Court of Appeal

The applicant, Dexter Griffith, sought an order under s. 684 of the Criminal Code for the appointment of counsel to assist with his conviction appeal, having been denied legal aid due to perceived lack of merit.

The Crown opposed the application.

The court granted the application, finding that the appeal presented arguable grounds, specifically regarding the validity of a search warrant based on the Information to Obtain (ITO) and the permissible amplification of the ITO.

The court also determined that counsel was necessary given the complexity of the legal issues and the applicant's cognitive limitations following a traumatic brain injury.

The appellant, Cindy Ali, appealed her conviction for first-degree murder in the death of her profoundly disabled daughter.

The Crown alleged the appellant suffocated her daughter and fabricated a home invasion story to cover it up.

The defence argued the death was seizure-related or caused by a home invader, and that the home invasion was real.

The Court of Appeal found that the trial judge erred in narrowing the jury's consideration of the cause of death to only suffocation and in unduly restricting the jury's consideration of alternative explanations for the fabricated home invasion narrative.

The trial judge's instructions effectively invited the jury to convict of murder if they found the home invasion story fabricated, without adequately considering other culpable acts (like failure to provide necessaries) or innocent explanations for the fabrication.

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

The appellant appealed his conviction for sexual assault and assault causing bodily harm, and his sentence.

The conviction appeal was dismissed, as the court found no error in the trial judge's credibility findings regarding the complainant.

The sentence appeal was allowed because the original sentence for sexual assault exceeded the statutory maximum of 10 years.

The net sentence was varied to six years, 10 months, and two days.

The appellant appealed his conviction for sexual assault, arguing the trial judge erred in assessing the complainant's evidence, relying on stereotypes, and treating post-offence conduct.

The Court of Appeal dismissed the appeal, finding the trial judge properly addressed inconsistencies, did not rely on stereotypes but assessed plausibility in context, and correctly used post-offence conduct for credibility analysis, not propensity.

The appellant, Sivanesan Veerasingam, appealed his convictions for luring a person under 16 and procuring sexual services of a person under 18, and the dismissal of his entrapment application.

The charges stemmed from "Project Raphael," a police undercover operation where an officer posed as a 15-year-old on a website.

Text exchanges indicated the appellant's awareness of the minor's age.

The Court of Appeal for Ontario dismissed the conviction appeal, ruling that evidence from the entrapment hearing could not be used to challenge the initial conviction.

The court also dismissed the entrapment appeal, finding that the police scheme did not prevent the appellant from taking reasonable steps to verify age during communication, and the offence was complete upon communication, not at the hotel meeting.

The appellant sought to certify a class proceeding against the Crown for failure to hold timely bail hearings, alleging negligence, breach of fiduciary duty, and Charter rights violations.

The motion judge dismissed certification.

The Court of Appeal dismissed the appeal, finding no cause of action in negligence (claims attacked core policy decisions), the fiduciary duty claim abandoned, and the Charter claims lacking common issues and not being a preferable procedure due to the need for individualized assessments.

Subway Franchise Restaurants of Canada Ltd. appealed the dismissal of its application for relief from forfeiture after failing to exercise a lease renewal option within the specified timeframe.

Subway argued that BMO Life Assurance Company, the landlord, breached its duty of good faith by remaining silent when Subway inquired about the lease termination date, which Subway had incorrectly diarized.

The Court of Appeal upheld the application judge's decision, finding that BMO did not lie, mislead, or actively contribute to Subway's misapprehension.

The court distinguished the facts from the Supreme Court's decision in *C.M. Callow Inc. v. Zollinger*, emphasizing that a duty to correct a misapprehension only arises if the party contributed to it.

Subway had access to the correct termination date via an estoppel certificate and failed to make diligent efforts to comply with the lease terms.

The appellants appealed a summary judgment granted against them in a failed real estate transaction.

The motion judge found no genuine issue for trial regarding defences of non est factum, failure to tender (due to anticipatory breach), and the appropriateness of summary judgment despite an outstanding third-party claim.

The appeal also challenged the assessment of damages, specifically the foreseeability of bridge financing costs and mitigation efforts.

The Court of Appeal dismissed the appeal, affirming the motion judge's findings and reasoning.

The appellants, Sebastian Zamora and Nicholas Poku, appealed an order of the Superior Court of Justice that quashed their discharge at a preliminary inquiry and committed them for trial on drug trafficking and importing charges.

The Court of Appeal affirmed the reviewing judge's decision, finding that the preliminary inquiry judge committed jurisdictional error by improperly weighing evidence and drawing inferences, which is the role of the trier of fact.

The court declined to address the issue of when the actus reus of the offence of importing is complete, deeming it an inappropriate forum for such clarification.

The appellants, Derek Oppong and Akido Thomas, appealed their convictions and sentences for kidnapping-related offences with a firearm, committed for the benefit of a criminal organization.

They argued the trial judge erred in admitting expert evidence on gang activity, claiming it was unnecessary and biased, and in refusing to reconsider its admissibility after proposed factual admissions.

The Court of Appeal dismissed both conviction and sentence appeals, affirming the trial judge's discretion in admitting expert evidence for contextual understanding and finding no material change in circumstances that would warrant its exclusion.

The court also upheld Mr. Oppong's sentence, finding evidence supported his leadership role in the offence.

