Court of Appeal

The appellant abandoned its appeal, and the respondent sought substantial indemnity costs.

The appellant challenged the court's jurisdiction to award costs for an abandoned appeal and proposed a lower partial indemnity amount.

The Court of Appeal affirmed its jurisdiction under s. 131 of the Courts of Justice Act, finding that Rule 61.14 did not displace this discretion.

The court awarded the respondent partial indemnity costs, finding substantial indemnity was not justified.

The appellant was convicted of aggravated assault and assault with a weapon after a joint trial.

The appeal centered on the trial judge's misapprehension of video surveillance evidence, which was believed to be uninterrupted but contained significant gaps.

The Court of Appeal found this misapprehension material and central to the trial judge's reasoning for conviction, thus warranting setting aside the convictions.

However, the Court declined to enter an acquittal, determining that the verdict was not unreasonable given other circumstantial evidence, and ordered a new trial.

The appellant, Steve Maynard, appealed the Superior Court's dismissal of his application to quash five municipal by-laws.

The application judge had found that the challenge to the by-laws, based on their alleged inconsistency with a provincial policy statement and non-conformity with an official plan, fell within the exclusive jurisdiction of the Local Planning Appeal Tribunal (LPAT), now the Ontario Land Tribunal.

The Court of Appeal affirmed this decision, holding that it was plain and obvious that the LPAT (or its successor) had exclusive jurisdiction over such matters under the Planning Act.

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

The appellant pleaded guilty to possession of a narcotic for the purposes of trafficking.

The Crown conceded the appeal, acknowledging that trial counsel unintentionally misled the appellant regarding the immigration consequences of his guilty plea, which were central to his decision.

The Court of Appeal allowed the appeal, set aside the guilty plea, quashed the conviction, and ordered a new trial.

The appellant, Jamie Simpson-Fry, appealed an indeterminate dangerous offender sentence imposed following convictions for sexual assault, forcible confinement, and threatening death.

The appeal challenged the sentencing judge's weighing of the appellant's statements to psychiatric experts, arguing it effectively penalized him for not testifying and violated his right to silence.

The Court of Appeal dismissed the appeal, finding no error in the sentencing judge's approach, which considered the statements in light of the entire evidentiary record and afforded them less weight due to the lack of cross-examination.

The appellant, Patricia Ann Smith, appealed the dismissal of her medical malpractice action against Dr. Brenda Kane.

The trial judge found no breach of the standard of care by Dr. Kane in her treatment of the appellant's foot complaints.

The appeal raised three main issues: misapprehension of expert evidence, failure to apply the "ordinary knowledge and common sense" exception to expert evidence, and error in failing to find a breach of the duty to diagnose.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's assessment of expert evidence, rejecting the application of the "common sense" exception as it was not raised at trial and the issues were complex, and clarifying that there was no freestanding duty to diagnose in this context given the specific concessions and causation findings.

The appellant appealed convictions for aggravated assault and assault with a weapon stemming from two separate incidents.

The appeal challenged the trial judge's assessment of unsavoury witnesses under Vetrovec principles and the use of "prefer" language in evaluating witness credibility.

The Court of Appeal dismissed the appeal, finding that the trial judge properly applied Vetrovec by seeking corroboration and that the use of "prefer" was a linguistic slip, not a misapprehension of the burden of proof, given the overall context of the reasons and the trial judge's self-direction on the standard of proof.

The respondent was acquitted of sexual assault and sexual interference charges at trial.

The Crown appealed, arguing that the trial judge's reasons for acquittal were inadequate and that the judge applied a higher degree of scrutiny to the Crown's evidence than to the respondent's.

The Court of Appeal dismissed the appeal, finding that the trial judge's reasons met the legal requirement of adequacy, explaining the factual and credibility determinations and the basis for reasonable doubt.

The court also found that the Crown failed to meet the high burden of showing that the credibility determinations were the result of a legally erroneous application of different standards of scrutiny, upholding the deference owed to the trial judge on credibility issues.

This endorsement concerns a request to reconsider a costs disposition made on July 27, 2021.

The moving party for the reconsideration (respondents in the underlying appeal) had their costs submissions filed late and not forwarded to the panel.

The court reviewed the submissions but found no reason to vary the original costs order, confirming the previous disposition.

Mary Zammit sought a stay of a lower court order that declared her incapable of managing her property, terminated a power of attorney in favour of her daughter Patricia Zammit, and appointed the Public Guardian and Trustee (PGT) as her property guardian.

The Court of Appeal, applying the three-part test for a stay from RJR-MacDonald Inc. v. Canada (Attorney General) and the gloss from Ogden Entertainment Services v. United Steelworkers of America, Local 440, found that the moving party failed to establish a serious issue to be tried, irreparable harm, or that the balance of convenience favoured granting the stay.

The court noted the thoroughness of the motion judge's reasons, which included findings of Mary Zammit's incapacity and Patricia Zammit's breaches of fiduciary duty.

The motion for a stay was dismissed.

The appellant, found not criminally responsible, appealed an Ontario Review Board (ORB) disposition ordering his detention at a forensic psychiatry program, arguing for a conditional discharge.

