ONCA 2020

This case involves three appeals arising from matrimonial proceedings.

The Court of Appeal addressed the validity of a stay of execution obtained by a third-party creditor (the husband's father) against the matrimonial home, the striking of the husband's pleadings for non-compliance with court orders, and the interpretation of a domestic contract concerning the wife's interest in the matrimonial home and equalization payments.

The court found that the stay of execution was justified under the Courts of Justice Act, despite not meeting the Family Law Act criteria, as the creditor's objective was to defeat the wife's claims.

The decision to strike the husband's pleadings was upheld due to his wilful non-compliance and history of defaults.

The trial judge's interpretation of the domestic contract, granting the wife a one-half interest in the matrimonial home, and the valuation of the husband's debt to his father at zero for equalization purposes were affirmed.

However, the costs award from the lower court was varied to credit the husband for interim payments already made.

This appeal concerns a dispute between two insurers, AIG Insurance Company of Canada and Lloyd's Underwriters, regarding their respective duties to defend the City of Markham in a personal injury action.

The application judge had found AIG solely responsible for the defence and denied AIG the right to participate in the defence.

The Court of Appeal allowed the appeal, holding that both AIG and Lloyd's had a concurrent duty to defend the City, and must share defence costs equally, subject to reallocation at the conclusion of the action.

Furthermore, the Court found that AIG has a right to participate in the defence, including retaining and instructing counsel, provided a "split file" protocol with additional safeguards is implemented to manage potential conflicts of interest.

A franchisee, sued by a bank, issued a third-party claim against the franchisor seeking rescission of the franchise agreement for non-disclosure under the Arthur Wishart Act.

The franchisor argued that the third-party claim did not constitute proper notice of rescission.

The motion judge agreed, ruling that a pleading could not serve as the required notice.

The lawyer who drafted the third-party claim appealed.

The Court of Appeal allowed the appeal, holding that a pleading, specifically a third-party claim, could constitute sufficient written notice of rescission under s. 6 of the Arthur Wishart Act.

The court emphasized a generous interpretation of the remedial legislation, prioritizing substance over form, and clarified that the purpose of the notice is to advise the franchisor of rescission, not to act as a precondition to litigation.

The appellant appealed convictions for sexual interference and sexual assault of his daughter, arguing that the trial judge misapprehended evidence concerning his sex offender treatment.

The majority of the Court of Appeal found that the trial judge's factual error regarding the date of the appellant's treatment was material, impacting the assessment of his propensity to re-offend and the weight given to similar fact evidence.

This misapprehension played an essential part in the reasoning leading to the conviction.

The appeal was allowed, and a new trial was ordered.

A dissenting judge argued the error was not material to the overall reasoning.

The defendant, Cozy Corner Bedding Inc., appealed a summary judgment that dismissed its counterclaim for equitable set-off and granted judgment to the plaintiff, 3113736 Canada Ltd. (Valle Foam), for unpaid invoices.

Cozy Corner alleged overcharging due to a price-fixing scheme.

The motion judge had ruled the counterclaim was barred by a class action release and lacked sufficient evidence.

The Court of Appeal allowed the appeal, finding that an exception in the class action release preserved the right to pursue claims in insolvency proceedings, including equitable set-off under s. 21 of the CCAA.

The Court also found the motion judge erred in concluding there was insufficient evidence of overcharging, noting Valle Foam's own admissions regarding overcharge percentages.

The summary judgment was set aside, and the matter was directed to trial.

This appeal concerned the ownership of a cottage and the appellant daughter's liability under two mortgages.

The parents purchased a cottage in 2001, registering title in the daughter's name, with an original mortgage in their favour.

After the father's death, the mother registered a subsequent mortgage.

The mother sought a declaration of true ownership, claiming a resulting trust.

The trial judge found the cottage was a gift to the daughter but also ruled the daughter was liable under the original mortgage, though not the subsequent one.

The Court of Appeal allowed the daughter's appeal, finding the trial judge erred by making a substantive determination on mortgage liability, an issue not squarely pleaded or fully addressed by the parties at trial, thereby denying the daughter a fair opportunity to present her case on that specific issue.

Joseph Haddad appealed a disposition of the Ontario Review Board, which ordered his detention at a forensic mental health centre subject to conditions, specifically challenging a condition prohibiting him from attending within 250 metres of his mother's home.

Haddad was found not criminally responsible for an index offence involving discharging a shotgun.

