ONCA 2023

The appellants, two churches and their members, challenged the constitutionality of Ontario's COVID-19 regulations that imposed capacity restrictions on indoor and outdoor religious gatherings.

The motion judge found that the regulations infringed the appellants' freedom of religion under s. 2(a) of the Charter but were justified under s. 1.

On appeal, the appellants argued the motion judge erred in her treatment of expert evidence, her refusal to use hindsight evidence, her decision not to conduct separate analyses for other s. 2 Charter rights, and her s. 1 justification analysis.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's deferential approach to the government's response to an unprecedented public health emergency, her application of the precautionary principle, or her conclusion that the measures were minimally impairing and proportionate.

The appellant appealed a summary judgment recognizing and enforcing a US$1.6 million New York judgment.

The sole issue on appeal was whether the Ontario enforcement action was statute-barred.

The Court of Appeal dismissed the appeal, finding that the appellant had not raised its limitation period argument before the motion judge and had previously agreed that the limitation period began when the New York appeal was dismissed, in accordance with established precedent.

The court declined to reconsider its prior jurisprudence on when the limitation period for enforcing foreign judgments commences.

The appellant obtained a judgment for unpaid commissions against Stonebrook Properties Inc. and registered a writ of seizure and sale against a condominium development property registered in Stonebrook's name.

The respondents, who were the beneficial owners of the property, successfully applied to have the writ lifted on the basis that Stonebrook held the property as a bare trustee.

The Court of Appeal dismissed the appellant's appeal, finding no palpable and overriding error in the application judge's conclusion that Stonebrook was a bare trustee with no independent discretion, meaning the property was not available to satisfy a judgment against it.

The employee, originally a co-founder and CEO, was dismissed without cause in 2017.

The employer relied on a 2005 employment contract to limit termination pay.

The motion judge found the 2005 contract unenforceable under the changed substratum doctrine due to fundamental increases in the employee's responsibilities over the years, awarding 18 months' reasonable notice and damages for lost bonus entitlements.

The Court of Appeal dismissed the employer's appeal, upholding the application of the changed substratum doctrine and the award for lost bonus.

The Court allowed the employee's cross-appeal in part, finding the motion judge erred by deducting the entire pre-dismissal bonus payment from the damages award, and increased the damages accordingly.

The Crown appealed the acquittals of a youth charged with impaired driving causing death.

The trial judge had excluded evidence of the youth's statements to a paramedic, breath samples, and blood samples, finding multiple breaches of section 8 of the Charter.

The Court of Appeal upheld the trial judge's findings that the youth had a reasonable expectation of privacy during a medical assessment in an ambulance, and that the police officer's breath demand lacked subjective grounds.

The Court also agreed that the subsequent breath demand by a technician was tainted by the initial breach, and that the search warrant for hospital records was invalid.

The exclusion of evidence under section 24(2) was upheld due to the seriousness of the police misconduct.

The appellants appealed the dismissal of their anti-SLAPP motion, which sought to dismiss a defamation counterclaim brought by the respondent.

The motion judge found that the respondent had suffered sufficient harm and that the public interest in permitting the counterclaim to continue outweighed the public interest in protecting the appellants' expression, noting the strategic nature of the motion.

The Court of Appeal dismissed the appeal, holding that the motion judge made no reviewable errors in inferring harm from the serious allegations or in conducting the weighing exercise.

The court also upheld the motion judge's discretionary award of partial indemnity costs to the respondent.

Four brothers who equally owned a complex real estate development partnership experienced a complete breakdown in their business relationship, leading to a court-ordered wind-up and sale of the business.

Two brothers appealed the trial judge's decision to exclude a specific real estate transaction from the wind-up order, arguing breach of fiduciary duty.

The other two brothers appealed a provision in the judgment requiring them to certify compliance with the wind-up and disclosure orders.

The Court of Appeal dismissed the appeals regarding the excluded transaction, deferring to the trial judge's factual findings that it was conducted outside the partnership.

However, the Court allowed the appeal regarding the certification provision, striking it on the basis that requiring certification of vague obligations in a highly hostile environment would unfairly expose the parties to unwarranted contempt proceedings.

This is a costs endorsement following an appeal where the appellant succeeded in part.

The appellant sought costs of $213,626.59 for the proceedings below, including prior reserved motions and expert fees.

The respondent argued for a reduction to $91,280, challenging the inclusion of prior motion costs, expert fees, and claims of duplication/excessive time.

The Court of Appeal found the prior motion costs and expert fees were reasonably included.

A modest reduction was justified due to some relief obtained by the respondent at the motion judge level (reduction of post-judgment interest).

The court awarded the appellant $180,000 inclusive of disbursements and taxes for costs of the motion below.

The appellants appealed a motion judge's order striking paragraphs from their amended statement of defence.

The primary issue was whether leave to appeal was required under section 13 of the Companies’ Creditors Arrangement Act (CCAA) and, if so, whether it should be granted.

The Court of Appeal applied a purpose-focused inquiry, concluding that the motion judge's order was 'made under' the CCAA because it was incidental to the CCAA proceedings and impacted the restructuring.

Consequently, leave to appeal was required.

The court then denied leave, finding that the appellants did not meet the criteria for granting leave, as the appeal lacked prima facie merit, was not of significant interest beyond the parties, and would unduly hinder the progress of the action and CCAA proceedings.

The appellant, Allan Dale Sutherland, appealed his sentence for operating a motor vehicle while disqualified and prohibited, challenging both the 18-month custodial sentence and the lifetime driving prohibitions imposed by the sentencing judge.

The Court of Appeal upheld the 18-month sentence, finding it fit given the appellant's extensive record and the need for specific deterrence.

