OCA 2024

The appellants, Charles McVety and Canada Christian College, appealed a motion judge's decision to dismiss their anti-SLAPP motion against a defamation action brought by Kory Teneycke and Rubicon Strategy Inc. The defamation claim alleged that McVety publicly stated Teneycke acted in a conflict of interest regarding Ontario's vaccine passport policy and profited from it, and that Teneycke was prejudiced against Christians.

The motion judge found substantial merit to the defamation action and that the appellants had no viable defences, partly due to potential malice, and that the public interest favored allowing the action.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's analysis of the claim's merits and defences, and while agreeing the balancing analysis was flawed, a fresh analysis led to the same conclusion that the public interest in allowing the action outweighed the public interest in protecting the appellants' expression, given the low quality and malicious motivation of the speech.

The request for leave to appeal costs was also dismissed.

The appellant, found not criminally responsible for aggravated assault, appealed the Ontario Review Board's decision to uphold her detention order.

The ORB found she remained a significant threat to public safety due to diagnosed schizoaffective disorder and substance use disorders.

The Court of Appeal dismissed the appeal, finding no error in the ORB's application of the "significant threat" test from Winko v. British Columbia (Forensic Psychiatric Institute), which requires a real risk of serious physical or psychological harm to the public resulting from criminal conduct.

This is an appeal from a summary judgment motion.

The appellant, 4342 Queen St. Niagara Holdings Inc. ('Queen'), challenged a summary judgment ordering it to pay Arcamm Electrical Services Ltd. ('Arcamm') nearly $1 million for electrical repair services.

Queen argued that Arcamm's alleged contributory fault for damages to electrical transformers raised genuine issues for trial and that granting summary judgment risked inconsistent findings with a related subrogated claim.

The Court of Appeal allowed the appeal, finding that the motion judge erred by failing to properly address the contributory fault defence and by not recognizing the genuine issues for trial and the risk of inconsistent findings.

The Court affirmed that contributory fault can be raised as a defence in contract actions to apportion damages.

The summary judgment was set aside, and Queen was ordered to bring a motion to consolidate the actions.

T.J.W. appealed his sentence of five years for two counts of sexual interference, arguing the trial judge erred by failing to identify his advanced age (76 at sentencing) as a mitigating factor and by giving insufficient weight to other mitigating factors.

The Court of Appeal dismissed the appeal, finding the trial judge was aware of the appellant's age and considered it, and that defence counsel did not present evidence of health conditions or specific impacts of incarceration due to age.

The court concluded that the trial judge gave due weight to all relevant factors, including family support and community contributions, and that the sentence was within the appropriate range, emphasizing denunciation and deterrence.

This is a panel review of a single judge's order dismissing a motion to stay a return order for an infant child to Bangladesh, pending appeal.

The Court of Appeal majority granted the review, set aside the stay dismissal, and granted a stay of the return order.

The majority found that the single judge erred in principle by giving insufficient weight to the serious issue of the relationship between the Children's Law Reform Act and pending refugee claims, and by misapplying the irreparable harm and balance of convenience tests, particularly regarding the child's best interests and the potential loss of refugee status.

The dissenting judge argued that the majority conducted a de novo review rather than applying deference to the single judge's discretionary order.

This is a costs endorsement from the Court of Appeal for Ontario.

The parties settled the issue of costs for the appeal.

The appellant, Anna Barbiero, was ordered to pay the respondent, Dr. Sheldon Victor Pollack, $10,000 in costs, inclusive of disbursements and applicable taxes.

The applicant sought to set aside an order from a single judge of the Court of Appeal who had denied a motion for an extension of time to seek leave to appeal a Divisional Court decision.

The Court of Appeal reviewed the motion judge's reasons and found no error in the application of the legal test for an extension of time.

The court concluded that the motion had no merit and dismissed it, ordering costs to the respondent.

The appellant appealed convictions for assault and sexual assault, arguing the trial judge erred by failing to provide sufficient reasons for rejecting evidence of motive to fabricate and by engaging in improper propensity reasoning.

The Court of Appeal found no error in the trial judge's reasons regarding motive to fabricate, deeming them adequate when read against the record.

The court also rejected the claim of improper propensity reasoning, clarifying that the trial judge used evidence of controlling behaviour as a contextual factor to assess competing narratives, not as proof of propensity to commit the assaults.

The appeal was dismissed.

The appellant, D.S., appealed convictions for two counts of sexual assault and two counts of sexual interference involving his niece, T.S. The appeal raised four grounds: the trial judge's reliance on similar fact evidence, misapprehension of the complainant's credibility, illogical reasoning in rejecting the appellant's evidence, and the unreasonableness of the convictions.

The Court of Appeal dismissed the appeal, affirming the trial judge's proper application of similar fact evidence principles from R. v. Handy and upholding the credibility findings, noting the high bar for appellate intervention on such matters as per R. v. Kruk.

The appellant appealed the termination of a conditional sentence for breach of conditions, specifically contacting a prohibited person and engaging in drug trafficking.

The appeal also sought credit for a 13-month delay during which the sentence was suspended but conditions remained.

The Court of Appeal dismissed the appeal, finding ample evidence for the breach and no exceptional circumstances to grant credit for the delay, as most of the delay was attributable to the appellant.

The appellant appealed a six-year sentence for two counts of sexual assault and one count of unlawful confinement.

