Patrick J. Monahan

This appeal addresses an insurer's duty to defend and fund defence costs for mixed claims (covered and uncovered).

The Court of Appeal clarified the application of the pleadings rule to determine coverage and whether an insurer can seek equitable contribution from an insured.

The application judge erred in characterizing all claims as covered and in finding equitable contribution inapplicable between insurer and insured.

The Court found that statutory negligence claims were not covered by the Aviva policy, but upheld the initial 100% funding by Aviva, subject to reallocation after trial or settlement, as equitable contribution is only available between concurrent insurers, not from an insured.

The appellant sought to certify a class proceeding alleging a price-fixing conspiracy in the Canadian canned tuna market.

The motion judge dismissed the certification motion, finding a failure to plead material facts for a reasonable cause of action and an insufficient evidentiary basis for common issues.

The Court of Appeal upheld the dismissal, agreeing that the claim lacked material facts to support a Canadian conspiracy and that there was no sufficient factual basis for the proposed common issues, particularly given the distinct Canadian and U.S. tuna markets.

The court also confirmed its jurisdiction to hear the appeal, as the lower court's order effectively ended the proceeding.

This is a costs endorsement from the Court of Appeal for Ontario concerning multiple appeals and a motion.

The court ordered that all parties bear their own costs for the appeals and the motion before the lower court, indicating a balanced outcome on the issue of costs.

The Crown appealed a stay of proceedings granted for delay under s. 11(b) of the Charter.

The application judge found a delay exceeding the presumptive Jordan ceiling.

The Crown argued three errors: mischaracterizing preliminary inquiry delay, failing to deduct judicial deliberation time for committal reasons, and failing to account for defence's untimely s. 11(b) concerns.

The Court of Appeal dismissed the appeal, finding no error in the first point.

For the second point, the court clarified that judicial deliberation time for interlocutory matters is generally included within the Jordan ceilings.

The third point was not considered due to an insufficient factual record.

The appellant, J.F., appealed his convictions for multiple offences including assault, sexual assault, forcible confinement, uttering death threats, and careless storage of firearms.

The appeal challenged the trial judge's assessment of the complainant's credibility, specifically regarding the explanation of memory gaps due to trauma, reliance on testimonial demeanour, and the use of lack of exaggeration.

The appellant also argued insufficient reasons for the convictions.

The Court of Appeal dismissed the conviction appeal, finding that the trial judge properly applied the principles of credibility assessment, did not reverse the burden of proof, and provided sufficient reasons for the verdict.

The appellants appealed the dismissal of their anti-SLAPP motion under s. 137.1 of the Courts of Justice Act, which sought to dismiss a counterclaim brought against them by the respondents.

The motion judge found that the appellants' expression did not relate to a matter of public interest, failing the initial threshold for an anti-SLAPP motion.

The Court of Appeal upheld this decision, concluding that the appellants' expressions were primarily concerned with private property interests (e.g., tree protection, fencing, sightlines) related to an adjacent retirement facility development, rather than broader public concerns, despite the development itself having public interest aspects.

The court affirmed the deferential standard of review for a motion judge's finding on whether an expression relates to public interest and confirmed that the motion judge did not err by considering the context of the expressions without impermissibly assessing motivations.

The appellant, a Muslim charity, appealed the dismissal of its application challenging a Canadian Revenue Agency (CRA) audit process, alleging violations of its Charter rights due to discriminatory targeting and Islamophobic attitudes.

The application judge dismissed the challenge as premature, citing an insufficient factual record and the availability of administrative appeal processes under the Income Tax Act.

The Court of Appeal upheld the dismissal, affirming the court's discretion to refuse to decide a case based on a preliminary and incomplete factual record, even for Charter relief.

While disagreeing with the lower court's suggestion that the Tax Court's jurisdiction would necessarily bar a subsequent Superior Court Charter challenge, the appellate court found the prematurity finding to be correct given the ongoing administrative process.

The appellants, Thulani Chizanga and Shamar Meredith, appealed their convictions for second-degree murder and Mr. Meredith appealed his sentence.

The main issues on appeal included the admissibility of a "Super 8 Video" as prior discreditable conduct evidence, the trial judge's jury instructions on joint enterprise liability, post-offence demeanour evidence, and defence theories, as well as sentencing errors related to aggravating factors and mitigating circumstances.

The majority dismissed all appeals, finding no legal errors in the trial judge's decisions regarding evidence admissibility, jury instructions, or sentencing.

A dissenting judge would have allowed the conviction appeals and ordered a new trial, arguing the Super 8 Video was improperly admitted and instructed upon, particularly concerning its probative value for joint enterprise to kill.

The appellant, D.B., appealed his convictions for three historical sexual offences against his niece.

The appeal raised three grounds: improper use of evidence regarding the appellant's reaction/inaction when confronted with allegations, improper Crown submissions inviting the jury to infer the appellant lied to secure an acquittal, and failure to caution the jury on extrinsic misconduct evidence.

The Court of Appeal found that the jury was not sufficiently instructed on the lack of probative value of the reaction evidence and on the impermissible reasoning regarding the appellant's motive to lie.

These errors undermined the presumption of innocence and left the jury unequipped to fairly decide the case.

The appeal was allowed, convictions quashed, sentence set aside, and a new trial ordered.

The appellant, Terrance Nahmabin, appealed a finding of Not Criminally Responsible on account of Mental Disorder (NCRMD) for various offences.

The Court of Appeal for Ontario found procedural deficiencies in the original NCRMD proceedings, including an improper plea, lack of inquiry into the appellant's understanding of the NCRMD consequences despite his expressed distress, and insufficient reasons from the trial judge explaining the application of s. 16 of the Criminal Code.

