ONCA 2021

The appellant, G.B., appealed convictions for sexual assault, sexual interference, and invitation to sexual touching against his granddaughter.

The trial judge rejected the appellant's evidence, including his attempt to manufacture a motive for the complainant to lie (a car loan dispute).

The Court of Appeal found no error in the trial judge's assessment of the appellant's evidence or her finding that the complainant had no motive to fabricate, though it cautioned against relying on an "apparent lack of motive" to bolster credibility.

The court applied the curative proviso, finding that any error did not overwhelm the trial judge's careful reasons.

The appeal was dismissed.

The appellants, Zhang Jian Fan and Jian Ling, appealed their convictions and sentences for large-scale cannabis production offences under the Controlled Drugs and Substances Act.

They asserted a defence of honest but mistaken belief that their operation was properly licensed.

The trial judge rejected their credibility and found their mistake was one of law, not fact.

The Court of Appeal upheld the trial judge's finding that the appellants' belief was not credible and, alternatively, that their mistake was one of law regarding the scope and application of the licences, not a mistake of fact about the existence of a licence.

The Court also upheld the sentences, finding them proportionate, while setting aside victim surcharges.

The appellant, Davide Duncan, appealed his conviction for aiding or abetting the importation of cocaine and conspiracy to import cocaine.

The appeal raised two main issues: the admissibility of wiretap evidence, challenged on the basis of alleged misleading or fraudulent affidavits used to obtain the authorization, and the trial judge's instructions to the jury regarding the burden of proof.

The Court of Appeal found that the motion judge did not err in allowing amplification or excision of the affidavit errors, as they were not deliberate and the affiant acted in good faith.

The court also upheld the finding that the wiretap authorization fell within the criminal organization exception under s. 186(1.1) of the Criminal Code, negating the need to prove investigative necessity.

Finally, the court found no error in the trial judge's jury instructions on the burden of proof.

The appeal was dismissed.

The appellants appealed a motion judge's decision striking their claims for breach of privacy, breach of confidence, and punitive damages against an insurer and its counsel.

The claims arose after the appellant's friend attended a Licence Appeal Tribunal case conference as a witness, and the insurer's counsel reported this to the insurer, who subsequently terminated the friend's employment.

The Court of Appeal dismissed the appeal, finding that the attendance at the tribunal and the provision of a witness list did not constitute private information, and that the insurer's counsel owed no duty to the appellants.

Furthermore, any claim regarding the insurer's bad faith handling of the accident benefits claim was barred by section 280 of the Insurance Act.

The applicant, Jamal Daye, sought re-release pending appeal after his initial bail was revoked due to new firearms and breach charges.

He had previously been convicted of narcotics trafficking and sentenced to 5.5 years.

The Crown opposed his re-release on tertiary grounds, arguing that his detention was necessary to preserve public safety and confidence in the administration of justice.

The court found that while the appeal was not frivolous, its strength did not outweigh the public interest concerns, particularly given the seriousness of the new alleged offences and the breach of bail conditions.

The application for re-release was denied.

The appellants appealed a summary judgment order dismissing their action against TD Bank and Primmum Insurance, which alleged breach of fiduciary duty related to property insurance and mortgage renewal.

They also sought leave to appeal substantial indemnity costs orders.

The Court of Appeal dismissed both the summary judgment appeal, finding no fiduciary duties were owed, the action was res judicata, and statute-barred.

The costs appeal was also dismissed, as the fresh evidence of a settlement offer was inadmissible and had no bearing on the correctness of the costs award.

The appellant appealed the dismissal of her motion to dismiss the respondent's application for matrimonial relief on jurisdictional grounds, arguing Ontario lacked jurisdiction or China was the more appropriate forum.

The motion judge found Ontario had jurisdiction but that China was not the clearly more appropriate forum.

The Court of Appeal upheld the finding of jurisdiction but found the motion judge erred in the forum non conveniens analysis by failing to adequately consider pre-existing marital agreements executed in China and overemphasizing the Ontario property.

The appeal was allowed, and the respondent's application was stayed, directing the matter to China.

The appellant, Kumaraguruparan Manickam, appealed his conviction for two counts of fraud over $5,000 and one count of uttering a forged document, and in the alternative, his sentence of 18 months' imprisonment.

The trial judge found the appellant wilfully blind to a fraudulent cheque deposit scheme involving fake business accounts and counterfeit cheques, resulting in over $250,000 loss to banks.

The Court of Appeal dismissed the conviction appeal, finding no palpable and overriding error in the trial judge's finding of wilful blindness or credibility assessment, despite some imprecise language.

The court also granted leave to appeal the sentence but denied the appeal, affirming that the sentencing judge properly applied the principle of restraint while imposing a significant jail sentence due to the seriousness and premeditated nature of the fraud.

The appellant, Seyar Khairzad, appealed a Superior Court order that dismissed his motion to change a consent decision-making and parenting time order and increased his child support.

He also sought leave to adduce fresh evidence.

The Court of Appeal dismissed the appeal, finding no material error in the motion judge's decision regarding decision-making responsibility or parenting time, noting the history of domestic violence and communication issues.

The court upheld the imputed income for child support due to the appellant's non-compliance with disclosure orders.

