Jump To: Table of Contents | Civil Decisions | Short Civil Decisions | Criminal Decisions

Good evening.

Following are our summaries of the civil decisions of the Court of Appeal for Ontario released this past week.

Topics covered this week included:

  1. the interpretation of a mortgage assumption provision in an agreement of purchase and sale of land;
  2. the interpretation of an early payment provision in a vendor take-back mortgage;
  3. the interpretation of a municipal by-law;
  4. the calculation of performance bonus entitlements and shareholder bonuses in a wrongful dismissal context;
  5. setting aside transfers of assets between common law spouses following separation; and
  6. several procedural issues such as jurisdiction to hear an appeal in a judicial review context, costs in a class proceedings context, amending pleadings in the face of a limitation period issue, stay pending appeal, and stays of appeals as a sanction for failing to comply with a court order.

Wishing everyone a pleasant weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Havelock-Belmont-Methuen (Township) v Kloosterman, 2018 ONCA 945

Keywords: Municipal Law, By-law Enforcement, Statutory Interpretation

Michail v Ontario English Catholic Teachers’ Association, 2018 ONCA 950

Keywords: Civil Procedure, Judicial Review, Appeals, Jurisdiction

Evans v Paradigm Capital Inc, 2018 ONCA 952

Keywords: Employment Law, Wrongful Dismissal, Constructive Dismissal, Damages, Mitigation, Civil Procedure, Costs, Fresh Evidence, Evans v Teamsters Local Union No 31, 2008 SCC 20, R v Palmer, [1980] 1 SCR 759, Clark v BMO Nesbitt Burns Inc, 2008 ONCA 663, Love v Acuity Investment Management Inc, 2011 ONCA 130, Sengmueller v Sengmueller (1994), 17 OR (3d) 208 (CA)

Heydari v Ahmadi, 2018 ONCA 958

Keywords: Family Law, Spousal Support, Net Equalization of Family Property, Civil Procedure, Appeals, Extension of Time, Stay Pending Appeal, Practice Direction Concerning Civil Appeals, Kefeli v Centennial College of Applied Arts and Technology (2002), 23 CPC (5th) 35 (Ont CA), RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311, SFC Litigation Trust v Chan, 2018 ONCA 710, Family Law Rules, Rule 63.01(1)

THMR Development Inc v 1440254 Ontario Ltd, 2018 ONCA 954

Keywords: Real Estate, Contracts, Agreements of Purchase and Sale of Land, Conditions Precedent, Remedies, Specific Performance, Civil Procedure, Appeals, Standard of Review, Adequacy of Reasons, Zhilka v Turney, [1959] SCR 578, Barnett v. Harrison, [1976] 2 SCR 531, 801 Assets Inc v 605446 Ontario Ltd, 2016 ONSC 2772, Campbell Pools Inc v Seville Group Inc, 2015 ONSC 2314, R v Sheppard, 2002 SCC 26

Lavender v Miller Bernstein LLP, 2018 ONCA 955

Keywords: Torts, Auditors’ Negligence, Civil Procedure, Class Proceedings, Costs, Rules of Civil Procedure, RRO 1990, Reg 194, r 12.04 and r 57.01(1)(g), Class Proceedings Act, 1992, SO 1992, c. 6, s 31(1), Deloitte & Touche v Livent Inc (Receiver of), 2017 SCC 63, Pearson v Inco Ltd (2006), 79 OR (3d) 427 (CA), Williams v Mutual Life Assurance Co of Canada, (2001) 27 CCLI (3d) 256

Kinbridge (Bronte) Inc v 1140114 Ontario Inc, 2018 ONCA 957

Keywords: Contracts, Real Property, Mortgages, Interpretation, Standard of Review, Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53

Van Halteren v De Boer Tool Inc, 2018 ONCA 960

Keywords: Corporate Law, Oppression, Civil Procedure, Amending Pleadings, Limitation Periods, Costs, Limitations Act, 2002, SO 2002, c 24, Sched. B, Ontario Business Corporations Act, RSO 1990, c B.16

Siddiqui v Anwar, 2018 ONCA 965

Keywords: Family Law, Equalization of Net Family Property, Support, Civil Procedure, Orders, Remedies for Breach, Appeals, Quashing Appeals, Stays, Dickie v Dickie, 2007 SCC 8, Cosentino v Cosentino, 2017 ONCA 593

Styres v Martin, 2018 ONCA 956

Keywords: Family Law, Estates, Real Property, Breach of Fiduciary Duty, Breach of Trust, Unjust Enrichment, Gifts, Express Trust, Resulting Trust, Capacity, Undue Influence, Civil Procedure, Appeals, Sufficiency of Reasons, Statute of Frauds, RSO 1990, c S.19, Maple Ridge Community Management Ltd v Peel Condominium Corporation No 231, 2015 ONCA 520

Paterson Veterinary Professional Corporation v Stilton Corp Ltd, 2018 ONCA 967

Keywords: Real Property, Civil Procedure, Appeals, Stay Pending Appeal, Rules of Civil Procedure, RRO 1990, Reg 194, 63.02, RJR-MacDonald Inc v Canada (Attorney-General), [1994] 1 SCR 311

Short Civil Decisions

Ontario Securities Commission v Tiffin, 2018 ONCA 953

Keywords: Securities Law, Civil Procedure, Leave to Appeal, Securities Act, RSO 1990, c S.5, Provincial Offences Act, RSO 1990, c P.33, Ontario (Ministry of the Environment and Climate Change) v Sunrise Propane Energy Group Inc, 2018 ONCA 461, Reves v Ernst & Young, 494 US 56 (1990), BCSC v Gill, 2003 BCCA 169, R v Stevenson, 2017 ABCA 420

Criminal Decisions

R v Dixon, 2018 ONCA 949

Keywords: Criminal Law, Sexual Assault, Consent, Capacity to Consent, Evidence, Criminal Record, R v JA, 2011 SCC 28

R v Miller, 2018 ONCA 942

Keywords: Criminal Law, Importing Drugs, Trafficking Drugs, Mens Rea, Wilful Blindness, Evidence, Incriminating Statements, Burden of Proof, Canadian Charter of Rights and Freedoms, s 10(b), R v Ross, [1989] 1 SCR 3, R v Guenter, 2016 ONCA 572, R v Suberu, 2009 SCC 33, R v Grant, 2009 SCC 32, R v McGuffie, 2016 ONCA 365

R v BC, 2018 ONCA 951

Keywords: Criminal Law, Sexual Assault, Unlawful Confinement

R v Daoud, 2018 ONCA 963

Keywords: Criminal Law, Sexual Assault, Consent

R v Georgiev, 2018 ONCA 961

Keywords: Criminal Law, Robbery, Assault, Uttering Threats, Possession of a Weapon, Breach of Recognizance, Vetrovec Charge, Sentencing, Leave to Appeal, Criminal Code, RSC 1985, c C-46, ss 88(1), 145(3)(a), 264.1(1)(a), 343(a), 343(b), Kienapple v R, [1975] 1 SCR 729

