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Good evening.

Please find below our summaries of the civil decisions of the Court of Appeal for Ontario.

In Hughes v. Liquor Control Board of Ontario, the Court affirmed a motion judge’s dismissal of a proposed class action against the LCBO stemming from an agreement between the LCBO and Brewer’s Retail which provided terms for the sale of beer in Ontario. The appellants alleged that the agreement violated the Competition Act and that a surcharge levied on restaurants violated the Liquor Control Act. The Court found that amendments to the Liquor Control Act had retroactive effect, such that the regulated conduct defence applied. The Court then found that there was no need to perform statutory interpretation on the Liquor Control Act to determine if the surcharge was a violation, because the Government of Ontario changed the Liquor Control Act retroactively to authorize the price differential.

In Clark v. Ontario (Attorney General), two police officers sued the Attorney General for negligence and misfeasance in public office flowing from the Crown’s dismissal of charges against accused on the basis of allegations that the officers had committed assaults against them. The officers alleged that the Crown had failed to adequately investigate the assault allegations and to call relevant evidence before consenting to the dismissal of the charges. The Court affirmed the existing case law, holding that an action against the Crown does not lie in negligence, but it does for misfeasance in public office. The Court upheld the motion judge’s order that had struck the negligence claim as disclosing no cause of action, but permitted the misfeasance in public office claim to proceed. The Court also agreed with the motion judge that the limitation period should not be relied on to strike the claim at the pleadings stage absent a full evidentiary record, on which discoverability issues could arise.

In Kawartha-Haliburton Children’s Aid Society v. M.W., the Court addressed the requirements placed on judges in child protection proceedings under the Child, Youth and Family Services Act, and reviewed the approach to summary judgment motions in such matters. The Court confirmed that matters commenced, but not concluded, under the old legislation were governed by the new CYFSA, thereby imposing different statutory requirements upon judges addressing the question of children’s – especially Indigenous children’s – access to their parents. Further, the Court reaffirmed that the approach to summary judgment in child protection proceedings is and always has been one of caution, with a focus on the Charter implications at stake for vulnerable litigants.

Other matters covered this week included motions to change spousal support orders, and a residential tenancy dispute involving a missing cat.

On another note, my partner, Lea Nebel, and I invite you to our third annual Top Appeals CLE, which has been rescheduled and will now be taking place at the OBA, 20 Toronto Street, Toronto, on Thursday, May 9, 2019. It is a three-hour dinner program beginning at 5 PM, which will also be available by live webcast for those who cannot attend in person.

Our first set of panelists, Eliot Kolers, David Thompson and Katherine Di Tomaso, will discuss Gillham v Lake of Bays and Mega International v Yung, and other decisions dealing with discoverability, appropriate means, and discoverability as it relates to claims for contribution and indemnity.

Tim Danson, Mark Wiffen and Peter Downard will discuss Platnick v Bent, Pointes Protection Association and the “Anti-SLAPP Sextet”.

Last, but certainly not least, a panel led by Glenn Chu of the City of Toronto will discuss the high-profile, real-time, high-stakes constitutional litigation that was the City of Toronto v Attorney-General (reduction of wards from 47 to 25).

The full program agenda can be found here. Please join us for what promises to be a very interesting evening.

Wishing everyone celebrating a Happy Easter long weekend and Happy Pesach.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email


Table of Contents

Civil Decisions

Gordashevskiy v Aharon, 2019 ONCA 297

Keywords: Contracts, Debtor-Creditor, Civil Procedure, Summary Judgment, Genuine Issue for Trial, Credibility

Choquette v Choquette, 2019 ONCA 306

Keywords: Family Law, Spousal Support, Termination, Material Change in Circumstances, Spousal Support Advisory Guidelines, Divorce Act, RSC 1985, c 3 (2nd Supp.), s 15(7), 17(7), Johanson v Hinde, 2016 ONCA 430, Hersey v Hersey, 2016 ONCA 494, Walsh v Walsh, 2007 ONCA 218, Moge v Moge, [1992] 3 SCR 813, Gray v Gray, 2014 ONCA 659, Walsh v Walsh (2006), 29 RFL (6th) 164, rev’d in part, on other grounds, 2007 ONCA 618, Juvatopolos v Juvatopolos (2004), 9 RFL (6th) 147 (ONSC), aff’d (2005), 19 RFL (6th) 76 (ONCA)

