ONCA 2022

The appellant, Casey Matti Henry, appealed his conviction for sexual assault and sought leave to appeal his sentence.

The central issue at trial was consent.

The appeal raised three grounds: (i) the trial judge erred in dismissing an application under s. 276 of the Criminal Code regarding the complainant's prior sexual activity; (ii) there was a reasonable apprehension of bias on the part of the trial judge due to frequent interventions; and (iii) the trial judge erred in assessing the credibility of the complainant.

The Court of Appeal dismissed all grounds of appeal, finding no error in the s. 276 application dismissal, no substantiation of judicial bias, and no basis to interfere with the trial judge's credibility findings.

Leave to appeal sentence was granted but the sentence appeal was also dismissed, as the trial judge's decision was entitled to deference and no errors in principle were found.

The appellant sought to overturn a jury verdict in a motor vehicle accident case, arguing the jury was improperly constituted because it was selected in Brampton for a trial held in Kitchener.

The Court of Appeal dismissed the appeal, finding that the Regional Senior Judge had the authority to make such logistical decisions, which are subject to a presumption of regularity and should not be lightly second-guessed.

The court also found no miscarriage of justice and rejected the appellant's technical argument regarding the jury's constitution.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

The court awarded costs to the respondents in the appeal (IT Haven Inc. and Ryan Hunt), fixed at $25,000, inclusive of disbursements and taxes.

This decision followed an appeal from an order of the Superior Court of Justice.

This appeal addresses a priority dispute between insurers regarding Statutory Accident Benefits (SABS) where the claimant had basic mandatory SABS coverage from one insurer (Chubb) and both basic mandatory and optional enhanced SABS coverage from another (Continental).

The Superior Court Appeal Judge (SCAJ) had found the claimant was not a "deemed named insured" under Continental's policy, making Chubb the priority insurer for basic SABS, but still held Continental liable for all SABS under an OPCF 47 endorsement, ordering Chubb to reimburse Continental for basic SABS.

The Court of Appeal upheld the SCAJ's finding that the claimant was not a "deemed named insured" under Continental's policy, clarifying that "regular use" requires actual use, not just theoretical access.

However, the Court of Appeal reversed the SCAJ's decision on reimbursement, holding that the OPCF 47 endorsement displaces the statutory priority rules (s. 268 of the Insurance Act) for the optional benefits insurer, meaning Continental, as the OPCF 47 insurer, is solely responsible for both basic mandatory and optional enhanced SABS without a right to reimbursement from Chubb.

This is an appeal concerning the interpretation of a complex project agreement for the Eglinton Crosstown LRT in the context of the COVID-19 pandemic.

The application judge had found that a specific contractual provision (s. 62.1(c)) requiring a "Variation Enquiry" was triggered by an internal email from the Crown agencies to their own staff, which was never sent to the consortium.

The Court of Appeal found that the application judge made a palpable and overriding error in concluding that this internal email constituted notification to the consortium.

The appeal was allowed, the original judgment set aside, and the application remitted to the Superior Court for a rehearing to consider other arguments, including good faith and the indivisibility of the Crown, which the application judge had not addressed.

This appeal concerned the application of s. 5(1)(a)(iv) of the Limitations Act, 2002, specifically when the respondent knew that a proceeding would be an appropriate means to seek a remedy for unpaid invoices.

The appellant, a condominium corporation, argued the action was time-barred, asserting the trial judge erred in applying discoverability principles and finding a running account.

The Court of Appeal dismissed the appeal, affirming the trial judge's finding that the limitation period began when the respondent was informed the condominium corporation was not obligated to pay invoices, rather than earlier.

The court upheld the running account finding and the application of discoverability principles, noting the defendant's assurances delayed the plaintiff's understanding of the need for litigation.

The appellant sought to overturn a motion judge's order declining to restore their action to the trial list, dismissing it for delay, and discharging a certificate of pending litigation.

The Court of Appeal found no error in the motion judge's conclusions that the delay in prosecuting the action was entirely the appellant's responsibility, was unexplained, inordinate, and inexcusable.

