Court of Appeal

The Court of Appeal for Ontario dismissed Adeyanju Olaniyan’s application for bail pending appeal of his committal for extradition to the United States on fraud charges.

The court reviewed the statutory test for bail pending appeal in the extradition context, emphasizing the low threshold for the merits of the appeal but the heightened concern for flight risk due to Canada’s international obligations.

The court found that Mr. Olaniyan had not established he was not a flight risk, given his prior breach of bail conditions and the inadequacy of his proposed release plan.

The application was dismissed and the appeal was ordered expedited.

The Court of Appeal for Ontario dismissed the appeal by 2724582 Ontario Inc. and related parties, upholding the motion judge’s decision that a release signed by Rhonda Gold was void and unenforceable.

The court found that the process used to determine the enforceability of the release was appropriate, as both parties had agreed to it.

The release was found void in part because it contained an illegal provision barring regulatory complaints.

The court also rejected arguments that the motion judge’s findings about the mortgage scheme would cause inconsistent results at trial, and found no error in the judge’s treatment of the evidence.

Costs were awarded to the respondent.

The appellant, Sandra Forcier, appealed her convictions for sexual assault and sexual exploitation.

The Court of Appeal for Ontario dismissed the appeal, finding no basis to interfere with the trial judge’s credibility findings or conclusions.

The court noted the assistance of amicus curiae due to the appellant’s brain injury and confirmed that the trial judge’s reasons were entitled to deference.

The Court of Appeal for Ontario dismissed Ashir Mahmood’s conviction and sentence appeals for sexual assault.

The appellant argued that the trial judge erred by not giving a post-offence conduct instruction regarding a text message, by providing insufficient instructions on prior consistent statements, and by delivering an unbalanced charge.

The court found the jury was properly instructed and that the trial judge considered all relevant sentencing factors, including the appellant’s youth and lack of criminal record.

The conviction and sentence were upheld.

The Court of Appeal for Ontario dismissed a motion by the appellants for a Norwich-type order seeking production of insurance-related documents from non-parties in the context of an appeal.

The court held that Norwich orders are a pre-trial remedy and are not available at the appellate stage.

The court also found that, even if such an order were available, it would not be appropriate in this case given the findings of fraud against the appellants and the lack of relevance of insurance proceeds to the damages award.

Costs were awarded to the respondent.

The Court of Appeal for Ontario dismissed the appeal of Mounia Hassani Alami from a comprehensive trial judgment addressing property, support, and tort claims following the parties’ separation and divorce.

The appeal focused on the trial judge’s findings regarding a resulting trust in the matrimonial home and responsibility for a post-separation mortgage.

The Court upheld the trial judge’s application of the resulting trust doctrine and allocation of mortgage responsibility, finding no reviewable error.

Costs of $15,000 were awarded to the respondent.

The Court of Appeal for Ontario granted James Cole’s motion to extend the time to file a notice of appeal from his convictions and sentence for dangerous driving and related offences.

Cole argued his guilty plea was uninformed and involuntary because neither he, his counsel, the Crown, nor the court were aware that his plea would trigger an automatic lifetime driving suspension under the Highway Traffic Act.

The court found that Cole had adequately explained the delay in bringing the motion and had put forward arguable grounds of appeal, particularly regarding the significant collateral consequence of the automatic suspension.

The court concluded that the interests of justice warranted granting the extension.

The Court of Appeal for Ontario dismissed B.N.'s application for bail pending appeal from convictions for sexual assault and related offences.

The court found that, although the ground of ineffective assistance of counsel clearly surpassed the "not frivolous" standard, public safety concerns—given B.N.'s extensive history of breaches and violence—outweighed reviewability and enforceability interests.

The decision applies the Oland/Farinacci framework for bail pending appeal and emphasizes the stand-alone importance of public safety in intimate partner violence cases.

The appellant, Taylor Kuhni, appealed the imposition of a lifetime driving prohibition following guilty pleas to several offences, including dangerous operation of a conveyance.

The Court of Appeal found that the sentencing judge erred in imposing a lifetime prohibition, as the maximum allowed by law was 10 years.

The court substituted a 10-year prohibition and dismissed the appellant’s request for an adjournment to consider a claim of ineffective assistance of counsel.

The Court of Appeal for Ontario dismissed the Crown's appeal from a directed verdict of acquittal on a charge of accessory after the fact to murder.

The court found that the evidence did not support leaving the charge to the jury on the basis of wilful blindness, as there was no basis for a reasonable jury to find that the respondent knew or was wilfully blind to the fact that the victim had died.

