ONCA 2021

The appellant, Feisal Noor, sought release pending appeal of his convictions for gun-related charges.

The Crown opposed, arguing the appeal grounds were frivolous and detention was necessary in the public interest.

The court found the appeal was not frivolous, citing recent Supreme Court jurisprudence on Charter ss. 8 and 9 issues related to police detentions and gun seizures.

Balancing enforceability and reviewability interests, and considering the appellant's compliance with prior release terms and family sureties, the court granted bail pending appeal, with a strict condition for expeditious perfection of the appeal.

In a CCAA proceeding, the Monitor sought leave to appeal an order dismissing its motion for a declaration that funds swept into a UK bank account were subject to a statutory trust under the Construction Lien Act.

The CCAA judge had found the funds were irreconcilably commingled and could not be traced.

The Court of Appeal refused to admit fresh evidence and denied leave to appeal, finding the proposed appeal was not prima facie meritorious and the decision was fact-specific and consistent with established jurisprudence regarding tracing.

The appellant, Mr. Krebs, appealed a motion judge's decision that a cohabitation agreement with the respondent, Ms. Cote, was of no force and effect.

The motion judge erred by applying the common law rule that reconciliation terminates a separation agreement to a cohabitation agreement, by misinterpreting the parties' intentions, and by concluding that a $5,000 payment exhausted the agreement's terms.

The Court of Appeal held that the common law rule for separation agreements does not extend to cohabitation agreements, as the latter contemplates cohabitation.

Interpreting the agreement holistically, the Court found it was intended to be long-lasting and apply despite separations and reconciliations.

The $5,000 payment was not a triggering event that exhausted the entire agreement.

The parties agreed not to seek any costs of the appeal motions or the appeals.

The Court of Appeal issued an endorsement reflecting this agreement, with no costs awarded.

The appellant father appealed a parenting order, seeking sole decision-making responsibility and exclusive residence for the children due to alleged parental alienation by the respondent mother.

The trial judge had previously found alienation but declined to reverse custody due to intervening circumstances (father's new child, pandemic, children's immediate mental health).

The Court of Appeal admitted fresh evidence from a psychologist but dismissed the appeal, finding no error in the lower court's holistic assessment of the children's best interests, which prioritized their immediate mental health and stability over a disruptive custody reversal, especially given the new family dynamics and pandemic stressors.

The court ordered a brief review hearing in one year to ensure compliance with therapy orders.

The appellants, Erica Leslie and Grip Fast Strategies Corp., appealed a lower court order dismissing their action against Stavros Daskos and an order for security for costs.

The respondents, Encanto Potash Trading Corporation, Encanto Potash Corp., and Stavros Daskos, cross-appealed the refusal to grant summary judgment dismissing the claim against Encanto Potash Corp. The Court of Appeal dismissed the appeal against Mr. Daskos, finding no genuine issue for trial regarding his personal liability or guarantee.

The interlocutory appeals (security for costs and the cross-appeal regarding summary judgment against Encanto) were quashed as they were not integral to the final order appeal, and thus the court declined to exercise its jurisdiction under s. 6(2) of the Courts of Justice Act.

This is an appeal from a summary judgment awarding damages for the appellants' failure to close a residential real estate transaction.

The appellants challenged the damages amount, arguing failure to mitigate and issues with expert evidence.

The respondent cross-appealed the prejudgment and postjudgment interest rates.

The Court of Appeal dismissed both the appeal, finding the appellants failed to discharge their onus on mitigation, and the cross-appeal, affirming the motion judge's discretion to depart from the contractual interest rate due to special circumstances (respondent's delay in marketing the property).

The appellant mother appealed from contempt findings and sanctions for breaching a parenting order.

The Court of Appeal upheld the motion judge's finding that the mother intentionally breached the order in four respects.

However, the Court found that the motion judge erred by failing to consider discretionary factors, specifically whether a contempt finding was a remedy of last resort and alternative enforcement options, despite properly considering the child's best interests.

The appeal was allowed, setting aside the contempt findings and sanctions, replacing them with declarations that the mother intentionally breached the parenting order.

No costs were awarded.

Michele Fiorilli appealed his convictions for four counts of fraud related to two series of real estate transactions, arguing ineffective assistance of trial counsel.

The transactions involved fraudulently obtained mortgage funds from the Royal Bank of Canada (RBC), with losses ultimately borne by the Canada Mortgage and Housing Corporation (CMHC).

The appellant alleged counsel prevented him from testifying, lost crucial evidence, failed to raise a defence theory, failed to pursue disclosure, and incompetently discredited witnesses.

The Court of Appeal dismissed the appeal, finding that the appellant failed to establish the factual, performance, or prejudice components of the ineffective assistance of counsel test.

The appellant, D.R., sought release pending appeal from convictions for three counts of sexual assault, uttering a death threat, assault, and assault with a weapon.

The primary grounds of appeal concerned the trial judge's assessment of the credibility of the appellant and the complainant.

The court reviewed the trial judge's detailed reasons for rejecting the appellant's credibility and accepting the complainant's, finding that the trial judge had engaged in specific analysis of the sexual assault counts and properly considered the complainant's continued relationship with the appellant.