R v Tran, 2018 ONCA 909

Keywords: Criminal Law, Evidence, Credibility, Canadian Charter of Rights and Freedoms, ss 8 and 24(2)

R v Slatter, 2018 ONCA 962

Keywords: Criminal Law, Sexual Assault, Sexual Exploitation, Sexual Invitation, Evidence, Refreshing Witness Memory, Ineffective Assistance, Reasonable Apprehension of Bias, Sufficiency of Reasons, Canada Evidence Act, RSC 1985, c C-5, s 9(2), Yukon Francophone School Board, Education Area #23 v Yukon (Attorney General), 2015 SCC 25, R v S(RD), [1997] 3 SCR 484, Committee for Justice and Liberty v Canada (National Energy Board), [1978] 1 SCR 369, R v Fliss, 2002 SCC 16, R v Cody, 2017 SCC 31, R v Morrissey (1995), 22 OR (3d) 514 (CA), R v REM, 2008 SCC 51, R v Rhayel, 2015 ONCA 377, R v B(GD), 2000 SCC 22, R v Cubilan, 2018 ONCA 811, R v Sheppard, 2002 SCC 26, R v Burke, [1995] 1 SCR 474, R v Aird, 2013 ONCA 447

R v Pilon, 2018 ONCA 959

Keywords: Criminal Law, Drug Trafficking, Evidence, Search and Seizure, Canadian Charter of Rights and Freedoms, ss 8, 24(2), Controlled Drugs and Substances Act, SC 1996, c 19, R v Golden, 2001 SCC 83, R v Saeed, 2016 SCC 24, R v Kelsy, 2011 ONCA 605, R v Grant, 2009 SCC 32

R v Mohamad, 2018 ONCA 966

Keywords: Criminal Law, Murder, Self-Defence, Evidence, Hearsay, B(KG) Statement, Vetrovec Caution, Cross-Examination, The Rule in Browne v Dunn, Jury Instructions, Exhibits, In-Deliberation Jury Instructions, Sentencing, Parole Ineligibility, Canada Evidence Act, RSC 1985, c C-5, s 9(2), Criminal Code, RSC 1985, c C-46, ss 34, 655, 715, 715.1, R v Bradshaw, 2017 SCC 35, R v Mohan, [1994] 2 SCR 9, R v Khelawon, 2006 SCC 57, R v Hawkins, [1996] 3 SCR 1043, R v Rahayel, 2015 ONCA 377, R v Couture, 2007 SCC 28, R v Youvarajah, 2013 SCC 41, R v Vetrovec, [1982] 1 SCR 811, R v Baskerville, [1916] 2 KB 658, R v Kehler, 2004 SCC 11, Browne v Dunn (1894), 6 R 67 (UK HL), R v E(FE), 2011 ONCA 783, R v Bengy, 2015 ONCA 397, R v Petel, [1994] 1 SCR 3, R v Cinous, 2002 SCC 29, R v M(MA), [1998] 1 SCR 123, R v Olbey, [1980] 1 SCR 1008, R v Taylor, 2015 ONCA 448, R v S(WD), [1994] 3 SCR 521, R v Naglik, [1993] 3 SCR 122, R v Lacasse, 2015 SCC 64

R v Callaghan, 2018 ONCA 969

Keywords: Criminal Law, Weapons Offences, Driving Offences, Sentencing


CIVIL DECISIONS

Havelock-Belmont-Methuen (Township) v Kloosterman, 2018 ONCA 945

[Strathy C.J.O., Benotto and Roberts JJ.A]

Counsel:

C. Robertson, for the appellants

M.J. Ewart and J. Chapman, for the respondent

Keywords: Municipal Law, By-law Enforcement, Statutory Interpretation

Facts:

The appellants were owners of a piece of land in the Township of Havelock-Belmont-Methuen. The Township alleged that the appellants infringed s. 4.31 of the applicable by-law by placing a prohibited vehicle for temporary or permanent human habitation on their property. The Township therefore sought an injunction to prohibit the appellants from continuing their alleged infringement of the by-law.

Among other things, s. 4.31 stipulated that “no truck, bus, coach, cargo or freight container, recreational or any other type of trailer shall be used for either temporary or permanent human habitation”. The appellants acknowledged that the vehicle on their property fell within the by-law’s definition of “recreational motor home”. The application judge found that the connection of the appellants’ vehicle to the property’s power line was evidence of intended habitation despite finding no evidence of actual habitation.

The application judge therefore granted the Township a declaration that the placement on the appellants’ property of a “trailer/recreational” vehicle or any vehicle for the purposes of human habitation was a non-permitted use, and granted an injunction prohibiting the appellants from placing a “trailer/recreational” vehicle or any vehicle upon their property.

Issue:

(1) Did the application judge err in his interpretation of the by-law?

(2) Did the application judge err in finding that the connection of the motor home to the power line was evidence of intended habitation?

(3) Was the application judge’s order overly broad in its prohibition of the placement of any vehicle on the appellants’ property?

Holding:

Appeal allowed.

Reasoning:

(1) Yes. It was clear from a plain reading of the by-law that recreational vehicles and motor homes were not included under s. 4.31. Section 4.31 expressly prohibited the placement of any “truck, bus, coach, cargo or freight container, recreational or any other type of trailer”, but not a motor home. The definitions for “recreational vehicle”, “trailer” and “travel trailer” did not include recreational motor homes. Moreover, the Township’s by-law inspector admitted on cross-examination that the vehicle was not a trailer but a motor home.
It was therefore not open to the application judge to conclude that the motor home was included under the by-law, when the unambiguous definitions of the by-law and the unchallenged evidence of the by-law inspector excluded the appellants’ vehicle.

(2) Yes. Having accepted that “‘human habitation’ goes beyond sleeping, eating, and executory functions”, the application judge erred in determining that providing electrical power to the appellants’ motor home was consistent with intended habitation despite no evidence of actual habitation. There was no evidence of actual use beyond the appellants’ evidence that seasonally the appellants and their grandchildren might occasionally use the motor home for privacy in changing bathing suits or for its washroom facilities.

(3) Yes. The order went beyond the scope of the by-law and enjoined the placement of all vehicles, even cars, which are clearly not prohibited under the by-law.

Michail v Ontario English Catholic Teachers’ Association, 2018 ONCA 950

[Brown J.A.]

Counsel:

MM, acting in person

C. Perri, for the respondents, the Ontario English Catholic Teachers’ Association et al.

A. Ranalli, for the respondent, the Attorney General of Ontario

J. Pollice, for the respondent the Department of Justice Canada

Keywords: Civil Procedure, Judicial Review, Appeals, Jurisdiction

Facts:

The moving party initiated a judicial review proceeding in the Divisional Court where interlocutory orders were made. She appealed those interlocutory orders to the Court of Appeal, and brought a motion before Justice Paciocco to grant a number of procedural directions. Only one of those was granted, and the moving party brought a motion for review of Justice Paciocco’s order. In the meantime, a motion by the respondents to quash the moving party’s underlying appeal was granted.

