ONCA 2017

The appellant, a tobacco manufacturer on the Six Nations reserve, appealed a Divisional Court decision dismissing its application for judicial review of the Minister of Finance's demand for security under section 12(2)(f.1) of the Tobacco Tax Act.

The appellant manufactured tobacco for export and for sale on First Nations reserves, neither of which were subject to Ontario's tobacco tax.

The appellant argued the Minister's interpretation of the security requirement was unreasonable and that the provision was unconstitutional as an indirect tax on exported goods.

The Court of Appeal upheld the Divisional Court's decision, finding the Minister's interpretation reasonable and the provision constitutionally valid as incidental to a valid direct taxation scheme.

The appellant appealed her sentence for contempt of court, imposed for refusing to testify at her father's perjury trial.

The father was charged with perjury for allegedly lying under oath at a previous trial of the appellant's fiancée.

The appellant had been sentenced to one year imprisonment consecutive to time already being served for perjury convictions related to testimony given at the fiancée's earlier trial.

The Court of Appeal dismissed the sentence appeal, finding the sentence was not unfit.

This is a costs endorsement following the Court of Appeal's decision allowing the appeal of the Nottawasaga Valley Conservation Authority (NCVA) against a Divisional Court decision.

The NCVA sought costs of $77,419.86 on a partial indemnity basis for both the appeal and Divisional Court proceedings.

The court awarded reduced costs, finding the amounts sought for the leave to appeal motion and appeal hearing to be excessive relative to the Divisional Court costs.

The Gilmors were ordered to pay the NCVA $44,674.25 all-inclusive in total costs.

This appeal concerns a child relocation motion where the mother sought to move her five-year-old son from Cochrane, Ontario to Thunder Bay.

The parties had joint and shared custody following their separation in November 2015.

The motion judge dismissed the mother's relocation motion, finding that the child would lose meaningful contact with his father and that the mother's financial difficulties were self-imposed.

The Court of Appeal allowed the appeal, finding that the motion judge erred in principle by failing to recognize the mother as the primary caregiver and by making a palpable and overriding error in concluding that the mother's financial difficulties were self-imposed.

The court found a valid and compelling parenting-based reason for the move, as it was necessary to enable the primary caregiver to remain financially viable while providing care for the child.

This is a costs endorsement from the Court of Appeal for Ontario following an appeal from a Superior Court decision.

The appellant sought costs in the court below.

The respondent made no submissions on the costs issue.

The Court of Appeal fixed costs at $12,500, inclusive of disbursements and all applicable taxes, payable to the appellant within 30 days.

The appellants appealed orders of the Superior Court of Justice dismissing their motion to set aside a reinstated default judgment and authorizing the sale of their property to satisfy the judgment.

The original action was commenced in 2001 and resulted in a default judgment of approximately $86,000.

The judgment was subsequently set aside, then reinstated by Brown J. in 2008 on an ex parte basis.

The appellants moved to set aside the reinstatement, but the motion judge dismissed their motion.

The Court of Appeal allowed the appeal, finding that the respondent failed to make full and fair disclosure of material facts when appearing before Brown J. without notice to the appellants, which was a sufficient basis to set aside the judgment.

The appellants appealed a trial judgment, arguing that there was an understanding that the respondent had a 24-hour cooling-off period to withdraw from a deal, and that the respondent failed to communicate this understanding.

The Court of Appeal upheld the trial judge's findings that the evidence was too tentative to support a legally enforceable cooling-off provision, and that even if such a provision existed, the appellants failed to demonstrate that withdrawal was communicated within the 24-hour period.

The appellants' damages claim was found to be speculative.

The appellant appealed a summary judgment decision dismissing its claim for economic damages.

The appellant argued that the respondents breached their obligation to properly quantify post-closing costs, which impeded the appellant's ability to obtain financing for phase II of a development.

The Court of Appeal found that the motion judge properly addressed the appellant's submissions and dismissed the appeal with costs.

This is a costs endorsement following a successful appeal by the City of Burlington against Burlington Airpark Inc. The parties agreed to fix the costs of the appeal at $40,000 inclusive of disbursements and taxes.

However, they disagreed on the costs of the underlying application.

The respondent Airpark sought partial indemnity costs of $149,917.90, while the application judge had awarded the successful City substantial indemnity costs of $118,327.53.

The Court of Appeal determined that while Airpark was entitled to costs of the application despite adverse findings, an award of partial indemnity costs 25% higher than the substantial indemnity costs incurred by the successful applicant was unreasonable.

The Court fixed Airpark's costs at $80,000 inclusive of disbursements and taxes.

The appellant was convicted of first degree murder in the death of his wife, Adrienne Roberts, who was found murdered in the basement of their home.

He appealed on three grounds: (1) that the application judge erred in dismissing his O'Connor application for production of criminal investigation files relating to two other similar crimes; (2) that the trial judge erred in dismissing his alternate suspect defence application; and (3) that the first degree murder verdict was unreasonable and should be substituted with second degree murder.

The Court of Appeal upheld the conviction, finding no error in the application judge's O'Connor ruling, no air of reality to the alternate suspect defence, and that the jury's verdict of first degree murder was reasonable based on the totality of the circumstantial evidence.

