Sarah E. Pepall

The Crown appealed the acquittal of the respondent on a sexual assault charge.

The trial judge had found that the young woman was not proven to be unconscious or incapable of consent due to drug impairment.

The Court of Appeal found that the trial judge erred in making a factual finding unsupported by evidence and in failing to consider all evidence regarding the victim's capacity to consent.

The appeal was allowed, the acquittal set aside, and a new trial ordered, as the trial judge had not made findings on the respondent's mens rea.

The appellant appealed her convictions for possession of cocaine and MDMA for the purpose of trafficking, arguing she was denied a fair trial due to ineffective assistance of counsel.

The appellant alleged her trial counsel failed to seek a severance or mistrial despite knowing the appellant was being actively abused by her co-accused, and failed to properly advise her on whether to testify.

The Court of Appeal admitted fresh evidence, including trial counsel's notes, and found that counsel's failure to explore severance and properly advise the appellant on testifying fell below the standard of reasonable professional assistance and caused prejudice.

The appeal was allowed and a new trial ordered.

The appellant appealed his conviction for first-degree murder in the strangulation death of his intimate partner.

The Court of Appeal found that the trial judge erred in leaving planned and deliberate murder with the jury, as there was no air of reality to the element of deliberation.

While there was an air of reality to constructive first-degree murder based on unlawful confinement, the Court found that the appellant received ineffective assistance of counsel.

Trial counsel's decision to call a forensic psychiatrist, whose evidence introduced highly prejudicial statements by the appellant about his intent to kill, fell below the standard of reasonableness and resulted in a miscarriage of justice.

The appeal was allowed and a new trial ordered.

The moving party (appellant) sought to amend or vary a previous appeal decision to include severance pay under the Employment Standards Act, 2000, arguing that evidence of the respondent's payroll was implicitly in the trial record.

The court dismissed the motion, finding that it did not fall under Rule 59.06(1) for accidental slips or omissions, nor Rule 59.06(2) for new facts or fraud, as the moving party was attempting to re-argue an issue already considered and declined.

The court reiterated that it is not its role to scour the record for evidence not relied upon by parties.

The respondent's attempt to introduce fresh evidence without leave was also rejected.

The appellants appealed the dismissal of their motion to certify a class action against Ontario for the early cancellation of the Basic Income Pilot Program.

The Court of Appeal allowed the appeal in part, finding that the certification judge erred by engaging in a merits-based analysis of the breach of contract claim rather than applying the 'plain and obvious' test under s. 5(1)(a) of the Class Proceedings Act.

However, the Court upheld the dismissal of the negligence, breach of undertaking, and Charter s. 7 claims, finding that the government's decision to cancel the program was a core policy decision immune from negligence liability and that the Charter claim failed to plead the requisite principles of fundamental justice.

The appellant, Trae Worrie, appealed his convictions for second-degree murder and attempted murder, arguing he was Not Criminally Responsible (NCR) due to mental disorder.

Two forensic psychiatrists unanimously opined he was NCR, but the trial judge rejected this defense, finding him guilty.

The Court of Appeal found that the trial judge materially misapprehended expert evidence, particularly concerning a psychologist's testimony, and misused the appellant's after-the-fact conduct.

The court concluded there was no rational basis to reject the unanimous expert opinion that the appellant was NCR.

The appeal was allowed, convictions set aside, and a verdict of NCR was substituted.

The Court of Appeal dismissed an appeal concerning the rescission of a franchise agreement.

The trial judge had found that the franchisees were entitled to rescind the agreement under the Arthur Wishart Act due to the franchisor's failure to provide a signed and dated disclosure certificate, and held the franchisor's sole director personally liable as a "franchisor’s associate." The appeal court affirmed that the absence of a proper certificate is a fatal flaw in disclosure, not requiring proof of an inability to make an informed investment, and upheld the finding of personal liability based on the director's representations.

The appellant, found not criminally responsible on account of mental disorder in 2003, appealed the Ontario Review Board's disposition that continued his detention at a forensic psychiatric hospital.

He sought an absolute or conditional discharge, arguing the Board failed to apply the "significant threat" test and consider all relevant factors for a necessary and appropriate disposition.

The Court of Appeal dismissed the appeal, finding the Board properly applied the "significant threat" test and reasonably concluded that a detention order was required given the appellant's ongoing mental illness, lack of insight, and risk of aggression, despite some progress.

The appellant, L.M., appealed a Divisional Court decision that set aside a costs award against the Children's Aid Society (CAS).

L.M. had successfully sought constitutional state funding for an appeal of a child protection order, which the CAS had opposed.

The motion judge awarded costs against the CAS, finding its opposition unreasonable and its rejection of an offer to settle improper.

The Divisional Court overturned this, finding the CAS's conduct reasonable.

The Court of Appeal allowed L.M.'s appeal, reinstating the original costs award, finding the Divisional Court erred in its assessment of the CAS's unreasonableness in opposing the motion and rejecting the offer to settle.

This appeal concerned the sale of Lash Point, a family cottage property owned by a non-profit corporation (LPAC).

Family members were divided between "Remainers" (who wanted to keep the property) and "Departers" (who wanted to sell their interests).

A lower court initially ordered a staged buy-out, but due to delays, a motion judge later approved an en bloc sale of the entire property to third parties, reversing the original plan.

The appellants (Remainers and LPAC) appealed, arguing the motion judge lacked jurisdiction to vary the original order and erred in approving the sale without satisfying the principles for sale approval in receivership contexts (Soundair principles).

