ONCA 2018

The appellant appealed his conviction and sentence from the Superior Court of Justice.

The Court of Appeal found that the trial Crown improperly invited the jury to use prior consistent statements of the complainant for the truth of their content in closing address.

The trial judge failed to correct this submission and provided no instructions to the jury on the limited use of prior consistent statements.

This error in law tainted the conviction, particularly as the evidence concerning one complainant was used as similar fact evidence in relation to another complainant.

Additionally, the trial judge failed to provide a meaningful review of the evidence at trial beyond a cursory review of similar fact evidence.

The appeal was allowed, convictions were set aside, and a new trial was ordered.

The respondents successfully appealed the lower court decision.

The Court of Appeal awarded costs on a full indemnity basis, fixing costs at $40,000 inclusive of taxes and disbursements.

The court found that the suit had the markings of a true SLAPP (Strategic Lawsuit Against Public Participation) and did not apply the presumption in section 137.1(7) of the Courts of Justice Act on appeal, but considered the nature of the suit in fixing costs.

This is a costs endorsement on appeal from a Superior Court of Justice order.

The appellants appealed a decision and the Court of Appeal addressed the application of cost presumptions under the Court of Justice Act.

The court held that the statutory cost presumptions in s. 137.1(7) and (8) do not apply on appeal, as the statutory language does not expressly refer to costs on appeals.

However, the court exercised its discretion to apply the presumption for the motion costs and awarded the appellants costs on a full indemnity basis for the motion and on a partial indemnity basis for the appeal.

This is a costs endorsement following a successful appeal by the defendants.

The appellants were entitled to costs on a full indemnity basis for the motion and proceedings below, with Corus Entertainment Inc. awarded $30,000 and the McSloy appellants awarded $30,000, both inclusive of taxes and disbursements.

On the appeal itself, the appellants were successful and entitled to costs on a partial indemnity basis, with Corus awarded $15,000 and the McSloy appellants awarded $15,000, both inclusive of disbursements and taxes.

The request for damages under section 137.1(9) of the Courts of Justice Act was denied.

Appeal from a Superior Court decision on a motion under section 137.1 of the Courts of Justice Act.

The appellant brought multiple motions, including a successful section 137.1 motion but also unsuccessful constitutional and procedural motions.

The Court of Appeal addressed costs for both the motion and the appeal.

On the motion, no costs were awarded due to the presumption in section 137.1(8) and the offsetting effect of the appellant's unsuccessful meritless motions.

On the appeal, the appellant was awarded partial indemnity costs reduced to account for time spent on unsuccessful constitutional and procedural arguments.

The appellant appealed the Ontario Review Board's disposition dated February 2, 2018, which maintained the same order as the previous year.

The Board concluded that despite the appellant's positive steps, events in spring 2017 and the appellant's lack of insight demonstrated that the appellant continued to pose a significant threat to public safety.

The Court of Appeal found that the Board's conclusion was open to it on the evidence and that there was no material misapprehension of evidence.

The appeal was dismissed.

The appellant construction company appealed a decision by the application judge who found that the respondents had made lasting improvements to property sufficient to trigger claims under the Conveyancing and Law Property Act, s. 37, and in one case, proprietary estoppel.

The appellant argued the application judge erred by failing to direct a trial of the contested factual issues or convert the application into an action.

The Court of Appeal dismissed the appeal, finding no error in proceeding by application where the respondents had not objected and the factual issues were apparent from the outset.

The Court also found no palpable and overriding error in the application judge's factual findings regarding the lasting improvements made by the respondents.

This appeal concerns a boundary dispute between neighbouring property owners near Markdale, Ontario.

The respondent claimed possessory title to a portion of the appellants' land where his house and outbuildings were situated, and prescriptive easements over a cedar trail and laneway.

The trial judge found in favour of the respondent on all claims.

On appeal, the appellants challenged the findings regarding possessory title and prescriptive easements.

The Court of Appeal upheld the possessory title finding and the laneway easement but set aside the cedar trail easement, finding insufficient evidence of continuous use for a utility purpose as required by law.

The appellant appealed his conviction and sentence for break and enter and related offences.

The appellant did not contest that he was the driver of a van that neighbours observed passing a tool to the perpetrator of a daylight residential break-in.

The Court of Appeal found that the constellation of evidence at trial amply supported the inference that the driver of the van was party to a planned break and enter of a dwelling house.

The conviction appeal was dismissed, and the appellant abandoned his sentence appeal during oral argument.

Bail was rescinded and the intermittent sentence was ordered to resume.

The appellants sought to review an order dismissing their motion to set aside a default judgment.

The original action arose from a purchase of equipment in November 2007, with default judgment obtained in March 2011.

The appellants delayed over three years before bringing a motion to set aside the default judgment, which was dismissed by the motion judge.

The appellants then appealed but failed to perfect their appeal, resulting in dismissal for delay in April 2015.

After over three years of inaction, they brought a motion to review the dismissal order.

The Court of Appeal upheld the dismissal, finding the delay extraordinary and the equities of the situation favored dismissal despite the appellants' arguable defences on the merits.

The appellants, parents of the wife in a family law proceeding, appealed a summary judgment that found no monies were due under a mortgage they held on the matrimonial home.

The central issue was whether funds provided by the appellants to pay off the existing conventional mortgage constituted a loan or a gift.

The motion judge found the transfers were gifts, not loans, based on the lack of any prior discussion of loan terms, absence of security documentation for earlier transfers, and the celebratory "mortgage free" event after the conventional mortgage was paid off.