The applicant sought bail pending appeal of his conviction for first degree murder in the killing of a victim on June 20, 1981.

The applicant had been tried four times for the offence: the first conviction was set aside on Charter grounds, the second and third trials resulted in hung juries, and the fourth trial resulted in conviction.

The applicant had been on bail for many years during the proceedings and had complied with all bail conditions.

The court applied the three-part test under s. 679(3) of the Criminal Code: (1) the appeal is not frivolous; (2) the applicant will surrender into custody; and (3) detention is not necessary in the public interest.

The court found all three criteria satisfied and granted bail pending appeal, increasing the recognizance to $750,000.

Appeal from an application judge's decision regarding the division of property following the breakdown of a common law relationship.

The appellant sought sole beneficial ownership of a jointly-titled residential property (Brookdale Avenue) or, alternatively, a credit for his repayment of a joint line of credit used to finance its purchase.

The Court of Appeal upheld the finding that the respondent held a 50 per cent legal and beneficial interest in the property, but allowed the appeal in part by granting the appellant a $500,000 credit on division of sale proceeds for his repayment of the respondent's share of the joint debt.

The appellant protested outside town hall with a megaphone against a municipal by-law permitting a medical marijuana facility to be built near his home.

Town employees expressed fear for their safety, and the town issued a one-year trespass notice banning the appellant from all town property.

The application judge found the appellant's protest was violent and therefore not protected by the Charter.

The Court of Appeal reversed, holding that the appellant's protest was peaceful expression protected by section 2(b) of the Canadian Charter of Rights and Freedoms, and that the trespass notice unjustifiably limited his freedom of expression.

The appellants appealed a Superior Court decision finding that frequent lockdowns at Maplehurst Correctional Complex violated the Charter rights of two remanded inmates under section 12 (cruel and unusual treatment).

The Court of Appeal allowed the appeal, finding that the application judge had significantly overstated the frequency, duration, and impact of lockdowns affecting the respondents.

The court concluded that while lockdowns occurred more frequently than ideal, they did not rise to the level of cruel and unusual treatment.

The court also found procedural unfairness in the award of damages without notice to the parties and rejected alternative arguments based on sections 7 and 10(c) of the Charter.

The appellant was convicted of historic sexual offences against his cousin committed when she was a young girl.

He was sentenced to two years less a day in jail and three years' probation.

The appellant appealed his conviction arguing the trial judge engaged in an unbalanced approach to evidence resulting in a reversal of the burden of proof and failure to give effect to the presumption of innocence.

The Crown sought leave to appeal the sentence, arguing the trial judge improperly applied Gladue principles and underemphasized deterrence and denunciation.

The Court of Appeal dismissed both the conviction appeal and the sentence appeal.

The appellant was charged with importing heroin and conspiracy to import heroin.

She was acquitted on the importing charge but convicted on the conspiracy charge and sentenced to six years imprisonment.

On appeal, the appellant argued that the acquittal on the importing charge was irreconcilably inconsistent with the conviction on the conspiracy charge, rendering the conspiracy conviction unreasonable.

Alternatively, she argued the trial judge erred in sentencing by treating her as a party to the importing charge on which she was acquitted.

The Court of Appeal dismissed both the conviction appeal and the sentence appeal.

The appellant appealed from a summary judgment decision dismissing its motion and granting the respondent's motion, which declared the respondent to be the legal and beneficial owner of CDN$100,000 and US$300,000 in stolen funds that the appellant had paid out under mistake to a third party fraudster.

The appellant had been defrauded of over US$66 million in a sophisticated fraud scheme.

The Court of Appeal upheld the lower court's decision, finding that while the appellant successfully traced the US$300,000 to the respondent, the respondent was a bona fide purchaser for value who had paid valuable consideration in Chinese currency without knowledge of the funds' illicit source and had legitimately changed his position.

The appellants, Robert Bortolon and his former lawyer Robyrt Regan, appealed findings of civil contempt and custodial sentences of 90 days imprisonment.

The contempt arose from their breach of a court order (the Le May Order) requiring production of documents to the respondent bank.

The appellants had made a deal whereby Regan would deliver documents to Bortolon rather than make them available for inspection by the bank, in exchange for settlement of their personal dispute.

The Court of Appeal dismissed the appeals regarding the contempt findings but allowed the appeals regarding penalty, reducing the custodial sentences from 90 days to 45 days for each appellant.

The appellant sought leave to appeal a conviction for dangerous driving that was upheld on summary conviction appeal.

The Court of Appeal refused leave to appeal, finding that neither proposed ground of appeal met the merits threshold.

The first ground challenged the trial judge's rejection of expert evidence regarding reaction time, which the trial judge was entitled to reject and which was irrelevant to the facts as found.

The second ground challenged the reasonableness of the verdict, which also failed the merits test.

The court noted that dangerous driving law is well-settled and each case turns on its own facts.

The appellant appealed his conviction for sexual assault and forcible confinement entered after a jury trial.

The appellant challenged the admissibility of evidence of a prior conviction for sexual assault as part of similar fact evidence, and also challenged the trial judge's instruction to the jury regarding the use of such evidence on the issue of consent.

The Court of Appeal upheld the conviction, finding that the prior conviction was properly admitted as part of a package of similar fact evidence and that the trial judge's charge to the jury was adequate.