Sally A. Gomery

The appellant, R.K., appealed his conviction for aggravated sexual assault, sexual interference, and breach of recognizance, and his designation as a dangerous offender.

The appeal challenged the trial judge's admission of hearsay evidence (complainant's preliminary hearing testimony and videotaped statement) under the *Khan* test, the adequacy of the *W.(D.)* analysis, the general adequacy of reasons, and the application of the *Kienapple* principle.

The Court of Appeal dismissed all grounds of appeal, finding no error in the trial judge's rulings on hearsay, the *W.(D.)* analysis, or the dangerous offender designation.

The *Kienapple* argument was declined as it was not raised below and had no practical effect.

The appellants, Tyson Rogerson and his adoptive parents, appealed the dismissal of their medical malpractice action against two physicians, Dr. Elyse Savaria and Dr. Nkiruka Nwebube.

The appellants argued that the physicians breached their duty of care by failing to report a suspected risk of harm to Tyson to the Children's Aid Society (CAS) under s. 72 of the Child and Family Services Act, which they contended would have prevented Tyson's catastrophic brain injury.

The Court of Appeal upheld the trial judge's findings that the physicians did not breach the standard of care in failing to report, and even if there was a breach, the appellants failed to prove causation, as the CAS would not have intervened in a way that would have prevented the injury.

The appeal was dismissed.

The appellant father appealed an order from an uncontested trial where his pleadings were struck for non-disclosure in a child support motion to change.

The respondent mother brought a motion to quash the appeal, arguing the father lacked standing.

The Court of Appeal granted the motion to quash, dismissing the appeal.

The court affirmed that parties whose pleadings are struck generally lack standing to appeal an uncontested trial order, finding no exceptional circumstances.

It clarified that evolving Section 7 expenses do not constitute new heads of relief requiring amended pleadings, distinguishing the case from Freedman v. Freedman.

The court emphasized the importance of disclosure in child support matters.

The Cardillo Parties sought review of a chambers judge's decision that denied them an automatic right of appeal under the Bankruptcy and Insolvency Act (BIA) and refused leave to appeal.

The chambers judge had found the underlying order to be procedural and that a single judge had the authority to determine the right of appeal and deny leave, applying the doctrine of paramountcy.

The Court of Appeal dismissed the Cardillo Parties' motion, affirming the chambers judge's findings that the decision was procedural, a single judge had the authority, and paramountcy applied, thus denying the appeal.

1000093910 Ontario Inc., a company in receivership, appealed the motion judge’s decision to decline hearing its cross-motion and to grant the receiver’s proposal for a public auction of its primary asset.

The cross-motion sought to vary the receivership order and enforce an earlier agreement of purchase and sale (APS).

The Court of Appeal dismissed the appeal, finding that the motion judge's discretionary decision not to hear the cross-motion was not erroneous, given the appellant's late service of materials and the low chance of success for the earlier APS.

The court also found no error in principle in the motion judge's approval of the receiver's proposed sales process, which included a "stalking horse" agreement, as it was fair, transparent, and aimed at optimizing the asset's price.

This is an appeal in a medical malpractice case where the appellant, Dr. Marshall Zaitlen, challenged a jury's verdict finding him liable for damages to Sean Henry due to a delayed diagnosis of a spinal dural arteriovenous (SDAV) fistula.

The appellant argued that the jury's finding on the standard of care was unreasonable, their explanations for conclusions revealed non-judicial conduct, and the future income loss award was improper.

The Court of Appeal dismissed the appeal, affirming the jury's verdict.

The court held that the jury's conclusions on breach of standard of care and causation were reasonable and supported by expert evidence, emphasizing the high deference accorded to civil jury verdicts and their explanations when read holistically.

The court also found the damages award for future income loss to be reasonable and consistent with the evidence, allowing for a finding of early retirement due to the injuries.

The Hamilton branch of the Royal Yugoslav Army Combatants’ Association in Canada was embroiled in conflict over its governance and assets.

Following a trial, a judgment set out a process for re-establishing governance, including holding an Annual General Meeting (AGM) and electing a new board.

Rival groups held two separate AGMs.

The motion judge declared the December AGM valid and the November AGM invalid.

The appellant appealed, arguing the motion judge misapprehended evidence regarding compliance with the original judgment.

The Court of Appeal found that the motion judge's finding that the December AGM complied with the September 1 judgment was premised on a misapprehension of evidence.

The appeal was allowed, neither AGM was declared valid, and a new AGM was ordered to be held on June 22, 2024, with all previous memberships annulled.

The appellant, Najib Amin, appealed his murder conviction, arguing the trial judge erred in admitting "bad act" evidence (murder advice given to an undercover officer) and failing to provide proper jury warnings.

The Court of Appeal found that the trial judge incorrectly applied the Handy and Hart tests for admissibility of bad act evidence and confessions from undercover operations.

The murder advice, used to prove identity, lacked sufficient similarity to the actual killing to be admissible under Handy's identity rule.

Furthermore, the trial judge failed to adequately warn the jury about the dangers of misusing this highly prejudicial evidence, creating a real risk of wrongful conviction based on character rather than proof.

The Court allowed the appeal, quashed the conviction, and ordered a new trial.

The appellants appealed a motion judge's order that set aside a solicitor's account assessment order as statute-barred and ordered payment of outstanding fees.

The Court of Appeal upheld the motion judge's finding that all accounts were final and that the first 29 paid accounts were statute-barred.

However, the Court found legal errors in the motion judge's analysis regarding the last three unpaid accounts.

It clarified that special circumstances are not required for assessment of unpaid accounts sought between one and 12 months after delivery, and that Section 3(a) of the Solicitors Act applies to accounts not yet delivered at the time of requisition, thus having no limitation period.

