Sarah E. Pepall

This is a costs endorsement following the dismissal of an appeal and cross-appeal in a class proceeding.

The court outlines the disposition of costs, including payments between the Law Foundation of Ontario, the Attorney General of Canada, and the Ontario Health Insurance Plan.

The original appeal by Kathryn Anne Taylor was dismissed, leading to this costs decision.

The appellant, Tyrone Burton, appealed his convictions for human trafficking, receiving a benefit from human trafficking, exercising control for the purpose of receiving a benefit from prostitution, and obstruction of justice, as well as his sentence of 10.5 years in custody and a 10-year long-term supervision order.

The Court of Appeal dismissed the conviction appeal, with the exception of two counts of exercising control which were stayed by Crown concession under the Kienapple principle.

The sentence appeal was also dismissed, with the court finding the sentence fit and within range, and upholding the long-term supervision order.

The court rejected arguments regarding the trial judge's application of law, questioning of witnesses, use of evidence, and the appellant's opportunity to testify.

The appellant, S.M.C., sought to appeal a sexual assault conviction but failed to perfect the appeal despite numerous court appearances, extensions, and warnings.

The Court of Appeal for Ontario dismissed the appeal as abandoned, citing egregious and persistent non-compliance with court directions, including a prior failure to comply with bail conditions.

The court emphasized that the justice system cannot operate effectively if court orders are disregarded.

This appeal addressed a pre-contractual negligent misrepresentation and the interpretation of a commercial lease.

The trial judge found that the tenant (respondent) reasonably relied on the landlord's (appellant's) negligent misrepresentation regarding free, accessible, and convenient customer parking, and that the entire agreement provision in the lease did not preclude the tenant's claim for damages.

On appeal, the landlord argued the trial judge erred by failing to consider the lease as a whole, specifically articles related to parking, which it contended formed part of the "subject matter" of the lease.

The Court of Appeal dismissed the appeal, affirming the trial judge's finding that customer parking was not the "subject matter" of the lease and that the entire agreement clause did not preclude the claim, applying a deferential standard of review for contractual interpretation.

The appellants sought to appeal a Superior Court order refusing a sealing order, made in the context of a disability settlement approval.

The preliminary issue for the Court of Appeal was to determine if the order refusing the sealing order was a final or interlocutory order for jurisdictional purposes.

The Court found that the order, along with other concurrent orders dismissing claims, constituted a final disposition of the proceeding, thus making it a final order properly appealable to the Court of Appeal.

The appellant, representative plaintiff in a class action concerning defective temporomandibular joint (TMJ) implants, appealed the dismissal of her action following a trial of common issues.

She alleged the Canadian government (Health and Welfare Canada, HWC) owed a duty of care to regulate and warn about the devices.

The Court of Appeal upheld the trial judge's finding that no private law duty of care was owed by HWC, either through the legislative scheme or through interactions with class members, and found no palpable and overriding error in the trial judge's factual findings regarding the approval status of the devices.

The Attorney General's cross-appeal on costs was granted leave but dismissed, with the court affirming the trial judge's discretion in awarding costs, particularly considering the public interest nature of the case and the Class Proceedings Fund.

This appeal concerned the interpretation of a forum selection clause in a Share Purchase Agreement (SPA).

The appellants, Savanta Inc. and GEI Consultants, Inc., sought to stay portions of an action and counterclaim, arguing that the clause conferred exclusive jurisdiction on Massachusetts courts.

The clause stated disputes "must be brought in any state or federal court... in Massachusetts, and each Party irrevocably submits and agrees to attorn to the non-exclusive jurisdiction of such court." The motion judge found the clause ambiguous and thus non-exclusive, allowing Ontario to retain jurisdiction.

The Court of Appeal upheld the motion judge's decision, finding no palpable and overriding error in her interpretation that the term "non-exclusive" applied to the jurisdiction generally, not merely between state and federal courts within Massachusetts.

