ONCA 2019

The appellant was convicted of two counts of sexual assault, one count of invitation to sexual touching, and one count of touching for a sexual purpose against a child victim aged 9-11 years old.

On appeal, the appellant challenged the trial judge's credibility findings and alleged errors in the assessment of evidence.

The Court of Appeal dismissed the conviction appeal, finding that the trial judge's findings were properly grounded in the evidence as a whole and that no reversible error occurred.

The sentence appeal was allowed in part, with the victim surcharge being set aside.

The appellant appealed a motion judge's order dismissing his motion to amend his statement of claim.

The motion judge had refused certain amendments as statute-barred under the Limitations Act, 2002 and deferred other amendments pending the determination of an outstanding motion for partial summary judgment.

The motion judge also awarded costs against the appellant.

The appellant raised two grounds of appeal: alleged bias by the motion judge and error in refusing leave to amend.

The Court of Appeal dismissed the appeal, finding no evidence of bias and upholding the motion judge's discretionary procedural orders regarding the timing of amendments and the statute-barred nature of certain claims.

The appellants appealed a summary judgment granting the respondent mortgagee enforcement of a mortgage following the appellants' default in transferring and further encumbering the mortgaged property without consent.

The appellants argued that the mortgagee waived the default by accepting three months of payments after giving notice of default.

The Court of Appeal rejected this argument, finding that accepting payments did not constitute waiver under the mortgage terms or at law.

The appeal was allowed only to the extent of a concession regarding pre-judgment interest on a line of credit.

The appellants brought a motion to re-open an appeal that had been dismissed on December 18, 2018, and to admit fresh evidence in the form of a three-page affidavit.

The Court of Appeal dismissed the motion, finding that the proposed fresh evidence consisted partly of argument and partly of statements of fact relating to matters that were either before the court at the hearing or could have been obtained with reasonable diligence.

The court found that none of the evidence would have affected the result.

The fundamental flaw in the appeal—the absence of evidence that the respondent's alleged lien had anything to do with the sale of the appellants' property—was not addressed by the fresh evidence.

The appellant leased commercial premises from the respondent with a right to renew for five years.

The appellant sublet the premises to a third party without reserving the last day of the head lease term.

When the appellant attempted to exercise its renewal option, the respondent claimed the appellant had forfeited its rights through an assignment.

The application judge failed to resolve this central issue and instead found a breach of contract with no damages.

The Court of Appeal allowed the appeal, holding that section 3 of the Commercial Tenancies Act permits a sublease even without reserving the last day of the head lease term, provided there is sufficient evidence that the parties did not intend an assignment.

The sublease language clearly demonstrated the parties' intent to preserve the appellant's renewal rights.

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

On the conviction appeal, the appellant challenged the trial judge's finding that there was no breach of s. 11(b) of the Charter despite significant delay.

The trial judge had calculated net delay at 50 months, exceeding the Jordan cap by 20 months, but found exceptional circumstances justified the excess delay.

The Court of Appeal upheld the conviction, finding no palpable and overriding error in the trial judge's factual findings regarding exceptional circumstances and the Crown's reasonable management of the complex prosecution.

On the sentence appeal, while the Court of Appeal identified a factual error regarding the timing of professional credentials, it found the error immaterial to the ultimate sentence and upheld the sentence as fit.

The appellant appealed the dismissal of a certiorari application challenging her committal for trial on charges of possession of marijuana for the purpose of trafficking and cultivating marijuana.

The Court of Appeal upheld the committal, finding that there was evidence capable of supporting the inference that the appellant was working at the commercial grow-operation on the day of her arrest and that the evidence, considered as a whole, constituted some evidence of her involvement as a party in the alleged offences.

The appeal was dismissed.

The appellants were convicted of three counts of possessing narcotics for the purpose of trafficking and possession of proceeds of crime following a warrantless search of their apartment and a subsequent search pursuant to a warrant.

The trial judge found the warrantless search unconstitutional but admitted the evidence under section 24(2) of the Charter.

The appellants appealed, arguing the trial judge erred in his section 24(2) analysis by failing to consider the searching officer's misleading testimony and by improperly emphasizing objective grounds while diminishing the lack of subjective grounds.

The Court of Appeal allowed the appeal, finding the trial judge committed material errors in his Charter analysis, excluded the evidence, and substituted verdicts of acquittal on all charges.

The appellant appealed his convictions for three counts of assault, one count of sexual assault, and one count of unlawful confinement arising from a domestic relationship.

The appellant was acquitted of four other charges and one charge was withdrawn.

He was sentenced to 21 months in jail and three years probation.

On appeal, the appellant challenged the trial judge's rejection of a Charter section 11(b) delay motion and raised three grounds of appeal relating to credibility evaluation and alleged errors in the trial judge's reasoning.

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

The appellant, owner of a commercial property in Windsor, Ontario, sought leave to amend its statement of claim in a second action to add a claim for breach of statutory duty under the Environmental Protection Act.

The motion judge refused the amendment on the grounds that it was statute-barred under the Limitations Act, 2002 and constituted an abuse of process.

