Joseph Romano De Luca

The moving party brought a motion for leave to appeal a prior decision of Bezaire J. The Divisional Court dismissed the motion for leave to appeal without costs.

The applicant, Nicholas Rizkallah, sought various capacity assessments of the respondent, Michel George Rizkallah, including an interRAI Home Care assessment and assessments regarding Michel’s ability to grant/revoke a power of attorney, make a will, and instruct counsel.

The court declined to order the requested assessments, finding that the evidence did not justify further intrusion, that Michel’s wishes and preferences were sufficiently before the court, and that the assessments were not necessary to decide the issues on the application.

The court emphasized the role of s. 3 counsel under the Substitute Decisions Act, 1992, and the importance of respecting the dignity and legal rights of vulnerable persons.

The moving party brought a motion for leave to appeal the order of Perfetto J. dated July 18, 2023.

The Divisional Court dismissed the motion for leave to appeal and ordered that there be no costs for or against any party.

The defendants moved for summary judgment to dismiss the plaintiff condominium corporation's action, which included claims for unpaid common fees, an underfunded reserve fund, and breach of an oral contract regarding legal fees.

The court granted summary judgment dismissing the claims for unpaid common fees (due to being statute-barred under the Limitations Act) and the oral contract for legal fees (finding no binding agreement due to lack of consensus and consideration).

However, the motion for summary judgment was dismissed for the claim regarding the underfunded reserve fund, as the court found a genuine issue requiring a trial and confirmed the condominium corporation's standing to pursue this claim on behalf of unit-owners.

This decision concerns the costs awarded following a successful motion by Mercedes-Benz Canada Inc. to strike the plaintiff's statement of claim for failing to disclose a reasonable cause of action and being frivolous/vexatious.

The court fixed costs at $25,603.51, payable by the plaintiff to Mercedes-Benz Canada Inc. The court rejected the plaintiff's arguments that Mercedes-Benz Canada Inc. delayed in bringing the motion and that the plaintiff's impecuniosity warranted a significant reduction in costs.

The court applied Rule 49.10, awarding Mercedes-Benz Canada Inc. partial indemnity costs up to its offer to settle date and substantial indemnity costs thereafter, finding its "walk-away" offer to be a valid compromise in the context of a motion to strike.

The defendant Mercedes-Benz Canada Inc. moved to strike the plaintiff's statement of claim against it without leave to amend.

The plaintiff alleged that his identity was stolen and used in a 'straw buy' of a luxury vehicle, and claimed Mercedes was liable in negligence, vicarious liability, and waiver of tort for the actions of its franchisee.

The court found that the statement of claim failed to plead material facts to support a duty of care, breach, causation, or compensable damages in negligence, nor did it support vicarious liability or an agency relationship.

The court struck the claim against Mercedes without leave to amend and dismissed the action against it.

The applicant sought an order of possession for his property, which was initially expected to be unopposed by the respondent.

The respondent, who is the alleged complainant in criminal charges against the applicant, appeared unrepresented.

After amicus counsel was appointed for the respondent, the court expressed significant concerns about its jurisdiction to grant the order, the lack of a cited statutory or rule basis for the application, and the potential for civil proceedings, especially with costs sought, to intimidate an unrepresented complainant in a domestic/sexual assault case.

The court viewed such an application as potentially an "end run" around the criminal court's jurisdiction.

For these reasons, the court declined to make the requested order and adjourned the matter.

Two competing applications were brought seeking the interpretation of a commercial lease between a tenant operating a nutritional supplement store and a landlord.

The landlord alleged the tenant breached the lease and a restrictive covenant in favour of another tenant by preparing made-to-order protein shakes, selling weight loss products, and operating a juice bar.

The court found that the lease did not permit the tenant to prepare or mix shakes on-site, constituting a breach.

However, the tenant was permitted to sell weight loss products, and there was insufficient evidence that it operated a juice bar.

A permanent injunction was granted restraining the tenant from selling on-site prepared beverages.

Two competing applications were brought seeking the interpretation of a commercial lease between a tenant operating a nutritional supplement store and a landlord.

The landlord alleged the tenant breached the lease and a restrictive covenant in favour of another tenant by preparing made-to-order protein shakes, selling weight loss products, and operating a juice bar.

The court found that the lease did not permit the tenant to prepare or mix shakes on-site, constituting a breach.

However, the tenant was permitted to sell weight loss products, and there was insufficient evidence that it operated a juice bar.

A permanent injunction was granted restraining the tenant from selling on-site prepared beverages.

The appellant appealed his nine-year sentence, arguing it should be reduced to six years based on parity with his co-accused, whose sentence was reduced by the Court of Appeal in a previous decision.

The Court agreed that parity was central to the original joint submission.

While the appellant shared some mitigating factors with the co-accused, such as rehabilitation and cooperation with authorities, other factors did not apply.

The appeal was allowed in part, and the sentence was reduced from nine to eight years.

The appellant appealed his conviction and sentence, arguing that the trial judge lacked jurisdiction over his trial.

