Janet Simmons

The appellant appealed the dismissal of her motion for leave to amend her statement of claim seeking Long-Term Disability (LTD) benefits and damages.

The motion judge denied leave, finding the proposed amendments sought to withdraw an admission regarding the timely filing of an LTD benefits application and to add a statute-barred request for relief from forfeiture.

The Court of Appeal found the motion judge erred in concluding the amendments withdrew a factual admission, clarifying that the appellant's factual admission remained, and the amendments merely provided particulars and sought an alternative legal conclusion (relief from forfeiture) arising from the same facts.

The Court also held that the request for relief from forfeiture was not a new, statute-barred claim.

The appeal was allowed, and leave to amend was granted.

This is a consolidated appeal from anti-SLAPP motions dismissing defamation actions.

The actions arose from tweets and an email suggesting the appellant's medical clinic discriminated against the LGBTQ community.

The motion judge dismissed both actions, finding the communications were fair comment.

The Court of Appeal found the motion judge erred regarding Evans-Bitten's fair comment defence, concluding there were grounds to believe malice would defeat it.

After conducting the public interest weighing, the Court found the public interest in allowing the appellant's action against Evans-Bitten to proceed outweighed the public interest in protecting her expression, given the substantial harm and low public interest in protecting gratuitous personal attacks.

However, the Court upheld the dismissal of the action against Kirkconnell and Smith, finding no grounds to believe their fair comment defence would fail due to recklessness.

The appellant appealed his convictions for sexual assault, uttering threats, and failing to comply with probation.

The appeal raised numerous grounds, including ineffective assistance of counsel, judicial bias, misapprehension of law, failures to assess credibility, non-disclosure, evidentiary inconsistencies, inappropriate limitation of amicus curiae, prejudicial media coverage, insufficient evidence, and Charter s. 11(b) issues.

The Court of Appeal reviewed the entire record and found no error, dismissing the appeal.

The appellant was convicted of child luring, invitation to sexual touching, possession of child pornography, accessing child pornography, and weapons dangerous, receiving a global sentence of 34 months.

On appeal, the appellant argued the sentence was unfit for a first offender with mitigating factors, and that the trial judge failed to resolve disputed aggravating factors.

The Court of Appeal agreed, finding the sentence unsupported due to unresolved aggravating factors.

The court substituted the sentence to 28 months (time served).

Additionally, the appellant successfully appealed overly broad terms of a s. 161 order regarding internet access, which the court directed the parties to amend by consent or the court would amend after two weeks.

The appellant appealed his sentence, arguing that the trial judge erred by imposing a "straitjacket" on the sentencing process by expressing a starting point for the sentence.

The Court of Appeal found no error, concluding that the trial judge carefully explained how a fit global sentence was reached, considering all mitigating and aggravating circumstances, and properly deducted credit for time served.

The appeal was dismissed.

The appellant, Jerome Derby, appealed his global sentence for firearm-related offences, including discharge of a firearm with intent to endanger life and possession of a firearm while prohibited.

He argued that the trial judge erred by imposing a consecutive sentence for possession while prohibited, having already considered this as an aggravating factor, which constituted double counting.

The Court of Appeal agreed, finding that the approach was erroneous and constituted double counting, and therefore allowed the appeal in part.

The appellant sought a reduction in his six-and-a-half-year sentence for possession of fentanyl for the purpose of trafficking.

He argued the trial judge failed to adequately consider his difficult upbringing, that the sentence was comparatively too high, and that the lack of cash seized indicated his motivation was addiction rather than profit.

The Court of Appeal found no error in the trial judge's reasons, noting the admitted quantity of fentanyl supported an inference of trafficking, including a financial motive, and that the sentence was within the appropriate range.

The appeal was dismissed.

The appellant appealed his convictions for sexual interference and sexual assault, and sought leave to appeal his sentence.

The appeal raised issues regarding alleged improper cross-examination by Crown counsel concerning the appellant's attraction to the complainant, and claims of uneven scrutiny of evidence by the trial judge.

The Court of Appeal found the cross-examination permissible given the specific circumstances of the case, which involved a non-physically forced relationship with an underage teenager.

The court also found no error in the trial judge's assessment of witness credibility or the fairness of the trial.

Regarding the sentence, the court affirmed that the six-year and six-month imprisonment for sexual interference was not demonstrably unfit, considering aggravating factors such as breach of trust, grooming, and the victim's age, consistent with sentencing principles for child sexual offences.

The conviction appeal was dismissed, and the sentence appeal was also dismissed.

The appellant, convicted of aggravated assault on his intimate partner and sentenced to seven years imprisonment, appealed both his conviction and sentence.

The Court of Appeal dismissed the conviction appeal, finding the evidence, including video footage, overwhelming and the defence of necessity lacking an air of reality.

The sentence appeal was also dismissed, as the court found the sentence fit given the egregious nature of the assault, despite the appellant's arguments regarding mitigating factors.

The court did, however, correct errors in the imposition of weapons prohibition orders under the Criminal Code.

This is an appeal from a sentence of 22 years, less presentence custody, imposed for grave crimes.

The appellant also sought to set aside a Sex Offender Information Registration Act (SOIRA) order.

The Court of Appeal found the trial judge's reasons to be error-free and the sentence fit.

The court also determined that the application to set aside the SOIRA order was not properly before it, directing the appellant to the Superior Court of Justice for a Canadian Charter of Rights and Freedoms remedy.

The appeal was dismissed.

The Court of Appeal for Ontario heard an appeal and cross-appeal concerning the interpretation of an easement.

