ONCA 2017

The appellant appealed his conviction for sexual assault of his 14-year-old niece on the grounds of ineffective assistance of counsel.

The trial judge found that the appellant touched the complainant for a sexual purpose, despite his denial.

The appellant argued that trial counsel failed to explore the complainant's difficult relationship with her mother and failed to cross-examine the complainant's sister regarding potential bias.

The Court of Appeal dismissed the appeal, finding that the appellant failed to satisfy the prejudice requirement of the ineffective assistance test, as neither issue would have addressed the critical question of whether touching occurred.

The sentence appeal was also dismissed, with the court finding no error in principle in the five-month sentence imposed.

The appellant appealed a Consent and Capacity Board decision finding him incapable with respect to treatment with psychotropic medication.

The Board had limited the appellant's cross-examination regarding the side effects of Clozapine, ruling it irrelevant because the respondent physician had stated he intended only to administer Abilify (Aripiprazole), not Clozapine.

The Court of Appeal allowed the appeal in part, amending the Board's order to narrow the scope of authorized treatment to specifically "Aripiprazole" rather than all psychotropic medications, thereby curing the procedural fairness concern without requiring a new hearing.

The appellant was convicted of first-degree murder in the shooting death of Kenneth Mark.

The Crown's theory was that the killing was retaliatory in nature, motivated by the victim's breach of the code of silence by identifying the appellant in connection with a prior attempted murder.

The appellant appealed on three grounds: (1) the admissibility of evidence regarding the prior attempted murder and the victim's fear of retaliation; (2) the admissibility of rap lyrics authored by the appellant; and (3) errors in the Crown's closing address regarding the appellant's late disclosure of an alibi and the false testimony of Crown witnesses.

The Court of Appeal dismissed all grounds of appeal and affirmed the conviction.

The appellant appealed a motion judge's order enforcing a settlement agreement between the parties.

The motion judge found that the parties had agreed to material settlement terms, including a payment of $850,000 from the respondent to the appellant, the filing of a proposal to creditors under the Bankruptcy and Insolvency Act, dismissal of actions without costs, mutual releases, and confidentiality.

The appellant challenged the inclusion of the proposal requirement and the payment into court mechanism.

The Court of Appeal upheld the motion judge's decision, finding no extricable errors of law and dismissing the appeal with costs awarded to the respondent.

The appellant was convicted after a three-day trial of nine domestic violence offences against his wife, including two counts of assault, three counts of assault with a weapon, two counts of uttering death threats, sexual assault, and unlawful confinement.

The charges were based on five alleged incidents occurring between September 2010 and August 2012.

The appellant was sentenced to 35 months in prison.

On appeal, the sole ground raised was ineffective assistance of counsel at trial resulting in a miscarriage of justice.

The Court of Appeal dismissed the appeal, finding that the alleged deficiencies in counsel's representation did not result in an unfair trial or an unreliable verdict.

The appellant appealed convictions for assault, using an imitation firearm in committing an offence, threatening to cause bodily harm, and carrying a concealed weapon arising from an altercation in a secondary school washroom.

The trial judge convicted based on the complainant's evidence, which was contradicted by the appellant and co-accused.

The appellant raised two grounds of appeal: uneven scrutiny in the trial judge's assessment of evidence and misapprehension of evidence based on impermissible speculation.

The Court of Appeal dismissed both grounds, finding that the trial judge applied consistent standards and that the conclusions drawn were reasonable inferences from the evidence as a whole.

The appellants, a condominium developer and related entities, appealed a jury verdict awarding damages to the respondents for injuries sustained when an A-frame sign placed on a downtown Toronto sidewalk struck the plaintiff in the face during windy conditions.

The jury found both the developer and the sign contractor liable, apportioning fault 94% to the developer and 6% to the contractor.

The appellants challenged the trial judge's instructions on duty of care, apportionment of liability, and foreseeability.

The Court of Appeal dismissed the appeal, finding no material misdirection warranting intervention.

The cross-appellant's challenge to costs awards was also dismissed.

