Court of Appeal

Appeal from a summary judgment dismissing the appellant's action for domain name disputes and an order dismissing the appellant's motion to strike paragraphs of the respondent's statement of defence.

The appellant sought leave to appeal the costs award.

The Court of Appeal upheld the motions judge's decision, finding no error in the refusal to adjourn the summary judgment motion, no error in dismissing the motion to strike, and no basis to interfere with the costs award.

The court found that the appellant had registered domain names confusingly similar to the respondent's marks in bad faith and had engaged in unethical and deceptive conduct.

The appellant appealed a trial judge's decision that structured settlement annuity payments received by the appellant should be treated as property rather than income under the Family Law Act.

The trial judge had found that the annuity payments fell within the definition of property and were not excluded property under section 4(2)3 of the Act, and therefore should not be treated as income for spousal support purposes.

The Court of Appeal allowed the appeal, holding that structured settlement annuity payments should be treated as income, not property, for purposes of the Act.

This is a costs decision supplementary to the Court of Appeal's February 3, 2017 judgment allowing in part an appeal from an application judge's order regarding spousal support and insurance benefits.

The appellant sought to set aside the application judge's costs award to the respondent and obtain costs for both the application and appeal.

The respondent sought to maintain the costs award and obtain additional costs for the appeal.

The Court of Appeal found that unusual circumstances existed because the appropriate reduction to the respondent's obligations remained open for determination by another application judge, warranting a departure from the general principle that the successful party on appeal receives costs below.

The Court reserved costs of the application and any further application to the application judge and awarded the appellant costs of the appeal in the amount of $13,000.

The appellant appealed the Ontario Review Board's disposition maintaining a detention order.

The appellant argued the Board erred in concluding she continued to pose a significant threat to public safety and that detention remained the least restrictive measure.

The Court of Appeal upheld the Board's decision, finding the expert evidence established the appellant suffered from schizophrenia with persistent delusional beliefs related to the index offense (assault of her mother), lacked insight into her condition, and would discontinue treatment if discharged.

Although the appellant had been placed in supervised community accommodation since the appeal was filed, the court found this did not undermine the Board's conclusion that conditional discharge would be inadequate to manage the risk.

The detention order was necessary to enable the hospital to approve and supervise the appellant's community placement.

Appeal from a sentence imposed by the Ontario Court of Justice following a conviction.

The appellant challenged the trial judge's assessment of whether section 8 Charter rights were breached during a search.

The trial judge found that a level 3 search was reasonable except for the "squat and cough" procedure, which was deemed unreasonable.

The trial judge reduced the sentence as a remedy under section 24(1) of the Charter.

The appellant sought a stay of proceedings, arguing systemic deficiencies.

The Court of Appeal upheld the trial judge's decision, finding no error in her findings and determining that the sentence reduction was an appropriate remedy for the breach.

The appellant appealed the dismissal of part of its application for relief arising from a fire at an adjoining semi-detached property.

The appellant sought recovery of losses caused by the fire and subsequent conduct of the respondent and its predecessor.

The key issue was whether the respondent, having purchased the damaged property several months after the fire, became liable for damages caused to the appellant's property prior to the respondent's acquisition.

The Court of Appeal upheld the application judge's decision, finding that the respondent had no involvement in and could not be responsible for damages accrued before it acquired the property.

The court also reduced the respondent's costs award on appeal.

The appellant appealed a motion judge's decision dismissing his motion for an extension of time to serve a Third Party Claim on Rosa Cavallo nunc pro tunc and for validation of service based on the pleading coming to her attention.

The appellant had issued the Third Party Claim alleging that foliage on the Cavallos' property created a hazard to motorists.

Rosa had moved to Italy and her whereabouts were unknown.

The motion judge dismissed the motion, finding the evidence regarding service attempts was unreliable hearsay and that the pleading had not come to Rosa's attention.

The motion judge also refused to dispense with personal service, noting the potential liability far exceeded the policy limits and the case was weak.

The Court of Appeal upheld the dismissal, finding no error in the motion judge's conclusions regarding the hearsay evidence and the requirements of the Rules of Civil Procedure.

The appellant appealed his conviction on counts one and two, as well as the sentence imposed.

The trial judge committed two errors: first, using CPIC records to contradict the appellant's testimony about his name usage, which had no logical relevance; and second, using the appellant's rejected and fabricated evidence as circumstantial evidence of guilt.

The Court of Appeal found the second error to be fatal and quashed the convictions on counts one and two, ordering a new trial.

The conviction on count three (breach of probation) was upheld with a concurrent sentence of 120 days, and the firearm prohibition was set aside while the DNA order was maintained.

The appellant appealed his sentence imposed by the Ontario Court of Justice.

The trial judge had misunderstood the position of defence counsel regarding the appropriate sentence, resulting in a sentence longer than that requested by either Crown or defence.

The Court of Appeal received fresh evidence on consent to clarify defence counsel's position and adjusted the sentence to an effective three years, with credit for 533 days of presentence custody.

The sentence was varied to consist of 562 days for possession of a loaded prohibited firearm, with concurrent sentences on related drug and firearm offences.

The appellant was entitled to a reformatory sentence (less than two years) and arrangements were made to transfer him from the penitentiary in British Columbia to the reformatory system in Ontario.

The appellant appealed his conviction entered by the Ontario Court of Justice on March 8, 2016.

The Court of Appeal found that the trial judge properly assessed the circumstantial evidence and that no error in law or clear and palpable factual error was demonstrated.

The court held that the failure to articulate alternative factual scenarios in the reasons for judgment does not equate to a failure to consider them.

The reasons were found to be adequate as the judge reviewed the evidence and made the basis for his finding clear.

The appeal was dismissed.

The appellant appealed his sentence of 9 years less 18 months pre-sentence custody for aggravated assault with a weapon.

