Lene Madsen

Case management decision in a family law appeal.

The self-represented appellant sought to perfect his appeal without filing transcripts of the trial evidence, citing inability to pay the estimated $12,000 cost after Legal Aid declined coverage.

The case management judge denied the request, holding that transcripts of all oral evidence and rulings were necessary given the fact-intensive nature of the family law trial and the appellant's grounds of appeal alleging misapprehension of evidence and errors in findings of fact.

The appellant was given a deadline to file proof of ordering and partially paying for transcripts, failing which the respondent could move to dismiss the appeal for delay.

The appellant pleaded guilty to fraud after failing to declare over $50,000 in earnings and COVID-19 benefits while receiving Ontario Works assistance, collecting approximately $16,000 to which she was not entitled.

She received a six-month conditional sentence and a restitution order.

On appeal, the appellant sought to set aside her guilty plea, arguing it was involuntary due to mental health conditions and uninformed because she was unaware those conditions might have provided a defence.

The Court of Appeal found the plea was voluntary, as the record showed active participation in the year-long process leading to the plea, and informed, as the appellant failed to establish subjective prejudice.

The appeal was dismissed.

The appellant was convicted by jury of two counts of trafficking cocaine and one count of assaulting a peace officer with a weapon after police executed a search warrant on his apartment.

He appealed on the grounds that the trial judge erred in failing to instruct the jury on the defence of mistake of fact regarding the assault charge, and in failing to relate the evidence summary to material issues and the defence position.

The court found no merit in either ground, holding that the trial judge's instructions adequately required the Crown to prove beyond a reasonable doubt that the appellant knew the officer was a peace officer engaged in executing his duty, which effectively encompassed the mistake of fact defence.

The appeal from conviction was dismissed, and the sentence appeal was dismissed as abandoned.

The appellants appealed the dismissal of their summary judgment motion, arguing the respondent's claim was time-barred under the Limitations Act, 2002 rather than the Real Property Limitations Act.

The court held the claim, as pleaded, sought recovery of an interest in land or damages in lieu of that interest and therefore fell under the 10-year limitation period in the Real Property Limitations Act.

The court rejected new appellate arguments about contractual performance because those issues were not raised on the summary judgment motion.

It confirmed that an appeal from a failed summary judgment motion is not a vehicle for advancing fresh issues.

The appeal was dismissed, with costs awards to both responding parties and costs to the appellant on the stay motion.

The appellant appealed his convictions for child luring, invitation to sexual touching, child sexual abuse and exploitation material offences, and weapons dangerous.

He argued the trial judge erred in rejecting his defence of mistaken belief in age by setting the reasonable steps standard too high and misapprehending evidence.

The Court of Appeal dismissed the appeal, finding the trial judge correctly concluded the appellant failed to take reasonable steps to ascertain the 14-year-old complainant's age despite obvious red flags.

The court also rejected arguments to extend the private use exception for child pornography and found no reversal of the burden of proof on the weapons charge.

In a commercial lease dispute, the appellants challenged findings that the landlord breached the lease and acted in bad faith by terminating access to loading facilities central to the tenant’s business operations.

The court upheld the application judge’s lease interpretation, including that contractual improvements and related access rights could not be nullified through redesignation of common areas.

The court also upheld the finding of repudiatory breach, rejecting the argument that temporary restoration under a without prejudice consent order cured the breach.

A new argument that the tenant had irrevocably affirmed the lease was not entertained on appeal and was unpersuasive in any event.

The appeal was dismissed, with costs to the respondent.

The appellants sued the City of Toronto after one of them fractured her ankle stepping into a hole in a ditch within the municipal road allowance on a road with no sidewalks.

The City obtained partial summary judgment on the basis of the statutory bar in s. 42(4)(b) of the City of Toronto Act, 2006, pertaining to untraveled portions of a highway.

The Court of Appeal allowed the appeal, finding that the motion judge erred by proceeding to decide the partial summary judgment motion despite his own conclusion, applying the Malik v. Attia factors, that the case was not appropriate for partial summary judgment.

The court held that once the motion judge found the Malik factors weighed against partial summary judgment, he ought to have dismissed the motion.

The cross-appeal was dismissed as moot.

The appellant was convicted of two counts of possession of cocaine for the purpose of trafficking, simple possession of oxycodone, and possession of proceeds of crime.

He appealed on the sole ground that the trial judge erred in dismissing his s. 11(b) application.

The Court of Appeal found no error in the trial judge's characterization of 216 days as defence delay, attributable to the appellant's failure to raise the delay issue despite knowing trial dates were set beyond the Jordan ceiling.

Net delay fell well below the 18-month ceiling, and the appeal was dismissed.

The self-represented appellant appealed an order dismissing his action against a condominium corporation as an abuse of process and requiring him to seek leave before commencing future proceedings against the respondent or its counsel.

The Court of Appeal upheld the dismissal of the action on the basis of res judicata and abuse of process, finding the appellant was attempting to relitigate issues already determined in prior proceedings arising from a parking dispute.

