Lise Favreau

This is a costs endorsement following a successful appeal.

The Court of Appeal had previously allowed the appeal, set aside the application judge’s order, and remitted certain issues for trial, declaring that the appellants had a possessory lien.

The appellants, having prevailed on the appeal and related motions, were awarded all-inclusive costs for the appeal, a panel motion, three pre-appeal motions, and the original application, totaling $143,977.79.

This appeal concerned the jurisdiction of the Ontario court in a family law dispute over parenting time, decision-making responsibility, and child support.

The appellant father argued that the motion judge erred in finding the child habitually resident in Ontario, claiming he did not tacitly consent or acquiesce to the child's move from Montreal to Ottawa.

The Court of Appeal dismissed the appeal, finding that despite a minor error by the motion judge in considering post-application conduct, sufficient evidence supported the finding of the father's tacit consent or acquiescence to the child's habitual residence in Ontario.

The appellant, Paccar Leasing Company Ltd., appealed a motion judge's order that Royal Bank of Canada's perfected security interest in a debtor's property prevailed over Paccar's unperfected security interest in leased commercial trucks.

Paccar argued that its "true lease" meant it retained title, giving it priority.

The Court of Appeal dismissed the appeal, affirming that the 2007 amendments to the Personal Property Security Act (PPSA) prioritize perfected security interests over common law notions of title, even for true leases, if the lessor fails to perfect their interest.

The appellants, Gavin MacMillan and Enzo De Jesus Carrasco, appealed their convictions for sexual assault and administering a stupefying substance, and their nine-year sentences.

They argued the trial judge erred in admitting expert evidence, excluding evidence of the complainant's prior sexual activity, instructing the jury on consent (specifically regarding orgasms), and demonstrating a reasonable apprehension of bias.

The Court of Appeal dismissed all grounds of appeal, upholding the convictions and sentences.

The court affirmed the trial judge's rulings on expert evidence necessity and impartiality, the proper application of s. 276 of the Criminal Code regarding consent and prior sexual activity, and found no reasonable apprehension of bias.

The sentences were deemed fit and not demonstrably unfit.

The appellants, an investment syndicate holding a first mortgage, appealed an order denying their priority over a second mortgagee (Greenpath) for certain disputed amounts from a power of sale.

The application judge found these amounts were not properly part of the first mortgage and constituted prohibited penalties under s. 8(1) of the Interest Act.

The Court of Appeal dismissed the appeal, affirming that the forbearance agreement was separate from the first mortgage and not enforceable against the second mortgagee, and that the disputed prepayment and default fees were unlawful penalties under the Interest Act due to lack of evidence proving they were legitimate costs.

The appellants appealed an order vacating their possessory lien on an aircraft under the Repair and Storage Liens Act.

The application judge had erred by vacating the lien without fully determining whether the repair work was authorized and if any amounts were owing, despite acknowledging that litigation on these issues was possible.

The Court of Appeal found that the application judge failed to make necessary findings and improperly applied the RSLA.

The appeal was allowed, the original order set aside, and the appellants' possessory lien was declared to exist until further court order, with the issues of authorization and amounts owing remitted to trial.

The appellant, a young person, appealed convictions for sexual assault and uttering death threats, arguing the trial judge's reasons were insufficient due to a failure to address material inconsistencies in the complainant's evidence and a potential motive to fabricate.

The Court of Appeal agreed, finding the trial judge's reasons did not permit meaningful appellate review as they failed to grapple with critical credibility issues.

The appeal was allowed, and a new trial ordered.

The appellant, A.J., appealed his conviction for sexual assault, arguing that the trial judge engaged in prohibited stereotypical reasoning and uneven scrutiny of the evidence.

The Court of Appeal for Ontario dismissed the appeal, finding that the trial judge's assessment of the appellant's credibility was firmly rooted in the evidence and not based on stereotypes.

The court also found no uneven scrutiny, as the trial judge provided detailed and reasoned explanations for his credibility findings regarding both the complainant and the appellant.

The appellant, found not criminally responsible (NCR) for robbery in 2005, appealed a disposition of the Ontario Review Board (ORB).

The appeal concerned two conditions: the addition of "supervised accommodation" and the geographical scope of community living.

The appellant argued the "supervised accommodation" condition was unilaterally and unreasonably added without sufficient exploration, citing *Elster (Re)*.

The Court of Appeal dismissed this ground, distinguishing *Elster* on procedural fairness grounds, noting counsel had the opportunity to address the issue.

The appellant also argued the geographical scope was inconsistent with the Board's reasons, as the disposition limited community living to "Hamilton" post-transfer, while the Board intended "Greater Toronto Area and Hamilton".

The Court agreed with the appellant on this point, finding the Board and parties assumed GTA included Hamilton, and ordered the geographical scope for both pre- and post-transfer accommodation to be "the Greater Toronto Area and Hamilton".

The appellant appealed his convictions for numerous offences, including sexual assault, sexual exploitation, incest, and child pornography, committed against his biological daughter.

The grounds of appeal included allegations of uneven scrutiny of evidence by the trial judge, material misapprehension of evidence, and reasonable apprehension of bias due to the trial judge's strong language.

The Court of Appeal dismissed the appeals, finding no reversible error.

The court affirmed that credibility findings are entitled to significant appellate deference, that any misapprehension of evidence was not material to the outcome, and that while the trial judge's language was strong, it did not demonstrate a reasonable apprehension of bias when viewed in the context of a thorough and even-handed analysis.

The Crown appealed T.L.'s acquittal for sexual assault.

The trial judge had a reasonable doubt regarding the first alleged incident.

For the second incident, the trial judge found the complainant was too intoxicated to consent.

