ONCA 2017

The appellants, a law firm and its principals, appealed a charging order granted by the application judge in favour of the respondent law firm.

The respondent had been retained as co-counsel on a contingency fee basis to assist with two minor plaintiffs' claims but the relationship broke down and the appellants terminated the agency agreements without paying the respondent's fees and disbursements.

The respondent applied for charging orders under section 34 of the Solicitors Act to secure payment from any eventual recovery.

The Court of Appeal upheld the charging orders, finding that all elements of the test were satisfied and that the order would apply only to the contingency fee percentage and disbursements, not the entire recovery.

Whirlpool appealed a decision dismissing its application for a finding of conflict of interest.

Whirlpool had sold contaminated industrial land to Chavila and Outrigger (affiliates of 863) at a reduced price in exchange for an indemnity agreement obligating them to defend Whirlpool against any claims arising from the property's condition.

When CP and Oxford brought contribution and indemnity claims against Whirlpool, Chavila and Outrigger appointed counsel to defend Whirlpool.

Whirlpool argued this created a conflict of interest because the appointed counsel would be taking instructions from entities affiliated with 863, the plaintiff in the main action against CP and Oxford, and would be unable to raise a limitation defence that would benefit Whirlpool but harm 863.

The majority found no conflict existed because Whirlpool's immediate interests were not directly adverse to those of Chavila and Outrigger, and the indemnity agreement contemplated this scenario.

The dissent argued a patent conflict existed and that Whirlpool was entitled to independent counsel free of conflicts.

The appellant appealed a summary judgment dismissing her motor vehicle negligence action arising from a collision at an intersection in London, Ontario.

The appellant's vehicle struck the respondent's pickup truck after the appellant proceeded through a stop sign.

The motion judge found the respondent was not speeding and could not see the appellant's vehicle due to an intervening cement truck.

The appellant argued the respondent should have been more cautious given the presence of stopped vehicles.

The Court of Appeal upheld the summary judgment, finding no palpable and overriding error in the motion judge's conclusion that the respondent had no duty to reduce speed or take extra precautions under the circumstances.

A solicitor appealed a motion judge's order regarding the assessment of legal accounts rendered to a client.

The solicitor challenged the characterization of 37 of 38 accounts as interim accounts falling within the limitation period for assessment, and sought production of the client's communications with another lawyer and tax documents.

The Court of Appeal upheld the motion judge's findings, finding no error in characterizing the accounts as interim based on the retainer agreement, account markings, and transmittal letters.

The court also found no basis to interfere with the motion judge's discretionary decision to refuse production of the requested documents as irrelevant to the assessment issues.

The moving party sought to review a decision of Justice Brown of the Court of Appeal dated November 24, 2015, which dismissed his motion for an extension of time to file a Notice of Appeal from a May 20, 2014 order of the Superior Court of Justice in a matrimonial case.

The moving party also requested an adjournment on grounds of illness and inability to obtain counsel.

The panel denied the adjournment request due to lack of proper medical evidence, unconfirmed legal aid status, and unexplained delay in bringing the review motion.

On the merits, the panel found no basis to interfere with the original decision, as Justice Brown had properly applied the governing legal principles, reviewed the evidentiary record, and reached a reasonable conclusion.

The review motion was dismissed, and costs of $1,000 were awarded to the respondent.

The appellant appealed an order of the Superior Court of Justice granting possession of Lot 15 on the Whitefish River First Nation reserve to the respondent and ordering the appellant's eviction.

The appellant claimed she was denied a fair hearing because the application judge unreasonably refused an adjournment and his conduct gave rise to a reasonable apprehension of bias.

The appellant also sought leave to appeal the substantial indemnity costs award of approximately $24,000.

The Court of Appeal dismissed the main appeal regarding fair hearing but granted leave to appeal costs and reduced the award to $15,000 partial indemnity costs.

The appellant was convicted of conspiracy to facilitate terrorist activity and participation in the activities of a terrorist group, and acquitted of possessing explosive substances with intent to endanger life in association with a terrorist group.

