Jill M. Copeland

The appellant, Stayside Corporation Inc., appealed a summary judgment dismissing its action for specific performance of an agreement to purchase land.

The agreement was conditional on the severance of a 50-acre parcel, which the appellant was responsible for pursuing.

The motion judge found that the appellant had repudiated the agreement by failing to diligently pursue the severance application, despite multiple extensions.

The Court of Appeal upheld the motion judge's finding of anticipatory breach, applying the factors from Spirent Communications of Ottawa Limited v. Quake Technologies (Canada) Inc., and dismissed the appeal, awarding costs to the respondents.

The respondents brought a motion to quash the appellant's appeal, arguing that the order appealed from was interlocutory and therefore the proper appeal route was to the Divisional Court with leave.

The Court of Appeal agreed, finding that the order dismissing the appellant's motion to compel witness attendance for examination on jurisdictional grounds was interlocutory and did not finally dispose of any party rights.

As such, the Court of Appeal lacked jurisdiction, and the appeal was quashed.

The appellant appealed his convictions for two counts of sexual interference, arguing that the trial judge erred in admitting the complainant's text message as a spontaneous utterance.

The Court of Appeal found that the trial judge committed palpable and overriding errors and errors of law by improperly concluding that the parties agreed on the immediate timing of the text message, failing to consider the risk of "bootstrapping" (using the statement's content to prove its spontaneity), and not resolving conflicting evidence regarding the timing of the message.

The Court held that the text message was inadmissible hearsay and a prior consistent statement, and its improper admission materially affected the trial judge's assessment of the complainant's credibility on both counts.

The appeal was allowed, the convictions were quashed, and a new trial was ordered.

The applicant, Jacob Hoggard, sought release from custody pending an application for leave to appeal to the Supreme Court of Canada, having been convicted of sexual assault causing bodily harm and his appeal to the Court of Appeal for Ontario dismissed.

The Crown conceded the appeal was not frivolous and the applicant would surrender.

The motion judge focused on the public interest branch of the bail test, specifically public confidence.

The court found that the applicant's proposed leave application, concerning the legal test for the curative proviso under the Criminal Code, was weak as it raised a fact-specific application rather than an issue of national importance.

Given that the conviction had been unanimously affirmed by the Court of Appeal and leave to appeal to the Supreme Court is sparingly granted, the public interest in enforcing the sentence outweighed the applicant's interest in a second review.

The application for release was dismissed, without prejudice to reapply if leave to appeal is granted by the Supreme Court.

The appellant appealed his conviction for sexual exploitation.

The trial judge had convicted the appellant on a global count of sexual exploitation but acquitted on two specific counts of sexual exploitation and sexual assault.

The appellant argued the trial judge erred in relying on the Crown's case to reject his evidence without sufficient reasoned basis and failed to resolve material inconsistencies.

The Court of Appeal dismissed the appeal, finding the trial judge's reasons were considered and reasoned, adequately addressing credibility and reliability, and that alleged inconsistencies were either not material or properly resolved.

The Crown sought leave to appeal a conditional sentence of two years less a day, with house arrest, followed by three years of probation, imposed on the respondent for trafficking fentanyl.

The respondent, an addict, had sold a small quantity of fentanyl to a friend who subsequently died.

The Crown argued the sentence was demonstrably unfit, disproportionate, and failed to meet objectives of denunciation and deterrence.

The Court of Appeal granted leave but dismissed the appeal, finding the sentencing judge properly considered significant mitigating factors, including the respondent's extraordinary rehabilitation efforts, early guilty plea, remorse, and strict pre-trial bail conditions, concluding the sentence was not demonstrably unfit despite the gravity of the offence.

The appellant appealed his conviction and sought leave to appeal his sentence for offences related to the possession of a loaded handgun.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's determination of reasonable suspicion for investigative detention or the subsequent pat-down search of a satchel.

While the trial judge erred in considering discoverability under the first branch of the Grant analysis for a s. 10(b) Charter breach, the Court found this error did not impact the s. 24(2) analysis, as the evidence would still be admissible.

The Court granted leave to appeal sentence but dismissed the sentence appeal, agreeing that the trial judge erred in relying on a confidential informant tip for an aggravating factor but concluding this error did not impact the sentence imposed, which was at the low end of the range.

The appellant, found not criminally responsible for attempted murder, appealed the Ontario Review Board's disposition restricting his travel to Ontario.

He sought to expand travel privileges to Quebec for snowboarding.

The Court of Appeal upheld the Board's decision, finding it reasonable given the appellant's significant public safety risk and the potential difficulties in managing his condition or obtaining services out of province.

The court emphasized the deference owed to the Board's risk management decisions.

The appellant, W.M., appealed his conviction for sexual assault.

The central issue on appeal was whether the trial judge misapprehended the appellant's evidence regarding the complainant's state of consciousness at the start of the sexual contact.

The trial judge had found the appellant's evidence on this "crucial detail" to be "internally incompatible and exaggerated" and inconsistent with prior statements.

The Court of Appeal found no misapprehension of evidence by the trial judge, concluding that it was open to the trial judge to reject the appellant's evidence.

The appeal was dismissed.

The appellant was convicted of sexual assault and sentenced to 30 months' imprisonment.

On appeal, the court dismissed the appeal against conviction, finding that the trial judge correctly determined the appellant was reckless or wilfully blind as to consent, precluding the defence of honest but mistaken belief.

