ONCA 2019

The appellant husband appealed a motion judge's decision dismissing his motion to change custody, support, and equalization payments.

The motion judge found she had no jurisdiction to adjust the equalization payment, no jurisdiction to award spousal support where none was previously ordered, and required payment of outstanding costs before proceeding with the child support motion.

The appellate court dismissed the appeal, finding no mistake of fact or law and affirming the motion judge's conclusions regarding jurisdiction and the finality principles in family law.

The applicant sought a stay of production and examination orders pending his application for leave to appeal to the Supreme Court of Canada.

The applicant's father was adjudged bankrupt in Hong Kong, and foreign representatives obtained recognition of the Hong Kong bankruptcy proceeding in Ontario.

The applicant challenged the procedural regularity of the initial recognition order, arguing the bankrupt was not given proper notice.

The Court of Appeal granted a conditional stay, requiring the applicant to produce specified documents and file an affidavit of full production by October 9, 2019, with sealed documents to remain sealed pending the Supreme Court's disposition of the leave application.

The appellants appealed a decision of the Superior Court of Justice dismissing their application and sought leave to appeal a costs order.

The Court of Appeal found that the application judge correctly identified and applied the applicable legal principles, and that section 6.2 of the Shared Property Agreement was enforceable.

The court upheld the costs order, finding that the respondents were entitled to indemnification of legal costs from the Common Fund under sections 3.7 and 11 of the Shared Property Agreement.

The appeal was dismissed and leave to appeal the costs order was refused.

The respondents were awarded costs on a substantial indemnity basis to be assessed.

The appellants appealed a summary judgment decision granting the respondent commissions on the sale of two properties.

The motion judge found that the appellant Zaman had executed a valid buyer representation agreement and rejected his defenses based on dyslexia, alleged oral amendments, and failure to disclose commissions.

On appeal, the appellants argued that summary judgment was inappropriate because a counterclaim for negligence was inextricably intertwined with the claim.

The Court of Appeal rejected this argument, finding the counterclaim was not inextricably intertwined with the claim and was premised on the validity of the buyer representation agreement itself.

The appellant appealed a dangerous offender designation and indeterminate sentence imposed on March 21, 2012.

The appellant, who suffered from brain damage from meningitis, borderline personality disorder, borderline intellectual functioning, and dysthymia, was self-represented during a complex dangerous offender hearing.

The Court of Appeal found that the proceeding was procedurally unfair due to multiple cumulative deficiencies: the failure to inquire whether the appellant wished to retain counsel despite facing severe jeopardy; the failure to conduct a fitness inquiry despite clear indicia that the appellant may not have been mentally present; the failure of amicus curiae to adequately protect the appellant's interests, including by conceding admissibility of psychiatric records and ultimately advocating in favour of the dangerous offender finding; and the failure to explore meaningful alternatives such as video linking to keep the appellant informed when she was absent from court.

The Court allowed the appeal and ordered a new hearing.

A 14-year-old boy had been systematically alienated from his father by his mother through years of denigration, false allegations, and manipulation.

The trial judge found the mother had engaged in parental alienation and ordered a reversal of custody, placing the child with the father and suspending contact with the mother for six months to allow for reconciliation.

The mother and the Office of the Children's Lawyer appealed, arguing the trial judge erred in applying the best interests test, imposing an extreme remedy without expert evidence or therapeutic support, improperly delegating decision-making to therapists, and ordering therapy without the child's consent in violation of the Health Care Consent Act.

The Court of Appeal dismissed the appeal, finding no palpable or overriding error and upholding the trial judge's discretionary decision-making in this difficult family law matter.

The appellant appealed his conviction for sexual assault by a judge sitting alone.

The complainant alleged that on October 16, 1992, after a night of drinking, she awoke to find the appellant having intercourse with her.

DNA evidence established that the appellant was the father of the complainant's child, confirming intercourse had occurred.

The central issue at trial was whether the complainant had consented.

