ONCA 2017

The appellant sought leave to appeal a Divisional Court decision that dismissed his appeal of a small claims court judgment.

The small claims court had awarded damages to the respondent arising from a margin trading account dispute, finding the appellant's defence had no basis in fact or law.

The Divisional Court upheld the judgment, and the appellant failed to file his notice of motion for leave to appeal within the prescribed 15-day period.

A single judge of the Court of Appeal dismissed the motion for an extension of time.

The panel affirmed this dismissal, finding the defence had no merit and the appeal lacked any scintilla of merit.

The moving parties sought an order quashing an appeal from a Superior Court judgment on the grounds of lack of jurisdiction.

The lower court had declared the appellant mentally incapable and appointed the Public Guardian and Trustee as her litigation guardian.

The Court of Appeal determined that the order under appeal was interlocutory in nature, relating to a procedural matter rather than the merits of the proceeding, and therefore fell within the jurisdiction of the Divisional Court rather than the Court of Appeal.

The appeal was quashed without prejudice to the appellant's right to apply to the Divisional Court for leave to appeal.

Two purchasers of condominium units in Trump Tower sought to rescind their agreements of purchase and sale and recover their deposits based on material changes to a hotel unit maintenance agreement disclosed years after the initial purchase agreements.

The respondent developer argued that the purchasers' notices of rescission did not comply with statutory requirements because they used the word "terminate" rather than "rescind" and did not explicitly reference the relevant statutory provision.

The Court of Appeal upheld the application judge's decision, holding that the Condominium Act, as consumer protection legislation, must be interpreted generously in favour of consumers.

The court found that the notices sufficiently conveyed the purchasers' intention to undo the transactions based on material changes, and that the ten-year limitation period under the Real Property Limitations Act applied to claims for return of deposits.

The appellant appealed the dismissal of an application challenging the Crown's assumption of a private prosecution and subsequent withdrawal of charges against a police officer for alleged assault in custody.

The appellant had commenced a private prosecution against Constable Labreche, and after a prima facie case was found, the Crown intervened to assume carriage.

The appellant challenged this intervention in the Superior Court, alleging breach of Charter rights and bias.

The application was dismissed.

The Crown subsequently withdrew the charge.

The appellant brought a second application asserting constitutional challenges to the legislative regime permitting Crown intervention.

The Court of Appeal dismissed the appeal on the basis of issue estoppel, finding that both applications raised identical issues regarding the Crown's decision to take over the prosecution and the appellant's exclusion from it.

The appellants sought a declaration that they owned part of an adjoining property through adverse possession.

The trial judge dismissed the claim, finding that the appellants failed to establish the three-part test for adverse possession: actual possession, intention to exclude the true owner, and effective exclusion.

The appellants' predecessors used the disputed lands only seasonally and intermittently, and failed to demonstrate inconsistent use with the true owner's intended use.

The Court of Appeal upheld the dismissal, finding no palpable and overriding error in the trial judge's factual findings and legal conclusions.

Minority shareholders appealed a trial judgment finding oppressive conduct by majority shareholders in a real estate development company.

The trial judge found that the majority had issued too many shares in response to cash calls when the minority shareholder refused to participate, thereby diluting the minority's ownership interest.

The appellate court upheld the trial judge's interpretation of the shareholders' agreement and the calculation of share dilution, with minor adjustments to the valuation calculations.

The court also set aside punitive damages against one defendant due to inadequate notice in the pleadings, and dismissed the appellants' costs appeal.

The appellant was convicted of three counts of sexual assault and related charges involving alleged sexual abuse of his stepson when the victim was nine or ten years old.

The victim reported the allegations approximately eight years later.

The appellant appealed his convictions on the grounds that the verdicts were unreasonable and that the trial judge erred in various aspects of his credibility assessment and reasoning.

The Court of Appeal upheld the convictions, finding that the verdicts were reasonable, the trial judge properly assessed credibility, and there were no errors in the application of the relevant legal principles.

The appellant appealed the dismissal of his civil action seeking damages against his former spouse and her parents for alleged fraudulent concealment of assets.

The motion judge dismissed the action as an abuse of process, finding that the appellant's claim for damages was premised on an alleged entitlement to an equalization payment governed by the Family Law Act, which can only be pursued in family law proceedings.

The Court of Appeal upheld the dismissal, noting that while the appellant's equalization claim was time-barred under the Family Law Act, he was not necessarily without recourse if he could satisfy the criteria for an extension of time and pursue the matter through family law proceedings.

The appellants appealed an order of the motion judge who refused leave to amend their statement of defence and counterclaim by striking certain defences and counterclaims.

