ONCA 2019

The appellant sought an assessment of 30 accounts totalling over $600,000 from his former counsel over approximately two and a half years of representation in a family law proceeding.

Of these accounts, 26 were paid in full and four remained unpaid.

The application judge dismissed the application, finding that the appellant failed to establish special circumstances warranting assessment of the paid accounts under section 11 of the Solicitors Act, and declined to exercise inherent jurisdiction to assess the unpaid accounts.

The Court of Appeal upheld this decision, finding no error in the application judge's factual findings or legal analysis.

Appeal from a Superior Court decision upholding a Crown wardship (extended care) order for four children.

The parents appealed, seeking return of the children to their care and challenging the access order.

The Court of Appeal dismissed the adjournment request based on alleged inappropriate text messages from Society workers, finding that even if the workers were discredited, ample independent evidence supported the protection finding and extended care order.

The court upheld the appeal judge's decision, which maintained the extended care order while granting access to the parents, finding this arrangement best served the children's interests.

The appellant appealed her convictions for counselling murder, criminal harassment, and breaching court orders arising from a prolonged campaign of harassment against her former domestic partner and his new wife.

The trial judge found that the appellant had sought to incite her brother and ex-husband to murder her former partner by falsely claiming he had sexually assaulted her daughter.

The Court of Appeal upheld all convictions and the sentence of 10 years effective on the counselling murder charge, finding no legal error in the trial judge's credibility assessments, evidentiary rulings, or sentencing analysis.

The appellant was convicted of sexual assault against a young woman with an intellectual disability.

The trial judge found the complainant's evidence reliable and convicted the appellant.

On appeal, the majority held that the trial judge's reasons were deficient in several respects: the trial judge failed to adequately address the complainant's reliability, particularly her heightened suggestibility as established by expert evidence; the trial judge appeared to find the complainant's evidence self-corroborating when it was not; and the trial judge failed to explain why the defence evidence did not raise a reasonable doubt.

The majority concluded these deficiencies, taken together, foreclosed meaningful appellate review and set aside the conviction, ordering a new trial.

The dissent argued the trial judge's reasons were adequate and that the trial judge was clearly alive to the reliability issues.

The appellant appealed his conviction for first-degree murder in the fatal shooting of a victim inside a bar.

The critical evidence was security camera footage showing two men in a stairwell moments before the shooting.

The Crown's theory was that the appellant was one of the men and was holding a gun.

The trial judge opined in his jury charge that the dark object appeared to be a gun, despite the Crown's earlier concession that the object was not clearly identifiable as a gun.

The Court of Appeal found that the trial judge's opinion compromised the appellant's right to a fair trial by improperly intervening on a critical factual issue and emboldening the Crown to withdraw its concession.

The court also addressed issues regarding identification evidence and improper Crown speculation about a disabled security monitor.

The appeal was allowed and a new trial was ordered.

An appeal concerning a freedom of religion challenge to the medical and legal criteria for determining death.

The appellant's substitute decision-makers sought to prevent the withdrawal of life support and to rescind a death certificate based on the appellant's religious belief that death occurs only when the heart stops beating, not upon total brain death.

The Court of Appeal dismissed the appeal, upholding the application judge's conclusion that the claim could not succeed.

However, the court provided important guidance on the proper analytical approach to Charter rights and Charter values, clarifying that the appellant should have been presumed to be a Charter rights holder for purposes of the substantive analysis, and that the application judge erred in her methodology regarding freedom of religion analysis and Charter values application to the common law.

This appeal concerns the applicable scale of costs when a municipality unsuccessfully appeals an expropriation matter to the courts.

The Ontario Municipal Board ordered compensation to the property owner.

The municipality appealed to the Divisional Court, which dismissed the appeal but awarded only partial indemnity costs of $7,500 rather than full indemnity costs of $23,586.84.

The Divisional Court declined to apply section 32(1) of the Expropriations Act, ruling that ordinary court costs rules applied.

The Court of Appeal allowed the appeal and held that the principle reflected in section 32(1) should apply to court proceedings, entitling the successful respondent to full indemnity costs.

