ONCA 2022

The appellant, convicted of importing cocaine, sought leave to appeal her sentence of six years and three months.

She argued the trial judge erred by failing to consider collateral consequences related to her children's care by the Catholic Children's Aid Society and the impact of systemic discrimination and racism.

The Court of Appeal granted leave but dismissed the appeal, finding the trial judge adequately considered family circumstances as a mitigating factor and that systemic factors, while relevant to responsibility, do not diminish the gravity of the offence.

The sentence was at the low end of the established range for such offences.

This appeal addresses issues of jurisdiction simpliciter and forum non conveniens in a complex international insurance coverage dispute.

Vale and RSA initiated actions in Ontario seeking coverage for environmental liabilities, primarily in Ontario, after Travelers commenced a similar action in New York.

The motion judge largely found Ontario had jurisdiction and was not forum non conveniens, except for North River.

The Court of Appeal dismissed the insurers' appeals, affirming Ontario's jurisdiction over them, and allowed Vale's appeal, finding Ontario also had jurisdiction over North River.

The court emphasized that a comprehensive general liability insurer underwriting Ontario risks connects itself to Ontario for jurisdictional purposes, and that the "first-to-file" rule does not automatically determine the appropriate forum.

The City of Brockville appealed an application judge's order that set aside three arbitral awards and appointed a new arbitrator.

The Court of Appeal found that the application judge erred by characterizing questions of mixed fact and law as extricable questions of law and by misapplying procedural fairness principles under the Arbitration Act, 1991.

The Court emphasized the narrow basis for setting aside arbitral awards and the caution required in extricating questions of law from contractual interpretation.

The appeal was allowed, reinstating the arbitrator's original awards.

The appellant sought to review a single judge's order declining an extension of time to perfect his appeal.

The underlying appeal concerned a refusal to extend time to appeal an Ontario Court of Justice order dismissing the appellant's application for adult child support under the Family Law Act, based on his failure to pay a 1995 New Brunswick divorce judgment.

The Court of Appeal dismissed the review motion, finding no error in the motion judge's decision regarding the appellant's delay, lack of merit in the appeal, and prejudice to the respondents.

The court affirmed that the motion judge properly considered the relevant factors for extending time to perfect an appeal.

The appellant, Princes Gates GP Inc. (PG), appealed a trial judgment finding it liable for breach of contract and bad faith termination of agreements with the respondent tenant, 2505243 Ontario Limited (250), a food services provider.

The trial judge awarded 250 reliance damages and employee compensation damages.

PG argued errors in findings of improper termination, refusal to assist with the Canada Emergency Commercial Rent Assistance Program (CECRA), bad faith, and damages calculation.

The Court of Appeal dismissed PG's appeal, upholding the trial judge's findings that PG's actions contributed to 250's inability to pay rent, their refusal to assist with CECRA was unjustified, and their termination was in bad faith by misleading 250 while secretly negotiating with a new provider.

The court also affirmed the reliance damages award and the employee compensation damages.

The moving party, Stewart Wilson, sought an extension of time to appeal a May 2021 judgment that ordered him to pay substantial spousal support, an equalization payment, and costs.

This judgment was rendered after an uncontested trial, as Mr. Wilson's pleadings had been struck due to contempt for failing to provide financial disclosure.

Mr. Wilson had also brought a separate motion under Rule 59.06(2) alleging the May 2021 judgment was obtained by fraud, which was dismissed.

The Court of Appeal dismissed the motion for an extension of time, finding that the proposed appeal was from an unopposed order and that the grounds for appeal were duplicative of the already litigated Rule 59.06 motion, which would create a multiplicity of proceedings contrary to the interests of justice.

The appellant, Jemaal Wilson, appealed his convictions for human trafficking, receiving material benefit, making and distributing child pornography, and procuring, as well as his global seven-year sentence.

The Crown conceded an acquittal for the procuring conviction and a conditional stay for one material benefit conviction (Kienapple principle).

The Court of Appeal found the trial judge erred in applying an overly narrow definition of "control" for human trafficking but upheld the conviction by amending the indictment to include "direction or influence," finding no prejudice to the appellant.

