ONCA 2023

The appellant was convicted of two counts of producing marijuana without authorization and two counts of possession of marijuana for the purpose of trafficking.

He appealed both his convictions and sentence.

The Court of Appeal dismissed the conviction appeal, finding no errors in the trial judge's assessment of mens rea, party liability, or credibility.

However, the court allowed the sentence appeal, finding the original sentence demonstrably unfit due to the duration of house arrest and electronic monitoring, and set aside the probation order.

This is an appeal from a Divisional Court decision that granted judicial review, quashing an administrative decision and a request for bids related to the procurement of identification cards.

The Ministry of Transportation (MTO) required card stock to be produced in Canada, which Thales DIS Canada Inc. (Thales) challenged as discriminatory under the Canada-European Union Comprehensive Economic and Trade Agreement (CETA).

The Divisional Court found the MTO's decision and request for bids unreasonable.

The Court of Appeal allowed the appeal, finding that the Divisional Court misapplied the reasonableness standard of review by conducting a de novo assessment instead of focusing on the administrative decision-maker's reasons.

The Court of Appeal concluded that the Director's decision was reasonable and that the request for bids was not separately subject to judicial review given the existence of an adequate internal dispute resolution process.

The appellant, P.K., appealed his convictions for sexual assault and sexual interference involving his 15-year-old niece.

The appeal raised two grounds: the trial judge's response to a jury question concerning forensic evidence and the instruction given on the complainant's videotaped statement under s. 715.1 of the Criminal Code.

The Court of Appeal found that the trial judge's response to the jury's request for a read-back of expert testimony was appropriate, given the practical difficulties and the lack of material prejudice.

The court also affirmed that the instruction on the s. 715.1 statement was correct, as such statements are admissible for their truth and as part of the in-court testimony.

The appeal was dismissed.

Korey Rudder appealed convictions for firearm and breach offences, which were based on a constructive possession finding.

The Court of Appeal found that the trial judge materially misapprehended evidence, failed to respect a factual admission by the Crown regarding vehicle ownership, and misapplied the "sufficient connection test" for third-party suspect evidence.

These errors affected the evaluation of constructive possession beyond a reasonable doubt.

The appeal was allowed, convictions quashed, and a new trial ordered.

The appellant, Nathalie Xian Yi Yan, appealed an order striking her statement of claim without leave to amend, which had been granted by the Superior Court of Justice.

The Court of Appeal dismissed the appeal, affirming the motion judge's decision.

The Court found no reviewable error in the motion judge's conclusion that the appellant's claims for constructive discrimination, harassment, professional negligence, and defamation failed to disclose a reasonable cause of action.

The Court also upheld the denial of leave to amend, noting that the appellant had already had an opportunity to amend her pleadings, which resulted in unfocused allegations without evidence.

Costs were awarded to the respondent.

The appellant, Johnathan Impey, appealed his conviction for sexual assault.

The appeal raised two grounds: the trial judge's response to a jury question regarding the definition of reasonable doubt, and the alleged failure to instruct the jury on how to deal with the complainant's motivation to fabricate.

The Court of Appeal dismissed the appeal, finding that the trial judge's response to the jury's question was appropriate, especially given counsel's joint submission, and that the general instructions on witness credibility were sufficient to address the issue of motive to fabricate.

The appellants, Rouzbeh Behrouz and Majestic Food Service Inc., appealed an order giving effect to a Letter Rogatory from a U.S. District Court, compelling testimony and document production for a U.S. proceeding alleging violations of Iran-trade embargo laws.

The appellants argued the application judge erred by admitting inadmissible hearsay and failing to properly apply the Friction factors.

The Court of Appeal dismissed the appeal, finding no reversible error.

The court affirmed the application judge's reliance on evidence for determining relevance and necessity, and his proper application of the Friction factors and balancing of Canadian sovereignty with the enforcement request.

The court also agreed that the evidence sought was not otherwise obtainable, deferring to the U.S. court's conclusion and noting that Canadian residents are not compellable witnesses in U.S. proceedings for testimony or document production.

