Sarah E. Pepall

The Court of Appeal for Ontario heard an appeal from a judgment awarding over $2.5 million in damages to a cyclist injured in a collision with a motor vehicle.

The appellants, the driver and the excess insurer, challenged the trial judge's findings on liability, damages, and costs.

The Court dismissed the appeal on liability, future care, deductions, and contingencies, upholding the trial judge's finding that the driver failed to discharge the reverse onus under the Highway Traffic Act.

However, the Court allowed the appeal regarding the past and future loss of income award, finding a palpable and overriding error in the trial judge's calculation of the pre-collision earning capacity by misinterpreting the currency of expert evidence.

The income loss award was varied to adjust the earning capacity figure to 2022 dollars instead of 2012 dollars.

This is a costs endorsement following an appeal.

The respondent, Heliotrope Investment Corporation, provided costs submissions as requested, while the appellants, Jonathan Gary Beach and Martha Lorraine Beach, chose not to make any submissions.

The court awarded costs to the respondent in the amount of $20,000, inclusive of disbursements and relevant taxes.

The appellant, S.B., appealed his conviction for sexual assault and the imposed sentence.

The Court of Appeal for Ontario allowed the appeal, quashed the conviction, and ordered a new trial.

The majority found that the trial judge erred by failing to properly consider the appellant's evidence regarding the complainant's capacity to consent, constituting a W.(D.) error.

MacPherson J.A. also found an error in the rejection of the honest but mistaken belief in communicated consent defence.

This is an appeal of a summary judgment order for specific performance of an agreement of purchase and sale (APS) of a cottage property.

The sellers (appellants) asserted the APS had terminated, refusing to close.

The buyers (respondents) sued and obtained specific performance.

The appellants argued the APS terminated on November 5, 2020, due to a consent to sever condition, or on December 22, 2020, due to a "finality clause" and Planning Act non-compliance.

The Court of Appeal dismissed the appeal, affirming the motion judge's findings that the severance condition was satisfied or waived by the sellers' lawyer's representations and the sellers' subsequent conduct.

The court also upheld that the sellers could not rely on the "finality clause" as they were in breach of their obligation to diligently obtain necessary consents under the Planning Act.

The transaction had already closed, and the property transferred to the buyers.

The plaintiff was injured in a vehicle accident and sued for negligence.

The trial judge found the defendants entirely responsible for the accident but held that the plaintiff had not suffered a "permanent and serious injury" under the Insurance Act, thus precluding non-pecuniary damages.

The trial judge awarded $1,680 for lost income and $40,000 in costs to the plaintiff.

The defendants cross-appealed, challenging the trial judge's decision to allow a late amendment to include a lost income claim and the costs award.

The Court of Appeal upheld the trial judge's discretion in allowing the late amendment, finding no prejudice to the defence.

However, the Court of Appeal granted leave to appeal the costs order, concluding that the trial judge erred by overemphasizing the defendants' failure to make a settlement offer, given that the lost income claim (the only successful claim) was not clearly articulated until the end of trial.

The Court of Appeal varied the trial order to provide for no costs at trial and awarded the defendants costs of the appeal.

The appellant sought to vary a spousal support order and set aside a cost order from a 2018 judgment.

The Court of Appeal dismissed the appeal, holding that the lower court had no jurisdiction to vary the cost order (as the appellant had abandoned a previous appeal of that order) and that the correctness of the 2018 arrears could not be attacked by a subsequent motion to vary, but only by appeal, which the appellant had also abandoned.

The appellants, Jonathan Gary Beach and Martha Lorraine Beach, appealed a bankruptcy judgment.

They sought to introduce fresh evidence, which the Court of Appeal denied, finding it could have been presented earlier or lacked evidentiary value.

The Court found no error in the application judge's findings that the appellants owed a debt of $1,000 or more and had generally ceased to meet their liabilities.

The application judge also correctly exercised discretion in not refusing or staying the bankruptcy order.

The appeal was dismissed.

The appellant appealed a motion judge's order annulling the bankruptcy of a company (1947755 Ontario Ltd.) on two grounds: insolvency and abuse of process.

The appellant sought to introduce fresh evidence regarding the company's solvency.

The Court of Appeal dismissed the appeal, finding that the motion judge's conclusion of abuse of process was supported by the evidence and was sufficient to justify the annulment, rendering the fresh evidence on solvency irrelevant to the outcome.

The appellant appealed the dismissal of two separate actions (2017 and 2020) against the Bank of Nova Scotia and its officers/employees.

The 2017 action was dismissed for inadequate pleadings and as an abuse of process.

The 2020 action was dismissed as a replication of the 2018 dismissed action and an abuse of process.

The appellant also raised an argument of reasonable apprehension of bias against the motion judge in the 2017 action due to a past partnership.

The Court of Appeal upheld both dismissals, finding no error in the motion judges' analyses, including the rejection of the bias argument, and dismissed both appeals with costs to the respondent.

The appellants, estates and family members of victims of the downing of Ukrainian Airlines flight PS752 by Iran, sought to enforce a default judgment against Iranian properties and bank accounts in Canada.

The motion judge dismissed the enforcement, finding the properties enjoyed diplomatic immunity.

The Court of Appeal upheld this decision, ruling that the Canadian Executive's determination, via a s. 11 certificate under the Foreign Missions and International Organizations Act, that the Iranian property retains diplomatic status is conclusive and not subject to judicial review based on the property's current "use" for diplomatic purposes, even after diplomatic relations were severed.

The court affirmed the Executive's exclusive prerogative in foreign relations and diplomatic immunity matters.

The appellant, a manual osteopathy practitioner, appealed his convictions for sexual assault, sexual interference, and invitation to sexual touching.

He argued that his right to a trial within a reasonable time under s. 11(b) of the Charter was breached and that the trial judge misapprehended his evidence.