The moving party now brings a motion in writing seeking the following orders: (i) to dispense with the requirement of signing a standard undertaking in order to obtain the release of audio recordings of earlier motions; (ii) to permit her to transcribe those motions; (iii) to publicize the reasons of Justice Paciocco in the earlier motion; and (iv) to challenge the constitutional validity and applicability of ss. 136(1)(a)(i), (b), (c), and 136(4) of the Courts of Justice Act, RSO 1990, c C.43.

The respondent Attorney General of Ontario takes the position that the Court of Appeal does not have jurisdiction to hear the notice of constitutional question. No other position is taken by the respondents.

Issue:

(1) Does the Court of Appeal have jurisdiction to hear the moving party’s motion?

Holding:

Motion dismissed.

Reasoning:

(1) No. The Court of Appeal does not have jurisdiction to hear the moving party’s motion because the appeal that the motion originates from has been quashed.

In response to the moving party’s other requests: (i) the moving party may obtain audio recordings of earlier motions by completing the standard Request Form/Undertaking to the Court for Access to Digital Recordings; and (ii) whether the reasons of a motion judge are publicized is left to the discretion of the motion judge and is not required by the Court of Appeal.

Evans v Paradigm Capital Inc, 2018 ONCA 952

[Hoy A.C.J.O., Feldman and Huscroft JJ.A.]

Counsel:

S. Lawler and J. Miller, for the appellant

P.A.N. Gupta and J. Gallichan, for the respondent

Keywords: Employment Law, Wrongful Dismissal, Constructive Dismissal, Damages, Mitigation, Civil Procedure, Costs, Fresh Evidence, Evans v Teamsters Local Union No 31, 2008 SCC 20, R v Palmer, [1980] 1 SCR 759, Clark v BMO Nesbitt Burns Inc, 2008 ONCA 663, Love v Acuity Investment Management Inc, 2011 ONCA 130, Sengmueller v Sengmueller (1994), 17 OR (3d) 208 (CA)

Facts:

The appellant was wrongfully dismissed by the respondent. It was agreed at trial that the appellant was constructively dismissed when the respondent revised her position, and, among other things, reduced her responsibility. The trial judge held that the appellant was entitled to 11 months’ pay in lieu of notice. This amount included base salary as well as a performance bonus and a shareholders’ bonus. The trial judge held that the appellant was not required to accept the revised role with the respondent in order to mitigate her damages. The appellant appealed the calculation of the performance bonus, while the respondent cross-appealed the trial judge’s findings with respect to mitigation, notice and the shareholders’ bonus. Both parties sought leave to appeal the trial judge’s costs order.

Issue:

(1) Did the trial judge err in calculating the appellant’s performance bonus entitlement based on her last percentage allotment and the respondent’s actual financial results in 2009, rather than a three-year historic average of her performance bonus?

(2) Did the trial judge err in finding that the appellant was not required to accept the new revised role with the respondent in order to mitigate her damages?

(3) Did the trial judge err in finding that the appellant was entitled to 11 months’ notice?

(4) Did the trial judge err in awarding the appellant damages related to the shareholders’ bonus, even though her equity interest in the company had been redeemed following her dismissal in accordance with the shareholders’ agreement?

(5) Should leave be given to either party to appeal the trial judge’s cost order?

Holding:

Appeal dismissed and cross-appeal allowed in part.

Reasoning:

(1) No. The trial judge was not obliged to calculate the performance bonus on the basis of a three-year historical average rather than on what her bonus would have been in 2009. The appellant argued that, because of her constructive dismissal in January 2009, the 2009 pool used to determine her performance bonus was lower than it would have been. The Court disagreed, finding that although it may sometimes be appropriate to calculate damages based on an average of earnings, there is no requirement to do so as per Clark v BMO Nesbitt Burns Inc, 2008 ONCA 663 at para 35. In general, damages for wrongful dismissal reflect the amount that the plaintiff would have earned had her employment continued in accordance with the contract. The trial judge was not persuaded that there was any reason to depart from this approach and the Court found no palpable and overriding error to justify interfering with this decision.

(2) No. There was no error in the trial judge’s conclusions with respect to mitigation. The trial judge properly applied the law set out by the Supreme Court of Canada in Evans v Teamsters Local Union No 31, 2008 SCC 20 at paras 27–33. In that case, the Supreme Court held that if an employer offers an employee the opportunity to mitigate damages by returning to work for the employer, the central issue is whether a reasonable person would accept such an opportunity. The Supreme Court also added that employees are not obliged to mitigate by working in an atmosphere of hostility, embarrassment or humiliation, and that non-tangible elements of the situation have to be considered as well as the nature and conditions of employment. It was open for the trial judge to find that there were too many variables concerning the tangible aspects of the revised role that was essentially left to her superiors and that in the circumstances the offer of alternative employment was “more form than substance”. It was also open for the trial judge to find that the move to the revised position would have been devastating for the appellant on several levels.

(3) No. The trial judge did not make an error with respect to the calculation of the notice period. The trial judge did not find that inducement was a relevant consideration in calculating the appellant’s notice period. He simply stated that the appellant was “actively recruited” to her position and made no error in doing so. Furthermore, 11 months’ notice was not unreasonable in the circumstances of a difficult employment market.

(4) Yes. The trial judge erred in awarding the appellant damages corresponding to the shareholders’ bonus. The respondent argued that dividends could only be claimed by shareholders and that the appellant ceased to be a shareholder upon the termination of her employment, when her shares were purchased by the respondent in accordance with the deemed transfer notice provided for in the shareholder’s agreement. The Court agreed with this argument, finding that the trial judge failed to give effect to the terms of the shareholder’s agreement, which clearly required the appellant to tender her shares for redemption on termination of her employment. In Love v Acuity Investment Management Inc, 2011 ONCA 130, the Ontario Court of Appeal made clear that an employee’s employment is terminated when he or she is dismissed without cause as opposed to when the notice period ends. The Court found that this required the appellant to tender her shares for redemption once her employment was terminated, and once this occurred, the appellant was no longer entitled to receive the shareholders’ bonus.

(5) Yes. The Court found that, since the respondent succeeded on the shareholders’ bonus issue, the outcome of the case changed for the purpose of determining costs and the matter should be returned to the trial judge for re-consideration. The respondent brought a fresh evidence application seeking to introduce evidence of a legal costs arrangement between the appellant and her counsel, but the appellant opposed this on the basis that it failed to meet the requirements of the tests set out in R v Palmer, [1980] 1 SCR 759 and Sengmueller v Sengmueller (1994), 17 OR (3d) 208 (CA) as well as violating public policy. Both parties agreed that if the respondent were to succeed on the shareholders’ bonus issue, the outcome of the case would change for the purposes of determining cost. The Court agreed with this. The Court also found that the trial judge should determine whether any fresh evidence should be admitted.

