ONCA 2022

This is an appeal from convictions for firearm offences.

The appellants argued Charter breaches (s. 8, 9, 10(b)) and unreasonable verdicts based on misapprehension of evidence.

The Court of Appeal found no Charter breaches, disagreeing with the trial judge's s. 8 finding.

However, it allowed both conviction appeals, finding that the trial judge's conclusion regarding an "exchange of gunfire" was based on a fundamental misapprehension of evidence, and that the use of cellphone photographs to infer possession was improper due to lack of similarity and risk of propensity reasoning.

Ahmed's convictions were quashed and acquittals entered, while Yusuf's convictions were quashed and a new trial ordered.

The appellant, A.A., appealed his conviction for aggravated assault, arguing that the trial judge did not make a finding that the complainant's life was endangered and that the evidence did not support such a finding.

The conviction stemmed from an incident where A.A. sprinkled ignitable fluid on the complainant's hair while holding a lit torch.

The Court of Appeal dismissed the appeal, holding that the actus reus of aggravated assault, specifically "endangerment of life," was met.

The court found there was a "realistic possibility" that the complainant's hair would ignite, even if the appellant's intent was merely to scare.

The court affirmed that the mens rea for aggravated assault was also established, as the risk of bodily harm from the dangerous conduct was objectively foreseeable.

The appellant, Casey Zizek, appealed the dismissal of a motion to stay proceedings.

The underlying action involved an alleged fraud by the defendants against the respondent school board.

The school board had settled with other defendants via a Mary Carter or Pierringer agreement but failed to immediately disclose this to the appellant.

The Court of Appeal found that the motion judge erred by not applying the principle that immediate disclosure of such agreements is mandatory and that failure to do so constitutes an abuse of process, regardless of prejudice.

The appeal was allowed, and the proceeding was stayed.

This is an appeal from an order granting primary residence of the parties' child to the respondent mother.

The appellant father argued the trial judge erred by not considering the impact of relocation on parenting time, failing to apply mandatory Divorce Act provisions regarding relocation, and presumptively basing the decision on the mother being the primary caregiver.

The Court of Appeal found no reviewable error, affirming that the trial judge properly considered the child's best interests, including the impact of relocation, and that the appellant was not prejudiced by any notice defect.

The appeal was dismissed.

The appellants appealed a summary judgment that required them to pay an additional amount under a collateral mortgage after the principal debt (promissory note) had been paid.

The Court of Appeal found that the motion judge erred in granting what were, in essence, two separate judgments for the same obligation.

Once the principal debt was paid, the collateral security was spent, and the respondent had no right to claim further under the mortgage.

The appeal was allowed in part, ordering the respondent to repay the additional amount and setting aside the judgment against one of the appellants.

This appeal concerned the correct approach to defamation and civil conspiracy pleadings in the context of a motion to strike.

The Divisional Court had struck out the defendant's counterclaim, finding it lacked particularity.

The Court of Appeal allowed the appeal, holding that the Divisional Court misapplied the modern, flexible approach to pleadings and failed to read the pleadings generously.

The Court of Appeal reinstated the motion judge's decision, which had dismissed the motion to strike, emphasizing the high bar for striking pleadings and the deference owed to motion judges.

The Court of Appeal for Ontario heard a motion to quash a motion for leave to appeal.

The underlying dispute arose from a commercial arbitration where the arbitrator made a preliminary ruling on jurisdiction over a counterclaim.

The Superior Court reversed this ruling.

The Court of Appeal granted the motion to quash, holding that under section 17(9) of the Arbitration Act, 1991, there is no right of appeal from a court's decision reviewing an arbitrator's preliminary jurisdictional ruling, distinguishing it from an appeal of an award.

The appellant, O’Dean McFarlane, appealed a disposition of the Ontario Review Board (ORB) that transferred him from St. Joseph’s Healthcare Hamilton to a higher security forensic facility at Waypoint Centre for Mental Health Care.

The appeal was based on two grounds: the Board's refusal to grant an adjournment of an early review hearing, which the appellant argued denied him a fair hearing, and the Board's alleged failure to discharge its inquisitorial duty to investigate concerns of unconscious racial bias influencing hospital staff's perception of him.

The Court of Appeal dismissed the appeal, finding no error in the Board's discretionary decision regarding the adjournment, as the issues were intertwined and no prejudice was demonstrated.

The court also held that the Board's inquisitorial duty was not triggered regarding racial bias, as there was no realistic possibility that further inquiry would have altered the decision, which was firmly rooted in objective evidence of the appellant's conduct.

The appellant was convicted of criminal harassment, assault, mischief, extortion, sexual assault, forcible confinement, and breach of probation.

He appealed, arguing that the trial judge misapprehended evidence concerning post-offence emails and the testimony of a defence witness, which he claimed undermined trial fairness.

The Court of Appeal dismissed the appeal, finding no misapprehension of evidence regarding the emails (as the overlooked email was not part of the evidentiary record) and no trial unfairness.

The court also found no misapprehension of the defence witness's evidence, as the trial judge's reasons reconciled it with the complainant's testimony.

The conviction appeal was dismissed, and leave to appeal sentence was not granted.

This appeal concerned the dismissal of a motion to set aside a default judgment against the appellant, Fida Kasi, related to a breached agreement for the purchase and sale of a residential property.

The appellant argued that the respondent, LIV Communities, was not the correct contracting party or property owner and thus could not have sustained damages.

The Court of Appeal dismissed the appeal, finding no reversible error in the motion judge's decision that LIV Communities and Landmart Homes were the same entity and that the appellant understood they were dealing with LIV Communities.

