Scott C. Hutchison

A reference to the Court of Appeal for Ontario concerning whether legal online gaming and sports betting would remain lawful under the Criminal Code if users were permitted to participate in games and betting involving individuals outside of Canada.

The majority (Tulloch C.J.O., Gillese, Hourigan and Dawe JJ.A.) answered affirmatively, finding that section 207(1)(a) of the Criminal Code permits Ontario to conduct and manage a lottery scheme with international pooled liquidity, provided Ontario continues to conduct and manage the Ontario-based aspects of the scheme in accordance with provincial law.

The majority rejected the application of the real and substantial connection test and distinguished the Earth Future decisions.

Van Rensburg J.A. dissented, arguing that the Proposed Model would contravene the Criminal Code because it would require Ontario to conduct and manage aspects of the lottery scheme outside Ontario's territorial boundaries, contrary to the plain meaning of "in that province" in section 207(1)(a).

The appellants sought to advance a new theory regarding a 15-degree bend in the property boundary line between their lot and the respondent's lot on Jack Lake.

This theory was based on new expert evidence obtained after the Court of Appeal's 2020 decision, which had remitted the matter back to the Superior Court to determine the location of the water's edge in 1902 and related issues.

The motion judge dismissed the appellants' second application as a collateral attack on the 2020 order.

The Court of Appeal upheld this dismissal, finding the second application constituted an abuse of process because the bend theory could and should have been raised in the original application.

The court also rejected the appellants' alternative motion to vary the 2020 order.

The appellant sought a stay pending appeal of an application judge's decision dismissing its application for a declaration that the modified version of its GotSkill? game was not a game of mixed chance and skill under the Criminal Code.

The appellant also sought injunctive orders preventing enforcement of a bulletin issued by the respondent requiring liquor licensees to cease operating the game.

The motion judge dismissed the motion, finding that while there was a serious issue to be tried and the appellant would suffer irreparable harm, the balance of convenience favoured the respondent due to the public interest in enforcing gambling and alcohol regulations designed to protect minors and vulnerable individuals.

The plaintiffs, a law firm, brought a motion for further and better affidavits of documents from two defendants (spouses) and for their further examination for discovery.

The defendants refused to answer certain discovery questions based on spousal privilege.

The court determined that under section 11 of the Ontario Evidence Act, spousal privilege applies only to communications received from a spouse, not communications made to a spouse.

Therefore, each defendant must disclose their communications sent to their spouse but may claim privilege over communications received from their spouse.

The plaintiffs were successful and awarded costs.

The appellant, J. Michael Evans, appealed the refusal of building and septic permits for Harry Island in the Township of Muskoka Lakes.

The court found that Evans failed to establish a legal nonconforming residential use of the boathouse on Harry Island, as there was no evidence of actual residential use or intention to continue such use since the 1920s or 1930s.

The court also held that the chief building official did not have discretion under the zoning bylaw to deem the undersized island to conform.

However, the court allowed the appeal regarding the septic permit, finding that compliance with the Building Code superseded the municipal bylaw’s setback requirement.

The appellants, Charles McVety and Canada Christian College, appealed a motion judge's decision to dismiss their anti-SLAPP motion against a defamation action brought by Kory Teneycke and Rubicon Strategy Inc. The defamation claim alleged that McVety publicly stated Teneycke acted in a conflict of interest regarding Ontario's vaccine passport policy and profited from it, and that Teneycke was prejudiced against Christians.

The motion judge found substantial merit to the defamation action and that the appellants had no viable defences, partly due to potential malice, and that the public interest favored allowing the action.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's analysis of the claim's merits and defences, and while agreeing the balancing analysis was flawed, a fresh analysis led to the same conclusion that the public interest in allowing the action outweighed the public interest in protecting the appellants' expression, given the low quality and malicious motivation of the speech.

The request for leave to appeal costs was also dismissed.

The appellant, C.D., appealed his conviction for sexual interference, sexual exploitation, and sexual assault, and his sentence.

The sentence appeal was abandoned during oral submissions.

The conviction appeal raised three issues: the admissibility of prior discreditable conduct (the "shower incident"), the lack of a caution regarding the complainant's prior consistent statement, and the absence of an instruction against cross-count reasoning.

