OCA 2019

The appellant sought an extension of time to appeal from orders of the motion judge dated February 4, 2019 and April 10, 2019.

The motion judge had initially refused to dismiss the action as frivolous but gave the appellant 90 days to file an amended statement of claim.

Upon the filing of amendments, the motion judge struck out the amended statement of claim as frivolous and vexatious.

The Court of Appeal found that the amended statement of claim failed to articulate any legal basis for a claim against the respondent insurance company and dismissed the motion for extension of time without costs.

The moving party sought extensions of time to appeal three orders from the Superior Court: a contempt order dated October 10, 2017, a costs order dated January 26, 2018, and a sentencing order dated September 21, 2018, which struck the moving party's pleadings and allowed the respondent to proceed to an uncontested trial.

The motion judge dismissed the extensions for the first two orders on the basis of abuse of process, given the substantial delays, lack of satisfactory explanation, and the moving party's pattern of non-compliance with court orders and procedural rules.

However, the motion judge granted an extension for the sentencing order due to its severe procedural consequences, and stayed that order pending appeal.

The appellant, a former member of the Ontario College of Teachers' Council, appealed a motion judge's decision dismissing his anti-SLAPP motion under section 137.1 of the Courts of Justice Act.

The motion judge found that the appellant's communications to College members, the Attorney General, and the Minister of Education did not relate to matters of public interest and were merely private grievances.

The Court of Appeal found the motion judge committed a palpable and overriding error by failing to properly apply the objective test for public interest, impermissibly considering the appellant's motive at the first threshold step, and providing inadequate reasons that failed to engage with the appellant's arguments.

The appeal was allowed and the matter was remitted for rehearing before a different judge.

The appellant was jogging on an indoor track at McMaster University when struck from behind by a member of the Flying Angels Running Club, suffering a serious shoulder injury requiring surgery.

At trial, no negligence was found against McMaster University or the runner who struck the appellant.

However, the Flying Angels Running Club and its coach were found negligent.

The jury determined the appellant was 40 percent contributorily negligent for failing to move to a different lane when asked to do so.

The appellant received approximately $80,000 net in damages including prejudgment interest.

On appeal, the appellant challenged four evidentiary rulings by the trial judge: the characterization of lane one as the "default lane" in the jury charge, the exclusion of an email from a track employee, the exclusion of a letter to the Ontario Ministry of Labour, and the exclusion of insurance reimbursement charts.

The Court of Appeal dismissed all grounds of appeal, finding no error in the trial judge's evidentiary rulings and jury instructions.

This appeal concerns the correct analytical approach to fixing costs when an action is settled before adjudication on the merits.

Two infant plaintiffs were catastrophically injured when struck by a vehicle in 2004.

After more than ten years of litigation, the parties settled in June 2017, three months before trial.

The settlement provided for $1 million from each of the Potrebics and Pipolos, with costs to be determined by the court.

The motion judge apportioned costs based on his assessment of the parties' respective liability for damages, finding the Potrebics solely responsible.

The appellants challenged this apportionment and the quantum of costs awarded.

The appeal concerns the openness of a police services board hearing regarding an extension of time for service of a disciplinary notice.

Following an investigation by the Ontario Independent Police Review Director into allegations of police misconduct in the investigation of the death of an Indigenous man, a retired judge appointed as a substitute decision-maker ordered that the extension hearing be held in camera.

The Canadian Broadcasting Corporation and First Nation complainants sought judicial review, arguing that the hearing should be open pursuant to section 2(b) of the Canadian Charter of Rights and Freedoms.

The Divisional Court upheld the in camera order, finding that the Dagenais/Mentuck test did not apply to administrative proceedings and that the statutory test under the Police Services Act was sufficient.

The Court of Appeal allowed the appeal, finding that while the Dagenais/Mentuck test does not apply to administrative proceedings, the Charter right to freedom of expression and freedom of the press recognized in Langenfeld applies to police services board meetings, and the presumption of openness under the Police Services Act must be considered in light of this Charter protection.

The Crown appealed the acquittal of the respondent on charges of assault with a weapon, breaking and entering, robbery, and aggravated assault.