Heydari v Ahmadi, 2018 ONCA 958

[Brown J.A. (Motion Judge)]

Counsel:

P. Baxi and I. Mirzadeh, for the moving party

M. Stangarone and S. Kirby, for the responding party

Keywords: Family Law, Spousal Support, Net Equalization of Family Property, Civil Procedure, Appeals, Extension of Time, Stay Pending Appeal, Practice Direction Concerning Civil Appeals, Kefeli v Centennial College of Applied Arts and Technology (2002), 23 CPC (5th) 35 (Ont CA), RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311, SFC Litigation Trust v Chan, 2018 ONCA 710, Family Law Rules, Rule 63.01(1)

Facts:

The parties were married in 2007 and separated in 2016, whereupon the respondent wife commenced an application to set aside a marriage contract, as well as obtain orders for spousal support and a net equalization payment. As a result of the husband’s failure to comply with undertakings, the application judge struck his pleadings and ordered the matter to proceed to an uncontested trial.

The husband did not move to set aside the strike pleadings order, nor did he appeal it. Further, his amended notice of motion and draft Notice of Appeal in this proceeding did not indicate that he sought an extension of time to appeal the strike pleadings order.

The uncontested trial was heard in May 2018, with the trial judge’s order issued on that same date. The trial judge found in favour of the wife and ordered that the matrimonial home be sold. He additionally ordered lump-sum spousal support, an equalization payment, costs and a restraining order against the husband.

In October 2018, the husband subsequently brought the present motion to extend the time to file a notice of appeal from the final order and to stay that order pending the appeal.

Issue:

(1) Should the husband be granted an extension of time to file his notice of appeal?

(2) Should the application judge’s order be stayed pending appeal?

(3) Should the husband be granted relief regarding the matrimonial home in the event that it was sold?

(4) Should the husband be granted leave to file fresh evidence on appeal?

Holding:

Motion granted, in part.

Reasoning:

(1) Yes. Pursuant to prior Court of Appeal authority, the Court of Appeal looks to four factors in determining that it should grant the moving party an extension: (i) whether the moving party formed an intention to appeal within the relevant appeal period; (ii) the length of, and explanation for, the delay; (iii) prejudice to the responding party; and (iv) the merits of the appeal, specifically whether there was so little merit in the proposed appeal that the court could reasonably deny the important right of appeal.

With respect to an intention to appeal, the Court of Appeal found that the husband’s decision to retain new counsel following the trial judge’s final order was sufficient evidence that the husband intended to appeal.

With respect to the length of and explanation for the delay, the Court of Appeal found the husband’s explanation to be weak and unbelievable. On the evidence, it was apparent that the husband had actually spent the time trying to frustrate the ordered sale of the matrimonial home.

With respect to the merits of the appeal, the Court of Appeal expressed skepticism about the husband’s submissions that the trial judge failed to explain why he ordered support payable in a lump sum and failed to explain how he reached certain conclusions. To the contrary, several aspects of the trial judge’s ruling directly refuted these submissions.

With respect to the prejudice to the wife, the Court of Appeal identified the prejudice as purely financial in nature. The Court found that since over 80% of the total spousal support payment was a lump sum, that aspect of the trial judge’s order would not be stayed pending appeal. Rather, the wife would still receive those funds forthwith. Accordingly, the Court of Appeal found that the financial prejudice to the wife would be modest in proportion to the overall amount awarded by the final order.

The Court of Appeal therefore found, primarily on the basis of the modest prejudice to the wife that the husband should be granted an extension of time to appeal.

(2) No. The Court of Appeal succinctly identified the reasons for which to deny the stay: first, the husband’s grounds of appeal were weak; second, the harm he might suffer was only monetary, and even then, his substantial unreported income suggested that the amount was lower than it might otherwise have been; and third, the balance of convenience overwhelming favoured not interfering with the “no automatic stay” policy regarding support orders as expressed in rule 63.01 of the Family Law Rules.

(3) No. As the matrimonial home had already been sold at the time of this motion, the Court of Appeal declined to address this issue.

(4) No. Applications for fresh evidence must be brought before the panel hearing the appeal, in accordance with s. 7.2.1. of the Court of Appeal’s Practice Direction Concerning Civil Appeals.

THMR Development Inc v 1440254 Ontario Ltd, 2018 ONCA 954

[Lauwers, Hourigan and Pardu JJ.A.]

Counsel:

G.M. Sidlofsky, for the appellant

M. Simaan, for the respondent

Keywords: Real Estate, Contracts, Agreements of Purchase and Sale of Land, Conditions Precedent, Remedies, Specific Performance, Civil Procedure, Appeals, Standard of Review, Adequacy of Reasons, Zhilka v Turney, [1959] SCR 578, Barnett v. Harrison, [1976] 2 SCR 531, 801 Assets Inc v 605446 Ontario Ltd, 2016 ONSC 2772, Campbell Pools Inc v Seville Group Inc, 2015 ONSC 2314, R v Sheppard, 2002 SCC 26

Facts:

The application judge dismissed the appellant’s application for specific performance of an agreement of purchase and sale between it, as the buyer, and the respondent, as the seller, of a mixed commercial/residential use property in Port Perry. The application judge’s decision turned on her interpretation of the mortgage assumption provision in the agreement of purchase and sale, which required the approval of the mortgagee, Alterna Savings (“Alterna”), to the assumption of the mortgage, on terms acceptable to the buyer.

Alterna consented to the appellant’s assumption of the mortgage by letter dated May 24, 2017. Alterna’s approval letter listed a number of terms and conditions which had to be fulfilled before the closing date. The conditions were acceptable to the appellant, but there were two issues with Alterna’s letter that required correction. The appellant resolved both issues by direct communications with Alterna. On June 20, 2017, counsel for the respondent wrote to counsel for the appellant, taking the position that the agreement of purchase and sale was at an end because the appellant had not formally accepted Alterna’s terms approving the mortgage assumption by signing and returning the approval letter before the end of the assumption approval period on June 6, 2017.

The application judge described the mortgage assumption condition as a “true condition precedent,” which she found “had not been satisfied by the parties by June 6, 2017” rendering the agreement “null and void.” This interpretation rested on the application judge’s finding that “the buyer had in no way agreed to be legally bound or had legally accepted the terms of the mortgage which Alterna was giving its approval to.” She based this determination on the appellant’s failure to sign and return Alterna’s offer to approve the assumption. The application judge said that there was no evidence that the appellant agreed to be bound by Alterna’s terms. The application judge added in obiter: “I would not have ordered specific performance of the agreement.”

Issue:

(1) Did the application judge err in determining that the agreement of purchase and sale was null and void because the condition precedent in the mortgage assumption provision had not been satisfied?

(2) Did the application judge err in finding that an order for specific performance would not be available to the appellant?

Holding:

Appeal allowed.

Reasoning:

(1) Yes. A true condition precedent exists where the rights and obligations of the contracting parties under the contract depend on a future uncertain event, the happening of which is beyond the control of the parties and which depends entirely on the will of a third party. Until the event occurs, neither party to the contract has a right to performance: See Zhilka v Turney, [1959] SCR 578, at 583–84. The application judge found that the jurisprudence on true conditions precedent was not applicable because “the parties [had] clearly addressed their minds on what they want the consequences of a failure of the condition precedent to be” by agreeing “that this condition is a ‘true condition precedent and cannot be waived.’”

