ONCA 2023

The appellant moved to amend the notice of appeal to clarify that relief is sought against two corporations added as parties below.

The respondent opposed due to late notice.

The Court of Appeal adjourned the appeal and cross-appeal, ordering the motion to amend to be heard in writing with a set schedule for submissions.

Costs were reserved to the disposition of the motion, and the panel remained seized of the motion but not the main appeal.

The appellant sought to appeal a trial judge's decision regarding spousal support, arguing that the indefinite support at the high end of the Spousal Support Advisory Guidelines, subject to review, constituted an error.

The Court of Appeal for Ontario dismissed the appeal, affirming the significant deference owed to family support decisions.

The court found no material error, serious misapprehension of evidence, or error in law in the trial judge's reasoning or result, noting that the appellant's objection primarily concerned the weighing of factors, which is not a basis for appellate intervention.

The appellant, David Griffith, appealed his convictions for possession for the purposes of trafficking and possessing proceeds of crime, arguing that the trial judge erred in admitting evidence obtained in breach of his Charter rights (ss. 8, 9, 10(b)).

The trial judge found breaches but admitted the evidence under s. 24(2) of the Charter, applying the *Grant* analysis.

The Court of Appeal upheld the trial judge's decision, finding no error in the *Grant* analysis, specifically regarding the lawfulness of the pat-down search incident to investigative detention and the application of discoverability.

The conviction appeal was dismissed, and the sentence appeal was dismissed as abandoned.

This appeal addresses the application of the open court principle to court-approved settlements involving minors or persons under disability, as required by Rule 7.08 of the Rules of Civil Procedure.

The appellants sought sealing orders for motion records related to these settlements, arguing that such motions, heard in writing, are not subject to the open court principle, or that the court's parens patriae jurisdiction, privacy interests, and solicitor-client privilege justify sealing.

The Court of Appeal dismissed the appeals, affirming that the open court principle applies to written proceedings and that neither parens patriae nor solicitor-client privilege provides a freestanding basis for sealing orders.

The court found that the appellants did not meet the Sherman test for a sealing order, as the privacy interests were not at serious risk of undermining dignity, and the protection of minors/disabled persons and solicitor-client privilege were not seriously jeopardized by public access.

The applicant sought to reopen his appeal from a conviction for robbery, which had been previously dismissed by a different panel of the Court of Appeal and for which leave to appeal to the Supreme Court of Canada was denied.

The applicant argued that the original appeal panel failed to consider one of his merit-based arguments (unreasonable verdict).

The court considered whether it had jurisdiction to reopen an appeal after a formal order reflecting the disposition had been issued.

It held that such jurisdiction is narrow and exceptional, limited to cases not heard on the merits.

The court concluded that there is no jurisdiction to reopen an appeal where it was heard on the merits, even if the panel allegedly failed to consider an argument or incorrectly framed the issues, as this would amount to reviewing the correctness of a previous panel's decision, a power reserved for the Supreme Court of Canada.

The application to reopen was dismissed for lack of jurisdiction.

The appellant, Mark Roberts, sought a suspension of an Ontario Review Board order directing his transfer from the Centre for Addiction and Mental Health (CAMH) to Waypoint Centre for Mental Health due to his difficult and harassing behaviour towards female staff at CAMH.

The court applied the specific, higher test under s. 672.76 of the Criminal Code for suspending Board dispositions, which requires compelling reasons to doubt the Board's decision's validity or soundness based on the accused's mental condition, and exceptional circumstances.

The court found the appellant failed to provide sufficient evidence of the transfer's impact on his mental condition to justify a suspension, especially considering the severe adverse impact of his conduct on CAMH's operations and staff safety.

The motion for suspension was dismissed.

The appellant appealed his convictions for four counts of aggravated assault and five counts of assault with a weapon, alleging unreasonable verdicts, an erroneous similar fact evidence ruling, and ineffective assistance of counsel.

The Court of Appeal dismissed the appeal, finding that the trial judge properly applied the similar fact evidence test and that the verdicts were reasonable given the ample evidence.

The claim of ineffective assistance of counsel was also rejected.

The appellant, Christopher Morris, appealed his convictions for firearm offences and his sentence.

