Court of Appeal

This decision concerns an appeal by Iesha Mitchell from a detention order imposed by the Ontario Review Board.

The Board had found that, although Mitchell could live in the community with certain privileges, her housing required approval by the person in charge of the Centre for Addiction and Mental Health (CAMH), and that the Mental Health Act alone would not be sufficient to manage her risk to public safety.

The Court of Appeal found no error in the Board’s reasoning, holding that the evidence supported the need for approved housing and a detention order, given the subtlety of Mitchell’s decompensation and the need for prompt intervention.

The appeal was dismissed.

The Court of Appeal for Ontario dismissed Doug Lloyd’s appeal from the Superior Court’s refusal to extend time for judicial review of the Crown’s decision to stay his private prosecution against Bell Canada.

The court held that prosecutorial discretion is only reviewable for abuse of process, which requires egregious conduct.

The application judge made no error in law or fact, and the Crown’s decision not to consider expert evidence or to stay the prosecution on public interest grounds did not amount to an abuse of process.

The Court of Appeal for Ontario dismissed Shantanu Shirodkar’s appeal seeking to certify a class action against Coinbase Global, Inc. and its subsidiaries for alleged violations of securities laws.

The court upheld the motion judge’s findings that Ontario courts lacked jurisdiction over the non-Canadian Coinbase entities and that Ireland was the preferable forum for the claims, staying the action against Coinbase Canada as well.

The decision addresses the interpretation of forum selection clauses, the application of the “real and substantial connection” test, and the doctrine of forum non conveniens in the context of cross-border crypto-asset trading.

The Court of Appeal for Ontario considered when a gender affirming surgery, specifically a vaginoplasty without penectomy, qualifies as an insured service under the Ontario Health Insurance Plan (OHIP).

The court held that vaginoplasty is a specifically listed insured service in the Schedule of Benefits, regardless of whether it is accompanied by a penectomy, and that the exclusion for experimental procedures does not apply to specifically listed services.

The appeal by the General Manager of OHIP was dismissed.

The Court of Appeal for Ontario dismissed an appeal by S.D.M.O. Industries (Kohler-SDMO) and Kohler Co., who sought to stay proceedings on the basis of lack of jurisdiction or a forum selection clause favoring a French court.

The court held that Ontario had jurisdiction, the forum selection clause was not proven to be valid or applicable, and the motion judge made no reviewable error.

The appeal was dismissed with costs.

The Court of Appeal for Ontario allowed the conviction appeals of William McDonald (second-degree murder) and Thomas Lako (manslaughter) arising from the 2012 shooting death of Jonathan Zak.

The court found that the trial judge erred in admitting a hearsay police statement from a deceased witness for the truth of its contents and in failing to adequately caution the jury regarding discreditable conduct evidence.

The court ordered new trials for both appellants.

The appellant, Rapinder Bains, appealed convictions for drug-related offences, arguing that the trial judge erred by applying a less onerous standard for entrapment.

The Court of Appeal found no error in the trial judge’s approach, holding that it was open to the trial judge to infer from the Agreed Statement of Facts that the officer had the requisite subjective belief to proceed.

The appeal and the sentence appeal were both dismissed.

The appellant, Michael Westcott, appealed his sentence on the basis that it significantly exceeded the sentence requested by the Crown.

The Court of Appeal found that the sentencing judge erred by failing to provide adequate notice that she was considering a sentence higher than the Crown’s request, as required by R. v. Nahanee.

However, the Court found no error in principle in the judge’s application of the totality principle or her consideration of harsh pretrial custody conditions.

The appeal was dismissed, with the Court clarifying the distinction between joint submissions and contested sentencing hearings.

This appeal concerns a commercial dispute between The North West Company LP (NWC) and Classic Furs Company Ltd. (CF) over the supply of coyote furs for use in Canada Goose parkas.

The trial judge found a contract existed and that NWC breached it in several respects, but also found in NWC’s favour on unpaid invoices.

Both parties appealed aspects of the damages assessment and liability findings.

The Court of Appeal allowed CF’s appeal in part, finding that the trial judge erred in concluding that certain furs were delivered, and recalculated damages accordingly, including an award of punitive damages against NWC.

The appellant, Leslie Arthur Swan, appealed the dismissal of his claim for conspiracy and defamation against several respondents, including a condominium corporation, its manager, and legal counsel.