The court concluded that the appellant's credibility-based grounds of appeal did not meet the "not frivolous" threshold required for release pending appeal.

The appellants sought to overturn a jury verdict finding them negligent for a fatal fire and challenging the quantum of damages awarded for loss of care, guidance, companionship, mental distress, and future costs of care.

The Court of Appeal dismissed the appeal, upholding the jury's findings of negligence based on fire safety violations and affirming the damages awards, finding they did not "shock the conscience of the court" despite being high.

The court also clarified that Section 76 of the Fire Protection and Prevention Act does not immunize landlords from negligence related to fire safety precautions, even if the fire's origin is accidental.

This is a remand from the Supreme Court of Canada to the Ontario Court of Appeal concerning the award of incentive plan-related damages in a wrongful dismissal action.

The Supreme Court remanded the case for disposition in accordance with Matthews v. Ocean Nutrition Canada Ltd. The majority of the Court of Appeal affirmed its original decision, finding that the employee, Mr. Manastersky, was not entitled to additional damages beyond his vested interest in the Mezzanine Carried Interest Plan (CIP) because the plan's terms did not entitle him to annual payments or future investment periods.

The court held that RBC Dominion Securities Inc. had paid Mr. Manastersky all to which he was entitled at common law.

Feldman J.A. dissented, arguing that the trial judge's original decision, which awarded additional damages, correctly applied the legal principles affirmed in Matthews, emphasizing the requirement for "absolutely clear and unambiguous" language to limit an employee's common law right to compensation.

This is a costs endorsement from the Court of Appeal for Ontario.

Following an appeal, the court ordered the appellant to pay $17,500 in costs to the respondent.

The court also provided a general observation, encouraging counsel to attempt to agree on costs before the hearing to avoid unnecessary delay and additional expenses.

This is a costs endorsement following an appeal where the respondent Receiver, representing Hillmount Capital Inc., was successful.

The Court of Appeal for Ontario ordered the appellants, Celine and Richard Pizale, to pay the Receiver partial indemnity costs, fixed at $3,000, inclusive of disbursements and applicable taxes.

The appellant, Joshua Barreira, appealed his 15-year sentence for manslaughter, which had been reduced to a net 4.5 years after pre-sentence custody credit.

He raised four grounds of appeal: the sentence falling outside the appropriate range, the sentencing judge's failure to assume he did not know his accomplice had a gun, insufficient "Duncan credit" for harsh pre-sentence custody conditions, and an omission of pre-sentence credit for time served between sentencing submissions and the imposition of sentence.

The Court of Appeal granted leave to appeal and allowed the appeal in part, accepting the fourth ground as conceded by the Crown.

The court rejected the other grounds, affirming that the sentence was not demonstrably unfit, that mitigating facts must be established on a balance of probabilities, and that the "Duncan credit" was within the sentencing judge's discretion.

The sentence was adjusted to reflect the additional pre-sentence credit.

The appellant appealed his conviction for sexual interference and sexual assault of his stepdaughter, alleging errors by the trial judge regarding the admission of post-incident evidence, the Crown's closing submission, and the exclusion of photographs under s. 8 of the Charter.

The Court of Appeal found no merit in any of the grounds, upholding the trial judge's decisions on the high probative value of the post-incident evidence, the acceptable latitude of the Crown's closing given no objection, and the s. 8 ruling that the daughter was an independent actor.

The appeal was dismissed.

The appellant, Phyllis Johnson, appealed a motion judge's order granting summary judgment and dismissing her dental malpractice action.

The appellant sought to adduce fresh expert evidence on appeal.

The Court of Appeal admitted the fresh evidence, finding that it satisfied the Palmer test.

The court concluded that with this new evidence, the motion judge would have adjourned the summary judgment motion to allow the appellant to cure deficiencies in the expert report.

The appeal was allowed, and the dismissal of the action was set aside.

This is a costs endorsement following an appeal decision.

The parties reached an agreement on costs, whereby the respondent, William O’Reilly, was ordered to pay $10,000 to the appellant, Tornado Medical Systems Inc., covering costs for both the appeal and the motion below.

No costs were payable by Dr. Jae Kim.

Zachary Barton was convicted by a jury of firearms-related offences.

Police found a semi-automatic handgun during a warrantless search in a common hallway planter, and later ammunition and a bullet-proof vest during a warranted search of his apartment.

The appellant argued that the trial judge erred in concluding the handgun was not obtained in a manner that infringed his Charter rights.

The Court of Appeal agreed, finding the handgun was unconstitutionally obtained due to its causal, contextual, and temporal links to the unlawful police conduct.

As the trial judge had not fully determined the validity of the search warrant after excising the unconstitutionally obtained evidence, the Court of Appeal set aside the convictions and ordered a new trial on all charges.

The appellant father, a self-represented family law lawyer, brought a motion to extend the time for perfecting his appeal concerning child support arrears, inter-party debt, and parenting time.

The respondent mother opposed the motion.

The court dismissed the motion, finding the appellant's delay inordinate and inadequately explained, his litigation conduct indicative of delay tactics, and the merits of his appeal very weak.

The court also ordered the appellant to pay costs to the respondent.