OCA 2020

The moving parties sought a stay of two orders of the Court of Appeal pending their application for leave to appeal to the Supreme Court of Canada.

The underlying dispute involved the respondent's termination of 36 standard-form Feed-in Tariff Contracts for solar power facilities.

Applying the three-part test for a stay, the motion judge found that the proposed appeal raised serious questions of law regarding contractual interpretation, that the moving parties would suffer irreparable harm if the contracts were terminated and their loans called, and that the balance of convenience favoured preserving the status quo.

The motion for a stay was granted.

The appellant pleaded guilty to possession of ketamine for the purpose of trafficking, producing ketamine, and failing to comply with a recognizance.

He appealed his convictions, seeking to set aside his guilty pleas to challenge a pre-trial ruling under s. 11(b) of the Charter, and appealed his 15.5-year sentence.

The Court of Appeal dismissed the conviction appeal, finding the guilty pleas were voluntary, unequivocal, and informed.

However, the Court allowed the sentence appeal, finding the original sentence demonstrably unfit and disproportionate for a first-time offender who pleaded guilty.

The total sentence was reduced to 10 years.

The appellant appealed a judgment dismissing his anti-SLAPP motion and granting summary judgment of $50,000 in favour of the respondent physician for defamation.

The appellant had posted derogatory comments about the respondent on a doctor rating website after the respondent testified as an expert in a medical malpractice trial involving the death of the appellant's brother.

The Court of Appeal upheld the motions judge's findings that the anti-SLAPP motion failed and that the respondent had proven publication, authorship, and malice for the defamation claim.

The appeal was dismissed with costs.

The appellant appealed his convictions for possession of prohibited firearms, challenging the dismissal of his Charter application to exclude evidence.

He argued the search warrant for his residence was invalid because it did not specify his unit in a multi-unit dwelling, the confidential informant's information lacked corroboration, and the police unlawfully seized his vehicle.

The Court of Appeal dismissed the appeal, finding the warrant adequately described the location, the informant's information was sufficiently corroborated, and the vehicle seizure was authorized under the Criminal Code and the Controlled Drugs and Substances Act.

The appellant appealed his dangerous offender designation and indeterminate sentence following convictions for multiple offences against an intimate partner, including sexual assault with a weapon and forcible confinement.

The appellant argued the sentencing judge misapprehended expert evidence regarding his likelihood of recidivism and failed to properly assess the intractability of his conduct.

The Court of Appeal dismissed the appeal, finding no misapprehension of the expert evidence on age-related decline in violent behaviour.

The Court held that the sentencing judge's findings on intractability at the sentencing stage could be applied to the designation stage, and that the indeterminate sentence was appropriate given the appellant's poor treatment prospects and high risk of violent reoffending.

The moving party, having been successful, was awarded costs fixed at $5,000 all inclusive, payable within 30 days.

The appellants appealed a summary judgment ordering them to pay $185,999.32 under Minutes of Settlement and dismissing their counterclaim.

The appellants argued the Minutes were unenforceable due to economic duress, claiming they were pressured by a construction lien that prevented refinancing.

The Court of Appeal upheld the motion judge's finding that there was no genuine issue for trial, as the appellants failed to satisfy the first prong of the economic duress test: they did not protest, had independent legal advice, had alternative courses of action, and took no timely steps to avoid the agreement.

The appeal was dismissed.

The moving party, who was convicted of sexual assault and administering a noxious substance, applied to vary his release order to extend his surrender date pending appeal.

The Crown opposed the extension, arguing that following a recent Supreme Court of Canada decision, the moving party could no longer show that his detention was not necessary in the public interest.

The motion judge found that while the proposed grounds of appeal did not appear strong, they surpassed the 'not frivolous' criterion.

Given the moving party's uneventful bail history and the short period required before the appeal could be heard, the motion judge concluded that the public interest in reviewability outweighed the enforceability interest.

The application to extend bail was granted.

The appellant, a refugee in Canada, sued his former Kuwaiti employers and others for damages arising from alleged torture and conspiracy in Kuwait.

The motion judge stayed the action for want of jurisdiction, finding no real and substantial connection to Ontario and declining to apply the forum of necessity doctrine.

The Court of Appeal dismissed the appeal, holding that the motion judge made no error in principle and his discretionary decision, based on a lack of cogent evidence supporting the appellant's claims of exceptional circumstances, was entitled to deference.

The appellant, a transit enforcement officer, appealed his convictions for fabricating evidence and obstruction of justice, as well as his sentence.

He had issued fraudulent tickets to homeless individuals to cover up time theft.

The Court of Appeal dismissed the conviction appeal, finding the trial judge did not err in rejecting the appellant's alternative inference that the tickets were issued on information and belief.

However, the sentence appeal was allowed, and the 14-day intermittent sentence was reduced to time served, in light of recent jurisprudence making conditional sentences available for fabricating evidence.

The Crown applied to quash the respondent's application to re-open his appeal against conviction for a home invasion.

The Crown argued the court was functus officio because reasons dismissing the appeal had already been released, and alternatively, that re-opening was not in the interests of justice.

The Court of Appeal dismissed the Crown's application, holding that a court is not functus officio until the formal order is entered, which had not occurred here.