The motion for fresh evidence was also dismissed, as the evidence was either available at the original hearing or would not have affected the outcome.

Costs were awarded to the respondent.

The appellants, condominium owners, appealed a permanent injunction issued by the Superior Court of Justice.

The injunction restricted the male appellant's communication and conduct due to a long-standing pattern of harassment, rude behavior, and interference with the condominium corporation's board and employees, in violation of the Condominium Act.

The Court of Appeal dismissed the appeal, affirming the application judge's jurisdiction, the appropriateness of the injunction under s. 134(3) of the Condominium Act, and the fairness of the proceedings despite the denial of an adjournment and the appellant's failure to file a proper affidavit.

The Crown appealed a summary conviction appeal judge's decision that reduced fines and eliminated a custodial sentence for environmental offences under the Canadian Environmental Protection Act (CEPA).

The Court of Appeal agreed with the appellate judge that the sentencing judge erred in principle by comparing the case to one involving deliberate environmental harm, thus upholding the elimination of the custodial sentence for the individual respondent.

However, the Court of Appeal disagreed with the reduction of fines, finding no error in the original sentencing judge's imposition of separate fines for each count, and restored the original fines for both the corporate and individual respondents.

The appellant, Hussein Kelkas, appealed his conviction for three counts of sexual assault involving two complainants.

The central issue at trial was consent.

The trial judge found the complainants credible and the appellant's evidence incredible.

The appeal grounds included misapprehension of evidence, impermissible judicial notice, improper bolstering of credibility, and a finding of fact without evidence.

The Court of Appeal dismissed the appeal, finding no errors in the trial judge's assessment of evidence or credibility, and no impermissible use of judicial notice.

The appellant, Norman Howes, appealed his conviction for sexual interference and sexual assault, arguing the trial judge misapprehended evidence and erred in credibility findings.

The Court of Appeal upheld the conviction, finding no reversible error in the trial judge's assessment of credibility, despite a minor inconsequential error in characterizing evidence.

The court affirmed the fairness of the trial and proper application of the burden of proof.

However, the sentence was varied by setting aside a s. 161(1)(a.1) order, which the Crown conceded was improperly made in light of R. v. K.R.J.

The appellant appealed the dismissal of his application to declare his late father's 2019 will invalid due to undue influence.

The application judge found the appellant lacked standing under the Rules of Civil Procedure and the Estates Act, as an earlier 1996 will (under which he was not a beneficiary) would take effect if the 2019 will was set aside.

The Court of Appeal upheld this decision, finding no error in the application judge's reasoning regarding standing and the onus on the appellant to adduce evidence challenging the 1996 will's validity.

The appeal was dismissed with costs awarded to the respondents.

The appellant sought leave to appeal a sentence imposed by the Superior Court of Justice.

The Court of Appeal granted leave and allowed the appeal, determining that a conditional sentence was a fit sentence, aligning with what the trial judge would have imposed had it been available.

The terms of the conditional sentence were to be prepared and released subsequently.

The appellants appealed the orders of a motion judge who granted a declaration that previous court orders survived the appellants' bankruptcy.

The motion judge provided no reasons for her decision or for the costs order.

Both parties asked the Court of Appeal to set aside the order.

The Court of Appeal allowed the appeal, finding that the failure to provide reasons incapable of meaningful appellate review constituted an error in law, and ordered a new hearing before a different judge.

This appeal concerned a commercial lease renewal dispute where the appellant tenant challenged the application judge's findings regarding the true agreement to lease and whether the respondent landlord had negotiated the renewal rent in good faith.

The Court of Appeal dismissed the appeal, upholding the application judge's findings of fact, which were based on conflicting evidence and credibility assessments.

The court also declined to admit fresh evidence, finding it irrelevant or unlikely to affect the outcome, and reiterated the high standard of review for factual findings on appeal.

The appellant sought to appeal a lower court order that found material changes in circumstances, reduced support arrears, and terminated spousal and child support.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's decision regarding material change, imputation of income, termination of support, or costs.

The court emphasized the deference owed to family support decisions.

This appeal concerned a family law dispute between separated spouses regarding financial issues.

The appellant, Fay-Lynn Muraven, challenged the trial judge's decisions on a date of marriage deduction for inherited property, the calculation of after-tax costs for children's parochial school expenses (s. 7 expenses), and the refusal to award prejudgment interest on equalization payments and child support arrears.

The Court of Appeal reviewed the trial judge's application of inconsistent standards, the discretion in reopening trials for new evidence, and the exercise of discretion regarding prejudgment interest.

The Court found no errors in the trial judge's decisions, concluding that the inherited property was acquired before marriage, the s. 7 expense calculation was reasonable, and the refusal to award prejudgment interest was supported by the evidence, despite the lack of explicit reasons.

The appeal was dismissed.

The appellant abandoned its appeal, and the respondent sought substantial indemnity costs.

The appellant challenged the court's jurisdiction to award costs for an abandoned appeal and proposed a lower partial indemnity amount.

The Court of Appeal affirmed its jurisdiction under s. 131 of the Courts of Justice Act, finding that Rule 61.14 did not displace this discretion.

The court awarded the respondent partial indemnity costs, finding substantial indemnity was not justified.