ONCA 2017

The appellant mortgagee appealed a judgment of the Superior Court of Justice regarding the interpretation and effect of a forbearance agreement between the mortgagee and mortgagor.

The application judge found that the forbearance agreement gave the mortgagee complete control over the mortgaged property and its business operations, including control over sale, capital improvements, tenant relations, and cash flow.

The Court of Appeal upheld the application judge's findings, holding that the forbearance agreement, as interpreted and applied by the parties, resulted in the mortgagee obtaining total control over the property.

The court emphasized that its findings were limited to the specific facts of the case and that not every forbearance agreement places a mortgagee in control.

This is a supplementary costs endorsement on appeal from a Superior Court judgment.

The appellants challenged the costs awarded by the application judge.

The Court of Appeal vacated the costs awarded by the application judge and left the determination of costs of the application to the trial judge.

This appeal concerns whether a proposed securities class action asserting a statutory cause of action for misrepresentation under Part XXIII.1 of the Ontario Securities Act was time-barred by the three-year limitation period in section 138.14.

The appellant commenced a class action in May 2009 but did not bring a motion for leave to proceed with the statutory claim within the limitation period.

The motion judge refused to grant leave nunc pro tunc (retroactively), finding that the appellant failed to meet the test established by the Supreme Court of Canada in Canadian Imperial Bank of Commerce v. Green.

The Court of Appeal upheld the motion judge's decision, finding no error in principle in the exercise of discretion to deny nunc pro tunc relief.

The appellants appealed an application judge's order declaring an Order to Remedy Unsafe Building null, void, and inoperative.

The respondent cross-appealed seeking an interim injunction to prevent demolition and a declaration that the building was not unsafe.

The Court of Appeal found that the application judge made two errors: first, in finding that service of the Order to Remedy was defective when it was properly served on the owner by registered mail in compliance with the Building Code Act; and second, in finding that the Order to Remedy lacked the required specificity.

The Court held that the Order to Remedy contained sufficient particularity to enable the respondent to understand the case it had to meet and the deficiencies requiring remediation.

The appeal was allowed, the cross-appeal dismissed, and the issues of interim injunction and whether the building was unsafe were remitted to another application judge.

The appellant sought leave to appeal a summary conviction appeal court decision that dismissed his appeal from a conviction for assault, criminal harassment, and mischief to property.

The charges arose from an altercation with his girlfriend following a Raptors game, during which he spat on her, subsequently destroyed her property worth approximately $1,000, and engaged in threatening communications.

The appellant, who was self-represented at trial with appointed counsel assisting in cross-examination, raised grounds including failure to provide reasonable assistance to a self-represented accused, reasonable apprehension of bias, and failure to consider essential elements of the offences.

The Court of Appeal refused leave to appeal, finding that the issues lacked significance for the general administration of justice and that the summary conviction appeal court judge had correctly articulated the governing legal principles and properly rejected each ground of appeal.

The deceased was subject to court orders requiring him to pay spousal and child support and to maintain his wife as the irrevocable beneficiary of his life insurance policy.

After separation, the deceased entered into a relationship with another woman whose child was born three months after his death.

The deceased left an insolvent estate.

The other woman brought an application for dependants' relief seeking to claw back the life insurance proceeds into the estate under section 72(1)(f) of the Succession Law Reform Act.

The wife sought a declaration that the policy did not form part of the estate or that she was a creditor whose rights were protected under section 72(7) of the Act.

The trial judge and Divisional Court held the policy formed part of the estate.

The Court of Appeal allowed the appeal, holding that section 72(7) excludes from the claw back the amount of proceeds required to satisfy the deceased's court-ordered spousal and child support obligations where the support recipient was designated as the irrevocable beneficiary.

The Crown appealed an acquittal resulting from the exclusion of evidence of child pornography under s. 24(2) of the Charter.

The respondent was charged with possessing and accessing child pornography.

Police seized a family computer from the home co-owned by the respondent and his common-law spouse without a warrant, based on the spouse's consent.

The computer was retained for four months without judicial authorization before a warrant was obtained to search it.

The application judge found multiple Charter violations and excluded the evidence.

The Court of Appeal allowed the Crown's appeal on the basis that the application judge erred in finding the spouse could not consent to the seizure, and conducted a fresh s. 24(2) analysis, ultimately admitting the evidence and ordering a new trial.

The appellant, a half-sibling of the complainant, appealed a conviction for sexual abuse.

The trial judge found it dangerous to convict on most of the complainant's allegations but convicted on one incident (the basement incident) where the complainant provided detailed testimony corroborated by the parents' observations.

The appellant challenged the conviction on two grounds: first, that the parents' evidence contained inconsistencies with the complainant's account, and second, that the conviction was unreasonable given witness inconsistencies.

The Court of Appeal upheld the conviction, finding the trial judge properly assessed the evidence and was entitled to accept the complainant's detailed account despite minor inconsistencies attributable to the passage of eight years.

The appellant appealed his conviction for possession of crack cocaine for the purpose of trafficking.

The sole issue on appeal was whether his trial counsel provided ineffective assistance.

The appellant argued that his counsel was in a conflict of interest by representing both him and a potential third party suspect, the owner of the vehicle in which the drugs were found.

The counsel failed to advance a third party suspect defence and did not disclose the conflict to the appellant.

The Court of Appeal found that an actual conflict of interest existed, that the counsel's representation was materially and adversely affected by the conflict, and that a miscarriage of justice occurred.

The conviction was set aside and a new trial was ordered.

The appellant appealed a summary judgment dismissing her action against a lawyer for breach of contract and breach of fiduciary duties arising from real estate transactions in 2011.

