ONCA 2018

The appellant appealed his sentence for manslaughter following a guilty plea in the death of his 53-day-old son.

The appellant raised four grounds of appeal: that the sentencing judge unfairly minimized the mitigating effect of the guilty plea; that the judge unduly relied on the appellant's failure to disclose a head injury to medical personnel; that the judge misapprehended the agreed statement of facts regarding the force used; and that the judge erred in declining to award pre-sentence credit beyond the 1.5:1 ratio for harsh detention conditions.

The Court of Appeal dismissed the appeal, finding no errors in principle and that the sentence was fit.

The Crown appealed the acquittal of H.E. on a charge of sexual assault against his wife.

The trial judge had accepted the complainant's testimony regarding the assault but acquitted the accused based on a reasonable doubt about whether he possessed the required mens rea, citing factors including the complainant's delay in reporting and continued sexual relations with the accused.

The appellate court found that the trial judge committed reversible errors by considering an honest but mistaken belief in consent defence that was not raised at trial, by relying on a shared mistaken belief about marital rights that cannot form the basis for such a defence, and by considering factors that were irrelevant to the accused's state of mind.

The court allowed the appeal, set aside the acquittal, and ordered a new trial.

The appellant appealed his conviction on two counts of sexual assault against his step-granddaughter.

The trial judge found that the appellant sexually assaulted the complainant on multiple visits over a nine-year period, characterizing the assaults as part of an ongoing course of conduct.

The complainant acquiesced to the appellant's demands out of fear and therefore did not consent.

The appellant raised two grounds of appeal: that the trial judge reversed the burden of proof by drawing a negative inference from the absence of medical evidence regarding the appellant's physical capability, and that the trial judge failed to apply the third step of the W.(D) test.

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

A mortgage broker appealed the dismissal of its negligence claim against the Crown arising from fraud perpetrated by an individual who filed a fraudulent notice of change with the Ministry of Government and Consumer Services, falsely identifying himself as a director and officer of a corporation.

The appellant relied on a corporation profile report obtained from the Ministry when advancing $1.8 million in loans.

The Court of Appeal upheld the dismissal, finding that no duty of care arose at the first stage of the Anns/Cooper test.

The governing legislation did not contemplate a private law duty of care, and the payment of a fee for access to public corporate records was insufficient to establish proximity.

The appellant appealed his conviction for second degree murder of a drug dealer who was found dead with blunt force trauma to the head and multiple stab wounds.

The Crown's case relied on circumstantial evidence including the appellant's connection to the deceased, knowledge of his residence, financial motive, threatening text messages, cell phone evidence, and possession of the deceased's stolen belongings.

The appellant raised three grounds of appeal: exclusion of alternate suspect evidence, admission of threatening text messages, and failure to leave manslaughter as a lesser included offence.

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

The appellant was convicted of robbery and using an imitation firearm in the commission of that offence.

He was sentenced to six months' incarceration for robbery and 12 months' consecutive for the firearm offence.

On appeal, the appellant challenged the convictions on four grounds: the admissibility of dog tracking evidence, the trial judge's use of post-offence conduct evidence (flight from police), the trial judge's treatment of evidence regarding the appellant's intoxication, and a misapprehension of evidence regarding the appellant's location.

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

This is a costs endorsement addressing the allocation of costs for certification and summary judgment motions in the Superior Court and the costs of the appeal to the Court of Appeal for Ontario.

The plaintiffs appealed from orders of Justice Paul M. Perell denying certification and granting summary judgment.

On appeal, the plaintiffs achieved partial success: they obtained certification on some common issues but not on their negligent misrepresentation claim, and they reversed summary judgment on some claims while others remained time-barred.

The Court of Appeal awarded costs to the plaintiffs reflecting their overall success.

The appellant appealed a summary judgment granted by the motion judge in favor of Copperfin Credit Union against Rosalba Cupello on a personal guarantee of corporate indebtedness.

The appellant argued that Copperfin materially varied the loan agreement by advancing funds before obtaining all security documentation, thereby releasing the guarantor from liability.

The appellant also claimed a collateral agreement limited advances to $200,000.

The Court of Appeal upheld the summary judgment, finding that the guarantee expressly protected the lender from liability variations, that no evidence supported the alleged collateral agreement, and that the entire agreement clause and parol evidence rule precluded such modifications.

The appellants, three physicians who practiced in the respondent hospital's urgent care centre, appealed the dismissal of their wrongful dismissal action.

The trial judge dismissed the claim on the ground that it was barred by section 44(5) of the Public Hospitals Act, which immunizes hospitals from liability for acts done in good faith when a hospital board decides to cease providing a service.

The appellants argued that section 44(5) should not apply based on legislative history and the characterization of their status as dependent contractors.

The Court of Appeal upheld the dismissal, finding that section 44(5) is clear and all-encompassing, barring all proceedings for damages arising from a hospital's decision to cease providing a service, regardless of the legal characterization of the terminated physicians' status.

The appellants purchased land near Sturgeon Lake and commissioned a survey indicating their property abutted land owned by the Long Beach Residents' Association.

They claimed that a portion of Long Beach's land between their property and the lake shore was originally part of their parcel and should be conveyed to them.