The Court of Appeal dismissed the appeal, finding no reversible errors by the trial judge.

The court held that the shower incident evidence was admissible for motive and to rebut defence theories, and that the lack of specific jury instructions was a legitimate tactical decision by defence counsel.

This ruling addresses a defence application under section 276 of the Criminal Code to admit evidence of prior consensual sexual activity between the accused and the complainant in a historical sexual assault case.

The accused sought to introduce the evidence to contextualize his actions and challenge the complainant's credibility regarding the nature of their prior relationship, arguing that without it, his conduct would appear unexplained.

The Crown and complainant opposed, asserting it would invite "twin myths." The court granted the application, finding the evidence admissible as it was fundamental to the coherence of the defence narrative and not being adduced for prohibited purposes, drawing parallels to R. v. Temertzoglou.

The decision emphasizes the accused's right to make full answer and defence.

The appellant, a former police officer, appealed his convictions for bribery, attempting to obstruct justice, breach of trust, and trafficking cocaine, as well as his 13-year sentence and a $250,000 fine in lieu of forfeiture.

The convictions arose from a corrupt relationship with a drug trafficker, from whom the appellant accepted bribes for protection.

The Court of Appeal dismissed the conviction appeal, finding no reversible error in the trial judge's jury instructions on reasonable doubt and credibility, admission of evidence, or handling of late disclosure.

The sentence appeal was also dismissed, with the court finding the 13-year sentence fit given the gravity of the police corruption.

The fine in lieu of forfeiture was upheld, but the time to pay was varied to one year from the date of the appellant's release from custody.

The Mohawk Council of Kahnawà:ke sought a declaration that Ontario's iGaming scheme, enabled by specific provincial legislative provisions, was inoperative.

The Council argued that these provisions impermissibly allowed private operators to "conduct and manage" lottery schemes, which, under the Criminal Code, is reserved for provincial governments, thus violating the division of powers and triggering the doctrine of paramountcy.

The respondents, iGaming Ontario and the Attorney General of Ontario, challenged the Council's standing and argued that Ontario, through iGO, properly conducts and manages the scheme.

The court granted the Council public interest standing but ultimately dismissed the application, finding that Ontario, through iGO, maintains sufficient control to be considered the "operating mind" of the iGaming scheme, thereby complying with the Criminal Code and avoiding paramountcy.

The applicants, senior secured lenders, sought the appointment of a receiver over the assets of "The One" mixed-use construction project due to financial and covenant defaults by the borrower.

The project, significantly delayed and over budget, had outstanding debt of approximately $1.235 billion.

The appointment of Alvarez & Marsal Canada Inc. as receiver was unopposed by any key stakeholder.

The court granted the application, appointed the receiver, approved a super-priority receivership funding credit agreement of up to $315 million, and issued a stay of proceedings, finding it just and convenient to stabilize the situation and maximize recovery for all stakeholders.

This case concerns an application by Luigi Caruso to refer the Chief Firearms Officer's (CFO) decision to revoke his Possession and Acquisition Licence (PAL) to a provincial court judge, pursuant to section 74(1)(a) of the Firearms Act.

The CFO revoked the PAL based on evidence from a police investigation (Project Ovenus) that suggested Mr. Caruso's involvement in drug and firearm trafficking, improper firearm storage, and gunsmithing, despite his criminal charges being stayed due to unreasonable delay.

The court affirmed that a stay of proceedings is not equivalent to an acquittal for all purposes, especially in the context of public safety assessments under the Firearms Act.

The judge found the CFO's decision to be reasonable, as the evidence, including Mr. Caruso's incriminating statements and the discovery of contraband in his residence's basement, supported the conclusion that he posed a public safety risk.

The application was dismissed.

This is a costs endorsement following the dismissal of the defendants' anti-SLAPP motion under section 137.1 of the Courts of Justice Act.

The plaintiffs, who successfully resisted the anti-SLAPP motion, sought costs.

The court awarded costs to the plaintiffs, finding "compelling facts" to justify the award, including the significant reputational harm caused by the defendants' malicious and widely broadcast statements, particularly to a professional lobbyist.

