Stephen Geoffrey Aylward

The appellant appealed a motion judge's order dismissing his motion to add three non-LSO defendants as necessary parties to his action and to amend his pleadings to include a negligence claim against them.

The Court of Appeal upheld the motion judge's decision on three grounds: (1) the issue of whether the non-LSO defendants were necessary parties had been finally determined in prior proceedings and raising it again constituted an abuse of process; (2) the negligence claim was statute-barred under the Limitations Act, 2002, as the appellant had discovered the relevant facts by December 2020, well before the proposed amendment in June 2023; and (3) the negligence claim constituted an abuse of process as it could have been made in the original statement of claim.

The appeal was dismissed with costs awarded to the respondents.

This criminal sentence appeal under the Youth Criminal Justice Act addressed the proper interpretation of s. 72(1) governing when a young person may receive an adult sentence.

The Court held that under s. 72(1)(a), the Crown must rebut the statutory presumption of diminished moral blameworthiness beyond a reasonable doubt, and that objective offence seriousness is not a proper factor at that first-stage developmental-age inquiry.

Applying that standard, the majority found legal errors in the sentencing analysis and concluded the Crown had not displaced the presumption on this record.

The appeal was allowed, the adult life sentence was set aside, and a youth sentence was imposed with remittal on pre-sentence custody credit and supervision conditions.

This endorsement addresses motions for leave to intervene in an appeal by Antonio Caruso challenging the Law Society of Ontario’s restrictions on paralegals’ scope of practice in immigration matters.

The Court grants leave to intervene to the Ontario Paralegal Association, the Canadian Immigration Lawyers Association, and the College of Immigration and Citizenship Consultants, but denies leave to the Canadian Paralegal Alliance.

The decision reviews the relevant principles for intervention, the backgrounds and proposed contributions of each intervener, and the reasons for granting or denying leave.

The plaintiff, Alexander Shaulov, brought a motion to amend his statement of claim to re-add Performance Assessment Group Inc., John Braham, and Michael Williams (the non-LSO defendants) and to plead a new cause of action in negligence against them.

The claims against the non-LSO defendants had been previously struck without leave to amend, and subsequent attempts to keep them as parties or appeal those decisions were unsuccessful.

The court dismissed the motion, finding that re-litigating the issue of adding the non-LSO defendants was an abuse of process, and that the proposed negligence claim was statute-barred as the material facts were known to the plaintiff prior to the initial claim.

The appellant, Alexander Shaulov, appealed a decision from a case management judge that effectively removed "Non-LSO parties" from his lawsuit against the Law Society of Ontario.

Shaulov had sued the LSO and other parties after repeatedly failing the barrister exam.

The case management judge had previously struck claims against the Non-LSO parties and stated that to re-plead against them, Shaulov would need consent or leave of the court under Rule 26.02 of the Rules of Civil Procedure.

The Court of Appeal quashed the appeal, finding it lacked jurisdiction because the case management judge's decision was interlocutory, not a final order, and therefore an appeal would require leave to the Superior Court.

The Law Society of Ontario (LSO) brought a motion to strike the plaintiff's administrative law claims, which challenged the LSO's licensing examination structure and procedural fairness.

The court dismissed the LSO's motion, finding that the claims disclosed a reasonable cause of action and were better suited for summary judgment or trial.

The court also addressed the plaintiff's attempt to re-add previously struck non-LSO defendants, confirming that these defendants were no longer parties to the action as all claims against them had been struck without leave to amend and they were not necessary parties.

This is an appeal from a Superior Court order staying proceedings due to the appellants' unauthorized possession and review of the respondents' privileged documents.

The parties were involved in a failed joint venture to establish a Schedule 1 bank.

The appellants, particularly Scott Penfound, obtained and accessed voluminous privileged emails and legal strategy documents belonging to the respondents from a shared file server.

The motion judge found a rebuttable presumption of prejudice, which the appellants failed to rebut by not providing evidence of the scope of their review.

The Court of Appeal upheld the stay, finding no error in the motion judge's conclusion that significant, ongoing prejudice existed that could not be cured by a lesser remedy, especially given the client's direct access to the information and lack of transparency.