In this case, the only third party was Alterna and the only true condition precedent was Alterna’s approval of the appellant’s assumption of the mortgage. This was the only part of the mortgage assumption provision that could properly be identified as a true condition precedent, and it was in place so that both the appellant, as buyer, and the respondent, as seller, were not penalized by the prepayment fee. The condition precedent was satisfied when Alterna sent its approval letter that was then altered slightly to the appellant’s satisfaction. In the Court of Appeal’s view, the appellant was then bound to close the transaction with the respondent, subject to any other conditions such as the possible fallout from possible surprises revealed by the property inspection refused by the respondent.

Consequently, the application judge erred in concluding that the appellant was required to confirm its acceptance formally by signing and returning the assumption approval letter to Alterna to satisfy the condition precedent.

(2) Yes. The application judge concluded that “the value of that property to the applicant was for investment purposes,” so that damages would be an appropriate remedy. The application judge did not address the evidence or the law in any detail. Her reasons were inadequate for appellate review within the meaning of R v Sheppard, 2002 SCC 26.

The appellant submitted that the application judge misconstrued the law relating to specific performance, and pointed out that in previous jurisprudence, specific performance was granted in commercial circumstances. The evidence in this case established that there were no suitable alternative commercial properties available in the Port Perry area. This was significant to the appellant because its other properties, employees, staff and contractor were located in the town. This was why, because of its unique attributes, the appellant tried to purchase the property since 2015. In the Court of Appeal’s view, the appellant demonstrated the legal prerequisites for an order for specific performance and would have ordered specific performance, subject to the following.

Alterna’s mortgage assumption approval had long since lapsed. If, in light of this decision, Alterna renewed its approval on terms substantially similar to those in its previous approval letter, then the Court of Appeal stated that it would issue an order for specific performance of the agreement of purchase and sale. The appellant was to advise the court of Alterna’s position within 30 days of the date of release of this judgment. If Alterna refused to approve the assumption of the mortgage by the appellant on terms substantially similar to those in its previous approval letter, then the appellant was to advise the court and make written submissions as to the appropriate disposition of the appeal.

Lavender v Miller Bernstein LLP, 2018 ONCA 955

[Epstein, van Rensburg and Brown JJ.A.]

Counsel:

R. Staley and N. Shaheen, for the appellant

D. Bach, S. Kalloghlian and P. Bates, for the respondent

S. Chaudhury and C. Senese, for the Law Foundation of Ontario

Keywords: Torts, Auditors’ Negligence, Civil Procedure, Class Proceedings, Costs, Rules of Civil Procedure, RRO 1990, Reg 194, r 12.04 and r 57.01(1)(g), Class Proceedings Act, 1992, SO 1992, c. 6, s 31(1), Deloitte & Touche v Livent Inc (Receiver of), 2017 SCC 63, Pearson v Inco Ltd (2006), 79 OR (3d) 427 (CA), Williams v Mutual Life Assurance Co of Canada, (2001) 27 CCLI (3d) 256

Facts:

The appellant was unsuccessful on a summary judgment motion in a class proceeding, but was successful on the appeal from that motion. The appellant had been found negligent in its audit of reports to the Ontario Securities Commission, but was also found not to owe a duty of care to the clients of the company it was auditing.

The appellant sought partial indemnity costs of the summary judgment motion in the sum of $1,009,063.32 and costs of the appeal in the sum of $159,463.29. The respondent and the Law Foundation of Ontario (“LFO”) argued that the appellant was only entitled to reduced costs in the amount of $400,000 for the summary judgment motion and $50,000 for the appeal.

Issue:

(1) Is the appellant entitled to the costs sought?

Holding:

Costs awarded as sought.

Reasoning:

(1) Yes.

The respondent and the LFO made three submissions to support their position that the appellant’s costs award should be reduced. All three submissions were rejected by the Court of Appeal.

First, the respondent and the LFO argued that this was an appropriate case for the use of the court’s discretion under s 31(1) of the Class Proceedings Act because it raised a novel point of law and matters of public interest. This argument was rejected because the claims made in the action involved the application of settled law in the category of auditors’ negligence under a statutory scheme that no longer exists. Further, the Court of Appeal found that not all cases involving auditors’ negligence engage the public interest.

Second, the respondent and LFO argued that the appellant’s costs should be reduced under rule 57.01(1)(g) of the Rules of Civil Procedure because the appellant refused to admit uncontroversial facts. This argument was rejected because no support had been provided to show that additional expense was incurred in order to prove facts that ought to have been admitted.

Third, the respondent and the LFO argued that the costs as sought by the appellant were disproportionate. This argument was rejected because there were two fact witnesses and seven expert witnesses that were all examined and cross-examined, the issues were complex, the submissions were lengthy, and the costs sought by the appellant were significantly less than the respondent’s own costs. Accordingly, the Court of Appeal found the quantum of costs to be reasonable and proportionate.

Kinbridge (Bronte) Inc v 1140114 Ontario Inc, 2018 ONCA 957

[Strathy C.J.O., Benotto and Roberts JJ.A.]

Counsel:

C.I.R. Morrison and J. Cormier, for the appellant

M.R. Kestenberg and A. Hershtal, for the respondents

Keywords: Contracts, Real Property, Mortgages, Interpretation, Standard of Review, Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53

Facts:

The appellant purchased property from the respondents with a vendor take-back mortgage. As part of the terms of the vendor take-back mortgage, two additional terms were agreed upon. First, that if the official plan of the property was not amended to change the zoning designation before the maturity date of the mortgage, then the principal amount owing on the mortgage would be reduced by $600,000. Second, that if the property was sold without the consent of the respondents, the respondents would be owed the principal remaining under the mortgage and the accrued interest, plus a bonus equal to three months’ interest.

The appellant sold the property without the respondents’ consent and sought a discharge of the mortgage. In response, the respondents demanded payment under the mortgage, including three months’ interest. The appellant refused to pay the three months’ interest, arguing that because the zoning designation had not been amended, the $600,000 reduction on the principal amount applied. The appellant paid $600,000 into court pending the determination of the parties entitlement to these funds.

The application judge rejected the appellant’s argument that its sale of the lands accelerated the date by which the property designation had to change, finding that the sale of the property without the consent of the respondents triggered the appellant’s clear obligation under the terms of their agreement to pay the amount owing on the mortgage plus the three-month interest bonus.

Issue:

(1) Did the application judge err in finding that the appellant had an obligation to pay the monies owing under the mortgage plus a three-month interest bonus?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The appellant failed to show a palpable and overriding error in the application judge’s reasoning, and therefore, the application judge’s decision was entitled to deference.

In addition to the arguments made during the application, the appellant made a newly-framed argument on appeal: that by denying a reduction in the purchase price, the application judge nullified the express provision in the agreement that provided for a $600,000 reduction in the purchase price if the zoning designation had not been amended by the requisite date.

The Court of Appeal rejected this argument for two reasons. First, there was no such free-standing right under the agreement. Rather, the zoning designation provision was a compromise reached due to the appellant’s request for a reduction in the purchase price. Second, such a free-standing right did not make commercial sense because without an express term providing that the price reduction would survive the appellant’s sale of the lands prior to the requisite date, it would not have been reasonable to infer that the parties would intend to have any outstanding obligations under the agreement following the sale of the property.