The decision emphasized the need to deter meritless anti-SLAPP motions and fixed costs at $50,000, aligning with the Court of Appeal's suggested ceiling.

The defendants brought an anti-SLAPP motion under the Courts of Justice Act to dismiss a libel action initiated by the plaintiffs.

The defendants argued the action aimed to stifle their public interest discussions on vaccine passports, Christian influence in government, and political lobbying.

The plaintiffs contended the defendants' expressions were false and defamatory.

The court applied the anti-SLAPP test, finding that the plaintiffs' claim had substantial merit and the defendants had no valid defense (rejecting defenses of truth, repetition, fair comment, and responsible communication).

The court also determined that the harm suffered by the plaintiffs was sufficiently serious to outweigh the public interest in protecting the defendants' expression.

Consequently, the defendants' motion to dismiss was dismissed, allowing the libel action to proceed.

This endorsement addresses a plaintiff's motion for leave to amend its statement of claim and the costs of both this motion and an earlier motion to dismiss/stay.

The court had previously stayed claims related to the recovery of subordinated indebtedness due to a standstill provision but allowed other claims, such as those for fraud and conspiracy related to unauthorized agreements, to proceed with leave.

The plaintiff sought to include claims for damages from unauthorized loan transactions, knowing assistance, breach of fiduciary duty, fraud, conspiracy, punitive damages, and oppression remedy.

The court permitted claims for damages from unauthorized transactions, knowing assistance, breach of fiduciary duty, fraud, and conspiracy, finding they fell outside the standstill provision.

However, claims for punitive damages equal to the subordinated indebtedness were disallowed as a disguised attempt to recover prohibited amounts.

The oppression remedy claim was also denied, as the plaintiff failed to establish a proper complainant status independent of its prohibited creditor capacity.

The Mizrahi Defendants, as the overall successful parties on the stay motion and more successful on the leave to amend motion, were awarded partial indemnity costs for both motions.

The appellant, M.E., appealed an order from the Superior Court of Justice that dismissed her motion as frivolous, vexatious, and an abuse of process, and imposed a leave requirement for future filings.

The Court of Appeal for Ontario dismissed the appeal under Rule 2.1.01, finding it to be frivolous, vexatious, and an abuse of process due to the appellant's history of relitigating decided issues, non-compliance with court orders and rules, failure to pay costs, and making baseless allegations against opposing counsel.

The court also imposed a further restriction requiring leave to file any future materials.

The moving parties, six limited partners holding 54.5% of the shares in a family limited partnership, sought leave to commence a derivative action on behalf of the limited partnership and related corporate entities against the general partner, its sole director, and other parties.

The court held that while there is no statutory right for limited partners to bring a derivative action under the Limited Partnerships Act, the common law fraud exception to the rule in Foss v. Harbottle permits such an action where the general partner is the alleged wrongdoer.

Leave was granted to bring the derivative action on behalf of the limited partnership against the general partner and its director, but denied against third parties and on behalf of the underlying corporate entities.

The appellant, G.M.C., appealed his convictions for assault and compliance charges, following a 12-day trial.

The appeal was based on three grounds: the trial judge's alleged improper judicial notice of "memory science," uneven scrutiny of evidence (including credibility assessment, demeanour, and use of bad character evidence), and reasonable apprehension of bias.

The Court of Appeal dismissed all grounds, finding that the trial judge's observations on memory were common sense, that there was no reversible error in the credibility assessments or application of different standards, and that the isolated incidents did not give rise to a reasonable apprehension of bias.

The court affirmed the convictions.

The applicants sought a declaration that they had fully repaid a commercial loan to the respondent and an order preventing the respondent from exercising its right to convert the debt into shares.

The applicants had attempted to repay the loan via a wire transfer to the personal account of the respondent's principal, as the respondent had refused to provide wire instructions and insisted on strict compliance with the loan agreement.

The court found that the applicants failed to repay the loan in accordance with the strict terms of the agreement.

Consequently, the applicants' application was dismissed, and the respondent's cross-application to enforce its conversion rights was granted.