However, the court found that the sentencing judge erred in imposing lifetime driving prohibitions, as legislative amendments to the Criminal Code (specifically the repeal of s. 259(4) and replacement by s. 320.18, with maximums set by s. 320.24(5)) made such prohibitions discretionary with specific maximum periods.

The court vacated the lifetime prohibition on the first count and varied the prohibition on the second count to 11.5 years, reflecting the maximum permissible period plus the sentence duration.

This decision addresses a motion to intervene in an appeal concerning the Ontario Court of Justice's jurisdiction to hear reference cases under the Firearms Act.

The proposed intervener, J.P., sought to join the appeal, arguing his unique procedural journey in a similar s. 74 application would offer an additional perspective.

The Attorney General of Canada opposed the intervention, contending J.P.'s perspective would not be distinct from the existing respondents and could unduly expand the litigation's scope.

The court dismissed the motion, finding that while J.P. had an interest, his position was not meaningfully different from other similarly situated individuals, and granting intervention would expand the record and present evidentiary problems.

The appellant, convicted of sexual assault and touching for a sexual purpose, appealed his convictions.

The appeal focused on the trial judge's credibility assessment of the complainant and the appellant, the interpretation of text messages, and the admissibility of fresh evidence regarding the appellant's post-conviction dementia diagnosis.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings on credibility and the interpretation of inculpatory text messages as admissions of sexual abuse.

The court also rejected the fresh evidence application, finding it lacked cogency and due diligence.

The Haudenosaunee Development Institute (HDI) sought an interim injunction from the Court of Appeal for Ontario to prevent Metrolinx from removing trees near Osgoode Hall.

This motion was brought pending HDI's motion for leave to appeal the Divisional Court's denial of leave to appeal an earlier injunction denial.

The Court of Appeal dismissed the interim injunction, finding that HDI failed to demonstrate a serious issue to be tried.

The court reiterated that appeals from an intermediate court's refusal of leave to appeal are generally not available unless the lower court mistakenly declined jurisdiction, an exception not met by HDI's arguments regarding constitutional rights or consultation.

This appeal concerned a certified class action against Ford Motor Company regarding allegedly false or misleading fuel consumption estimates on EnerGuide labels and in marketing materials for 2013 and 2014 vehicles.

The class action alleged breaches of the federal Competition Act and provincial consumer protection legislation.

The Court of Appeal upheld the motion judge's dismissal of the class action, finding that Ford complied with mandatory federal guidelines for fuel consumption testing (2-Cycle Test) and that the representations were not false or misleading.

The court also addressed the "credulous and inexperienced consumer" standard, noting its applicability varies by statute, and found no deceptive non-disclosure.

This is a Crown appeal from an acquittal in a home invasion robbery case.

The Crown alleged the respondent was one of the perpetrators.

The trial judge acquitted the respondent after erroneously removing DNA evidence and prior discreditable conduct evidence from consideration as circumstantial evidence of guilt.

The Court of Appeal found that the trial judge erred by considering the DNA evidence in isolation and by failing to appreciate the full probative value of the prior discreditable conduct evidence, particularly regarding identity.

These errors had a material bearing on the acquittal.

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

The appellant, Feng Wang, appealed an endorsement from the Superior Court of Justice which dismissed his allegations of immigration fraud, theft, and contempt against the respondent, Min Li, and her lawyer.

The motion judge found Wang's allegations baseless and vexatious, and ordered him to pay costs.

Min Li brought a motion to quash Wang's appeal.

The Court of Appeal granted the motion to quash, finding the appeal constituted an abuse of process as it sought to re-litigate factual findings and lacked legal merit.

The court also noted it lacked jurisdiction as the underlying order was interlocutory, not final, given ongoing proceedings.

The appellant, Nicholas Wong, appealed his dangerous offender designation and indeterminate sentence.

He was convicted of two counts of attempted murder with a firearm and other related offences.

The Crown sought the dangerous offender designation based on a pattern of repetitive and persistent aggressive behaviour, including prior firearm possession offences.

Wong argued the sentencing judge erred by considering firearm possession as part of the pattern and by admitting expert evidence on gang affiliation and prior gun use.

The Court of Appeal dismissed the appeal, finding no errors in the sentencing judge's determination that Wong met the dangerous offender criteria, nor in the admission of the challenged evidence.

This is an appeal from a motion judge's order dismissing a motion to strike an action.

The motion judge had declared the respondent's claims timely and within the Ontario court's jurisdiction.

The Court of Appeal found that the motion judge erred by declaring the claim timely and precluding the appellant from raising a limitations defence on a Rule 21 motion, as fact-finding is generally not appropriate at that stage.

However, the Court upheld the motion judge's finding that the Ontario court had jurisdiction over the matter.

The appeal was allowed in part, striking the order that precluded the limitations defence.

Linda Palichuk appealed a Superior Court decision that found her mother, Nina, capable of managing her affairs and executing various instruments (will, powers of attorney, property transfer), refused a guardianship order, and dismissed Linda's undue influence claim as hypothetical.

The appeal also challenged an order removing Linda from Nina's bank account and a costs award against Linda.

The Court of Appeal dismissed the appeal, upholding the finding of capacity, affirming that undue influence claims regarding a living, capable person's executory instruments are premature and hypothetical, and upholding the costs award.

The appellant, convicted of second-degree murder, appealed on three grounds: the trial judge's alleged errors in jury instructions regarding after-the-fact conduct evidence and the relationship between intoxication and accident, and the unreasonableness of the verdict.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's comprehensive and fair instructions on after-the-fact conduct, which were vetted by the parties and relevant to the appellant's state of mind.

The court also found no reversible error in the intoxication instructions, noting that the jury was properly equipped to consider all evidence.

Finally, the court concluded that the second-degree murder verdict was reasonable, as there was sufficient inculpatory evidence for a properly instructed jury to reach that conclusion.