ONCA 2021

The appellant appealed convictions for human trafficking, procuring, and receiving a material benefit from a person under 18, arguing errors in the trial judge's jury charge.

The Court of Appeal for Ontario dismissed the appeal, finding the jury charge was fair and legally sound.

Specifically, the court held that the trial judge correctly instructed the jury on the "purpose" element of human trafficking, the two modes of committing the procuring offence (despite the indictment only specifying one mode, the charge as a whole adequately covered the mens rea for both), and the application of circumstantial evidence for the material benefit charge, consistent with *R. v. Villaroman*.

The appellant, Andrew Burnett, appealed his conviction for second-degree murder on two grounds: procedural error due to email discussions about jury instructions in his absence (violating s. 650(1) Criminal Code) and a breach of his s. 10(b) Charter right to counsel.

The Court of Appeal found that while procedural errors occurred regarding the email discussions, they did not cause prejudice to the appellant.

The court also upheld the trial judge's finding that there was no breach of the implementational component of s. 10(b) Charter right, as the appellant's desire for counsel was ambivalent and he prioritized understanding the case against him.

The appeal was dismissed.

The appellant appealed his conviction for robbery and a three-year sentence.

The appeal challenged the reasonableness of identity evidence, the admissibility of rebuttal evidence, and the rejection of alibi evidence.

The Court of Appeal dismissed the conviction appeal, finding the identity evidence sufficient and the rebuttal evidence properly admitted.

However, the court found the trial judge erred in principle by over-emphasizing denunciation and deterrence for a youthful first offender with strong rehabilitative prospects.

Consequently, the sentence was varied from three years to two years less a day, followed by one year of probation.

A motion to file fresh evidence was dismissed as it merely confirmed existing evidence of rehabilitative prospects.

The appellant was convicted of assault causing bodily harm after a jury trial.

The complainant, who was in a long-term relationship with the appellant, recanted her initial allegations at the preliminary hearing and trial.

The appeal raised three grounds: the trial judge's failure to instruct the jury on prior consistent statements, the admission of prior disreputable conduct evidence, and the admission of the complainant's police statement for the truth of its contents.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's instructions or evidentiary rulings, particularly regarding the principled exception to hearsay and the use of prior bad acts to understand the relationship.

The Court of Appeal dismissed appeals by two groups of appellants (Varma/Madra and Palihapitiya) and allowed a cross-appeal by the respondents.

The case involved corporate malfeasance, breach of fiduciary duty, breach of contract, knowing assistance, and conspiracy related to the establishment of a competing fund (Annex Fund) and the undervalued sale of a technology company (Xtreme Labs), including the concealment of an equity interest in Hatch Labs (Tinder).

The trial judge's findings of liability for damages and disgorgement were largely upheld, and the disgorgement amount was increased on cross-appeal to serve a stronger deterrent purpose.

The court affirmed that directors of a corporate general partner can owe fiduciary duties directly to a limited partnership.

The appellant appealed an order dismissing his application against the Law Society of Ontario and various individuals.

The motion judge had found the appellant's pleadings to be scandalous, frivolous, vexatious, and an abuse of process due to their rambling, racist, and misogynistic content.

The Court of Appeal, exercising its authority under Rule 2.1 of the Rules of Civil Procedure, dismissed the appeal as frivolous, vexatious, and an abuse of process, finding that the appellant's notice of appeal and factum continued the abusive conduct and raised no arguable grounds.

The appellant, Tesean Alvarez, appealed his convictions for aggravated assault and possession of a weapon dangerous to the public peace, arguing the trial judge erred in jury instructions regarding eyewitness identification reliability, Vetrovec warnings, exculpatory evidence, and cross-racial identification, and that the verdict was unreasonable.

The Court of Appeal found that the trial judge's instructions on eyewitness identification were inadequate, particularly concerning flaws in the police identification process and the distinction between inculpatory and exculpatory evidence.

While other grounds of appeal were dismissed, the court concluded that the jury was not properly equipped to assess the identification evidence, which was central to the Crown's case.

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

The appellant mother appealed a trial judge's order granting the respondent father sole custody/decision-making responsibility for their child and temporarily suspending the mother's contact, following a finding of parental alienation.

The appellant argued the trial judge misapplied the best interests test, failed to consider less drastic options, did not adequately weigh the child's views, and misapprehended evidence.

The Court of Appeal found no merit in these submissions, affirming the trial judge's findings of parental alienation and the drastic change in custody as being in the child's best interests, supported by the evidence.

The appeal was dismissed, and the appellant was ordered to pay appeal costs.

This is an appeal from the dismissal of a summary judgment motion.

The appellant, an insurer, sought to dismiss a long-term disability claim as statute-barred under the Limitations Act, 2002.

The motion judge found the claim was not discovered until the insurer unequivocally denied it.

The Court of Appeal reversed this, holding that a clear and unequivocal denial is not required to trigger the limitation period.

The court found the claim was statute-barred as the plaintiff ought to have known of the loss and the appropriateness of litigation much earlier, specifically when benefits were due, or when the insurer closed the file, or when lawyers received notice of the closure.

The appeal was allowed, and the action dismissed.

The appellant, L.C., appealed his conviction for sexual interference and sexual assault, seeking a new trial based on proposed fresh evidence.

The fresh evidence, consisting of two affidavits from the appellant's sister, aimed to challenge the credibility of one of the complainants by suggesting prior discussions (collusion) among the complainants.

The Court of Appeal dismissed the appeal, refusing to admit the fresh evidence.

The court found the appellant's sister's evidence lacked credibility due to her bias and inconsistencies, and it was not sufficiently probative to undermine the trial judge's finding that the complainant's testimony was untainted by collusion.

