ONCA 2020

The appellant, a garage owner, appealed a summary judgment ordering him to return $78,565.16 to the respondents for incomplete Corvette restoration work.

The motion judge had granted summary judgment, noting the appellant failed to file affidavit evidence.

However, the Court of Appeal found that the motion judge overlooked photographs presented by the self-represented appellant that depicted some work done, creating a conflict in evidence.

The Court of Appeal allowed the appeal, set aside the summary judgment and costs, and remitted the case for trial, finding that a genuine issue for trial existed.

The appellant was ordered to pay costs for wasted time due to his procedural failures.

The English-speaking appellants, having obtained orders under s. 530(1) of the Criminal Code for trials before English-speaking judges and juries, sought to challenge prospective jurors for cause under s. 638(1)(f) on the ground of insufficient English language proficiency.

The trial judges dismissed these applications, concluding that a s. 530 order alone did not automatically entitle an accused to such a challenge without an "air of reality" or "realistic potential" for language competency issues.

The Court of Appeal upheld the trial judges' decisions, finding that the s. 530 orders were not necessary in these cases as the trials were already in English, and the purpose of s. 530 is to assist official language minorities, not to enforce minimum fair trial conditions for majority language speakers.

The court affirmed that a threshold showing of realistic potential is required for challenges for cause under s. 638(1)(f), similar to s. 638(1)(b), and that existing jury selection processes (Juries Act qualifications, pre-vetting) adequately address language competency.

The appeals were dismissed, and convictions affirmed.

The appellant, Jessy Herlichka, appealed his conviction for second-degree murder, arguing three errors by the trial judge: flawed instructions on the defence of intoxication, refusal to qualify a proposed defence expert in a specific area of expertise, and an inadequate curative instruction after a Crown witness suggested the appellant murdered the victim.

The Court of Appeal dismissed the appeal, finding no reversible error in the trial judge's instructions on intoxication, the limitation of expert testimony, or the curative instruction, concluding that the jury was properly equipped to determine the requisite state of mind for murder.

The appellants, Conroy and Kharla Rose, appealed their convictions for possession of proceeds of crime and money laundering.

The Court of Appeal allowed the appeals from conviction and ordered a new trial on two main grounds: the trial judge erred in dismissing an additional juror without random selection, thereby improperly constituting the jury, and erred in admitting evidence of Conroy's prior convictions in the form of judicial reasons without proper balancing of probative value against prejudicial effect and inadequate jury instructions.

Kharla Rose's separate appeal regarding unreasonable trial delay under s. 11(b) of the Charter was dismissed, as the delay was deemed reasonable under the pre-Jordan Morin framework.

The appellant sought to overturn the denial of an interlocutory injunction aimed at preventing the enforcement of a trespass notice issued by the respondent university.

The notice was impeding the appellant's studies and jeopardizing his student visa status, pending a Human Rights Tribunal proceeding.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors in the application judge's assessment of evidence or misapplication of the interlocutory injunction test.

The court upheld the finding that the balance of convenience favored the university, given the serious threats perceived and the inadequacy of the medical information provided by the appellant.

This is an appeal from a judgment rescinding a settlement agreement.

The respondent, Irene Deschenes, had settled a sexual assault claim against the Roman Catholic Episcopal Corporation of the Diocese of London in Ontario (the "Diocese") in 2000.

Subsequently, it was discovered that the Diocese had misrepresented its knowledge of the priest's prior abuse, as police statements from 1962 indicating earlier assaults came to light.

The motion judge rescinded the settlement based on innocent misrepresentation.

The appellants (Diocese and others) appealed, arguing the motion judge erred in applying the law of unilateral mistake, assessing materiality, and failing to uphold the finality of settlements.

The Court of Appeal dismissed the appeal, affirming that the settlement was properly rescinded for innocent misrepresentation, finding the misrepresentation material and relied upon, and that the interests of fairness and justice outweighed the principle of settlement finality in these circumstances.