The ORB had vacated his previous conditional discharge due to concerning behaviours and a deteriorated mental state, supported by psychiatric and risk assessment evidence.

The Court of Appeal dismissed the appeal, finding the ORB's decision reasonable and supported by evidence, noting that a detention order was necessary to allow the Hospital to approve accommodation, consistent with the least onerous and restrictive disposition.

The appellant, Jeffrey Shuman, appealed his 15-year global sentence for seven counts of robbery with a firearm, arguing that the sentence was demonstrably unfit and that the sentencing judge's reasons were insufficient.

The Court of Appeal dismissed the appeal, finding the sentence fit given the serious nature of the offences, the paramountcy of deterrence and denunciation, and the sentencing judge's adequate reasons which considered aggravating and mitigating factors and was clearly alive to the totality principle.

The appellant, Sakhi Alekozai, appealed his convictions for internet child luring and communicating to obtain sexual services from a person under 18, which arose from a police sting operation.

The appeal challenged the trial judge's application of mens rea standards, particularly regarding the distinction between recklessness and actual belief or wilful blindness, in light of the Supreme Court of Canada's decision in R. v. Morrison.

The Court of Appeal dismissed the appeal, finding that the trial judge had correctly determined that the appellant subjectively believed the collocutor was underage, and that the "reasonable steps" defence was not available.

The appellant appealed the dismissal of her motion for retroactive child support payments against her deceased ex-husband's estate.

The original 1978 Decree Nisi did not state that the child support obligation would bind the estate.

The motion judge ruled that under s. 17 of the Divorce Act, an application to claim or vary a support order against a decedent's estate cannot be brought if the original order is silent on binding the estate.

The Court of Appeal upheld this decision, confirming that a support obligation under divorce legislation ends upon the payor's death unless specifically agreed otherwise, and that the Divorce Act lacks a provision similar to the Family Law Act that binds an estate.

The Crown appealed the acquittal of the respondent for second-degree murder, arguing the trial judge made errors of law in evaluating evidence, specifically regarding witness testimony, a formal admission about a substance trail, and speculation about blood evidence.

The Court of Appeal dismissed the appeal, finding no legal errors in the trial judge's analysis and reiterating that appellate review on a Crown appeal is limited to questions of law, not the reasonableness of an acquittal or reweighing of evidence.

The appellants, owners of a servient tenement, appealed a decision dismissing their application to declare two registered rights of way (ROWs) abandoned by the dominant tenement owners.

The Court of Appeal affirmed that abandonment requires proof of a fixed intention never to assert the right, inferred from non-use and acquiescence to permanent obstructions.

The Court found a palpable and overriding error in the application judge's assessment of the 174 Strachan ROW, concluding it was completely obstructed by a permanent house extension and thus abandoned.

For the 176 Strachan ROW, which was only partially obstructed, the Court dismissed the appeal for total abandonment but allowed it for partial abandonment of the portion under the house extension, remitting this issue for further determination.

The appellants, Amaryco Inc. and Fabrizio Lucchese, appealed a judgment obtained by the respondent, US Income Partners LLC, based on a consent to judgment in a settlement agreement.

The appellants defaulted on the agreement and argued the consent was ineffective because the statement of claim had not been issued prior to the consent.

The Court of Appeal dismissed the appeal, finding that the motion judge's reliance on Rule 1.04 of the Rules of Civil Procedure was appropriate as there was no prejudice to the appellants, and upholding the principle of substance over form.

The appellant sought leave to appeal a 6-year sentence for aggravated assault, which included credit for pre-sentence custody and harsh conditions of confinement.

The conviction stemmed from a violent knife attack on his former partner's husband.

The sentencing judge emphasized general deterrence and denunciation, noting the victim's severe injuries, the appellant's use of two knives, his related criminal record, and the attack occurring partly in front of his daughter.

The Court of Appeal found no error in the sentencing judge's assessment of the appellant's limited insight into the gravity of the offence, which restricted the weight given to his rehabilitative potential.

The application for leave to appeal was granted, but the appeal itself was dismissed, upholding the original sentence.

This addendum to an appeal decision addresses the Court of Appeal's inherent jurisdiction to permit publication of its reasons, which contain information subject to a statutory publication ban under s. 278.95 of the Criminal Code.

The court determined that despite the ban, and the trial judge not having lifted it, it possessed inherent jurisdiction to publish its reasons unredacted, provided the complainant's privacy (protected by a separate s. 486.4 ban) and the interests of justice were considered.

The court found that the complainant was comfortable with publication and that the development of jurisprudence on s. 276 applications would benefit.

The respondents (creditors) moved to quash an appeal brought by the appellant (debtor) from a garnishment order, arguing that the order was interlocutory and therefore not appealable to the Court of Appeal.

The Court of Appeal agreed, finding that the garnishment order was an interlocutory step in an ongoing oppression action, not a final disposition of the parties' rights or a discrete proceeding.

Consequently, the Court lacked jurisdiction to hear the appeal, which properly lay with the Divisional Court.

The appeal was quashed.