The Court dismissed the appeal regarding the fault element of human trafficking and the complainant's credibility.

On sentencing, the Court found the global seven-year sentence fit, despite the trial judge's error in considering a subsequent manslaughter conviction as an aggravating factor, and clarified that pre-sentence custody should apply to all counts.

The appellant, Mounir Nader, appealed the dismissal of his claim for damages related to the early termination of his secondment agreement with Ontario Health and University Health Network (UHN).

He sought payment for the remaining term of the secondment, 12 months' severance, and a discretionary annual performance-based bonus.

The Court of Appeal upheld the motion judge's finding that the secondment agreement was not an employment agreement and that the appellant was only entitled to 12 months' severance under his employment agreement, not additional payment for the secondment term.

However, the Court found the motion judge erred in denying the performance-based bonus, concluding it was an integral part of compensation and should be awarded for the severance period.

This appeal concerned the enforcement of letters rogatory issued by a California court in a divorce action, seeking financial disclosure from Canadian corporations and an individual.

The Ontario application judge granted the request, subject to minor refinements.

The appellants, corporate entities associated with the husband, argued procedural errors (lack of service) and substantive errors (wrong test applied, fishing expedition, burden of proof).

The Court of Appeal dismissed the appeal, affirming that the disclosure was relevant to family law obligations and not a fishing expedition, and that the application judge correctly applied the criteria for enforcing letters rogatory, including principles of comity and public policy.

The court also found that the documents were not otherwise obtainable given the husband's history of non-compliance.

The appellant, S.F., appealed convictions for three counts of assault and one count of sexual assault against his wife, alleging errors in the trial judge's credibility assessment and misapprehension of evidence.

The Court of Appeal upheld the trial judge's findings, affirming that the judge was entitled to accept the complainant's evidence despite initial non-disclosure (attributed to fear of retaliation) and minor inconsistencies.

The court found no material misapprehension of evidence and deferred to the trial judge's careful assessment of the complainant's testimony.

The appeal was dismissed.

The appellant, Mr. Berhe, sought leave to appeal from three orders made by the Summary Conviction Appeal Court Judge (SCACJ) relating to four summary conviction appeals.

Two applications (C63256, M49551) concerned his awareness of immigration consequences when entering guilty pleas, and one (M49552) challenged a conviction for harassing communications.

The Court of Appeal refused leave to appeal for the harassing communications conviction (M49552), finding no error of law in the SCACJ's decision to dismiss the appeal as abandoned and no merit to the proposed grounds, including the interpretation of "person" under s. 372(3) of the Criminal Code.

For the immigration-related appeals (C63256, M49551), leave was granted, but the appeals were dismissed.

The court found that the appellant had sufficient knowledge of the negative immigration implications of his guilty pleas, given his extensive history with the immigration system, and that his claim of subjective prejudice was not supported by objective circumstances, as the Crown's case was overwhelming.

The appellant appealed convictions for two counts of communicating with a person believed to be under 16 for the purpose of facilitating a sexual assault, and one count of making child pornography.

The Court of Appeal upheld the trial judge's findings, confirming that an intention to meet in person is not required for the "purpose of facilitating" a sexual assault under s. 172.1(1)(b) of the Criminal Code, and that the trial judge correctly applied the mens rea standard of knowledge or wilful blindness regarding the complainant's age.

The court also found no error in the "making" child pornography conviction, despite a slip in the sentencing reasons, as the appellant directed the complainant to create new sexual images.

The appeal was dismissed.

This appeal concerns the application of Ontario's anti-SLAPP provision, s. 137.1 of the Courts of Justice Act, in a defamation action arising from negative online reviews posted by a client against contractors.

The motion judge dismissed the action, finding the public interest in the expression outweighed the harm.

The Court of Appeal allowed the appeal, holding that the motion judge erred by unduly focusing on SLAPP hallmarks, failing to adequately consider reputational harm, and not qualitatively assessing the value of the respondent's vitriolic expression.

The Court conducted a fresh analysis, concluding that the significant harm to the appellants' professional reputations outweighed the minimal public interest in the malicious and scurrilous statements, reinstating the defamation action.

