ONCA 2020

The appellant appealed his conviction for aggravated assault, arguing the trial judge erred in assessing DNA and witness evidence, and alleging ineffective assistance of trial counsel.

The Crown cross-appealed the suspended sentence and two years' probation, arguing a custodial sentence was required.

The Court of Appeal dismissed the conviction appeal, finding no palpable and overriding error in the trial judge's factual findings and concluding that trial counsel's tactical decisions did not cause a miscarriage of justice.

The Court also dismissed the Crown's sentence appeal, holding that while the suspended sentence was exceptionally lenient, it was not demonstrably unfit given the offender's youth, lack of prior record, and strong community support.

Following a successful appeal where the appellant was awarded $429,329.18, the parties made written submissions on trial costs.

The appellant sought $100,000, while the respondent sought to retain its trial costs or apply a 25 percent reduction based on divided success on the issues.

The Court of Appeal held that costs should follow the event and awarded the appellant its trial costs fixed at $100,000 all-inclusive, declining to apply Rule 49 or apportion costs by issue.

The moving party sought leave to appeal an order requiring it to pay $874,107.08 to the responding party.

The funds had been mistakenly paid to the moving party by a third-party customer of the responding party.

The moving party argued it was entitled to retain the funds as a set-off against debts owed by the responding party, who was under CCAA protection.

The Court of Appeal refused leave to appeal, finding the proposed appeal was not prima facie meritorious because set-off did not constitute a juristic reason to retain mistakenly paid funds under the unjust enrichment framework.

The parties were in a romantic relationship for nearly 14 years but maintained separate residences.

The trial judge found they were spouses under the Family Law Act and awarded the respondent indefinite spousal support based on the Rule of 65, along with substantial indemnity costs.

On appeal, the Court of Appeal upheld the finding that the parties were spouses, noting that maintaining separate residences does not preclude a finding of cohabitation.

However, the Court found the trial judge erred in concluding the parties began cohabiting in the first five months of their relationship, meaning the Rule of 65 was not met.

Spousal support was reduced to a 10-year duration.

The costs award was also reduced to partial indemnity, as the appellant's legal position and financial disclosure were deemed reasonable.

The moving party sought leave to appeal a costs decision issued two and a half years after his action was dismissed on summary judgment.

He argued the delay caused him injustice and that the costs were too high.

The Court of Appeal denied an adjournment and dismissed the motion for leave to appeal, finding the costs decision was conventional, the amounts were not disproportionate, and the delay itself did not constitute an error in principle.

The appellant appealed a trial judgment finding that a first promissory note, which required repayment of a loan upon the deceased's death, was valid and enforceable, rather than a second note that forgave the loan.

The appellant argued the trial judge erred in rejecting witness testimony and finding an email purportedly from the deceased was not sent.

The Court of Appeal dismissed the appeal, finding no reversible error in the trial judge's credibility assessments and concluding that the proposed fresh evidence regarding the email did not meet the test for admission and would not have changed the outcome.

The respondent pleaded guilty to failing to provide the necessaries of life after her nine-year-old daughter, who had cerebral palsy, died from malnutrition and dehydration.

The sentencing judge imposed a sentence of one day in jail and three years of probation, after crediting the respondent with 17 months of pre-disposition custody.

The Crown appealed the sentence.

The Court of Appeal allowed the appeal, finding that the sentencing judge erred by failing to prioritize denunciation and deterrence as required by section 718.01 of the Criminal Code, improperly considering the failures of the Children's Aid Society as a mitigating factor, and imposing a demonstrably unfit sentence.

The Court substituted a sentence of three years in a penitentiary, but stayed the execution of the remaining 19 months of custody.

The appellant appealed his conviction for importing opium into Canada.

At trial, the Crown's expert witness testified that in his experience, it was 'one hundred percent true' that the person bringing the shipment had knowledge of the illicit substance.

The Crown conceded on appeal that this anecdotal evidence was inadmissible and highly prejudicial, running afoul of the Supreme Court's decision in R. v. Sekhon.

Because the trial judge failed to instruct the jury to disregard the evidence, the Court of Appeal allowed the appeal and ordered a new trial.

Following the dismissal of an appeal and motions for leave to act as representative plaintiffs by objecting class members (Home Depot and Wal-Mart), the representative plaintiffs and several defendants sought costs.

The objecting class members argued they were immune from costs under s. 31(2) of the Class Proceedings Act, 1992.

The Court of Appeal held that jurisdiction exists under ss. 14(1) and (2) to award costs against class members who unsuccessfully seek to represent the class to object to a settlement.

The court awarded costs to the moving parties, finding the delay in filing submissions was justified.

The appellants were convicted by a jury of importing cocaine and conspiracy to import cocaine, based largely on the testimony and eyewitness identification of a co-conspirator who had already been convicted.