The appellant, Joan Holmes, appealed a summary judgment granted in favour of the respondents, Aurelio and Maria Acquaviva, in a mortgage enforcement action.

Holmes had defaulted on a mortgage payment and subsequently alleged an elaborate mortgage fraud against the respondents and others in a separate action.

The motion judge found no genuine issue requiring a trial, concluding that Holmes had not provided evidence to support her fraud claims and that the mortgage claims were severable from her fraud allegations.

The Court of Appeal upheld the motion judge's decision, finding no error in his analysis or conclusion that there was no genuine issue requiring a trial.

The appeal was dismissed, and costs were awarded to the respondents on a full indemnity scale.

The appellant appealed his convictions for sexual assault and related offences, his dangerous offender designation, and his indeterminate sentence.

The appeal challenged the fairness of the trial due to the complainant's detention as a material witness and the assessment of her credibility.

It also contested the dangerous offender designation, arguing errors in defining "pattern" of behaviour and reliance on disputed facts, and the indeterminate sentence, asserting the trial judge erred by presuming indeterminate detention.

The Court of Appeal dismissed the conviction appeal, finding no miscarriage of justice or error in credibility assessment.

It upheld the dangerous offender designation.

While acknowledging the trial judge's error in principle regarding the indeterminate sentence by presuming it and conflating the designation and sentencing stages, the Court of Appeal re-sentenced the appellant and ultimately imposed the same indeterminate sentence, concluding that no lesser measure would adequately protect the public given the appellant's extensive criminal history, low prospects for treatability, and manageability issues, despite mitigating factors related to systemic anti-Black racism.

The appellant was convicted of aggravated assault and uttering a threat to cause death.

The appeal centered on the alleged ineffective assistance of trial counsel, specifically the unauthorized disclosure of the appellant's statement to the Crown and its subsequent use in cross-examination, which impacted the trial judge's assessment of his credibility.

The Court of Appeal admitted fresh evidence and found that trial counsel's conduct fell below the standard of a reasonable professional, leading to a miscarriage of justice due to both trial unfairness (unilateral waiver of the right to silence) and an unreliable verdict.

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

This is a costs endorsement following an appeal where L.M. successfully challenged a costs award against her in a constitutional state funding motion.

The parties were unable to agree on the costs of the appeal.

The Court of Appeal fixed costs at $15,000, inclusive of HST and disbursements, to be paid forthwith by the Children’s Aid Society of the Region of Peel to L.M., emphasizing that the amount reflects a fair and reasonable sum for the unsuccessful party rather than an exact measure of actual costs.

The appellant, convicted of breaking and entering, sought to re-open his dismissed appeal and admit fresh evidence, including his own and his co-accused's affidavits denying his participation.

The Court of Appeal dismissed the application, finding the fresh evidence not reasonably capable of belief due to inconsistencies, implausibilities, and contradictions with trial counsel's evidence and physical evidence.

The court emphasized the finality principle in re-opening appeals and the high threshold for admitting fresh evidence.

The appellant, Robert Glegg, appealed judgments declaring him a vexatious litigant and associated costs orders.

The underlying litigation stemmed from his daughter's withdrawal from parental control, with Glegg initiating numerous proceedings, including tort claims against the respondents (family friends and a legal aid clinic with its lawyers), alleging they conspired to assist his daughter's mother in "brainwashing" her.

The application judge declared Glegg a vexatious litigant, stayed his existing proceedings, and barred him from commencing further related proceedings without leave, also ordering full indemnity costs.

The Court of Appeal dismissed Glegg's appeal, affirming that his claims were an abuse of process and a collateral attack on previously determined facts, specifically that his daughter acted of her own free will.

The court upheld the vexatious litigant declaration, the permanent stay of actions, the prohibition on future litigation without leave, and the full indemnity costs award.

The appellant appealed a consent order incorporating terms of a separation agreement, alleging the respondent misrepresented his income and failed to provide full financial disclosure, particularly after purchasing a new house.

