Renee M. Pomerance

The Court of Appeal for Ontario allowed Randy Hillier’s appeal, finding that Ontario’s absolute ban on outdoor peaceful assembly during the COVID-19 pandemic was not demonstrably justified under section 1 of the Charter.

The court held that the government failed to consider the impact of the gathering limits on the right to peaceful assembly under section 2(c) and did not tailor the restrictions to accommodate this fundamental freedom, unlike the approach taken for religious gatherings.

The decision clarifies the independent constitutional status of peaceful assembly and the necessity for governments to justify limits on this right, especially in the context of political protest.

The Court of Appeal for Ontario considered an appeal from a trial decision setting aside a mortgage and construction contract on the basis of fraudulent misrepresentation and unconscionability.

The appellants, including Xpert Credit Control Solutions Inc. and its director Sam Joshi, challenged the trial judge’s findings and the scope of the remedy.

The Court upheld the findings of liability but found the trial judge erred in setting aside the entire mortgage and awarding speculative damages.

The Court reduced the enforceable mortgage amount to $319,000, reflecting only the legitimate debt, and upheld $153,000 in damages for negligent construction, setting aside the requirement to pay $250,000 into trust.

The Court of Appeal for Ontario dismissed Arista Homes Limited's appeal from a summary judgment awarding Ellen De Castro eight months’ salary in lieu of notice following her dismissal without cause.

The court upheld the motion judge’s finding that the employment contract’s for-cause termination clause was unenforceable because it contravened the Employment Standards Act, 2000 by permitting termination without notice in circumstances broader than the statute allows.

The court emphasized the remedial purpose of the ESA and the interpretive principle that ambiguities in employment contracts are to be resolved in favour of employees.

The Court of Appeal for Ontario allowed the appeal of Danjing Han, setting aside a trial judgment that had awarded the respondents $302,000 for civil deceit and unjust enrichment.

The appellate court found that the trial judge erred in relying solely on admissions in the Statement of Defence to establish liability, without making any factual findings or determining the elements of the causes of action.

The court concluded that the admissions did not amount to admissions of liability and that the respondents had not met their burden of proof.

The Court of Appeal for Ontario allowed the appeal of Colin Patrick Murphy, finding that the motion judge erred by compelling Murphy to testify during his own civil contempt proceedings, in violation of section 11(c) of the Charter.

The compelled testimony was improperly used to support a finding of contempt and to justify a sentence of incarceration.

The Court held that section 11(c) applies to civil contempt proceedings, including sentencing, and prohibits testimonial compulsion once contempt is alleged.

The finding of contempt for failing to produce deleted data and the sentence were set aside, and the matter was remitted for a new sentencing hearing on the admitted acts of contempt.

The appellant appealed his convictions for sexual assault, incest, and sexual interference involving his biological daughter.

He argued that the trial judge misapprehended the complainant's evidence regarding the frequency of the abuse and failed to consider the implausibility of the allegations given the presence of a home surveillance camera.

The Court of Appeal for Ontario rejected these arguments, finding no error in the trial judge's assessment of the complainant's credibility or her treatment of the evidence.

The court also clarified the proper limits of admitting out-of-court statements under section 715.1 of the Criminal Code.

Consequently, the appeal was dismissed.

The appellant, Gaetano Di Blasi, appealed a trial order declaring a berm he constructed to be in breach of municipal bylaw, authorizing the Regional Municipality of York to enter his property for remediation, enjoining him from interfering with water flow, and requiring him to pay damages in nuisance.

He also appealed a contempt finding and a $10,000 fine for failing to comply with a 2014 order to remove the berm.

The Court of Appeal found no error in the trial judge’s decision, upheld the findings, and dismissed the appeal, awarding $25,000 in costs to the respondent.

The Court of Appeal for Ontario dismissed Apotex Inc.'s appeal regarding its claim for damages under section 8 of the Patented Medicines (Notice of Compliance) Regulations.

Apotex sought damages for delayed market entry of its generic drug due to Eli Lilly's prohibition application.

The trial judge found that Apotex was not entitled to damages, as the prohibition application was dismissed as moot, not on the merits, and that Apotex would not have entered the market earlier in a hypothetical world without the prohibition application due to risk aversion and potential patent infringement liability.

The Court of Appeal upheld these findings, concluding that Apotex failed to demonstrate any actual entitlement to damages.

The Court of Appeal for Ontario dismissed D.C.'s appeal from convictions for sexual assault and assault causing bodily harm.

The appellant argued that the trial judge erred in failing to declare a mistrial and in assessing the evidence.

The court found no error in the trial judge’s approach, including his assessment of the complainant’s credibility and the pattern of verdicts.

The court also rejected arguments regarding consent and the sufficiency of the evidence, upholding the convictions.

The appellant municipality appealed a Divisional Court order that quashed an Ontario Land Tribunal decision assuming jurisdiction over a dispute regarding a municipal servicing agreement.

The Court of Appeal held that the Tribunal's decision was interlocutory, as it only assumed jurisdiction on a prima facie basis and deferred the final determination of forum to the Superior Court.