He was sentenced to a global sentence of 12 years imprisonment (5 years for conspiracy, 7 years consecutive for participation in terrorist group activities).

The Crown appealed seeking a 20-year sentence and delayed parole eligibility.

The appellant cross-appealed seeking a 5-8 year sentence.

The Court of Appeal dismissed both the appeal and cross-appeal, finding no reversible error in the trial judge's assessment of the gravity of the offences, application of sentencing principles including parity and totality, treatment of mitigating factors including rehabilitation and remorse, and determination of parole eligibility.

The appellant appealed his conviction for sexual assault and invitation to sexual touching.

He raised two grounds of appeal: first, that the trial judge interfered with defence counsel's cross-examination of the complainant, diverting counsel from relevant lines of inquiry; and second, that the trial judge's reasons were unbalanced, favoured the Crown, and failed to resolve material conflicts in evidence or meaningfully scrutinize the complainant's testimony.

The Court of Appeal rejected both grounds, finding that the trial judge's interventions were appropriate and necessary to ensure fair treatment of the witness and clarity of evidence, and that her reasons were careful, detailed, and balanced.

The appeal was dismissed.

The appellant appealed both his conviction and sentence for sexual assault and invitation to touching a person under the age of 14 for a sexual purpose.

The conviction appeal was dismissed as the trial judge's reasons were sufficient and addressed all material issues.

The sentence appeal was allowed on the basis that the trial judge imposed a sentence exceeding the Crown's submissions without providing notice or opportunity for further submissions, constituting an error in principle.

The appellate court reassessed the sentence and imposed a global sentence of six years (44 months consecutive to the prior 28-month sentence) rather than the trial judge's six years and four months.

An appeal concerning whether the abuse of process doctrine prevented Federated from leading evidence that a driver was insured at the time of an accident, despite a prior conviction for driving without insurance.

The driver's vehicle had been insured by Intact, which claimed it had cancelled the policy before the accident.

A priority dispute between the insurers proceeded to arbitration.

The arbitrator permitted Federated to lead evidence that Intact had not followed required cancellation procedures, meaning the driver was in fact insured.

The application judge reversed this decision, but the Court of Appeal allowed the appeal and restored the arbitrator's order, holding that the abuse of process doctrine did not prevent relitigation in these circumstances.

The appellant appealed a trial judgment concerning spousal support, child support, and equalization of net family property.

The appellant achieved partial success on appeal by increasing spousal and child support and eliminating a termination date for spousal support imposed by the trial judge.

However, the appellant was unsuccessful in overturning the trial judge's conclusions regarding equalization of net family property, which was a matter of substantial financial significance.

The Court of Appeal varied the trial judge's costs award from $10,000 to $7,000 in favour of the respondent and ordered each party to bear their own costs of the appeal.

The appellant was convicted after a judge-alone trial of dangerous driving while racing causing bodily harm and dangerous driving while racing causing death.

The Crown's case was that the appellant and Tyler Dodd were racing their vehicles on Highway 21 near Owen Sound when Dodd lost control, crossed into oncoming traffic, and struck another vehicle, killing Dodd and injuring the other driver.

The appellant appealed his convictions on three grounds: challenging the finding that the vehicles were racing at the time of the accident, challenging the admissibility of his statement to police, and challenging the causation finding.

The Court of Appeal dismissed the appeal, upholding all findings of the trial judge.

The appellant, Invecom Associates Limited, appealed a decision forfeiting a $400,000 deposit under an agreement of purchase and sale for three properties in Waterloo, Ontario.

The agreement contained conditions of closing in favour of Invecom, which could be waived by written notice to the vendors by a specified condition date.

Invecom sent a draft extension agreement proposing to extend the condition date but did not send proper written notice that the conditions had not been satisfied or waived by the deadline.

The court found that Invecom was in default and the deposit was forfeited to the vendors.

The appeal was dismissed.