The court agreed that an inference of prejudice arose from the lengthy delay, jeopardizing the likelihood of a fair trial due to the passage of time, impact on witness memories, and lack of proper discoveries.

The appeal was dismissed with costs.

The appellant appealed his conviction for possession of a loaded prohibited firearm and sought leave to appeal his six-year custodial sentence.

He argued the trial judge erred in not finding various Charter infringements (ss. 7, 9, 10(a), 10(b), 11(d)) that should have led to the exclusion of the firearm, and in her assessment of circumstantial evidence.

He also contended his sentence was unfit.

The Court of Appeal dismissed the appeal, finding no reversible error in the trial judge's Charter analysis, her factual and credibility findings, or her conclusion on circumstantial evidence.

Leave to appeal sentence was denied as the sentence was deemed fit and not demonstrably unfit.

The appellant sought leave to appeal his sentence for second-degree murder, arguing that the sentencing judge erred in principle by equating his moral blameworthiness to that of a first-degree murder offender and made a palpable error in finding his mental illness played no contributing role.

The Court of Appeal dismissed the appeal, finding no error in the sentencing judge's assessment of high moral blameworthiness given the premeditated nature of the original plan to kill his ex-wife and the attack on her uncle.

The court also upheld the finding that the appellant failed to establish a causal link between his depression and the murder, noting shortcomings in the psychiatric evidence.

The appellant, Kirk Williams, sought leave to appeal his dangerous offender designation and indeterminate sentence for sexual assault causing bodily harm and choking.

He argued the sentencing judge erred in finding the statutory pathways for designation were met and in assessing future harm and treatment prospects.

The Court of Appeal granted leave but dismissed the appeal, finding no error in the sentencing judge's conclusions regarding the dangerous offender pathways, the consideration of medical treatments, or the assessment of recidivism risk.

The court upheld the indeterminate sentence as necessary for public protection.

The moving party, Foreign Representative of Urbancorp Inc., sought leave to appeal a distribution order from the Supervising Judge in Companies’ Creditors Arrangement Act (CCAA) proceedings.

The order authorized a distribution to King Towns North Inc. (KTNI) related to the sale of "Bridge Geothermal Assets" and the interpretation of a "Transfer Provision" in a lease.

The core issue was whether the Transfer Provision violated the pari passu or anti-deprivation rules, particularly in light of Chandos Construction Ltd. v. Deloitte Restructuring Inc. The Supervising Judge found the provision valid, as it was triggered by a lease transfer, not insolvency, and did not violate the rules.

The Court of Appeal dismissed the motion for leave to appeal, finding no prima facie meritorious issue or error in the Supervising Judge's application of the anti-deprivation rule as clarified in Chandos, and that the appeal would unduly hinder the proceedings.

The appellant, Jerome Turner, appealed his conviction and sentence for five counts of armed robbery.

The appeal raised issues concerning the trial judge's similar fact evidence ruling, the admission of post-offence conduct evidence, and Section 8 Charter rulings regarding cellphone data obtained via production order.

The Court of Appeal dismissed the appeal, finding no errors in the trial judge's application of the similar fact test, the admission of post-offence conduct evidence, or the Section 8 analysis.

The court also found the sentence was not demonstrably unfit, noting the appellant's prior criminal history and the timing of the offences.

This is an appeal from a judgment dismissing an action against the Regional Municipality of Durham for failing to keep a roadway in a reasonable state of repair, following a motor vehicle accident that caused life-altering injuries to the plaintiff.

The trial judge found the road was not in a state of non-repair and did not pose an unreasonable risk to an ordinary reasonable driver, also noting the driver's excessive speed and distraction.

The Court of Appeal dismissed the appeal, finding no extricable error of law in the trial judge's analysis.

The appellate court affirmed that the trial judge correctly applied the four-part test for municipal negligence, considering the driver's conduct as one factor among others in assessing the road's condition relative to an ordinary reasonable driver, without conflating the driver's negligence with the road's state of non-repair.

