ONCA 2020

The appellant, Jasfa Brown, appealed his convictions for firearm and drug offences and the imposed sentence.

He challenged the validity of his guilty plea and the amount of enhanced credit for harsh presentence custody conditions (Duncan credit).

The Court of Appeal dismissed the appeal against conviction, finding no basis to interfere with the guilty plea.

Regarding the sentence, the court upheld the sentencing judge's discretion in awarding four months of Duncan credit, despite acknowledging it was at the lower end compared to recent case law concerning conditions at the Toronto South Detention Centre.

The court found the sentence was not demonstrably unfit.

However, leave to appeal the sentence was granted, and the $600 victim fine surcharge was set aside in accordance with R. v. Boudreault.

The appellant, Marvin Rubner, appealed a lower court decision that found no binding settlement agreement had been reached between him and his brother, Joseph Rubner, regarding their real estate business interests.

The application judge had concluded that Joseph's counsel had limited authority to negotiate only the minutes of settlement, not the "Deal Points," and that Marvin's counsel was aware of this limitation.

The Court of Appeal dismissed the appeal, affirming that the application judge's interpretation of the agreement and application of the test for ostensible authority were questions of mixed fact and law, reviewable only for palpable and overriding error, which was not demonstrated.

The Court of Appeal allowed an appeal from a motion judge's order granting specific performance for breach of contract.

The appellate court found that the motion judge erred in law by awarding specific performance without evidence or a finding that the property was unique, which resulted in a windfall for the respondent.

The matter was remitted for trial.

This is an appeal from a trial judge's decision to discharge a mortgage.

The appellant claimed a loan was secured by a mortgage on the respondent's home, which was later re-loaned but remained secured.

The trial judge, unable to determine witness credibility, relied on documentary evidence to find the mortgage had been repaid and effectively redeemed.

The Court of Appeal dismissed the appeal, affirming the trial judge's findings that the issue of redemption was properly before the court via counterclaim, that the appellant waived technical compliance by admitting repayment, and that the trial judge was entitled to rely on documentary evidence given credibility issues.

This appeal arose from a long-standing, high-conflict family law dispute.

The appellants challenged a motion judge's order that clarified spousal support obligations, addressed the impact of bankruptcy on an equalization payment secured by a letter of credit, and apportioned trial costs.

The Court of Appeal dismissed the appeal, affirming the motion judge's clarifications that periodic support continued due to the husband's failure to exercise a lump sum option, that the letter of credit securing equalization and support created an equitable trust not extinguished by bankruptcy, and that the allocation of trial costs was appropriate.

Ara Koundakjian appealed an Ontario Review Board disposition ordering his detention at the Centre for Addiction and Mental Health, having sought a conditional discharge.

The appellant argued the Board misstated the governing legal test by using "appropriate" instead of "necessary and appropriate" and failed to meaningfully consider a conditional discharge.

The Court of Appeal dismissed the appeal, finding that the Board understood the correct standard despite the shorthand, and that its determination of continued detention was reasonable and entitled to deference given the appellant's history of mental illness, substance abuse (cocaine), lack of insight, frequent breaches of disposition conditions, and the significant risk of serious harm to the public.

The appellants' counsel failed to appear for the appeal hearing, and an associate later advised the court that counsel had no instructions to proceed due to an inability to communicate with the appellants.

The respondent requested the appeal be dismissed with fixed costs.

The Court of Appeal for Ontario dismissed the appeal with costs of $6,000, inclusive of disbursements and HST, as requested by the respondent.

The appellant, convicted of sexual assault, appealed on the grounds that his re-election of trial mode was invalid due to non-compliance with s. 561(7) of the Criminal Code and that the trial judge erred in concluding he was functus officio.

The Court of Appeal found the trial judge was not functus officio but agreed with the trial judge's alternative finding that the appellant, through counsel, had validly waived his right to have the re-election words read to him.

The appeal was dismissed.

Paul Rousselle appealed his conviction for aggravated assault on a four-month-old infant, Baby L., arguing that the trial judge's reasoning was illogical or irrational.

The medical evidence indicated Baby L. suffered injuries consistent with shaking.

Rousselle had initially denied involvement but later confessed to police and his partner that he shook the baby out of frustration when she wouldn't stop crying.

At trial, he recanted, claiming he lied to police to protect his own child from child protective services.

The Court of Appeal dismissed the appeal, finding the trial judge's decision to accept Rousselle's confessions while rejecting his claims of gentle force was logical and rational, supported by the medical evidence and the circumstances of the confession.

The court also upheld the admission of evidence regarding Rousselle's prior angry reaction to a video game interruption, finding it relevant to his state of mind and not unduly prejudicial.

The Royal Bank of Canada brought companion motions seeking directions in two bankruptcy proceedings.

The motions addressed whether the appellants had an appeal as of right from bankruptcy orders and, alternatively, whether the automatic stay resulting from an appeal as of right should be cancelled.

The court found that the appellants did have an appeal as of right under s. 193(c) of the Bankruptcy and Insolvency Act, as the property involved exceeded $10,000 and the bankruptcy orders directly involved the disposition of assets.

However, the court granted the motion to cancel the automatic stay under s. 195 of the Act, finding that the appeals had low chances of success and that there was no prejudice to the appellants, given their history of delay and improper dealings with property.

This appeal concerned two class actions (Brazeau and Reddock) brought by federal inmates challenging the legality of administrative segregation practices.

The Court of Appeal for Ontario upheld the motion judge's finding of liability against Canada for breaches of ss. 7 and 12 of the Canadian Charter of Rights and Freedoms, concluding that the prolonged administrative segregation practices constituted cruel and unusual punishment and lacked independent review.

