ONCA 2021

The applicant brought a motion to re-open his conviction appeal and set aside the abandonment of his sentence appeal, after his appeal had been dismissed on the merits.

He argued that the trial judge erred in finding his statements voluntary, that the appellate court erred in its reasons, and that he received ineffective assistance of counsel.

The Court of Appeal dismissed the motion, finding no real concern of a miscarriage of justice to warrant re-opening the conviction appeal, and concluding that the proposed sentence appeal had no prospect of success.

The appellant sought to set aside an administrative dismissal of her spousal support application, which was initially refused by the motion judge.

The Court of Appeal allowed the appeal, finding that the motion judge erred in principle by treating the factors for setting aside a dismissal as rigid hurdles, misanalyzing prejudice, and failing to properly consider the policy favoring determination on merits.

The Court emphasized that lawyer inadvertence and the ability to restart the claim without limitation period expiry weighed against upholding the dismissal.

The dissenting opinion argued for deference to the motion judge's discretion and emphasized the importance of enforcing Family Law Rules timelines to combat delay.

The appellant appealed his conviction for various drug and firearm offences and his nine-year global sentence.

The conviction appeal challenged the validity of a search warrant under section 8 of the Charter of Rights and Freedoms, arguing that the Information to Obtain (ITO) lacked reasonable and probable grounds, particularly regarding the inclusion of facts from prior withdrawn or stayed charges.

The Court of Appeal upheld the trial judge's finding that the ITO, based on the totality of evidence and corroborative facts, justified the warrant.

The sentence appeal argued the nine-year global sentence was excessive, but the Court found the trial judge's sentencing discretion was reasonable.

Both the conviction and sentence appeals were dismissed.

The appellant, licensed for medical marijuana, was arrested after an officer, ignorant of the relevant regulations, disbelieved his medical card.

A search incident to arrest yielded a handgun and cocaine.

The appellant sought to exclude this evidence under ss. 8 and 9 of the Charter.

The Court of Appeal found that the officer's belief was objectively unreasonable, leading to Charter violations.

However, applying the s. 24(2) Grant analysis, the court determined that despite the institutional and individual police failings, the seriousness of the conduct was at the less serious end of the spectrum.

Given the appellant's reduced expectation of privacy in the vehicle and the high reliability and importance of the evidence (gun and drugs), its admission would not bring the administration of justice into disrepute.

The appeal against conviction was dismissed.

The appellant appealed his sentence of two years less a day for drug trafficking and related offences.

The Court of Appeal found the trial judge erred in principle by treating the appellant's conduct of his defence as an aggravating factor and by failing to consider collateral immigration consequences.

Admitting fresh evidence of the appellant's acceptance into a residential treatment program and considering his severe PTSD from being a child soldier in Sierra Leone, the Court allowed the appeal and substituted a conditional sentence of two years less a day.

The moving parties sought to set aside an order of a single judge of the Court of Appeal that denied them an extension of time to appeal.

The underlying appeal concerned a motion to remove opposing counsel from the record, which had been dismissed.

The Court of Appeal dismissed the motion to set aside, confirming that the underlying order was interlocutory and therefore the Court of Appeal had no jurisdiction to hear the appeal.

The appellant appealed his convictions for attempted murder and other offences arising from a bar shooting, as well as his 17-year global sentence.

He argued the trial judge erred in relying on recognition evidence and rejecting exculpatory testimony, and failed to give sufficient credit for harsh pre-sentence custody conditions during the COVID-19 pandemic.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's assessment of the circumstantial identification evidence or his discretionary application of credit for harsh conditions.

This is a costs endorsement following an appeal.

The appellants argued that their appeal raised novel issues in the public interest, warranting no costs award.

The court rejected this, finding the appeal involved the application of well-established legal principles.

The respondent, GlaxoSmithKline Inc., successfully resisted the appeal and was awarded partial indemnity costs, fixed at $25,000, inclusive of disbursements and taxes, limiting the award to costs associated with time spent by two senior lawyers.

The appellant pleaded guilty to sexual interference and invitation to sexual touching involving a young female relative and was sentenced to seven years' imprisonment.

On appeal, the appellant argued the sentence was excessive and sought a reduction to four to five years.

The Court of Appeal dismissed the appeal against the length of the sentence, finding no error in the sentencing judge's balancing of mitigating and aggravating factors.

However, on joint agreement of the parties, the court amended the ancillary prohibition orders under section 161 of the Criminal Code to accurately reflect the trial judge's original order.

The appellant, Michael Karas, appealed a global sentence of 21 years (net 15 years, 6 months, 10 days) imposed for multiple bank robberies involving an imitation firearm and forcible confinement.

He argued the sentence was disproportionate, a significant increase from prior sentences, and that the sentencing judge failed to consider relevant mitigating factors, including his guilty plea.

The Court of Appeal found no error in the sentencing judge's reasons, affirming the weight given to the guilty plea and emphasizing public protection as the overriding sentencing goal given the appellant's extensive criminal history of armed bank robberies.

The appeal was dismissed.

The appellant, Jevane Fuller, appealed his convictions for multiple break and enters, assault, confinement, and robbery, and his total sentence of 15 years.

The appeal challenged the trial judge's assessment of a key witness's evidence and the admission of similar act evidence, both cross-count and from prior Toronto robberies.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's evidentiary rulings.

