Mark G. Evans

The Crown appealed a three-year sentence imposed on the respondent for possession of heroin for the purpose of trafficking and possession of proceeds of crime.

Police found $7,600 in cash and approximately 410 grams of heroin in the respondent's home and garage.

The Court of Appeal found the sentence demonstrably unfit, as it failed to meet the predominant sentencing objectives of general deterrence and denunciation for a large commercial quantity of heroin.

The appeal was allowed, and the sentence was increased to six years' imprisonment.

The accused was charged with operating a motor vehicle while impaired by alcohol with over 80 milligrams of alcohol in 100 millilitres of blood on March 8, 2015, in St. Catharines.

The defence raised Charter applications alleging violations of sections 8, 9, and 10(b) during the roadside investigation and arrest process, arguing that delays in making the approved screening device demand and providing right to counsel information breached the "forthwith" requirement.

The court found Charter breaches but admitted the breath sample evidence under section 24(2) of the Charter, finding that exclusion would not be necessary to maintain public confidence in the administration of justice.

The Crown proved its case beyond reasonable doubt, resulting in a conviction.

Lenders brought a class proceeding alleging negligent misrepresentation by auditors in connection with audited financial statements relied upon when extending a large syndicated loan.

The defendants moved for partial summary judgment dismissing the negligent misrepresentation claim on the basis that no duty of care was owed to the lending syndicate.

Applying the principles from Hercules Managements Ltd. v. Ernst & Young, the court held that auditors generally owe duties to the corporation and its shareholders but not to third-party lenders due to concerns about indeterminate liability.

Although the auditors knew lenders would likely review the statements, they did not know the identity of the lenders nor prepare the audits for the specific lending transaction.

The court concluded the circumstances did not negate indeterminate liability and no duty of care arose.

The defendant, a California corporation that dissolved after allegedly supplying a defective generator but before the plaintiff commenced its action, brought a motion to dismiss the action against it for lack of legal capacity to be sued in Ontario.

The court applied conflict of laws principles, determining that while capacity to be sued is procedural, the legal status of a foreign entity is a substantive issue governed by the law of its place of incorporation.

Because the California Corporations Code permits dissolved corporations to continue to exist for the purpose of defending actions, the court found the defendant had the legal capacity to be sued in Ontario and dismissed the motion.

The appellants, representative plaintiffs in a class action alleging auditor negligence, appealed the dismissal of their motion under Rule 30.10(1) for production of investigation documents from the Institute of Chartered Accountants of Ontario, a non-party.

The Court of Appeal upheld the motion judge's finding that it would not be unfair for the appellants to proceed to trial without the documents.

Although the Court found the motion judge erred in concluding the documents were protected by case-by-case privilege under the Wigmore criteria, the appeal was dismissed because the appellants failed to establish the unfairness requirement of Rule 30.10(1).

The accused was charged with seven offences arising from the discovery of a loaded prohibited handgun, two small bags of marijuana, $1,000 in cash, and three cell phones in a rental vehicle he was driving.

The Crown argued that the cumulative circumstances—including the pervasive smell of fresh marijuana, the identical packaging of two marijuana bags, the gun's positioning suggesting placement by a right-handed person, and the accused's rubber bands on his left wrist—demonstrated knowledge and possession of all items.

The defence argued that the vehicle was rented by another person, the gun was completely hidden, and there was no forensic evidence linking the accused to the firearm.

The trial judge found that the only rational inference from the totality of circumstances was that the accused knew about and possessed the gun and other items, and convicted on all counts.

The accused was charged with two counts of human trafficking offences (exercising control over movements for exploitation and receiving money from exploitation), three counts of assault with a weapon, two counts of threatening, three counts of assault, and four counts of breach of recognizance.

The trial involved a credibility assessment of the complainant, who admitted to being a con artist and fraudster, against the accused's denials.

The court found the accused guilty of assault with a weapon, simple assault, and breach of recognizance counts, but acquitted him of the trafficking offences due to insufficient evidence of control exercised for exploitative purposes.

The court applied a Vetrovec warning regarding the complainant's credibility.

Multiple tobacco manufacturer defendants sought partial indemnity costs of approximately $300,000 after withdrawing previously scheduled motions to strike the Crown’s statement of claim in a health care cost recovery action under the Tobacco Damages and Health Care Costs Recovery Act.

The defendants argued they were the successful parties because their motions prompted extensive amendments to the pleading and that the Crown delayed notifying them of its intention to amend.

The court held that the amendments addressed only some of the alleged deficiencies and that significant legal issues remained unresolved when the defendants chose to withdraw the motions.

As a result, success on the motions was considered divided.

Exercising discretion under s. 131 of the Courts of Justice Act, the court ordered that each side bear its own costs.

The accused pleaded guilty to possession of cocaine for the purpose of trafficking.