On appeal, the appellants argued the verdicts were unreasonable and challenged the trial judge's jury instructions.

The Court of Appeal found the verdicts were not unreasonable but allowed the appeals and ordered new trials due to errors in the jury charge.

Specifically, the trial judge provided an inadequate Vetrovec caution that distracted the jury from the witness's motive to cooperate with police, and gave boilerplate instructions on eyewitness identification that failed to highlight the specific frailties of the witness's evidence.

The appellant, who was previously found not criminally responsible on account of mental disorder, appealed an Ontario Review Board disposition ordering his detention at a forensic psychiatric facility.

He argued the Board's finding that he posed a significant threat to public safety was unreasonable and that the Board breached its duty to inquire into his allegations of staff interference.

The Court of Appeal dismissed the appeal, finding the Board's decision was reasonable and supported by the evidence, and that the appellant's complaints lacked the air of reality necessary to trigger the Board's duty to inquire.

The appellant appealed his convictions for break and enter, assault, and uttering threats, as well as his sentence.

He argued the trial judge erred in relying on eyewitness recognition evidence and in denying enhanced credit for strict bail conditions.

The Court of Appeal dismissed the conviction appeal, finding the trial judge's identification conclusion was supported by the totality of the evidence, including threatening Facebook messages.

The sentence appeal was dismissed regarding bail credit, but allowed on consent to grant the appellant one year from release to pay an $810.93 restitution order.

The appellants moved for a stay of a trial judgment ordering specific performance of an agreement of purchase and sale and requiring them to vacate the property.

The trial proceeded largely in their absence after their requests for an adjournment were denied.

The Court of Appeal dismissed the motion for a stay, finding that while the appeal raised a serious question regarding the refusal to adjourn, the appellants failed to establish irreparable harm or that the balance of convenience favoured a stay, particularly given the respondents' undertaking not to deal with the property pending the appeal.

The appellant, who was found not criminally responsible for assault with a weapon and aggravated assault, appealed the Ontario Review Board's disposition continuing her detention order.

She sought an absolute discharge.

The Court of Appeal found the Board's decision reasonable, noting the appellant's severe and persistent mental illness, history of violence, treatment non-compliance, and substance use.

The Board correctly applied the legal tests to conclude she remained a significant threat to public safety and that a detention order was the least onerous and appropriate disposition.

The appellant, previously found not criminally responsible for uttering a death threat, appealed a disposition of the Ontario Review Board ordering his continued detention at a secure forensic unit.

The appellant argued the Board failed to properly assess the likelihood and seriousness of potential future harm under the Winko test.

The Court of Appeal dismissed the appeal, finding the Board reasonably relied on expert evidence detailing the appellant's recent clinical deterioration, substance abuse, and threatening behaviour to conclude he remained a significant threat to public safety.

The moving parties sought an extension of time to perfect their appeal after missing the deadline set by a Notice of Intention to Dismiss Appeal for Delay.

The delay was caused by the suspension of procedural time limits due to the COVID-19 pandemic and subsequent communication issues between co-counsel.

The Court of Appeal granted the extension, finding that the moving parties had a reasonable explanation for the delay, there was no prejudice to the responding parties, and the appeal had arguable merit.

The moving parties sought an expedited appeal of an order dismissing their motion for an urgent stay of a previous order that ended the moratorium on residential evictions in Ontario.

The Attorney General indicated an intention to bring a motion to quash the appeal for lack of jurisdiction.

The motion judge directed that the motion to quash be heard in writing on an expedited basis, and adjourned the request for an expedited appeal to the panel hearing the motion to quash.

The moving party, the National Centre for Truth and Reconciliation, sought a stay pending appeal of orders permitting the destruction of the SADRE database, which contains records from the Indian Residential Schools Settlement Agreement.

The moving party also sought procedural directions, including expediting the appeal and guidance on a sealing order.

The Court of Appeal dismissed the motion for a stay, finding it unnecessary as the database was preserved until December 2020 and the appeal could be expedited.

The court granted the procedural relief, expediting the appeal, allowing an extended factum, and providing directions on the scope of the sealing order.

The appellant appealed an order striking out his statement of claim without leave to amend.

The respondent requested the appeal be dismissed under Rule 2.1 of the Rules of Civil Procedure.

The Court of Appeal found that the statement of claim failed to plead the basic elements of any recognized cause of action and sought to relitigate issues from a previously dismissed 2014 action.

Concluding that the appeal lacked any arguable ground and was frivolous, vexatious, or an abuse of process, the court dismissed the appeal.

Following the dismissal of the appellant's appeal, the parties made written submissions regarding costs.

The respondents sought $16,535.61 on a partial indemnity basis, arguing costs were increased by the appellant's reply factum.

The appellant argued for $5,000.

The Court of Appeal found the respondents' claim excessive as the issues were familiar and not novel, fixing costs at $7,500 inclusive of disbursements and taxes.