Leave to appeal sentence was granted, and the appeal was allowed only to the extent of removing a victim fine surcharge, with the overall 15-year sentence upheld as fit.

This is an application by the appellant to reopen his appeal, which was previously dismissed as abandoned due to his failure to surrender into custody as required by his bail release order.

The appellant had been convicted of drug-related offences, including possession for the purpose of trafficking, and sentenced to seven years' imprisonment.

The Court of Appeal for Ontario denied the application, finding that the appellant's explanation for his failure to surrender was problematic, his grounds of appeal were not strong, the Crown would be prejudiced by the disposal of evidence, and the principle of finality weighed against reopening the appeal.

The respondent purchased a commercial condominium unit with an exclusive use designation for a dental clinic and leased it to the appellant dentist.

Near the end of the lease, the appellant secretly purchased an adjacent unit, moved his practice there, and purported to assign the exclusive use designation to his new unit in perpetuity.

The application judge held that the appellant could only assign the exclusive use right for the duration of his lease term.

The Court of Appeal dismissed the appeal, finding that the application judge correctly applied contractual interpretation principles and the nemo dat principle to conclude that the tenant could not permanently divest the owner of its exclusive use right.

The appellant appealed an order directing insurance proceeds to be paid out of court to the Estate of Walter Ardis.

The appeal raised two main issues: the application judge's refusal to adjourn the insurance proceeds application to be heard concurrently with a related will validity application, and the determination of insurable interest under the insurance contract.

The Court of Appeal found that the application judge erred by proceeding with the insurance proceeds application while the validity of the underlying will was still in dispute, and by failing to properly consider the Estate of Margaret Ardis's potential interest in the insurance proceeds, particularly concerning the timing of her death relative to the fire and her interest in the house's contents.

The appeal was allowed, the order set aside, and the matter remitted for a joint hearing of both applications.

The applicant, Melissa Hart, sought an extension of time to appeal a vexatious litigant order issued against her.

The court dismissed the motion, finding that she did not form a bona fide intention to appeal the vexatious litigant order within the relevant period, there was no merit to the proposed appeal, and the interests of justice did not warrant allowing her to further challenge the dismissal of her support claim through this avenue.

This is a costs endorsement following a successful appeal by the Attorney General of Canada and several First Nations against the Estate of William Albin Herold.

The Court of Appeal had previously allowed the appeals and set aside the lower court orders.

In this endorsement, the court fixed the costs of the proceedings below at $154,530.76, awarded to the appellant First Nations, as the Attorney General of Canada did not seek costs below.

The court also varied its previous appeal costs award, granting the full $43,000 (inclusive of disbursements and taxes) to the appellant First Nations, with no costs awarded to the Attorney General of Canada on appeal, in accordance with a prior agreement between the parties.

The appellant, Myriam Michail, moved to review a case management order that required her motion challenging the constitutionality of s. 136 of the Courts of Justice Act to be treated as a motion for leave to introduce a new issue on appeal and heard concurrently with her appeal, with a 30-day perfection deadline for the appeal.

The Court of Appeal dismissed the review motion, finding no basis to interfere with the motion judge's exercise of discretion.

The court noted that the appellant had other available remedies to obtain access to audio recordings or transcripts of the proceeding below, apart from a constitutional challenge, and had not availed herself of those remedies.

The constitutional challenge was deemed properly dealt with on the appeal itself.

Costs were awarded to the London District Catholic School Board.

The appellant, Dylan Hird, appealed his conviction for various offences related to the trafficking and sexual assault of a 15-year-old complainant.

The appeal focused on two grounds: the trial judge's charge to the jury regarding identification evidence and the handling of the police's failure to conduct a photo line-up.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's instructions on identification, which adequately cautioned the jury on eyewitness testimony frailties and the need to prove the appellant's identity beyond a reasonable doubt.

The court also found no error in the trial judge's management of the photo line-up issue, concluding that the approach taken was fair to both the Crown and the defence.

The appellants (defendants at trial) appealed a trial judgment that found them in breach of contract for failing to sell a car dealership to the respondent (plaintiff at trial) and awarded $5 million in damages in lieu of specific performance.

The Court of Appeal dismissed the appeal, affirming the trial judge's finding that a binding agreement on essential terms had been reached between the parties, despite the absence of a formal written document.

The court also upheld the trial judge's calculation of damages, which reflected the lost opportunity based on the difference between the respondent's offer and a higher third-party offer accepted by the appellants.

The Crown appealed the dismissal of charges under the Occupational Health and Safety Act against an employer and supervisor following a workplace accident.

The lower courts had excluded evidence from the Ministry of Labour's inspection of a roller, finding a breach of the respondents' Charter rights (s. 11(d)) due to the inspectors' failure to halt inspection after a lawyer's letter, poor note-taking, and not following internal policies.

The Court of Appeal found that there is no constitutional right for an accused to direct an investigation or be present during evidence inspection.

It held that inconsistencies in inspector testimony or failure to follow internal guidelines do not amount to a Charter violation.

Crucially, the respondents failed to demonstrate any prejudice to their right to make full answer and defence, especially after disposing of the evidence themselves.

The appeal was allowed, and a new trial ordered.