The Court of Appeal upheld the decision, finding that the claim was clearly statute-barred and that the proposed amendment would constitute an entirely new cause of action against different parties.

The court noted that the appellant had the option to amend its statement of claim in the first action instead.

The appeal was dismissed, and costs were fixed at $30,000 inclusive.

The appellant appealed a summary judgment decision in which the motion judge found that the respondent vendors breached an Agreement of Purchase and Sale by failing to deliver unencumbered title.

However, the motion judge limited damages to the deposit amount of $25,000 and refused to award damages for loss of bargain, finding that the benefit was illusory.

The Court of Appeal allowed the appeal, holding that there was a real bargain and that the appellant was entitled to damages for the difference between the agreed purchase price and the higher price eventually paid for the property, totalling $187,500.

The respondents' cross-appeal was dismissed.

The Court also addressed the costs of both the motion and the appeal.

The appellant was convicted of drug-related offences and appealed on the grounds that the police obtained the drugs through an unconstitutional arrest and search, and that his right to counsel under s. 10(b) of the Charter was violated.

The trial judge found the arrest lawful based on the appellant's possession of marijuana in an open knapsack and a baggie.

The search was incidental to the lawful arrest and conducted reasonably.

Regarding the alleged s. 10(b) breach, the trial judge found insufficient evidence of prejudice and declined to exclude the evidence under s. 24(2).

The Court of Appeal upheld the convictions, finding no error in the trial judge's findings and concluding that the appellant failed to meet his onus to demonstrate exclusion of evidence was warranted.

The appellant appealed the dismissal of his family law proceedings under rule 1(8) of the Family Law Rules.

The motion judge had given the appellant an opportunity to make a partial payment of $5,000 to avoid dismissal.

The appellant failed to make this payment.

The motion judge considered the appellant's failure to comply with this order, his history of non-compliance with court orders dating back to 2006, and multiple costs orders against him.

Finding no exceptional circumstances warranting discretionary relief, the motion judge dismissed the proceedings.

The Court of Appeal found no error in the motion judge's exercise of discretion and dismissed the appeal.

The appellants appealed an order of the Superior Court of Justice dated June 18, 2018.

The appeal was allowed on consent, as counsel for the appellants explained that relevant authorities were not brought to the attention of the motion judge.

The order was set aside and replaced with an order as per the consent order filed.

The appellants, owners of several hookah lounges in the Regional Municipality of Peel, challenged by-law No. 30-2016, which prohibits waterpipe smoking in enclosed public places, enclosed workplaces, and restaurant or bar patios.

The appellants argued the by-law was ultra vires the Region, conflicted with provincial occupational health and safety legislation, and was enacted in bad faith.

The application judge dismissed the application, finding the by-law was a valid exercise of municipal authority aimed at protecting public health and safety.

The Court of Appeal upheld this decision, dismissing the appeal and awarding costs to the respondent.

The appellant appealed a sentence of five years imprisonment imposed by the trial judge, with credit for 1,226 days of presentence custody resulting in a custodial term of 599 days followed by three years' probation.

The Court of Appeal upheld the five-year custodial sentence as appropriate given the seriousness of the offence and the appellant's mental condition.

However, the court agreed with the parties that the appellant was entitled to an additional 41 days credit for presentence custody, reducing the custodial term to 558 days (time served).

The court rejected the appellant's argument to reduce the probation term from three years to one year, finding the probation order with treatment and counselling terms essential to public protection.

The victim surcharge was deleted.

The appellants failed to appear at the appeal hearing and did not comply with the court's previous endorsement directing specific steps to be taken.

The Court of Appeal dismissed the appeal with costs fixed at $21,234.33, inclusive of disbursements and taxes.

The appellant appealed a motion judge's order increasing spousal support from $9,300 to $12,000 per month with a step-down and termination schedule.

The respondent cross-appealed, seeking support at the mid-range of the Spousal Support Advisory Guidelines and no termination date.

The Court of Appeal upheld the motion judge's decision, finding no material error, serious misapprehension of evidence, or error of law.

The court confirmed that the motion judge properly considered the compensatory nature of support, the respondent's economic disadvantage from the marriage, and the parties' original separation agreement.

The appeal and cross-appeal were dismissed, with costs divided.

The appellant, a teacher at a private school, appealed the dismissal of her constructive dismissal claim by way of summary judgment.

She alleged that the respondent school altered the terms of her employment by failing to protect her from a confrontation with a student's parents over a mark, undermining her authority by having another teacher read and mark assignments, and assigning passing grades to students who had not completed all assignments.

The Court of Appeal upheld the summary judgment dismissal, finding no evidence that the school altered the terms of employment or breached any policy, and that the school's response to the appellant's complaints was measured and reasonable.

The appellant appealed a trial judge's finding that the parties had reached an oral agreement whereby the respondents had an option to purchase unit 116 from the appellant.

The appellant disputed both the existence of the agreement and whether there was sufficient part performance to take the agreement out of the Statute of Frauds.

The Court of Appeal upheld the trial judge's findings, finding no legal error in the determination that consensus had been reached on material terms, that part performance was established through the provision of free ski lessons, and that the trial judge's credibility findings were entitled to deference.