Court of Appeal

The Court of Appeal for Ontario considered three appeals arising from two convictions and an order for a new trial in impaired driving cases.

The central issue was whether, under the amended Criminal Code, the Crown must adduce direct evidence from an analyst or the analyst’s certificate to prove the alcohol standard used to calibrate an Approved Instrument, or whether the certificate or testimony of a qualified technician is sufficient.

The court followed the Yukon Court of Appeal’s decision in R. v. MacDonald, holding that the qualified technician’s certificate is evidence of the facts alleged in it, including that the alcohol standard was certified by an analyst.

The appeals were dismissed.

The Court of Appeal for Ontario dismissed Lynne Catherine Foulidis’s motion for a panel review and to set aside the Deputy Registrar’s order dismissing her appeal for delay.

The court found that the motion judge correctly concluded the appeal lacked merit and that the criteria for an extension of time to perfect the appeal were not met.

The court reviewed the trial judge’s findings regarding the retainer agreement and legal fees, and found no palpable and overriding error.

Costs were awarded to the respondent.

The appellant, Milad Babadi, sought to reopen his appeal from convictions and sentence after his appeal was previously dismissed.

The Court of Appeal for Ontario declined to admit new evidence and dismissed the motion to reopen, finding no compelling basis to do so and confirming the finality of its earlier decision.

The Court of Appeal for Ontario granted the moving party, M.H., several orders following the administrative dismissal of O.K.'s family law appeal.

The court awarded costs for motions, declared the costs awards to be "support orders" under the Family Responsibility and Support Arrears Enforcement Act, 1996, and directed the issuance and enforcement of support deduction orders.

The decision clarifies the enforceability of costs awards as support orders and the process for their enforcement through the Family Responsibility Office.

The appellants sought leave to appeal a Superior Court decision that dismissed their motion for leave to appeal an arbitrator's award.

The respondent moved to quash the appellants' motion, arguing that no appeal lies from a refusal to grant leave to appeal an arbitral award when decided on the merits.

The Court of Appeal agreed, finding that the application judge did not mistakenly decline jurisdiction but rather determined the leave application on its merits.

Consequently, the Court of Appeal allowed the respondent's motion and quashed the appellants' motion for leave to appeal.

The appellant, Shafaq Joya, appealed the Ontario Review Board’s decision to continue his conditional discharge and deny his Charter application for an absolute discharge.

The Court of Appeal for Ontario dismissed the appeal, finding that the Board’s assessment of risk and refusal to grant an absolute discharge were reasonable and supported by the evidence.

The court also found no Charter breach, as the Board’s decision was based on public safety, not resource limitations.

The appellant, Justin Aghayere Omoragbon, sought leave to appeal his 26-month sentence for breaking and entering a dwelling-house.

He argued that the sentencing judge erred by not accepting the 18-month sentence proposed by the Crown and later adopted by the defence.

The Court of Appeal found that there was no joint submission on sentence, no violation of the principles in R. v. Nahanee or R. v. Anthony-Cook, and that the sentencing judge properly considered the mitigating factors and the appellant’s circumstances.

Leave to appeal was granted, but the appeal was dismissed.

The moving party, Stephen Moranis, sought an extension of time to perfect his appeal in a long-running dispute with the Toronto Real Estate Board (TREB) and others regarding access to the Multiple Listing Service (MLS) system and alleged breaches of a settlement agreement.

The Court reviewed the procedural history, including multiple actions, settlements, and motions, and applied the established factors for granting extensions of time.

While expressing reservations about the merits of the appeal, the Court granted a limited extension to August 1, 2025, finding no prejudice to the respondents and that the justice of the case warranted the extension.

The appellant, Josiah Lowe, appealed his sentence of three years' imprisonment for three counts of robbery, possession of property obtained by crime over $5,000, and wearing a disguise with intent.

He argued that the sentencing judge misapplied the law regarding anti-Black racism, erred by prioritizing denunciation and deterrence, and erred in crediting his bail conditions.

The Court of Appeal found no error in the sentencing judge’s application of the law or principles and dismissed the appeal.

The Court of Appeal for Ontario dismissed the appeal from the motion judge’s order dismissing an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act.

The court found that the expression at issue—a private comment between spouses—did not relate to a matter of public interest.

The court also denied leave to appeal the motion judge’s costs order, upholding the finding that the self-represented respondent had not established a basis for costs.

The decision affirms the high threshold for overturning discretionary costs decisions and clarifies the application of the public interest requirement in anti-SLAPP proceedings.

The Court of Appeal for Ontario dismissed a motion by 13 respondents to re-open an appeal regarding the Law Society of Ontario’s decision to void their licensing exam results and registrations due to exam integrity breaches.

The court found that the moving parties had not been denied judicial review, that their complaint was about the adequacy of reasons rather than a rare circumstance justifying re-opening, and that the interests of justice did not require reconsideration.