The Law Society of Ontario (LSO) brought a motion under Rule 2.1.02 of the Rules of Civil Procedure to dismiss Paul Alexander Robson's motion to review a prior decision of a motion judge.

The LSO argued that Robson's motion was frivolous, vexatious, or an abuse of process.

The court found that the LSO failed to provide sufficient background documents, such as Robson's original motion materials or proposed notice of motion for leave to appeal, which were necessary to determine if the motion was, on its face, an abuse of process.

Consequently, the LSO's Rule 2.1 request was dismissed without costs, and Robson was ordered to perfect his motion for review within ten days.

The appellant, R.M., appealed convictions for attempted abduction of his son and assault of another boy.

The Court of Appeal found that the trial judge erred in instructing the jury on the actus reus of attempted abduction by failing to apply s. 24(2) of the Criminal Code, which designates this as a question of law for the judge.

The court quashed the attempted abduction conviction and substituted it with a conviction for unlawful confinement, lifting the conditional stay on that charge.

The appeal against the assault conviction was dismissed, as were arguments regarding unlawful confinement jury instructions.

The appellant, having initiated parallel spousal support proceedings in the Ontario Court of Justice and divorce/equalization in the Superior Court of Justice, appealed the dismissal of her spousal support claim.

The initial dismissal was due to improper use of resources and jurisdictional issues.

The Superior Court appeal judge remitted the matter back to the Ontario Court of Justice for submissions on jurisdiction.

The Court of Appeal found this disposition failed to promote the primary objective of the Family Law Rules, which is to deal with cases justly and efficiently.

The Court of Appeal allowed the appeal, set aside the lower appeal order, and transferred the spousal support application to the Superior Court of Justice to be heard concurrently with the equalization and divorce claims, imposing a stay on the Ontario Court of Justice application.

Costs were awarded to the appellant.

The Centre for Addiction and Mental Health (CAMH) appealed a decision by the Ontario Review Board (ORB) that granted David Aliko an absolute discharge after he was found Not Criminally Responsible (NCR) for various offences due to mental disorder.

CAMH sought to set aside the absolute discharge and reinstate a conditional discharge, citing Mr. Aliko's significant deterioration and new criminal charges post-disposition.

The Court of Appeal admitted fresh evidence detailing Mr. Aliko's post-discharge behaviour and mental state, which indicated a substantial risk of serious harm to the public without Board supervision.

The court found it was in the interests of justice to admit this evidence.

The Crown appealed a summary conviction appeal court's decision to stay proceedings against the respondent for "over 80" due to unreasonable delay under s. 11(b) of the Charter.

The delay was caused by the COVID-19 pandemic.

The summary conviction appeal judge (SCAJ) found the Crown had not taken reasonable steps to mitigate delay by accepting consecutive trial dates instead of exploring earlier non-consecutive ones.

The Court of Appeal allowed the Crown's appeal, holding that the SCAJ erred by failing to defer to the trial judge's assessment of local circumstances and the reasonableness of the Crown's actions in managing the pandemic-induced backlog.

The Court clarified that the heightened urgency for scheduling retrials (as per MacIsaac) does not apply to initial trials delayed by exceptional circumstances like COVID-19.

The stay of proceedings was set aside, and the conviction restored.

The applicant, B.B., sought release pending the determination of his appeal from convictions for sexual assault and assault.

The application was dismissed as the applicant failed to satisfy the public interest criterion under s. 679(3)(c) of the Criminal Code.

The court found that the enforceability interest significantly outweighed the reviewability interest, primarily due to the serious nature of the offences and the applicant's inability to provide a sufficiently complete record (missing trial transcripts) to demonstrate that the grounds of appeal clearly surpassed the 'not frivolous' threshold.

The appellant, Kyle Firlotte, appealed his conviction for first-degree murder.

The victim was abducted, severely beaten, and left in a remote field in cold temperatures, leading to his death.

Firlotte argued the verdict was unreasonable, the trial judge's reasons were inadequate, the "common sense inference" was improperly applied, and the abandonment of the victim was erroneously treated as dispositive of intent.