The Crown appealed from a Court of Appeal decision striking down Criminal Code provisions (ss. 742.1(c) and 742.1(e)(ii)) that made conditional sentences unavailable for certain serious offences, as applied to an Indigenous offender convicted of importing cocaine.

The majority (5-4) allowed the appeal, restoring the 18-month custodial sentence, holding that the respondent failed to satisfy step one of the s. 15(1) Charter analysis by not demonstrating that the impugned provisions created or contributed to a disproportionate impact on Indigenous offenders relative to non-Indigenous offenders.

The majority also held the provisions were not overbroad under s. 7 because maximum sentences are a reasonable proxy for offence seriousness.

The dissent would have dismissed the appeal, finding the provisions both overbroad under s. 7 and discriminatory against Indigenous offenders under s. 15(1) by impairing the remedial Gladue framework.

The appellants (plaintiffs in the underlying action) appealed a motion judge's decision to permanently stay their proceedings against the respondent (David Smith) due to their failure to immediately disclose partial settlement agreements with other co-defendants.

The Court of Appeal for Ontario affirmed that failure to immediately disclose settlement agreements that fundamentally alter the litigation landscape, by changing adversarial relationships into cooperative ones, constitutes an abuse of process.

The court reiterated that the sole remedy for such non-disclosure is an automatic stay of proceedings, regardless of whether prejudice is proven or if pleadings have been exchanged.

The appeal was dismissed, upholding the permanent stay.

This complex motion involved the defendants, Dr. Saad and the Canadian Companies, seeking to set aside ex parte Mareva injunctions, Norwich orders, and receivership orders previously granted to the plaintiffs.

The defendants argued material non-disclosure by the plaintiffs, particularly regarding the political motivations behind the litigation and the legitimate commercial relationships between the parties.

The plaintiffs sought to continue and vary the orders.

The court found no material non-disclosure sufficient to set aside the Mareva order against Dr. Saad, continuing it.

However, the Norwich and Receivership orders against the Canadian Companies were set aside due to non-material but impactful non-disclosure that changed the factual landscape, making the orders overly broad.

The court also addressed the application of the deemed undertaking rule for documents obtained through Norwich orders.

The appellants, a real estate agent and broker, appealed a trial judgment ordering them to pay damages to the respondents (purchasers) for water and mould damage to a residential home, due to the agent's negligence.

The appeal primarily concerned the measure of damages.

The Court of Appeal found that the trial judge erred by applying the cost of repair measure, as the appellants' negligence did not cause the property defect itself, but rather caused the respondents to enter into a transaction they would have otherwise avoided.

In such cases, the proper measure of damages is the diminution in value of the property.

The Court upheld the trial judge's findings on mitigation of damages and the foreseeability of frost heave damage.

The matter was remitted to the trial judge for reassessment of damages based on diminution in value and for a redetermination of costs from the first trial.

This is a criminal appeal concerning convictions for possession of child pornography, making child pornography, and sexual assault.

The appellant argued that police breached his Charter rights (ss. 8 and 10(b)) through delayed access to counsel, an unlawful strip search, an unauthorized bedpan vigil, unlawful detention, a warrantless apartment entry, and invalid search warrants for electronic devices.

The Court of Appeal found multiple serious Charter breaches, including a reckless disregard for fundamental constitutional rights and significant impact on privacy interests (body, home, devices).

The court re-evaluated the s. 24(2) Grant analysis, concluding that the evidence obtained through these breaches should have been excluded.

The trial judge's attempt to sever the breaches and stay lesser charges was deemed an error in principle, as the police conduct tainted all evidence.

The appeal was allowed, convictions set aside, and acquittals entered.

The accused pleaded guilty to one count of sexual interference contrary to s. 151(b) of the Criminal Code.

The offence involved sexual touching and fellatio with a 14-year-old complainant when the accused was 20 years old.

The conduct occurred between September 2017 and October 2017 at a church where both parties attended.

The court imposed a six-month conditional sentence with an initial three-month period of virtual house arrest, followed by probation.

The sentencing decision balanced the serious nature of the offence and the need for denunciation and general deterrence against significant mitigating factors including the accused's youth, lack of criminal record, genuine remorse, successful completion of counselling, and low risk of reoffence.

