ONCA 2020

The Attorney General of Canada, on behalf of the United States, appealed a discharge order in an extradition proceeding against the respondent for fraud-related charges.

The extradition judge had discharged the respondent, finding insufficient evidence in the Record of the Case (ROC) to establish his complicity.

The Court of Appeal found that the extradition judge erred by misreading the ROC and by failing to give proper effect to the presumptive reliability of the certified evidence, treating bald assertions as having no evidentiary value without considering the context of the accomplice's deep involvement in the scheme.

The Court concluded that, read as a whole, the ROC provided a sufficient basis for committal.

The appellants, a real estate agent and broker, appealed a trial judgment ordering them to pay damages to the respondents (purchasers) for water and mould damage to a residential home, due to the agent's negligence.

The appeal primarily concerned the measure of damages.

The Court of Appeal found that the trial judge erred by applying the cost of repair measure, as the appellants' negligence did not cause the property defect itself, but rather caused the respondents to enter into a transaction they would have otherwise avoided.

In such cases, the proper measure of damages is the diminution in value of the property.

The Court upheld the trial judge's findings on mitigation of damages and the foreseeability of frost heave damage.

The matter was remitted to the trial judge for reassessment of damages based on diminution in value and for a redetermination of costs from the first trial.

This appeal concerned the valuation of federally regulated pensions for equalization purposes in family law, specifically addressing the determination of the "normal retirement date." The Court of Appeal held that the trial judge erred by using case-specific intentions for retirement dates instead of applying the functional meaning of "normal retirement date" as defined under the provincial Pension Benefits Act (PBA) scheme, which represents the age at which any member is entitled to unreduced pension benefits (age 60 for these parties under the Public Service Superannuation Act).

The court emphasized that the provincial valuation methodology should be applied to federal pensions with only "necessary modifications." The appeal was allowed in part, remitting the matter for recalculation of the equalization payment based on the corrected normal retirement date.

Other grounds of appeal regarding survivor benefits, contingent survivor benefits, date of marriage deductions, notional disposition costs, and the method of equalization payment were dismissed.

This is the second appeal concerning the protection of a four-year-old child.

The Ontario Court initially found the child in need of protection but issued a one-year supervision order.

The Society successfully appealed to the Superior Court, which substituted a protection order placing the child with his grandmother and uncle.

The parents (J.C. and J.C.) then appealed this decision to the Court of Appeal.

However, during the appeal process, the matter returned to the Ontario Court for a Status Review, where the parents consented to an order for the child to reside in the grandmother's home.

Consequently, the Court of Appeal dismissed the parents' appeal as moot, as the underlying issue had been resolved by consent.

The appellant was convicted of two counts of sexual assault and appealed both conviction and sentence.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's similar fact evidence ruling or credibility assessment.

The court also dismissed the sentence appeal, deeming the 14-month concurrent sentence fit given the serious nature of the crimes against very young victims.

The appellant, a permanent resident, appealed his convictions for drug and credit card offences, arguing his guilty pleas were uninformed due to erroneous advice from trial counsel regarding immigration consequences.

A prior deportation order had been stayed but was lifted following these convictions.

The Court of Appeal admitted fresh evidence, found that trial counsel had misadvised the appellant, leading to an uninformed plea and subjective prejudice.

The court emphasized the duty of defence counsel to advise on collateral immigration consequences.

The appeal was allowed, convictions set aside, and a new trial ordered.

The appellant, a lawyer, sued the respondents (a law firm and individuals) for alleged breach of solicitor-client privilege.

The respondents successfully moved to strike the action based on issue estoppel, a decision the appellant appealed.

The Court of Appeal dismissed the appeal, affirming that the three-part test for issue estoppel was met.

The Master in an earlier, unrelated proceeding had squarely addressed and decided the privilege issue, finding it waived, and that decision was final due to the appellant's withdrawal of the appeal.

The appellant, Brian Lariviere, appealed a 12-month imprisonment sentence for aggravated assault, use of an imitation firearm, breach of recognizance, and fentanyl possession, after receiving credit for pre-sentence custody and stringent bail conditions.

The appeal sought a reduction in sentence due to the impact of the COVID-19 pandemic on detention conditions.

The Court of Appeal for Ontario dismissed the appeal, finding the original sentence fit and that general pandemic conditions, without unique personal vulnerability, did not justify a sentence reduction.

The appellant appealed his conviction for break and enter and theft, which was based entirely on circumstantial evidence.

The Court of Appeal found that the evidence, while suspicious, was equally consistent with the appellant becoming involved with the stolen vehicle after the break-in and thefts had occurred.

The court determined that the inferences necessary to prove possession of the vehicle or participation in the initial crimes could not be reasonably drawn, and therefore, the trier of fact could not reasonably be satisfied that guilt was the only reasonable conclusion.

The appeal was allowed, and acquittals were entered.

The appellant, Darlene Welton, appealed a trial judge's award of compensation for her services as Vice President of Marketing and Sales for Stonebrook Properties Inc., arguing it was inadequate on the facts and law.

The Court of Appeal dismissed the appeal on the merits, upholding the trial judge's quantum meruit assessment of 1.5% commission for sales and dismissing claims for additional construction and warranty work due to lack of evidence or reasonable expectation of payment.

However, the Court granted leave to appeal the trial costs award, finding the respondents' last-minute settlement offer unreasonable and not in the spirit of Rule 49, and awarded the appellant her pre-trial and trial costs.

The appellant sought to vary a trial judge's order regarding the sale of a matrimonial home, specifically challenging the respondent's right to purchase the home after a fair market value assessment.

The Court of Appeal for Ontario allowed the appeal, ruling that a right of first refusal, in the absence of consent, distorts the market and should not have been granted.