The Court of Appeal found that the motion judge failed to provide explicit reasons for denying leave to amend and that leave should only be denied in the clearest of cases.

The court allowed the appeal and varied the order to grant leave to amend.

The appellant challenged an order permitting an FBI "clean team" to examine seized computer servers and prepare a report to assist the court in determining what material should be sent to the United States under the Mutual Legal Assistance in Criminal Matters Act.

The servers were seized pursuant to a valid search warrant in connection with an investigation into alleged copyright infringement.

The court held that while the application judge had jurisdiction under section 15(2) of the Act to make such an order, the application judge erred in failing to consider the effect on the appearance of fairness and judicial impartiality of having an entity closely associated with one of the adversaries examine the material and prepare the report.

The court set aside the order and held that any entity retained to assist the judge should be independent of the interested parties, absent compelling circumstances such as unique expertise.

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.

The appellant was convicted of multiple sexual offences against his six-year-old son and sentenced to five years imprisonment with ancillary prohibition orders.

He appealed against conviction and sought an extension of time to apply for leave to appeal aspects of the sentence.

The Court of Appeal dismissed the conviction appeal, finding no evidence of collusion between the complainant and his mother and no error in the admission of similar fact evidence regarding the appellant's prior conviction for sexual assault of an eight-year-old girl.

The Court granted a limited sentence appeal, varying the prohibition order by deleting a provision regarding communication with persons under 16 and reducing a lifetime proximity ban to 15 years, following the Supreme Court's decision in R. v. K.R.J.

The appellant was convicted of production of marijuana and possession of marijuana for the purpose of trafficking after police entered his home without a warrant, ostensibly to check on the welfare of his autistic son who had wandered to a nearby intersection.

The police discovered a marijuana grow operation in the basement.

The trial judge found multiple Charter breaches but admitted the evidence under section 24(2).

On appeal, the court held that the police's initial warrantless entry into the home breached section 8 of the Charter and that the trial judge erred in applying R. v. Godoy beyond its limited scope.

The court also found that the trial judge erred in admitting the evidence under section 24(2), as the seriousness of the breaches and their impact on the accused's privacy interests outweighed society's interest in an adjudication on the merits.

An appeal under Part XX.1 of the Criminal Code against the disposition of the Ontario Review Board dated July 5, 2016.

The appellant challenged the Board's order regarding his detention and conditions.

The Court of Appeal found the appellant's conduct troubling but close to the threshold for satisfying the "significant threat to the safety of the public" requirement.

The Court upheld the Board's order but directed that on the next review, all possibilities including conditional discharge be fully addressed, noting the appellant's prior successful functioning on conditions for approximately four years.

The appellant appealed a sentence of 20 months imposed by the trial judge for his involvement in a commercial conspiracy.

The Court of Appeal upheld the sentence, finding that the trial judge properly considered all relevant sentencing factors, including the commercial nature of the enterprise and the appellant's level of involvement.

The court also found that the trial judge adequately considered the parity principle in distinguishing the appellant's sentence from that of a co-conspirator who received 30 months.

This is a costs decision on appeal from a Superior Court judgment.

The appellant appealed a decision by Justice Douglas K. Gray dated April 14, 2016.

The Court of Appeal determined that this was not a case warranting substantial indemnity costs, as both parties had pursued and defended their positions vigorously.

The respondents claimed partial indemnity costs of $17,354.08, but the court awarded costs to the respondents in the reduced amount of $13,000, inclusive of taxes and disbursements.

The appellant appealed his conviction for breaking and entering into a dwelling house contrary to s. 348(1)(b) of the Criminal Code.

The trial judge convicted the appellant based on fingerprint evidence linking him to a theft of over $4,000 from a condominium unit where he worked as a concierge.

The appellant raised three grounds of appeal: (1) the reliability of the fingerprint evidence; (2) a violation of s. 11(b) Charter rights regarding trial delay; and (3) a violation of s. 7 Charter rights regarding the failure to preserve video evidence.

The Court of Appeal dismissed all grounds and upheld the conviction.

On appeal from a trial judgment finding the municipal defendants liable for damages arising from a motor vehicle accident on a rural road during winter conditions.

The appellants challenged the trial judge's interpretation and application of the Municipal Act, 2001 duty to clear roads of snow and ice.

The trial judge found the road in a state of non-repair and held the municipality failed to take reasonable steps to prevent or correct the condition.

The appellants argued the trial judge applied an unreasonably high standard of maintenance for a Class 4 rural road, erred in requiring the application of straight salt rather than sand/salt mixture, and excluded relevant evidence regarding financial costs.

The Court of Appeal allowed the appeal in part, set aside the liability findings, and ordered a new trial on liability issues while upholding the damages assessment.

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.

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.