He argued that the sentencing judge erred in failing to consider whether intent to kill was the only available inference and that the sentencing judge failed to apply the principle of proportionality given the mitigating factors.

The Court of Appeal dismissed the appeal, finding that the sentencing judge carefully balanced the mitigating and aggravating factors and was entitled to consider the appellant's intent to kill as a seriously aggravating factor.

The sentence was found to be fit in the circumstances.

The appellant sought to appeal a costs order made by Gibson J. of the Superior Court of Justice dated May 24, 2016.

The appellant did not seek leave to appeal.

The Court of Appeal dismissed the proposed appeal, finding no basis to interfere with the discretionary costs order.

Costs were fixed at $250 inclusive of disbursements and applicable taxes in favour of the respondent.

The appellants, Vice Media Canada Inc. and journalist Ben Makuch, appealed the dismissal of their application to quash a production order requiring them to produce documents relating to their communications with Farah Shirdon, a Canadian resident who had joined ISIS and was charged with terrorism offences.

The appellants also sought to unseal the affidavit supporting the production order and challenged a non-publication order.

The Court of Appeal upheld the production order, finding that the Garofoli standard of review applied and that the issuing judge reasonably balanced the competing interests of law enforcement and freedom of the press.

The court allowed the appeal in part regarding the sealing order, directing that most material be unsealed with limited redactions.

The court also addressed the non-publication order, finding it a valid alternative to sealing but noting that certain portions of the affidavit may not require the publication ban.

The respondent, who operated a body rub parlour licensed by the City of Vaughan, was charged with contravening a municipal by-law governing the hours of operation of body rub parlours.

He challenged the constitutionality of the by-law, arguing it was ultra vires the municipality because it constituted criminal law.

A justice of the peace and the Ontario Court of Justice agreed, finding the provisions were criminal in pith and substance and invaded federal authority.

The Court of Appeal allowed the appeal, holding that the pith and substance of the hours of operation provision was business licensing, falling within provincial authority over property and civil rights and licensing.

The court found the lower courts erred by focusing exclusively on extrinsic evidence while ignoring intrinsic evidence, and by failing to recognize that municipalities may legislate to suppress conditions conducive to crime when anchored in a valid provincial head of power.

The applicant sought a fee waiver from a judge of the Court of Appeal for Ontario in respect of filing fees for a notice of appeal from a Superior Court judgment.

The underlying proceeding involved an application by the Attorney General of Ontario under the Civil Remedies Act, 2001 for forfeiture of seized funds.

The applicant claimed the funds were not proceeds of crime.

The judge dismissed the fee waiver request, finding that the applicant failed to demonstrate a lack of financial means to pay the appeal fees.

The applicant's fee waiver affidavit was inconsistent with evidence he had previously presented to the application judge regarding his prior employment, income, and financial assets.

An employee who was employed as CEO and president for nine years brought an appeal challenging the trial judge's finding that the employer's refusal to pay a bonus on profits from the sale of real estate investments did not constitute constructive dismissal, despite breaching the employment contract.

The Court of Appeal upheld the trial judge's decision, finding that the breach did not substantially alter an essential term of the employment contract and did not evince an intention by the employer to no longer be bound by the contract.

The court applied the two-branch test from Potter v. New Brunswick Legal Aid Services Commission, finding that neither branch was satisfied on the facts.

The appellant appealed his conviction on one count of conspiracy to possess heroin for the purposes of trafficking and his sentence of 12 years imprisonment.

The Court of Appeal addressed three grounds of appeal: an erroneous instruction on the conspiracy count, an erroneous Vetrovec instruction regarding a witness who testified under an immunity agreement, and inadequate guidance on assessing the witness's inconsistent statements.

The court found that while the trial judge misspoke on one aspect of the conspiracy instruction, the error did not warrant a new trial as the real issue—whether the appellant was a member of the conspiracy—was clearly explained to the jury.

The Vetrovec instruction and guidance on inconsistent statements were found to be satisfactory.

The sentence appeal was dismissed as the trial judge imposed a sentence well within the appropriate range, considering the appellant's personal and family circumstances.

Both appeals were dismissed.

The appellant appealed his conviction and sentence imposed by the Superior Court of Justice.

The Court of Appeal upheld the conviction and the 33-month sentence as fit, finding no error in principle regarding the trial judge's characterization of the sentencing range.

However, the court varied the sentence by modifying the firearms prohibition from a lifetime ban under s. 109(2) to a ten-year ban, considering the appellant's youth and absence of prior firearm misuse.

The appellant was convicted at jury trial of importing and conspiracy to import heroin, and of possession of and conspiracy to possess heroin for the purposes of trafficking.

The appeal challenged the trial judge's jury instructions on multiple grounds, including the failure to instruct on frailties of voice identification, the adequacy of the Vetrovec instruction regarding a key Crown witness, the absence of a special instruction regarding co-accused testimony, the failure to provide a remedial instruction on the right to silence, and the trial judge's failure to address inflammatory comments made by co-counsel.

The Court of Appeal dismissed all grounds of appeal and upheld both the convictions and the sentence of 16 years imprisonment.

Application for release from custody pending a new trial ordered by the Court of Appeal.

The applicant was convicted of second degree murder in connection with the death of a young man following an assault in an Ottawa bar on New Year's Eve 2005.

The Court of Appeal allowed the appeal and ordered a new trial based on fresh expert evidence regarding the mechanism of death.

The applicant had previously been released pending appeal but breached his recognizance by contacting a Crown witness.

The Crown opposed release on secondary and tertiary grounds.

The court granted the application, finding that the applicant had demonstrated his detention was not necessary for public protection or to maintain confidence in the administration of justice, despite the serious nature of the charge and the prior breach.