The appeal was allowed in part, referring the last three accounts for assessment.

This is an appeal from a wrongful dismissal judgment.

The appellants challenged the trial judge's findings on mitigation efforts, the award for lost benefits, and the award of moral damages.

The Court of Appeal affirmed the trial judge's decision, finding no palpable and overriding error in the determination that the respondent made reasonable mitigation efforts, the calculation of lost benefits, or the award of moral damages, noting that the bases for moral damages were pleaded and the appellants' conduct warranted censure.

The appeal was dismissed with costs awarded to the respondent.

The appellant appealed a judgment finding that a security interest granted by the appellant's predecessor was oppressive to the respondents.

The Court of Appeal dismissed the appeal, finding no reversible error in the application judge's conclusion that the granting of the security interest was oppressive.

The court affirmed that the application judge's findings aligned with the two requirements for an oppression remedy claim, specifically that the respondents had a reasonable expectation that the appellant's predecessor would not act prejudicially, and that this expectation was violated by corporate conduct that was oppressive or unfairly prejudicial.

The appellant, found Not Criminally Responsible (NCR) due to mental disorder, appealed a decision of the Ontario Review Board (ORB) that maintained his detention in a hospital, finding it to be the least onerous and restrictive measure commensurate with public safety.

The appellant had relapsed into drug use and exhibited psychotic symptoms after transitioning to supervised community housing, leading to his readmission to the hospital.

The hospital prematurely revoked his community housing approval before the ORB hearing.

The Court of Appeal found the ORB's decision to continue detention reasonable, given the appellant's history of violence, recent threats, and denial of substance abuse.

While acknowledging the hospital's premature revocation of housing approval undermined procedural fairness, the court found the appellant ultimately received a fair hearing and that there was no basis for appellate intervention.

The appeal was dismissed.

The appellant, David E. Wires, appealed a Superior Court judgment that recognized and enforced an arbitration award obtained by the respondent, La Française IC 2.

The appellant raised three grounds of appeal: improper constitution of the arbitral tribunal due to alleged bias, lack of standing of the respondent, and errors in the arbitrator's costs award.

The Court of Appeal dismissed the appeal, finding that the application judge correctly determined that relitigating the bias issue was an abuse of process, that the respondent had standing, and that the costs award was properly recognized and enforced without double-counting.

The appellant, found not criminally responsible (NCR) in 2015, appealed the Ontario Review Board's (ORB) decision to continue his conditional discharge, seeking an absolute discharge.

The appellant argued he no longer posed a significant threat due to medication compliance and incident-free reintegration.

The Court of Appeal reviewed the ORB's decision on a reasonableness standard, considering the paramount public safety, the appellant's mental condition, and reintegration.

Despite progress, the ORB found a significant threat remained due to the appellant's limited insight into his illness, potential for non-adherence to treatment without supervision, and expert psychiatric opinion.

The appeal was dismissed, upholding the conditional discharge.

This is an appeal from a motion judge's dismissal of an action for lack of jurisdiction, specifically finding no real and substantial connection to Ontario.

The appellants, Ontario-incorporated companies, argued the motion judge erred in the jurisdictional analysis and improperly conducted a disguised summary judgment/issue determination motion.

The Court of Appeal affirmed the motion judge's decision, agreeing that the respondents, domiciled outside Ontario with business primarily in Singapore, lacked a sufficient connection to Ontario.

The court found the appellants failed to provide sufficient evidence to support their claims of torts or contract breaches occurring in Ontario, or to rebut the presumption against jurisdiction.

The appeal was dismissed with costs to the respondents.

The appellant, D.M., appealed a five-year custodial sentence for sexual exploitation and sexual interference of his daughter.

The appeal was based on three grounds: the sentencing judge allegedly erred by treating lack of remorse as an aggravating factor, mischaracterized a forensic psychiatric report regarding insight, and imposed an unfit sentence.

The Court of Appeal dismissed the appeal, finding no error in the sentencing judge's assessment of aggravating and mitigating factors, her interpretation of the forensic report, or the fitness of the sentence, which was within the appropriate range for such offences.

The appellants appealed a motion judge's order striking their statement of defence and counterclaim due to their persistent failure to answer undertakings, produce relevant documents, and comply with multiple court orders.

The Court of Appeal dismissed the appeal, upholding the motion judge's discretionary decision.

The court found no reversible error, emphasizing the fundamental importance of disclosure, the prejudice caused by non-compliance, and the court's authority to impose proportionate remedies, including striking pleadings, for flagrant disregard of court process and orders.

The appellant, Guarav Tewari, appealed the striking out of his statement of claim against the respondent lawyer and law firm, who had represented his former employer.

The motion judge had struck the claim, finding it disclosed no reasonable cause of action due to absolute privilege for litigation conduct and the absence of a solicitor-client relationship.

The Court of Appeal dismissed the appeal under Rule 2.1.01 of the Rules of Civil Procedure, deeming it frivolous, vexatious, and an abuse of process.

The court noted the appellant's history of relitigating similar claims against opposing counsel, which had been repeatedly found untenable.

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 appellant, P.B., appealed convictions for two counts of sexual assault and two counts of sexual interference.

The appeal raised two grounds: the trial judge's alleged failure to address material contradictions between Crown witnesses and the impermissible use of complainants' lack of embellishment to bolster credibility.

The Court of Appeal dismissed the appeal, finding that the inconsistency regarding a peripheral detail (a television in the appellant's room) was not a reversible error, especially given the complainants' age at the time of the events.

Furthermore, the court held that the trial judge's reference to the complainants' lack of embellishment was not used to improperly bolster credibility but rather to explain why their evidence was not rejected, particularly in light of defence suggestions of fabrication.