ONCA 2022

The appellant appealed his conviction for first-degree murder in the strangulation death of his intimate partner.

The Court of Appeal found that the trial judge erred in leaving planned and deliberate murder with the jury, as there was no air of reality to the element of deliberation.

While there was an air of reality to constructive first-degree murder based on unlawful confinement, the Court found that the appellant received ineffective assistance of counsel.

Trial counsel's decision to call a forensic psychiatrist, whose evidence introduced highly prejudicial statements by the appellant about his intent to kill, fell below the standard of reasonableness and resulted in a miscarriage of justice.

The appeal was allowed and a new trial ordered.

The appellant invested $1,000,000 in a medical centre project, with a guarantee agreement promising repayment of $1,200,000.

When repayment was delayed, the appellant sued and brought a motion for summary judgment.

The motion judge dismissed the motion, finding the guarantee was unambiguously limited to the specific assets listed in an appendix, rather than being an unlimited personal guarantee.

The Court of Appeal upheld this interpretation, finding no palpable and overriding error.

The Court amended the formal order to explicitly state the dismissal of the motion but otherwise dismissed the appeal and refused leave to appeal costs.

The appellant appealed an order varying a default judgment to include a declaration that the judgment debt survives his bankruptcy under s. 178(1)(d) of the Bankruptcy and Insolvency Act.

The appellant argued the motion judge erred by admitting fresh evidence and finding the pleadings sufficiently particularized a claim for misappropriation while acting in a fiduciary capacity.

The Court of Appeal dismissed the appeal, holding that fresh evidence is admissible on a Rule 59.06(2) motion to vary, and the pleadings were sufficient to ground the claim.

The Crown appealed an acquittal for voyeurism.

The trial and summary conviction appeal judges excluded evidence (a hidden camera) found in an Airbnb apartment, ruling that the apartment owner (accused) had a reasonable expectation of privacy, and police actions violated his Charter rights.

The Court of Appeal found that the accused, as the apartment owner, did not have a reasonable expectation of privacy in the apartment while it was rented to the complainant.

The complainant was entitled to invite police to investigate a crime committed against him in the apartment.

The hidden camera was properly seized under the Criminal Code.

The Court allowed the appeal, set aside the acquittal, admitted the evidence, and ordered a new trial.

The moving parties brought a motion to quash the appeal on the basis that the order appealed from was interlocutory.

The underlying action involved claims of negligence and invasion of privacy following a human rights complaint.

The appellants had previously moved for summary judgment and to rely on two reports provided by the moving parties to the Human Rights Tribunal of Ontario.

The motion judge refused the request to rely on the reports, finding they were subject to an implied undertaking.

The Court of Appeal held that the motion judge's order did not determine any substantive rights and was therefore interlocutory.

The appeal was quashed, as jurisdiction lies with the Divisional Court with leave.

The appellant appealed his dangerous offender designation and indeterminate sentence following convictions for sexual assault and choking.

He argued the sentencing judge committed a 'Boutilier error' by failing to consider his treatment prospects and intractability at the designation stage, and misapprehended psychiatric evidence regarding his antisocial personality disorder diagnosis.

The Court of Appeal dismissed the appeal, finding that while the judge erred by not considering intractability at the designation stage, there was no reasonable possibility of a different outcome given the judge's findings at the penalty stage that the appellant posed a grave, intractable threat with no reasonable treatment prospects.

The court also found no misapprehension of the psychiatric evidence.

The respondent sought substantial indemnity costs following the dismissal of the appellants' appeal from a summary judgment on mortgage defaults.

The respondent relied on standard charge terms in the mortgages providing for substantial indemnity costs.

The appellants argued the costs were excessive and alleged improper conduct by the respondent.

The Court of Appeal found no basis to depart from the contractual terms and awarded the respondent its claimed costs of $27,289.50.

The court also ordered that the funds previously paid into court as security for costs be paid out to the respondent to satisfy the appeal costs and partially satisfy the unpaid trial costs.

The appellant appealed a trial judgment finding it liable in nuisance and negligence for the migration of chemical contaminants from its property to the respondent's property.

On appeal, the appellant argued the trial judge failed to assess incremental damage caused after the appellant had knowledge of the migration.

The Court of Appeal dismissed the appeal, holding that the appellant could not advance a fundamentally new theory of defence that was neither pleaded nor supported by evidence at trial.

The court also upheld the trial judge's discretionary award of prejudgment interest.

The appellant, a former head of the respondent union, was expelled from membership following an arbitration.

The respondent successfully applied to the Superior Court to enforce the arbitrator's awards.

The appellant attempted to appeal to the Divisional Court, which found the appeal frivolous and vexatious, and then appealed to the Court of Appeal seeking to set aside the awards, lay criminal charges, and claim $1 million in damages.

The Court of Appeal dismissed the proceeding under Rule 2.1.01(1) as frivolous, vexatious, and an abuse of process, noting the appellant sought relief the court could not grant and failed to meaningfully respond to the court's request for submissions.

The appellant, David Wong, representing a class of shareholders, appealed the summary dismissal of a secondary market misrepresentation class action against Pretium Resources Inc. and its former CEO.

The claim alleged that Pretium failed to publicly disclose concerns about its Brucejack mining project's resource estimate and feasibility study, which had been conveyed by Strathcona Mineral Services Ltd. The Court of Appeal upheld the motion judge's decision, finding that Strathcona's concerns were not material facts requiring disclosure because they were unsolicited, inexpert, premature, and unreliable opinions, not undisputed facts.