This decision addresses costs following three motions, where the plaintiff was largely successful in obtaining an extension to file a statement of claim despite breaching a peremptory order.

The plaintiff sought costs, but the court denied them.

The denial was based on the plaintiff having received a substantial indulgence from the court, the necessity of much of the evidence and argument regardless of the defendants' position, and the plaintiff's failure as a self-represented litigant to provide evidence of lost income.

The plaintiff, Sae-Bin Im, sought an extension of time to file a statement of claim, while several defendants moved to dismiss the action for breach of a peremptory order and for delay.

The court found the plaintiff's explanation for non-compliance, including self-representation, involvement in other litigation, and medical issues (depression and anxiety), to be satisfactory and not intentional.

The court also found no significant prejudice to the sophisticated defendants, who were aware of the proceedings and could preserve evidence.

The court granted the plaintiff an extension to file the statement of claim and dismissed the defendants' motions to dismiss, emphasizing that the plaintiff's claim, though lengthy, was not frivolous or vexatious.

The defendant, Michael R. Elliott, brought a motion to strike the plaintiff, Tahar Amrane's statement of claim without leave to amend, pursuant to Rules 21.01(1)(b), 21.01(3)(d), and 25.11 of the Rules of Civil Procedure.

Elliott, as manager of the Law Society of Ontario's Compensation Fund, had confirmed the rejection of Amrane's claim for compensation.

Elliott argued that the action should be struck because he benefited from statutory immunity under section 9 of the Law Society Act, he owed no private law duty of care to Amrane as a claimant to the Fund, and the action constituted an impermissible collateral attack on the Fund's decision.

The court agreed with Elliott, finding that Amrane's allegations did not establish bad faith, no private law duty of care existed, and the action was an abuse of process.

The motion to strike was granted, and leave to amend was denied.

Costs were awarded to Elliott in the amount of $200.

The appellant was convicted of possession of child pornography and appealed both conviction and sentence.

The Court of Appeal upheld the conviction, finding that the police search of the appellant's computer was reasonable and not unreasonably invasive under section 8 of the Charter.

The court found that where child pornography has been located on a computer during initial examination, it is reasonable for police to examine all images and videos on the computer, as well as Internet search history, to identify further material and determine who was responsible.

The court also found that the mandatory minimum six-month sentence for possession of child pornography was grossly disproportionate in reasonable hypothetical circumstances and violated section 12 of the Charter.

However, the court upheld the ten-month sentence imposed by the trial judge as fit and proportionate, given the serious nature of the offence and the appellant's collection of 89 unique videos and 50 unique images of extreme child pornography.

The applicant, Ryan Alford, challenged the Law Society of Upper Canada's requirement for licensees to adopt a Statement of Principles promoting equality, diversity, and inclusion.

The Law Society brought a motion challenging the Superior Court's jurisdiction, arguing the matter should be heard as an application for judicial review in the Divisional Court.

The court found that the Law Society's decision was an exercise of statutory power, falling within the exclusive jurisdiction of the Divisional Court for judicial review.

The motion to transfer the application to the Divisional Court was granted.

Crown appeal from the acquittal of Aasif Patel on charges of first degree murder and second degree murder in connection with the fatal shooting of Lorenzo Martinez.

The Crown argued that the trial judge erred in refusing to instruct the jury on party liability under section 21(2) of the Criminal Code (common unlawful purpose) and in his instructions regarding section 21(1) liability (aiding and abetting).

The Court of Appeal dismissed the appeal, finding that the Crown had materially changed its legal theory between trial and appeal, which would be unfair to the respondent and offend double jeopardy principles.

The court also found no error in the trial judge's instructions on causation or on the relationship between the liability of the principal and the party.

The Law Society of Upper Canada sought an injunction under the Law Society Act to prohibit a disbarred lawyer from providing legal services.

The Law Society alleged the respondent had violated the Act on at least two occasions, relying on client and investigator affidavits.

The respondent denied the allegations, presenting employee affidavits stating a licensed lawyer handled the client's file.

The court found the Law Society did not meet its burden of proof to establish a violation of the Act on a balance of probabilities, dismissing the application.