Because the Ontario Land Tribunal Act only permits appeals of final decisions, the Divisional Court lacked jurisdiction to hear the appeal.

The appeal was allowed and the Tribunal's order was restored.

The appellant was convicted of sexual assault following a home invasion at a university residence and sentenced to nine years' imprisonment.

On appeal, he argued the trial judge erred in jury selection, misdirected the jury on reasonable doubt, and that the verdict was unreasonable.

He also appealed his sentence, arguing the trial judge misapprehended an expert opinion on his likelihood of re-offending.

The Court of Appeal dismissed the conviction appeal, finding no errors in the trial judge's jury screening or instructions, and upheld the sentence as eminently fit given the gravity of the offence and the appellant's extensive criminal record.

The appellant appealed his jury convictions for sexual assault and assault against his spouse.

He argued the trial judge erred by failing to give a limiting instruction regarding evidence of his controlling behaviour and by failing to caution against cross-count reasoning.

The Court of Appeal dismissed the appeal, finding the contextual evidence was relevant to the issue of consent and that a cross-count reasoning caution was unnecessary because the physical and sexual assaults were inextricably linked.

The appellant appealed his conviction for sexual interference following a jury trial.

At trial, the Crown argued in closing that the self-represented appellant's lack of romantic relationships provided a motive for the offences, characterizing him as a 'sexual opportunist'.

The trial judge included this theory of motive in the jury charge.

The Court of Appeal held that this evidence was irrelevant, prejudicial, and unfair, as it invited impermissible reasoning and the appellant was never cross-examined on it.

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

The appellant appealed his conviction and sentence for sexual assault.

The trial judge had accepted the seven-year-old complainant's evidence despite inconsistencies, relying on the child's description of the assault and his subsequent protective behaviour.

The Court of Appeal dismissed the conviction appeal, finding no misapplication of the law and holding that the trial judge's credibility findings were entitled to deference.

The sentence appeal was also dismissed, as the trial judge made no error in principle.

The appellant was convicted of second-degree murder following a fatal stabbing during an altercation.

At trial, he relied on self-defence and the partial defence of provocation.

During deliberations, the jury asked several questions seeking clarification on the elements of provocation, specifically the meaning of 'sudden' and 'sufficient'.

The trial judge's answers failed to adequately clarify the issues and amounted to misdirection regarding what conduct had to be sudden.

The Court of Appeal found the answers deficient, allowed the appeal, and ordered a new trial.

The appellant sought to certify a class action against the municipality for property damage caused by pinhole leaks in copper plumbing, allegedly resulting from the addition of sodium hydroxide to the municipal water supply.

The motion judge certified the negligence claim but struck the nuisance claim, finding it barred by s. 449 of the Municipal Act, 2001, which precludes nuisance claims related to the escape of water from water works.

The Court of Appeal upheld the decision, agreeing that the nuisance claim was plainly and obviously barred by the ordinary meaning of the statute.

The Court also dismissed the appellant's argument that a breach of contract claim should have been certified, as it was not argued before the motion judge.

The appellant was convicted of importing opium after drugs were found in his luggage upon returning from India.

He appealed his conviction, arguing the trial judge erred in her jury instructions regarding his unrecorded out-of-court statements to police, the Crown's comments on his right to silence, and the scope of the W.(D.) instruction.

The Court of Appeal dismissed the appeal, finding the jury instructions were functionally adequate, properly cautioned the jury on the right to silence, and correctly conveyed how to apply the burden of proof to the evidence as a whole.

The appellants, limited partners in a family-owned limited partnership, appealed the dismissal of their application seeking a declaration that they were entitled to an annual cash distribution of 100% of the partnership's net income.

They argued that section 11(1) of the Limited Partnerships Act and the Accumulations Act mandated such distributions, overriding the general partner's discretion under the limited partnership agreement.

The Court of Appeal dismissed the appeal, holding that the right to a 'share' of profits under the Act does not equate to a statutory obligation to make annual payments, and that the Accumulations Act does not apply to commercial endeavours.

The appellant appealed a summary judgment awarding the respondent $1,191,727.94 for a defaulted mortgage.

The appellant argued she was denied a fair hearing because her visual impairment was not adequately accommodated.

The Court of Appeal dismissed the appeal, noting the appellant had previously been granted two adjournments and did not request a further adjournment based on her disability at the hearing.

The motion judge's decision finding no triable issues was upheld.

The appellant appealed the dismissal of his action for damages related to a failed real estate transaction involving a Hindu Temple.

The trial judge had dismissed the claims of fraud and unjust enrichment, partly because the appellant's corporations were not named as parties.

The Court of Appeal upheld the dismissal of the fraud claims but found the trial judge erred in her treatment of the unjust enrichment claim and in limiting the piercing of the corporate veil to cases of fraud.

The Court allowed the appeal, awarded the appellant $7,500 for mortgage payments made on behalf of the respondents, and ordered a new trial for the unjust enrichment claim regarding the remaining advances.