However, the court set aside the vexatious litigant provision of the order, holding that the mandatory procedural requirements under r. 2.2 of the Rules of Civil Procedure and s. 140 of the Courts of Justice Act had not been followed.

Costs of $5,000 were awarded to the respondent.

The appellant, an auto mechanic, appealed a trial judgment dismissing his claims to a beneficial interest in a property through express trust, resulting trust, purchase money resulting trust, or constructive trust.

The property had been purchased by one respondent and titled in another respondent's name while the appellant lived there under an oral arrangement.

The Court of Appeal found no basis to interfere with the trial judge's fact-finding, holding that the appellant was merely inviting the court to reweigh evidence.

The appeal was dismissed on the merits but the cost awards below were reduced by 20% because the trial judge had erroneously found the respondents completely successful, overlooking that their counterclaim had been dismissed.

The Crown brought a motion to bifurcate its sentence appeal from the respondent's conviction appeal.

The respondent had been convicted of sexual assault of a child and sentenced to a conditional sentence of two years less a day.

The Crown sought leave to appeal the sentence as demonstrably unfit and argued that if the appeals were heard together, the delay would render the sentence appeal redundant, as the respondent would have served a significant portion of the conditional sentence by the hearing date.

The motion judge accepted the Crown's submission, finding that the anticipated delay constituted a compelling reason for bifurcation and that the issues on the two appeals were discrete.

The motion was granted.

The applicant sought relief in an appeal before the Court of Appeal for Ontario.

The court reviewed the record and applied the governing legal and procedural standards, including deference to factual and discretionary determinations where required.

The matter concluded with the following disposition: Appeal dismissed.

The appellant pleaded guilty to sexual interference, invitation to sexual touching, making child pornography, distributing child pornography, possession of child pornography, and two counts of failure to comply with a release order, and received a global sentence of 11 years and 3 months less pre-sentence custody credit.

On appeal, he argued the sentencing judge erred in factoring in pre-sentence custody credit and that the sentence was excessive compared to similar cases.

He also challenged ancillary non-communication orders and an internet restriction order.

The Court of Appeal found no error in the sentencing judge's treatment of pre-sentence custody, held the sentence was not unfit given the exceptionally serious nature of the offences and numerous aggravating factors, and declined to interfere with the ancillary orders.

Leave to appeal was granted but the appeal was dismissed.

The appellant appealed his conviction for attempted murder arising from a single gunshot fired during a melee in a bar parking lot.

He argued that the verdict was unreasonable due to inconsistencies between the video evidence and the medical evidence regarding the bullet's trajectory, and that the trial judge misapplied the mens rea for attempted murder by convicting on the basis of recklessness.

The Court of Appeal dismissed the appeal, finding that the trial judge's conclusions on identity and intent were firmly grounded in the video evidence and that the trial judge correctly applied the requirement of specific intent to kill.

The appellant appealed his conviction for possession of a loaded restricted firearm, arguing that the trial judge erred in dismissing his Charter application.

The police found the firearm during a search of the appellant under the Cannabis Control Act after observing open cannabis in an idling vehicle.

The Court of Appeal found no error in the section 8 analysis, concluding it was reasonable for police to seize the appellant's identifying information before conducting the physical search.

Although the Court found a section 10(b) breach based on recent jurisprudence, it conducted a fresh section 24(2) analysis and concluded the firearm should not be excluded.

The applicant sought relief in an appeal before the Court of Appeal for Ontario.

The court reviewed the record and applied the governing legal and procedural standards, including deference to factual and discretionary determinations where required.

The matter concluded with the following disposition: Appeal dismissed.

The appellants, a wife and a family company, appealed a partial determination of competing applications regarding the company's share structure and the beneficial ownership of a property.

The Court of Appeal allowed the appeal, finding the application judge made palpable and overriding errors by failing to consider relevant evidence, including the company accountant's testimony regarding the share structure, and by failing to address the presumption of resulting trust regarding the property.

The matter was remitted to the Superior Court for a rehearing before a different judge.

The appellant appealed his convictions for sexual assault and forcible confinement, alleging ineffective assistance of trial counsel.

He argued that his counsel failed to properly advise him on his right to a jury trial, his right not to testify, and his right to appear in person rather than virtually.

The Court of Appeal admitted fresh evidence and found that while the failure to advise on the jury election was not established, trial counsel failed to provide competent advice regarding the appellant's right to testify and his right to appear in person.

These failures deprived the appellant of the ability to make fundamental decisions about his defence, undermining trial fairness and resulting in a miscarriage of justice.

The appeal was allowed and a new trial by judge and jury was ordered.

The appellant challenged convictions based on admission and use of surreptitious recordings, alleging errors under ss. 31.1 and 31.2 of the Canada Evidence Act and in probative-prejudice analysis.

The court rejected those arguments and dismissed the appeal.

The appellant challenged an Ontario Review Board disposition under Part XX.1 of the Criminal Code.

Following a material change in living circumstances and concession that practical utility of the appeal had dissipated pending the next annual review, the court dismissed the appeal.