ONCA 2021

The appellant, Isaiah Norlyn Simmons, appealed a global sentence of six years' imprisonment for possession for the purpose of trafficking cocaine, possession of a loaded prohibited firearm, and possession of a loaded firearm while prohibited.

The appeal raised two grounds: that the sentencing judge erred by treating the timing of the guilty plea (after a preliminary hearing) as an aggravating factor, and that the judge failed to consider the appellant's rehabilitative potential.

The Court of Appeal agreed that treating the timing of the guilty plea as an aggravating factor was an error in principle but found that this error did not impact the overall sentence given the seriousness of the offences and the appellant's prior record.

The Court also found no error in the sentencing judge's consideration of rehabilitative potential.

Leave to appeal sentence was granted, but the appeal was dismissed.

This appeal concerned the applicability of the third-party records regime under sections 278.1-278.9 of the Criminal Code to a former police officer's anticipated testimony and a draft statement of claim in a criminal trial.

The appellants, J.R. (the former officer) and Toronto Police Service, sought to overturn a subpoena requiring J.R. to testify and to prevent the use of the draft statement of claim.

The Court of Appeal upheld the lower courts' findings that the third-party records regime did not apply to oral statements made by J.R. and, in the specific circumstances, did not apply to the draft statement of claim.

Furthermore, even if the regime applied to the draft statement, its production was deemed necessary in the interests of justice.

The appeal was dismissed, and an interim stay was set aside, making the lower court's unsealing and set aside orders effective.

The Court of Appeal for Ontario heard a motion to quash an appeal brought by the respondent, Ms. LaFontaine.

The appellant, Mr. Froom, had appealed an interlocutory order from the Superior Court of Justice.

The motion judge had adjourned Ms. LaFontaine's motion to trial, imposing terms including a requirement for Mr. Froom to deposit US$475,000 into court.

The Court of Appeal determined that the underlying order was interlocutory, not final, and therefore an appeal lay to the Divisional Court with leave, not directly to the Court of Appeal.

Consequently, the appeal was quashed, and Mr. Froom's request to transfer the appeal to the Divisional Court was denied.

Costs were awarded to Ms. LaFontaine.

The appellant, Hubert Nathanial Shilling, appealed his convictions for two counts of sexual interference and sought leave to appeal his four-and-a-half-year sentence.

The appeal challenged the trial judge's assessment of the complainant's credibility, the rejection of a motive to fabricate, and the use of corroborating evidence.

The appellant also brought a fresh evidence motion, citing his contraction of COVID-19 and a PTSD diagnosis during incarceration, seeking a reduced sentence.

The Court of Appeal dismissed the fresh evidence motion, the conviction appeal, and the sentence appeal, finding no errors in the trial judge's reasoning or the fitness of the sentence.

The appellant, Trevor Letlow, appealed his convictions for aggravated sexual assault, assault with a weapon, assault causing bodily harm, sexual assault with a weapon, and unlawful confinement, as well as the indeterminate sentence imposed after being designated a dangerous offender.

The Court of Appeal dismissed both the conviction appeal, finding no error in the trial judge's assessment of the complainant's credibility despite a lack of independent corroboration for the sexual assault, and the sentence appeal, upholding the indeterminate sentence.

The court found the trial judge provided cogent reasons for rejecting expert opinion on age attenuation and concluding that no lesser measure could adequately protect the public.

The appellants appealed a compliance order requiring them to remove faulty Kitec plumbing from their condominium unit and allow inspection, along with an order for costs.

The Court of Appeal dismissed the appeal, upholding the lower court's finding that Kitec plumbing constituted a dangerous condition under s. 117 of the Condominium Act, justifying the remedial order.

The court also upheld the full indemnity costs award against the appellants due to their recalcitrance, fixing appeal costs at $4,500.

The Court of Appeal heard a motion to review a single motion judge's order that dismissed requests to expedite an appeal and waive the requirement to file a formal liability order.

