Sarah E. Pepall

The appellant appealed his conviction for sexual assault, arguing the trial judge erred by finding the complainant had no motive to fabricate and using this to assess her credibility.

The Court of Appeal dismissed the appeal, clarifying the distinction between a "proven absence of motive to fabricate" and an "absence of evidence of motive to fabricate." The court held that while a proven absence of motive is a high bar, the absence of evidence of motive can be considered as one factor among many in assessing credibility, provided it is not given undue weight or used to reverse the burden of proof.

The trial judge's approach was found to be consistent with established legal principles.

This is a costs endorsement following an appeal and cross-appeal.

The Court of Appeal for Ontario determined that success on both the appeal and cross-appeal was divided, and therefore ordered that each party bear their own costs.

The appellants were convicted by a jury of importing cocaine and possession for the purpose of trafficking after a controlled delivery of a package containing cocaine hidden in food items.

On appeal, they argued the verdicts were unreasonable because the importation was complete before they handled the package, and that the circumstantial evidence did not prove they knew the package contained drugs.

They also argued the trial judge erred in leaving wilful blindness with the jury.

The Court of Appeal dismissed the appeals, finding that the ultimate domestic recipient was the importer, the circumstantial evidence supported the jury's inference of knowledge, and the inherently suspicious circumstances justified the wilful blindness instruction.

The appellant sought to enforce letters of request from a Florida court to obtain documents from the former Ontario lawyers of his ex-wife and daughter for use in a Florida action for parental alienation.

The application judge dismissed the application on public policy grounds, finding it would interfere with solicitor-client privilege and client confidentiality.

The Court of Appeal dismissed the appeal, holding that the hearing was procedurally fair and the application judge properly exercised his discretion in refusing to enforce the letters of request because they sought presumptively privileged documents.

The appellant appealed a judgment dismissing his anti-SLAPP motion and granting summary judgment of $50,000 in favour of the respondent physician for defamation.

The appellant had posted derogatory comments about the respondent on a doctor rating website after the respondent testified as an expert in a medical malpractice trial involving the death of the appellant's brother.

The Court of Appeal upheld the motions judge's findings that the anti-SLAPP motion failed and that the respondent had proven publication, authorship, and malice for the defamation claim.

The appeal was dismissed with costs.

The appellant, a refugee in Canada, sued his former Kuwaiti employers and others for damages arising from alleged torture and conspiracy in Kuwait.

The motion judge stayed the action for want of jurisdiction, finding no real and substantial connection to Ontario and declining to apply the forum of necessity doctrine.

The Court of Appeal dismissed the appeal, holding that the motion judge made no error in principle and his discretionary decision, based on a lack of cogent evidence supporting the appellant's claims of exceptional circumstances, was entitled to deference.

The appellant appealed a finding of contempt for failing to comply with a consent order requiring the parties to enroll their children in counselling to facilitate effective co-parenting.

The motion judge found beyond a reasonable doubt that the appellant wilfully obstructed the counselling process.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's factual findings or interpretation of the order.

The appellant, a truck driver, appealed the dismissal of his action following a successful summary judgment motion by the respondents.

He alleged he suffered injuries after falling on uneven ground at the respondents' premises.

The motion judge found no genuine issue requiring a trial, accepting unchallenged evidence that the premises were regularly inspected and no hazards were found.

The Court of Appeal dismissed the appeal, finding the motion judge did not reverse the onus and was entitled to reject the appellant's expert opinion, which was based on information inconsistent with the appellant's discovery evidence.

The appellant, who was found not criminally responsible (NCR) on driving-related charges, appealed a disposition of the Ontario Review Board continuing his detention at a secure forensic psychiatric unit.

He argued the Board erred in finding he posed a significant threat to public safety and in failing to hold a hearing regarding a temporary increase in restrictions on his liberty following an elopement.

The Court of Appeal dismissed the appeal, finding the Board's conclusion on public safety risk was reasonable and supported by the evidence.

The Court declined to decide the restriction of liberty issue as it was moot, and refused to impose a general notice and hearing procedure on the Board.

The appellant, who was found not criminally responsible, appealed a disposition of the Ontario Review Board continuing his detention and a decision that a temporary hold on his indirectly supervised community passes did not constitute a significant restriction of liberty requiring a mandatory hearing.

The Court of Appeal dismissed the appeal, finding that the Board reasonably concluded the appellant's continued detention was the least onerous and least restrictive disposition given his recent decompensation.

The Court also upheld the Board's application of the Campbell framework, agreeing that the temporary restriction on privileges was a day-to-day clinical management decision that did not meet the threshold of a significant increase in liberty restrictions.