The motion judge dismissed the action as frivolous, vexatious, and an abuse of process under rule 2.1.01 of the Rules of Civil Procedure, finding it was a collateral attack on earlier proceedings and statute-barred.

The Court of Appeal upheld the motion judge’s decision, finding no error and dismissing the appeal with costs to the respondents.

The appellant, Matthew Desouza, appealed his seven-year sentence for human trafficking, assault with a weapon, and failing to comply with a release order.

He argued that the sentencing judge failed to properly apply Gladue principles and that the sentence was unfit.

The Court of Appeal found that the sentencing judge gave appropriate consideration to Gladue factors, the seriousness of the offence, and mitigating factors such as remorse and a guilty plea.

The appeal was dismissed.

The appellant, Emmanuel Pinard, appealed his conviction for possession of a firearm knowing it to be unauthorized.

The Court of Appeal for Ontario considered arguments regarding the trial judge’s instructions to the jury, the adequacy of assistance to the self-represented appellant, and the admission of evidence of prior discreditable conduct.

The court found no error in the trial judge’s instructions or approach, and dismissed the conviction appeal, also denying leave to appeal the sentence.

The appellant, Mustafa Ahmed, was convicted of second degree murder following a judge-alone trial.

The case involved a fatal shooting during a bar altercation, captured on CCTV.

The trial judge rejected Ahmed’s claims of self-defence and provocation, finding his testimony not credible or reliable.

On appeal, Ahmed argued that the trial judge made palpable and overriding errors in assessing the CCTV evidence and misapplied the law regarding his subjective beliefs.

The Court of Appeal found no such errors and dismissed the appeal.

The Court of Appeal for Ontario dismissed Dwayne Thomas’s appeal from a six-and-a-half year sentence for sexual assault and breach of trust.

The court found the trial judge was entitled to exceed the usual sentencing range due to the aggravated breach of trust and the victim’s vulnerability as an incarcerated person.

The court rejected arguments that the trial judge failed to give sufficient weight to rehabilitation, the harshness of incarceration for a former correctional officer, and post-sentencing rehabilitative efforts.

The decision affirms the priority of deterrence and denunciation in sentencing for sexual assault by persons in positions of authority.

The Court of Appeal for Ontario dismissed the appeal by Kurt Ashley Ritchie from an order upholding, with modification, a separation agreement between himself and Jessica Bortoleti De Oliveira.

The court found no error in the trial judge’s adjustment of child support or in the costs award, which reflected divided success and the parties’ conduct.

The court emphasized the ongoing obligation for both parties to exchange financial information annually and confirmed that no costs would be awarded for the appeal.

The appellant, A.N., appealed convictions for three counts of sexual interference and three counts of sexual assault, arguing that his right to be tried within a reasonable time under section 11(b) of the Charter was infringed.

The appeal focused on whether a 60-day period of delay, attributed by the trial judge to COVID-19 as an exceptional circumstance, was properly deducted from the total delay.

The Court of Appeal upheld the trial judge’s reliance on local knowledge and internal court statistics to find the delay was justified, and dismissed the appeal.

The Court of Appeal for Ontario dismissed the father’s appeal from a family law order that varied parenting and support arrangements.

The court found that the trial judge’s reasons were clear, sound, and based on the evidence, and that the findings were consistent with the Divorce Act.

The trial judge’s decision to grant the mother primary care and sole decision-making authority, as well as to vary child and spousal support, was upheld.

The court emphasized deference to the trial judge’s factual findings and the best interests of the children.

The appellant, Hang Shi, appealed his conviction for aggravated assault arising from an incident in which his wife sustained significant injuries after a parking lot altercation.

The Court of Appeal found no merit in any of the grounds of appeal, holding that the trial judge properly assessed the reliability of the bystander’s eyewitness testimony, which was corroborated by Mr. Shi’s own text messages.

The court also found no error in the application of the burden of proof or in the treatment of after-the-fact conduct.

The appeal was dismissed.

The appellant, Adriel Cyrus, sought to bifurcate his conviction and sentence appeals after being convicted of two counts of sexual assault and one count of uttering a threat, and being declared a dangerous offender.

The Court of Appeal for Ontario, per George J.A., dismissed the motion, finding no compelling reason to separate the appeals.

The court emphasized the efficiency and consistency of hearing both appeals together, referencing prior authority and the inefficiency of duplicating review of the trial record.