Hughes v. Liquor Control Board of Ontario, 2019 ONCA 305

Keywords: Competition Law, Torts, Misconduct by Civil Authority, Regulated Conduct Defence, Unjust Enrichment, Civil Procedure, Class Proceedings, Summary Judgment, Constitutional. Law, Division of Powers, Statutory Interpretation, Retroactive Effect, Competition Act, RSC, 1985, c C-34, ss. 36, 45(1) and 45(7), Liquor Control Act, RSO 1990, c L18, ss. 3(1.1) & 10(3), Liquor Licence Act, RSO 1990, c L19, Constitution Act, 1867, s. 92(13) & 92(16), AG Can v Law Society of BC, [1982] 2 SCR 307, Régie des rentes du Québec v. Canada Bread Company Ltd., 2013 SCC 46, General Motors of Canada Ltd. v. City National Leasing, [1989] 1 SCR 641, Paradis Honey Ltd. v. Canada (Ministry of Agriculture and Agri-Food), 2015 FCA 89, Brad-Jay Investments Ltd. v. Szijiarto (2006), 218 OAC 315 (CA)

Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316

Keywords: Family Law, Custody and Access, Crown Wardship, Civil Procedure, Summary Judgment, Child and Family Services Act, RSO 1990, c C11, Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sched. 1, Family Law Rules, O Reg 114/99, Hryniak v. Mauldin, 2014 SCC 7, Catholic Children’s Aid Society of Hamilton v. G.H., T.V. and Eastern Woodlands Metis of Nova Scotia, 2016 ONSC 6287, New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 SCR 46

French v. H&R Property Management Ltd., 2019 ONCA 302

Keywords: Real Property, Residential Tenancies, Torts, Negligence, Civil Procedure, Amending Pleadings, Limitation Periods, Limitations Act, 2002, SO 2002, c 24, Sched B, Residential Tenancies Act, 2006, SO 2006, c 17, Rules of Civil Procedure, Rules 25.06(5), 25.08(2), 26.01, & 76.12(3), Housen v. Nikolaisen, 2002 SCC 33, Frohlick v. Pinkerton Canada Ltd., 2008 ONCA 3, United Food and Commercial Workers Canada, Local 175 Region 6 v. Quality Meat Packers Holdings Limited, 2018 ONCA 671, Dee Ferraro Ltd v. Pellizzari, 2012 ONCA 55, 1100997 Ontario Ltd v. North Elgin Centre Inc., 2016 ONCA 848, Davis v. East Side Mario’s Barrie, 2018 ONCA 410

Clark v Ontario (Attorney General), 2019 ONCA 311

Keywords: Torts, Negligence, Misfeasance in Public Office, Crown Liability, Crown Immunity, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Questions of Law, Frivolous, Vexatious and Abuse of Process, Limitation Periods, Proceedings Against the Crown Act, RSO 1990, c P 27, ss 7, 10, Rules of Civil Procedure, Rules 21.01(1)(a), (b), 21.01(3)(d), 25.11, , Limitations Act, 2002, SO 2002, c 24, Sched B, Odhavji Estate v. Woodhouse, 2003 SCC 69, Hunt v. Carey Canada Inc., [1990] 2 SCR 959, Salewski v. Lalonde, 2017 ONCA 515, Nelles v. Ontario, [1989] 2 S.C.R. 170, Proulx v. Quebec (Attorney General), 2001 SCC 66, [2001] 3 S.C.R. 9, Miazga v. Kvello, 2009 SCC 51, [2009] 3 S.C.R. 339, Henry v. British Columbia (Attorney General), 2015 SCC 24, Vancouver (City) v. Ward, 2010 SCC 27, Smith v. Attorney General of Ontario, 2018 ONSC 993, Anns v. Merton London Borough Council, [1978] A.C. 728, Cooper v. Hobart, 2001 SCC 79, Paton Estate v. Ontario Lottery and Gaming Commission, 2016 ONCA 458, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Arora v. Whirlpool Canada LP, 2013 ONCA 657, leave to appeal refused, [2013] S.C.C.A. No. 498, Thompson v. Ontario (Attorney General) (1998), 113 OAC 82 (CA), Gilbert v. Gilkinson (2005), 205 OAC 188 (CA), leave to appeal refused, [2006] SCCA No 67

