Court of Appeal

The appellant, Dik Lee, appealed an order refusing him leave to amend his statement of claim to add a claim of gross negligence against the directors and officers of Magna International Inc., his former employer.

The proposed amendments sought to assert a duty of care based on s. 32 of the Occupational Health and Safety Act, related to a workplace harassment investigation.

The Court of Appeal dismissed the appeal, affirming that there is no tort of negligent investigation by an employee against an employer in Ontario, nor tort liability for breach of a statutory duty.

The court also upheld the refusal to permit claims against unnamed defendants using pseudonyms due to lack of material facts.

The appellant, convicted of multiple assaultive offences and fraud related to cosmetic injections, appealed her conviction alleging ineffective assistance of trial counsel.

She claimed counsel failed to respect her wish for a jury trial and refused to permit her to testify, and did not adequately consider her mental health.

The Court of Appeal dismissed the appeal, finding the appellant failed to establish the factual basis for her claims and that counsel's advice was within the range of professional judgment.

The appellant appealed the summary judgment dismissal of his action against the City of Toronto, which was based on his failure to provide timely notice under s. 42(6) of the City of Toronto Act, 2006, and the absence of a reasonable excuse for the delay.

The Court of Appeal affirmed the motion judge's decision, finding no palpable and overriding errors in her conclusion that the appellant failed to establish a reasonable excuse for the three-year delay in providing notice, despite having sufficient information to investigate earlier.

The appellant, found not criminally responsible (NCR) for assault with a weapon and possession of a dangerous weapon, appealed the Ontario Review Board's disposition that continued her detention order.

She sought an absolute or conditional discharge, or a new hearing.

The Court of Appeal dismissed the appeal, finding the Board's conclusion reasonable.

The court noted the appellant's schizophrenic illness requiring medication, her lack of insight into her condition, and the risk of decompensation and danger to the public without supervision, especially given her history of substance abuse contributing to the index offences.

The court emphasized that her progress occurred under direct hospital supervision and that there was no record of success in a controlled community setting.

The appellant appealed the granting of a charge against her property under s. 34(1) of the Solicitors Act.

The Court of Appeal affirmed the application judge's finding that the well-established three-step test for ordering a statutory charge was met, specifically that the appellant was unable or unwilling to pay the solicitor's fees.

The court found no palpable and overriding error in the application judge's discretionary decision, which was amply supported by the record.

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

The appellant, James Hawryluk, sought leave to appeal his sentence, specifically challenging an automatic s. 109(1) firearm prohibition order and a forfeiture order, arguing his s. 35 Métis right to hunt for sustenance under s. 113(1)(a) of the Criminal Code.

He also requested the firearm be transferred to a family member or that the dismissal be without prejudice to a future s. 113(1) application.

The Court of Appeal found no error in principle by the sentencing judge for not considering s. 113 when imposing the s. 109 order, noting that the appellant could bring a s. 113 application before the Superior Court of Justice.

The appeal was dismissed on the firearm issues, but the victim fine surcharge of $200 was set aside due to its unconstitutionality as per R. v. Boudreault.

The appellant law firm appealed the dismissal of its motion for a charging order under the Solicitors Act and the amendment of trial and costs orders under the Family Law Rules.

The Court of Appeal upheld the trial judge's decision, finding no error in the determination that the firm was not "instrumental" in preserving property for a charging order, and that the amendment to secure costs was appropriate under Rule 25(19)(c) to address an inadvertent omission.

The moving parties, NDrive, Navigation Systems S.A. and its directors, sought security for costs under Rule 61.06(1) of the Rules of Civil Procedure against the appellants (Zhou parties) in an ongoing appeal.

The motion judge had previously found the appellants liable for civil fraud, awarded substantial damages and full indemnity costs, and noted their shocking and reprehensible litigation conduct.

The Court of Appeal granted the motion for security for costs, totaling $300,000, finding that the prior findings of fraud and litigation misconduct, coupled with the appellants' insufficient assets in Ontario, constituted "other good reason" under Rule 61.06(1)(c).

The appellant, A.R., appealed convictions on 30 counts, including serious sexual offences and physical abuse of her children, and cruelty to pets.

The appeal raised two arguments: first, that the trial judge misapplied R. v. W.(D.) by requiring corroboration of the appellant's evidence; and second, that the trial judge erred by conflating "proven absence of motive" with "absence of evidence of motive" regarding the children's testimony.

The Court of Appeal dismissed the appeal, finding no misapplication of W.(D.) and that the trial judge properly considered the absence of evidence of motive as one factor in assessing credibility.

The appellant, V.N., appealed his conviction for possessing and accessing child pornography, arguing his guilty plea was uninformed due to unawareness of collateral consequences: a lifetime SOIRA order and ineligibility for a criminal record suspension.

The Court of Appeal dismissed the appeal, finding that V.N. failed to present credible evidence establishing a reasonable possibility that he would not have pleaded guilty had he been aware of these consequences, as his primary concerns at the time of the plea were addressed.

P.C. appealed convictions for sexual assault and sexual interference and sought leave to appeal his four-year sentence.

The appeal raised grounds concerning the trial judge's jury charge, specifically the language used to refer to the unrepresented accused's evidence versus his submissions, and the sufficiency of assistance provided to the unrepresented appellant.