The Board's decision to impose the condition was based on concerns for public safety, psychological harm to neighbours, and the appellant's transition to community living.

The Court of Appeal dismissed the appeal, deferring to the Board's reasonable decision, noting that the condition served to address victim safety and was not a significant restraint on the appellant's liberty, especially as his physician did not recommend visits to the family home.

This decision from the Court of Appeal for Ontario addresses three related matters.

The first involved an appeal in Blanchard v. Georgina (Town), where the panel considered a motion to review a security for costs order and an ex parte motion by the Town of Georgina to dismiss the appeal for non-payment of security.

The second matter concerned a proposed appeal in Grand Chief v. Phillips et al, specifically a review of an order denying an extension of time to file a notice of appeal.

The third matter was a general review of a prior order by Thorburn J.A. The court dismissed the request for an adjournment and allowed a non-lawyer spokesperson to represent one of the parties.

The court found no basis to stay or consolidate the appeals based on aboriginal land claims.

The Georgina appeal was dismissed due to non-compliance with the security for costs order, and the review of the denial of extension of time for the Grand Chief v. Phillips appeal was also dismissed, with costs awarded against the unsuccessful parties in both instances.

The appellant, R.M., appealed his convictions for sexual assault with a weapon, uttering threats, and robbery, and his adult sentence of eight years, for offences committed when he was 17.

The Crown cross-appealed the conditional stay of the gang sexual assault conviction.

The Court of Appeal dismissed R.M.'s conviction appeal, finding the verdict reasonable and the complainant's credibility assessment proper.

It also dismissed the sentence appeal, upholding the adult sentence as not demonstrably unfit, finding the presumption of diminished moral blameworthiness rebutted and the "Coke principle" not violated.

The Crown's cross-appeal was allowed, setting aside the conditional stay for gang sexual assault, as it was deemed a distinct offence from sexual assault with a weapon under the Kienapple principle.

The Crown appealed the acquittal of the respondent on a fraud charge, arguing the trial judge erred in his approach to the mens rea for fraud.

The respondent had lied about progress and used funds for other projects due to cash flow issues, believing he could resolve the situation.

The Court of Appeal reaffirmed that a "sanguine belief" does not negate the mens rea for fraud, which requires subjective knowledge of the prohibited act and the risk of deprivation.

The court found the trial judge erred in law and that the Crown was not advancing a new theory of guilt.

The appeal was allowed, and a new trial was ordered, as the trial judge's factual findings were insufficient to substitute a conviction.

The appellant, A.S., appealed his conviction for sexually assaulting his wife, alleging the trial judge misapprehended material evidence and provided inadequate reasons.

The Court of Appeal found that the trial judge erred by misapprehending J.R.'s testimony regarding leg bruises, which was central to the conviction's corroboration finding.

Furthermore, the trial judge improperly relied on a prior consistent statement as corroboration.

This misapprehension of evidence constituted a miscarriage of justice.

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

The appellant, J.C.J., appealed his convictions for sexual assault and incest, and his five-year sentence for incest (concurrent three years for sexual assault).

The conviction appeal was based on ineffective assistance of counsel, specifically regarding a failed s. 11(b) application and inadequate preparation for testimony.

The Court of Appeal dismissed the conviction appeal, finding no prejudice.

The sentence appeal argued errors in applying s. 155(2) as a guide, failing to properly weigh mitigating factors, considering defence conduct as aggravating, and imposing an s. 161 order for an over-18 complainant.

The Court dismissed the sentence appeal, except for setting aside the s. 161 order, which the Crown conceded was inapplicable.

This is a costs endorsement following an appeal.

The Court of Appeal for Ontario addressed costs for both the appeal and the underlying summary judgment motion.

The parties agreed to no costs for the appeal due to divided success.

For the summary judgment motion, the court declined to award costs to the primary appellants (Bistricer) or respondents (Rubner), citing reasons such as new arguments on appeal and divided success.

However, the litigation guardian for Eda Rubner, who was aligned with the original applicants, was awarded partial recovery of costs for the summary judgment motion.

The appellants appealed a motion judge's order dismissing their claims against the Ministry of the Attorney General (MAG Respondents) and a libel claim against the Toronto Police Services Board (Police Respondents).

The Court of Appeal found no error in the motion judge's analysis, upholding the dismissal.

The claims against the MAG Respondents failed to disclose a reasonable cause of action, citing Crown attorney immunity from negligence and a lack of pleaded intent for torts like malicious prosecution, misfeasance in public office, and conspiracy.

