ONCA 2017

The appellant sought an order releasing audio recordings of portions of his trial that were held in camera and subject to a sealing order, as well as any exhibits filed during the in camera proceedings.

The in camera proceedings related to a pre-trial application.

The appellant had appealed his conviction and sentence, and the correctness of the trial judge's decision on the pre-trial application was at issue on the appeal from conviction.

The Court of Appeal found it was in the interests of justice to order production of the audio recordings and exhibits, as counsel required access to these materials to assess the viability of the ground of appeal and to pursue it if viable.

The appellant was charged with violations of the Building Code Act for failing to comply with six orders to comply issued in 2013.

At trial, the appellant sought disclosure of prior charges and prosecutions, including orders to comply issued in 1995 and 1996 that had resulted in withdrawn charges.

The justice of the peace granted the disclosure order.

The respondent municipality applied for certiorari to quash the disclosure order.

The Superior Court granted certiorari, finding the earlier orders were distinct due to different compliance deadlines.

The Court of Appeal allowed the appeal, finding the application judge erred by failing to apply the substantial wrong or miscarriage of justice test and by prematurely determining the relevance issue mid-trial.

Appeal from a trial judge's order resolving custody, access, support, and equalization issues following an 11-day trial.

The appellant challenged four issues: the award of sole custody to the respondent, the failure to apply the maximum contact principle, the equalization award regarding the valuation of a business interest, and the costs award.

The appellate court upheld the trial judge's findings on all issues, finding no reversible error and affirming the trial judge's discretionary decisions regarding custody arrangements and financial matters.

The appellant appealed his conviction for sexual assault entered by a trial judge sitting without a jury.

The trial judge found that the complainant, by virtue of her intoxication, lacked the capacity to consent to the sexual activity in issue.

The appellant argued the conviction was unreasonable and based on misapprehensions of evidence.

The Court of Appeal found ample evidence supported the trial judge's conclusion that the Crown proved the essential elements of the offence beyond a reasonable doubt, particularly regarding the complainant's lack of capacity to consent.

The appeal was dismissed.

The appellant sought leave to appeal a sentence of nine months in custody, three years probation, and $50,000 restitution imposed for an eleven-year fraud on a small union.

The appellant argued that the sentencing judge failed to adequately consider mitigating factors including early guilty plea, cooperation, and intent to make restitution.

The sentencing judge rejected a request for a conditional sentence as part of a blended sentence.

The Court of Appeal found no error in the sentencing judge's rejection of the conditional sentence given the circumstances of the offence and the need for general deterrence, and determined that the custodial sentence was at the low end of the range reflecting mitigating factors.

This is an appeal of a motion judge's decision to strike the Crown's third party claims against 15 non-government, non-profit organizations that operated youth detention centres under contract with the Crown.

The plaintiff alleged negligence, breach of fiduciary duty, and breach of Charter rights arising from the use of solitary confinement in youth detention centres.

The plaintiff limited his claim to damages attributable to the Crown's proportionate degree of fault.

The motion judge struck the Crown's third party claims, relying on the principle from Taylor v. Canada (Health Canada) that when a plaintiff limits damages to a defendant's proportionate fault, the defendant cannot pursue contribution and indemnity claims.

The Crown appealed, arguing it was not plain and obvious that third party claims had no reasonable prospect of success, particularly regarding vicarious liability and breach of fiduciary duty claims.

The appellant appealed his convictions under sections 7(1) and 5(2) of the Controlled Drugs and Substances Act for operating a marijuana grow-operation in his rental apartment unit.

The appellant challenged the convictions on grounds of misapprehension of evidence and unreasonable verdict.

The trial judge had found that the appellant maintained control of the unit and had knowledge of the grow-operation based on his tenancy, exclusive access, rent payment, and personal documents found in the unit.

The Court of Appeal upheld the convictions, finding all findings of fact were open to the trial judge and that no other rational conclusion was available on the evidence.

The appellant was convicted of two counts of sexual assault against female massage clients at his massage and yoga studio.

He appealed his convictions on multiple grounds, including that the application judge failed to provide reasons for refusing his severance application, that the trial judge applied uneven scrutiny to the evidence, and that the trial judge erred in relying on the complainant's immediate report to police.

The Court of Appeal allowed the appeal and ordered a new trial solely on the basis that the application judge's failure to provide reasons for refusing severance frustrated meaningful appellate review, particularly given the intertwined issues of severance and similar fact evidence.

The appellants appealed an order enforcing a settlement agreement.

The respondents had commenced an action claiming specific performance of an agreement to purchase shares and damages for misrepresentation, alleging they had invested $283,500 to purchase shares that were never delivered.

The appellants made a written settlement offer on September 9, 2016 for $428,537.

The respondents countered on October 5, 2016 with an offer for $900,000.

On November 23, 2016, the appellants' solicitor wrote indicating the shares had been registered in the respondents' names.

On December 22, 2016, the respondents accepted the September 9, 2016 offer.

The motion judge found a settlement had been reached and enforced it.

The appellants appealed, arguing enforcement would result in double recovery.

The Court of Appeal dismissed the appeal, finding the appellants failed to lead evidence establishing double recovery.

Two co-accused appealed their sentences imposed following guilty pleas to breaking and entering and convictions on firearm and drug offences.

The appellants argued the sentencing judge erred in characterizing the offence as a home invasion and imposed sentences that were too high and violated the totality principle.

The Court of Appeal upheld the sentences, finding the sentencing judge was entitled to find the appellants were reckless as to whether anyone was home, and that the sentences were fit given the aggravating factors including the use of a firearm, criminal records, breach of court orders, premeditation, and proximity to schools.

