ONCA 2023

The tenant appealed the dismissal of his application to compel the landlord's consent to a commercial lease assignment.

The Court of Appeal found that the application judge erred in applying the doctrine of waiver, which was not raised by the parties, and in failing to find that the landlord had unreasonably neglected and refused consent.

The landlord failed to respond within the lease's 15-day deadline and subsequently imposed unreasonable conditions, including a demolition clause and last-minute, overreaching requests for financial information.

The appeal was allowed, and the landlord was ordered to consent to the assignment.

The applicant sought bail pending an application for leave to appeal his conviction for possessing heroin mixed with fentanyl for the purpose of trafficking to the Supreme Court of Canada.

The Court of Appeal had previously dismissed his conviction and sentence appeal.

The motion judge applied the three-part test for bail pending appeal under s. 679(3) of the Criminal Code, considering whether the leave application was frivolous, if the applicant would surrender, and if detention was necessary in the public interest.

While the applicant satisfied the surrender criterion and the leave application was deemed not frivolous (though with low prospects), the court found that the public interest, particularly the enforceability of the sentence for a serious drug trafficking offense, outweighed the reviewability interest, especially after the conviction had been affirmed by the Court of Appeal.

The application for bail pending leave to appeal was denied.

The appellant, S.M.C., sought to appeal a sexual assault conviction but failed to perfect the appeal despite numerous court appearances, extensions, and warnings.

The Court of Appeal for Ontario dismissed the appeal as abandoned, citing egregious and persistent non-compliance with court directions, including a prior failure to comply with bail conditions.

The court emphasized that the justice system cannot operate effectively if court orders are disregarded.

Dexter Ramsundarsingh brought a motion for the rehearing of an appeal decided by the Court of Appeal for Ontario, seeking to re-open the appeal and re-hear submissions on whether a suicide note should be construed as a codicil to a previous will rather than a valid holographic will.

The court dismissed the motion, finding that it did not meet the "high hurdle" required for re-opening an appeal before a formal order is issued, as the issue had already been identified and argued in the original appeal.

The court clarified its jurisdiction to reconsider but found no rare circumstance warranting a re-hearing.

The appellant, Daniel Castellano, appealed his convictions for various criminal offences, including mischief, careless storage of a firearm, possession of stolen property, explosives, and a weapon for a dangerous purpose.

He raised two grounds of appeal: that the trial judge erred in concluding his police statement was voluntary, and in dismissing his application to cross-examine the affiant on the information to obtain the search warrant (ITO).

The Court of Appeal dismissed the appeal, affirming the trial judge's holistic approach to voluntariness and her discretion in denying cross-examination on the ITO, finding no error in principle or application of the relevant tests.

The appellant, Tyrone Burton, appealed his convictions for human trafficking, receiving a benefit from human trafficking, exercising control for the purpose of receiving a benefit from prostitution, and obstruction of justice, as well as his sentence of 10.5 years in custody and a 10-year long-term supervision order.

The Court of Appeal dismissed the conviction appeal, with the exception of two counts of exercising control which were stayed by Crown concession under the Kienapple principle.

The sentence appeal was also dismissed, with the court finding the sentence fit and within range, and upholding the long-term supervision order.

The court rejected arguments regarding the trial judge's application of law, questioning of witnesses, use of evidence, and the appellant's opportunity to testify.

Charlas MacKenzie, eligible for rent-geared-to-income assistance, had his subsidy terminated by Ottawa Community Housing Corporation and the City of Ottawa.

This was due to his failure to report a change in household composition (daughters removed due to bail conditions) and prolonged absence from his unit (required to live with surety).

The Divisional Court dismissed his application for judicial review, finding the respondents' decisions reasonable.

The Court of Appeal upheld the Divisional Court's decision, finding the respondents' interpretation and application of the Housing Services Act, 2011 and its regulations regarding reporting changes and absence from the unit to be reasonable, particularly in the context of limited housing subsidies and long waitlists.

The court also found no error in the assessment of extenuating circumstances.

The appellant, a real estate lawyer, appealed the dismissal of his claims of civil fraud and equitable fraud against his former real estate clerk and her husband.

The appellant alleged they used his law office to facilitate fraudulent schemes.

The trial judge dismissed the claims, finding the appellant failed to prove false representations were made to him and that there was no unconscionable conduct for equitable fraud.

The Court of Appeal upheld the trial judge's decision, finding no palpable and overriding error in the factual findings or legal application, and dismissed the appeal.

The appellant, a live-in caregiver, appealed the Divisional Court's dismissal of her judicial review application.

She sought special priority status for subsidized housing, arguing she was abused by her employer and financially dependent on them.

The Regional Municipality of Peel denied this, asserting the relationship was not familial and financial dependence ceased with employment.

The Court of Appeal upheld the Divisional Court's finding that the Region's decision was reasonable, deferring to the administrative body's interpretation of "financially dependent" within the Housing Services Act, 2011, especially given the need to allocate scarce resources.

The Court found the Divisional Court did not err by providing additional context for the Region's decision.

The appellant, Robert Francis Fox, appealed his conviction for sexual assault after pleading guilty mid-trial.

He sought to withdraw his guilty plea, arguing it was involuntary due to misinformed advice from his trial counsel regarding the collateral consequence of losing access to his young daughter if convicted.

