ONCA 2019

An appeal from an Ontario Review Board disposition ordering continued detention at Waypoint Centre for Mental Health Care.

The appellant, found not criminally responsible for criminal harassment in 2003, challenged the Board's decision to maintain his detention, arguing the Board failed to consider statutory factors regarding reintegration into society and other needs, and failed to exercise the constant vigilance required for long-term detainees with non-violent index offences.

The Court of Appeal dismissed the appeal, finding the Board had adequately considered all relevant factors and that the evidence reasonably supported the conclusion that the appellant remained a significant threat to public safety.

An appeal of an Ontario Review Board disposition ordering detention of a not criminally responsible accused at a forensic psychiatric facility.

The appellant sought conditional discharge with residence at his mother's home.

The Court of Appeal found the Board failed in its inquisitorial duty by not adequately exploring whether safeguards could mitigate concerns about attending physicians' understanding of the appellant's specific delusional disorder, and by relying on an unexplained administrative decision denying residence with his mother without requiring justification.

The appeal was allowed and the matter returned to the Board for re-hearing on an expedited basis.

The appellant was convicted of two counts of possession of a prohibited firearm, careless use of a firearm, and possession of marijuana following a self-inflicted gunshot wound at an industrial unit.

The appellant challenged the lawfulness of two searches: a warrantless entry and a subsequent search conducted pursuant to a warrant.

The trial judge found the warrantless search justified by exigent circumstances and the warrant valid despite exclusion of evidence obtained in breach of Charter rights.

The Court of Appeal upheld the convictions, finding no error in the trial judge's analysis of either search.

The appellants appealed a summary judgment decision granting payment of invoices for demolition and clean-up work performed on their fire-damaged property.

The motion judge found no genuine issue requiring a trial regarding the amount owing.

The respondent had provided comprehensive documentation including receipts, supplier invoices, worker timesheets, and the final amount had been audited by a company appointed by the appellants' insurer.

The appellants did not cross-examine and failed to raise sufficient doubt about the amount.

The Court of Appeal upheld the summary judgment and dismissed the appeal.

The Crown appealed the acquittal of a respondent charged with committing indictable offences for the benefit of, at the direction of, or in association with a terrorist group under section 83.2 of the Criminal Code.

The respondent was the sole member of his own terrorist group.

The trial judge found the respondent not guilty of the section 83.2 offences but found him not criminally responsible on account of mental disorder (schizophrenia) for the underlying predicate offences.

The Court of Appeal upheld the trial judge's interpretation that section 83.2 does not apply to a lone wolf terrorist acting as the sole member of a terrorist group, as the provision contemplates a bilateral relationship between the principal committing the offence and a separate terrorist group.

The court dismissed the appeal.

The appellants appealed a summary judgment dismissing their wrongful dismissal action as statute-barred under the Limitations Act, 2002.

The appellants were dismissed for cause in November 2009 and commenced their action in July 2015, approximately six years later.

The appellants argued that they did not know whether a civil proceeding was an appropriate means to seek remedy until related criminal proceedings were resolved.

The Court of Appeal upheld the dismissal, holding that "appropriate" under section 5(1)(a)(iv) of the Limitations Act means legally appropriate, not whether the proceeding will succeed.

The court distinguished Winmill v. Woodstock (Police Services Board) on the basis that the civil and criminal matters were not mirror images of each other in this case.

The appellant appealed the sentence imposed by the Ontario Court of Justice.

The parties agreed that the appeal should be allowed to correct the credit given for pre-trial custody.

The appellant had served eight months pre-trial, and the parties agreed the credit should have been 12 months at a 1:5.1 ratio.

With the correct allocation for pre-trial custody, the sentence imposed (suspended sentence with 12 months probation) remained unchanged, as did the other ancillary orders.

The appeal was allowed to reflect the proper credit for time served.

An appeal from an Ontario Review Board disposition ordering continued detention of an NCR (not criminally responsible) accused at a forensic psychiatric hospital with community living privileges.

The appellant sought a conditional discharge as the least onerous and least restrictive disposition.

The Court of Appeal upheld the Board's decision, finding that the detention order remained necessary and appropriate given the appellant's ongoing mental health and substance use issues, poor insight into her condition, vulnerability to relapse, and recent threatening behaviour.

The court rejected the appellant's arguments that the Board failed to consider relevant factors including her sobriety, age-related reduction in violence risk, negative effects of hospitalization, and commitment to treatment compliance.

The appellant appealed his convictions on two counts of dangerous driving causing death and one count of dangerous driving causing bodily harm, as well as seeking leave to appeal his sentence.

The trial judge refused to grant an adjournment to allow the appellant to retain counsel, resulting in the appellant proceeding unrepresented.

The trial judge failed to address the appellant's inability to read or write and his limited English proficiency despite being informed of these facts.

The trial judge also improperly directed the defence expert to conduct cross-examination of the Crown's expert.

The Court of Appeal found these errors deprived the appellant of a fair trial and allowed the appeal, ordering a new trial.

The appellant appealed his conviction for importing and possession for the purpose of trafficking cocaine following his third trial.

The appeal raised three grounds: (1) whether the trial judge erred in treating a pre-trial agreement regarding the admission of trucking logs as governed by section 655 of the Criminal Code; (2) whether the trial judge erred in admitting an out-of-court statement by Mr. Jackson; and (3) whether the trial judge erred in refusing to provide a Bosley credit in sentencing.