The panel upheld the motion judge's decision not to expedite the appeal, finding no error in principle or misapprehension of evidence.

However, the panel varied the order to relieve the moving parties from the obligation of filing a formal liability order to perfect their appeal, noting that the liability order was a final order.

The motion was otherwise dismissed, and costs were fixed to be awarded to the successful party on the appeal.

The appellant, Joanne Sicotte, appealed a motion judge's decision that dismissed her summary judgment motion on a commercial mortgage guarantee and instead granted summary judgment to the respondents.

The Court of Appeal found the motion judge erred by conflating the primary debt with the guarantee obligations and misinterpreting "owing" versus "enforceable" debt.

The appeal was allowed, the lower order set aside, and summary judgment was granted in favour of the appellant against the guarantors.

This appeal concerned a motion judge's order requiring the appellants to pass their accounts as Attorneys for Property.

The appellants argued that the respondent failed to obtain proper leave under s. 42(4)-(6) of the Substitute Decisions Act, 1992, that the test for leave was misapplied, that there was insufficient evidentiary foundation, and that the reasons for the decision were inadequate.

The Court of Appeal dismissed the appeal, finding that the motion judge implicitly granted leave, applied the appropriate test, and provided sufficient reasons for appellate review.

This appeal concerned the procedural fairness requirements when a court, on its own motion, strikes the pleadings of a self-represented Indigenous party for alleged contempt and abuse of process.

The motion judge had found the appellant, an alleged protest leader, in defiance of court orders, struck his pleadings, and granted a permanent injunction with significant costs.

The Court of Appeal found that the motion judge erred by conflating contempt and abuse of process, failing to provide the appellant with adequate procedural safeguards, and denying him a fair opportunity to be heard, especially given his self-represented and Indigenous status.

The appeal was allowed, the orders striking pleadings and granting the permanent injunction were set aside, and the costs award was also set aside.

The appellant, Brenda Elliot, appealed her conviction for fraud over $5,000 and two counts of uttering a forged document, and her three-year sentence.

She argued that her s. 11(b) Charter right to a trial within a reasonable time was breached, and that her sentence was demonstrably unfit, offending the step principle, parity, and proportionality.

The Court of Appeal found no error in the application judge's calculation of trial delay, noting that even if there were errors, the net delay remained below the Jordan presumptive ceiling.

Regarding the sentence, the Court affirmed that the sentencing judge properly considered the step principle, parity, and proportionality, along with aggravating factors such as breach of trust, significant impact on victims (a non-profit agency), and the appellant's extensive criminal record for similar offences.

The Court dismissed the appeal against conviction and, while granting leave to appeal sentence, dismissed the sentence appeal.

The Estate of John Hemlow sought a declaration that Co-operators General Insurance Company had a duty to defend an action against the Estate arising from a workplace accident involving an ammonia leak.

Co-operators denied coverage based on a "Total Pollution Exclusion" clause in Hemlow's Commercial General Liability (CGL) policy.

The application judge found a duty to defend, concluding the exclusion was ambiguous and applied only to environmental pollution.

On appeal, the Court of Appeal for Ontario upheld the duty to defend, finding that the claim against the Estate was for negligence and breach of contract, which falls within the CGL policy's coverage, and the pollution exclusion did not apply as the claim was not for environmental pollution or government-mandated cleanup costs.

Jack Ganz Consulting Ltd. (JGC) appealed a summary judgment dismissing its breach of contract and dependent contractor claims against Recipe Unlimited Corporation (Cara).

JGC alleged Cara breached a 2006 consulting agreement, including a stock option provision, and failed to provide reasonable notice upon termination.

The motion judge found JGC waived an auto-renewal clause, terminating the agreement in 2010, and that no other written agreement replaced it.

The Court of Appeal found the motion judge erred in finding a unilateral waiver for no consideration and that there was a genuine issue for trial regarding the terms governing the parties' relationship after 2008, given the uncertainty in the record and the parties' conduct.