The Court of Appeal found that the sentencing judge erred by treating a risk assessment as having no value due to the appellant's alleged dishonesty and by classifying the appellant's mental health issues as "neutral" rather than mitigating.

While upholding the application of the intimate partner aggravating factor, the appellate court re-evaluated the sentence, reducing it from six years to five years concurrent.

The Court of Appeal for Ontario allowed an appeal, setting aside a motion judge's order that had granted certiorari with mandamus in aid.

The motion judge had compelled a Justice of the Peace to complete a bail hearing that the Justice of the Peace had aborted due to a proposed surety's misconduct and subsequent false denial.

The Court of Appeal found that the motion judge erred by granting prerogative relief in the absence of jurisdictional error, as the Justice of the Peace's decision to abort the hearing was a discretionary exercise based on an assessment of fairness, not a jurisdictional overreach.

The appellant, The Corporation of the Township of Ignace, appealed a summary judgment order that awarded the respondent, Karen Dufault, damages for wrongful dismissal.

The core issue was the enforceability of termination clauses in an employment contract under the Employment Standards Act, 2000 (ESA).

The Court of Appeal affirmed the motion judge's finding that the "for cause" termination clause was unenforceable because its definition of "cause" was broader than the ESA's narrow exception for "wilful misconduct." Applying the principle from Waksdale v. Swegon North America Inc., the court held that the invalidity of the "for cause" clause rendered all termination provisions in the contract unenforceable, even though the respondent was terminated without cause.

The appeal was dismissed, upholding the original award of damages.

The applicant, Ms. Vaughan, brought a motion to set aside or vary a prior order that had dismissed her motion to set aside a Registrar's order dismissing her appeal for delay and to transfer the appeal to the Divisional Court.

The original appeal, concerning an amount less than $50,000, was improperly filed in the Court of Appeal instead of the Divisional Court.

The court dismissed Ms. Vaughan's motion, finding no error in principle in the prior discretionary order.

The court affirmed that it lacked jurisdiction over the original appeal and that, with no live appeal, there was no basis for a transfer order.

The appellant, Bishop Girgis, appealed a lower court decision that interpreted and rectified a will to distribute proceeds from a property sale to the estate of the deceased's brother, rather than to the residuary beneficiary (Bishop Girgis).

The Court of Appeal dismissed the appeal, upholding the rectification on the basis that it gave effect to the testator's plain intention, despite disagreeing with the application judge's specific analytical path.

Costs were awarded against the appellant.

The Court of Appeal for Ontario heard an appeal concerning spousal support.

The husband appealed a Superior Court decision that significantly increased his lump sum spousal support obligation to the wife from an arbitration award.

The Court of Appeal found that both the appeal judge and the arbitrator erred in their application of the Spousal Support Advisory Guidelines (SSAGs).

The appeal judge failed to give deference to the arbitrator's findings and ignored relevant factors, while the arbitrator failed to adequately explain the departure from SSAGs.

The Court of Appeal substituted its own award, increasing the lump sum spousal support to $678,888 (from the arbitrator's $250,000, but less than the appeal judge's $1,893,603) and awarded the wife $100,000 in arbitration costs.

The appellant, Landi Hanna, appealed a 4-year sentence for two counts of robbery (one causing wounds) and one count of failure to comply with an undertaking.

The appellant argued the sentencing judge erred by not respecting the "jump" principle and by imposing a disproportionate sentence that relegated rehabilitation to a secondary role.

The Court of Appeal found no reversible error, affirming that the sentencing judge correctly identified denunciation and deterrence as paramount objectives for robbery, properly considered aggravating factors including the appellant's criminal record and re-offending while on release, and appropriately applied the "jump" principle given the appellant's pattern of committing serious robberies shortly after being granted bail.

The court also found that the sentencing judge reasonably concluded the appellant's rehabilitative potential was low due to his repeated criminal history and lack of serious engagement in addressing his drug addiction.

Leave to appeal was granted, but the appeal was dismissed.

The applicant, West Whitby Landowners Group Inc., sought leave to appeal a Divisional Court decision that dismissed their judicial review application against the Ontario Energy Board (OEB) and Elexicon Energy Inc. The Divisional Court had found it lacked jurisdiction over the OEB's opinion on cost allocation, deeming it not a statutory power of decision affecting legal rights, and that certiorari was unavailable.

The Court of Appeal granted leave to appeal, clarifying the test for leave to appeal from the Divisional Court.

The court emphasized that the key consideration for granting leave is the impact the decision will have on the development of Ontario's jurisprudence, particularly in administrative and public law, moving away from a rigid checklist approach.

The appellant appealed a motion judge's order upholding the validity of a marriage contract and denying relief for alleged physical injury and loss of income.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's decision to determine the contract's validity on motion, given the appellant's failure to read it and lack of material conflicts in evidence.

The court also upheld the denial of relief for injury, noting no spousal support claim was made and insufficient evidence.

The appellant's request for leave to appeal costs was also dismissed, with the court deferring to the motion judge's discretion on costs, including those for conferences where the appellant was unprepared.

D.L. brought a motion to bifurcate the Crown's sentence appeal from his conviction appeal and the Crown's appeal from his acquittals.

The court dismissed the motion, reiterating the general principle that conviction and sentence appeals should be heard together for efficiency and to avoid contradictory outcomes, unless there are compelling reasons.

The court found no such compelling reasons, noting that potential complexities could be addressed by remitting sentencing to the trial court if necessary, rather than requiring pre-emptive bifurcation.