The appellant argued the trial judge relied on a Crown misstatement of evidence regarding similar language used by both parties about the sexual act.

The Court of Appeal dismissed the conviction appeal but allowed the sentence appeal, reducing the sentence from four years to three years, finding the trial judge had improperly treated the appellant's absence of remorse as an aggravating factor.

A condominium corporation sought to recover its actual legal costs from a unit owner for pre-litigation correspondence, a compliance proceeding, and appeal-related proceedings.

The unit owner applied for assessment of the legal bills.

The application judge referred only the appeal bills for assessment, finding insufficient special circumstances for the pre-litigation and compliance proceeding bills.

The Court of Appeal allowed the appeal, holding that a third party liable to pay legal bills should receive more favourable consideration than the client who received and paid the account.

The court found special circumstances existed due to the corporation's unsuccessful pursuit of an extreme eviction remedy that was criticized by the trial judge, and the significant disparity between the $52,000 in legal fees and the $2,500 costs award.

All bills were referred for assessment.

This appeal concerns whether a third party claim brought by defendants against a third party was statute barred under the Limitations Act, 2002.

The motion judge dismissed the third party claim based on issue estoppel and abuse of process, relying on a prior decision dismissing similar claims against a different third party.

The Court of Appeal held that issue estoppel did not apply due to lack of mutuality of parties, and that abuse of process was inappropriately applied given changes in the law and unfairness to the defendants.

However, the appeal was dismissed on the merits: the third party claim was statute barred because the defendants discovered their claim when served with the main action and it was not legally appropriate to delay commencing the third party claim pending resolution of a forum challenge.

The moving party sought an extension of time to perfect her appeal from a decision dismissing her application against the City of Ottawa (Ottawa Public Library), as well as relief from various procedural requirements including electronic service, dispensation from filing hard copies of appeal materials, and dispensation from filing a transcript of evidence.

The application judge had dismissed the underlying application on the basis that it did not disclose a cause of action and that the relief sought was moot.

The motion judge granted the extension of time, permitted electronic service, accepted an agreed-upon transcription of the oral reasons, and granted relief from filing hard copies based on the moving party's financial hardship and the court's lack of proper technological infrastructure.

An appeal from the Ontario Review Board's detention order for a not criminally responsible accused.

The appellant sought an absolute discharge, arguing she posed no significant risk to public safety based on the absence of violent behaviour since 2015 and abstention from substance abuse since 2016.

The Court of Appeal upheld the detention order, finding that the Board properly applied the test under section 672.54 of the Criminal Code and that evidence supported a finding of significant threat to public safety.

The court rejected the argument that absence of recent violent behaviour eliminated risk, noting that the appellant's stability was contingent on the structured hospital environment and that relapse into substance abuse and medication non-compliance would likely result in psychotic symptoms and violent behaviour.

Three appellants appealed their convictions for a September 2015 bank robbery and related offences.

The Crown's case relied heavily on testimony from a witness with bipolar disorder and a permanent brain injury who had given a police statement while in custody.

The appellants challenged the admissibility and reliability of her evidence, arguing she was merely reading from her police statement rather than testifying from refreshed memory, and that a Vetrovec warning should have been given.

The trial judge found her evidence reliable and corroborated by circumstantial evidence including DNA evidence and surveillance footage.

The appellants also sought to introduce the witness's criminal record as fresh evidence.

The Court of Appeal upheld all convictions and dismissed the sentence appeal, finding the trial judge's factual findings were reasonable and grounded in evidence.

The Monitor of a CCAA-protected company appealed a motion judge's decision dismissing its motion to disallow a creditor's claim secured by a guarantee.

The creditor, Speedy Electrical Contractors Ltd., had provided a personal loan and performed electrical work for Urbancorp entities.

When Speedy threatened legal proceedings and held a construction lien, the parties entered into a debt extension agreement whereby Speedy agreed to discharge its lien and extend the loan in exchange for a secured guarantee from King Residential Inc. (a related Urbancorp entity) over condominium units.

