Jonathan Dawe

The appellant, 2649360 Ontario Inc., appealed a motion decision that granted Grant Thornton Limited, as Trustee in Bankruptcy for Aiden Pleterski and AP Private Equity Limited, relief from forfeiture of a $500,000 real estate purchase deposit.

The deposit was paid by Pleterski using misappropriated investor funds for a property that was subsequently not purchased due to bankruptcy.

The motion judge applied the two-part test for relief from forfeiture (disproportionate to damages and unconscionable to retain) and ordered the deposit returned to the Trustee for the benefit of creditors.

The appellant argued the motion judge erred by considering creditor interests and by characterizing Grant Thornton as "innocent." The Court of Appeal dismissed the appeal, affirming that the motion judge was entitled to consider the full commercial context, including the source of funds and the benefit to creditors, and that a party causing breach is not absolutely barred from relief from forfeiture.

The court found no error in the discretionary decision.

The appellant, Marc Owusu-Boamah, appealed his conviction for administering a noxious substance and his global ten-year sentence following a kidnapping and extortion.

The trial judge found the appellant was a central player in a coordinated criminal scheme.

The Court of Appeal dismissed the conviction appeal, finding ample evidence to support the trial judge's conclusion that the drugging was part of the coordinated plan, making the appellant culpable under s. 21(1) or s. 21(2) of the Criminal Code.

However, the Court granted leave to appeal sentence and reduced the concurrent sentence for administering a noxious substance from six years to one year, as the original sentence exceeded the statutory maximum.

The global sentence remained unaffected.

This is an appeal from a conviction for sexual assault and a Crown appeal from sentence.

The appellant challenged the conviction based on alleged errors in the trial judge’s reasoning, including the *Browne v. Dunn* rule and misapprehension of evidence.

The Court of Appeal found no error in the trial judge's credibility findings.

The Crown appealed the two-year less a day conditional sentence, arguing it was unfit.

The Court declined to interfere with the sentence, finding it was an exceptional case justified by the offender's remorse, commitment to rehabilitation, insight, and the severe family consequences of incarceration.

Both the conviction appeal and the sentence appeal were dismissed.

This decision concerns a motion to quash an appeal of a "Transition Order" that converted a proposed class action into multiple joinder actions.

The moving parties (defendants) argued the Transition Order was interlocutory and thus appealable only to the Divisional Court with leave.

The responding parties (plaintiffs) contended the order was final in some aspects or, alternatively, so interrelated with other appeals (refusal of class certification and dismissal of action against certain parties) that the Court of Appeal should hear it under s. 6(2) of the Courts of Justice Act.

The Court of Appeal denied the motion to quash, finding a significant interrelationship between the appeals, which meant leave would have inevitably been granted, allowing the Court of Appeal to assume jurisdiction.

The appellants sought a declaration that their insurer had a duty to defend and indemnify them in an underlying action for misrepresentation related to a property sale.

The application judge dismissed the application, finding no duty to defend.

On appeal, the Court of Appeal found the application judge erred in relying on an "entire agreement" clause to deny coverage for negligent misrepresentation claims.

However, the Court upheld the dismissal on an alternative ground: the appellants' failure to provide prompt notice of the claim to the insurer, which constituted a breach of the policy and was not eligible for relief against forfeiture.

The Court of Appeal for Ontario issued a costs endorsement following an appeal that partially reduced damages awarded to the respondents at trial.

The appellants argued that the reduced award, falling below their pre-trial Offer to Settle, should significantly impact the trial costs.

The court, considering the divided success at trial, the unrealistic claims made by both parties, and the prolonged litigation, set aside the trial judge's costs award and ordered that the parties bear their own costs for the trial level.

The appellants were awarded agreed-upon costs for the appeal.

This Crown appeal addresses the timeframe within which an initial refusal to provide a roadside breath sample (ASD demand) can be retracted before constituting a criminal offence.

The Court of Appeal for Ontario reconciled the "same transaction" principle from R. v. Domik with the "immediately" requirement of the Criminal Code s. 320.27(1)(b).

The court held that Domik applies to ASD demands, but the "same transaction" window is limited by the time police can lawfully obtain a sample "immediately," considering operational time and unusual circumstances, as interpreted by R. v. Breault.

The trial and summary conviction appeal judges erred in law by not properly applying these constraints.

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

The appellants, Wesley Moore and St. Jacobs Carpenter House Inc., appealed an order requiring them to cease operating an unlicensed retirement home.

The core issues were whether their facility met the statutory definition of a "retirement home" under the Retirement Homes Act, 2010, specifically regarding the provision of "care services" (meals and drug administration), and whether the application judge erred in finding an abuse of process or in ordering the cessation of operations.

The Court of Appeal upheld the application judge's findings, confirming that the facility provided at least two care services, including a broad interpretation of "administration of a drug" to encompass assistance.

The court also rejected the abuse of process argument and affirmed the judge's power to issue a cease and vacate order under the Act.

The appeal was dismissed with costs.

The insured property owner appealed the dismissal of its claim for coverage following a wall collapse, while the insurer appealed the finding of coverage for a subsequent arson fire at the same vacant building.

The Court of Appeal dismissed both appeals.

The wall collapse was not proven to be a fortuitous event.

For the fire loss, the insurer was bound by promissory estoppel preventing reliance on a vacancy exclusion, and its unilateral attempt to amend the policy to exclude arson was invalid under s. 124 of the Insurance Act for lack of written consent.

The Crown appealed the acquittal of the respondent on a sexual assault charge.