Additionally, the appellant challenged the trial judge's factual findings at sentencing, particularly regarding penetration, and the weight given to mitigating factors.

The Court of Appeal dismissed all grounds of appeal, finding no reversible error in the jury charge, that sufficient assistance was provided to the appellant, and that the sentencing judge was entitled to make factual findings not explicitly determined by the jury's verdict.

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

The appellant, Barry James Gallant, appealed a motion judge's finding that the respondent, Miranda Bailey's, obligations as a guarantor on a mortgage loan ended on June 28, 2014, and that she was not bound by subsequent mortgage extensions made without her notice.

The Court of Appeal upheld the motion judge's decision, finding no palpable and overriding error.

The motion judge had reasonably interpreted the mortgage documents, including standard terms, the mortgage agreement, and the mortgage schedule, to conclude that the guarantee's duration was limited to the 12-month period set out in the mortgage agreement, thereby modifying the standard terms.

The appellant appealed an order striking his statement of claim and dismissing his action.

The Court of Appeal upheld the motion judge's decision, agreeing that the pleaded facts did not establish a breach of the Accessibility for Ontarians with Disabilities Act, 2005, nor did they provide a basis for a civil cause of action against the City.

The appeal on costs was also dismissed, with the Court finding the original costs order reasonable.

The applicant, Shaun Rootenberg, sought an order for the appointment of counsel under s. 684(1) of the Criminal Code for his appeal, having exhausted legal aid options.

The Crown opposed, arguing the appeal lacked arguable merit and counsel was not necessary.

The court found that while the proposed grounds of appeal were weak, they were arguable for the purpose of the application.

Specifically, the second and third grounds, concerning the legal implications of strip searches during pre-trial custody and sentencing credits, involved significant and novel legal components, making the appointment of counsel necessary for a fair and effective appellate review.

The application for the appointment of counsel to advance all three grounds of appeal was granted.

The appellants, committed to trial for second-degree murder, successfully appealed a judicial review order that had quashed their preliminary inquiry judge's decision and directed committal for first-degree murder.

The Court of Appeal found the reviewing judge erred by substituting his view of the evidence for that of the preliminary inquiry judge, incorrectly identifying jurisdictional errors.

The preliminary inquiry judge had correctly applied the law and did not commit jurisdictional error by finding insufficient evidence for first-degree murder.

The appeal was allowed, the judicial review decision quashed, and the original committal for second-degree murder reinstated.

The appellant appealed an application judge's decision that the respondent was free to sell a property to a third party despite the appellant's right of first refusal under a lease.

The appellant had exercised its right of first refusal by matching a third-party offer, which included a 30-day financing condition.

The appellant failed to obtain financing, requested an extension which was refused, and the agreement expired.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's commercially reasonable interpretation that the right of first refusal was exercisable only once and was spent after the appellant failed to waive the financing condition.

The appellant, a permanent resident, appealed his robbery convictions, arguing his guilty pleas were uninformed due to misadvice from trial counsel regarding immigration consequences.

He was led to believe that sentences under two years per count would provide a "fighting chance" from an immigration perspective, when in fact, sentences over six months rendered him inadmissible with no right to appeal a removal order.

Applying the test from R. v. Wong, the Court of Appeal found the pleas uninformed and that the appellant suffered subjective prejudice, as he would have opted for a trial or different conditions had he been properly advised.

The convictions were set aside, a new trial ordered, and further proceedings were stayed in the public interest given the served sentences, lack of re-offending, and court resource pressures.

This is a Crown appeal concerning jury instructions on the mens rea for sexual assault, specifically when the defence of honest but mistaken belief in communicated consent is unavailable.

The trial judge instructed the jury that the Crown must prove the knowledge element (accused knew of, was wilfully blind or reckless as to, absence of consent) and allowed them to consider evidence of the respondent's mistaken belief.

The Court of Appeal held that while the knowledge element is always part of the Crown's burden, the trial judge erred by failing to instruct the jury to disregard evidence of legally ineffective mistaken beliefs, effectively allowing an unavailable defence through the "back door." The court allowed the appeal, set aside the acquittal, and ordered a new trial.

The Court of Appeal for Ontario dismissed an appeal by CTO Boost Inc. against a summary judgment enforcing a settlement agreement with Idea Notion Development Inc. CTO had repudiated the settlement, claiming fraudulent invoices, after accepting an offer.

The appeal challenged the admissibility of "without prejudice" communications, the motion judge's evidence analysis, the fraudulent misrepresentation defence, and the exercise of discretion.

The Court affirmed the motion judge's findings, holding that "without prejudice" documents were admissible to prove the settlement's existence and that CTO entered the agreement with knowledge of potential discrepancies.

The appellant, Ahmad Durani, appealed his convictions for criminal negligence causing death while street racing and failing to remain, and his global sentence of 5 years' imprisonment.

The convictions stemmed from a street race that resulted in a fatal collision.

The appellant argued the trial judge erred in analyzing the actus reus and mens rea of criminal negligence and in applying the presumption for failing to remain.

The Court of Appeal dismissed both conviction and sentence appeals, finding the trial judge's conclusions were rooted in evidence and that the appellant's conduct constituted a marked and substantial departure from the norm.

The court also found the trial judge correctly rejected the appellant's statements as "evidence to the contrary" for the failing to remain charge.