The appellant objected to their civil appeal proceeding in writing, arguing the Court of Appeal lacked jurisdiction to order a written hearing over a party's objection, contrary to the *Courts of Justice Act* and *Rules of Civil Procedure*.

The court, through a Case Management Judge, dismissed the objection, affirming its broad implicit jurisdiction to manage its own process and ensure the just and efficient administration of justice, especially during the COVID-19 pandemic.

The court held that neither the Act nor the Rules mandate an absolute right to an oral hearing and found the appeal suitable for a written disposition.

The appellant, Jennifer Renaud, appealed a custodial sentence of ten months for multiple criminal offences, including unauthorized possession of a weapon, theft of a motor vehicle, and personation.

The Court of Appeal found the sentence to be too harsh because it exceeded the Crown's requested range without explanation, there was an underestimation of pre-sentence custody credit, and the sentencing judge failed to mention the appellant's guilty plea as a mitigating factor.

The appeal was allowed, and the sentence for personation was varied to be concurrent, resulting in time served.

The appellant appealed convictions for possession and accessing child pornography, and a 10-year prohibition order, arguing errors in the trial judge's s. 24(2) Charter analysis regarding the admissibility of evidence obtained from an invalid search warrant.

The Crown conceded the s. 8 Charter breach.

The Court of Appeal upheld the trial judge's decision to admit the evidence, finding no reviewable error in the assessment of the seriousness of the state conduct (negligent drafting of the information to obtain, not bad faith), the significant impact on Charter rights, and the strong public interest in adjudication on the merits.

The court also dismissed the appeal against the 10-year prohibition order, finding no error in principle or unreasonableness.

The appellant, Wayne Laski, and the Estate of Harold Morton Laski appealed a motion judge's decision to strike their action against BMO Nesbitt Burns Inc. and Norman Yu.

The action alleged negligent misrepresentation and breach of disclosure duty related to a transfer of securities from Harold Laski to a joint account with Wendi Laski, which passed by right of survivorship outside the estate.

The motion judge struck the estate's claim for non-compliance with procedural rules and the appellant's personal claim based on issue estoppel, collateral attack, abuse of process, and lack of duty of care/damages.

The Court of Appeal dismissed the appeal, upholding the motion judge's discretionary decision to proceed with the motion in the appellant's absence due to repeated non-compliance with adjournment conditions.

The court also affirmed the striking of the personal claim, finding no error in the application of issue estoppel and noting the appellant's failure to demonstrate damages.

The appellant, a dangerous offender, appealed an indeterminate sentence imposed for breaching his long-term supervision order (LTSO).

The breach involved pursuing a young woman without reporting contact, a behaviour similar to his past criminal harassment.

The Court of Appeal dismissed the appeal, finding that the trial judge properly considered the principles of proportionality and mitigating factors, and reasonably concluded that an indeterminate sentence was necessary for public protection given the appellant's high risk of recidivism and history of non-compliance with treatment.

The court did, however, set aside a victim surcharge in accordance with R. v. Boudreault.

The appellant, Thanh Tung Phan, appealed his conviction for first-degree murder.

The appeal raised two main grounds: an alleged error in the disposition of a Garofoli application concerning the judicial authorization for surveillance and tracking, and an error in admitting evidence of a history of violence between rival gangs (Chin Pac and Asian Assassinz) to establish motive.

The Court of Appeal found no error in the Garofoli ruling, concluding that the authorizing justice had reasonable and probable grounds even after excising inaccurate information from the Information to Obtain (ITO).

The court also found no error in admitting the gang evidence, determining its probative value for narrative, animus, and motive outweighed its prejudicial effect, especially given the trial judge's careful instructions and the manner of admission.

The moving parties sought a stay of a Superior Court order for the sale of real property, pending appeal to the Court of Appeal for Ontario.

The underlying order stemmed from an application under the Substitute Decisions Act concerning the alleged mismanagement of an incapable person's financial affairs by her attorneys.

The Court applied the three-part RJR-Macdonald test for a stay.