The Court of Appeal upheld the motion judge's findings, finding no palpable and overriding error in the factual determinations.

The appellant, a former employee of the Ministry of Community and Social Services, appealed an order from the Superior Court that restricted her ability to commence legal proceedings.

The order prohibited her from initiating or continuing any civil or criminal proceedings without prior authorization from a Superior Court judge.

The appellant had engaged in extensive litigation across multiple forums, filing numerous civil actions, private informations, and peace bond applications, all of which were dismissed or withdrawn.

The Court of Appeal upheld the restriction on civil proceedings under section 140 of the Courts of Justice Act but struck down the restriction on criminal proceedings, finding that the Superior Court lacked the inherent jurisdiction to prevent access to justices of the peace for private informations and peace bond applications.

The appellant sought an extension of time to seek leave to appeal a costs order in a family law matter.

The motion judge dismissed the motion, finding no merit to the proposed appeal and determining that the trial judge had properly applied Rule 24 of the Family Law Rules.

The Court of Appeal upheld the motion judge's decision, finding that the trial judge's findings of bad faith against the appellant were fully supported by the record and that the costs order was justified under the mandatory language of Rule 24(8).

The appellant appealed his conviction for unlawful possession of a firearm and his 12-month conditional sentence including eight months of house arrest.

The appeal raised three grounds: the validity of the search warrant, the admissibility of utterances made upon arrest, and jury instruction discrepancies.

The Court of Appeal dismissed the conviction appeal and the sentence appeal, finding no error in the motion judge's validation of the search warrant, no error in admitting the spontaneous and voluntary utterances despite a Charter breach under section 9, and no legal error in the jury instructions.

The court upheld the conditional sentence as appropriate given the serious nature of the offence and the need for general deterrence and denunciation.

The appellant was convicted of attempted murder and related firearm offences.

On appeal, the appellant challenged the conviction as unreasonable, arguing that no properly instructed trier of fact could conclude beyond a reasonable doubt that the appellant was the shooter.

The appellant raised two main arguments: first, that police committed procedural missteps in obtaining the complainant's identification, and second, that the trial judge erred by focusing on credibility rather than reliability of the complainant's evidence.

The Court of Appeal rejected both arguments and dismissed the appeal, finding that the trial judge properly assessed the reliability of the identification evidence and made no error in principle or palpable and overriding error of fact.

The appellant appealed a costs award of over $300,000 made by the motion judge in family law proceedings.

The motion judge had awarded costs to the respondent following a successful motion to strike the appellant's answer on the basis that a constitutional issue was not properly pleaded.

The Court of Appeal allowed the appeal on the merits, which provided the appellant with the opportunity to amend his answer.

The respondent remained entitled to costs of the original motion, but the costs award was reduced from over $300,000 to $200,000.

The court found that the motion judge erred in principle by adopting a "close to full recovery" approach, giving undue weight to settlement offers in circumstances where settlement was not practically possible, inappropriately increasing costs based on the appellant's ability to pay and the respondent's financial need, and failing to apply the proportionality principle required by the Family Law Rules.

The appellants appealed a motion judge's decision granting judgment in the amount of $55,555.55 in accordance with a Rule 49 offer to settle.

The appellants claimed the offer had been revoked before acceptance, arguing it was revoked orally at a pretrial conference and subsequently by a second written offer.

The respondent contended the first offer had not been effectively revoked and that acceptance occurred before service of the second offer.

The Court of Appeal upheld the motion judge's decision, finding that Rule 49 offers can only be revoked in writing, and that the respondent's acceptance of the first offer preceded service of the second offer based on credible evidence and the appellants' failure to provide an affidavit of service.

The appellants sought to set aside an order of the Deputy Registrar dismissing their appeal for delay and to extend the time for perfecting the appeal.

The underlying motion had resulted in the striking of the appellants' statement of defence due to their failure to comply with a discovery plan order.

The appellants did not attend the motion before the motion judge and did not file materials.

The Court of Appeal dismissed the motion on two grounds: first, the appellants were in the wrong court as they had failed to exhaust their remedies in the court of first instance under Rules 37 and 19; and second, even if the court had jurisdiction, the appellants failed to meet the test for setting aside the Deputy Registrar's order, as the delay was long and largely unexplained, prejudice to the respondent was evident, and there was no merit to the underlying appeal.

The appellant appealed his conviction for first degree murder on two grounds: (1) that the trial judge erred in finding his second statement to police was voluntary because the police failed to advise him he was a suspect and had reasonable and probable grounds to arrest him for murder, and (2) that the trial judge erred in instructing the jury on the use of post-offence conduct evidence regarding the appellant's failure to perform CPR or call 911 after the shooting.

The Court of Appeal rejected both grounds of appeal, finding that the police caution adequately conveyed the salient points to allow the appellant to make a meaningful choice whether to speak, and that the post-offence conduct was properly used as evidence relevant to the mental element of murder.

The Crown appealed an acquittal on a charge of aggravated assault arising from a shooting incident.

The respondent was charged with attempted murder, aggravated assault, and firearms offences.

The Crown's theory was that the respondent intended to shoot another individual and that transferred intent applied.

The respondent's defence was that the gun fired accidentally while being waved to calm those present.

The trial judge refused to instruct the jury on liability for assault through threat of force under s. 265(1)(b) of the Criminal Code, finding it inconsistent with the Crown's primary theory and unduly complex.

The appellate court found this refusal was an error, as the Crown was entitled to have the jury instructed on alternative legal routes to liability even if accepting the respondent's version of events.