerable victims.

The appellant appealed his convictions for aggravated assault, dangerous operation of a motor vehicle, break and enter, and other offences.

He argued the trial judge erred in assessing exculpatory eyewitness identification evidence, accepting the testimony of a witness to whom he confessed, and dismissing a lost evidence application regarding a glove and mitten.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's assessment of the identification evidence, deferring to the credibility findings regarding the confession, and upholding the factual findings on the lost evidence application.

The appellant, Robert Collette, appealed a motion judge's order that, while striking out most claims under s. 137.1 of the Courts of Justice Act, allowed a claim for harassment and intentional infliction of emotional harm to proceed.

The core issue on appeal was whether a successful s. 137.1 motion requires dismissal of the entire action or permits dismissal of only specific claims.

The Court of Appeal found that, based on the motion judge's finding that the entire action was motivated to silence public interest expression, the entire action should have been dismissed.

The appeal was allowed, and the entire action was dismissed.

The appellant, Marvin Smith, appealed his dangerous offender designation and indeterminate sentence, imposed after pleading guilty to aggravated assault, intimidation of a justice system participant, and weapon possession.

The central issue was whether the sentencing judge erred in interpreting "pattern of persistent aggressive behaviour" under s. 753(1)(a)(ii) of the Criminal Code, specifically regarding a six-year gap in his criminal history and the admission of hearsay evidence.

The Court of Appeal dismissed the appeal, finding that the sentencing judge correctly concluded the appellant exhibited a pattern of persistent aggressive behaviour, notwithstanding the gap, and that the indeterminate sentence was appropriate given the high risk of reoffending and intractability.

The respondent, Nordik Windows Inc., brought a motion to quash an appeal by the appellants, Aviva Insurance Company of Canada et al., arguing the underlying order was interlocutory and required leave to appeal to the Divisional Court.

Aviva contended the order was final as it determined a limitation period issue.

The Court of Appeal found the motion judge's order was interlocutory, as it did not finally determine the limitation period defence, but rather dismissed the motion without a final conclusion on that issue.

The appeal was therefore quashed.

The Business Development Bank of Canada (the bank) brought a motion to quash an appeal initiated by 170 Willowdale Investments Corp. (the appellant).

The appellant subsequently abandoned its appeal.

The court found that a contractual term between the parties entitled the bank to full indemnity costs.

Consequently, the bank was awarded its costs of the abandoned appeal in the amount of $19,791.95.

Sase Aggregate Ltd. appealed a lower court decision that largely dismissed its claims against Michelle Langdon, wife of a former pit manager who defrauded Sase of over $2.1 million.

Sase sought a constructive trust over the proceeds of sale of a property owned by Langdon, alleging knowing receipt, knowing assistance, and unjust enrichment.

The application judge found Langdon had no knowledge of the fraud and that Sase failed to properly trace its funds into the property, except for an admitted amount of $177,632.38.

The Court of Appeal dismissed Sase's appeal, upholding the application judge's findings that Sase failed to establish the elements for knowing receipt, knowing assistance, or to properly trace the bulk of the funds into the property, and that Langdon's legitimate sources of funds were adequately explained.

This appeal concerned the suitability of specific performance as a remedy in a failed real estate transaction.

The appellants (defendants) challenged the trial judge's order for specific performance, arguing that the property was not unique and that the corporate purchaser's intent was for investment, not personal use.

The Court of Appeal found that the trial judge erred by relying on inadmissible hearsay evidence regarding the corporate principal's (Mr. Lin's) intentions, as he did not testify and was not proven unavailable.

The court concluded that the corporate structure and expert evidence supported an investment purpose, making damages an adequate remedy.

The appeal was allowed, the specific performance order was set aside, and the issue of damages was remitted for a new trial.

The respondent's cross-appeal on costs was dismissed.