The Court of Appeal found reversible legal error in the trial judge's analysis of the second incident, specifically the failure to address whether T.L.'s admitted actions (kissing, stroking, masturbating) constituted sexual assault and the lack of reasons for not finding party liability for the sexual assault carried out by another individual.

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

The appellant, designated a dangerous offender and sentenced to indeterminate imprisonment for sexual assault and other offences, appealed his sentence and sought to introduce fresh evidence.

He argued the trial judge erred in applying Gladue principles by requiring a causal link between his Indigenous ancestry and offending behaviour.

The Court of Appeal dismissed the fresh evidence motion, finding it unreliable and insufficient to undermine the sentencing decision.

The court also dismissed the sentence appeal, affirming that the trial judge correctly applied Gladue principles, finding no direct link between the appellant's Indigenous background (discovered later in life) and his moral culpability, and that public protection remained the paramount objective justifying an indeterminate sentence.

The appellant, Quinnton Drake, appealed an indeterminate dangerous offender sentence.

He had pleaded guilty to multiple violent offences, including robbery with a firearm, and had a lengthy criminal record.

At sentencing, he conceded dangerous offender criteria but sought a long-term supervision order instead of an indeterminate sentence, arguing the judge failed to adequately consider his remorse and willingness to participate in treatment.

The Court of Appeal dismissed the appeal, finding the sentencing judge correctly applied sentencing principles, including public protection as primary, and properly weighed the appellant's evidence against expert testimony indicating a very poor prognosis for treatment success and high risk of reoffending.

This is an appeal from a Divisional Court decision that granted judicial review, quashing an administrative decision and a request for bids related to the procurement of identification cards.

The Ministry of Transportation (MTO) required card stock to be produced in Canada, which Thales DIS Canada Inc. (Thales) challenged as discriminatory under the Canada-European Union Comprehensive Economic and Trade Agreement (CETA).

The Divisional Court found the MTO's decision and request for bids unreasonable.

The Court of Appeal allowed the appeal, finding that the Divisional Court misapplied the reasonableness standard of review by conducting a de novo assessment instead of focusing on the administrative decision-maker's reasons.

The Court of Appeal concluded that the Director's decision was reasonable and that the request for bids was not separately subject to judicial review given the existence of an adequate internal dispute resolution process.

The Crown sought leave to appeal to the Court of Appeal for Ontario from a judgment of the Ontario Court of Justice concerning findings on due diligence and penalty reduction in regulatory offence charges under the Occupational Health and Safety Act.

The motion for leave was dismissed as the proposed grounds of appeal did not meet the high bar under s. 131 of the Provincial Offences Act.

The court found that the alleged errors involved the misapplication of well-established legal principles rather than issues requiring the Court of Appeal's guidance on statutory interpretation or general legal principles.

SIR Corp. appealed the dismissal of its application for insurance coverage for business losses and food spoilage incurred during the COVID-19 pandemic due to government-imposed in-person dining restrictions.

The appellant sought coverage under "Civil or Military Authority" and "Ingress/Egress" clauses of its "all-risk" property insurance policy with Aviva.

The Court of Appeal dismissed the appeal, finding that the policy required direct physical loss or damage for coverage, which the government orders did not cause.

It also held that "catastrophe" in the policy was limited to events similar to "conflagration" (large-scale physical destruction) and did not include the pandemic.

The court also denied leave to appeal the costs award, upholding the application judge's decision.

The appellant, Mustaf Yusuf, was on judicial interim release pending his appeal, with conditions including remaining in Ontario and surrendering for the appeal hearing.

His counsel advised the court that he failed to surrender because he was in prison in Somalia, breaching his release conditions.

The Court of Appeal dismissed the appeal as abandoned, in accordance with the terms of the release order, and issued a warrant for his arrest.

This is a costs endorsement following the disposition of three appeals.

The parties settled the issue of costs by agreement.

The appellant was ordered to pay costs of $13,750, all inclusive, to the respondents.

The Court of Appeal considered appeals regarding the priority of claims in the receivership of Bridging Finance Inc. and its investment funds.

The motion judge had previously granted priority to Statutory Rescission Claims but denied it to Redemption Claims.

The Court of Appeal dismissed the appeal by Redemption Claimants, affirming that their claims had not crystallized and were subject to Bridging's discretion, thus lacking priority.

It allowed the appeal by General Unitholders, reversing the priority granted to Statutory Rescission Claims.

The court held that neither the language of the Ontario Securities Act (s. 130.1) nor the inherent nature of the rescission remedy provided a basis for statutory or de facto priority.

Consequently, the court ordered that all Unitholders, including Redemption Claimants, Statutory Rescission Claimants, and General Unitholders, shall rank pari passu with respect to the distribution of proceeds from the Bridging Funds.

The appellant, Thavanathan Sithravel, appealed a nine-year imprisonment sentence for robbery, arguing for a reduction to eight years based on the parity principle.

The original sentencing judge had treated the appellant's absconding as a factor and, crucially, relied on the appellant being the "mastermind" of the robbery as a significant aggravating factor, despite this fact not being admitted during the guilty plea.

The Court of Appeal found that the sentencing judge erred in principle by relying on the "mastermind" fact as admitted, as it was specifically denied.

While absconding could diminish mitigation, it did not alter the requirement for the Crown to prove aggravating facts beyond a reasonable doubt in a Gardiner hearing.

The error impacted the sentence, leading the Court of Appeal to reduce the sentence to eight years and three months to align with the parity principle, while still accounting for the diminished mitigation due to absconding.

The court also commented on the unsatisfactory practice of not clarifying admitted facts before a guilty plea.