This is an appeal from a final order in matrimonial proceedings concerning equalization of net family property, child support, and other financial matters.

The appellant challenged the trial judge's findings on the date of separation, pre-marital assets, imputed income for child support, and post-separation expenses.

The respondent cross-appealed on s. 7 expenses.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors in the trial judge's factual findings, which were largely based on credibility assessments.

The cross-appeal was also dismissed, with the issue of s. 7 expenses referred back to the trial judge for resolution via a 14B motion.

The appellant appealed the dismissal of his defamation action, which was brought against the respondent under Ontario's anti-SLAPP legislation.

The motion judge had dismissed the action, finding that the respondent's expression (a complaint to a volunteer organization about the appellant's conduct) related to a matter of public interest, the appellant's action lacked substantial merit as the respondent had valid defenses (justification, fair comment, qualified privilege), and the harm to the appellant did not outweigh the public interest in protecting the expression.

The motion judge also awarded damages and full indemnity costs, characterizing the defamation action as a reprisal brought in bad faith.

The Court of Appeal upheld the motion judge's findings of fact and application of the anti-SLAPP test, dismissing the appeal and affirming the damages and costs awards.

The Crown appealed the acquittal of the respondent on charges of aggravated assault and firearms offences, arguing the trial judge misapprehended surveillance video evidence, failed to assess evidence holistically, and provided insufficient reasons.

The Court of Appeal dismissed the appeal, finding no errors of law in the trial judge's factual findings or assessment of the circumstantial evidence, and that the reasons were sufficient.

The court reiterated that Crown appeals from acquittals are limited to questions of law alone and cannot challenge the reasonableness of the verdict.

The appellant, Xylem Canada Company, appealed an application judge's order declaring that an obligation to purchase, set out in a 1996 lease, remained in effect through subsequent lease renewals.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's interpretation of the contractual documents.

The court reiterated that contractual interpretation involves issues of mixed fact and law, entitling the application judge's decision to deference.

The Crown sought leave to appeal two sentences imposed on the respondent for failing to remain at the scene of an accident and firearms offences, arguing that the first sentencing judge erred in calculating pretrial custody credit, which impacted the subsequent sentence.

The Court of Appeal granted leave for both appeals.

For the first sentence (Marshall #1), the Court found the trial judge erred by departing from an agreed-upon "Duncan" credit and by "double counting" mitigating factors, varying the pretrial custody credit from 39 days to 107 days, but not altering the suspended sentence.

For the second sentence (Marshall #2), the Court dismissed the Crown's appeal, upholding the suspended sentence, finding that the trial judge was entitled to give substantial credit for guilty pleas given the unique circumstances of the COVID-19 pandemic's impact on the justice system.

This is a costs endorsement following an appeal where the appellants were successful.

The Court of Appeal invited written submissions regarding the costs of the summary judgment motion below.

The appellants submitted their costs, while the respondent declined to provide any.

The court awarded the appellants their costs in responding to the motion for summary judgment, fixed at $3,500 inclusive of disbursements and HST.

This is an appeal from a judgment awarding damages in lieu of specific performance for a failed residential real estate transaction.

The appellants (vendors) argued that the respondents (purchasers) were not entitled to specific performance or damages in lieu after accepting the return of their deposit, and that the motion judge used the wrong appraisal date for calculating damages.

The Court of Appeal declined to entertain the deposit argument as it was a new issue on appeal.

However, the Court found that the motion judge erred by not using the actual sale price of the replacement property as the best indication of its value for damages calculation, instead relying on an earlier appraisal.

The appeal was allowed, and the damages awarded to the respondents were reduced from $150,000 to $56,000.

This is an appeal from a summary judgment dismissing a former wife's application for spousal support and equalization of net family properties under the Family Law Act.

The motion judge had dismissed the application, finding that a Lebanese annulment of the marriage deprived the Ontario court of jurisdiction.

The Court of Appeal found that the motion judge erred in law, clarifying that a "former spouse" under s. 7 of the Family Law Act is not restricted to those divorced in Canada, and foreign corollary relief proceedings do not remove the Ontario Superior Court's jurisdiction over equalization claims.

The appellant withdrew her claim for spousal support.

The appeal was allowed, and the matter was remitted to the Superior Court for consideration of the equalization claim.

The appellant appealed a summary judgment dismissing his action against the Ontario Ombudsman.

The motion judge proceeded in the appellant's absence after finding he knew of the motion and chose not to participate.

The motion judge dismissed the action because the respondent was immune from proceedings absent bad faith, and the appellant provided no evidence of bad faith.

The Court of Appeal found no error in the motion judge's discretionary decision to proceed or in granting summary judgment, and dismissed the appeal.

The self-represented moving party, Mr. Asghar, brought a motion to the Court of Appeal to review a chambers judge's order.

The chambers judge had dismissed Mr. Asghar's interim motion seeking production of video/audio recordings, permission for electronic filing/service, and an extension of time to perfect his appeal.

The Court of Appeal dismissed Mr. Asghar's panel review motion, finding no basis to interfere with the chambers judge's discretionary decision, which is entitled to deference absent legal error or misapprehension of material evidence.

The court also clarified that electronic filing and service of appeal materials are generally permitted under its practice directions, negating the need for a specific order.