The appellant appealed a disposition issued by the Ontario Review Board that imposed additional restrictions on his community access, reducing his indirectly supervised community access to a maximum of four hours with an approved itinerary and reducing day passes from seven days indirectly supervised to three days directly supervised.

The appellant challenged the disposition on multiple grounds, including that it was not the least onerous and least restrictive disposition, that the Board failed to carry out its inquisitorial mandate, that the Board focused exclusively on public safety, that a treatment impasse existed requiring Board intervention, and that the Board failed to consult the complete risk assessment report.

The Court of Appeal dismissed all grounds of appeal and upheld the Board's disposition.

The Crown appealed a directed verdict of acquittal entered at the close of its case on a charge of manslaughter.

The trial judge had held that the Crown was bound by its factual theory that the accused was the getaway driver and that witness evidence precluded such a finding.

The Court of Appeal allowed the appeal, holding that the trial judge applied the wrong legal test for a directed verdict and erred in restricting the Crown to a single factual theory.

The court found ample evidence upon which a reasonable jury could convict under section 21(2) of the Criminal Code based on a common unlawful purpose to commit robbery, regardless of the accused's specific role.

A new trial was ordered.

The appellant moved for a stay of an order requiring the return of two children to England under the Hague Convention on the Civil Aspects of International Child Abduction.

The respondent brought a cross-motion to dismiss the appeal.

The application judge had ordered the children returned to England, their habitual residence, after finding that the appellant had wrongfully retained them in Canada.

The Court of Appeal dismissed the cross-motion, finding the two sets of reasons constituted one final order appealable within the prescribed timeframe.

The court refused to stay the order for return of the children, finding no irreparable harm and that the balance of convenience favoured prompt return.

However, the court granted a partial stay with respect to portions of the order purporting to order the appellant's return to England and to award custody to the respondent if the children were not returned by the deadline.

The appellant failed to appear at the hearing of her appeal from a Superior Court order dated January 20, 2017, despite receiving notice of the hearing date.

As a result, the Court of Appeal dismissed the appeal as abandoned.

Appeal from a trial judgment setting aside a separation agreement due to material non-disclosure of a significant asset (a client book valued at $120,000).

The trial judge awarded equalization payments, increased child support, but denied spousal support.

The appellant challenged the valuation of the book, the quantification of the respondent's income for child support purposes, and the dismissal of her spousal support claim.

The Court of Appeal allowed the appeal in part, finding errors in the trial judge's assessment of income (removal of 15% business expense deduction and three-year averaging methodology), awarding retroactive child support for 2010, remitting 2011 child support arrears for determination, and awarding non-compensatory spousal support for ten years based on the respondent's misrepresentations regarding income and assets.

The appellant, a numbered company controlled by Ali Karimi, appealed a motion judge's decision to stay civil proceedings for abuse of process.

The civil actions sought damages for alleged theft against the respondents.

The respondents had previously been victims in a 2011 criminal trial where Karimi was convicted of extortion and criminal harassment based on false theft allegations against them.

The motion judge found that permitting the civil actions to proceed would constitute an abuse of process, as it would allow Karimi to continue the persecution for which he had been criminally convicted.

The Court of Appeal upheld the stay, finding that the motion judge properly applied the abuse of process doctrine and that it was open to conclude the jury implicitly found no theft had occurred.

The respondent, Krates Keswick Inc., purchased and took assignments of three loans made to the appellants and related companies.

The motion judge granted judgment against the appellants on all three loans, granted possession of the Marko Lands to the respondent, dismissed the appellants' counterclaim, and refused to stay enforcement of the judgment.

On appeal, the appellants challenged the motion judge's decision.

The Court of Appeal upheld the judgment on all three loans and the dismissal of the counterclaim.

However, the court partially allowed the appeal by staying enforcement of the judgment relating to the two secured loans pending determination of what credit, if any, the appellants might be entitled to based on the value of the Marko Lands, which had been subject to a resulting trust determination in subsequent proceedings.

Enforcement of the unsecured loan was not stayed.