The court also found no error in the motion judge's alternative finding that the respondents had conducted a reasonable investigation.

The appeal was dismissed.

The appellant was convicted of second-degree murder and sentenced to life imprisonment with 15 years parole ineligibility.

He appealed his conviction, arguing errors in admitting his utterance to police, the Crown's improper firearm demonstration during closing arguments, and confusing jury instructions on motive.

He also appealed his sentence as unfit.

The Court of Appeal dismissed the appeal from conviction, finding no error in the admission of the utterance (appellant was not detained), no unfairness regarding the firearm demonstration, and no confusion in motive instructions.

The Court also dismissed the appeal from sentence, finding it fit and within the appropriate range, considering aggravating factors such as intimate partner violence and breach of trust.

This costs endorsement followed a successful appeal where the appellants were wholly successful on the underlying motion.

The appellants sought costs of approximately $28,800 for the motion.

The court found this amount reasonable, considering the respondent had previously been awarded $34,663.03 on partial success of the same motion.

The court ordered the respondent to pay the appellants $28,800 in all-inclusive costs for the motion.

The appellant landlord appealed a declaration that its termination of a commercial lease was unlawful.

The tenant had failed to pay the first instalment of a security deposit, prompting the landlord to demand the entire deposit and subsequently lock out the tenant before the five-day notice period required by the lease had expired.

The Court of Appeal dismissed the appeal, upholding the application judge's finding that the termination was premature and rejecting the landlord's argument that the missed instalment amounted to a repudiation of the agreement.

The appellants, franchisors of a vape store chain, appealed an application judge's decision ordering them to pay $100,000 to the respondents, former franchisees, pursuant to Minutes of Settlement.

The appellants argued the respondents breached the settlement by continuing to use proprietary store designs and branding.

The Court of Appeal dismissed the appeal, finding no error in the application judge's interpretation of the agreements or his factual finding that the respondents' store design was sufficiently distinct to avoid customer confusion.

The moving party, who was the respondent on a previous appeal, brought a motion under Rules 37.14 and 59.06 of the Rules of Civil Procedure to vary the Court of Appeal's decision and dismiss the appeal.

The moving party argued the court erred by misreading the record regarding the interpretation of a partnership agreement.

The court found Rule 37.14 inapplicable as it pertains to specific procedural errors, and Rule 59.06 (accidental slip or omission) also inapplicable, as the submission was a re-argument of a point already considered and not supported by the trial judge's findings or the agreement's wording.

The motion was dismissed with costs.

The parties separated in 2019.

After two years of the appellant failing to provide financial disclosure despite multiple court orders, his pleadings were struck and the matter proceeded to an uncontested trial.

The trial judge imputed an annual income of $150,000 to the appellant for child support and ordered the matrimonial home transferred to the respondent to satisfy the equalization payment.

The appellant appealed, arguing the process was unfair and the reasons inadequate.

The Court of Appeal dismissed the appeal, finding the uncontested trial was a proper consequence of the appellant's blatant non-disclosure and the trial judge's reasons were sufficient for appellate review.

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

The appellants were ordered to pay the respondents $25,000, all-inclusive, for the costs of the appeal.

The decision follows an appeal from an order of the Superior Court of Justice.

The Court of Appeal for Ontario heard a motion by The Globe and Mail Inc. to quash an appeal brought by John Aquino.

The appeal challenged an order that set aside a sealing order previously obtained by Aquino.

The court applied principles for distinguishing final from interlocutory orders, affirming that an order is interlocutory if it does not determine the substantive rights in dispute.

The court found that the order setting aside the sealing order was interlocutory, as the alleged privacy rights were collateral to the main action (a family dispute over a real estate company, including claims for winding up and shareholder declaration).

The court rejected the argument that the nature of the underlying corporate proceeding changed the interlocutory character of the order.

Consequently, the appeal was quashed for lack of jurisdiction.

This appeal concerned a dispute between a real estate developer (appellant) and a home builder (respondent) arising from an agreement for the sale of land.

The appellant sought interest on the unpaid purchase price, alleging the respondent breached provisions related to commencing construction and failing to close the transaction by a stipulated outside date.

The Court of Appeal upheld the application judge's dismissal of both claims.

The court found no evidence to support the appellant's claim regarding permit availability for construction delays and determined that the appellant's own breach in installing sanitary sewers prevented it from relying on the respondent's alleged delay.

The claim for 12% interest for delayed closing was also rejected due to a lack of proof of damages and the appellant's prior breach.

The appellants, who own most of the bed of Silver Lake, sought a declaration that the lake is non-navigable under the Beds of Navigable Waters Act to prevent other cottage owners from navigating vessels over their portion of the lakebed.

The application judge dismissed the application, applying the definition of 'navigable water' from the federal Canadian Navigable Waters Act (CNWA).

On appeal, the Court of Appeal held that the application judge erred in applying the CNWA definition to a property dispute over lakebed rights.

However, the Court declined to grant the declaration sought by the appellants, noting that the application judge had not resolved the necessary factual issues and that a declaration would not resolve the underlying dispute regarding riparian rights and common law navigability.

The appeal was allowed, and the application was dismissed without prejudice to bringing a fresh application.