The motion judge found the claim was statute-barred, as the appellant knew of her claim and damages by May 2012, but did not commence the action until September 2014, more than two years later.

The appellant argued the motion judge erred in analyzing discoverability and in finding no medical evidence of incompetence during the relevant period.

The Court of Appeal upheld the motion judge's findings and conclusions as available on the record and found no palpable and overriding error.

The appeal was dismissed with costs awarded to the respondent.

Appeal from a motion judge's order determining child support obligations.

The appellant sought to reduce child support based on reported lower income, but the motion judge found the appellant had engaged in deliberate non-disclosure and evasion of financial disclosure obligations, hiding income through a corporation.

The motion judge attributed significantly higher income to the appellant and ordered child support payments over twelve months rather than the ten months specified in a prior consent order.

On appeal, the court found one palpable and overriding error regarding double-counting of repaid corporate loans but otherwise upheld the motion judge's decision.

The court reduced the attributed income and corresponding child support amounts but maintained the twelve-month payment structure.

An appeal concerning whether a daughter exerted undue influence over her elderly parents, resulting in an inter vivos gift of substantially all their capital assets.

The parents transferred their equity in a property to the respondent daughter, who had lived with them and provided care.

The trial judge found no presumption of undue influence arose and dismissed the action.

On appeal, the court upheld the trial decision, finding that while the relationship had the capacity to create undue influence, the trial judge properly concluded the presumption did not arise based on the dominant personality and financial acumen of the father, and that any presumption would have been rebutted.

The appellants successfully appealed a decision from the Superior Court of Justice.

The Court of Appeal awarded costs to the appellants in the amount of $10,000.00 all inclusive, payable by the respondents.

Appeal from a Superior Court order on motions to change custody, residency, and child support.

The father appealed the trial judge's dismissal of his motion to change the child's primary residence from the mother's home in Owen Sound to his apartment in Toronto, and to grant him final decision-making authority.

The father also challenged the retroactive child support award dating to January 2012.

The appellate court upheld the finding of no material change in circumstances regarding custody and residency, but allowed the appeal in part regarding child support, varying the retroactive date to June 3, 2014 (the date of the motion to change) and correcting the set-off calculation to reflect only 50% of the outstanding costs award.

An employee appealed a trial judgment dismissing his claim for unpaid bonuses following termination without cause.

The employment contract contained a limitation clause stating that bonuses did not accrue and were only earned and payable on the designated pay-out date.

The trial judge found the limitation clause unambiguous and enforceable.

The Court of Appeal upheld this decision, finding that the parties had clearly agreed on how and when bonuses would be declared, earned, accrued, and paid.

The court rejected arguments based on unconscionability and public policy, noting that the bonus provisions were freely negotiated.

The appeal was dismissed with costs awarded to the respondent.

The appellant appealed his convictions for break and enter of a dwelling house, two counts of assault, and uttering a death threat arising from a single incident in which he and an accomplice broke into a basement apartment occupied by his former girlfriend and her new partner.

The appellant raised four grounds of appeal: misuse of his accomplice's guilty plea, misapprehension of evidence, erroneous credibility findings, and improper reliance on the complainant's demeanour.

The Court of Appeal dismissed all grounds of appeal and upheld the convictions.

The Crown appealed a disposition of the Ontario Review Board regarding Bartosz Gajewski, raising two grounds: (1) that a condition allowing indirectly supervised or unaccompanied entry into the community for up to seven days was unreasonable and did not protect public safety, and (2) that the Board's failure to include the victim's father (J.N.) in a 500-metre boundary condition was unreasonable.

The Court of Appeal dismissed the first ground, finding the Board's disposition reasonably supported by the evidence and noting that the Crown had not opposed the condition at the hearing.

The Court allowed the second ground in part, ordering that J.N. be included in the 500-metre boundary condition.

The appellant appealed her conviction on multiple counts including fraud over $5,000, personating a police officer, transferring proceeds of crime, and criminal organization offences.

She also appealed her sentence of 32 months' imprisonment plus a fine of $225,400 or three years' imprisonment in lieu.

The Court of Appeal upheld the conviction, finding no error in the trial judge's admission of expert evidence regarding proceeds of crime and money laundering, no error in the jury charge on circumstantial evidence, and no error in principle in the sentencing.

The trial judge properly extrapolated the amount of fraud from a four-day monitoring period.

The appellant appealed a disposition of the Ontario Review Board ordering his detention on a General Forensic Unit at the Centre for Addiction and Mental Health with the ability to live in community accommodation approved by the person in charge of CAMH.

The Court of Appeal upheld the Board's decision, finding that an absolute discharge was not appropriate given clear evidence that the appellant would stop taking medication, decompensate quickly, and engage in threatening and aggressive behaviour.

The court also rejected the argument that a conditional discharge was the least restrictive appropriate order, finding that the detention order with community living possibilities was reasonable given the appellant's homelessness and ongoing risk of harm.

The appellant was convicted of three counts of sexual assault against his former girlfriend's 15-year-old daughter.

The case turned entirely on credibility.

The complainant had recanted her allegations under oath in an affidavit after receiving independent legal advice, then withdrew the recantation at trial.

The summary conviction appeal court dismissed the appeal, finding that although the trial judge erred in curtailing cross-examination of the complainant in a key area, the curative proviso applied.

The Court of Appeal allowed the appeal on two grounds: (1) the summary conviction appeal court erred in applying the curative proviso on its own motion without Crown submission, and (2) the trial judge's reasons disclosed a reasonable apprehension of bias through intemperate, condescending, and sarcastic language expressing disdain for the appellant and defence witness while subjecting their evidence to greater scrutiny than the complainant's.