The court allowed Mr. Fourtounes' appeal only to award additional pre-trial custody credit of 227 days.

The respondent was arrested for robbery and released on bail.

While on bail, he committed a second offence (procuring sexual services) and was denied bail for that charge.

He was subsequently convicted of the robbery offences and sentenced with credit for pre-trial custody accumulated after his detention on the second offence.

The Crown appealed, arguing that pre-trial custody incurred following a later, unrelated charge could not be credited against the sentence for the earlier robbery offences.

The Court of Appeal dismissed the appeal, holding that sections 719(3) and (3.1) of the Criminal Code do not limit credit for pre-trial custody only to the offence that directly triggered detention.

Rather, courts must assess whether a sufficient causal link exists between the pre-trial custody and the offence being sentenced, which may encompass custody arising from later charges if those charges contributed to the denial of bail or the offender's decision not to seek bail.

The appellant appealed his conviction on the grounds that the trial judge made a palpable and overriding error in rejecting his evidence as lacking credibility and defying logic.

The appellant specifically challenged three of the trial judge's six reasons for rejection.

The Court of Appeal found no palpable and overriding error in the trial judge's assessment of the evidence and dismissed the appeal.

The appellant's conditional sentence resumed operation effective November 8, 2017.

The appellants, judgment creditors of the respondent McCallum from a defamation action, sought a stay pending their appeal of a motion judge's decision dismissing their action under Rule 21.

The action sought to set aside a 1993 conveyance of McCallum's interest in the matrimonial home to his wife Boughner as a fraudulent conveyance under section 38 of the Bankruptcy and Insolvency Act.

The motion judge found the appellants lacked standing as "creditors or others" under the Fraudulent Conveyances Act.

The appellants moved for a stay to prevent Boughner from disposing of the property pending appeal.

The motion was dismissed on the basis that there was no serious issue to be tried and no evidence of irreparable harm or balance of convenience favoring the stay.

A non-party insurer sought directions from the Court of Appeal regarding the timing of payment for costs orders issued by the Court of Appeal and a lower court judge.

The insurer requested that the costs be payable within thirty days of the appeal hearing date.

The Court of Appeal clarified that the costs were payable forthwith as of the date the appeal was dismissed, with no contrary order having been made.

The Court also awarded costs of the motion itself to the respondent.

A parent sought accommodation from a school board to receive advance notice of classroom instruction on topics he considered "false teachings" based on his sincere Christian and Greek Orthodox beliefs, including matters related to sexual orientation, gender identity, and moral relativism.

The parent requested the ability to withdraw his children from such classes.

The school board refused, citing its statutory mandate to provide an inclusive and non-discriminatory educational environment.

The application judge found that while the board's refusal engaged the parent's freedom of religion, it was reasonable and proportionate.

The Court of Appeal dismissed the appeal, finding that the parent failed to establish any objective interference with his religious freedom, as he provided no evidence of actual harm to his children despite years of attendance at the school.

The appellant father sought to vary a child support order retroactively and have arrears rescinded after the children ceased to be "children of the marriage" under the Divorce Act.

The motion judge dismissed the application for lack of jurisdiction, relying on S. (D.B.) v. G. (S.R.).

The Court of Appeal allowed the appeal, holding that the Superior Court has jurisdiction under section 17(1) of the Divorce Act to vary or discharge child support arrears even after children are no longer "children of the marriage," distinguishing the variation provision from the original order provision based on statutory language and child support principles.

The appellant appealed his conviction for sexual assault of a 12-year-old girl under s. 271 of the Criminal Code.

The Crown cross-appealed the trial judge's refusal to designate the appellant as a dangerous offender under s. 753 of the Criminal Code, instead designating him as a long-term offender under s. 753.1.

The appellant challenged the admission of evidence of prior sexual conduct toward the complainant and alleged the trial judge failed to address inconsistencies in the complainant's evidence.

The Crown argued the trial judge erred in failing to find a pattern of repetitive behaviour and improperly considered factors outside the statutory dangerous offender test.

Both appeals were dismissed.

The moving party sought review of a single judge’s refusal to extend the time to file a notice of motion for leave to appeal from the Divisional Court’s dismissal of an application for judicial review of a social benefits tribunal decision.

The Court of Appeal applied the leave to appeal framework from Sault Dock Co. v. Sault St. Marie (City).

It held that the proposed appeal did not raise a question of law or an issue of public importance and was of interest only to the parties.

Because the proposed appeal lacked merit, the interests of justice did not support granting an extension of time.

The motion was dismissed without costs.

The appellant purchased a cottage property through an online auction conducted by the respondent auction company.

After the high bid was accepted and a purchase and sale contract executed, the sellers refused to close.

The appellant subsequently negotiated a second purchase and sale contract directly with the sellers and the sale closed.

The auction company claimed entitlement to the buyer's premium from the appellant's escrow deposit, arguing the two contracts were effectively one continuous agreement.

The Court of Appeal allowed the appeal, holding that the buyer's premium was not payable when the sale failed to close due to the seller's default, and that the subsequent direct purchase did not trigger the obligation to pay the premium under the auction contract.

The appellants challenged the trial judge's interpretation of a contractual term, his factual finding regarding waiver of the time limit for performance, and his damages award.

The Court of Appeal applied the deferential standard of review established in Sattva Capital Corp. v. Creston Moly Corp. and found that the trial judge's interpretation of the poorly drafted contractual clause was reasonable and that there were no palpable and overriding errors in the factual findings.

The award of reliance damages was also found to be reasonable.

The appeal was dismissed with costs to the respondent.