The appeal was allowed, the summary judgment set aside, and the matter remitted for trial.

The appellant, Juan Solorzano Sanclemente, appealed his conviction for sexual assault and the blended sentence imposed.

The appeal raised four grounds: the trial judge's dismissal of an application to introduce evidence of extrinsic and contemporaneous sexual activity of the complainant under s. 276 of the Criminal Code; the failure to instruct the jury on the defence of mistaken belief in communicated consent; the failure to exclude a video recorded interview for a breach of s. 10(b) of the Charter; and an unbalanced jury charge.

The Court of Appeal dismissed all grounds of appeal, upholding both the conviction and sentence.

The court found no error in the trial judge's application of s. 276, the air of reality test for the mistaken belief defence, the Charter s. 10 analysis, or the fairness of the jury charge.

The appellant, Boris Panovski, appealed his convictions for first-degree murder and aggravated assault.

The Court of Appeal found that the trial judge erred in the jury charge, specifically regarding the application of the W.(D.) rule to exculpatory eyewitness testimony, the overall inadequacy and imbalance of the charge, and the admission of certain non-recognition evidence.

The court determined that these errors were not curable by the proviso.

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

The appellant, Salvatore Lamacchia, appealed an eight-year global sentence for two counts of possession of cocaine for the purpose of trafficking and breach of recognizance.

He argued the sentencing judge failed to consider the totality principle and did not give sufficient weight to his community work.

The Court of Appeal dismissed the appeal, finding the sentencing judge was alert to the totality principle and properly balanced aggravating and mitigating factors, including the appellant's community work.

The court reiterated the high standard for appellate intervention in sentencing.

The appellant, an overnight attendant at a group home, was convicted of criminal negligence causing the death of a resident with developmental disabilities who drowned in a bathtub.

The appellant had left the resident unsupervised, contrary to an "eyes-on" protocol.

On appeal, the court found the verdict unreasonable due to insufficient evidence of causation.

The forensic pathologist's opinion on drowning was based on information not fully supported by the record, and he could not eliminate other potential causes like a sudden cardiac event.

The court noted a risk of the jury reasoning backward from the death to infer causation without sufficient evidentiary basis.

The conviction was set aside, and an acquittal was entered.

The appellant, Ali Amiri, brought two appeals from Superior Court decisions concerning certiorari applications related to his criminal trial for threatening his wife.

The first appeal (C70004) challenged the dismissal of his certiorari application to quash a procedural order, which was deemed moot as the trial judge had since decided the underlying issues.

The second appeal (C70051) challenged the granting of certiorari applications by two subpoenaed witnesses (a lawyer and a Legal Aid Ontario employee) to quash their subpoenas, based on solicitor-client privilege and statutory privilege, respectively.

The Court of Appeal summarily dismissed both appeals under s. 685(1) of the Criminal Code, finding them frivolous or vexatious, emphasizing the limited scope of certiorari in criminal proceedings and the lack of merit in the appellant's arguments regarding privilege exceptions.

This is a motion to quash appeals of a non-publication and sealing order.

The Court of Appeal determined that the order was final for the media (Toronto Star) as it finally determined their constitutional rights under s. 2(b) of the Charter, allowing their appeal to proceed as of right.

For the plaintiffs, the order was interlocutory, but the court exercised its discretion under s. 6(2) of the Courts of Justice Act to hear their appeal concurrently due to the interrelation of the issues.

The motion to quash the appeals was dismissed.

The appellant, D.G., appealed his conviction for sexual offences against two foster children, RY and TY, arguing that the trial judge misapprehended evidence regarding collusion among complainants, applied uneven scrutiny to Crown and defence evidence, and failed to adequately consider tainting of evidence by police questions.

The Court of Appeal found that while there were minor misapprehensions of evidence, they were peripheral and did not affect the material assessment of credibility or the similar act evidence.

The court also found no error in the trial judge's credibility assessments or application of the burden of proof, and rejected the argument of uneven scrutiny.

The appeal was dismissed.