OCA 2018

The appellant Glassdoor Inc. sought a stay of a Norwich order pending appeal.

The application judge had ordered disclosure of personal information of third parties in relation to defamatory posts on Glassdoor's website.

The chambers judge granted the stay, finding serious questions to be tried regarding the application judge's jurisdiction in light of a forum selection clause in Glassdoor's Terms of Use and whether the respondents had agreed to those terms.

The judge found irreparable harm would result from disclosure of third-party information that could not be undisclosed, and that the balance of convenience favoured the appellant, particularly given the appeal was scheduled within three months and the respondents could seek an expedited hearing.

The applicants sought leave to appeal a decision upholding a sending order under the Mutual Legal Assistance in Criminal Matters Act.

The applicants argued that because a British Columbia court of coordinate jurisdiction had denied a similar sending order involving the same parties and investigation, the Ontario court should be bound by principles of res judicata and issue estoppel.

The motion judge dismissed the application for leave to appeal, finding no jurisdiction to hear the appeal and rejecting the res judicata and issue estoppel arguments on their merits.

The appellant was convicted of sexual offences against his step-daughter, who was 14 years old at the time of the offences.

The appellant, a pastor who had married the victim's mother, appealed both his conviction and sentence.

The appellant argued that the trial judge placed undue reliance on the complainant's demeanour as a witness.

The Court of Appeal rejected this argument, finding that while the trial judge did consider the complainant's presentation as a witness in assessing credibility, she did not overemphasize this factor and properly analyzed the substance of the complainant's evidence.

Both the conviction appeal and sentence appeal were dismissed, with the court noting that the sentence imposed was fit.

An appeal under Part XX.1 of the Criminal Code against the disposition of the Ontario Review Board dated April 23, 2018.

The appellant, found not criminally responsible on account of mental disorder in 2011 for robbery, uttering threats, assault causing bodily harm, possession of property obtained by crime, and disguise with intent, challenged the Board's decision to maintain a detention order.

The appellant has diagnoses including schizophrenia, borderline intellectual functioning, cannabis use disorder, and antisocial traits.

During the year under review, the appellant had positive urine drug screens and exhibited poor insight into substance use disorder.

The Board found the appellant continues to pose a significant threat to public safety and ordered continued detention with opportunity for passes up to seven days when ready.

The Court of Appeal dismissed the appeal, finding the Board's decision was not unreasonable and well-supported by evidence.

On appeal from a trial judgment in a family law matter following marriage breakdown, the appellant challenged the trial judge's order requiring her to pay the respondent $128,560 for his interest in the matrimonial home and requiring the respondent to pay an equalization payment of $166,674.64 by pension rollover.

The appellant argued the trial judge erred in refusing to set off the respondent's equity in the home against the equalization payment owed.

The Court of Appeal dismissed the appeal, finding the trial judge had jurisdiction to make the order and did not err in exercising his discretion to refuse the set-off.

The appellant was convicted of pointing a firearm, possession of a firearm contrary to prohibition, possession of a firearm knowingly unauthorized, and operating a motor vehicle disqualified.

He received nine months' incarceration (after credit for pre-trial custody) and three years' probation.

On appeal, the appellant challenged the convictions on four grounds: inadequate consideration of inconsistencies in complainant evidence, misapprehension of evidence regarding whether the meeting was accidental or pre-arranged, erroneous reliance on precedent regarding firearm possession, and unreasonableness of verdict.

The Court of Appeal dismissed all grounds of appeal and upheld the conviction.

Crown appeal from a trial judge's stay of proceedings against three respondents charged with conspiracy to smuggle Polish nationals from Canada into the United States, and related offences.

The trial judge granted a s. 11(b) Charter application, finding that the respondents' rights to trial within a reasonable time had been violated due to unreasonable delay of 39.75 months.

The trial judge characterized delays arising from defence counsel unavailability as institutional delay.

The appellate court allowed the appeal, finding the trial judge erred in mischaracterizing defence counsel unavailability as institutional delay under the Jordan framework.

The court held that when the Crown and court were ready to proceed but defence counsel were not available on multiple offered dates, the delay should be attributed to the defence.

After properly attributing defence delay, the remaining delay of 29 months fell within the Jordan presumptive ceiling of 30 months, and the respondents failed to demonstrate unreasonable delay.

The charges were ordered to proceed to trial.

An appellant who was found not criminally responsible on a charge of assault in 2007 appealed a Superior Court decision dismissing her application for a declaration that section 672.56 of the Criminal Code violated her Charter rights under section 7.

The appellant argued that the section did not afford a not criminally responsible accused the ability to compel the Ontario Review Board to hold a hearing to review a decision by a hospital to significantly increase restrictions on liberty.

The Court of Appeal dismissed the appeal, finding that Part XX.1 of the Criminal Code provides adequate procedural safeguards and liberty protections for such accused persons.

Two members of the YBK (Young Buck Killers) criminal organization appealed their convictions for gang-related offences including trafficking in firearms and drugs.

The appellants challenged the trial judge's jury instructions on trafficking charges, territorial jurisdiction, and hearsay evidence.

The Court of Appeal upheld all convictions, finding no misdirection on the trafficking charges, no jurisdictional error as the offences had meaningful connections to Ontario, and no error in the admission of hearsay evidence.

The applicant's leave to appeal sentence was granted but the sentence of 13 years' imprisonment was upheld as proportionate to the serious offences committed in furtherance of a violent criminal organization.

The appellant appealed his conviction for second degree murder on the grounds of Crown non-disclosure.

