OCA 2023

The appellants, Roslyn Blake and Claire Graham, appealed their convictions, seeking a stay of proceedings due to unreasonable delay under section 11(b) of the Charter, relying on the framework established in *R. v. Jordan*.

The Court of Appeal assumed, without deciding, that Ms. Graham's net delay could exceed 30 months.

However, the court upheld the trial judge's finding in Ms. Blake's case that the complexity of the matter justified the delay beyond the presumptive ceiling, noting that this assessment was equally applicable to both co-accused appellants.

The court emphasized the deference owed to the trial judge's expertise in assessing case complexity.

The appeals were dismissed.

The respondent, Ping Deng, brought a motion to quash an appeal filed by the appellants, Danjing Han and Canamex Fire Protection International Inc., arguing that the Ontario Court of Appeal lacked jurisdiction.

The original trial judgment awarded damages of $39,797.26 and dismissed a claim for punitive damages of $50,000.

Citing sections of the Courts of Justice Act, the Court of Appeal determined that appeals involving single payments not exceeding $50,000 or dismissed claims for amounts not more than $50,000 fall under the jurisdiction of the Divisional Court.

Consequently, the motion to quash was allowed, and the appeal was quashed.

The court declined to transfer the appeal but allowed the appellants to seek leave to extend the time to appeal to the Divisional Court.

The plaintiff appealed a partial summary judgment dismissing her action against the Town of Hanover.

The Court of Appeal allowed the appeal, finding the motion judge erred by making credibility determinations on conflicting evidence that should have been left for trial, as the issues were inextricably intertwined with those remaining for trial against other defendants, leading to a risk of inconsistent findings and substantive injustice.

The fresh evidence motion was dismissed, and costs were reserved to the trial judge.

Bluecore Capital Inc., the respondent on appeal, brought a motion to lift the automatic stay of a bankruptcy order against Sergio Grillone, the appellant, and for an order requiring Mr. Grillone to post security for costs of the appeal.

The motion judge granted the motion, finding that Mr. Grillone had not diligently prosecuted his appeal, his grounds of appeal were very weak, he had failed to satisfy previous cost orders, and the relative prejudice strongly favoured lifting the stay to allow a trustee to manage his assets for the benefit of creditors.

The court also ordered Mr. Grillone to post $30,000 as security for costs.

The appellants, Frank Dorsey and Ghassan Salah, appealed a Superior Court decision that denied their applications for habeas corpus to challenge the Correctional Service of Canada's refusal to reclassify and transfer them to lower-security institutions.

The application judge found that these denials did not constitute a deprivation of residual liberty reviewable by habeas corpus.

The Court of Appeal, in a majority decision, upheld the application judge's finding, concluding that a refusal to reclassify an inmate to a lower security level, without a change in the conditions of detention or an entitlement to greater liberty, does not amount to a deprivation of residual liberty for the purposes of habeas corpus.

The Court affirmed that the existing grievance procedure and judicial review in the Federal Court are the appropriate avenues for such challenges.

The dissenting judge argued that an unlawful reclassification refusal could crystallize an initially lawful deprivation of liberty into an unlawful one, making it reviewable by habeas corpus.

The respondent, Sara Baker, suffered a stroke and was denied long-term disability benefits by the appellant, Blue Cross Life Insurance Company of Canada.

A jury at trial found in favour of Baker, awarding retroactive benefits, aggravated damages, and $1.5 million in punitive damages, along with full indemnity costs.

Blue Cross appealed the punitive damages award and sought leave to appeal the costs award.

The Court of Appeal dismissed the appeal of the punitive damages, finding ample evidence of Blue Cross's reckless indifference or deliberate strategy to deny benefits, and that the quantum was rationally connected to deterrence.

The Court granted leave to appeal costs but ultimately dismissed the costs appeal, upholding the full indemnity costs based on Blue Cross's misconduct and the respondent's settlement offer, correcting the trial judge's reasoning for the costs award.