Hampton Securities Limited appealed a summary judgment decision dismissing its claim against Joseph Tassone for accumulated trading losses in an inventory account.

The motion judge found that the employment contract did not impose personal liability on Tassone for losses exceeding his personal reserve account.

The Court of Appeal upheld the decision, finding no palpable and overriding error in the motion judge's interpretation of the employment contract terms and rejection of an implied indemnity obligation.

The court distinguished the case from Refco Futures on its facts and rejected Hampton's arguments regarding industry practice and notice period issues.

The appellant was convicted of several gun-related charges arising from a single incident in which he allegedly discarded a loaded handgun while fleeing from police.

The Crown's case relied on police testimony that the appellant appeared to have a gun and dropped it near where he was tackled, with the gun found in close proximity and a magazine still in his hand.

The defence argued the gun belonged to another individual who had placed it at the location.

The jury convicted on all counts save one, and the trial judge imposed an effective sentence of 43 months.

The appellant appealed both conviction and sentence on three grounds: improper jury selection procedures, prejudicial comments by the trial judge regarding defence counsel's opening, and inadequate jury instructions on credibility assessment.

The Court of Appeal dismissed all grounds of appeal.

The appellant appealed his conviction for dangerous driving causing bodily harm.

The Crown's case relied on evidence that the appellant was driving at a very high rate of speed (40-50 km/h above the speed limit) and possibly racing another vehicle when he entered an intersection where a collision occurred with a vehicle making a left turn.

The appellant argued he was driving only somewhat over the speed limit and that the accident resulted from the other driver's illegal left turn.

The Court of Appeal dismissed all four grounds of appeal, finding the trial judge's instructions on the fault component of dangerous driving were consistent with R. v. Roy, the expert evidence was properly admitted, the instruction regarding Highway Traffic Act convictions was harmless, and the verdict was reasonable.

The appellant appealed an order made by Justice Conway of the Superior Court of Justice regarding production of materials and privilege issues.

The appellant did not attend the motion before Conway J., although properly served.

The respondents did not object to the order.

The Court of Appeal found that the issues were best litigated before Conway J. in the context of the ongoing proceeding, as she was in a better position to tailor an order to the specific circumstances and issues relating to production orders and protection of privileges.

The appeal was dismissed with costs awarded to the respondent estate trustee and the non-party respondent.

Conviction appeal from a judge-alone trial for break and enter and robbery.

The sole issue was identification.

The appellant was identified by two witnesses who knew him as "Mack Truck" from a social group.

The witnesses identified him despite being masked and partially obscured during the incident.

The trial judge accepted the identification evidence based on recognition rather than identification of a stranger, and rejected the appellant's denial and his co-accused's claim of amnesia.

The Court of Appeal upheld the conviction, finding the trial judge properly considered the frailties of identification evidence while recognizing that recognition evidence by acquainted witnesses carries different considerations than stranger identification.

The appellant was convicted of conspiracy to import and importing heroin following a jury trial.

He received concurrent sentences of 16 years in penitentiary, less 4 months pre-disposition credit.

On appeal, the appellant challenged his convictions on six grounds, including issues relating to the admissibility of hearsay evidence under the co-conspirators' exception, post-arrest statements, travel history evidence, and jury instructions regarding a Vetrovec witness.

The appellant also sought leave to appeal his sentence.

The Court of Appeal dismissed all grounds of appeal from conviction and, while granting leave to appeal sentence, dismissed the sentence appeal as well.

The appellant appealed a disposition of the Ontario Review Board ordering his continued detention at Waypoint Centre for Mental Health Care.

The appellant, found not criminally responsible on account of mental disorder for assault, argued that he had reached a treatment impasse at Waypoint and sought an independent assessment and transfer to a less secure facility.

The Court of Appeal dismissed the appeal, finding that the evidence did not substantiate the existence of a treatment impasse and that the Board's decision to maintain detention at Waypoint was well-supported by evidence regarding the appellant's risk to public safety, including his history of water intoxication, threats to staff, and previous elopement from other facilities.