The libel claim against the Police Respondents was struck for non-compliance with notice requirements and limitation periods under the Libel and Slander Act.

The appeal was dismissed, and costs were awarded against the appellant Mohamed Abdullahi.

The appellant, Global Work & Travel Co. Inc., appealed a motion judge's decision that dismissed its motion to dismiss or stay an action based on lack of jurisdiction simpliciter and forum non conveniens.

The action was brought by the respondents (plaintiffs) following a tragic motor scooter accident in Thailand that resulted in the death of one sister and serious injury to another, who had travelled there through the appellant's "Teach in Thailand" program.

The Court of Appeal upheld the motion judge's finding of a real and substantial connection to Ontario, particularly regarding claims of negligent misrepresentation and negligence committed in Ontario, and affirmed the application of the "good arguable case" test.

The appeal was dismissed.

The appellants appealed a motion judge's order striking out a Superior Court proceeding that sought to appeal Provincial Offences Act (POA) convictions of Murray Brown, which were decided by a Justice of the Peace.

The appellants argued they had standing as the Greenworld Trust, the property owner, and that the Justice of the Peace exceeded jurisdiction.

The Court of Appeal dismissed the appeal, affirming that the Superior Court was the incorrect forum for appealing POA convictions (which should be appealed to the Ontario Court of Justice) and that the Greenworld Trust had no freestanding Charter right to assert in the Superior Court in this context.

The court also found no clear error in the costs award from the motion below.

The appellant insurer appealed a motion judge's decision that it had a duty to defend the respondents under a professional liability insurance policy.

The respondents, an appraiser and his company, were sued for vicarious liability arising from the alleged negligence of another appraiser (Barkley).

The respondents sought coverage under their own insurance contract (Van Huizen contract).

The Court of Appeal found that the motion judge erred by conflating a master policy with individual insurance contracts.

The court clarified that the master policy merely sets out terms, while individual certificates evidence separate contracts.

The Van Huizen insurance contract only covered the professional negligence of the named insured (Van Huizen), not vicarious liability for another appraiser's actions.

Therefore, the appellant had no duty to defend under the Van Huizen contract.

However, the court declined to grant summary judgment to the appellant, noting that the question of coverage under the other appraiser's (Barkley's) insurance contract remained a live issue to be determined.

The appellants, Orville Campbell and Stanton David, appealed their convictions for first-degree murder.

They argued the verdict was unreasonable due to insufficient evidence of planning and deliberation and alleged errors in the jury charge.

The Court of Appeal found the first-degree murder verdict unreasonable, concluding that the evidence did not establish planning and deliberation beyond a reasonable doubt, particularly given the rapid sequence of events.

The court substituted the convictions with second-degree murder.

It dismissed all grounds for a new trial on second-degree murder, finding no reversible errors in the jury instructions regarding post-offence conduct, the Vetrovec warning for a key witness, pathology evidence, or the use of the deceased's criminal record.

The Crown appealed a trial judge's decision to stay proceedings against three accused (Pauls, Jamal Yusuf, and Jamis Yusuf) for assault causing bodily harm and unlawful confinement, citing unreasonable delay under s. 11(b) of the Canadian Charter of Rights and Freedoms.

The trial judge had attributed most of the 35-month delay to the Crown's inaccurate time estimate and mishandling of a defence disclosure request.

The Court of Appeal re-evaluated the delay, finding that while the Crown was initially responsible for the misestimate, all parties and the court shared responsibility once the trial progressed.

The defence's disclosure request was deemed unnecessary and inappropriate, contributing to delay.

After further deductions for defence-caused delay (counsel unavailability, Pauls' illness) and joint responsibility for misestimates, the net delay for all respondents fell below the 18-month presumptive ceiling.

The Court also rejected the respondents' challenges to their guilt findings.

The appellant, CIBC World Markets Inc., appealed a trial judgment that found it liable for trading losses incurred by the respondents, Montrose Hammond & Co. and The Raillery Fund LP, due to the negligence of Belzberg Technologies Inc.'s employees.

CIBC argued the trial judge erred in interpreting exclusion clauses in their contract and in finding Belzberg to be CIBC's apparent agent.

The Court of Appeal dismissed the appeal, upholding the trial judge's interpretation that the exclusion clauses did not apply to the circumstances and that Belzberg acted as CIBC's apparent agent, leading to the respondents' detriment.