The appellant, Safwat Sadek, appealed his convictions for criminal harassment, uttering a threat, impersonating a peace officer, and firearm/weapons offences.

The appeal focused on the admissibility of evidence seized from his apartment and vehicles following alleged Charter breaches by police.

The trial judge excluded evidence from the apartment due to serious s. 8 Charter breaches but admitted evidence from the vehicles, deeming those breaches "technical." The Court of Appeal upheld the trial judge's decision, finding that even considering the serious apartment breaches, the s. 24(2) Grant analysis did not warrant exclusion of the vehicle evidence, as the connection was remote and the impact on privacy in vehicles was minimal.

The appeal was dismissed.

This is an appeal from the Divisional Court, which upheld a certification judge's decision that a class action claim for breach of fiduciary duty against investment advisors did not disclose a cause of action.

The Court of Appeal for Ontario examined whether the claim adequately pleaded an ad hoc fiduciary relationship, considering factors beyond just professional rules.

The Court found that the lower courts erred by narrowly interpreting the pleading, and that the claim, taken as a whole, sufficiently pleaded vulnerability, trust, reliance, and discretion, in addition to breaches of professional standards.

The appeal was allowed, declaring that the claim did disclose a cause of action for breach of a class-wide fiduciary duty, and the matter was remitted for redetermination of other certification criteria.

The Debtors (Ten 4 System Ltd., 1000043321 Ontario Inc., and 1000122550 Ontario Inc.) sought leave to appeal an order appointing a receiver over their assets, pursuant to s. 193(e) of the Bankruptcy and Insolvency Act.

The Royal Bank of Canada, the creditor, opposed the motion.

The court dismissed the motion for leave to appeal, finding that the proposed grounds of appeal lacked prima facie merit, did not raise issues of general importance, and that granting leave would unduly hinder the receivership administration.

Costs were awarded to RBC.

The appellant, David Menezes, appealed his sentence for criminal harassment, arguing he was improperly denied pre-sentence custody (PSC) credit.

He had been on a conditional sentence order (CSO) for assault, breached it, and was arrested for the breach and criminal harassment.

He spent six months in custody before his CSO breach hearing, where he received a one-month custodial term.

He remained in custody until sentencing for criminal harassment.

The trial judge denied PSC credit for the initial six-month period, reasoning the CSO was running, but granted four months' credit for harsh conditions.

The Court of Appeal found that the CSO was indeed running during the initial six-month detention period under s. 742.6(12) of the Criminal Code, as he was presumptively detained under s. 515(6).

However, the CSO was suspended during the subsequent two-month period (after the breach disposition until sentencing for harassment) because he remained in custody awaiting sentencing for the new charge.

The Court allowed the appeal in part, granting an additional three months of PSC credit for this two-month period, while upholding the denial of credit for the initial six months.

The appellant appealed four summary judgments granted against him for various debts (mortgages, lines of credit, credit card).

The appellant's arguments, consistent with "pseudolegal" theories, asserted that he was not subject to Canadian law by attempting to separate himself from his legal personhood.

The Court of Appeal dismissed the appeal, affirming the motion judge's finding that no legally tenable defence was advanced.

The court reiterated that such arguments consistently fail and consume court resources.

The court also confirmed the admissibility of the bank's business records under the Evidence Act.

The appellants sued the respondent for false imprisonment and Charter breaches after the appellant was unconstitutionally denied accelerated parole review, resulting in her spending an extra 26 months in custody.

Following a court declaration of unconstitutionality, it took 43 days to process her release.

The appellants sought partial summary judgment for the 43-day delay, but the motion judge granted summary judgment to the respondent, finding no negligence or s. 7 Charter breach.

On appeal, the Court of Appeal upheld the dismissal of the delay claims but allowed the appeal in part to amend the order, clarifying that the 43-day period could still be claimed as part of the broader 26-month false imprisonment action.

The appellant, convicted of home invasion robbery and declared a dangerous offender, appealed his sentence.