The Court of Appeal affirmed the motion judge's jurisdiction to vary the order but found that the sale approval was flawed as it did not meet the Soundair principles, particularly regarding efforts to obtain the best price and the integrity of the sales process.

The appeal was allowed, the sale order set aside, and the Receiver was directed to develop a proper sales process for the entire property.

The appellants, convicted of sexual assault, appealed their convictions.

They argued the trial judge erred in assessing the complainant's memory gaps due to intoxication, reversing the burden of proof, and failing to consider an exculpatory statement.

The Court of Appeal dismissed the appeals, finding the trial judge's analysis of consent and memory gaps was reasonable, the burden of proof was correctly applied, and the exculpatory statement lacked probative value regarding the complainant's subjective consent.

Richard Aguilar appealed his convictions for child luring and communicating for sexual services, and his sentence.

The convictions stemmed from text message conversations with an undercover officer believed to be a 14-year-old girl, part of 'Project Raphael'.

Aguilar alleged errors in the trial judge's findings regarding the offences and rejection of his innocent explanations.

He also argued the sentence was unfit, lacked parity, and did not adequately consider his health or sentencing delay.

The Court of Appeal dismissed both the conviction and sentence appeals, finding no material misapprehension of evidence, no error in credibility findings, and no reversal of the burden of proof.

The court also found the sentence fit and that the principle of parity was not disregarded.

The appellant, J.A., appealed his convictions for sexual interference and sexual assault.

The central issue on appeal was whether the trial judge erred in admitting the appellant's police statement as voluntary evidence.

The appellant contended that the trial judge, after finding an inducement, failed to adequately consider all oppressive circumstances in determining if his will was overborne.

The Court of Appeal dismissed the appeal, affirming that the trial judge correctly applied the legal test for voluntariness and considered all relevant circumstances, and that the finding of voluntariness was entitled to significant appellate deference.

The appellant, Narine Loojune, appealed an order that substituted the Public Guardian and Trustee (PGT) as guardian of property for his catastrophically injured nephew, Dataram Loojune.

The substitution was ordered due to the appellant's repeated failure to comply with court-ordered obligations to account for his nephew's property.

The appellant sought to adjourn the appeal to submit fresh evidence alleging fraud by a PGT employee and argued the motion judge applied the wrong legal test and was biased.

The Court of Appeal dismissed the adjournment application, finding no credible evidence to support the claims or impact the appeal.

The court affirmed the motion judge's application of the "best interests" test and found no evidence of fraud, harassment, or judicial bias.

The appeal was dismissed, and the appellant was ordered to pay costs to the PGT.

The appellant, Feisal Noor, appealed his conviction on firearms-related charges, arguing that his s. 9 Charter right against arbitrary detention and s. 8 Charter right against unreasonable search and seizure were violated.

The Court of Appeal upheld the trial judge's findings that the police had reasonable suspicion for an investigative detention and that the handgun was found in plain view during a lawful struggle, thus dismissing the Charter application and affirming the conviction.

The appellant appealed an order striking his claim against the respondents (lawyers of his former employer) without leave to amend.

The motion judge found the claims were covered by absolute privilege as they related to lawyers' work in contemplation of litigation.

The Court of Appeal dismissed the appeal, agreeing that the respondents had no duty to the appellant and their interactions were through litigation, and upheld the refusal to grant leave to amend.

The appellant insurer appealed a lower court decision that found it had a continuing duty to defend the respondent insured in an underlying action.

The insured had purchased property with title insurance and was subsequently sued by a previous owner claiming invalid sale and unjust enrichment.

Although the insured later lost title to the property, the application judge found the amended statement of claim included a claim for damages against the insured, triggering the insurer's duty to defend.

The Court of Appeal dismissed the insurer's appeal, affirming that the amended statement of claim could reasonably be read to include a claim for damages against the insured, thus upholding the duty to defend.

The appellant, Best Theratronics Ltd. (BTL), appealed a trial judgment ordering it to pay an outstanding debt to Kirloskar Technologies (P) Ltd. (KTPL), its former agent in India.

BTL argued it should be relieved of the debt due to a perceived risk of prosecution under the Corruption of Foreign Public Officials Act (CFPOA) related to alleged corrupt practices by KTPL in India, and sought to delay payment.

The Court of Appeal dismissed the appeal, upholding the trial judge's finding that the alleged criminal conduct was unrelated to the debt at issue and that BTL failed to provide sufficient evidence to support its public policy argument against enforcing the contract.

The court reiterated that public policy considerations for setting aside contractual provisions should be applied sparingly.

The appellant employee appealed a judgment upholding his dismissal for cause after a workplace incident involving non-consensual touching of a co-worker.

The appeal challenged factual findings, the just cause conclusion, and sought Employment Standards Act (ESA) benefits and punitive damages for litigation misconduct.

The Court of Appeal dismissed the appeal regarding just cause and punitive damages, but allowed the appeal for ESA termination pay, finding the conduct did not meet the "wilful misconduct" standard for disentitlement.

The court also set aside the trial costs due to the respondent's egregious litigation misconduct, ordering no costs of the trial.

The appellant insurer appealed a lower court's interpretation of a business interruption insurance policy's pandemic coverage limit.

The policy covered seven daycare locations, and the dispute centered on whether the $50,000 limit of liability for pandemic losses applied as a global total or per location.

The Court of Appeal, applying principles of insurance contract interpretation, found the clause unambiguous when read in the context of the policy as a whole, concluding that the limit applied on a per-location basis.

The appeal was dismissed, affirming the lower court's decision in favour of the insured.