The Crown argued that the trial judge erred in law by assessing the evidence piecemeal rather than considering it holistically, thereby failing to appreciate how the cumulative evidence built the strength of the Crown's case.

While the appellate court found that the trial judge did commit an error of law in her approach to the evidence, the appeal was dismissed because the victim—a Crown witness who knew the respondent well—testified with certainty that the attacker was not the respondent.

This independent exculpatory evidence raised a reasonable doubt that could not be overcome by the trial judge's error.

In a highly contentious family law matter involving child custody and support, the trial judge appointed two amicus curiae—one for the self-represented mother and one for the father after his counsel withdrew due to non-payment of fees.

The Crown appealed the amicus appointments.

Although the appeal became moot when the trial concluded with both amicus participating, the Court of Appeal issued a comprehensive judgment establishing principles governing amicus appointments in private family law cases.

The court held that the trial judge erred in principle by appointing the mother's former counsel as amicus (injecting adversarial elements inconsistent with amicus's impartial role) and by appointing a second amicus (contrary to principle in family law contexts).

The court emphasized that amicus appointments should be rare, essential to adequate discharge of judicial functions, and subject to clear, detailed orders specifying the scope of duties.

The appellants sought to transfer a proceeding before the Mining and Lands Tribunal to the Ontario Superior Court of Justice.

The respondent had commenced the Tribunal proceeding under section 181(2) of the Mining Act to require the appellants to pay their share of expenditures for mining development.

The appellants argued that an alleged oral agreement absolved them of any obligation to contribute and that this contract matter should be adjudicated by the Superior Court as a preliminary issue.

The application judge refused the transfer.

On appeal, the Court of Appeal upheld the refusal to transfer, finding that the Tribunal had specialized expertise in mining matters and that section 181(4) of the Mining Act provided the appellants with a procedure to raise their oral agreement defence before the Tribunal.

An appeal under Part XX.1 of the Criminal Code from a disposition of the Ontario Review Board dated March 6, 2019.

The appellant, declared not criminally responsible on account of mental disorder for dangerous operation of a motor vehicle, appealed a conditional discharge disposition that prohibited him from driving and required abstinence from alcohol.

The appellant argued the Board's conclusion that he posed a significant threat to public safety was unreasonable and unsupported by evidence, particularly given his suspended driver's licence.

The Court of Appeal dismissed the appeal, finding the Board's disposition reasonable and supported by evidence, but expressed concern about the lack of information available regarding the licence suspension and directed that detailed information be obtained for the next review.

The appellant appealed his conviction on identity evidence grounds.

The trial judge had found the complainant's identification of the appellant to be reliable despite a minor discrepancy regarding facial hair.

The Court of Appeal upheld the conviction, finding no error in the trial judge's treatment of identity evidence.

The trial judge had properly considered corroborative evidence, including a witness who confirmed details of the assailant's clothing, and had not placed undue weight on the complainant's confidence in her identification.

The appellant appealed his conviction for assault and his sentence.

The trial judge had rejected the appellant's section 35(1) defence of property.

The Court of Appeal upheld the conviction, finding that even if the appellant believed the complainants were about to unlawfully enter his home, his act of pointing a gun at the head of the female complainant and pulling the trigger was unreasonable in the circumstances.

The court distinguished the case from R. v. Weare on the basis that the appellant had invited the complainants' son to return and knew precisely why they appeared at his door and that they posed no unlawful threat.

The sentence had been served and was dismissed as moot.

An appeal from a summary judgment motion dismissing a claim for breach of confidence.

The appellant, a pharmaceutical company, alleged that the respondent misused confidential information regarding a potential equipment manufacturer (HED International) that was disclosed during a due diligence period for a failed asset purchase agreement.

The motion judge dismissed the claim, finding no detriment to the appellant.

The appellate court upheld the dismissal, finding that although the motion judge's approach to detriment was overly narrow, the appellant suffered no detriment as a matter of fact because it was not ready to manufacture its products and could not have benefited from direct access to the equipment manufacturer.