The appeal argued that the trial judge erred in analyzing the complainant's capacity to consent and subjective consent, specifically by misapplying the test for capacity and failing to consider all evidence, and by taking an "all or nothing" approach to subjective consent.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's application of the G.F. framework for capacity to consent or in his assessment of subjective consent, noting that a trial judge is not required to explicitly address every item of evidence.

The appellant appealed convictions for sexual assault and uttering threats, raising grounds of inadequate trial interpretation and ineffective assistance of counsel.

The Court of Appeal found that while interpretation issues were minor, trial counsel's failure to investigate and utilize a surreptitious audio recording of the complainant's conversation, which contradicted her testimony on a key credibility point, constituted ineffective assistance.

This failure, combined with the trial judge's misapprehension of evidence, rendered the verdict unreliable.

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

The appellant, Gordon Morin, appealed his conviction and sentence for multiple counts of abuse against his domestic partner.

The Court of Appeal for Ontario allowed the conviction appeal, ordering a new trial.

The trial judge erred by improperly using the complainant's prior consistent text messages as corroborating her in-court testimony and contradicting the appellant's evidence, in violation of the hearsay rule and the rule against self-corroboration.

The trial judge failed to instruct herself on the permissible and impermissible uses of these statements, which was critical in a case turning on credibility.

This is an appeal from a disposition of the Ontario Review Board (ORB) concerning an individual found not criminally responsible on account of mental disorder (NCRMD) for uttering threats and possessing a weapon.

The ORB upheld a detention order, finding the appellant remained a significant threat to public safety.

The appellant challenged the ORB's finding of significant threat, arguing the evidence did not support it under the Winko test, and that the Board erred by not granting a conditional discharge.

The Court of Appeal dismissed the appeal, finding no fault with the ORB's comprehensive analysis of the Winko test and its decision not to grant a conditional discharge given the appellant's history of substance abuse, medication non-compliance, and aggression following a previous conditional discharge.

The appellant, convicted of multiple firearms offences, appealed his convictions on two grounds: misapprehension of evidence by the trial judge regarding forensic testing, and unreasonable verdicts due to the circumstantial evidence not eliminating the possibility of another person hiding the guns.

The Court of Appeal found the trial judge's misapprehension of evidence was not material to the conviction.

It also found the verdicts were reasonable, as the inference of the appellant's knowledge and control over the hidden firearms was available given his operation of the studio and the nature of the hidden items.

The appeal was allowed in part, quashing the conviction on one count of careless storage of a firearm (Count 16) and entering an acquittal, but otherwise dismissed.

This appeal concerned the interpretation of two easements: a 15-foot wide right-of-way for ingress and egress, and a right-of-access to a well.

The appellants (servient tenement owners) sought declarations that the right-of-way did not include vehicular turnaround activity and that the well access was null and void.

The respondents (dominant tenement owners) sought declarations affirming their rights, an injunction against obstructions, and damages.

The Court of Appeal dismissed the appeal, upholding the application judge's findings that the right-of-way included the turnaround area based on latent ambiguity and ancillary rights, and that the right-of-access to the well had not been extinguished.

The appellant, Chad Michael Kennedy, appealed his convictions for arson, criminal harassment, uttering death threats, possession of an explosive substance, disobeying a court order, and breaches of probation, as well as his global sentence of 28 months.

The appeal primarily focused on the reliability of eyewitness identification and alleged inconsistencies with video evidence regarding the arson charges.

The Court of Appeal found that the trial judge properly cautioned himself regarding eyewitness testimony and adequately grappled with the alleged inconsistencies, concluding the video quality was too poor to contradict the eyewitness account.

The court also dismissed the sentence appeal, finding no error in principle.

The appellant appealed his conviction for robbery with a firearm and his 7-year mandatory minimum sentence.

The conviction appeal grounds included inadequate jury instructions on eyewitness identification (including recognition and in-dock ID), insufficient caution on after-the-fact conduct, and inflammatory Crown closing remarks.

The sentence appeal grounds challenged the finding that the unrecovered gun was a "firearm" and the imposition of a consecutive sentence.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no reversible errors given the trial context and the evidence.

The appellant, Terrance Nahmabin, appealed a finding of Not Criminally Responsible on account of Mental Disorder (NCRMD) for various offences.

The Court of Appeal for Ontario found procedural deficiencies in the original NCRMD proceedings, including an improper plea, lack of inquiry into the appellant's understanding of the NCRMD consequences despite his expressed distress, and insufficient reasons from the trial judge explaining the application of s. 16 of the Criminal Code.

The court emphasized the strict requirement for procedural fairness in NCRMD cases due to the serious liberty deprivations involved.

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

The appellant appealed convictions for drug and proceeds of crime charges, alleging ineffective assistance of trial counsel regarding a s. 8 Charter application challenging the validity of a search warrant.

The appeal focused on counsel's failure to challenge the accuracy of GPS tracking data relied upon by police and counsel's agreement to allow the Crown to introduce amplification evidence from the affiant.

The Court of Appeal dismissed the appeal, finding no prejudice from counsel's tactical decisions and upholding the trial judge's conclusion that there were sufficient grounds for the search warrant.

Thomas Adderley appealed his conviction for sexual assault and sought leave to appeal his 18-month custodial sentence.

The appellant argued that the trial judge erred by applying uneven scrutiny to the evidence, failing to properly apply the law, and overlooking an absence of forensic evidence.

Regarding the sentence, the appellant contended that the trial judge erred in finding unprotected sexual intercourse as an aggravating factor.

The Court of Appeal dismissed the appeal from conviction and the appeal from sentence, finding no error in the trial judge's credibility findings or the treatment of the aggravating factor.