This appeal addresses whether an Ontario court should recognize and enforce a "ricochet judgment" – a British Columbia judgment that itself recognized and enforced a foreign judgment from the Judicial Committee of the Privy Council.

The appellant, H.M.B. Holdings Limited, sought to enforce a Privy Council judgment (compensation for expropriated property in Antigua and Barbuda) in British Columbia, obtaining a default judgment.

After an unsuccessful attempt to register this BC judgment in Ontario under the Reciprocal Enforcement of Judgments Act, H.M.B. commenced a common law action in Ontario to recognize and enforce the BC judgment.

The motion judge dismissed the action, finding no real and substantial connection between British Columbia and the underlying Antiguan dispute.

The Court of Appeal upheld the dismissal, but on the principled basis that the common-law test for recognition and enforcement of foreign judgments does not extend to ricochet judgments, as such judgments are local in scope and enforcing them in another jurisdiction would improperly circumvent local laws, such as limitation periods.

The Court of Appeal issued a costs endorsement following its decision to partially allow an appeal and award damages to the appellant.

The appellant sought trial costs of $750,000 and prejudgment interest of over $2.3 million, compounded annually.

The respondent conceded entitlement to trial costs but argued for a lower amount due to the appellant's limited success and for a reduction in prejudgment interest due to an 18-year delay in prosecuting the claim, also opposing compounding.

The Court fixed trial costs at $475,000 and prejudgment interest at $600,000, denying compound interest and reducing the amount due to the unexplained and unreasonable delay.

The appellant appealed his conviction, primarily challenging the lawfulness of a strip search conducted in the presence of a female officer, arguing it violated his Charter rights.

The Court of Appeal upheld the trial judge's finding that exigent circumstances justified the female officer's continued involvement during the appellant's violent resistance, and that the evidence obtained from the search was admissible.

The appeal was dismissed.

The respondent sought costs of an appeal that was dismissed.

The court noted a presumption in r. 24(1) that the successful party is entitled to costs.

However, due to delays caused by both parties' behaviour, the court concluded that neither party was successful in the context of the appeal's outcome and underlying issues.

Consequently, the court declined to award costs to either party.

The municipality appealed a judgment finding it liable for negligence in granting a building permit and conducting inspections of the Breens' cottage, which resulted in significant structural and code deficiencies.

The Court of Appeal upheld the trial judge's findings on duty of care and causation, affirming that the municipality owed a duty to inspect even without a builder's request and was liable for major deficiencies (crawl space, roof ventilation, structural issues) due to its unreasonable conduct.

However, the Court found the trial judge applied an excessively strict standard of care regarding minor deficiencies (stair headroom, insulation gaps), reducing the damages awarded.

The appellant appealed his indeterminate sentence following a dangerous offender designation.

He had pleaded guilty to sexual assault with a weapon, unlawful confinement, choking, and uttering threats.

The appellant argued the sentencing judge erred by focusing on whether his addictions could be cured rather than managed, and by failing to adequately consider a long-term supervision order.

The Court of Appeal dismissed the appeal, finding the sentencing judge properly considered the appellant's intractable substance abuse, which was directly linked to his violent offending, and reasonably concluded his risk could not be safely managed in the community.

The appellant appealed a trial judge's decision, arguing that his responsibilities had changed following the hiring of a new senior employee, which he contended amounted to a constructive dismissal.

The Court of Appeal dismissed the appeal, finding that the appellant's argument directly contradicted the trial judge's factual findings.

The trial judge had expressly found that the appellant maintained his role as general manager, that there was no change in the company's hierarchy, and no evidence of a change in his remuneration or bonus package.

The appellate court concluded that the trial judge made no legal error and that her well-supported factual findings were fatal to the appellant's position.

The appellant, L.T., appealed a sentence, specifically challenging the imposition of a s. 161 order under the Criminal Code.

The Court of Appeal for Ontario dismissed the appeal, affirming the sentencing judge's discretionary decision.

The court emphasized that s. 161 orders are entitled to substantial deference on appeal and do not require the underlying offence to have been committed in prescribed circumstances.

The absence of an objection to the order at the time of sentencing was also noted as relevant to its fitness.

The appellant, J.G., appealed verdicts of not criminally responsible (NCR) on account of mental disorder, entered in 2005 when he was 16.

The appeal, consented to by the Crown, was based on fresh evidence indicating the appellant, who has significant intellectual disabilities, did not understand the consequences of an NCR verdict at the time.

The Court of Appeal found the process leading to the NCR findings unfair and a miscarriage of justice.

The court allowed the appeal, set aside the NCR verdicts, substituted findings of guilt for the original offences, and imposed a concurrent sentence of one day, with execution stayed.

The Court of Appeal for Ontario heard two appeals concerning a priority dispute over accelerated interest in closed mortgages and a costs order in a receivership.

The primary issue was whether the first mortgagee, First National Financial GP Corporation (FN), was entitled to future, unearned, accelerated interest upon the early discharge of its closed mortgages due to the mortgagors' default and court-ordered sale.

The court found that the trial judge erred by failing to conduct a full contractual analysis of the mortgage provisions and by relying on a standalone common law entitlement to accelerated interest.

The Court of Appeal held that the mortgage terms explicitly provided for FN's entitlements upon default, which did not include accelerated interest.

The appeal regarding accelerated interest was allowed.

The appeal concerning the receiver's costs was dismissed, as the trial judge's discretion was properly exercised.