The court emphasized the strict requirement for procedural fairness in NCRMD cases due to the serious liberty deprivations involved.

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

The appellant appealed his conviction for robbery with a firearm and his 7-year mandatory minimum sentence.

The conviction appeal grounds included inadequate jury instructions on eyewitness identification (including recognition and in-dock ID), insufficient caution on after-the-fact conduct, and inflammatory Crown closing remarks.

The sentence appeal grounds challenged the finding that the unrecovered gun was a "firearm" and the imposition of a consecutive sentence.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no reversible errors given the trial context and the evidence.

This appeal addresses whether limited partners can bring a common law derivative action on behalf of a limited partnership.

The Court of Appeal for Ontario held that while limited partners have direct causes of action against a general partner for breach of fiduciary duty or contract, negating the need for a derivative action in such cases, a common law derivative action may be available against third parties who have harmed the limited partnership, particularly when the general partner is in a conflict of interest and refuses to act.

The court dismissed the derivative action against the general partner and its director but granted leave for a derivative action against the three third parties, establishing a test for such leave.

The Crown appealed the acquittal of the respondent on charges including sexual exploitation and sexual assault.

The appeal argued that the trial judge erred by relying on stereotypical reasoning in assessing the complainant's credibility and by overemphasizing peripheral inconsistencies in the context of childhood abuse.

The Court of Appeal found that the trial judge's repeated focus on why the complainant continued to engage with the respondent, despite knowing the risk of assault, constituted stereotypical reasoning, which is an error of law.

This error was deemed to have materially affected the verdict, as the trial judge's assessment of the respondent's credibility was inextricably linked to her flawed assessment of the complainant's credibility.

The appeal was allowed, and a new trial ordered.

The appellant, Narman Abri, appealed a motion judge's decision to grant a nunc pro tunc order, deeming a statement of defence and counterclaim issued on the date of filing, despite not being formally issued before the limitation period expired.

The Court of Appeal affirmed the motion judge's decision, distinguishing the case from precedents requiring leave to commence an action.

The court found the lack of issuance to be a procedural irregularity under Rule 2.01, not undermining the purposes of limitation periods, as the appellant had notice of the counterclaim.

This appeal arose from a failed commercial real estate transaction where the appellants (buyers) failed to close and alleged fundamental breaches by the respondent (seller).

The motion judge granted partial summary judgment on liability in favour of the seller.

The Court of Appeal dismissed the appellants' motion for fresh evidence and their appeal, affirming the motion judge's finding that the alleged breaches by the seller were not fundamental and that the buyers had breached the agreement by failing to close.

Wasim Investments Ltd. appealed the dismissal of its statement of claim, which sought to enforce a mortgage.

The motion judge had dismissed the action as duplicative of a separate action commenced by the individual respondents, who sought to void the same mortgage, citing a clear risk of abuse of process due to potential inconsistent interpretations.

The Court of Appeal found no error in the motion judge's factual findings or her conclusion that the action was duplicative and an abuse of process, affirming that all issues regarding the mortgage's enforceability should be addressed within the original action.

The moving party sought a panel review of two prior orders from single judges of the Court of Appeal.

The first order dismissed a motion for an extension of time to appeal a peace bond decision, finding no merit in the proposed appeal.

The second order dismissed a motion for fresh evidence and witness summonses in an appeal related to stayed private prosecutions.

The panel dismissed both review motions, affirming the original decisions, finding no reversible errors or evidence of bias.

The applicant sought to reopen her application for leave to appeal a 2015 conviction for impaired driving, which had been dismissed by the Court of Appeal in 2017.

She raised a new argument of ineffective assistance of counsel at trial, which was not raised in previous appeals.

She also sought leave to appeal her sentence, which had never been appealed.

The Court of Appeal denied the motion, finding it lacked clear jurisdiction to reopen a dismissed leave application and, even if it did, would not exercise it.

The court noted that appeals from Summary Conviction Appeal Courts are limited to questions of law alone, and the new ground was not raised below.

Furthermore, the court reiterated its reluctance to allow new grounds of appeal and confirmed it had no jurisdiction to hear a sentence appeal directly from the trial court.

The appellant, an Indigenous individual found not criminally responsible on account of mental disorder (NCRMD), appealed the Ontario Review Board's refusal to order a Gladue Report for his next annual review.

The Board had deemed the report premature, suggesting it would be more beneficial after further treatment stability.

The Court of Appeal found the Board's refusal unreasonable, emphasizing its duty to gather all relevant evidence, including Gladue information, for Indigenous NCR accused persons.

The court reiterated that Gladue principles apply to Board proceedings and require a distinct analytical approach.

The appeal was allowed, and the Board was ordered to ensure a Gladue Report is prepared before the appellant's next hearing.

This case involves cross-appeals from a conviction for sexual assault and the imposed sentence.

The appellant, E.N., appealed his conviction, arguing the trial judge erred in dismissing his s. 276 application to adduce evidence of prior sexual activity with the complainant and in assessing credibility.

The Court of Appeal dismissed the conviction appeal, finding no error in the trial judge's s. 276 ruling or credibility assessment, which was entitled to deference.

The Crown appealed the sentence of two years less a day plus three years of probation, arguing it was demonstrably unfit due to errors in weighing aggravating and mitigating factors.

The Court of Appeal also dismissed the sentence appeal, concluding that the trial judge made no reviewable error and the sentence was not demonstrably unfit, having properly applied sentencing principles including denunciation and deterrence.