ONCA 2024

The appellants and respondents own subdivided properties near Lake Ontario.

The appellants own a strip of land subject to an easement granting the respondents pedestrian access to use and enjoy the shores of Lake Ontario.

The appellants sought a declaration that the easement restricted the respondents to ingress and egress, and that 'shores' meant the area between the high and low water marks.

The application judge dismissed the application, finding the respondents could use the grassy area of the strip for recreational activities.

The Court of Appeal allowed the appeal, holding that the application judge erred by relying on inadmissible subjective intent evidence.

The Court declared the easement restricts the respondents to pedestrian access for ingress and egress to the shores, defined as the land between the high and low water marks.

The appellants, Gavin MacMillan and Enzo De Jesus Carrasco, appealed their convictions for sexual assault and administering a stupefying substance, and their nine-year sentences.

They argued the trial judge erred in admitting expert evidence, excluding evidence of the complainant's prior sexual activity, instructing the jury on consent (specifically regarding orgasms), and demonstrating a reasonable apprehension of bias.

The Court of Appeal dismissed all grounds of appeal, upholding the convictions and sentences.

The court affirmed the trial judge's rulings on expert evidence necessity and impartiality, the proper application of s. 276 of the Criminal Code regarding consent and prior sexual activity, and found no reasonable apprehension of bias.

The sentences were deemed fit and not demonstrably unfit.

The appellant wife appealed a trial judge's order requiring her to make an equalization payment to the husband.

The appellant argued that the trial judge erred by ordering such a payment in an uncontested trial where the respondent husband provided no financial disclosure and never requested equalization.

The Court of Appeal allowed the appeal, finding that the trial judge made a palpable and overriding error by ordering an equalization payment without an adequate factual basis due to the respondent's complete failure to disclose financial information.

The court emphasized the fundamental duty of financial disclosure in family law proceedings and set aside the equalization order, directing that no equalization payment was owing and the appellant was entitled to the full proceeds of the matrimonial home sale.

The appellant was convicted of sexual assault and sexual interference.

On appeal, the appellant argued that the trial judge erred in failing to provide a corrective instruction after the Crown's closing address invited the jury to engage in impermissible reasoning, specifically by linking the absence of a motive to fabricate with the reliability of the complainant's testimony.

The Court of Appeal found that the Crown's closing improperly invited the jury to equate the complainant's good relationship with the appellant and lack of motive to fabricate with the reliability of her evidence.

The court held that a corrective instruction was required, and its absence compromised the appellant's right to a fair trial.

The convictions were set aside, and a new trial was ordered.

The appellant appealed a lower court's dismissal of her application against the Attorneys General of Canada and Ontario under Rule 2.1.01(1) of the Rules of Civil Procedure, which allows for dismissal of frivolous, vexatious, or abusive proceedings.

The appellant sought declarations regarding the disrepute of the justice system and breaches of Charter rights.

The motion judge dismissed the application without a hearing, finding it an attempt to relitigate similar allegations, lacking standing, and non-justiciable.

The Court of Appeal upheld the dismissal, affirming the motion judge's discretion to proceed without submissions under Rule 2.1.01 and her finding that the application was an abuse of process.

The appeal was dismissed with costs.

This is an appeal from conviction where the appellant argued the Crown breached confidential informant privilege by disclosing information to a co-accused.

The Court of Appeal found the trial judge erred by applying an overly narrow standard for determining a privilege breach, emphasizing that any information that *might tend* to identify an informant is protected.

The Crown's failure to protect this near-absolute privilege, despite repeated warnings, constituted an abuse of process.

The convictions were set aside, and a stay of proceedings was entered.

The Estate of Ivo Lepan appealed a motion judge's order that found the Estate had waived non-pecuniary damages claims related to statutory accident benefits and tort settlements.

The Court of Appeal found that the motion judge misapprehended the pleading and counsel's statements, concluding that the Estate had only given up pecuniary claims related to those settlements, not non-pecuniary damages.

The court emphasized that the amendments to the Statement of Claim were intended to address the issue of counsel disqualification, not to waive broader non-pecuniary claims.

The appeal was allowed, and the litigation was directed to proceed on the merits.

The appellant, J.R., appealed a conviction for sexual assault, arguing the trial judge erred in finding the touching of the complainant's leg to be of a sexual nature.

The Court of Appeal found no error in the trial judge's legally and factually sound reasons.

The appellant also raised an issue regarding the complainant's age in institutional records, but the trial judge had already found that the complainant's age (under 18) was not proven beyond a reasonable doubt for sentencing purposes.

The conviction appeal was dismissed.

A publication ban order under ss. 486.4 or 486.6 of the Criminal Code remains in effect.

The appellant appealed a 5-year sentence for possession of methamphetamine for the purpose of trafficking, arguing the sentencing judge failed to sufficiently account for harsh presentence custody conditions and made other errors.

The Court of Appeal found the sentencing judge correctly considered the harsh conditions as a mitigating factor, resulting in a sentence at the low end of the range.

However, the court agreed with the appellant that he was improperly denied enhanced R. v. Summers credit for a 32-day period due to a missed court appearance, as his explanation was unchallenged.

The appeal was allowed, and the appellant was granted an additional 16 days of presentence custody credit.

The appellant, Edson Neto, appealed his conviction for sexual assault causing bodily harm.

The trial judge had convicted him based on the complainant's consistent testimony and powerful confirmatory medical evidence, despite concerns about the complainant's reliability on other charges (human trafficking, of which he was acquitted).

The appeal focused on whether the trial judge erred in finding the medical evidence confirmatory of the sexual assault.