The court also dismissed the appeal against sentence, granting leave but finding the sentence was not demonstrably unfit and that the trial judge appropriately considered mitigating factors, imposing a sentence slightly below the typical range for forced penetration.

The appellant appealed his sexual assault conviction, arguing the trial judge erred in instructing the jury on the absence of DNA evidence (SAEK results).

The Court of Appeal found that while the initial instruction was potentially misleading, the subsequent correction and the charge as a whole adequately conveyed that reasonable doubt could arise from the absence of evidence, not just speculation.

The appeal was dismissed.

The appellant, found not criminally responsible due to mental disorder for attempted murder, appealed the Ontario Review Board's conditional discharge order.

The Board found he continued to pose a significant threat to public safety, rejecting his treating physician's low-risk assessment due to insufficient factual grounding and limited self-reports.

The Court of Appeal dismissed the appeal, affirming that the Board did not abdicate its inquisitorial role and its decision was reasonable and supported by the record.

This appeal addressed whether relief from forfeiture is available to an insured under a professional liability insurance policy when the claim was not reported to the insurer during the policy period.

The Court of Appeal affirmed the application judge's finding that the policy was a "claims made and reported" policy, meaning that reporting the claim within the policy period was a condition precedent to coverage.

As coverage was not triggered due to the late reporting, relief from forfeiture was not available.

The court clarified that the principle from *Stuart v. Hutchins* remains undisturbed by *Kozel v. Personal Insurance Co.*, maintaining the distinction between non-compliance with a condition precedent and imperfect compliance.

This is a costs endorsement following appeals and cross-appeals in three inter-related actions.

The Court of Appeal had previously granted Samuel Jacob Berkovits' appeal in the "Murder for Hire Action" and dismissed all other appeals and cross-appeals brought by Harold Gerstel and the Gerstel parties.

The parties were unable to agree on costs.

The court found the Berkovits parties to be more successful overall.

It ordered Harold Gerstel to pay $28,000 in all-inclusive costs to Samuel Jacob Berkovits for his unsuccessful cross-appeal in the Murder for Hire Action.

Additionally, the Gerstel parties were held jointly and severally liable to the Berkovits parties for $28,000 in all-inclusive costs for their unsuccessful appeal in the Interference Action.

No costs were awarded in the "Town Crier Action" due to divided success.

Maria Konstan and Samuel Jacob Berkovits had already settled their costs for the Murder for Hire appeal and trial.

The appellant, Steven Parker, appealed his sentence for making available child pornography, possession of child pornography, failing to comply with a probation order, and breaching a prohibition order.

The trial judge had imposed an eight-year sentence for making available child pornography and a concurrent six-year sentence for possession, along with concurrent two-year sentences for the breaches.

The Court of Appeal found that the trial judge erred in principle by failing to consider parity with similar sentences and by not applying the jump principle.

The Court reduced the sentence for making available child pornography to six years and for possession to four years, and adjusted pre-trial custody credit.

The appellant, found not criminally responsible due to mental disorder, appealed the Ontario Review Board's disposition.

The Board had rejected both a conditional discharge and a community living clause, despite the hospital's recommendation for the latter for therapeutic and practical reasons.

The Court of Appeal found the Board erred in rejecting the inclusion of a community living clause, as it was deemed therapeutically beneficial and practically necessary for the appellant's progress and access to appropriate care.

The appeal was allowed to vary the disposition to include the community living provision, while upholding the Board's decision against a conditional discharge.

The Crown appealed a $7,500 fine imposed on a corporate defendant for an Occupational Health and Safety Act violation, arguing the lower courts erred in assessing the corporation's size and applying the parity principle between individual and corporate offenders.

The Court of Appeal allowed the appeal, finding that the lower courts incorrectly restricted consideration of the corporation's economic activity to the local operation and improperly relied on sentencing precedents for individuals.

The fine was increased to $40,000.

Paramedics Christopher Marchant and Steven Snively were convicted of failing to provide the necessaries of life to a shooting victim.

They appealed their convictions, arguing a flawed analytical approach, insufficient/contradictory reasons, and misapprehension of evidence by the trial judge.

The Crown sought leave to appeal their 18-month conditional sentences, requesting custodial terms.

The Court of Appeal dismissed both the conviction appeals and the Crown's sentence appeals, upholding the trial judge's findings that the paramedics' actions constituted a marked departure from the standard of care and that the conditional sentences were fit.

The appellant, Nicholas Jenkins, appealed his conviction for drug trafficking and possession for the purpose of trafficking.

The appeal centered on the trial judge's error in admitting lay opinion evidence from five police surveillance officers, who opined that the appellant's observed conduct was consistent with drug trafficking.

The Court of Appeal found this evidence inadmissible as neither expert nor proper lay opinion.

The court declined to apply the curative proviso, emphasizing the heightened risk of prejudice in a jury trial, the prominence of the inadmissible evidence, and the lack of an overwhelming case against the appellant.

A new trial was ordered.

The appellant appealed an order dismissing his action and striking his amended statement of claim.

The motion judge had concluded that the action was outside the Superior Court's jurisdiction and that the statement of claim disclosed no reasonable cause of action.

The Court of Appeal upheld the dismissal, agreeing that the Divisional Court had exclusive jurisdiction to hear the issues raised, as the action fundamentally concerned the enforcement of statutory powers subject to judicial review, not a matter for the Superior Court.