The Court of Appeal dismissed all grounds of appeal, finding no error in the trial judge's decisions.

Appeal from trial judgment finding defendants liable on personal guarantees for 25 mortgages.

The appellants challenged the limitation period applicable to claims on stand-alone guarantees, arguing the two-year period under the Limitations Act, 2002 applied rather than the ten-year period under the Real Property Limitations Act.

The trial judge had also reduced the amount owing by 50 per cent to account for settlement proceeds from a negligence action against the plaintiff's solicitor.

The appellants appealed the limitation period determination and the 50 per cent reduction; the plaintiff cross-appealed arguing no reduction should apply.

The court dismissed the appeal on the limitation period issue, finding stand-alone guarantees fall within "any other instrument to repay whole or part of any money secured by a mortgage" under the Real Property Limitations Act.

The court allowed the cross-appeal on the double recovery issue, finding no basis to reduce the guaranteed debt by the settlement proceeds.

An appeal of a stay of proceedings granted under s. 11(b) of the Canadian Charter of Rights and Freedoms in a workplace fatality case.

The respondents were charged with offences under the Occupational Health and Safety Act following the death of a worker at a gold mine.

The trial was scheduled to begin approximately three months beyond the 18-month presumptive ceiling established in R. v. Jordan.

The application judge stayed the charges, finding the Crown had failed to develop and follow a concrete plan to minimize delay in this particularly complex case.

The Court of Appeal allowed the appeal, finding the application judge had misinterpreted the particularly complex case exception by using the presumptive ceiling as a benchmark for assessing the Crown's conduct, rather than assessing whether the Crown reasonably attempted to minimize delay occasioned by the case's complexity.

The appellant pleaded guilty to five charges arising from a home invasion, including an imitation firearm charge carrying a mandatory minimum sentence.

He appealed to strike his guilty pleas, alleging ineffective assistance of counsel.

The Court of Appeal allowed the appeal, finding that the plea to the imitation firearm charge was uninformed because trial counsel failed to advise him of it.

Furthermore, the court found that trial counsel provided ineffective assistance on the remaining charges by failing to assess the strength of the Crown's case, review disclosure, or consider potential Charter claims before advising the appellant to plead guilty.

The guilty pleas were struck and a new trial was ordered.

The appellant appealed his sentence of two years less a day for trafficking cocaine to undercover police officers on three occasions within a two-week period.

The appellant argued that the sentencing judge erred in principle by applying the parity principle without sufficient information regarding a co-accused's sentence.

The sentencing judge acknowledged the need for caution but proceeded to rely on the co-accused's sentence despite incomplete information.

The Court of Appeal found this constituted an error in principle that impacted the sentence and reduced the appellant's sentence to 12 months.

The appellant was convicted of two counts of robbery, one count of use of an imitation firearm in the commission of an indictable offence, two counts of assault causing bodily harm, and one count of threatening to cause death, arising from violent robberies of two victims behind the Yorkdale Subway Station in Toronto.

The appellant received a global sentence of four years' imprisonment.

On appeal, the appellant sought to adduce fresh evidence consisting of an expert forensic report authenticating Voxer App voicemail messages that would establish his absence from the scene of the robberies.

The Crown consented to the admission of the fresh evidence and conceded that the convictions amounted to a miscarriage of justice.

The appellants sought to appeal a judgment from the Superior Court of Justice.

The matter proceeded to a consent dismissal of the actions against Douglas LaFramboise.

The court approved the partial settlement by consent order, while preserving the crossclaim by Pomer & Boccia Professional Corporation and David Michael Pomer against LaFramboise.

The appellant appealed an order of the Superior Court of Justice.

The Court of Appeal for Ontario issued a costs endorsement awarding costs to the appellant in connection with both the appeal and the motion before the motion judge.

The appellant, acting in person, was awarded all-inclusive costs of $4,000 for the appeal and $3,500 for the motion.

The appellant appealed both his conviction and sentence imposed by the Ontario Court of Justice.

The appellant abandoned his conviction appeal.

On the sentence appeal, the Court of Appeal found that while the sentencing judge correctly identified the appropriate range as four to six years, the imposition of a six-year sentence at the absolute top of the range was too harsh.

Considering significant mitigating factors including a history of sexual assault trauma and the appellant's limited prior criminal record, the court reduced the sentence to five years and set aside the victim surcharge.

An appeal concerning the enforceability of a termination clause in an employment contract.

The employer appealed a summary judgment decision finding the termination clause void and unenforceable.

The clause contained a "four-week benefits" provision that conflicted with the Employment Standards Act minimum notice requirements for long-term employees.

The Court of Appeal upheld the lower court's decision, finding the clause void both because it contravened the ESA at the outset and because it contained genuine ambiguity regarding the application of statutory minimums.

An appeal from a summary judgment decision concerning the entitlement of a wrongfully dismissed employee to exercise stock options and restricted share units during the reasonable notice period.

The employer argued that contractual language prevented vesting after dismissal, relying on precedent.

The court upheld the motion judge's finding that the employee was entitled to damages for lost opportunity to exercise awards that would have vested during the notice period, distinguishing the controlling precedent on the basis that the contractual language lacked sufficient clarity to unambiguously remove common law rights.

The employee's cross-appeal regarding damages calculation was also dismissed.