The Crown appealed the acquittal of the respondent on a charge of possession for the purpose of trafficking cocaine.

The respondent was convicted only of simple possession.

The Crown argued that the trial judge erred in excluding expert evidence regarding cocaine trafficking and in finding that the respondent was a heavy cocaine user without evidentiary basis.

The Court of Appeal upheld the acquittal, finding no error in the trial judge's exclusion of the expert evidence or his findings regarding the respondent's cocaine use.

The appellant was charged with making available and possession of child pornography following a lawful search of his residence and computer that revealed over 3,900 unique images, with 750 immediately accessible and evidence of active sharing through file-sharing software.

The appellant pleaded guilty to making available child pornography and was sentenced to the mandatory minimum of 12 months imprisonment less credit for pre-sentence custody, plus probation and ancillary orders.

On appeal, the appellant challenged his conviction and sentence on three grounds: (1) abuse of process arising from the Crown's election to proceed by indictment rather than summarily; (2) improper treatment of a Notice of Constitutional Question; and (3) unreasonable delay in breach of section 11(b) of the Canadian Charter of Rights and Freedoms.

The Court of Appeal dismissed all grounds of appeal, finding no abuse of process, no valid constitutional question, and that the delay, while substantial at approximately 38 months, was reasonable under both the transitional Morin framework and the new Jordan framework, given the complexity of child pornography investigations, the appellant's own conduct causing delay, minimal prejudice, and the seriousness of the offence.

The appellant appealed his convictions for possession of child pornography entered by the trial judge on March 13, 2015.

The central issue was whether there was sufficient evidence for the trial judge to find that the appellant had knowledge of the child pornography on his computer.

The Court of Appeal upheld the convictions, finding that the evidence supported the trial judge's conclusion that the only rational explanation was that the appellant had knowledge of the contents of the computer, given his control and regular use of the computer, the vast quantities of child pornography found by police, and the absence of evidence that anyone else occupied the home.

This is a costs endorsement following an appeal decision.

The appellant achieved only partial success on appeal.

The court reduced the respondent's costs award from $180,000 to $135,000 (a 25% reduction), finding that while the respondent remained entitled to costs of the application, some reduction was appropriate given the appellant's partial success and the disputed issues on appeal.

The court also declined to award costs to the appellant for his motion for a stay of the application judge's decision, finding the claimed costs excessive and the motion inappropriate as it sought multiple forms of relief beyond the stay order.

The appellant appealed his convictions for sexual interference, invitation to sexual touching, and sexual assault of his step-granddaughter, who was approximately nine years old at the time of the offences.

The trial judge admitted similar fact evidence from two adult nieces of the appellant who testified to similar inappropriate touching when they were children.

The appellant raised four grounds of appeal: (1) erroneous admission of similar fact evidence due to collusion; (2) failure to properly address material inconsistencies in the complainant's testimony and over-reliance on demeanour; (3) impermissible inference of guilt from rejection of the appellant's testimony; and (4) unsafe and unreasonable verdict.

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

The appellant mortgaged his family homestead farm for $350,000 and subsequently defaulted on the mortgage.

The mortgagees obtained a default judgment for foreclosure.

The appellant moved to set aside the default judgment, which was dismissed by the motion judge.

On appeal, the Court of Appeal found that the motion judge made four material errors in his analysis: (1) mischaracterizing the appellant's mental frailties as merely a competency issue rather than considering their impact on his responsiveness; (2) viewing the appellant's substantial interest in the property solely as sentimental attachment rather than recognizing the substantial equity remaining after mortgage repayment; (3) confining the "reasonable prospect of repayment" analysis to refinancing rather than considering repayment through sale; and (4) failing to properly weigh the magnitude of the windfall to the mortgagees against the severe prejudice to the appellant.

The Court found that a sale of the property would generate net equity of approximately $250,000 to $337,000 after full repayment of the mortgage, and that the mortgagees would suffer no prejudice while the appellant would lose his life's savings.

The appeal was allowed and the foreclosure was converted to a judicial sale.