The conviction appeal concerned whether an inoperable handgun, requiring a new firing pin, met the definition of "firearm" under the Criminal Code.

The sentence appeal sought a reduction based on the principles of anti-Black racism established in R. v. Morris, 2021 ONCA 680.

The Court of Appeal dismissed the conviction appeal, finding the handgun was adaptable as a firearm.

The court allowed the sentence appeal, reducing the global sentence by one year, acknowledging the impact of anti-Black racism on the appellant's moral culpability and rehabilitation prospects, based on fresh evidence from an Enhanced Pre-Sentence Report.

This appeal concerned a dispute within the Medhanie Alem Eritrean Orthodox Tewahdo Church regarding internal governance, specifically the holding of an overdue Annual General Meeting (AGM) and the application of canon law versus corporate bylaws.

The appellants, volunteer board members, challenged the application judge's order that mandated an AGM under the 2014 Bylaws with a court-appointed neutral chair, arguing these issues were non-justiciable matters of canon law or that the order conflicted with canon law.

The Court of Appeal affirmed that the local Church, as an incorporated entity, is subject to civil law obligations like holding AGMs.

However, it found that the application judge's order unnecessarily conflicted with canon law by preventing the Church from amending its bylaws to conform with the 2016 Canon Law Promulgation before the AGM.

The Court allowed the appeal in part, striking the conditions regarding the 2014 Bylaws and the court-appointed neutral chair for the AGM, and ordered a special or emergency meeting with a court-appointed neutral chair to allow the Church to vote on bylaw amendments before the AGM.

The appellant (vendor) appealed a trial judgment finding it breached an Agreement of Purchase and Sale (APS) for development lands and awarding the respondent (purchaser) over $11 million in lost expected profits.

The Court of Appeal upheld the trial judge's finding of liability, confirming the vendor's breach for wrongly asserting the purchaser failed to pay a further deposit and that the purchaser was ready, willing, and able to close without tendering.

However, the Court allowed the appeal on damages, ruling that the trial judge erred by departing from the normal measure of damages for real estate breaches (difference between contract price and market value on closing date).

The Court clarified that the remoteness test determines the *type* of loss, not the *measure*, and that market value inherently accounts for development potential.

A new hearing was ordered to assess damages using the normal measure.

The Crown sought leave to appeal to the Court of Appeal for Ontario from a judgment of the Ontario Court of Justice concerning findings on due diligence and penalty reduction in regulatory offence charges under the Occupational Health and Safety Act.

The motion for leave was dismissed as the proposed grounds of appeal did not meet the high bar under s. 131 of the Provincial Offences Act.

The court found that the alleged errors involved the misapplication of well-established legal principles rather than issues requiring the Court of Appeal's guidance on statutory interpretation or general legal principles.

The appellants appealed a trial judge's decision that struck out a default judgment and statement of claim as an abuse of process, found overpayment on a mortgage due to fraud, and awarded damages.

The trial judge's decision relied in part on prior Financial Services Tribunal findings of fraudulent conduct by the appellant mortgage broker.

The appellants challenged the striking out of the judgment/claim, the trial judge's credibility findings, and alleged a reasonable apprehension of bias.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings, noting that the appellants' counsel had consented to the judge hearing the case despite prior dealings, and found no evidence of bias.

This appeal arose from a tragic boat accident involving multiple fatalities and injuries.

The Court of Appeal addressed three consolidated appeals: liability of government respondents, interpretation of the Marine Liability Act's monetary cap, and costs.

The court upheld the motion judge's finding that the boat operators were solely liable for the accident, dismissing the appeal against the government respondents.

It also affirmed that the Marine Liability Act's monetary cap for maritime claims for loss of life or personal injury does not include costs and interest.

While leave to appeal the quantum of costs and the Sanderson Order was denied, leave was granted on one specific costs issue, resulting in both estates being held jointly and severally liable for one plaintiff's costs.

This costs endorsement followed a partial success on appeal where the appellant, Justice of the Peace Lauzon, had her appeal from the merits decision dismissed but her appeal from the disposition decision allowed, resulting in a reprimand and 30-day suspension instead of removal from office.