The court found that Canada's failure to alter its policies despite long-standing criticism met the "clear disregard for Charter rights" threshold for awarding damages.

However, the court set aside the motion judge's order in Brazeau to use aggregate damages for structural changes to penal institutions, deeming it an unjustifiable assumption of judicial control and a misinterpretation of the Class Proceedings Act.

The court also overturned the finding of systemic negligence in Reddock, concluding that Charter damages were the more appropriate remedy.

The appeals were allowed in part, with the Brazeau damages remitted for re-determination and the Reddock negligence finding reversed.

The appellant, A.G., appealed convictions for assault causing bodily harm and the imposed sentence.

The Court of Appeal found that the trial judge reasonably inferred the appellant's participation and encouragement in the assault as a joint principal, noting common participation in a continuing event.

The court also upheld the sentence, concluding that the appellant's failure to plead guilty and express contrition, unlike co-accused, justified a more onerous sentence.

Both the conviction appeal and the sentence appeal were dismissed.

The appellants (Roustan/RINC) appealed a trial decision that found Grant Thornton LLP (GT) breached a contract but awarded no damages for share losses, dismissing their action.

GT cross-appealed on costs.

The Court of Appeal dismissed both the appeal, finding no palpable and overriding errors in the trial judge's causation analysis or refusal to award various damages (lost opportunity, share loss, special, nominal), and the cross-appeal, upholding the trial judge's costs award as not an error in principle or plainly wrong.

The appellant, Barry Weisleder, appealed a summary judgment dismissing his defamation action against the respondent union.

The motion judge had found the allegedly defamatory speech was protected by qualified privilege and that malice was not established.

The Court of Appeal found no error in the motion judge's decision, upholding the finding of qualified privilege and the absence of malice, noting that the ample evidentiary record allowed for a summary judgment decision on malice.

The appeal was dismissed.

The appellants appealed a summary judgment order.

The Court of Appeal upheld the motion judge's conclusion that the officer had subjective reasonable and probable grounds for arrest, finding it supported by evidence and objectively reasonable.

The allegation of negligent investigation was dismissed because the appellants failed to present expert evidence on the standard of care to rebut the police's evidence.

The court affirmed that summary judgment in favour of a defendant was appropriate in this case.

The appeal was dismissed with costs awarded to the respondents.

This is an appeal from convictions for breach of trust against an Ontario Provincial Police officer, Cst.

Kara Darnley, related to two incidents: the "witness record incident" and the "drug investigation file incidents." The Crown alleged Cst.

Darnley abused her position out of loyalty to her fiancé.

The trial judge convicted her of breach of trust for both incidents but acquitted her of obstruction of justice for the witness record incident.

Cst.

Darnley appealed, citing errors in jury directions on reasonable doubt and the "public good" element of breach of trust, inconsistent verdicts, and misapplication of the entrapment defence.

The Court of Appeal found significant errors in the reasonable doubt instruction and that the verdicts for the witness record incident were inconsistent.

It also found errors in the entrapment analysis, specifically regarding the "average person" test and the elevation of moral standards for police officers.

The appeal was allowed, with an acquittal substituted for the witness record breach of trust conviction and a new trial ordered for the drug investigation file breach of trust conviction.

This appeal concerned the interpretation of a separation agreement's reconciliation clause and its effect on a pension waiver.

The parties had separated, entered into an agreement, reconciled for almost nine years, and then separated again.

The separation agreement stipulated that it would become void if reconciliation lasted more than 90 days, with an exception for "any payment, conveyance or act" made or done pursuant to the agreement.

The trial judge found the wife's specific release of her rights to the husband's Canada Post pension survived reconciliation.

The Court of Appeal found the trial judge erred by misapprehending the evidence (no payment was made for the pension entitlement) and by failing to give effect to the express voiding term of the reconciliation clause.

The Court clarified that the pension release was voided, entitling the wife to a share of the pension from the date of marriage.

The appellant sought review of a prior order dismissing his application for a s. 684 order to appoint counsel for his appeal.

The appellant argued that the reviewing judge misunderstood a ground of appeal related to Charter s. 11(b) and erred in characterizing the appeal as "barely arguable." The Court of Appeal rejected these arguments, finding no misunderstanding of the Charter ground and no error in the characterization for the purpose of counsel appointment.

The application was dismissed, and the matter was set to be spoken to regarding the Crown's proposed response to the ineffective assistance of counsel ground of appeal.

This is an appeal from a trial judgment finding breach of contract and awarding damages.

Fermar Paving Limited (Fermar) sued 567723 Ontario Ltd. o/a Winter’s Pit (Winter’s Pit) for repudiating an agreement to supply aggregate.

The Court of Appeal upheld the trial judge's finding that a valid contract existed and was repudiated by Winter's Pit, dismissing the appeal on liability.

However, the Court found that the trial judge erred in quantifying damages due to insufficient evidentiary support, as the calculations relied on summaries without the underlying source documents or expert testimony.

Consequently, the damages award was set aside, and the issue of damages was remitted to the Superior Court for re-quantification.

No costs were awarded due to divided success.

The appellants (Bolenders) appealed a trial judgment that largely prohibited their peat moss extraction, triple mix compilation, and waste receipt activities on their rural-zoned properties, and found breaches of a site alteration by-law.

The trial judge had found these activities were not legal non-conforming uses, except for the open storage of heavy equipment.

The Court of Appeal dismissed the appeal, upholding most of the trial judge's orders, including the injunction requiring future compliance with the site alteration by-law.

However, the court set aside one paragraph of the trial order (para. 4) on consent, which had declared a breach of the 2017 by-law, due to lack of evidence of a breach in that specific year.

The court affirmed the trial judge's finding that the activities were not legal non-conforming uses and that the injunction was not retroactive.