The primary issue was whether an easement for "vehicular and pedestrian access and egress" included the right to park.

The application judge had ruled it did not.

The appellant (Friuli Long Term Care) argued the application was speculative and that parking rights were ancillary or an easement of necessity.

The cross-appellant (Primont (Castelmont) Inc.) sought an additional declaration regarding redevelopment.

The Court of Appeal dismissed both the appeal and the cross-appeal, affirming the application judge's finding that the easement did not include parking rights and that parking was a contractual matter.

The court also upheld the refusal of the additional declaration due to procedural issues.

This appeal concerned a family law application for child support and related relief.

The appellant mother challenged three aspects of the lower court's decision: the dismissal of her claim for retroactive child support from 2006-2013, the calculation of her share of s. 7 expenses based on household income, and the termination of child support at age 25.

The Court of Appeal dismissed the appeal, upholding the lower court's findings that the parties' property agreement constituted special provisions offsetting retroactive child support, that apportioning s. 7 expenses based on household income was reasonable given the circumstances, and that the discretionary determination of child support termination at age 25 was not arbitrary.

The court emphasized the deferential standard of review for financial disputes in family law.

A jury found the appellant, a private investigator, guilty of wilfully attempting to obstruct justice.

The trial judge sentenced him to 18 months' imprisonment and three years' probation.

The appellant appealed the conviction and sought leave to appeal the sentence.

The Court of Appeal dismissed the conviction appeal, finding no errors in the jury instructions regarding intent or reasonable doubt, or the use of the Code of Conduct for private investigators.

However, the Court granted leave to appeal the sentence, finding the trial judge overemphasized general deterrence and imposed a disproportionate sentence.

The Court substituted the imprisonment with a two-years-less-one-day conditional sentence, including 12 months of house arrest followed by a curfew, recognizing the appellant's first-offender status and the collateral consequence of losing his private investigator's license.

The appellants appealed the trial judge's dismissal of their action for damages against the City of Hamilton, which arose from a motorcycle accident caused by a pavement discontinuity.

The trial judge had found the City established a defence under the Municipal Act, 2001, by meeting Minimum Maintenance Standards (MMS).

The Court of Appeal found that the trial judge committed a palpable and overriding error in determining the height of the discontinuity, as the City failed to meet its onus to prove compliance with MMS.

The Court also found a palpable and overriding error in the trial judge's assessment of contributory negligence, attributing 100% fault to the respondent.

The appeal was allowed, and judgment was granted for the appellants.

The appellant appealed convictions for robbery-related offences and possession of stolen property.

The Court of Appeal found that the trial judge misapprehended material evidence regarding surveillance video, which was critical to the similar act evidence application.

This misapprehension led to a miscarriage of justice.

The appeal was allowed, and a new trial was ordered for all robbery-related counts, while the conviction for possession of stolen property was upheld.

The appellant appealed an order refusing to set aside a registrar's order dismissing her action as abandoned due to delay.

The Court of Appeal found that the motion judge erred by overlooking strong evidence that the respondents suffered no actual prejudice from the litigation delay or the delay in bringing the set-aside motion.

The respondents' conduct, including requesting a waiver of defence and later serving a statement of defence, belied their claims of prejudice.

The court emphasized that the absence of prejudice and the importance of deciding cases on their merits should take precedence.

The appeal was allowed, and the dismissal orders were set aside.

The appellant, Dov Markowich, appealed the dismissal of his motion for leave to bring a statutory cause of action against Lundin Mining Corporation under the Securities Act for alleged failure to disclose a material change, and for certification of a class action.

The motion judge dismissed both.

The Court of Appeal found the motion judge erred by adopting an overly narrow interpretation of "change in the business, operations or capital" and by resolving evidentiary conflicts prematurely.

The Court clarified that "change" should be interpreted broadly, and its magnitude is relevant to materiality, not to whether a change occurred.

The appeal was allowed, leave was granted for the statutory cause of action, and the issue of class certification was remitted to the Superior Court.

The appellant, S.B., appealed his adult sentence for first-degree murder, arguing the youth court judge erred in finding him the shooter, provided insufficient reasons, and failed to consider the presumption of diminished moral culpability for young offenders.

The Court of Appeal granted leave to appeal but dismissed the appeal, finding that while the youth court judge erred by not explicitly applying the presumption of diminished moral culpability, a de novo analysis applying the correct principles still resulted in the imposition of an adult sentence due to the seriousness of the offence and S.B.'s demonstrated maturity and lack of rehabilitation.

The moving party (guarantor) sought an extension of time to appeal a partial summary judgment of $1.8 million.

The motion judge's endorsement was not received by the parties for over 18 months.

The court granted a brief extension, finding that the guarantor demonstrated an intention to appeal within 30 days of receiving the endorsement, the delay was relatively brief and partly attributable to the court's delay and the lender's conduct, and despite remote chances of success on appeal, the interests of justice favored granting the extension given the unusual circumstances of the endorsement's late release.

This motion concerned a fresh application for a release order pending appeal after the applicant inadvertently failed to surrender on a specified date due to counsel's oversight.

The applicant, convicted of child luring and child pornography offences, promptly surrendered upon discovering the error.

While the Crown consented to release on previous terms, the Court of Appeal, exercising its discretion under s. 679(1) of the Criminal Code, imposed significantly higher financial penalties ($50,000 promise to pay and $20,000 deposit) to ensure public safety, given the nature of the offences and the lack of practical supervision for internet restrictions without sureties.