Court of Appeal

The appellant, Taylor Kuhni, appealed the imposition of a lifetime driving prohibition following guilty pleas to several offences, including dangerous operation of a conveyance.

The Court of Appeal found that the sentencing judge erred in imposing a lifetime prohibition, as the maximum allowed by law was 10 years.

The court substituted a 10-year prohibition and dismissed the appellant’s request for an adjournment to consider a claim of ineffective assistance of counsel.

The Court of Appeal for Ontario considered whether an order consolidating two actions and dismissing a summary judgment motion was final or interlocutory, and whether to stay the operation of the schedule in the motion judge’s order pending appeal.

The court found the order to be final, as it disposed of the limitation defence under the Real Property Limitations Act, and stayed the order pending appeal.

The appellant, Nathalie Xian Yi Yan, sought a panel review of a motion judge’s decision dismissing her motion for a stay pending appeal.

The underlying appeal was from an order declaring her a vexatious litigant under section 140 of the Courts of Justice Act.

The Court of Appeal dismissed the review motion, holding that Yan had not obtained leave to bring the motion as required by the vexatious litigant order and the statute.

The court reiterated that a person declared a vexatious litigant may file a notice of appeal without leave, but requires leave for any motions in the appeal.

The court found no error in the motion judge’s decision and awarded costs to the College.

This costs endorsement follows the Court of Appeal’s decision allowing the appellants’ appeal in part.

The court found that the trial judge erred in requiring Mak Mera Limited to repay US$405,000 and in awarding $200,000 in defamation damages to James Bay Resources Limited.

The appellants were awarded costs of the appeal and, after submissions on trial costs, the court awarded the appellants $400,000 in trial costs, payable by James Bay, as a fair and proportionate amount in light of the appeal outcome and the parties’ relative success.

This decision concerns a Crown appeal from sentence, focusing on the tension between proportionality and public protection in sentencing a repeat violent offender.

The Court of Appeal found that the sentencing judge erred by failing to give sufficient weight to the respondent’s extensive criminal record and the seriousness of her recent offences, and by anchoring the analysis solely to a previous sentence.

The Court substituted a penitentiary sentence and imposed a 10-year Long-Term Supervision Order (LTSO), emphasizing the need for public protection and the proper application of sentencing principles.

This costs endorsement follows the Law Society of Ontario’s successful motion before the Court of Appeal for Ontario.

The court orders each of the moving parties severally liable for costs of $200, payable to the Law Society of Ontario, on a partial indemnity basis.

The appellants, Andrew Smoke and Eric Smoke, appealed their convictions for the second degree murder of Andrew “Scruff” Davis.

The Court of Appeal for Ontario dismissed both appeals, finding no error in the trial judge’s instructions to the jury regarding aiding and abetting, after-the-fact conduct, and the use of statements attributed to Andrew.

The court also found the verdict against Eric was not unreasonable, given the circumstantial evidence, including DNA and video evidence.

The Court of Appeal for Ontario considered whether to grant Diana and Michael Hordo an extension of time to seek leave to appeal a Divisional Court decision.

The Hordos failed to comply with procedural rules and repeatedly submitted deficient materials.

The court applied the test for an extension of time, focusing on the merits of the proposed appeal, and found that the only potentially meritorious ground was a reasonable apprehension of bias.

The court granted the extension, referred the perfected motion for leave to a panel, and reserved costs.

The Court of Appeal for Ontario dismissed the Crown's appeal from a directed verdict of acquittal on a charge of accessory after the fact to murder.

The court found that the evidence did not support leaving the charge to the jury on the basis of wilful blindness, as there was no basis for a reasonable jury to find that the respondent knew or was wilfully blind to the fact that the victim had died.

The court also held there was no air of reality to the included offence of being an accessory after the fact to attempted murder, as the evidence established the victim died and there was no live issue as to causation.

The Court of Appeal for Ontario dismissed the Crown's appeal from a directed verdict of acquittal for Abdullahi Osman, who was charged as an accessory after the fact to murder.

The court held that, although attempted murder can in rare cases be an included offence to murder, there was no air of reality to the included offence of being an accessory after the fact to attempted murder in this case, as the evidence was clear that the principal's acts caused the victim's death.

The decision clarifies the law on included offences, the requirements for accessory after the fact liability, and the rare circumstances in which attempted murder may be left to a jury as an included offence where the victim dies.

The Court of Appeal for Ontario dismissed the appeal of Ilinka Armstrong and Dean Tully from an order removing them as estate trustees for the estate of Dan Muscat and denied leave to appeal a related costs order.