The Crown failed to disclose medical records relating to the appellant's mother's health until partway through the appellant's cross-examination.

These records were relevant to the appellant's defence that his mother, rather than the appellant, killed the victim.

The trial judge initially dismissed the mistrial application, expecting that expert evidence would neutralize any prejudice.

However, the expert changed his evidence at trial.

The Court of Appeal found a reasonable possibility that the non-disclosure affected the overall fairness of the trial process and ordered a new trial.

An appellant found not criminally responsible on grounds of mental disorder appealed the Ontario Review Board's disposition placing him on a detention order with removal of an alcohol prohibition condition.

The appellant argued the detention order was more restrictive than his previous conditional discharge and that the Board's objectives could have been achieved through maintaining the conditional discharge while removing only the alcohol prohibition.

The Court of Appeal upheld the Board's decision, finding that when viewed holistically with the privileges and prohibitions included, the detention order was actually less restrictive and was justified to allow implementation of a Community Treatment Order and to manage the appellant's risk to public safety.

The appellant appealed his conviction and sentence from the Superior Court of Justice.

The conviction appeal was dismissed as the appellant raised matters to which defence counsel did not object at trial and which did not affect the fairness of the trial.

However, leave to appeal sentence was granted and the sentence appeal was allowed.

The Crown conceded that the trial judge made calculation errors in sentencing.

The appellate court varied the sentence to time served.

The appellant appealed his convictions for theft of a pickup truck, dangerous driving, failing to stop for police, and mischief.

The central issue was who was driving the stolen truck during a high-speed chase on Highway 401.

The appellant claimed his companion, Mr. Gilbert, was driving, while Mr. Gilbert testified the appellant was the driver.

The trial judge accepted Mr. Gilbert's evidence as reliable and rejected the appellant's testimony as inconsistent and tailored.

The Court of Appeal upheld the convictions, finding no misapprehension of evidence or uneven scrutiny by the trial judge, and that the conclusions were reasonably drawn from the evidence.

The appellant appealed his conviction entered on April 23, 2015 and sentence imposed on August 4, 2015 by the Superior Court of Justice.

The Crown conceded that the trial judge erred by failing to provide reasonable assistance to the appellant in respect of Charter views.

The Court of Appeal allowed the appeal and ordered a new trial.

Supplementary reasons to an appeal of an order striking the appellant's fresh as amended statement of claim.

The respondents requested the court re-open the appeal and withdraw, alter, or modify its decision, arguing the court misapprehended the timing of the demand for particulars, the history of the bankruptcy proceeding, and conflated oral submissions with pleading content.

The court rejected the second and third arguments and, while acknowledging the respondents' point regarding the timing of the demand for particulars, declined to re-open the appeal as it was not in the interests of justice and the result would have been the same.

Vista owned a shopping mall and leased space to Zellers, which operated a retail store.

Zellers notified Vista in February 2004 of its intention to cease operations in May 2004, although the lease did not terminate until April 2005.

Vista sued, claiming Zellers was obliged under "continuous use" clauses in the lease to operate until the lease ended.

The trial judge found that Zellers was entitled to close when it did, interpreting the continuous use obligation as qualified by the hours of operation clause.

The Court of Appeal reversed, holding that the continuous use obligation in sections 8.01 and 8.05 was not overridden by the hours of operation clause in section 8.01.1, and that Zellers breached its obligation by closing prematurely.

The appellant was convicted of second degree murder following a violent altercation at a house party.

The appellant, then 19 years old, stabbed and killed a partygoer during a confrontation.

The appeal raised three main issues: (1) whether the appellant's police statement was voluntary despite repeated assertions of the right to silence and police suggestions regarding credibility at trial; (2) whether the trial judge erred in refusing to instruct the jury on the defence of others under section 34 of the Criminal Code; and (3) whether the trial judge's instructions on self-defence were unbalanced and failed to present evidence supporting the appellant's version of events.

The Court of Appeal found that the trial judge erred on all three grounds and allowed the appeal, ordering a new trial.

Appellants appealed the motion judge's refusal to enforce a settlement agreement reached at a pre-trial conference in a motor vehicle accident action.

The motion judge found that counsel's description of witnesses as "independent" amounted to civil fraud because the witnesses' son lived across the street from the plaintiffs.

The Court of Appeal allowed the appeal, holding that counsel's statement was an opinion with a reasonable basis made in good faith, not a false statement of fact.

The court emphasized that findings of civil fraud against counsel could have devastating reputational consequences and could chill resolute advocacy.

The court also found that the defendant failed to exercise due diligence in investigating the witnesses' connection to the plaintiffs.

The appellant appealed a five-year sentence for aggravated sexual assault involving forced sexual intercourse with a pregnant woman.

The appellant had prior convictions for sexual assault but received suspended sentences with probation in 2006.

The trial judge identified the appellant's intellectual limitations and mental health status as mitigating factors but did not adequately explain why these factors did not warrant a sentence in the lower range.

The Court of Appeal found the sentence was not properly calibrated to account for the significant mitigating factor of diminished intellectual capacity and reduced the sentence to four years.

The appellant and his common law spouse were both sentenced and given conditions prohibiting communication with each other while in custody.

The spouse received a six-year sentence while the appellant received nine years, eleven months and fifteen days.

The appellant sought a variation of the communication prohibition to allow contact with his spouse after her release while he remained in custody.

The trial judge had anticipated the possibility of future adjustment to this term.

The Court of Appeal granted the variation, allowing the appellant to communicate with his spouse if she initiates contact after her release.