Court of Appeal

The appellant appealed a sentence of two years less a day for assault causing bodily harm.

He argued the trial judge improperly considered his propensity for violence during a Gardner hearing and mistakenly considered a previous conviction for assaulting his spouse as an aggravating factor.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the trial judge's credibility assessment and confirming that the trial judge correctly considered the appellant was on probation for an offence related to the complainant, which was a valid aggravating factor.

The court found the sentence fit given the significant assault and substantial bodily harm.

The appellant, J.J., appealed a sexual assault conviction, arguing the trial judge improperly used transcripts of the complainant's police statement and preliminary inquiry evidence for credibility assessments.

The transcripts were provided to the trial judge solely to assist in recalling portions put to the complainant during viva voce evidence.

However, the trial judge considered the entirety of the transcripts, including passages not introduced in evidence, to find the complainant's "three interrogations" internally consistent, thereby preferring her evidence and rejecting the accused's.

The Court of Appeal found this improper use rendered the trial fundamentally unfair, allowed the appeal, and ordered a new trial.

The appellants, judgment creditors of 798839 Ontario Limited (39), appealed a summary judgment decision.

The original motion judge found that 39 had not satisfied the contractual prerequisites to acquire an interest in a mining development, specifically by failing to expend the required funds on the specified property, with a portion diverted to another project.

The Court of Appeal dismissed the appeal, affirming the motion judge's interpretation of the contract and finding no error in her consideration of the factual matrix.

The court emphasized that contractual interpretation must primarily rely on the plain language of the agreement and that surrounding circumstances should not overwhelm the text or create a new agreement.

The appellants, Salvatore Raia and Michael Vitello, appealed their convictions for conspiring to kidnap, sexually assault, and murder Mr. Vitello’s spouse.

The appeal focused on the trial judge's assessment of a key witness's credibility and reliability, and alleged errors in the trial judge's reasons.

The Court of Appeal dismissed the appeals, finding no palpable and overriding error in the trial judge's credibility assessment, which was supported by extensive corroborative evidence.

Minor errors in the trial judge's reasons were deemed peripheral and without impact on the credibility assessment.

The appellants, Pamella and Gregory Radwan, appealed a summary judgment granted to The Energy Credit Union Limited concerning a defaulted "on demand" mortgage.

The Radwans argued the motion judge failed to address their evidence regarding standard charge terms, Pamella Radwan's sophistication, and issues of credibility, and that the reasons were inadequate.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's findings that the Radwans signed a valid "on demand" agreement, benefited from the funds, and defaulted.

The court affirmed that the lender was not obligated to insist on independent legal advice and that the reasons adequately explained the decision.

The applicant, Gavin MacMillan, sought bail pending appeal after being convicted by a jury of sexual assault and administering a noxious substance, for which he received a nine-year sentence.

The primary ground of appeal was the retrospective application of Bill C-75, which abolished peremptory juror challenges, an issue previously addressed by the Court of Appeal in *R. v. Chouhan*.

The Crown conceded the appeal was not frivolous and that the applicant was not a flight risk.

The court granted bail, finding that despite the gravity of the offences, the strength of the appeal (bordering on certainty due to *Chouhan*) and the proposed stringent bail conditions (virtual house arrest) meant that detention was not necessary in the public interest.

The appellant, G.W., appealed convictions for multiple sexual offences, arguing that his work schedule and other commitments precluded him from being alone with the child victims.

The Court of Appeal upheld the trial judge's rejection of this defence, noting that the trial judge had found the appellant's credibility undermined by his attempts to minimize opportunities and that ample opportunity for the offences existed.

The appellate court found no basis to interfere with the trial judge's factual findings, which were thoroughly grounded in the evidence and owed deference.

The appeal was dismissed.

The purchaser obtained an order for specific performance, a vesting order, and substantial indemnity costs after a failed real estate transaction.

The vendor appealed and obtained a certificate of stay for the costs order.

The purchaser moved to set aside the certificate of stay, arguing the costs were to be collected via an abatement, not a direct payment.

The vendor moved to stay the vesting order pending appeal.

The Court of Appeal dismissed the purchaser's motion, finding the costs order was automatically stayed under r. 63.01 as an order for the payment of money.

The Court granted the vendor's motion to stay the vesting order, finding a risk of irreparable harm if the property was transferred pending appeal, and ordered the appeal expedited.

The appellant was convicted of various firearm and drug offences, as well as possession of the proceeds of crime, after police executed a search warrant at his apartment and found firearms, drugs, and cash.

On appeal, the appellant argued the verdicts were unreasonable as they relied on circumstantial evidence that failed to prove his knowledge and control over the contraband.

The Court of Appeal allowed the appeal in part, setting aside the convictions for possession of a loaded restricted firearm, possession of drugs for the purpose of trafficking, and possession of a prohibited device, finding the evidence insufficient to establish the requisite knowledge and control.

The conviction for possession of the proceeds of crime was upheld, and the global sentence was reduced to five years.

K.V. sought an extension of time to file a notice of appeal against a Superior Court judge's decision to quash a subpoena issued to the prosecuting Crown counsel in his ongoing sexual offence trial.

The Crown opposed, arguing lack of merit and delay.