While the parties agreed on costs for the appeal, Divisional Court, and leave motion, they disagreed on the costs of the original hearing before the Hearing Panel.

The appellant sought full reimbursement for these hearing costs, arguing her appeal success effectively overruled the reasons for their previous reduction.

The Court of Appeal dismissed this request, finding that the appellant had not sought leave to appeal the Divisional Court's decision on the Hearing Panel's costs recommendation, nor had she demonstrated any reversible error.

The court concluded that the partial success on appeal did not affect the reasonableness of the Hearing Panel's original costs recommendation, and therefore made no order regarding those costs.

The appellant was convicted of firearm possession and drug trafficking and appealed both his conviction and sentence.

The conviction appeal argued that the information to obtain a search warrant (ITO) lacked sufficient grounds, specifically alleging the affiant misled the Justice of the Peace (JP) regarding the appellant's address and failed to establish reasonable grounds for drugs at his residence.

The Court of Appeal found that while the reviewing judge misapprehended one argument, it was immaterial as police observations provided sufficient grounds for the search warrant.

The conviction appeal was dismissed.

On the sentence appeal, the Crown conceded credit for time served, and the Court granted enhanced credit (1.5:1) for 145 days, resulting in 217 days credit.

The sentence appeal was allowed.

The Crown appealed the conditional sentences imposed on the respondent for trafficking in cocaine and crystal methamphetamine, and possession of proceeds of crime, arguing errors in principle.

The Court of Appeal found the sentencing judge erred by imposing a conditional sentence after determining a three-year penitentiary term was fit, and by using pre-trial custody credits to make a conditional sentence available, contrary to R. v. Fice.

While upholding the three-year global sentence as fit due to mitigating Gladue factors, plea, remorse, and rehabilitation, the Court substituted a 16-month prison sentence but stayed its operation, allowing the probation order to remain.

The appellants appealed their convictions for second-degree murder and manslaughter/robbery, respectively, stemming from a fatal assault.

The Court of Appeal allowed the appeal for second-degree murder, ordering a new trial due to the improper admission and use of lay opinion evidence regarding the likelihood of death, and the trial judge's failure to conduct a voir dire or provide a limiting instruction.

The appeal for manslaughter was also allowed, and a new trial ordered, due to inadequate jury instructions on aiding and abetting.

The robbery conviction was upheld.

The court dismissed other grounds of appeal, including challenges to the pathologist's cross-examination limits and the delay argument under the Charter.

This appeal involved cross-appeals concerning the recognition of an Omani foreign divorce and the Superior Court's jurisdiction over parenting issues for the parties' child.

The Court of Appeal upheld the recognition of the Omani divorce, finding that the applicant had attorned to the Omani court's jurisdiction by voluntarily participating in the proceedings on the merits.

The court also upheld the Superior Court's finding that Ontario had jurisdiction over parenting matters, determining that the child was habitually resident in Ontario at the relevant time, and that the Omani divorce order did not oust this jurisdiction.

Both appeals were dismissed.

The appellant, H.S., appealed convictions for sexual assault and assault against his ex-girlfriend, raising three grounds: the trial judge's dismissal of an application to reopen the case to cross-examine the complainant on an alleged inconsistency in her Victim Impact Statement (VIS), the dismissal of a s. 276 application to introduce evidence of their sexual relationship, and a flawed credibility analysis.

The Court of Appeal dismissed the appeal, finding no material inconsistency in the VIS, upholding the s. 276 ruling as the evidence lacked probative value beyond prohibited inferences, and affirming the trial judge's credibility assessment as entitled to deference.

The appellant, L.G., appealed his conviction for gross indecency and sexual assault, which occurred in 1985-1986 when the complainant was 14.

The appellant claimed the sexual activity in 1987 was consensual.

The trial judge rejected the appellant's evidence due to inconsistencies with his police statement and implausibility, and found the defence witnesses' testimony incredible due to suspected collusion or tainting.

The trial judge accepted the complainant's consistent evidence, which was corroborated by independent, non-contentious details.

The Court of Appeal dismissed the appeal, finding that the trial judge did not reverse the burden of proof in assessing defence evidence and did not err in considering circumstantial evidence as confirmatory, as it was more consistent with the complainant's account.