OCA 2022

The Crown brought a motion to cancel D.L.'s bail pending appeal or, alternatively, for a bail review, after D.L. was charged with new sexual offences while on release.

The court determined the matter was properly a bail review based on a material change in circumstances.

The motion to cancel bail was dismissed due to lack of jurisdiction under s. 524 of the Criminal Code, as the undertaking had expired.

However, the court ordered D.L.'s release under more restrictive terms and conditions, including "house arrest" with a surety, to address public safety and public confidence concerns, finding the existing release order inadequate.

Stuart Murray, convicted of fraud, sought an extension of time to appeal his conviction, arguing his guilty plea was involuntary and uninformed due to his mental state and unexpected collateral consequences from Law Society proceedings.

The Crown opposed, citing delay and lack of merit.

The motion judge granted the extension, finding that psychiatric evidence raised sufficient doubt about Murray's cognitive functionality at the time of the plea and adequately explained the delay, thus warranting an appeal on the validity of the guilty plea.

The appellants sought to appeal a Superior Court order refusing a sealing order, made in the context of a disability settlement approval.

The preliminary issue for the Court of Appeal was to determine if the order refusing the sealing order was a final or interlocutory order for jurisdictional purposes.

The Court found that the order, along with other concurrent orders dismissing claims, constituted a final disposition of the proceeding, thus making it a final order properly appealable to the Court of Appeal.

The appellant, Lynn Larabie, as executrix of her parents' estate, appealed a Superior Court decision that dismissed her application to quash a zoning by-law passed by the Township of Moonbeam.

The by-law rezoned an adjacent property to permit expansion.

The appellant argued the Township failed to provide proper statutory notice under the Planning Act and regulations, and acted in bad faith.

The application judge found the by-law procedurally illegal due to notice failures but exercised discretion not to quash it, finding no bad faith and negligible broader consequences.

The Court of Appeal upheld the application judge's decision, finding no error in the bad faith analysis or the exercise of discretion not to quash the by-law, despite the procedural illegality.

The appellant appealed his conviction and sentence.

The conviction appeal challenged search warrants, arguing the trial judge erred in refusing cross-examination of the affiant and that there were insufficient grounds for the warrants.

The sentence appeal argued the trial judge erred in treating the duration of activities as an aggravating factor.

The Court of Appeal dismissed the conviction appeal, finding no error in refusing cross-examination or in the warrant's issuance.

It allowed the sentence appeal, converting the nine-month custodial term to a conditional sentence order due to the trial judge's error and mitigating factors.

The appellant, Marc Jean, appealed his convictions and sentence, arguing his guilty plea was uninformed due to a lack of awareness regarding the significant immigration consequences.

The respondent conceded the appeal should be allowed based on fresh evidence supporting the uninformed plea.

The Court of Appeal agreed, finding a reasonable possibility that the appellant would have proceeded differently had he understood the consequences.

The conviction was set aside, and a new trial ordered.

This is a costs endorsement following an appeal decision where the Court of Appeal allowed the appeal, restored an arbitrator's award, and awarded costs of the appeal to the appellant.

The court set aside the application judge's original costs order and awarded costs of the proceedings before the application judge to the appellant, Halton Condominium Corporation No. 137, in the sum of $8,083.33, inclusive of disbursements and applicable taxes.

The appellant, a dual status dangerous offender under the jurisdiction of the Ontario Review Board, appealed the Board's decision declining a placement hearing and affirming his detention in a penitentiary over a maximum-secure forensic hospital.

The Board found the penitentiary placement appropriate given the appellant's extreme risk of re-offence, supported by uncontradicted expert evidence.

The Court of Appeal upheld the Board's decision, emphasizing that a court-imposed penitentiary sentence takes precedence for dual status offenders and that the Board's paramount responsibility is public safety.

The appeal was dismissed as the Board's findings were reasonable and amply supported by the record.

This is a costs endorsement following an appeal where the appellants were substantially successful on the quantum of damages.

The parties could not agree on costs.

The court fixed costs at $27,000, inclusive of HST and disbursements, to be paid by the respondent to the appellants, emphasizing that the amount should be fair and reasonable rather than an exact measure of actual costs.

The appellant was convicted of importing cocaine and appealed on two grounds: the trial judge erred by allowing expert evidence on the likelihood of a drug organization using a blind courier, and by not providing a limiting instruction to the jury.

The Court of Appeal dismissed the appeal, finding no error in admitting the expert evidence, particularly because defence counsel introduced the topic during cross-examination and agreed to the rephrased question.

The court also found no need for a limiting instruction as the evidence was not prejudicial and its exploration was a tactical decision by the defence.

This endorsement addresses the costs of a contempt motion brought by McDonald's against North Elgin Centre Inc. (NEC), and NEC's cross-motion for declaratory relief.

Both the motion and cross-motion were dismissed.

NEC, as the successful party, sought substantial indemnity costs of $153,368.

McDonald's argued for $15,000.

The court found NEC substantially successful but awarded partial indemnity costs of $37,000, significantly reducing the amount claimed.

The reduction was based on the unreasonableness of NEC's claimed hours, the failure to delegate work to lower-cost timekeepers, and the fact that McDonald's prepared most of the voluminous record.

The court also found NEC's offer to settle did not comply with Rule 49 and thus did not attract substantial indemnity cost consequences.

The appellants were convicted of distributing child pornography, advertising sexual services, procuring a person under 18, and receiving financial benefit from sexual services provided by a minor.