This appeal concerned the application of the rule against perpetuities to land development agreements.

ClubLink Corporation ULC appealed a lower court decision that upheld perpetual obligations to operate a golf course or convey the land to the City of Ottawa.

The Court of Appeal found that the contractual provisions requiring conveyance of the golf course lands to the City, or reconveyance back to the original owner, created contingent interests in land.

As these interests did not vest within the 21-year perpetuity period, they are void and unenforceable.

The court clarified that the expectation of a contingency materializing is not a factor in determining if an interest in land is created.

The appeal was allowed, and the relevant sections of the 1981 Agreement were declared void.

This is a costs endorsement following an appeal where the appellants (defendants) successfully challenged the sanction (judgment in the action) imposed by the motion judge for contempt, due to procedural flaws.

The Court of Appeal upheld the initial costs award for the contempt finding, but set aside the costs for the sanctions hearing and the action, and ordered no costs for the appeal, acknowledging the appellants' underlying contemptuous conduct as the root cause of the proceedings.

The appellants sought to appeal two judgments.

The Court of Appeal found it lacked jurisdiction to hear the appeal of the first judgment (October 2020 Judgment) because a prior appeal of that judgment had been dismissed for delay or abandoned, constituting an impermissible collateral attack.

The court declined to exercise its power to set aside the prior dismissal, emphasizing that proper procedural rules must be followed for such a request.

The appeal concerning the second judgment (February 2021 Judgment) was adjourned and will be rescheduled.

Costs thrown away were awarded to the respondents.

The appellants restructured family trusts, incorporating "Child Corporations" and subscribing for shares without actual payment, leading to a significant tax reassessment by the Canada Revenue Agency (CRA) for taxable benefits.

They sought a declaration from the Superior Court that the shares were invalidly issued under the Ontario Business Corporations Act (OBCA) and an order for rectification of share registers, aiming to negate the tax assessment.

The Superior Court declined jurisdiction, deferring to the Tax Court of Canada, and also indicated it would not have granted the requested relief.

The Court of Appeal upheld the Superior Court's discretionary decision to decline jurisdiction, finding no reviewable error.

The Court emphasized that the primary dispute was between the appellants and the CRA, falling within the Tax Court's specialized expertise, and that the corporate parties did not require a binding order from the Superior Court to resolve internal corporate issues.

The appellant, Marc Leduc, appealed two first-degree murder convictions.

The appeal concerned the trial judge's decision to admit similar act evidence across counts and the jury instructions regarding its use.

The Court of Appeal found that the trial judge correctly applied the "striking similarity" test for admitting similar act evidence to rebut coincidence, which effectively served to prove identity.

The court also upheld the severance ruling, which was based on the likely success of the similar act application.

Finally, the court dismissed the argument regarding jury instructions, noting that defence counsel at trial had specifically objected to the instruction the appellant now sought on appeal, and that the instruction given was adequate.

The appellant appealed a summary judgment dismissing his fraud action as statute-barred.

He alleged the respondents fraudulently stripped him of his shares in a company in January 2017, but did not commence his action until April 2020.

The Court of Appeal upheld the motion judge's findings that the claim was discoverable by February 2017, noting the appellant's former counsel had asserted belief of fraud at that time.

The Court also upheld the motion judge's discretionary refusal to grant an adjournment and dismissed the appellant's application to adduce fresh evidence.

The appellant, R.W. (Brad) Blair, appealed the dismissal of his defamation action against Premier Doug Ford, which was dismissed under an anti-SLAPP motion (s. 137.1 of the Courts of Justice Act).

Ford cross-appealed the costs award.

The Court of Appeal dismissed Blair's appeal, upholding the dismissal of the defamation action, and allowed Ford's cross-appeal in part regarding the timing of costs payment, making the full award immediately payable.

The court also quashed appeals from preliminary interlocutory orders due to lack of jurisdiction.

The appellant appealed his conviction for first-degree murder after shooting his wife in a parking lot.

He argued the verdict was unreasonable, the trial judge misapprehended evidence, made errors of law, and that he was prejudiced by self-representing.

The Court of Appeal dismissed the appeal, finding the verdict was reasonable and supported by ample evidence, including the appellant's own statements and eyewitness testimony.

The court also noted the appellant chose to self-represent and had the assistance of amicus curiae.

The appellant, Nicholas Berto, appealed his conviction for dangerous driving causing bodily harm and failure to remain at the scene of an accident, and sought leave to appeal his 18-month and 6-month consecutive sentences.

The appellant argued the trial judge erred by not leaving the lesser included offence of dangerous driving to the jury, claiming his driving constituted two separate incidents with an intervening act.

He also sought to admit fresh evidence regarding his intellectual disability and mental health for sentencing purposes.

The Court of Appeal dismissed the conviction appeal, finding no air of reality to the intervening act argument as the dangerous driving was one continuous transaction.

The fresh evidence application was dismissed as it was not materially different from evidence already considered.

Leave to appeal sentence was granted, but the sentence appeal was dismissed, as the sentencing judge properly considered all factors and the sentence was fit.

The victim surcharge was set aside in light of R. v. Boudreault.

This appeal addresses the role of "public correction" in secondary market misrepresentation class actions under s. 138.3 of the Securities Act.

The appellant sought leave to pursue a statutory remedy, which the motion judge denied by requiring a discrete and identifiable public correction that explicitly revealed the misrepresentation.

The Court of Appeal, following its own decision in *Barrick OCA*, found that the motion judge applied an unduly onerous standard for public correction.

The Court clarified that public correction does not require "facial symmetry" with the misrepresentation and must be understood in context by the secondary market.

The appeal was allowed, and the leave motion remitted for redetermination.