ONCA 2022

This is a costs endorsement following the dismissal of an appeal.

The respondents, who won the appeal, claimed over $157,000 in costs.

The appellants, who lost the appeal, proposed $25,000.

The court found the respondents' costs submissions inadequate, lacking sufficient explanation for the hours claimed and indicating potential over-preparation.

The court ultimately awarded $25,000 in costs, finding the appellants' offer to settle on costs to be the best evidence of a reasonable, fair, and proportionate amount in the circumstances.

This is an appeal from a summary judgment concerning the interpretation of a Share Purchase Agreement (SPA) and related employment agreements.

The dispute arose after the appellants (purchasers of a business) furloughed one of the respondents (sellers/employees) due to the COVID-19 pandemic, which the respondents asserted was a constructive dismissal.

The SPA included an "Accelerated Provision" for a capital payment if an employee was terminated without cause, and an "Unprofitable Quarter Provision" allowing termination for cause without penalty.

The motion judge found constructive dismissal without cause, triggering the Accelerated Provision.

The Court of Appeal dismissed the appeal, upholding the motion judge's interpretation that the appellants had not exercised their option to terminate for cause under the Unprofitable Quarter Provision, and that their actions constituted a termination without cause, thereby triggering the payment.

The court emphasized deference to the motion judge's contractual interpretation and rejected arguments of commercial absurdity.

The respondent, Teresa Di Nunzio, brought a motion before the Court of Appeal for Ontario seeking an order for security for costs against the appellant, Lucia Di Nunzio, for both the appeal and the underlying application.

Teresa relied on Rule 61.06(1)(a) and (c) of the Rules of Civil Procedure, arguing the appeal was frivolous and vexatious and Lucia had insufficient assets, or alternatively, that a novel "lack of mutuality of remedy" constituted "other good reason." The court found that while Lucia lacked sufficient assets, the appeal was not frivolous or vexatious.

The court also rejected the novel "lack of mutuality" argument, stating it was essentially a disparity in financial resources and accepting it would unduly broaden the scope of the rule.

The motion was dismissed.

The Crown appealed the acquittal of the respondent for second-degree murder, where the trial judge found the respondent acted in self-defence.

The Crown argued the trial judge erred in law by failing to consider the whole of the evidence, making an unsupported factual finding, failing to undertake a contextualized reasonableness inquiry, and not considering the risk to third parties.

The Court of Appeal dismissed the appeal, finding no overriding error in the trial judge's holistic consideration of evidence and self-defence factors, despite acknowledging a minor factual error that did not materially impact the verdict.

The court reiterated that appellate courts cannot reweigh evidence or hear appeals from unreasonable acquittals.

This is an appeal from a Superior Court of Justice order granting certiorari, which overturned a preliminary inquiry judge's decision to discharge the appellant on charges of impaired operation and dangerous operation of a conveyance causing bodily harm, and instead committed the appellant for trial.

The Court of Appeal affirmed the reviewing judge's finding that the preliminary inquiry judge committed jurisdictional errors in discharging the appellant and upheld the decision to commit the appellant for trial.

The appeal was dismissed.

The appellant was convicted of aggravated sexual assault in 2013 for non-disclosure of her HIV-positive status during condomless vaginal intercourse, which the trial judge found vitiated consent due to a realistic possibility of transmission.

On appeal, fresh expert evidence was admitted, demonstrating that with antiretroviral treatment (ART) and an undetectable viral load, the risk of HIV transmission is effectively zero.

The Court of Appeal found that this new scientific understanding undermined the trial judge's conclusion regarding the realistic possibility of transmission in the appellant's specific circumstances.

Consequently, the appeal was allowed, the conviction was set aside, and an acquittal was entered.

The court declined to make a broader statement on the "realistic possibility of transmission" threshold beyond the specific facts of the case, citing institutional concerns and limitations of the fresh evidence record regarding multiple sexual contacts or viral loads that are suppressed but not undetectable.

The appellants, former portfolio managers, appealed a trial decision dismissing their claim for over $1.3 million in performance fees and a discretionary bonus from their former employer.

The Court of Appeal upheld the trial judge's finding that the appellants were not contractually entitled to performance fees directly from the respondent, as their entitlement was structured through a side agreement with a lead portfolio manager.

However, the Court found the trial judge erred in precluding the appellants from arguing their entitlement to a discretionary bonus, as this claim was sufficiently pleaded.

The Court awarded each appellant $115,000 for the discretionary bonus, determining that the employer's discretion in awarding bonuses was not exercised fairly and reasonably given the fund's exceptional performance and bonuses paid to similarly situated employees.

The appellant, William James Epp, appealed his conviction and sentence for sexual assault.

The Court of Appeal dismissed the conviction appeal, finding that the trial judge's conclusion of penetration was reasonable given the overwhelming evidence and the appellant's failure to testify.

The court also dismissed the sentence appeal, finding no error in the seven-year imprisonment sentence, considering aggravating factors such as the victim's age, the appellant's age and prior record, and the harm caused.

This appeal concerned a motion judge's refusal to set aside a default judgment against the appellant, Amandeep Kaur, because she was six days late in paying a costs order, which was a condition for setting aside the judgment.

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

The court also dismissed a fresh evidence motion brought by the appellant, concluding it would not have affected the outcome.

The motion judge's decision to not vary the order at the settlement appointment was upheld, as such appointments are for correcting technical errors or avoiding a miscarriage of justice, neither of which was found to be present.

The appellant, Alain Joseph Boily, appealed a driving prohibition imposed following his guilty plea to criminal negligence causing death.

