OCA 2021

The applicant sought an extension of time to perfect an appeal of a lower court order dismissing his lawsuit.

The original lawsuit, based on the Canadian Charter of Rights and Freedoms, claimed pecuniary damages against a City of Toronto employee for failure to provide French services.

The motion for extension was denied due to the applicant's failure to demonstrate intent to appeal within the required timeframe, an unexplained lengthy delay, and the lack of merit of the underlying appeal.

The court found that an individual cannot be held liable for damages under the Charter, and the lawsuit against the city was prohibited by specific provincial statutes.

Honeycomb Hospitality Inc. sought a stay pending its application for leave to appeal a Divisional Court decision that affirmed summary judgment for wrongful dismissal and damages in favour of the employee.

The motion judge applied the three-part test for a stay, finding that while a serious issue was raised regarding pregnancy's role in Bardal factors, the employer failed to demonstrate irreparable harm if required to pay the judgment and costs into trust.

The balance of convenience also favored denying the stay.

The Appellants (Niagara Radio Group Inc., Northguard Capital Corp., and Andrew Ferri) brought a motion for an extension of time to perfect a consolidated appeal.

They initially sought to set aside or vary a previous order, but acknowledged that a single judge of the Court of Appeal lacked jurisdiction to do so.

The delay in perfecting the appeal was attributed to difficulties in issuing and entering court orders.

The Respondents (Hydro One Networks Inc. and Scargall Owen-King LLP) did not oppose the motion.

The motion was granted, extending the deadline for perfecting the appeal.

The moving parties sought an extension of time to perfect a motion to review an order of a single judge of the Court of Appeal.

The underlying order refused to direct the Registrar to accept a notice of appeal from a Superior Court decision, on the basis that the Superior Court decision was interlocutory.

The Court of Appeal dismissed the motion for an extension of time, finding no arguable merit to the review motion because the underlying orders—refusing to remove counsel, refusing to appoint a receiver, and refusing to declare non-parties vexatious litigants—were all interlocutory and therefore not appealable to the Court of Appeal.

Tbaytel, the moving party, sought to strike an affidavit filed by Optiva Inc., the responding party, in connection with Optiva's pending motion for leave to appeal an arbitration award.

The affidavit, from J. Brian Casey, aimed to provide factual information regarding the public importance of issues raised in the leave to appeal motion, specifically concerning the availability of summary judgment in arbitration without consent and the arbitrator's use of case law.

The court partially granted the motion, striking parts of the affidavit that expressed opinions on the legal importance of issues or buttressed attacks on the correctness of prior decisions, while allowing factual descriptions of common arbitration practices to remain.

The moving parties, a syndicate of six banks, sought to partially lift an automatic stay of a bankruptcy order pending appeal under s. 195 of the Bankruptcy and Insolvency Act.

The banks argued that the appellant was frustrating the bankruptcy process and might dissipate her assets.

The court found that the appellant's grounds of appeal were extremely weak and that maintaining the stay would prejudice the banks by preventing the trustee from identifying and preserving assets.

The court granted the motion, partially lifting the stay to allow the trustee to exercise specific powers under the BIA.

The appellants brought a motion to stay a judgment granting specific performance of an agreement of purchase and sale for their commercial property.

The court applied the three-part test for a stay: serious question, irreparable harm, and balance of convenience.

The court found the serious question threshold was met, acknowledged the irreparable harm to the appellants' business, and determined the balance of convenience favoured the appellants if the appeal was expedited.

The motion for a stay was granted, contingent on an expedited appeal schedule, and costs were awarded to the appellants.

The appellant appealed his sentence for serious offences including firearm, drug, and driving offences.

He argued the sentencing judge erred by failing to apply the jump principle, failing to apply Duncan credit, and failing to consider his personal circumstances including systemic issues.

The Court of Appeal dismissed the appeal, finding the jump principle was not engaged due to the increased seriousness of the current offences, the Duncan credit was properly considered and weighed by the sentencing judge, and the personal circumstances argument was not raised at trial and the Morris decision was not available at the time of sentencing.

The moving parties sought to review an order dismissing their motion to extend time to perfect an appeal of an Independent Review Order concerning St. Anne's Indian Residential School claims.

The Independent Review Order had appointed an independent special advisor to review certain concluded claims.

After the motion was heard, the independent review was completed, and its report approved.

The court found the appeal moot because the factual substratum had disappeared, and there were no grounds to exercise discretion to hear a moot appeal.

Consequently, the review motion was dismissed, and no extension of time to appeal was granted.

The moving parties sought an order extending the time to file a notice of appeal of a Superior Court decision that struck their statement of claim.

The Court of Appeal denied the motion, finding that the proposed appeal lacked merit and that granting the extension would cause ongoing prejudice to the responding parties due to the scandalous and vexatious nature of the allegations, which included conspiracy theories against lawyers, expert witnesses, court staff, and judges.

The court emphasized that the justice of the case did not warrant an extension given the lack of arguable grounds and the vexatious nature of the litigation.

The applicant, K.K., sought bail pending appeal after being convicted of sexual assault, uttering threats, and assault against his domestic partner.

The application was dismissed.

The court applied the three-part test for bail pending appeal under s. 679(3) of the Criminal Code, focusing on the public interest ground.