The appellant, a self-represented litigant with a long history of vexatious proceedings, appealed an order refusing his fourth application for mandamus to commence a private prosecution.

The Attorney General of Ontario, as intervener, requested the appeal be dismissed under Rule 2.1 of the Rules of Civil Procedure.

The Court of Appeal found the appeal to be frivolous, vexatious, and an abuse of process.

Exercising its inherent jurisdiction to control its own process, the Court dismissed the appeal and ordered that the appellant be prohibited from making any further motions in the proceeding unless represented by a lawyer.

The appellant appealed his convictions for firearms and drug offences, and his sentence of ten years' imprisonment.

At trial, the Crown improperly cross-examined the appellant regarding his brother's immunity under s. 13 of the Charter.

The trial judge stopped the questioning, refused a stay of proceedings, and provided a strong limiting instruction to the jury.

The Court of Appeal upheld the trial judge's decision, finding the limiting instruction sufficient to cure any prejudice.

The sentence appeal was also dismissed, as the trial judge did not err in rejecting hearsay evidence of historical sexual abuse as a mitigating factor.

The moving party, a party under disability represented by the Public Guardian and Trustee as litigation guardian, sought leave to appeal an order approving a $1 million settlement of her motor vehicle accident claims.

The moving party was previously made subject to an order under Rule 37.16 prohibiting her from bringing further motions or appeals without leave due to a history of frivolous proceedings.

The Court of Appeal dismissed the motion, holding that the moving party lacked standing to act independently of her litigation guardian, and that the proposed appeal lacked reasonable grounds and would be an abuse of process.

The appellants appealed a summary judgment finding them liable for breaching a share purchase agreement, arguing the respondents misrepresented the condition of the equipment.

The respondents cross-appealed the dismissal of their claim for contribution and indemnity against a third-party corporation.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that the agreement contained no misrepresentation regarding the equipment.

The cross-appeal was allowed and remitted to the motion judge because no reasons were provided for dismissing the third-party claim.

The appellant appealed a trial decision dismissing his claim to half the proceeds from the sale of a property and granting the respondent's counterclaim based on a resulting trust.

The parties were unmarried, and the trial judge found the appellant had financially exploited the respondent and contributed nothing to the property's purchase or upkeep.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's application of the presumption of resulting trust to the gratuitous transfer of the property interest, and affording deference to her credibility assessments and factual findings.

The appellant, an undischarged bankrupt, commenced an action against the respondent for damages for solicitor's negligence.

The motion judge struck out the claim for lack of legal capacity.

The Court of Appeal dismissed the appeal, confirming that under s. 71 of the Bankruptcy and Insolvency Act, a bankrupt's property, including causes of action, vests in the trustee in bankruptcy, depriving the bankrupt of the capacity to initiate the action.

The appellant developer appealed the dismissal of its application to enforce a restrictive covenant limiting the size of ancillary buildings on a lot purchased by the respondents.

The covenant expired before the appeal was heard.

The Court of Appeal dismissed the appeal on the merits as moot, finding no community interests or public importance to justify hearing it.

However, the Court granted leave to appeal costs, finding the application judge erred in awarding substantial indemnity costs to the respondents based on their offer to settle under Rule 49.10(7).

The costs award below was reduced to $20,000.

The applicant, convicted of first-degree murder, applied for the appointment of counsel under s. 684(1) of the Criminal Code after being denied Legal Aid.

The court found that the applicant had at least one arguable ground of appeal regarding after-the-fact conduct instructions and lacked the ability to advance the complex appeal unrepresented.

The court also accepted that the applicant lacked sufficient financial means, finding his prior transfer of matrimonial home proceeds into trust for his children was reasonable.

The application was granted and counsel was appointed.

The moving party, the National Centre for Truth and Reconciliation, sought a stay pending appeal of orders permitting the destruction of the SADRE database, which contains records from the Indian Residential Schools Settlement Agreement.

The moving party also sought procedural directions, including expediting the appeal and guidance on a sealing order.

The Court of Appeal dismissed the motion for a stay, finding it unnecessary as the database was preserved until December 2020 and the appeal could be expedited.

The court granted the procedural relief, expediting the appeal, allowing an extended factum, and providing directions on the scope of the sealing order.

The moving parties sought an extension of time to perfect their appeal after missing the deadline set by a Notice of Intention to Dismiss Appeal for Delay.

The delay was caused by the suspension of procedural time limits due to the COVID-19 pandemic and subsequent communication issues between co-counsel.

The Court of Appeal granted the extension, finding that the moving parties had a reasonable explanation for the delay, there was no prejudice to the responding parties, and the appeal had arguable merit.