The respondent had moved under Rule 14 of the Family Law Rules to grant the consent order, providing additional disclosure.

The motion judge granted the consent order and did not order further disclosure.

The Court of Appeal dismissed the appeal, finding that Rule 13 (requiring updated financial statements) was inapplicable given that full disclosure was made at the time of settlement and the consent order had been implemented.

The court also found the use of a Rule 14B motion appropriate, despite opposition, as the matter was deemed "seemingly uncomplicated" and the motion judge had reviewed the evidence.

The appellant, an Imam, appealed the dismissal of his defamation action against the respondent under an anti-SLAPP motion.

The defamation claim arose from a petition shared by the respondent alleging the appellant's lack of transparency and accountability regarding a property sale.

The motion judge found the claim lacked substantial merit and that the public interest in protecting the expression outweighed the harm.

The Court of Appeal upheld the motion judge's decision, deferring to the assessment of the claim's merit and the balancing of public interests, and dismissed the appeal.

Ms. Davies, found not criminally responsible for assault with a weapon and aggravated assault, appealed the Ontario Review Board's disposition that continued her detention order and refused a cannabis exemption.

The Court of Appeal upheld the Board's finding that she continued to pose a significant threat to public safety.

However, the court found the Board's refusal to grant the cannabis exemption unreasonable, as it conflated "substances" with "cannabis" and lacked sufficient evidence directly linking cannabis use to a significant public safety risk in a controlled hospital environment.

The matter was remitted to the Board for a rehearing on the cannabis exemption.

The appellant, Gurkirat Rai, appealed his conviction following guilty pleas to multiple driving-related offences, including dangerous operation and driving while disqualified, which resulted in a permanent licence suspension by the Ministry of Transportation under the Highway Traffic Act.

The appellant argued his pleas were uninformed because his counsel erroneously advised him that his licence could be reinstated after 10 years, and he was unaware of the automatic lifetime suspension under the HTA or the cumulative effect of consecutive two-year suspensions.

The Court of Appeal granted leave to admit fresh evidence but dismissed the appeal, finding that the appellant failed to establish subjective prejudice.

The court concluded that it was not credible that the appellant would have acted differently had he received accurate advice, given his primary motivation to be released from pre-trial custody quickly, his willingness to plead guilty despite knowing a lifetime Criminal Code prohibition was possible, the strong Crown case, and his subsequent conduct of re-offending.

The appellant appealed his conviction for aggravated sexual assault, which was based on his failure to disclose his HIV-positive status to the complainant.

The appellant was an "elite controller" with a naturally low/undetectable viral load, not on anti-retroviral therapy.

The Court of Appeal admitted fresh expert evidence, which clarified that the risk of HIV transmission from an elite controller with a suppressed viral load is negligible, similar to individuals on ART.

The court found this fresh evidence decisive, concluding that no reasonable trier of fact could convict the appellant given the negligible risk of transmission.

The appeal was allowed, the conviction was set aside, and an acquittal was entered.

The appellant appealed his conviction, primarily challenging the lawfulness of a strip search conducted in the presence of a female officer, arguing it violated his Charter rights.

The Court of Appeal upheld the trial judge's finding that exigent circumstances justified the female officer's continued involvement during the appellant's violent resistance, and that the evidence obtained from the search was admissible.

The appeal was dismissed.

The Crown appealed the acquittal of the respondent for second-degree murder, where the trial judge found the respondent acted in self-defence.

The Crown argued the trial judge erred in law by failing to consider the whole of the evidence, making an unsupported factual finding, failing to undertake a contextualized reasonableness inquiry, and not considering the risk to third parties.

The Court of Appeal dismissed the appeal, finding no overriding error in the trial judge's holistic consideration of evidence and self-defence factors, despite acknowledging a minor factual error that did not materially impact the verdict.

The court reiterated that appellate courts cannot reweigh evidence or hear appeals from unreasonable acquittals.