It found that the moving parties failed to demonstrate a serious question to be tried, as they had no plausible grounds of appeal, having failed to attend the lower court hearing or properly engage with the court's powers under the Substitute Decisions Act.

Furthermore, they did not establish irreparable harm, as they did not reside at the property and had minimal financial investment.

The balance of convenience favored the responding party, as the property's maintenance was depleting the incapable person's assets.

Consequently, the motion for a stay was dismissed, and costs were awarded to the responding party.

The appellant, Jeremy Gough, appealed his conviction for first-degree murder, arguing that the trial judge erred by allowing the Crown to rely on post-incident conduct evidence (attending Tim Hortons, sending texts, delivering a skating form) as relevant to intent and planning/deliberation, and by failing to provide a limiting instruction to the jury.

The Court of Appeal dismissed the appeal, holding that the post-incident conduct evidence was relevant and admissible.

The Court found a positive link between the appellant's pre-offence and post-incident conduct, which formed part of a continuous scheme to distance himself from the crime, thereby attenuating the reasoning risks typically associated with such evidence and negating the need for a specific cautionary instruction.

The appellant appealed his conviction and sentence for aggravated assault.

He sought to admit fresh evidence, a hospital report confirming broken fingers, to support his self-defence argument.

The Court of Appeal dismissed the appeal, finding that even if the fresh evidence were admitted, it would not change the result because there was no basis for a self-defence claim during the second altercation, which was the basis of the charge.

The trial judge had already found that the appellant escalated the conflict and that his actions were not in response to a threat.

The appellants, general partners in three limited partnerships, appealed an application judge's order requiring them to produce information to the respondent limited partners and to include specific material in annual and semi-annual reports.

The appellants argued procedural unfairness and that the order exceeded the limited partnership agreements (LPA).

The Court of Appeal dismissed the appeal, finding no procedural unfairness as the appellants had ample notice, and that the order was consistent with the broad information rights of limited partners under section 10 of the Limited Partnerships Act, R.S.O. 1990, c.

L.16, and did not prejudice the appellants.

This is a costs endorsement following a successful appeal.

The appellant's appeal was allowed, and costs of the appeal were awarded to the appellant.

The parties subsequently reached an agreement on the costs of the proceedings in the Superior Court, fixing them at $30,000 all inclusive, to be paid by the respondent to the appellant.

The appellant, Wayne Thomas Hill, appealed his conviction and sentence for two counts of attempted abduction of a child and two counts of breaching a prohibition order.

The appeal raised two issues: a request to vary a blanket lifetime internet ban imposed as part of his sentence, and the requirement for registration in the sex offender registry.

The Court of Appeal varied the internet prohibition order to a more specific set of restrictions, aligning with the nature of the order granted in R. v. Brar, but dismissed the appeal regarding the sex offender registry and all other issues.

The appellant, M.D., appealed a conviction for sexual assault.

The primary ground of appeal was that the trial judge erred in law by rejecting the appellant's evidence on the basis that it appeared "tailored" to the Crown's evidence and disclosure.

The Court of Appeal found this constituted a legal error, as it improperly used the appellant's constitutional rights to disclosure and presence at trial as a basis to impugn credibility.

The court allowed the appeal, set aside the conviction, and ordered a new trial, emphasizing that such an error goes to the heart of trial fairness and the right to make full answer and defence.

The appellant, a former ward of the Children's Aid Society (CAS), appealed the dismissal of her action for damages and a contempt motion.

Her action alleged negligence, defamation, breach of privacy, and wrongful disclosure of her youth criminal proceedings and a pre-disposition report by the CAS to the Criminal Injuries Compensation Board.

The Court of Appeal dismissed the contempt appeal, finding no court orders were disobeyed.

However, it partially allowed the summary judgment appeal, finding that the motion judge erred in dismissing the claim regarding the wrongful disclosure of youth criminal proceedings records under the Young Offenders Act and Youth Criminal Justice Act, stating that a legislative offence does not preclude a civil action for damages.

The issue of the Society's liability for damages related to this disclosure was remitted for further proceedings.