The court also held there was no air of reality to the included offence of being an accessory after the fact to attempted murder, as the evidence established the victim died and there was no live issue as to causation.

This costs endorsement follows the Court of Appeal’s decision allowing the appellants’ appeal in part.

The court found that the trial judge erred in requiring Mak Mera Limited to repay US$405,000 and in awarding $200,000 in defamation damages to James Bay Resources Limited.

The appellants were awarded costs of the appeal and, after submissions on trial costs, the court awarded the appellants $400,000 in trial costs, payable by James Bay, as a fair and proportionate amount in light of the appeal outcome and the parties’ relative success.

This costs endorsement follows the Law Society of Ontario’s successful motion before the Court of Appeal for Ontario.

The court orders each of the moving parties severally liable for costs of $200, payable to the Law Society of Ontario, on a partial indemnity basis.

The Court of Appeal for Ontario dismissed the Crown's appeal from a directed verdict of acquittal for Abdullahi Osman, who was charged as an accessory after the fact to murder.

The court held that, although attempted murder can in rare cases be an included offence to murder, there was no air of reality to the included offence of being an accessory after the fact to attempted murder in this case, as the evidence was clear that the principal's acts caused the victim's death.

The decision clarifies the law on included offences, the requirements for accessory after the fact liability, and the rare circumstances in which attempted murder may be left to a jury as an included offence where the victim dies.

The appellants, Andrew Smoke and Eric Smoke, appealed their convictions for the second degree murder of Andrew “Scruff” Davis.

The Court of Appeal for Ontario dismissed both appeals, finding no error in the trial judge’s instructions to the jury regarding aiding and abetting, after-the-fact conduct, and the use of statements attributed to Andrew.

The court also found the verdict against Eric was not unreasonable, given the circumstantial evidence, including DNA and video evidence.

The Court of Appeal for Ontario considered whether to grant Diana and Michael Hordo an extension of time to seek leave to appeal a Divisional Court decision.

The Hordos failed to comply with procedural rules and repeatedly submitted deficient materials.

The court applied the test for an extension of time, focusing on the merits of the proposed appeal, and found that the only potentially meritorious ground was a reasonable apprehension of bias.

The court granted the extension, referred the perfected motion for leave to a panel, and reserved costs.

The Court of Appeal for Ontario considered whether an order consolidating two actions and dismissing a summary judgment motion was final or interlocutory, and whether to stay the operation of the schedule in the motion judge’s order pending appeal.

The court found the order to be final, as it disposed of the limitation defence under the Real Property Limitations Act, and stayed the order pending appeal.

This decision concerns a Crown appeal from sentence, focusing on the tension between proportionality and public protection in sentencing a repeat violent offender.

The Court of Appeal found that the sentencing judge erred by failing to give sufficient weight to the respondent’s extensive criminal record and the seriousness of her recent offences, and by anchoring the analysis solely to a previous sentence.

The Court substituted a penitentiary sentence and imposed a 10-year Long-Term Supervision Order (LTSO), emphasizing the need for public protection and the proper application of sentencing principles.

The Court of Appeal for Ontario dismissed the appeal of Ilinka Armstrong and Dean Tully from an order removing them as estate trustees for the estate of Dan Muscat and denied leave to appeal a related costs order.

The court found that Armstrong was in a conflict of interest due to her romantic relationship with a potential purchaser of the estate’s business, failed to disclose this conflict, and did not undertake proper due diligence.

The court upheld the application judge’s decision to remove the trustees and order them to pay costs personally.

The appellant, Nathalie Xian Yi Yan, sought a panel review of a motion judge’s decision dismissing her motion for a stay pending appeal.

The underlying appeal was from an order declaring her a vexatious litigant under section 140 of the Courts of Justice Act.

The Court of Appeal dismissed the review motion, holding that Yan had not obtained leave to bring the motion as required by the vexatious litigant order and the statute.

The court reiterated that a person declared a vexatious litigant may file a notice of appeal without leave, but requires leave for any motions in the appeal.

The court found no error in the motion judge’s decision and awarded costs to the College.

The Court of Appeal for Ontario considered Lisa Griffiths’s appeal from her conviction and sentence for multiple counts of breaking and entering and attempted break and enter.

The court dismissed the conviction appeal but allowed the sentence appeal, finding that the trial judge erred by treating Griffiths’s decision to go to trial as a lack of remorse and by increasing her sentence on that basis.

The court substituted a sentence of 15 months’ imprisonment and two years’ probation, but declined to impose a conditional sentence.