The Monitor argued the guarantee was a transfer at undervalue under section 96 of the Bankruptcy and Insolvency Act and a fraudulent conveyance under the Fraudulent Conveyances Act.

The motion judge found Speedy and KRI were dealing at arm's length and that fraudulent intent was not established.

The Court of Appeal dismissed the appeal, upholding the motion judge's findings.

Appeal from a trial judgment in a fraudulent conveyance action.

The trial judge found the appellants liable for participating in a civil conspiracy to defraud the respondent and to prevent her from realizing on a judgment against one of the defendants.

The trial judge awarded judgment against one defendant in the amount of $175,000 and against two other defendants in the amount of $60,000.

The appellants challenged the trial judge's findings regarding the scope of the proceedings, the facts concerning monies received, and their distribution.

The Court of Appeal upheld the trial judgment, finding the conspiracy finding was supported by the record and that the trial judge had broad remedial authority under the applicable legislation.

The appellant appealed an order dismissing his application to remove a writ of seizure and sale filed by a law firm against the matrimonial home.

The law firm had represented the appellant's wife in matrimonial litigation and obtained judgment for outstanding fees.

The appellant argued the writ constituted an encumbrance requiring his consent under section 21 of the Family Law Act.

The Court of Appeal dismissed the appeal, holding that the wife did not encumber the matrimonial home; rather, the law firm, as an arm's length creditor, was entitled to file the writ.

The appellant's interest in the home remains subject to the writ.

The appellant was convicted of dangerous driving causing death, dangerous driving causing bodily harm, impaired driving causing death, impaired driving causing bodily harm, blood alcohol over legal limit causing accident resulting in death, and blood alcohol over legal limit causing accident resulting in bodily harm.

The appellant appealed, arguing that the trial judge misapprehended the evidence and failed to consider relevant evidence.

The primary defence theory was that the Crown failed to prove the appellant was driving the van, suggesting the appellant and a passenger could have switched positions.

The appellate court found no misapprehension of evidence and no failure to consider relevant evidence, and dismissed the appeal.

A trucking company sought declaratory relief from its insurer regarding coverage for stolen cargo in the absence of an underlying claim from the customer.

The insurer denied coverage citing misrepresentation regarding cargo type and lack of custody.

The application judge made declarations of fact addressing the insurer's two grounds for denial but declined to declare an obligation to indemnify.

The Court of Appeal allowed the appeal, finding that declaratory relief was improper in the absence of a real dispute and that the application judge erred by making findings of fact detached from rights of the parties.

The court ordered consolidation of the application with the subsequent action commenced by the trucking company.

The appellant appealed a decision of the Superior Court of Justice declaring him a vexatious litigant.

The motion judge had dismissed the appellant's requests for various orders and declared him a vexatious litigant without a formal application under section 140 of the Courts of Justice Act and without providing the appellant an opportunity to respond.

The Court of Appeal allowed the appeal and set aside the vexatious litigant order due to significant procedural shortcomings and the absence of procedural fairness, despite acknowledging the potential merit of the order based on the appellant's long-term misuse of the court process.

The appellants appealed an order from the motion judge dismissing a certification motion for class proceedings.

The Court of Appeal found that the motion judge's order was clear and unequivocal in dismissing only the certification motion, not the underlying claims.

Under section 30 of the Class Proceedings Act, an appeal from an order refusing to certify a proceeding lies to the Divisional Court, not the Court of Appeal.

Accordingly, the appeal to the Court of Appeal was quashed without prejudice to the appellants proceeding with the appeal in the Divisional Court.

The appellants appealed from a motion judge's order dismissing their motion for a declaration that they were entitled to indemnification for legal fees and expenses under a consulting agreement.

The Court of Appeal determined that the order was interlocutory rather than final because it did not address the substantive merits of whether the consulting agreement required advance payment of legal fees or whether there had been a breach.

The court quashed the appeal and noted that the appellants could seek leave to appeal to the Divisional Court or bring a separate application for interpretation of the agreement.