It found that the enforceability interest outweighed the reviewability interest due to the seriousness of the domestic violence crimes, the applicant's history of violence and non-compliance with court orders, a high risk of re-offending in domestic violence, and the appeal grounds not significantly surpassing the "not frivolous" standard.

Concerns were also raised about the proposed surety, who was a recent victim of the applicant's violence.

The appellant, Maxine Donna McLean, appealed the dismissal of her negligence action against Dr. Nikolaj Wolfson.

The action was dismissed by the motion judge due to Dr. McLean's repeated failure to produce medical records (a "recent X-ray" and related diagnoses) as requested and ordered, which were referenced in her Statement of Claim.

The Court of Appeal found that the motion judge properly exercised discretion in dismissing the action, given the ample time provided and lack of reasonable explanation for non-compliance.

The Court also declined to admit fresh evidence on appeal, as it did not correct the deficiencies and was not timely.

The applicant sought an extension of time to set aside a prior order that had denied him an extension of time to seek leave to appeal two Superior Court costs decisions.

The applicant cited ignorance of proper procedures, a mistaken belief about COVID-19 suspensions, and unhelpful legal counsel as reasons for the delay.

The respondents did not participate in the motion.

The court, applying the factors for granting an extension of time, acknowledged the applicant's explanation for delay but found significant prejudice to the unrepresented respondents due to the elapsed time and potential for further costs.

Furthermore, the court determined that the underlying costs issue, stemming from an arbitration where the applicant failed to claim full costs, lacked sufficient merit for an appeal, as parties are expected to present their entire claim, including costs, during arbitration.

Consequently, the motion for an extension of time was dismissed.

The applicant, G.J.R., sought bail pending appeal after his initial bail was revoked due to new charges while on house arrest.

The application was dismissed by the Court of Appeal for Ontario.

The court found that the applicant failed to satisfy the "not frivolous" test for the appeal's merits, specifically regarding the defence of honest but mistaken belief in communicated consent.

The trial judge's rejection of the defence was upheld, as it was based on independent reasons, including a finding of no evidence of communicated consent and a lack of reasonable steps taken by the applicant, and the trial judge's ultimate assessment of credibility.

The Court of Appeal for Ontario reversed a motion judge's decision that a debt arising from misappropriation of trade secrets would survive bankruptcy under s. 178(1)(e) of the Bankruptcy and Insolvency Act (BIA).

The motion judge erred by interpreting "false pretences" too broadly, including lying during discovery and generally morally objectionable conduct, rather than requiring a deceitful statement by which the debtor obtained property or services.

The Court clarified that s. 178(1)(e) requires a direct causal link between a deceitful statement and the obtaining of property/services.

The appeal was allowed, setting aside the declaration regarding s. 178(1)(e) and varying the stay of proceedings to allow quantification of claims for bankruptcy purposes and enforcement of injunctive relief, but not monetary judgments outside of bankruptcy.

This endorsement addresses two applications for leave to intervene in a criminal appeal from conviction, brought by the Canadian Police Association, Toronto Police Association, and Police Association of Ontario.

The underlying appeal concerns a police officer convicted of criminal negligence causing death and failing to provide necessaries of life to an intoxicated individual.

The court granted intervener status, finding that the associations had a substantial interest and could offer useful perspectives on legal issues such as the standard of care for police officers, the relevance of mistake of fact in objective liability offences, and the need for expert evidence on professional standards, provided they confined their submissions to legal arguments and avoided the merits of the appeal.

The appellant mother appealed a trial judge's order transferring primary care of the parties' two children to the respondent father, which included an initial period of no contact for the mother and a staged increase in parenting time.

The trial judge's decision, made after a 39-day trial, found the mother had intentionally undermined parenting schedules and made false allegations of sexual abuse to terminate the children's relationship with the father.

The Court of Appeal dismissed the appeal, upholding the trial judge's exercise of discretion and factual findings, emphasizing the deference owed to trial judges in parenting orders, especially when the decision has already been implemented.

The court found no error in the trial judge's evidentiary rulings or her consideration of the Divorce Act regarding family violence, as the mother's allegations were not established.

J.T. appealed convictions for possessing and making child pornography available, arguing two errors by the trial judge: admitting expert evidence without qualification regarding file downloading, and committing a Sekhon error by relying on anecdotal evidence that child pornography does not automatically appear on computers.

The Court of Appeal dismissed the appeal, finding the first point did not require expertise as it was mundane factual evidence, and the second was not a Sekhon error as the testimony explained technical operation, not guilt, and did not reverse the burden of proof.

In this addendum to a prior decision, the Court of Appeal for Ontario finalized the terms of probation for the appellant, Ahmed Marzouk, after having allowed his sentence appeal.

The court varied the sentence to two years less a day followed by a one-year probation, and subsequently ordered that the probation terms include those agreed to by counsel plus 60 hours of community service.

The appellant, Bradley Priestap, appealed his convictions for multiple counts of voyeurism, break and enter to commit voyeurism, possession of instruments for break and enter, and prowling.

He abandoned his sentence appeal.

The grounds of appeal were: the trial judge failed to provide adequate reasons, erred by summarily dismissing an alternate suspect theory, and ineffective assistance of counsel.

The Court of Appeal dismissed the appeal, finding the trial judge's reasons sufficient, no error in limiting evidence on an alternate suspect due to lack of connection, and no demonstration of prejudice from alleged ineffective assistance of counsel.