The appellant appealed a one-year sentence for civil contempt imposed by the trial judge.

The appellant argued the sentence was excessive, that the judge was inflamed by the appellant's non-compliance with asset freezing and disclosure orders, and that the sentence was purely punitive rather than coercive.

The appellant also contended the sentence was out of line with other civil contempt cases.

The Court of Appeal dismissed the appeal, finding the sentence appropriate given the appellant's multiple opportunities to purge contempt, attempts to deceive the court, the brazen and deliberate nature of the contempt, the underlying $7 million civil fraud, and the lack of asset recovery despite the judge's delay in imposing sentence.

An NCR accused appealed the Ontario Review Board's disposition ordering his detention at the General Forensic Unit of the Centre for Addiction and Mental Health with discretionary community living privileges.

The appellant argued he posed no significant risk to public safety, citing 15 years without violent behaviour, and sought an absolute discharge or conditional discharge.

The Court of Appeal upheld the Board's decision, finding that the Board properly considered all relevant factors under section 672.54 of the Criminal Code and reasonably concluded the appellant continues to pose a significant threat to public safety based on his mental illness, lack of insight, substance abuse issues, and criminal history.

The court emphasized that absence of violent behaviour does not eliminate risk of serious psychological harm, and that Part XX.1 is designed to protect public safety before violence occurs.

The appellant sought leave to appeal his conviction for refusing to comply with a breath demand.

The Superior Court had dismissed his appeal.

The Court of Appeal considered whether the trial judge failed to address the appellant's disorientation and possible concussion following an accident as raising a reasonable doubt, and whether an alleged lie by a police officer provided grounds for leave to appeal.

The court found that the trial judge was clearly aware of the disorientation evidence, having acquitted the appellant on the impaired driving charge, and that any alleged police officer lie had no impact on the conviction for refusing to provide a breath sample.

Leave to appeal was denied.

However, the sentence appeal was allowed in part to strike the victim surcharge.

An appeal by Royal Sun Alliance Insurance Company of Canada (RSA) from a trial judge's decision that RSA was responsible to provide insurance coverage to the estate of Steven Devecseri, who was killed in a motorcycle accident in 2006.

Devecseri had alcohol in his system at the time of the accident, which breached both his M2 driver's licence restrictions and his insurance policy terms.

RSA did not learn of the alcohol consumption until 2009 during discovery proceedings, at which point it took an off-coverage position.

The trial judge found that RSA waived its right to deny coverage by failing to obtain the coroner's report in 2006 and by defending the claim without taking a reservation of rights.

The Court of Appeal reversed, holding that RSA did not waive coverage and was not estopped from denying coverage because it lacked actual knowledge of the policy breach until 2009.

The appellant appealed a motion judge's finding of civil contempt for breaching a parenting order.

The motion judge found that the appellant had intentionally picked up the children from school on a day when he was not entitled to do so, contrary to the court order governing transitions.

While the Court of Appeal found that the three elements of civil contempt were established beyond a reasonable doubt, it held that the motion judge erred in law by failing to consider whether to exercise her discretion to decline to make a contempt finding.

The Court emphasized that the contempt power is discretionary and should be exercised as a last resort, particularly in high-conflict matrimonial cases involving children.

The appeal was allowed and the contempt finding was set aside.

The applicant sought to extend the time to appeal an order of a single judge of the Divisional Court that dismissed his application for judicial review on the grounds that it was frivolous and vexatious.

The application for judicial review had sought mandamus requiring the Pharmacy Examining Board of Canada to produce its decision limiting the number of qualifying exams each candidate is allowed.

The motion judge dismissed the motion on jurisdictional grounds, finding that the Court of Appeal for Ontario lacks jurisdiction to entertain an appeal from an order of a single judge of the Divisional Court on an interlocutory motion.

The proper route of appeal is to a panel of the Divisional Court under section 21(5) of the Courts of Justice Act.

The appellant appealed his conviction for shooting a handgun at a person on a residential street in Ottawa.

