Jill M. Copeland

The Court of Appeal for Ontario addressed outstanding issues in a motion brought by the respondent seeking orders under ss. 683(1)(a) and (b) of the Criminal Code in support of an anticipated fresh evidence application.

The court considered two primary issues: (1) whether the Executive Legal Officer of the Superior Court should be required to provide a will-say statement and submit to cross-examination regarding communications with trial Crown counsel; and (2) whether counsel for the respondent could communicate with the now-retired trial judge to obtain clarification on matters raised in the trial judge's emails.

The court dismissed the motion for a will-say and cross-examination of the Executive Legal Officer, finding that while the communications were not themselves privileged, the risk of inadvertently disclosing matters subject to judicial immunity outweighed the limited probative value of the evidence sought.

The court also directed that neither counsel could communicate with the retired trial judge, holding that judges cannot waive judicial immunity and that the inquiries sought would necessarily disclose matters covered by judicial immunity.

This appeal concerns the certification of a class proceeding and the granting of leave to proceed with a secondary market misrepresentation claim under the Securities Act.

The respondent, a former shareholder of Akumin Inc., sought to certify a class action on behalf of purchasers of Akumin securities (common shares and secured notes) alleging misrepresentations in financial statements and seeking relief under both statutory provisions and common law negligence.

The appellants challenged both the leave order and the certification order, arguing that certain disclosures did not constitute "public corrections" that an efficient market requirement applied to secondary market claims, and that common law negligence claims should not be certified alongside statutory claims.

The Court of Appeal upheld the motion judge's decisions, clarifying the law on public corrections, rejecting an efficient market requirement, and confirming that common law claims can be certified alongside statutory claims.

The appellant was convicted of second-degree murder for shooting and killing Ryan Kabuya-Ntumba during a confrontation in Ottawa's ByWard Market on July 1, 2019.

The central issue at trial was whether the appellant acted in self-defence.

The jury rejected the self-defence claim and convicted the appellant, who was sentenced to life imprisonment with no parole eligibility for 14 years.

On appeal, the appellant sought to introduce fresh evidence from an eyewitness and challenged the trial judge's jury instructions on self-defence and post-offence conduct.

The majority dismissed the motion to admit fresh evidence, finding it not reasonably capable of belief, and dismissed both the conviction and sentence appeals.

Justice Copeland dissented on the fresh evidence issue, concluding the evidence was reasonably capable of belief and warranted a new trial.

The appellants appealed an application judge's decision resolving multiple issues regarding an estate and family marina business, including the repayment of a loan and the payment of occupation rent.

The Court of Appeal found no palpable and overriding errors in the application judge's findings of fact or her award of costs.

The appeal was dismissed, save for a minor variation to the formal judgment to clarify that only the estate, not the appellant personally, was liable for the loan repayment.

Following the dismissal of both the appellant's appeal and the respondent's cross-motion for leave to appeal costs, the parties made written submissions on costs.

The self-represented respondent sought approximately $40,000 in costs, claiming lost remuneration as a contractor.

The appellant argued for no costs due to divided success.

The Court of Appeal ordered no costs of the appeal, finding that success was divided and noting the additional time incurred due to the respondent's late filing of the cross-motion.

The Court of Appeal for Ontario dismissed Baba Ouedraogo’s appeal from sentence, except to vacate the sentencing judge’s recommendation for phallometric testing.

The appellant challenged the imposition of a second Long Term Supervision Order (LTSO), the finding of substantial risk of reoffence, the imposition of lifetime prohibition orders, and the recommendation for phallometric testing.

The court found no error in the sentencing judge’s approach to issue estoppel, risk assessment, or the imposition of prohibition orders, but held that a recommendation for phallometric testing was not legally available without the offender’s consent.

The appellant, Nathalie Xian Yi Yan, sought a panel review of a motion judge’s decision dismissing her motion for a stay pending appeal.

The underlying appeal was from an order declaring her a vexatious litigant under section 140 of the Courts of Justice Act.

The Court of Appeal dismissed the review motion, holding that Yan had not obtained leave to bring the motion as required by the vexatious litigant order and the statute.

The court reiterated that a person declared a vexatious litigant may file a notice of appeal without leave, but requires leave for any motions in the appeal.

The court found no error in the motion judge’s decision and awarded costs to the College.

The Court of Appeal for Ontario dismissed the appeal of Ilinka Armstrong and Dean Tully from an order removing them as estate trustees for the estate of Dan Muscat and denied leave to appeal a related costs order.

The court found that Armstrong was in a conflict of interest due to her romantic relationship with a potential purchaser of the estate’s business, failed to disclose this conflict, and did not undertake proper due diligence.

The court upheld the application judge’s decision to remove the trustees and order them to pay costs personally.

The Court of Appeal for Ontario dismissed the Crown's appeal from a directed verdict of acquittal on a charge of accessory after the fact to murder.

The court found that the evidence did not support leaving the charge to the jury on the basis of wilful blindness, as there was no basis for a reasonable jury to find that the respondent knew or was wilfully blind to the fact that the victim had died.