The appellant appealed his conviction for sexual assault.

The Court of Appeal found that the trial judge erred by failing to provide a limiting instruction to the jury on the permissible use of extensive evidence of the appellant's prior discreditable conduct, which carried a significant risk of propensity reasoning.

The court also noted that Crown counsel engaged in impermissible oath-helping during the complainant's examination-in-chief and that the handling of a purported "admission" under s. 655 of the Criminal Code was problematic.

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

The applicant, Jordan Ash, brought a motion for directions seeking to compel the registrar to accept a request to admit for filing under Rule 51.02 of the Rules of Civil Procedure, to be used in a pending motion for leave to appeal.

The registrar had refused filing, asserting Rule 51.02 does not apply to motions for leave to appeal.

The court dismissed the applicant's motion, holding that Rule 51.02 is a pre-trial process intended for developing the factual record before a fact-determining hearing, and is not applicable at the appellate stage where the factual record is already settled.

This is a costs endorsement following an appeal where L.M. successfully challenged a costs award against her in a constitutional state funding motion.

The parties were unable to agree on the costs of the appeal.

The Court of Appeal fixed costs at $15,000, inclusive of HST and disbursements, to be paid forthwith by the Children’s Aid Society of the Region of Peel to L.M., emphasizing that the amount reflects a fair and reasonable sum for the unsuccessful party rather than an exact measure of actual costs.

MBM Intellectual Property Law LLP, the successful party in an appeal, sought substantial indemnity costs of over $76,000 or partial indemnity costs of over $51,000 from Kevin Drizen.

The Court of Appeal for Ontario denied substantial indemnity costs, finding MBM's justification focused on lower court conduct and the amount sought was disproportionate to the $50,000 at issue in the underlying dispute and the non-complex appeal issue.

The court fixed costs at $7,500, inclusive of HST and disbursements, payable by Mr. Drizen to MBM.

This motion concerned an application for security for costs on appeal, brought by the respondent (Gauthier Estate) against the appellant (White) pursuant to Rule 61.06 of the Rules of Civil Procedure.

The underlying appeal stemmed from a dispute over a real estate agreement of purchase and sale.

The moving party argued for security based on the appeal being frivolous/vexatious, an unpaid costs order, and low prospects of success coupled with difficulty in collecting costs.

The court found the appeal was not frivolous/vexatious and the paid costs order was insufficient on its own.

However, the court granted the motion, finding a low prospect of success on appeal and compelling evidence that it would be nearly impossible to collect costs from the appellant, citing his illiquid assets and history of non-payment of prior costs and mortgage obligations.

Security for costs was ordered in the amount of $15,000, and the appeal was stayed until payment.

The appellant, Miriam Young, appealed the application judge's interpretation of the residue clause in the last will and testament of Saul Jonas, specifically the meaning of 'in equal shares per stirpes' for the 60% portion of the estate designated for grandchildren and great-grandchildren.

The appellant argued for an interpretation that would benefit the children more, while the Office of the Children's Lawyer (OCL) advocated for an equal division among the grandchildren.

The Court of Appeal applied the 'armchair rule' and upheld the application judge's decision, finding no palpable and overriding error in her assessment of the testator's intention to ensure equal distribution within the beneficiary classes.

The appeal regarding the will's interpretation was dismissed.

The appellant also sought leave to appeal a costs order, which was granted, but that appeal was also dismissed, with a portion of the costs payable personally by the appellant.

The appellant, Kevin Bedard-Morin, appealed his 22-month sentence for receiving material benefits from the commission of an offence under the Criminal Code.

He argued the sentence was excessive, citing an expectation of time served due to pre-sentence custody, the non-violent nature of his offence compared to cited cases, and insufficient credit for harsh COVID-19 conditions during pre-sentence custody.

The Court of Appeal dismissed the appeal, affirming that pre-sentence custody attributed to an unrelated Quebec offence could not be double-counted for the Ontario offence.

The court found the sentencing judge properly considered aggravating factors, including exploitation of three complainants over months, significant material benefit, and the appellant's criminal record, and appropriately weighed mitigating factors like the guilty plea and COVID-19 conditions.