The Court of Appeal, considering fresh evidence from a family and criminal lawyer, found that the trial counsel's advice was exaggerated and incorrect, leading to an improperly informed plea.

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

The Crown appealed the dismissal of its motion to strike a statement of claim as a nullity.

The claim was brought by the respondent without the required 60-day notice under the Crown Liability and Proceedings Act, 2019 (CLPA).

The motion judge dismissed the Crown's motion due to delay, but the Court of Appeal found this was an error in law, as the CLPA explicitly states such an action is a nullity from its commencement, and delay or estoppel cannot override this statutory provision.

The appeal was allowed, and the claim against the Crown was struck out as a nullity.

The applicant, Ross Jacko, sought bail pending appeal after being convicted of assault causing bodily harm and assault with a weapon, and sentenced to three years' imprisonment.

The application was brought under s. 679(3) of the Criminal Code.

While the Crown conceded the appeal was not frivolous, the court found the proposed release plan, involving two sureties (mother and friend) and strict terms, insufficient to address flight risk and public safety concerns.

Given the applicant's extensive criminal record, history of violent offences, and prior bail breaches, the court was not satisfied he would surrender or that his detention was unnecessary in the public interest.

The application was dismissed, with an order to expedite the appeal hearing.

The moving party, previously declared a vexatious litigant, brought a motion under Rule 59.06 of the Rules of Civil Procedure to set aside or vary an appeal decision, alleging fraud.

The Court of Appeal, on its own initiative under Rule 2.1.02(1) of the Rules of Civil Procedure, dismissed the motion as frivolous, vexatious, and an abuse of process, finding no basis for the fraud claim.

The Crown appealed the seven-year sentence imposed on the respondent for attempted murder of his pregnant intimate partner.

The Court of Appeal found that the sentencing judge erred in principle by failing to adequately apply the primary sentencing objectives of denunciation and deterrence, particularly in a domestic context, by misunderstanding the aggravating impact of planning and deliberation, and by misidentifying the appropriate sentencing range.

The Court emphasized that rehabilitation should not outweigh denunciation and deterrence in such serious cases and that sentencing ranges evolve with societal understanding of domestic violence.

The Court also found an error in the application of "Duncan" credits, which were treated as a direct reduction rather than a mitigating factor.

The appeal was allowed, and a sentence of 15 years imprisonment was substituted, less credit for time served.

The appellant appealed a conviction for child luring, arguing an honest but mistaken belief that the complainant was 18 years of age.

The Court of Appeal dismissed the appeal, upholding the trial judge's credibility findings.

The trial judge found that the complainant had explicitly told the appellant she was 14, and the Crown had proven beyond a reasonable doubt that the appellant knew the complainant was under 18.

The appellate court affirmed that the trial judge's credibility findings, which were fully explained and entitled to deference, precluded any air of reality for the appellant's defence.

The appellant appealed a summary judgment dismissing her claim and granting the respondents' counterclaim in a failed residential real estate transaction.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors in the motion judge's factual findings or errors of law.

The appellant's arguments regarding title ownership at the time of contract signing and the need for consent for title transfer were rejected, as the seller was able to convey good title at closing and the appellant had entered into an amendment with knowledge of the title change.

The appellant failed to tender the purchase price, justifying the forfeiture of the deposit.

The appellant, M.V., appealed a sexual assault sentence, arguing for enhanced credit for time served in federal custody after his initial conviction was overturned and a new trial ordered.

The trial judge had granted 1:1 credit for this period, reasoning that the appellant had access to federal programs.

The Court of Appeal found this to be an error in principle, as the trial judge failed to consider that this time would not count towards parole eligibility and statutory release for the new sentence.

The appeal was allowed, and the appellant was granted an additional 368 days of credit, reducing his net sentence from two years to one year.

The appellant, Yasin Abdulle, appealed his conviction for second-degree murder and his 15-year parole ineligibility period.

The conviction appeal challenged the admission of evidence regarding prior violent incidents between rival gangs and the use of rap music lyrics during cross-examination.

The sentence appeal argued that the trial judge erred by minimizing the impact of systemic anti-Black racism on the appellant's moral culpability.

The Court of Appeal dismissed both appeals, finding no error in the admission of prior incident evidence or the use of rap lyrics for cross-examination.

While acknowledging the trial judge's error in dismissing evidence of anti-Black racism, the Court found this error did not impact the fit sentence, given the seriousness of the "near first-degree murder" offence and the need for denunciation and deterrence.

The appellant appealed a 22-month jail sentence for accessing and possessing child pornography, seeking a conditional sentence and arguing errors in considering an unconstitutional mandatory minimum and failing to weigh health problems.

The Crown conceded the unconstitutionality of the minimum but argued the sentence was fit.

The Court of Appeal upheld the 22-month sentence, finding it appropriate given the nature and volume of the material, and that health issues were considered.

However, on consent, the court allowed the appeal to substitute a 20-year Sex Offender Information Registration Act (SOIRA) registration for the lifetime order, applying the Supreme Court of Canada's decision in R. v. Ndhlovu.

The appellants sought to overturn a summary judgment granted in favour of the respondent bank, which found no dispute regarding loan and credit card agreements and unpaid funds.

The Court of Appeal dismissed the appeal, deferring to the motion judge's factual findings and finding no legal basis to interfere with the decision, including based on fresh evidence.