He argued that the sentencing judge erred by not awarding "Duncan credit" for harsh pre-sentence custody conditions, specifically institutional lockdowns.

The Court of Appeal dismissed the appeal, affirming that Duncan credit is discretionary and not an entitlement.

The court found no error in the sentencing judge's decision, which concluded that the appellant's experience in lockdown conditions did not exceed the typical hardships of incarceration already accounted for by the 1.5:1 credit for pre-sentence custody.

This appeal concerned a priority and coverage dispute between two automobile insurers regarding third-party liability for the driver/lessee of a leased vehicle involved in an accident.

The appellant, Continental Casualty Company, insurer for the car rental company, challenged the application judge's finding that it was the priority insurer over BelairDirect Insurance Company, which had initially, but erroneously, believed it covered the driver.

The Court of Appeal dismissed Continental's appeal, affirming that BelairDirect was not bound by a settlement or waiver, as its initial actions were based on a mistaken belief of coverage and no binding agreement to abandon priority disputes was formed.

The appellant, S.C., appealed his sexual assault conviction, arguing the trial judge failed to properly instruct the jury on the use of the complainant's prior consistent statement (a Facebook message).

The Crown had invited the jury to use this statement as corroboration and the appellant's lack of response as evidence of guilt.

The Court of Appeal found that the trial judge erred by not providing a limiting instruction, which was crucial given the Crown's impermissible use of the evidence and the central role of the complainant's credibility.

The court reiterated that prior consistent statements are presumptively inadmissible for truth or corroboration and require limiting instructions even if admissible under an exception or as after-the-fact conduct.

The appeal was allowed, and a new trial was ordered.

The appellant, A.B., appealed a disposition order from the Ontario Review Board that did not permit him to work unsupervised in the community.

The Court of Appeal found no error in the Board's decision, noting that the Board's conclusion was justified by the psychiatric evidence and the appellant's changed circumstances, including a subsequent criminal conviction while under a Board order.

The appeal was dismissed.

The appellant, Cory Joseph Marsh, appealed his conviction for assault causing bodily harm, arguing that the trial judge placed undue emphasis on the complainant's out-of-court demeanor evidence and provided insufficient reasons for conviction.

The Court of Appeal dismissed the appeal, finding that the trial judge properly considered the complainant's out-of-court demeanor as admissible circumstantial evidence alongside other confirmatory evidence, and that the reasons for conviction, though brief, were sufficient for appellate review given the straightforward nature of the case and the agreed statement of facts.

The appellant, Charles James Hevey, appealed a finding of contempt made against him in a family law proceeding for allegedly violating two preservation orders.

The Court of Appeal found that the first preservation order was not violated as the transactions did not diminish asset value and the appellant did not personally benefit.

Regarding the second order, the court determined that the order lacked clarity, particularly concerning the interplay between paragraphs permitting business operations and reporting requirements.

Applying the *Carey v. Laiken* test for civil contempt, the court concluded that the order did not clearly and unequivocally prohibit the impugned mortgage.

Consequently, the contempt findings and associated sanctions were set aside.

The appellant appealed the dismissal of an application seeking an accounting of her late mother's estate.

The application judge had dismissed the application on two grounds: that a 2019 consent order concluded the matter, and that further litigation would constitute an abuse of process.

The Court of Appeal found no palpable and overriding error in the application judge's decision, upholding the interpretation of the consent order and the finding of abuse of process.

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

The appellant appealed an order dismissing her claims regarding the respondent mortgagees' taking of possession of a house after default on a mortgage she guaranteed, and challenging certain fees and charges.

The Court of Appeal found no error in the motion judge's conclusion that the peaceable taking of possession was not contrary to s. 42(1) of the Mortgages Act, as no action or proceedings were commenced.

The court also upheld the factual findings that the property was vacant and possession was peaceable.

While the main appeal on the legality of possession and associated fees was dismissed, the respondents conceded a credit of $8,616.49 for three months' interest charges.

The appeal was allowed only to reflect this credit, and otherwise dismissed.