The application judge dismissed their claim, finding that Long Beach's property was originally a water lot conveyed to the federal government and that fill was deposited to construct a wharf, moving the shoreline eastward.

The Court of Appeal upheld this decision, finding the factual findings well-grounded in evidence and that survey monuments supported the boundary determination.

The court also dismissed the appellants' riparian rights claim, finding any such rights would have been extinguished under the Real Property Limitations Act.

The appellant was convicted of second degree murder after fatally stabbing his friend during a physical altercation that began as a fist fight and escalated when the deceased produced a knife.

The appellant admitted to causing the death but claimed self-defence.

He was sentenced to life imprisonment with parole ineligibility of 12 years.

On appeal, the appellant challenged the admission of various evidence, the jury charge on self-defence and provocation, and the sentencing decision.

The Court of Appeal upheld the conviction and sentence, finding no reversible errors in the trial judge's evidentiary rulings or jury instructions, though it identified an error in sentencing that had no impact on the outcome.

A lawyer appealed the dismissal of an application for a declaration that sections 267.5(1) and 280 of the Insurance Act violate the Canadian Charter of Rights and Freedoms.

The application judge found the appellant lacked both private and public interest standing to bring the application.

The Court of Appeal upheld this decision, finding that the appellant failed to demonstrate that the impugned provisions affected him personally and directly, and that his scholarly contributions and representation of affected clients did not establish a genuine interest in the outcome or demonstrate that the application was a reasonable and effective way to bring the issue before the courts.

An appeal of a Criminal Code section 672.54(c) detention order made by the Ontario Review Board.

The appellant argued that the Board erred in concluding that he poses a significant risk to the public and that the Board committed a Carrick error by failing to make this determination independently of his admission.

The Court of Appeal dismissed the appeal, holding that while a Board must make its own determination of dangerousness, it is entitled to rely on counsel's credible acknowledgement that the significant threat standard has been met, provided the Board does not abdicate its responsibility to assess the evidence.

This is a costs decision arising from a custody and access appeal concerning three children.

The father's appeal to the Court of Appeal was dismissed on all four grounds.

The court awarded the mother costs fixed at $25,000, representing 60-70% of her actual costs.

The decision addresses the presumption of costs in favour of successful parties in family law matters, the application of the Family Law Rules cost framework, and the impact of unreasonable conduct by both parties.

The court also addressed costs related to an unsuccessful appeal to the Divisional Court, declining to award costs for that stage due to the confusing nature of family law appeal routes in Ontario.

The respondents sought to purchase a property owned by the appellant organization and advanced $1,735,000 under a Control Agreement dated April 8, 2015.

The trial judge found the funds constituted a loan repayable regardless of whether the property purchase was completed, that interest at 12% per annum was payable, and that two individual appellants were jointly and severally liable for repayment.

The appellants appealed, arguing the loan was conditional on property acquisition, that no interest was payable, and that the individuals were not personally liable.

The Court of Appeal dismissed the appeal, upholding the trial judge's interpretation of the Control Agreement and finding the appellants' interpretation commercially unreasonable.

An appeal under Part XX.1 of the Criminal Code against the disposition of the Ontario Review Board dated January 26, 2018 (amended February 26, 2018).

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

The Court of Appeal found that the Board's decision fell within the range of reasonable orders having regard to the totality of evidence and the Board's expertise.

The treating psychiatrist's concerns about the appellant's lack of initiative in addressing medical needs and absence of insight into his condition supported the Board's order to maintain hospital oversight to prevent the appellant from disengaging from treatment and presenting a significant risk of serious harm to the public.

The appeal was dismissed.

The applicant sought an order setting aside a decision by Doherty J.A. dismissing his motion for leave to intervene as an added party in an appeal.

The applicant claimed to be the effective alter ego of the appellants and sought to adduce evidence he characterized as important and not previously presented.

The court found that the applicant had not satisfied the threshold criteria under Rule 13.03(1) for intervention as an added party, noting that the arguments he sought to make were more properly made by the appellants through their counsel.

The motion was dismissed.

On appeal from a sentence imposed by the Ontario Court of Justice, the appellant sought a variation of the sentence.

On consent, the Court of Appeal allowed the appeal and varied the sentence to 133 days.

The appeal was heard on the same date as the decision was rendered.

The appellant sought to appeal an order dismissing his motion for leave to bring a motion to change a final family law order from 2007 concerning child support, spousal support, and section 7 expenses.

The Court of Appeal declined to entertain the appeal based on the appellant's long and continuing pattern of wilful default in complying with court orders.

Applying the principle from Dickie v. Dickie, the court stayed the hearing of the appeal until the appellant complied with a recent enforcement order.

The court also awarded costs to the respondent.

The respondents moved to quash an appeal brought to the Court of Appeal for Ontario on the basis that the appellant was seeking to appeal interlocutory orders of the Superior Court of Justice, which should have been appealed to the Divisional Court with leave.

The appellant sought to appeal orders made by Justice Lynne Leitch and Justice A. Duncan Grace, including an order transferring a judicial review application to the Divisional Court and a costs order of $10,000.

The Court of Appeal found it lacked jurisdiction to hear the appeal and granted the motion to quash, awarding nominal costs of $2,000 to the respondents.