Van Halteren v De Boer Tool Inc, 2018 ONCA 960

[Hoy A.C.J.O., Feldman and Huscroft JJ.A.]

Counsel:

A.M. Katz, for the appellant

T.H. McLean, for the respondents

Keywords: Corporate Law, Oppression, Civil Procedure, Amending Pleadings, Limitation Periods, Costs, Limitations Act, 2002, SO 2002, c 24, Sched. B, Ontario Business Corporations Act, RSO 1990, c B.16

Facts:

This litigation arose out of the appellant’s attempt to recover money he advanced to the corporate respondent in 2002. The appellant issued his statement of claim on November 6, 2012, basing his action on a promissory note said to have been executed in 2008 (the “2008 Note”). The appellant’s position was that he was a creditor of the corporate respondent and had not become a shareholder. In its statement of defence dated January 11, 2013, the corporate respondent took the position the 2008 Note was a forgery.

On May 28, 2013, the appellant sought leave to amend his statement of claim (the “2013 Statement of Claim”), seeking to: (1) add the personal respondents (the directors, officers and shareholders of the Corporation) as defendants; and (2) in the alternative to his claim on the 2008 Note, plead entitlement to relief under the oppression remedy as a creditor or a security holder.

The motion judge denied leave to amend the statement of claim on the basis that the appellant’s claims based on oppression were statute-barred by the Limitations Act, 2002. He held that there were no facts pleaded that could support a claim for relief under the oppression remedy. He noted that the appellant had taken the position throughout the lawsuit that he had never received any shares and relied on a promissory note. The appellant did not appeal the motion judge’s order.

On August 20, 2014, a second motion judge granted leave to amend the statement of claim, in order to advance a claim based on a separate promissory note issued by the Corporation in 2003 (the “Original Note”), which was “re-signed” by the parties on November 21, 2005.

On August 5, 2015, the second motion judge dismissed the appellant’s motion for summary judgment, finding that the action on the Original Note was statute-barred and that the 2008 Note was a forgery. That decision was upheld by the Court of Appeal. The corporate respondent subsequently moved for summary judgment based on the second motion judge’s findings.

In response to the corporate respondent’s motion for summary judgment, the appellant moved on October 7, 2016, to amend his statement of claim (the “2016 Statement of Claim”) in order to add one of the personal respondents as a defendant, in order to claim damages for fraud and to seek a declaration that he owned 25% of the common voting shares of the corporate respondent.

In February 2018, before the motion was heard, the appellant sought to further amend his proposed statement of claim (the “2018 Statement of Claim”). In the 2018 Statement of Claim, the appellant sought to add both personal respondents as defendants and sought a declaration that he was the owner of 12.5% of the corporate respondent’s common shares. He repeated the allegation in the 2013 Statement of Claim that the corporate respondent paid dividends, but not to him, and again sought relief under the oppression remedy.

The appellant pleaded that the corporate defendant’s tax filings for the years 2004 through 2010, which were disclosed to him in August 2017, showed that he was a shareholder, but that the tax returns for 2011 through 2016 showed that he was no longer a shareholder. He also alleged that, sometime after 2010, the personal defendants converted, or caused the corporate defendant to convert, his shares. The appellant argued that he only discovered his claim to an equity interest in the corporate defendant after the tax filings were disclosed to him on August 22, 2017, as a result of which his shareholder-based claims in the 2018 Statement of Claim were not statute-barred.

The motion judge held that the “pith and substance of the claim is damages or a property interest in shares”, as a result of which the two-year limitation period under the Limitations Act, 2002 applied. The motion judge also found that the appellant discovered his right to a property interest no later than April 8, 2014, when he swore an affidavit acknowledging the respondents’ admission that no shares had been issued to him. His action was therefore statute-barred.

Further, the motion judge held that it was res judicata that the cause of action with respect to the shares had been discovered by December 2, 2013, when the motion judge dismissed the earlier motion for leave to amend to seek relief as a shareholder under the oppression remedy.

Issue:

(1) Did the motion judge err in his analysis of the appellant’s own affidavit evidence?

(2) Should the appellant be granted leave to appeal the motion judge’s costs order?

Holding:

Appeal dismissed. Motion for leave to appeal costs dismissed.

Reasoning:

(1) No. The motion judge’s finding was amply supported by more than the appellant’s affidavit evidence. It was clear that the appellant had discovered that he had a possible claim as a shareholder by December 2, 2013, when he brought his motion for leave to amend to seek relief as a shareholder of the corporate defendant.

(2) No. The appellant failed to identify any error of principle to suggest that the motion judge’s costs award was wrong.

Siddiqui v Anwar, 2018 ONCA 965

[Brown J.A. (Motion Judge)]

Counsel:

N. Barmania for the appellant

D. Simard, for the respondent

Keywords: Family Law, Equalization of Net Family Property, Support, Civil Procedure, Orders, Remedies for Breach, Appeals, Quashing Appeals, Stays, Dickie v Dickie, 2007 SCC 8, Cosentino v Cosentino, 2017 ONCA 593

Facts:

Following a trial, the appellant husband was ordered to pay to the respondent wife, child support, an equalization payment, certain rent, spousal support and arrears of spousal support (the “Final Order”). The appellant served a notice of appeal seeking to reduce his obligations under the Final Order. The Court of Appeal refused to accept the notice of appeal on the basis that it was not filed within the time prescribed by the Rules of Civil Procedure. The appellant brought a motion for an extension of time to file his notice of appeal, and the respondent moved for an order lifting the automatic stay of certain provisions in the Final Order. Nordheimer J.A. extended the time to file the notice of appeal, ordered continued payment of child and spousal support, and ordered the appellant to pay an agreed upon amount of the equalization payment awarded within 60 days (the “Order”). The appellant did not seek to review this order, nor did he make this equalization payment within 60 days or any other payment. The appellant later perfected his appeal, but was still in clear breach of the Order. The respondent moved for an order staying the appellant’s appeal until he paid the sum awarded by Nordheimer J.A. along with an order granting her leave to move before a panel to quash the appeal in the event he does not make payment within 30 days.

Issue:

(1) Should the appeal be stayed until the appellant makes the equalization payment ordered by Nordheimer J.A.?

(2) Should an order be made granting the respondent leave to move before a panel to quash the appeal in the event he does not make the equalization payment within 30 days?

Holding:

Motion granted.

Reasoning:

(1) Yes. In the circumstances, it was fair and just to stay the appellant’s appeal. The appellant did not explain why he failed to make partial payment in satisfaction of the Order, or why he was unable to arrange financing for partial payment as he represented he could do in his affidavit before Nordheimer J.A. The appellant argued that he should be given time to sell the assets owned jointly by the respondent and himself abroad, and did not consent to the respondent’s request for leave to move to quash or dismiss the appeal if he does not satisfy the Order within 30 days. The appellant stated he would consent to such relief if he was given a further 90 days to satisfy the Order. However, the Court of Appeal found that the appellant had not filed any type of financial statement to enable the Court to assess the true state of his finances. The Court also found that the appellant also quite candidly stated that he preferred the interests of his Canadian businesses over his obligations to the respondent fixed by the Order by arguing that he should be given time to sell the jointly owned foreign assets. The Court determined that the appellant would simply ask for more time if the foreign properties were not sold within 90 days. The Court concluded that the appellant deliberately and willfully decided to ignore the Order and the appellant would not be concerned with a stay of his appeal because this would enable him to delay meeting his obligations under the Order.