The Court of Appeal granted the extension, finding the appeal not frivolous and that K.V. had a right to appeal, despite concerns about trial delay, as the complainant's evidence was complete.

This appeal concerned a massive fraud perpetrated against a Paraguayan pension fund (Cajubi) by the appellants.

The trial judge found the appellants liable for fraudulent misrepresentation and breach of fiduciary duty, awarding over $20 million in damages and punitive damages.

On appeal, the appellants raised numerous grounds, including the corporate identification doctrine, limitation periods, unpleaded conspiracy, lack of reliance, and apprehension of bias.

The Court of Appeal dismissed all grounds, affirming the trial judge's findings, particularly regarding the inapplicability of corporate attribution where it would undermine the integrity of the legal system and allow fraudsters to benefit.

This is a Crown appeal from a stay of proceedings imposed under s. 11(b) of the Canadian Charter of Rights and Freedoms in a youth matter.

The respondent was 12-13 years old at the time of the alleged offences.

The application judge erred by not applying the R. v. Jordan framework, which was subsequently clarified for youth matters by R. v. K.J.M. The Court of Appeal found that the 18-month ceiling from Jordan was not exceeded and there was no basis to maintain the stay.

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

The appellant appealed his conviction and sentence for a home invasion robbery where an occupant was shot.

He argued the trial judge erred by failing to give a 'mixed witness' Vetrovec instruction and a W.(D.) instruction regarding a co-perpetrator's testimony, which was exculpatory at trial but inculpatory during a prior guilty plea.

The Court of Appeal dismissed the conviction appeal, finding the jury charge adequate when read as a whole.

The sentence appeal was granted only to credit the appellant with 90 days of pre-sentence custody on consent of the Crown.

The appellant appealed an order regarding cross-examination on his affidavit in a bankruptcy proceeding.

The respondent confirmed it would not attempt to cross-examine the appellant before the disposition of the bankruptcy trial, rendering the appeal moot.

The Court of Appeal declined to exercise its discretion to hear the moot appeal and dismissed it, awarding costs to the respondent.

This appeal concerned the application of the two-year limitation period under the Limitations Act, 2002, to an oppression remedy claim under the Ontario Business Corporations Act.

The shareholder (appellant) advanced three claims based on discrete oppressive acts: failure to distribute profits, unauthorized sale/transfer of business, and unauthorized corporate dissolution.

The motion judge summarily dismissed the entire action as statute-barred.

The Court of Appeal held that while the first two claims were discoverable more than two years before the action was commenced and thus statute-barred, the claim regarding the unauthorized corporate dissolution was not, as it occurred and was discovered later.

The appeal was allowed in part, permitting the corporate dissolution claim to proceed.

The appellant, Stoney Creek Centre Inc., appealed a judgment requiring it to pay the $3 million face amount of a mortgage, plus interest, to discharge it, rather than the approximately $2.7 million actually advanced.

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

The court held that the parties had expressly agreed that the borrower would bear the lender's financing costs, making the full face value of the mortgage payable.

The appellants appealed a trial judgment finding them liable for damages due to abandoning a 10-year commercial lease.

The appeal focused on two grounds: whether Kevin O’Neill was personally liable as a tenant and whether outdoor storage was a permitted use of the premises, justifying abandonment.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the lease was unambiguous regarding Kevin O'Neill's personal liability and that the appellants failed to demonstrate an implied term for outdoor storage or a mutual mistake regarding permitted uses.

The appellant appealed his sentence for robbery, arguing the sentencing judge erred by departing from a joint sentencing position.

The appellant had pleaded guilty, and after the judge expressed concern with an initial joint position, a new, higher joint position was proposed.

The sentencing judge rejected both and imposed a significantly higher sentence.

The Court of Appeal found the sentencing judge failed to properly apply the high threshold for rejecting a joint submission to the final proposed sentence.

The appeal was allowed, and the sentence was reduced to reflect the final joint position.

The appellant, David Réal Arsenault, appealed his conviction for marijuana production and possession for trafficking, and his sentence.

He raised two grounds: the trial judge's failure to assist him as a self-represented litigant and to rule on a constitutional motion regarding a search warrant, and the violation of his linguistic rights by forcing him to proceed without French-speaking counsel.

The Crown conceded the first ground, agreeing to a new trial and undertaking to seek a stay of proceedings.

The Court of Appeal allowed the appeal on this basis, quashing the conviction and ordering a new trial.

Regarding the linguistic rights argument, the Court found that the trial judge's refusal to grant an adjournment was a reasonable exercise of discretion, as the appellant had not demonstrated sufficient diligence in securing French-speaking counsel over a six-year period.

The Court also found the appellant's new evidence on this point to lack credibility.

The appellant appealed a summary judgment dismissing her action against the City of Toronto and its representative regarding property tax arrears.

The motion judge had found her claims were statute-barred and that the City was entitled to collect the arrears.

On appeal, the appellant argued the motion judge erred in his conclusions, demonstrated a reasonable apprehension of bias, and should not have granted summary judgment while her claim against her former solicitor remained outstanding.

The Court of Appeal dismissed the appeal, finding no errors, no reasonable apprehension of bias, and no risk of conflicting judgments.