The central issue was whether the sentencing judge had jurisdiction to impose a driving prohibition under the amended s. 320.24(4) of the Criminal Code, which no longer explicitly lists criminal negligence causing death as an offence attracting such a prohibition.

The Court of Appeal found that despite the apparent legislative oversight and the resulting absurdity (where a less serious offence would attract a prohibition but a more serious one would not), the plain language of the statute did not grant the power to impose the prohibition.

The court emphasized that correcting such a legislative gap falls to Parliament, not the judiciary.

The appeal was allowed, and the driving prohibition was set aside.

The appellants appealed a trial judgment that awarded damages and other relief to the respondents in a land development dispute.

The Court of Appeal found that the trial judge's reasons lacked sufficient analysis for various causes of action, including fiduciary duty, civil conspiracy, and duty of honest performance.

The appellate court also identified factual findings that were not supported by the evidence, particularly concerning drainage responsibilities.

Furthermore, the Court of Appeal noted problematic judicial conduct during the trial, including an ill-advised bifurcation of the trial and comments that suggested a lack of impartiality.

The appeal was allowed, the judgment below was set aside, and a new trial was ordered.

This decision addresses a request to coordinate two appeals arising from a single lower court decision that dismissed defamation actions under anti-SLAPP legislation.

The appellants sought separate hearings, while the respondents requested the appeals be heard together.

The appeal management judge ordered the appeals to be heard concurrently, emphasizing judicial economy and efficiency, and finding no principled reason to hear them separately despite the appellants' arguments regarding factual and legal dissimilarities between the two cases.

The appellant was convicted of first-degree murder, deemed so under s. 231(6) of the Criminal Code due to the murder occurring while committing criminal harassment.

The appellant appealed on four grounds: errors in jury instructions regarding post-offence conduct, improper admission and use of prior misconduct evidence, improper admission and use of ante mortem statements of the deceased, and insufficient evidence/inadequate jury instruction on the criminal harassment route to first-degree murder.

The Court of Appeal dismissed the appeal, finding no reviewable errors in the trial judge's instructions or evidentiary rulings, and concluding there was ample evidence to support the conviction.

SPay Inc. sought leave to appeal a motion judge's decision not to stay a receiver's motion for judgment in favour of international arbitration.

The motion judge had ruled that the arbitration provisions were inoperative due to Ontario's "single proceeding model" in insolvency cases, finding SPay was not a "stranger to the bankruptcy" because its proposed set-off against Mundo Media Ltd.'s largest account receivable effectively made it a creditor.

The Court of Appeal dismissed the motion for leave to appeal, concluding that the proposed appeal lacked prima facie merit and did not raise issues of general importance.

The court affirmed that insolvency courts have broad discretion to centralize proceedings, and that a party asserting a significant set-off is not a stranger to the insolvency, thus falling under the single proceeding model.

The appellant appealed the dismissal of her oppression application and the granting of summary judgment to enforce a condominium lien.

The appeal concerned whether a special assessment for repairs was remedial work under s. 97(1) of the Condominium Act, thereby not requiring a member vote, and whether the condominium's conduct constituted oppression.

The Court of Appeal found no error in the motion judge's determination that the work was remedial, upheld the oppression analysis, and affirmed the summary judgment, concluding there was no genuine issue requiring a trial.

The appellants sought to appeal an interlocutory order dismissing their motion to remove a litigation guardian.

The Court of Appeal determined it lacked jurisdiction as the order was interlocutory, not final, and quashed the appeal.

The panel then reconstituted as the Divisional Court and denied leave to appeal, finding no confusion in the relevant rule (r. 7.06(2)) and no general importance warranting leave.

The father sought a stay of a trial judge's decision that permitted the mother to relocate their child from Ottawa to Richmond Hill, Ontario.

The Court of Appeal dismissed the motion for a stay, finding that the trial judge's comprehensive reasons and determination of the child's best interests were owed considerable deference.

The court concluded that the father was unlikely to succeed on appeal and that no irreparable harm would result from the child living with the mother pending the appeal.

The appellant, Peter Sagos, appealed his convictions for criminal harassment and extortion, alleging ineffective assistance of trial counsel.

The charges arose from harassing and threatening emails sent to his former lawyer.

The Court of Appeal dismissed the appeal, finding that the appellant failed to establish the factual basis for his ineffective assistance claims, largely due to the absence of an affidavit from himself or trial counsel.

The court affirmed that trial counsel is a compellable witness in such motions and that the defence strategy pursued at trial was reasonable given the circumstances.

This is an appeal from a judgment granting partial summary judgment and dismissing a counterclaim.

The appellants argued the motion judge erred in hearing the partial summary judgment motion, in granting the judgment, in awarding duplicative compensation, and in appreciating fraudulent concealment.

The Court of Appeal dismissed the appeal, finding no palpable or overriding errors in the motion judge's decision to hear the partial summary judgment, her findings of fact, or her awards of punitive damages and full indemnity costs, which were distinct from the denial of a success fee.

The claim regarding fraudulent concealment was also dismissed for lack of specificity.

The Crown appealed the acquittal of the respondent on a sexual assault charge.

The trial judge had found that the young woman was not proven to be unconscious or incapable of consent due to drug impairment.

The Court of Appeal found that the trial judge erred in making a factual finding unsupported by evidence and in failing to consider all evidence regarding the victim's capacity to consent.

The appeal was allowed, the acquittal set aside, and a new trial ordered, as the trial judge had not made findings on the respondent's mens rea.