(2) Yes. The Court of Appeal granted the respondent leave to move forthwith before a panel to quash or dismiss the appeal for non-compliance with the Order per Dickie v Dickie, 2007 SCC 8, and Cosentino v Cosentino, 2017 ONCA 593. The Court found that, based on the evidence, the appellant would not make payment within 30 days due to his position that he would not pay unless and until the joint foreign assets owned by the respondent and himself were sold. The evidence offered no probability that this would be done within 30 or even in 90 days, and there was no reason why the respondent should have to wait for 30 days before being able to move before a panel to quash the appeal. The Court also awarded costs to the respondent.

Styres v Martin, 2018 ONCA 956

[Strathy C.J.O., Benotto and Roberts JJ.A.]

Counsel:

G. Smits, for the Appellants

H. E. Staats, Q.C., for the Respondents

Keywords: Family Law, Estates, Real Property, Breach of Fiduciary Duty, Breach of Trust, Unjust Enrichment, Gifts, Express Trust, Resulting Trust, Capacity, Undue Influence, Civil Procedure, Appeals, Sufficiency of Reasons, Statute of Frauds, RSO 1990, c S.19, Maple Ridge Community Management Ltd v Peel Condominium Corporation No 231, 2015 ONCA 520

Facts:

The appellant appeals from the dismissal of his action claiming damages arising from the disposition of a house which he transferred to the respondent, his former common law spouse, in 2004. The appellant lived in the house for 20 years. In 1998, he suffered a brain injury and became unable to work. In 2000, he began a relationship with the respondent and she became his caregiver. In 2002, he signed a Power of Attorney for Personal Care and for Property naming her as his attorney. On February 13, 2004, he transferred the house to the respondent. The parties did not have legal advice or assistance in preparing and registering the transfer. On December 23, 2009, the respondent granted a mortgage on the house to her mother, to secure a loan to her in the amount of $200,000. The parties separated in 2013, and the appellant requested that the respondent re-convey title of the house to him. The respondent refused and transferred the house to her mother in satisfaction of the mortgage that had come due in 2012. After her mother’s death in 2015, her estate sold the house for $300,000.

At trial, the appellant asserted claims for damages for breach of trust, breach of fiduciary duty and unjust enrichment. He alleged that he had temporarily transferred the house to the respondent in trust to avoid its potential seizure because of Excise Act charges against him for his involvement in selling unmarked cigarettes. The trial judge preferred the evidence of the respondent and of her daughter that the house was a gift. He found that the respondent gave the appellant the proceeds of her caregiver cheques, purchased vehicles which he used, and helped him with child support and various bills, household expenses and utilities. This was hardly the predatory conduct of a person taking advantage of the other. Moreover, there could be no trust regarding the house without a written instrument in accordance with the Statute of Frauds.

Issue:

(1) Did the trial judge err in failing to consider or address the various claims for breaches of trust and fiduciary duty, and unjust enrichment?

Holding:

Appeal allowed.

Reasoning:

(1) Yes. This was a case of a disabled man with a catastrophic brain injury and admitted cognitive difficulties conveying his only significant asset to his caregiver and common law partner who also held his power of attorney without any legal advice. The Court found that while the trial judge was entitled to find the transfer to be a gift, he was still required to address the issues that arose from the appellant’s pleaded claims for breaches of trust and fiduciary duty, and unjust enrichment.

The Court stated that the absence of a written instrument would not bar a claim of resulting trust and would have no relevance to a claim for breach of trust or breach of fiduciary duty. Insufficient reasons that prevent meaningful appellate review constitute an error of law reviewable on a correctness standard. The Court found that the deficiency of the trial judge’s reasons precluded meaningful appellate review. The record was not sufficient to make the determinations necessary to dispose of the issue, and the matter was remitted to the Superior Court of Justice for a new trial of all issues before a different judge.

Paterson Veterinary Professional Corporation v Stilton Corp Ltd, 2018 ONCA 967

[Lauwers J.A. (Motions Judge)]

Counsel:

R.S.M. Woods, for the appellant

D. Fogel, for the respondent

Keywords: Real Property, Civil Procedure, Appeals, Stay Pending Appeal, Rules of Civil Procedure, RRO 1990, Reg 194, 63.02, RJR-MacDonald Inc v Canada (Attorney-General), [1994] 1 SCR 311

Facts:

By way of judgment released August 21, 2018 (the “Judgment”), the Superior Court of Justice ordered the appellant to transfer title to certain real property (the “Property”) to the respondent no later than September 20, 2018. In so ordering, the application judge enforced a settlement agreement between the parties dated December 20, 2013. The respondent was to deposit monthly rent of $7,300.60 and an additional $1,719.51 per month for payments of taxes, maintenance and insurance (“TMI”) into the trust account of the respondent’s lawyer. The appellant moved for an order staying the Judgment pending final disposition of the appeal and an order requiring the respondent to make monthly TMI and rent in respect of the Property.

The parties agreed to a consent order on the following terms: a) the Judgment is stayed pending final disposition of the appeal; b) Pending final disposition, the applicant (respondent in appeal) shall be entitled to remain in possession of the Property; and c) Pending final disposition the applicant shall pay to the respondent (appellant in appeal) the sum of $1,719.51 per month for TMI starting February 1, 2018. The parties did not agree on the disposition of rent pending appeal. The appellant sought an order requiring the respondent to pay rent of $7,300.60 monthly pending appeal instead of depositing that amount into the trust account of the respondent’s lawyer.

Issue:

(1) Should the Court grant an order requiring the respondent to pay the monthly rent directly to the appellant instead of depositing it in its lawyer’s trust account?

Holding:

Motion dismissed.

Reasoning:

(1) No. The Court stated that the appellant was seeking interim relief. The jurisdictional basis for granting interim relief is that it is incidental to granting a stay under rule 63.02 of the Rules of Civil Procedure. The consent to a stay obviates the need to parse the elements of the test for a stay. However, the Court found that where the applicant for a stay is also seeking a term that amounts to interim relief, then by analogy to the RJR-MacDonald test, the court must be satisfied that the applicant will suffer irreparable harm if that term is not granted. The facts presented did not show that if the respondent was not required to pay the rent of $7,300.60 monthly to the appellant, the appellant would suffer such harm.


SHORT CIVIL DECISIONS

Ontario Securities Commission v Tiffin, 2018 ONCA 953

[Brown J.A.]