The appellant appealed a Superior Court decision that dismissed her action for lack of subject matter jurisdiction and struck her pleadings as frivolous, scandalous, and vexatious.

The core of her claim concerned how her insurer handled her statutory accident benefits claims, alleging a conspiracy with healthcare practitioners to stage examinations and produce false reports, and breach of privacy.

The Court of Appeal affirmed the motion judge's finding that the Licence Appeal Tribunal has exclusive jurisdiction over disputes related to statutory accident benefits under s. 280 of the Insurance Act, regardless of how the claims are framed.

The Court also upheld the denial of leave to amend pleadings and dismissed the appeal regarding costs due to procedural non-compliance and lack of error in principle.

The appellant, Country Garden Academy Inc., appealed a Superior Court judgment that determined the minimum rent for a lease renewal.

The appellant argued the application judge erred in interpreting "comparable premises," failing to consider zoning limitations, and overlooking alleged bad faith by the respondent.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's holistic consideration of factors, including property use and zoning, and no evidence to support the bad faith claim.

The respondent's cross-appeal for leave to appeal costs was also denied.

The appellant appealed his convictions for three counts of attempt murder, aggravated assault, uttering threats, and failure to comply with probation, as well as his 13-year sentence.

The appeal raised issues concerning the trial judge's assessment of intent (capacity vs. actual intent), the admissibility of opinion evidence regarding credibility and demeanour, the alleged misapprehension of evidence concerning the appellant's intoxication and state of mind, and the use of the appellant's out-of-court statements.

The Court of Appeal dismissed the appeal against both conviction and sentence, finding no reversible error in the trial judge's reasoning or findings.

The appellants appealed a Superior Court judgment that enforced Minutes of Settlement and granted summary judgment for $90,000 to the respondents.

The Minutes of Settlement required the appellants to pay $40,000 in instalments and deliver consents, including a consent to judgment for $120,000.

The appellants failed to deliver consents and stopped the final $10,000 payment.

The motion judge rejected arguments that the pandemic or respondents' separate arrangements with other settling parties altered obligations, and found no error in converting the motion to summary judgment.

The Court of Appeal affirmed the motion judge's decision, finding no error in the process or the conclusions, including that the $90,000 award was not a penalty.

The appeal was dismissed with costs.

Multiple appeals arose from a complex family estate dispute following the death of a spouse whose estate passed to the surviving spouse under mirror wills.

Two sons alleged that a handwritten document and surrounding circumstances created both a mutual wills agreement and a secret trust requiring equal distribution of the estate among the three sons after the surviving spouse’s death.

The Court of Appeal held that the evidence did not establish a binding mutual wills agreement or the elements of a secret trust, emphasizing the absence of a transfer of property and clear contractual intent.

The court also upheld the trial judge’s treatment of certain inter vivos transfers and confirmed that a joint tenancy in a condominium had been severed through the parties’ course of dealings.

All appeals were dismissed.

This endorsement addresses motions for leave to intervene in an appeal concerning the scope of judicial review when a limited statutory right of appeal exists.

The Court of Appeal for Ontario granted leave to intervene to the Advocacy Centre for Tenants Ontario (ACTO) and the Income Security Advocacy Centre (ISAC), finding they offered unique perspectives on the implications of the Divisional Court's decision for other statutory schemes.

The motion for leave to intervene by the Ontario Trial Lawyers Association (OTLA) was dismissed as its submissions were largely duplicative of the appellant's and granting a third intervener would be unfair to the respondent.

The appellants, Darko Stojanovski and Daniel Stojanovski, appealed their convictions for attempted murder and their 18-year sentences.

The central issues included the adequacy of jury instructions on party liability (aiding), the introduction of alternative Crown theories, the use of prior consistent statements for identification, and the appropriateness of the sentences.

The majority dismissed both the conviction and sentence appeals, finding the jury charge adequate and the sentences fit.

A dissenting judge would have allowed Darko's conviction appeal, arguing the jury instruction on the specific intent required for attempted murder by aiding was insufficient and misleading.