The Court of Appeal found that while the trial judge erred in treating delay related to Bill C-75 as an exceptional circumstance, she correctly deducted the delay caused by the COVID-19 pandemic.

After deducting the COVID-19 delay, the total delay fell below the 18-month presumptive ceiling.

The court also found no misapprehension of evidence.

The appeal was dismissed.

The appellant, Leslie Watson, moved to review and set aside a prior order from a Motion Judge that required her to provide $15,000 in security for costs for her appeal.

The original security for costs order was based on Rule 61.06(1)(a) of the Rules of Civil Procedure, finding good reason to believe the appeal was frivolous and vexatious and that the appellant lacked sufficient assets to pay costs.

The Court of Appeal dismissed the appellant's motion, affirming the Motion Judge's application of the test and assessment of the overall justice of the case, and ordered the appellant to pay the respondent's costs of $5,000 for the motion.

The moving parties sought to review and set aside a chambers judge's order that dismissed their motion for an extension of time to review a previous order.

This previous order had also dismissed a motion for an extension of time to seek leave to appeal an action that was originally dismissed for delay.

The Court of Appeal, applying the standard of review for a panel review of a chambers judge's decision under s. 7(5) of the Courts of Justice Act, found no legal error or misapprehension of evidence by the chambers judge.

The court concluded that the request for an extension of time was properly denied at each stage and dismissed the motion.

The Court of Appeal for Ontario determined it lacked jurisdiction to hear an appeal originating from an application under the Land Titles Act, as appeals under that Act lie to the Divisional Court.

Consequently, the appeal was transferred to the Divisional Court pursuant to the Courts of Justice Act.

No costs were awarded.

The appellant appealed his convictions for possession of heroin for the purpose of trafficking and uttering a death threat, arguing that the wiretap authorization that led to his arrest was unconstitutional.

He contended that sections 185 and 186 of the Criminal Code violate section 8 of the Charter by allowing private communications to be intercepted based on a 'may assist' standard rather than a 'will assist' standard for specific individuals, places, and devices.

A five-judge panel of the Court of Appeal dismissed the appeal, affirming prior jurisprudence that the 'will assist' standard applies to the authorization as a whole, while the 'may assist' standard for naming known persons is constitutionally compliant given the prospective nature of wiretaps and the robust statutory safeguards in place.

The appellant, R.S., appealed his conviction for sexual exploitation and his sentence.

The conviction appeal challenged the trial judge's decision to allow the Crown to amend the indictment to include "position of trust" and the reliance on circumstantial evidence to establish a trust relationship.

The sentence appeal contested the lifetime Sexual Offender Information Registration Act (SOIRA) order and the mandatory victim fine surcharge.

The Court of Appeal dismissed the conviction appeal, finding no irreparable prejudice from the indictment amendment and no error in the trial judge's assessment of the trust relationship.

The Court allowed the sentence appeal, varying the SOIRA order to 20 years and setting aside the victim fine surcharge, as conceded by the Crown.

The appellant, found not criminally responsible for theft, appealed the Ontario Review Board's decision to continue his detention order with community privileges, seeking an absolute discharge.

The Board found that an absolute discharge would pose a significant public safety threat due to likely medication non-compliance and substance abuse leading to decompensation.

The Court of Appeal dismissed the appeal, finding the Board's decision reasonable.

The court rejected arguments that the Board failed to consider the appellant's improvements or misapprehended evidence regarding substance use, emphasizing that appellate review is limited to reasonableness and does not involve reweighing evidence.

Fresh evidence regarding recent decompensation reinforced the Board's conclusion.

DGAP Investments Ltd. sought a stay pending leave to appeal an order from the supervising judge in a CCAA proceeding.

The order authorized Stelco Inc. to acquire partnership units in a Land Vehicle, which DGAP argued would obstruct its prior agreement to purchase land from the Land Vehicle.

The Court of Appeal applied the RJR-MacDonald test for a stay, finding that DGAP's case for leave to appeal was weak on the merits, there was no irreparable harm given the supervising judge's measures to protect DGAP's interests, and the balance of convenience favoured dismissing the stay to allow the CCAA proceeding to conclude and benefit aging stakeholders.

The motion for a stay was dismissed, and the leave to appeal motion was expedited.

The appellant, convicted of aggravated assault and other offences, appealed his dangerous offender designation and indeterminate sentence.

The sentencing judge had found him to be a dangerous offender under s. 753(1) of the Criminal Code, concluding he posed a high likelihood of harmful recidivism and that his conduct was intractable, despite his treating psychiatrist's opinion that his illnesses were treatable.

The appellant also argued that inconsistent evidence regarding his Not Criminally Responsible (NCR) status warranted a new assessment.

The Court of Appeal dismissed the appeal, upholding the dangerous offender designation and indeterminate sentence, finding no error in the sentencing judge's assessment of intractability based on the appellant's history of non-compliance, lack of insight, and continued assaultive behaviour.

The Court also rejected the argument for a new NCR assessment, clarifying that the psychiatrist's statement was not inconsistent with the prior NCR assessment.

The appellants, former truck drivers for the corporate respondent, initiated a public campaign alleging unpaid wages while their Canada Labour Code complaints were ongoing.

The respondents sued for defamation, trespass, and other torts.

The appellants moved to dismiss the action under the anti-SLAPP provisions of the Courts of Justice Act.

The motion judge dismissed the motion.

On appeal, the Court of Appeal found the motion judge erred in his s. 137.1(3) analysis by focusing on motive rather than the expression's subject matter, but ultimately upheld the dismissal under s. 137.1(4), finding the respondents' claims had substantial merit, the appellants had no valid defence, and the harm to the respondents outweighed the public interest in protecting the expression.