Counsel:

G. Jennings and A. Zuvaglia, for the applicants

J. Feasby, for the Ontario Securities Commission

Keywords: Securities Law, Civil Procedure, Leave to Appeal, Securities Act, RSO 1990, c S.5, Provincial Offences Act, RSO 1990, c P.33, Ontario (Ministry of the Environment and Climate Change) v Sunrise Propane Energy Group Inc, 2018 ONCA 461, Reves v Ernst & Young, 494 US 56 (1990), BCSC v Gill, 2003 BCCA 169, R v Stevenson, 2017 ABCA 420


CRIMINAL DECISIONS

R v Dixon, 2018 ONCA 949

[Sharpe, Hourigan and Trotter JJ.A.]

Counsel:

W. Luke, for the appellant

A. Cappell, for the respondent

Keywords: Criminal Law, Sexual Assault, Consent, Capacity to Consent, Evidence, Criminal Record, R v JA, 2011 SCC 28

R v Miller, 2018 ONCA 942

[Sharpe, Hourigan and Trotter JJ.A.]

Counsel:

P. Campbell, for the appellant

T. Gilliam, for the respondent

Keywords: Criminal Law, Importing Drugs, Trafficking Drugs, Mens Rea, Wilful Blindness, Evidence, Incriminating Statements, Burden of Proof, Canadian Charter of Rights and Freedoms, s 10(b), R v Ross, [1989] 1 SCR 3, R v Guenter, 2016 ONCA 572, R v Suberu, 2009 SCC 33, R v Grant, 2009 SCC 32, R v McGuffie, 2016 ONCA 365

R v BC, 2018 ONCA 951

[Paciocco, Fairburn and Zarnett JJ.A.]

Counsel:

M. Bojanowska, for the appellant

H. Loubert, for the respondent

Keywords: Criminal Law, Sexual Assault, Unlawful Confinement

R v Daoud, 2018 ONCA 963

[Pepall, Paciocco and Harvison Young JJ.A.]

Counsel:

R. Barrs, for the appellant

J. Witkin, for the respondent

Keywords: Criminal Law, Sexual Assault, Consent

R v Georgiev, 2018 ONCA 961

[Pepall, Paciocco and Harvison Young JJ.A.]

Counsel:

P. Calarco, for the appellant

J. Trehearne, for the respondent

Keywords: Criminal Law, Robbery, Assault, Uttering Threats, Possession of a Weapon, Breach of Recognizance, Vetrovec Charge, Sentencing, Leave to Appeal, Criminal Code, RSC 1985, c C-46, ss 88(1), 145(3)(a), 264.1(1)(a), 343(a), 343(b), Kienapple v R, [1975] 1 SCR 729

R v Tran, 2018 ONCA 964

[Sharpe, Paciocco and Harvison Young JJ.A.]

Counsel:

G. Lafontaine and R. Golec, for the appellant

T. Lemon, for the respondent

Keywords: Criminal Law, Evidence, Credibility, Canadian Charter of Rights and Freedoms, ss 8 and 24(2)

R v Slatter, 2018 ONCA 962

[Watt, van Rensburg and Fairburn JJ.A.]

Counsel:

D. Stein and A. Menchynski, for the appellant

G. Roberts, for the respondent

Keywords: Criminal Law, Sexual Assault, Sexual Exploitation, Sexual Invitation, Evidence, Refreshing Witness Memory, Ineffective Assistance, Reasonable Apprehension of Bias, Sufficiency of Reasons, Canada Evidence Act, RSC 1985, c C-5, s 9(2), Yukon Francophone School Board, Education Area #23 v Yukon (Attorney General), 2015 SCC 25, R v S(RD), [1997] 3 SCR 484, Committee for Justice and Liberty v Canada (National Energy Board), [1978] 1 SCR 369, R v Fliss, 2002 SCC 16, R v Cody, 2017 SCC 31, R v Morrissey (1995), 22 OR (3d) 514 (CA), R v REM, 2008 SCC 51, R v Rhayel, 2015 ONCA 377, R v B(GD), 2000 SCC 22, R v Cubilan, 2018 ONCA 811, R v Sheppard, 2002 SCC 26, R v Burke, [1995] 1 SCR 474, R v Aird, 2013 ONCA 447

R v Pilon, 2018 ONCA 959

[Lauwers, Hourigan and Pardu JJ.A.]

Counsel:

J. Wilkinson and M. Salama, for the appellant

H. Piafsky, for the respondent

Keywords: Criminal Law, Drug Trafficking, Evidence, Search and Seizure, Canadian Charter of Rights and Freedoms, ss 8, 24(2), Controlled Drugs and Substances Act, SC 1996, c 19, R v Golden, 2001 SCC 83, R v Saeed, 2016 SCC 24, R v Kelsy, 2011 ONCA 605, R v Grant, 2009 SCC 32

R v Mohamad, 2018 ONCA 966

[Strathy C.J.O., Watt and Epstein JJ.A.]

Counsel:

J. Lockyer and A. Ostroff, for the appellant

G. Roberts, for the respondent

Keywords: Criminal Law, Murder, Self-Defence, Evidence, Hearsay, B(KG) Statement, Vetrovec Caution, Cross-Examination, The Rule in Browne v Dunn, Jury Instructions, Exhibits, In-Deliberation Jury Instructions, Sentencing, Parole Ineligibility, Canada Evidence Act, RSC 1985, c C-5, s 9(2), Criminal Code, RSC 1985, c C-46, ss 34, 655, 715, 715.1, R v Bradshaw, 2017 SCC 35, R v Mohan, [1994] 2 SCR 9, R v Khelawon, 2006 SCC 57, R v Hawkins, [1996] 3 SCR 1043, R v Rahayel, 2015 ONCA 377, R v Couture, 2007 SCC 28, R v Youvarajah, 2013 SCC 41, R v Vetrovec, [1982] 1 SCR 811, R v Baskerville, [1916] 2 KB 658, R v Kehler, 2004 SCC 11, Browne v Dunn (1894), 6 R 67 (UK HL), R v E(FE), 2011 ONCA 783, R v Bengy, 2015 ONCA 397, R v Petel, [1994] 1 SCR 3, R v Cinous, 2002 SCC 29, R v M(MA), [1998] 1 SCR 123, R v Olbey, [1980] 1 SCR 1008, R v Taylor, 2015 ONCA 448, R v S(WD), [1994] 3 SCR 521, R v Naglik, [1993] 3 SCR 122, R v Lacasse, 2015 SCC 64

R v Callaghan, 2018 ONCA 969

[Rouleau, Watt and Huscroft JJ.A.]

Counsel:

A.K. Kapoor and I.B. Kasper, for the appellant

J. Cameron, for the respondent

Keywords: Criminal Law, Weapons Offences, Driving Offences, Sentencing

The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.

Print:
EmailTweetLikeLinkedIn
Photo of John Polyzogopoulos John Polyzogopoulos

John has been the editor of Blaneys Appeals since the inception of the blog in the Summer of 2014. He is a partner at the firm with almost two decades of experience handling a wide variety of litigation matters. John assists clients with matters ranging from appeals, to injunctions, to corporate, breach of contract and other business litigation, to estates and matrimonial litigation, and to debtor-creditor and insolvency litigation. John also represents amateur sports organizations in contentious matters and advises them in matters of internal governance. John can be reached at 416-593-2953 or jpolyzogopoulos@blaney.com.