The court also held there was no air of reality to the included offence of being an accessory after the fact to attempted murder, as the evidence established the victim died and there was no live issue as to causation.

The Court of Appeal for Ontario dismissed the Crown's appeal from a directed verdict of acquittal for Abdullahi Osman, who was charged as an accessory after the fact to murder.

The court held that, although attempted murder can in rare cases be an included offence to murder, there was no air of reality to the included offence of being an accessory after the fact to attempted murder in this case, as the evidence was clear that the principal's acts caused the victim's death.

The decision clarifies the law on included offences, the requirements for accessory after the fact liability, and the rare circumstances in which attempted murder may be left to a jury as an included offence where the victim dies.

The Court of Appeal for Ontario dismissed Milan Janic’s appeal from a motion to change child support and expense sharing, upholding the motion judge’s findings on imputed income, disclosure, and conflict of interest.

The court found no error in the treatment of financial evidence, the imputation of income, or the application of federal law, and awarded costs to the respondent.

The Court of Appeal for Ontario dismissed the appeal by Jagtar Dhaliwal and Voxx Sports Inc. from a Superior Court decision upholding an arbitrator’s refusal to recuse himself for bias.

The appellants alleged both a reasonable apprehension of bias and actual bias, based on the arbitrator’s prior involvement with respondents’ counsel and comments about the veracity of Mr. Dhaliwal’s affidavit.

The Court found no merit in either claim, holding that the arbitrator’s conduct did not give rise to a reasonable apprehension of bias and that adverse credibility findings do not, on their own, establish actual bias.

The appeal was dismissed with costs to the respondents.

The Court of Appeal for Ontario dismissed the appeal by the franchisor and its associates from a trial judgment granting rescission and damages to the franchisee under the Arthur Wishart Act (Franchise Disclosure), 2000.

The court upheld the trial judge’s findings that the statutory exemption from disclosure did not apply, that the franchisee validly rescinded the franchise and ancillary agreements, and that the franchisee was entitled to statutory compensation and substantial indemnity costs.

The court found no error in the trial judge’s assessment of damages or costs.

The Court of Appeal for Ontario quashed the appeal of Michael Paul Duffy, finding that the order under appeal was interlocutory rather than final.

The order in question enforced a right of first refusal for the sale of the matrimonial home, as previously agreed in a consent order.

The court held that the order did not determine the substantive rights of the parties but merely implemented the final consent order, and thus an appeal lay to the Divisional Court with leave, not to the Court of Appeal.

Costs were awarded to Leona Duffy.

The appellant, M.R., appealed from a Superior Court order upholding the Consent and Capacity Board’s finding that he lacked capacity to consent to treatment.

The respondent, Dr. Achal Mishra, moved to adduce fresh evidence showing that M.R. was found capable of consenting to treatment in July 2024 and has maintained capacity since.

The Court of Appeal found the appeal to be moot, as there was no longer a live issue, and dismissed the appeal, admitting the fresh evidence and making no order as to costs.

This costs endorsement follows the dismissal of the appellant’s appeal.

The Court of Appeal for Ontario considered the parties’ written submissions on costs.

The respondents sought full recovery of $19,300.40, citing the appeal as unnecessary and the appellant’s arguments as unrelated to the application judge’s reasoning.

The appellant submitted that $5,000 would be reasonable and proportionate, noting their own bill of costs was $15,171.20.

The court found no basis for an elevated costs award but determined the appellant’s suggested amount was too low.

The respondents were awarded $11,500, all-inclusive, on a partial indemnity basis.

The Court of Appeal for Ontario dismissed the appeal from the motion judge’s order dismissing an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act.

The court found that the expression at issue—a private comment between spouses—did not relate to a matter of public interest.

The court also denied leave to appeal the motion judge’s costs order, upholding the finding that the self-represented respondent had not established a basis for costs.

The decision affirms the high threshold for overturning discretionary costs decisions and clarifies the application of the public interest requirement in anti-SLAPP proceedings.

The Court of Appeal for Ontario dismissed Susan Hutchison’s appeal from an order requiring her to pay spousal support to Matthew Bosrock and her application for leave to appeal the trial judge’s costs award.

The court found no error in the trial judge’s assessment of income, consideration of mortgage repayments, or imputation of income.

The court also upheld the costs award, finding that the trial judge properly considered the divided success at trial and the time spent on the main issues.

The Court of Appeal for Ontario dismissed the appeal of Canguard Group Limited and others from a partial summary judgment order declaring a mortgage on the respondent’s property void as a fraudulent conveyance.

The court found no error in the motion judge’s reliance on the evidentiary record, including affidavits, and held that the appellant’s failure to respond or provide discovery justified summary judgment.

The court also rejected arguments regarding the scope of the order and the appropriateness of partial summary judgment.

The appellant, Baba Ouedraogo, appealed the imposition of a long-term supervision order following convictions for two serious sexual assaults on strangers.

The Court of Appeal for Ontario found that the sentencing judge’s assessment, including expert evidence, justified the long-term offender designation and dismissed the appeal.