The Court of Appeal dismissed the appeal, finding the appellant's jurisdictional argument to be incorrect.

The appellant appealed his conviction for firearms offences, arguing the trial judge erred in refusing a mistrial.

After convicting the appellant but before sentencing, the trial judge realized he had concurrently presided over a preliminary inquiry in an unrelated attempted murder case where the appellant testified as an alleged victim.

The trial judge granted a mistrial in the preliminary inquiry but refused one in the appellant's trial.

The Court of Appeal allowed the appeal and ordered a new trial, finding that a reasonable person would apprehend that the trial judge may have been unconsciously influenced by the evidence from the preliminary inquiry, particularly regarding voice identification and wiretap evidence.

The appellant appealed his conviction for sexual assault, arguing the trial judge erred in finding no air of reality to the defence of honest but mistaken belief in consent, misapprehended evidence, and improperly relied on the complainant's demeanour.

The Court of Appeal dismissed the appeal, finding the trial judge properly instructed himself on credibility, correctly concluded the appellant knew the complainant was not consenting, and made no reversible errors in assessing the evidence or demeanour.

The appellants, a truck driver and a trucking company, were convicted of possessing invasive fish without a licence after entering Canada with shipments of live invasive fish.

The summary conviction appeal judge ordered a new trial for the corporate appellant on the issue of identity and varied the driver's sentence.

Both appellants sought leave to appeal to the Court of Appeal.

The corporate appellant argued the appeal judge should have entered an acquittal based on an unreasonable verdict, while the driver argued the courts below erred in assessing his due diligence defence.

The Court of Appeal denied leave to appeal for both, finding no errors of law or issues of general importance.

The appellant appealed his convictions for robbery, possession of a weapon for a dangerous purpose, and breach of probation arising from a drug transaction.

The trial judge had stayed an aggravated assault charge under the Kienapple principle.

The Court of Appeal quashed the robbery conviction but applied section 686(1)(b)(i) of the Criminal Code to dismiss the appeal by lifting the stay and entering a conviction for aggravated assault.

The court upheld the trial judge's rejection of the appellant's self-defence claim, finding that stabbing the victim eight times was disproportionate to the threat.

The weapons dangerous conviction was stayed, and the matter was remitted for sentencing on the aggravated assault conviction.

The appellant appealed his sentence of 3 years and 7 months for robbery, arguing the sentencing judge erred by crediting his pre-sentence custody at 1.25:1 instead of 1.5:1, and by placing undue weight on his criminal record.

The Crown conceded the error regarding pre-sentence custody credit.

The Court of Appeal applied the standard of review from Lacasse and found no other errors in principle, noting the appellant was a mature recidivist and the robbery was planned and involved an imitation weapon.

The court allowed the appeal in part, reducing the sentence by 94 days to reflect the 1.5:1 credit, but otherwise dismissed the appeal.

The applicant sought to set aside a 2008 order dismissing his conviction and sentence appeals as abandoned.

He claimed he never instructed his former appeal counsel to abandon the appeal, while counsel maintained he received clear instructions to do so.

The Court of Appeal reviewed the surrounding circumstances, including telephone records, the applicant's subsequent conduct, and counsel's vague recollection and lack of written confirmation.

The Court concluded the applicant did not instruct counsel to abandon the appeal and that it was in the interests of justice to set aside the dismissal and reinstate the appeal.

The appellant, a 21-year-old first-time offender, was convicted of two counts of criminal negligence causing death and one count of criminal negligence causing bodily harm following a motor vehicle accident.

He appealed his convictions and his four-year sentence.

The Court of Appeal dismissed the conviction appeals, finding no error in the trial judge's assessment of the evidence or her conclusion that the appellant's driving constituted a marked and substantial departure from the standard of a reasonable person.

However, the Court allowed the sentence appeal, finding the trial judge overemphasized general deterrence for a youthful first offender, and reduced the sentence to two years less a day.

The appellant was convicted of possession of an imitation weapon for a purpose dangerous to the public peace and use of an imitation firearm while committing an indictable offence.

On appeal, the appellant argued that the weapons dangerous offence could not serve as the predicate offence for the use of an imitation firearm charge.

The Court of Appeal agreed, finding that the use of the imitation weapon did not facilitate the commission of the predicate offence, which was complete when the appellant took possession of the weapon with the requisite intent.

The conviction under s. 85(2) was set aside, but the appeal was otherwise dismissed.

The appellant was convicted of possession of stolen property and driving offences after a stolen car crashed into a parked truck.

At trial, the appellant claimed a man named 'Steve' was driving.

The trial judge rejected this evidence but made three errors of law: mischaracterizing the defence as an alibi, improperly applying the adverse inference under s. 258(3) of the Criminal Code to the issue of identity, and misusing the appellant's criminal record.

The Court of Appeal found that despite these errors, the evidence against the appellant was so overwhelming that no substantial wrong or miscarriage of justice occurred.

The appeal was dismissed using the curative proviso.