The court also found the application to re-open, based on proposed fresh evidence of innocence, had a reasonable prospect of success and should proceed to a hearing.

The appellant brought an adjournment application because a litigation guardian was recently appointed and the appellant had been hospitalized for mental health concerns.

The respondent opposed the adjournment.

The Court of Appeal granted the adjournment, setting timelines for responding to a Rule 2.1 application and scheduling the appeal hearing.

The moving parties (respondents on appeal) brought a motion for security for costs of the appeals under rule 61.06(1) of the Rules of Civil Procedure.

The underlying trial involved claims of unpaid loans and joint investments, which the trial judge resolved in favour of the moving parties based largely on credibility findings.

The motion judge found that while the appeals were weakly arguable, they were not frivolous or vexatious, as the responding party raised a potential error of law regarding the characterization of the payments.

Furthermore, the responding party provided evidence of sufficient income in Ontario, and there was no 'other good reason' such as fraud or hidden assets to justify the order.

The motion for security for costs was dismissed.

The appellants, a real estate agent and brokerage, appealed a trial judgment granting rescission of an agreement of purchase and sale and the return of a $50,000 deposit to the respondent purchaser.

The appellants had negligently misrepresented the size of the home as 2,000-2,500 square feet, when it was actually 1,450 square feet.

The appellants argued that the purchaser's physical inspection of the property displaced his reliance on their misrepresentation.

The Court of Appeal dismissed the appeal, holding that inspection does not absolutely displace reliance in law, and the trial judge correctly considered contextual factors including the substantial discrepancy in size and the purchaser's inexperience.

The Crown appealed a stay of proceedings granted to five accused charged with a $13 million fraud.

The trial was delayed by 60 months, significantly exceeding the 30-month presumptive ceiling established in Jordan.

The Crown argued the delay was justified by the complexity of the case, the unexpected illness of two judges, and transitional exceptional circumstances.

The Court of Appeal dismissed the appeal, finding the application judge properly accounted for the case's complexity and the discrete event of the judges' illnesses, and correctly concluded that the delay was unreasonable and could not be justified under the transitional exception.

The appellant appealed his convictions for breach of undertaking, sexual assault, and uttering threats against his ex-partner.

He argued that the trial judge misapprehended the evidence, that the Crown improperly cross-examined him on the details of his prior convictions, and that he received ineffective assistance of counsel.

The Court of Appeal found that while the Crown's cross-examination on the appellant's criminal record was improper, it did not unduly influence the trial judge's credibility assessment or lead to a miscarriage of justice.

The court also rejected the ineffective assistance of counsel claim, finding no merit in the allegations.

The appeal from conviction was dismissed, and leave to appeal the sentence was denied.

The parties separated in 2004 and entered into a separation agreement in 2005 requiring the respondent to pay spousal support.

The agreement included a material change clause and a retirement adjustment clause.

Following the respondent's retirement in 2016, he brought a motion to reduce spousal support.

The trial judge reduced the support payable, declining to impute income based on a 2009 early pension payout or to immediately impute maximum LIRA withdrawals.

The appellant appealed, arguing the trial judge failed to address her economic hardship and misapprehended the evidence.

The Court of Appeal dismissed the appeal, finding no error in principle or significant misapprehension of the evidence in the trial judge's assessment of the parties' circumstances.

The appellant appealed his convictions for sexual assault, sexual interference, and assault against his former girlfriend's children, as well as his dangerous offender designation and indeterminate sentence.

He argued the trial judge erred in assessing the credibility of the child complainant and improperly took judicial notice of child behaviour in sexual abuse cases.

He also argued his severe physical disabilities from a stroke reduced his risk of reoffending, warranting a determinate sentence.

The Court of Appeal dismissed the conviction appeal, finding no palpable and overriding error in the trial judge's credibility assessments.

The sentence appeal was also dismissed, as the trial judge reasonably concluded the appellant's risk could not be managed in the community despite his physical impairments.

The appellant, a unionized employee of the Ontario Public Service, commenced a civil action against her employer and union alleging workplace discrimination and harassment.

The motion judge dismissed the action for lack of jurisdiction, finding that the essential character of the dispute arose from the collective agreement and was therefore within the exclusive jurisdiction of a labour arbitrator or the Human Rights Tribunal of Ontario.

On appeal, the appellant argued that section 46.1 of the Human Rights Code granted the court concurrent jurisdiction.

The Court of Appeal dismissed the appeal, affirming that section 46.1 does not override the exclusive jurisdiction of labour arbitrators where the dispute arises from a collective agreement and no independent civil wrong is pleaded.

The appellants were convicted of drug trafficking offences following the execution of search warrants at two condominiums and a vehicle.

They appealed their convictions and sentences, arguing that the searches violated their s. 8 Charter rights and that a delay in facilitating access to counsel violated s. 10(b).

The Court of Appeal found that the searches were lawful, with the warrantless entry justified by exigent circumstances.

Although the court found a s. 10(b) breach due to a four-hour delay in providing access to counsel, it declined to exclude the evidence under s. 24(2), noting the breach was an isolated incident rather than systemic.

The appeals against conviction and sentence were dismissed.