They appealed their convictions, arguing errors in Vetrovec instruction and jury misdirection on procurement.

They also sought leave to appeal their sentences, alleging the trial judge made findings of fact inconsistent with the jury's verdict.

The Court of Appeal dismissed the conviction appeal, finding no error in the Vetrovec decision or the jury instructions on procurement, noting the overwhelming evidence of control.

On the sentence appeal, the court agreed the trial judge erred by relying on violence allegations for sentencing after acquittals on related charges.

While this reduced the fit sentence for procurement, the overall global sentences remained appropriate for one appellant.

For the other appellant, fresh evidence regarding his rehabilitation and current circumstances led to a stay of execution for the remainder of his sentence.

This is an appeal from a judgment granting partial summary judgment in favour of the respondent, Learmont Roofing Ltd. The appellants, Learmont Construction Ltd. et al., argued that the motion judge erred in finding no genuine issues for trial and in granting partial summary judgment without considering the risk of inconsistent findings with ongoing counterclaims.

The Court of Appeal found no merit in these arguments, agreeing that no genuine issues for trial were raised and that the counterclaims were not intertwined with the trust claim in a way that would lead to factual inconsistencies.

The appeal was dismissed.

The appellants sought an adjournment of their appeal, citing illness and lack of preparation, which was denied by the Court of Appeal.

The court proceeded with the appeal in writing, finding it to be without merit and brought primarily for delay.

The court upheld the application judge's finding that the lease was properly terminated and that the tenants owed rent arrears, dismissing the appeal with costs.

The appellant, representative plaintiff in a class action concerning defective temporomandibular joint (TMJ) implants, appealed the dismissal of her action following a trial of common issues.

She alleged the Canadian government (Health and Welfare Canada, HWC) owed a duty of care to regulate and warn about the devices.

The Court of Appeal upheld the trial judge's finding that no private law duty of care was owed by HWC, either through the legislative scheme or through interactions with class members, and found no palpable and overriding error in the trial judge's factual findings regarding the approval status of the devices.

The Attorney General's cross-appeal on costs was granted leave but dismissed, with the court affirming the trial judge's discretion in awarding costs, particularly considering the public interest nature of the case and the Class Proceedings Fund.

The appellant, Joan Holmes, appealed a summary judgment granted in favour of the respondents, Aurelio and Maria Acquaviva, in a mortgage enforcement action.

Holmes had defaulted on a mortgage payment and subsequently alleged an elaborate mortgage fraud against the respondents and others in a separate action.

The motion judge found no genuine issue requiring a trial, concluding that Holmes had not provided evidence to support her fraud claims and that the mortgage claims were severable from her fraud allegations.

The Court of Appeal upheld the motion judge's decision, finding no error in his analysis or conclusion that there was no genuine issue requiring a trial.

The appeal was dismissed, and costs were awarded to the respondents on a full indemnity scale.

This appeal concerned the interpretation of a forum selection clause in a Share Purchase Agreement (SPA).

The appellants, Savanta Inc. and GEI Consultants, Inc., sought to stay portions of an action and counterclaim, arguing that the clause conferred exclusive jurisdiction on Massachusetts courts.

The clause stated disputes "must be brought in any state or federal court... in Massachusetts, and each Party irrevocably submits and agrees to attorn to the non-exclusive jurisdiction of such court." The motion judge found the clause ambiguous and thus non-exclusive, allowing Ontario to retain jurisdiction.

The Court of Appeal upheld the motion judge's decision, finding no palpable and overriding error in her interpretation that the term "non-exclusive" applied to the jurisdiction generally, not merely between state and federal courts within Massachusetts.

The appellant appealed the dismissal of her application to set aside her deceased mother's will, alleging lack of testamentary capacity, suspicious circumstances, and undue influence.

She also sought leave to appeal the partial indemnity costs order made against her.

The Court of Appeal dismissed the appeal regarding the will's validity, finding no reversible error in the application judge's findings that the mother had the requisite capacity and the will was not surrounded by suspicious circumstances or undue influence.

However, the court granted leave to appeal the costs order, set it aside, and ordered that the appellant bear her own costs of the application, while the respondents' costs are payable from the estate, as the grounds raised by the appellant, though unsuccessful, were not frivolous and warranted court scrutiny.

The appellant, Chang Jiu Chen, appealed a summary judgment that found his purported rescission of an Agreement of Purchase and Sale for a condominium unit invalid and constituted an anticipatory breach.

The appellant claimed a "material change" under the Condominium Act, 1998, due to uncompleted amenities (parkette and entry/exit gates).

The Court of Appeal upheld the motion judge's decision, ruling that the uncompleted amenities were statutorily excluded from the definition of "material change" and that the appellant's prior communications demonstrated an unwillingness to close, thus constituting an anticipatory breach.

The court also affirmed a good faith requirement for notices of rescission under the Act.

The appeal was dismissed, and costs were awarded to the respondent.

The appellant, Gary Willett, appealed his convictions for child abduction, assault, and theft over $5,000.

He brought a fresh evidence application, including the complainant's testimony from his wife's separate trial, which significantly differed from previous evidence.

The Crown conceded the fresh evidence should be admitted and the convictions quashed.

The Court of Appeal applied the Palmer criteria, finding the new evidence admissible as it undermined the complainant's credibility and the reliability of his original testimony, thereby affecting the safety of all verdicts.

Consequently, the convictions were quashed, and a new trial was ordered on all counts.