The receiver of assets in receivership proceedings moved to determine whether an appeal brought by Canada Investment Corporation (CIC) from an order of Penny J. was as of right or required leave under the Bankruptcy and Insolvency Act.

The order had directed that proceeds from the sale of the Caldwell property, otherwise payable to CIC, be paid to the Stanbarr Claimants based on findings in a prior action that CIC was indebted to them.

The motions judge held that the appeal was as of right under section 193(c) of the BIA because the order resulted in a loss to CIC by directing payment of funds otherwise due to it to third parties.

The receiver's motion was dismissed.

The appellant appealed a motion judge's decision dismissing his claim for indemnification against the respondent condominium corporation and refusing to vacate a lien.

The Court of Appeal upheld the motion judge's findings that the indemnification claim was barred by res judicata as a collateral attack on a prior decision finding the appellant acted in bad faith as a director, and that the lien was validly registered.

The court affirmed that the lien could be revised in accordance with the motion judge's order without affecting its underlying validity.

The appeal was dismissed with costs awarded to the respondent.

The appellants appealed a summary judgment dismissing their remaining claims for damages arising from the respondent municipality's enactment of a fill permit by-law and its unsuccessful prosecution of the appellants for breach of that by-law.

The appellants claimed malicious prosecution, misfeasance and abuse of public office, and damages from the invalid fee provisions.

The Court of Appeal upheld the summary judgment, finding no genuine issues requiring trial on any of the claims.

The respondent had reasonable and probable cause to initiate and continue the prosecution, and there was no evidence of bad faith or unlawful conduct in enacting the by-law.

The appellant appealed an 18-year sentence imposed for manslaughter in connection with a fatal shooting at a house party in Hamilton.

The appellant attended the party with a co-accused who was armed and recruited the appellant to provide protection.

A dispute over music led to gunfire in which the co-accused killed the victim and wounded another person, while the appellant fired a shot wounding a third person.

The appellant was convicted as a party to the manslaughter and of aggravated assault.

The sentencing judge imposed an 18-year sentence, which the Court of Appeal found to be in error based on erroneous characterization of the appellant's role and inappropriate use of the term "aggravated manslaughter."

The appellants appealed a trial judgment awarding the respondents general damages of $75,000 and punitive damages of $75,000 for defamation.

The trial judge found that the appellant, a City manager, made defamatory statements about the respondents' business during a meeting with a supplier representative, acted maliciously in response to complaints the respondent had made about him, and abused his position as a public officer.

The Court of Appeal upheld the findings of defamation, malice, and abuse of position, but set aside the punitive damages award, finding that the trial judge failed to analyze whether the compensatory damages were adequate to achieve the objectives of retribution, deterrence, and condemnation.

The appeal was allowed in part.

Consultants retained by multiple landowners to assist in obtaining government approval for urban development entered into a Cost Sharing Agreement providing for hourly fees and a bonus payment upon formal adoption of a Regional Official Plan Amendment.

One landowner purported to terminate the Agreement unilaterally in 2004.

The Regional Official Plan Amendment was adopted in 2009 with all appeals exhausted in 2015.

The consultants commenced an action for the bonus in 2015.

The respondents moved to dismiss on limitation grounds.

The motions judge dismissed the action.

On appeal, the appellants argued the termination was ineffective because only collective termination was permitted and that the limitation period had not expired.

The Court of Appeal held that while individual termination was not permitted, the appellants had accepted the anticipatory repudiation through their conduct and inaction over 11 years, thereby accepting the termination and causing the limitation period to expire.

The appellant was convicted after trial of two counts each of production and possession for the purpose of trafficking in marijuana, and theft of electricity, arising from the operation of two marijuana grow operations in residential premises owned by the appellant.

The appellant received a blended sentence of 15 months imprisonment followed by one year probation.

On appeal, the appellant challenged both the conviction and the sentence.

The Court of Appeal dismissed the appeal from conviction, finding no error in the trial judge's analysis of the search warrant validity and the sufficiency of the evidentiary predicate.

The appeal from sentence was also dismissed as the sentence was fit, though the victim surcharge was set aside.