The trial judge admitted but gave no weight to the appellant's alibi evidence because it was disclosed late (on the second day of trial, nearly a year after the alleged offense) and because the trial judge disbelieved the explanation for the late disclosure.

The Court of Appeal upheld the conviction, finding that the trial judge properly drew an adverse inference regarding the late alibi disclosure and properly rejected the credibility of the explanation offered by the appellant's brother.

The appellant was convicted of sexual assault and sentenced to 14 months imprisonment followed by 3 years probation.

The case involved a single issue: whether the complainant consented to sexual intercourse.

The complainant testified she was asleep when the appellant penetrated her; the appellant claimed consent.

The trial judge rejected the appellant's evidence, accepted the complainant's testimony, and found the Crown proved guilt beyond a reasonable doubt.

The appellant appealed both conviction and sentence on multiple grounds, including allegations of uneven scrutiny of evidence, failure to consider intellectual limitations, and misapprehension of evidence.

The Court of Appeal dismissed both appeals, finding no error in the trial judge's analysis and that the sentence was well within the applicable range.

The applicant brought a motion to extend the time for her to appeal an order of Speyer J. dated June 8, 2018.

The motion judge found that the order of Speyer J. was not an appeal from a prior order but rather a motion heard by a single judge of the Divisional Court.

Consequently, any appeal of Speyer J.'s order would lie to a panel of the Divisional Court, not to the Court of Appeal for Ontario.

The motion judge therefore lacked jurisdiction to grant an extension of time for appeal and dismissed the motion without costs.

The appellant appealed a sentence of 46 months imposed for three robberies of vulnerable businesses, arguing the sentence was too harsh and that the sentencing judge had double-counted by treating offence elements as aggravating factors and had given insufficient weight to the guilty plea.

The Court of Appeal upheld the sentence as fit, finding that the sentencing judge was correct in emphasizing general deterrence and denunciation given the nature of the offences, the vulnerability of the victims, the use of weapons and threats, and the appellant's criminal history.

The appellants sought to develop land pursuant to an amended development agreement with the Town of Ajax.

The agreement contained repurchase terms that could be invoked if the developer failed to take reasonable steps to proceed with construction by a specified deadline, provided it was not awaiting comments or confirmation of approval on any application from the Town.

The Town terminated the agreement and exercised its repurchase rights, claiming the developer's revised site plan application was incomplete and the construction deadline had passed.

The trial judge found in favour of the Town.

On appeal, the appellants argued the trial judge erred in failing to apply the Planning Act's definition of a complete site plan and in conflating completeness with readiness for approval.

The Court of Appeal upheld the trial judgment, finding the site plan application was incomplete as a matter of contract interpretation because the developer had not submitted all requested materials and was not awaiting Town approval but rather the Town was awaiting responses from the developer.

The Crown appealed the conviction and sentence imposed by the trial judge.

The Court of Appeal found that the trial judge imposed a demonstrably unfit sentence by failing to recognize that denunciation and general deterrence are paramount sentencing objectives for the offence and by concluding that the minimum sentence required under s. 85(3)(a) of the Criminal Code was grossly disproportionate.

The trial judge's declaration that s. 85(3)(a) was invalid was set aside.

The Court of Appeal substituted a sentence of 18 months' imprisonment, reduced by pre-trial bail conditions and pre-sentence custody credits, resulting in an effective sentence of 13 months less 38 days.

The appellant appealed his sentence for impaired driving causing death and criminal negligence causing death.

The sentencing judge imposed a 10-year driving prohibition commencing on the date of sentencing rather than at the end of the period of imprisonment, which constituted an error under R. v. Lacasse.

The Court of Appeal corrected this error by applying the Lacasse formula: subtracting the 5-year term of imprisonment from the 10-year prohibition, leaving a 5-year prohibition to commence upon release.

However, the court exercised discretion to reduce the credit for the presentence driving prohibition period due to the appellant's breach of that condition, resulting in a final 3-year driving prohibition following release.

The victim surcharge was also set aside on consent.