The Court of Appeal found no error, concluding that the medical evidence (vaginal bleeding, lacerations, abrasions, swelling) was consistent with a violent sexual assault and inconsistent with the appellant's claim of menstruation, thereby confirming the complainant's account and disposing of the defence's alternative hypothesis.

The appeal was dismissed.

The appellant appealed his conviction for sexual assault, raising two grounds: an alleged error in the severance application regarding charges involving two complainants, and serious errors in the trial judge's credibility analysis.

The Court of Appeal dismissed the appeal, affirming the high deference owed to severance decisions and credibility findings.

The court found no error in the application judge's decision to not sever the charges, noting the low threshold for similar act evidence at the severance stage and the lack of injustice given the judge-alone trial and partial acquittal.

The court also upheld the trial judge's credibility assessment, finding no impermissible reasoning or unequal scrutiny.

The appellants, proposed representative plaintiffs in a class action, appealed a motion judge's decision regarding leave to pursue claims against Barrick Gold Corporation for alleged misrepresentations under the Ontario Securities Act.

The appeal concerned the denial of leave for certain misrepresentation allegations related to Barrick's capital expenditure budget and production schedule, and the identification of public correction dates.

The Court of Appeal dismissed the appeal, affirming the motion judge's finding that there was no reasonable possibility of success for the additional misrepresentation claims and that the earlier public disclosure fully corrected the alleged misrepresentations, thereby limiting the class period.

The appellant appealed the dismissal of his personal injury action, which was found to be statute-barred due to the two-year limitation period.

The motion judge concluded that the appellant's injuries were discoverable well within the limitation period.

The Court of Appeal dismissed the appeal, finding no reversible error in the motion judge's application of discoverability principles under the Limitations Act and the threshold for serious and permanent impairment under the Insurance Act.

The Court clarified that formal medical opinions required for a threshold motion are not necessary to trigger the limitation period.

The appellants appealed the dismissal of their motion regarding the respondent's legal capacity to bring an action and the adjournment of their motion concerning abuse of process.

The Court of Appeal dismissed the appeal on the capacity issue, finding no error in the motion judge's determination that it was not plain and obvious the respondent lacked capacity.

However, the Court allowed the appeal on the abuse of process issue, concluding that the motion judge erred by adjourning the matter sine die despite making findings that indicated an abuse of process.

The Court found the 'Milton Action' to be vexatious and an abuse of process, as it replicated a prior 'Toronto Action' without viable explanation, leading to unnecessary delay and expense.

Consequently, the Court dismissed the 'Milton Action'.

The appellant's action for breach of fiduciary duty and negligence against real estate agents was dismissed on summary judgment due to being commenced outside the two-year limitation period.

The appellant argued she did not discover the material facts until later.

The Court of Appeal upheld the motion judge's decision, affirming that the discoverability period begins when the plaintiff knows or ought to have known the material facts, not the legal conclusion.

The court noted the appellant had previously pleaded the agents were her agents in a prior action, indicating knowledge of the material facts.

The appeal was dismissed with costs.

The Ontario government appealed a decision finding that the Protecting a Sustainable Public Sector for Future Generations Act, 2019 (Bill 124), which imposed a 1% cap on compensation increases for broader public sector employees, violated the right to freedom of association under s. 2(d) of the Charter.

The Court of Appeal upheld the application judge's finding that the Act substantially interfered with the respondents' collective bargaining rights and was not saved by s. 1 of the Charter, as it was not minimally impairing and its deleterious effects outweighed its salutary effects.

However, the Court allowed the appeal in part to limit the declaration of invalidity to represented employees, as non-represented employees do not benefit from the same collective bargaining protections.

The appellant, Joseph Hodgkin, appealed his sentence for accessory after the fact to murder.

The Court of Appeal found that the sentencing judge erred in principle by failing to explicitly apply R. v. Gladue principles.

However, the Court concluded that despite this error, the sentence would have been the same had a specific Gladue analysis been conducted, given that the sentencing reasons adequately addressed the appellant's background and Indigeneity.

The appeal was dismissed, but a correction to the warrant of committal was ordered regarding a Long-Term Offender finding.

The appellant, Romaine McBean, appealed convictions for assault, uttering threats, and sexual assault.

The appellant argued that the trial judge erred by stating that the appellant compelled the complainant to engage in sexual touching by abusing a position of power and authority, claiming there was no basis for such a finding.

The Court of Appeal clarified that the trial judge's reasons did not hinge on the complainant's inability to consent due to a power imbalance, but rather on the complainant's subjective lack of consent stemming from fear induced by the appellant's actions, including preventing her from leaving, threatening her, and making demands for sexual activity.

The Court found no error in the trial judge's approach to consent and dismissed the appeal.

The appellants appealed a motion judge's order granting leave to amend a statement of claim.

The respondents moved to quash the appeal, arguing the order was interlocutory and thus the Court of Appeal lacked jurisdiction.

The court found the order to be interlocutory, confirming that appeals of such orders lie with the Divisional Court with leave, not the Court of Appeal.

The motion to quash was granted.

This is a panel review by the Court of Appeal for Ontario concerning an appeal regarding the amount owing on an unpaid mortgage loan and possession of property.

The appellant, Juleth Dawson, sought to restore possession of the property after a single judge of the court had previously dismissed her motion for a stay of execution and granted possession to the respondents.

The appellant did not appear for the hearing, and the appeal proceeded on written materials.

The court found no basis to interfere with the single judge's order, noting the appellant's inability to raise funds or pay the mortgage.

The motion was dismissed with costs.