The Court of Appeal dismissed the appeal, finding the verdict reasonable based on the totality of circumstantial evidence, the trial judge's reasons sufficient, the common sense inference appropriately used as a tool, and the consideration of abandonment as a factor in determining murderous intent was correct.

The Trustee in bankruptcy moved for orders that the appellants (related to the bankrupt Medcap) did not have an automatic right of appeal under BIA s. 193(a) or (c) from a lower court order, required leave to appeal, and should be denied leave.

The appellants argued that a single judge lacked authority to make such a determination, citing R. 61.16(2.2) of the Rules of Civil Procedure.

The court held that the lower court's order was purely procedural, thus no automatic right of appeal existed under BIA s. 193(a) or (c).

The court further held that a single judge has the authority to determine appeal rights under BIA s. 193 due to the doctrine of federal paramountcy, which overrides provincial rules like R. 61.16(2.2) in bankruptcy matters.

Leave to appeal was denied as the proposed appeal lacked merit, did not raise issues of general importance, and would hinder bankruptcy proceedings.

The appellant landlord appealed a judgment finding it in breach of a commercial lease, granting specific performance, and awarding damages to the respondent tenant.

The Court of Appeal found no error in the trial judge's findings, interpretation of the lease, grant of specific performance, or assessment of damages, noting the appellant failed to present expert evidence to challenge the damages methodology at trial.

The appeal was dismissed.

The appellant, Justin Thombs, appealed his convictions for five counts of possession for the purpose of trafficking and two counts of possession of property obtained by crime.

The Crown conceded one count of possession of proceeds (cash).

The Court of Appeal dismissed the conviction appeal for drug trafficking and the remaining property obtained by crime count (stolen license plate), finding no error in the trial judge's discretion to refuse a mid-trial Charter application, her assessment of plain view evidence, or her consideration of inferences.

The court entered an acquittal for the conceded cash count and refused leave to appeal sentence.

The appellant appealed convictions for sexual interference and sexual exploitation, arguing the trial judge erred in assessing the credibility and reliability of child witnesses (his daughter S.R. and step-granddaughter S.R.D.) by improperly discounting inconsistencies and compartmentalizing evidence.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's assessment of inconsistencies or his distinction between intentional and inadvertent tainting of evidence.

The court affirmed that the trial judge correctly applied the law regarding child witnesses and that his credibility findings were entitled to deference.

This appeal concerns a dispute between two condominium corporations regarding the cost of replacing shared electrical infrastructure (electric switchgear or ESG).

The appellant, Ottawa-Carleton Standard Condominium Corporation No. 656 (656), refused to contribute to the replacement cost, arguing that the ESG was the property of the respondent, Carleton Condominium Corporation No. 519 (519), and its maintenance was 519's sole responsibility under their respective Declarations and the Condominium Act, 1998. 519 had successfully brought an application based on unjust enrichment, arguing that 656 would be enriched by continuing to receive electricity without contributing, 519 would be deprived, and there was no juristic reason for the enrichment.

The Court of Appeal upheld the application judge's finding that all elements of unjust enrichment were met, specifically agreeing that neither the Condominium Act nor 519's Declaration imposed a statutory obligation on 519 to maintain the ESG for 656's benefit without compensation, and that the absence of a cost-sharing agreement did not constitute a juristic reason to justify the enrichment.

The appeal was dismissed.

The appellants, Roslyn Blake and Claire Graham, appealed their convictions, seeking a stay of proceedings due to unreasonable delay under section 11(b) of the Charter, relying on the framework established in *R. v. Jordan*.

The Court of Appeal assumed, without deciding, that Ms. Graham's net delay could exceed 30 months.

However, the court upheld the trial judge's finding in Ms. Blake's case that the complexity of the matter justified the delay beyond the presumptive ceiling, noting that this assessment was equally applicable to both co-accused appellants.

The court emphasized the deference owed to the trial judge's expertise in assessing case complexity.

The appeals were dismissed.