The court held that the Law Society’s actions were consistent with its by-laws and that the moving parties’ arguments had been addressed.

In a Crown appeal of an acquittal where the trial judge resigned due to permanent infirmity without providing written reasons, the respondent sought disclosure regarding communications between the Executive Legal Officer (ELO) of the Superior Court of Justice and the Crown.

The Office of the Chief Justice of the Superior Court of Justice (OCJSCJ) moved to provide unredacted communications in the ELO's possession to the appellate panel for judicial inspection only.

The Court of Appeal for Ontario granted the OCJSCJ's motion, agreeing to review the sealed materials to ensure the panel has the necessary context regarding sensitive issues of judicial independence and privilege.

The court also deferred a decision on the respondent's request to contact the retired trial judge, inviting input from the Ontario Superior Court Judges’ Association.

The appellant, J.A., appealed a decision of the Superior Court of Justice upholding a finding by the Consent and Capacity Board that he was incapable of consenting to treatment with antipsychotic medication.

The Court of Appeal found no reversible error in the lower court’s decision, upholding the dismissal of the appellant’s adjournment request and the application of the relevant legal principles regarding capacity and consent.

The appeal was dismissed.

The Court of Appeal for Ontario dismissed Susan Hutchison’s appeal from an order requiring her to pay spousal support to Matthew Bosrock and her application for leave to appeal the trial judge’s costs award.

The court found no error in the trial judge’s assessment of income, consideration of mortgage repayments, or imputation of income.

The court also upheld the costs award, finding that the trial judge properly considered the divided success at trial and the time spent on the main issues.

The Court of Appeal for Ontario dismissed the appeal of Canguard Group Limited and others from a partial summary judgment order declaring a mortgage on the respondent’s property void as a fraudulent conveyance.

The court found no error in the motion judge’s reliance on the evidentiary record, including affidavits, and held that the appellant’s failure to respond or provide discovery justified summary judgment.

The court also rejected arguments regarding the scope of the order and the appropriateness of partial summary judgment.

The appellant, Victoria Frazer, appealed a disposition of the Ontario Review Board which concluded she remained a significant threat to public safety and ordered her continued conditional discharge.

The appellant sought an absolute discharge, arguing she did not pose a significant threat.

The Court of Appeal allowed the appeal, finding that the Board's conclusion was unreasonable and relied too heavily on speculation regarding potential medication non-compliance and substance use.

Consequently, the Court set aside the Board's order and granted the appellant an absolute discharge.

The Court of Appeal for Ontario dismissed the appeal of Robert Ashley Williams from his conviction for second degree murder.

The appellant argued that the trial judge erred by not leaving the partial defence of provocation with the jury and by misdirecting the jury on the defence of self-defence.

The court found that the evidence did not support leaving provocation with the jury, as the appellant's actions made the victim's response foreseeable and there was no air of reality to the loss of self-control or suddenness elements.

The court also found no error in the trial judge's self-defence instructions.

The appeal was dismissed.

The appellant challenged federal statutory residency requirements that caused the loss of his appointment as a returning officer after he moved outside the electoral district he administered.

The majority held that an individual's choice of residence falls within the irreducible sphere of personal autonomy protected by s. 7 of the Charter, rejected an administration-of-justice threshold, and found that the continuing vacancy rule in s. 24(4) of the Canada Elections Act was overbroad.

Because the provision automatically terminated otherwise qualified officials even where actual residence was unnecessary to achieve the objective of local knowledge and physical presence, the deprivation of liberty was contrary to the principles of fundamental justice.

The respondent failed to justify the breach under s. 1, and the majority declared s. 24(4) of no force or effect.

A dissent would have dismissed the appeal on the basis that s. 7 does not apply outside the administration of justice.

The appellant, David Kawal, appealed his convictions for attempt murder, robbery with a restricted or prohibited weapon, and kidnapping with a restricted or prohibited weapon.

The Court of Appeal for Ontario dismissed all grounds of appeal, finding the jury verdicts reasonable and the trial judge’s instructions proper.

The court found no merit in arguments regarding the reasonableness of the verdicts, the instructions on circumstantial evidence, eyewitness identification, or the elements of the offences.

The sentence appeal was previously abandoned.

The Court of Appeal for Ontario considered the Crown’s appeal from an acquittal on a charge of sexual assault.

The Crown argued that the trial judge relied on myths and stereotypes about how a sexual assault victim should behave, particularly in finding it significant that the complainant returned to sleep in the same bed as the accused after the alleged assault.

The Court found that the trial judge did err in law by relying on such stereotypes, but held that the error did not have a material bearing on the acquittal, as the trial judge’s reasonable doubt was also based on other concerns about the complainant’s reliability and inconsistencies in her evidence.

The appeal was dismissed.