The court found that Armstrong was in a conflict of interest due to her romantic relationship with a potential purchaser of the estate’s business, failed to disclose this conflict, and did not undertake proper due diligence.

The court upheld the application judge’s decision to remove the trustees and order them to pay costs personally.

The Court of Appeal for Ontario considered Lisa Griffiths’s appeal from her conviction and sentence for multiple counts of breaking and entering and attempted break and enter.

The court dismissed the conviction appeal but allowed the sentence appeal, finding that the trial judge erred by treating Griffiths’s decision to go to trial as a lack of remorse and by increasing her sentence on that basis.

The court substituted a sentence of 15 months’ imprisonment and two years’ probation, but declined to impose a conditional sentence.

The Court of Appeal for Ontario considered whether the application judge erred in refusing to order the return of a child to the United Kingdom under the Hague Convention, on the basis that the left-behind parent had consented to or acquiesced in the child’s retention in Canada.

The Court found that the application judge conflated consent to future relocation with consent to the present retention, and that the evidence did not support a finding of consent or acquiescence to the wrongful retention.

The appeal was allowed and the return of the child to the U.K. was ordered, with undertakings imposed to protect the child’s best interests.

The Court of Appeal for Ontario dismissed Milan Janic’s appeal from a motion to change child support and expense sharing, upholding the motion judge’s findings on imputed income, disclosure, and conflict of interest.

The court found no error in the treatment of financial evidence, the imputation of income, or the application of federal law, and awarded costs to the respondent.

The Court of Appeal for Ontario dismissed the appeal by Jagtar Dhaliwal and Voxx Sports Inc. from a Superior Court decision upholding an arbitrator’s refusal to recuse himself for bias.

The appellants alleged both a reasonable apprehension of bias and actual bias, based on the arbitrator’s prior involvement with respondents’ counsel and comments about the veracity of Mr. Dhaliwal’s affidavit.

The Court found no merit in either claim, holding that the arbitrator’s conduct did not give rise to a reasonable apprehension of bias and that adverse credibility findings do not, on their own, establish actual bias.

The appeal was dismissed with costs to the respondents.

The Court of Appeal for Ontario considered a motion by Peoples Trust Company (PTC) to partially lift the automatic stay of a penalty order requiring PSP Services Inc. (PSP) to pay $1,998,612.07 into court, pending appeal.

The court reviewed the context and the three-part test for lifting a stay, finding that all factors weighed in favour of granting the motion.

The stay was lifted, and PSP was ordered to pay the funds into court.

Costs were set at $7,500.

This appeal concerns a family law dispute involving claims for unjust enrichment arising from a joint family venture and spousal support.

The Court of Appeal for Ontario upheld the trial judge’s award of $3,000,000 in damages for unjust enrichment, $365,624 in lump sum spousal support, and $475,000 in costs to the respondent, Katherine Ann Mullin.

The court found that the trial judge properly applied the law regarding unjust enrichment and joint family ventures, and that the evidence supported the findings.

The appeal was dismissed.

The appellant, 2708959 Ontario Inc., appealed the dismissal of its application regarding four structures encroaching on a municipal road allowance in Stratford.

The Court of Appeal upheld the application judge’s finding that the City of Stratford had not expressly or tacitly approved the encroachments when the building and site plan drawings were approved in 1998.

The court found that the onus was on the original proponent and their advisors to bring the encroachments to the City’s attention, and that approval of site plans and occupancy permits did not constitute approval of the encroachments.

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

The Court of Appeal for Ontario considered a motion by Sandra Di Nardo to stay the enforcement of a judgment and related contempt orders pending her appeal in a contentious estate matter.

The court clarified the scope of its jurisdiction to grant a stay, distinguishing between orders that are and are not under appeal, and ultimately granted a temporary stay of the contempt order and warrant of committal pending a motion in the Superior Court.

The court found that the criteria for a stay were met, as the appeal could be rendered moot without interim relief.

The appellant, Jude Thangarajah, sought an extension of time to file a notice of appeal from his 2017 convictions and to seek leave to appeal his sentence.

The Court of Appeal for Ontario dismissed the motion, finding that Mr. Thangarajah did not form a timely intention to appeal, failed to adequately explain the lengthy delay, and did not demonstrate arguable grounds of appeal.

The court also found that granting the extension would prejudice the Crown and the administration of justice, and emphasized the importance of finality for the complainant and the public.