The Crown sought a sentence of 15 months imprisonment, while defence counsel sought a conditional sentence followed by probation.

The court rejected the conditional sentence, finding it inconsistent with the fundamental purpose and principles of sentencing, particularly given the seriousness of drug trafficking offences and the need for denunciation and general deterrence.

The court imposed a sentence of time served (six days pre-sentence custody credited as 12 days) plus 258 additional days of imprisonment (equivalent to nine months), followed by three years of probation, along with ancillary orders including a firearms prohibition, DNA order, and forfeiture order.

The appellants challenged a motion decision holding that s. 61 of the Chartered Accountants Act, 2010 barred use in civil litigation of materials from professional discipline proceedings conducted under the predecessor Chartered Accountants Act, 1956.

The Court of Appeal held that, while s. 61 is an evidentiary rule with immediate application to ongoing civil proceedings, its text plainly applies only to records of proceedings under the 2010 Act.

The court rejected reliance on statutory purpose, transitional references to the predecessor legislation, and the alleged unusual procedural history to expand the section beyond its wording.

The appeal was allowed, the order below was set aside, and leave to amend the pleading was granted.

The accused, a police constable, was convicted after a retrial of breach of trust under s. 121 of the Criminal Code for leaking confidential police intelligence documents to members of the Hells Angels through an intermediary.

The leaked materials included sensitive intelligence bulletins and the identity of a confidential informer during a joint forces investigation targeting organized crime.

At sentencing, the court emphasized that police officers occupy a position of exceptional public trust and that general deterrence and denunciation are paramount sentencing principles for breaches of that trust.

The court considered case law involving corruption by police and other public officials and concluded that a penitentiary term was required.

A conditional sentence was rejected as inconsistent with denunciation and deterrence given the seriousness of the conduct and its impact on police operations and informer protection.

In a certified class proceeding arising from a failed public company and alleged negligent audits, both sides brought refusals motions concerning answers and undertakings given during examinations for discovery.

The plaintiffs alleged that the auditors negligently prepared audit reports relied upon by lenders in extending a $1.5‑billion credit facility, while the auditors denied any duty of care and advanced additional defences.

The court reviewed the permissible scope of discovery under the Rules of Civil Procedure and the Class Proceedings Act, 1992, emphasizing relevance, materiality, proportionality, and recognized categories justifying refusals.

Applying those principles, the court ruled on numerous disputed questions, ordering some answers and upholding others as unanswerable, irrelevant, disproportionate, or privileged.

Costs of the refusals motions were ordered to be in the cause.

The Crown appealed the acquittals of a lawyer charged with conspiracy, counselling, and attempt to launder the proceeds of crime following an undercover police operation.

The trial judge had acquitted the accused on all counts.

The Court of Appeal found that the trial judge made legal errors in her analysis of the conspiracy and attempt counts, including misapprehending the required parties to a conspiracy and incorrectly characterizing the accused's conduct as mere preparation.

The appeal was allowed in part, setting aside the acquittals for conspiracy and attempt and ordering a new trial on those counts, while dismissing the appeal on the counselling count.

The third parties, who were directors and officers of the plaintiff company, sought leave to appeal an interlocutory order refusing to strike out third party claims brought against them personally by the defendant auditors.

The defendants had been sued for negligence in performing audits and sought contribution and indemnity from the third parties for their alleged tortious personal conduct.

The Divisional Court dismissed the motion for leave, finding no conflicting decisions and no good reason to doubt the correctness of the motions judge's decision, as the pleadings properly founded a reasonable cause of action against the third parties.

The appellant portfolio manager appealed a trial judgment finding it liable for mismanaging the respondent's investment account by retaining excessive short-term investments and purchasing a speculative stock.

The trial judge had dismissed the main part of the respondent's claim but allowed these two specific claims.

On appeal, the appellant argued the trial judge's reasons were inadequate because he incorporated large portions of the parties' facta, and challenged the findings on negligence, ratification, mitigation, and damages.

The Court of Appeal dismissed the appeal, holding that while the trial judge's incorporation of facta was ill-advised, the reasons as a whole were sufficient for appellate review and the factual findings were supported by the evidence.

The appellant insurance broker appealed a motion judge's order enforcing an undertaking as to damages, directing equal sharing of arbitration expenses, and awarding costs to the respondent insurer.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that the undertaking applied to consent adjournments of an injunction application.

The Court also upheld the equal sharing of arbitration costs based on the express terms of the agency agreement and affirmed the motion judge's jurisdiction under section 6 of the Arbitration Act.

The appellant appealed a ruling and requested a hearing regarding a proposed order to suspend his standardbred license for one year or until a US criminal indictment against him was resolved.

The Ontario Racing Commission upheld the proposed order, finding the Director had reasonable grounds to conclude the appellant would not act with honesty and integrity in the public interest, given the charges related to ephedrine and the use of a barn for its storage.