The court vacated the impugned section of the order and directed the immediate listing of the matrimonial home for sale.

The appellant, a former lawyer whose license was revoked, appealed a motion judge's decision to dismiss his action against 11 of 16 defendants under Rule 2.1 as frivolous, vexatious, or an abuse of process.

The Court of Appeal upheld the dismissal against the Law Society Tribunal and Legal Aid Ontario, finding the claims abusive due to outstanding appeals and multiplicity of proceedings.

However, the Court allowed the appeal in part, reinstating claims against Doctor Michael Colleton and the Hamilton Police Service, ruling that these claims were not "clearest of cases" for Rule 2.1 dismissal and involved complex legal issues (e.g., absolute privilege, negligent investigation) better suited for a Rule 21 motion.

The appellant sought to set aside a motion judge's order dismissing her motion to set aside the administrative dismissal of her appeal.

The appeal had been administratively dismissed twice due to the appellant's repeated failure to meet perfection deadlines, despite extensions.

The Court of Appeal dismissed the appellant's motion, finding no basis to interfere with the motion judge's discretion, noting the extensive delay, the unconvincing justification for non-perfection, and the lack of proof for the appellant's claims of material tampering or respondent non-cooperation.

The appellant, G.J.S., appealed his conviction for sexual interference and sexual assault involving his step-daughter.

The trial judge had found the appellant guilty of these charges but not guilty of sexual exploitation, distinguishing between earlier and later alleged incidents.

The appeal focused on the trial judge's use of the complainant's prior consistent statements and a threatening incident involving her biological father.

The Court of Appeal found that the trial judge improperly used this evidence to enhance the complainant's general trustworthiness and reliability, rather than solely to rebut an allegation of recent fabrication.

This improper use was deemed determinative of guilt for the earlier allegations.

The appeal was allowed, the conviction was set aside, and a new trial was ordered on both counts.

The Crown sought leave to appeal a Provincial Offences Act decision.

The respondent argued that the motion for leave to appeal should be heard in writing, relying on the Rules of Civil Procedure.

The court, acting as a case management judge, determined that motions for leave to appeal under s. 131 of the Provincial Offences Act are presumed to be heard orally, consistent with the settled practice of the Court of Appeal.

The court found that while the Rules of the Court of Appeal in Appeals Under the Provincial Offences Act (POA Rules) did not explicitly state an oral hearing for represented parties, the language used in Rule 3 and Form 1 implied an oral hearing.

The court also clarified that Rule 61.03.1 of the Rules of Civil Procedure applies to fill the gap regarding the exchange of facta.

This is an application for bail pending appeal by Jeremy Bailey, who was convicted of serious drug offences and sentenced to five years' imprisonment.

He had previously been granted bail pending appeal but was subsequently charged with new drug offences (fentanyl trafficking) and breaches of his release conditions, leading to his father withdrawing as surety.

Although he was granted new bail pending trial for the fresh charges with new sureties and electronic monitoring, the Court of Appeal dismissed his application for release pending appeal for the original convictions.

The court found that despite the proposed strictures and new sureties, the applicant's history of flagrant and almost immediate breaches of prior bail conditions, coupled with the seriousness of the offences, undermined public confidence in the administration of justice and presented lingering public safety concerns.

The respondent (moving party) brought a motion to adjourn the appellant's appeal, partially lift an automatic stay for an equalization payment, and seek security for costs and an extension of time to file her factum.

The appellant had failed to comply with spousal support orders and had taken actions to potentially frustrate enforcement of the equalization payment.

The court found the appellant's non-compliance with support orders flagrant and ordered the appeal stayed until arrears were paid.

It also partially lifted the stay on the equalization payment for the undisputed amount.

The appellants, Desiree McNeill and John Waechter, appealed their convictions for jointly possessing heroin and crystal methamphetamine for the purpose of trafficking.

A central issue was whether police required a second warrant to examine a seized cellphone belonging to an individual not initially targeted by the investigation, given the broad authorization in the initial search warrant for electronic devices found in a suspected drug trafficking hub.

The Court of Appeal held that the initial warrant, supported by a comprehensive Information to Obtain (ITO), provided sufficient reasonable grounds to authorize the examination of any electronic device found in the premises, including those of unknown individuals, without requiring a second warrant.

The court also found no basis to challenge the reasonableness of the convictions, concluding that the trial judge's finding of joint constructive possession was reasonable based on the totality of the evidence.

Both appeals were dismissed.

The appellant mortgagor brought an urgent motion before the Court of Appeal seeking an extension of time to appeal a default judgment and a stay of enforcement of a writ of possession.

The default judgment, which determined the amount owing on the mortgage and the mortgagee's right to possession, was issued in February 2019, and a motion to set it aside was dismissed in July 2019.

The mortgagor had unlawfully re-occupied the property after the writ of possession was first enforced.

The Court dismissed the motion, finding no intention to appeal within the relevant period, substantial and unexplained delay, significant prejudice to the mortgagee, and no arguable merit to the appeal.

The court also found no serious issue to be tried regarding the stay, given the conclusive determination of the mortgage amount and the mortgagor's conduct.

The appellant appealed his sentence of six years, less credit for pre-sentence custody, received after convictions for impaired driving, dangerous driving, failing to stop while pursued by police, and driving while disqualified.

The appellant argued the trial judge erred by failing to fully apply Gladue principles when considering his criminal record, suggesting previous sentences established an artificially high baseline.

The Court of Appeal found no basis to interfere with the sentence, noting the trial judge carefully reviewed the Gladue report, considered systemic factors, and that the "step up" principle was not applied.

The paramount consideration was the protection of other road users.

The appeal was allowed only to the extent of setting aside the victim surcharge; in all other respects, it was dismissed.