Criminal Decisions

R v. 2095540 Inc. (Appeal Book Endorsement), 2019 ONCA 296

Keywords: Criminal Law, Proportionality, Forfeiture

R v. Bajwa (Appeal Book Endorsement), 2019 ONCA 295

Keywords: Criminal Law, Fraud over $5,000, Conspiracy, Sentencing

R v. Gotzamanis (Appeal Book Endorsement), 2019 ONCA 298

Keywords: Criminal Law, Sentencing, Probation, Procedural Unfairness

R v. Rocker, 2019 ONCA 299

Keywords: Criminal Law, Human Trafficking, Credibility, Sentencing, Consecutive Sentences

R v. Stockton, 2019 ONCA 300

Keywords: Criminal Law, Possession of Methamphetamine,  Breach of Recognizance, Search Warrants, s. 8 Charter Applications, Cross-Examination, s. 11 of the Charter of Rights and Freedoms, Right to be Tried within a Reasonable Time, Sentencing, Victim Fine Surcharge, R. v. Jordan, 2016 SCC 27

R v. D.A., 2019 ONCA 310

Keywords: Criminal Law, Sexual Assault, Sexual Exploitation, Sentencing, Non-Communication Orders, R. v. D.M., 2012 ONCA 520

R v. Goulart, 2019 ONCA 308

Keywords: Criminal Law, Possession for the Purposes of Trafficking, Possession of the Proceeds of Crime, Search Warrants

R v. McGregor, 2019 ONCA 307

Keywords: Criminal Law, Kidnapping, First Degree Murder, Constructive First Degree Murder, s. 231(5) of the Criminal Code, Predicate Offence, Continuing Domination, Jury Instructions, Post-Offence Conduct, Provocation, Closing Submissions, R. v. Harbottle, [1993] 3 SCR 306, R. v. Paré, [1987] 2 SCR 618, R. v. Parris, 2013 ONCA 515, R. v. Calnen, 2019 SCC 6

R v. Paul, 2019 ONCA 304

Keywords: Criminal Law, Sentencing, Credit for Pre-Sentence Custody

R v. Latif, 2019 ONCA 309

Keywords: Criminal Law, Sentencing, Victim Fine Surcharge, Recognizance, Probation, Pre-Sentence Custody, R. v. Wilson, 2008 ONCA 510

Ontario Review Board

Kassa (Re), 2019 ONCA 313

Keywords: Ontario Review Board, Schizophrenia, Uttering a Threat to Cause Bodily Harm, Not Criminally Responsible on Account of Mental Disorder, Significant Threat to the Safety of the Public, Wall (Re), 2017 ONCA 713, Winko v. British Columbia (Forensic Psychiatric Institute), [1992] 2 SCR 625


CIVIL DECISIONS

Gordashevskiy v Aharon, 2019 ONCA 297

[Lauwers, Pardu and Nordheimer JJ.A.]

Counsel:

B.P. Pilley, for the appellant

R. Aisenberg, for the respondents

Keywords: Contracts, Debtor-Creditor, Civil Procedure, Summary Judgment, Genuine Issue for Trial, Credibility

Facts:

The individual respondent and purported borrower-corporation received a transfer of $100,000 from the appellant on the security of a promissory note guaranteed by the individual respondent.  There was a clear conflict on the evidence of the appellant, the individual respondent who guaranteed the promissory note, A, and the purported principal of the borrower-corporation, K.  In his affidavit, the appellant stated that A advised that the corporation was a private Ontario company which he controlled.  A denied  saying this.  K stated that he was the sole incorporator of the corporation and that the promissory notes signed on behalf of the corporation by A were signed without authorization.  The motion judge dismissed the appellant’s motion for summary judgment on the promissory note and guarantee, and then granted summary judgment in favour of the respondents by dismissing the action.

Issue:

(1) Did the motion judge err in dismissing the action given the factual dispute?

Holding:

Appeal allowed.

Reasoning:

(1) Yes.  The motion judge did not advert to the plain conflict in the evidence, a conflict that should have been resolved at a minimum by way of a mini-trial under the summary judgment rules.  The motion judge did not explain the basis on which he accepted the evidence of A.  The motion judge’s endorsement contained boiler-plate language that is characteristic of many summary judgment decisions, which include a statement that “neither party suggests that any additional steps are necessary”.

The assessment of whether other steps are required must be undertaken by the motion judge.  Accepting the assurance of the parties is not the end of the inquiry.  It is not open to a motion judge to simply prefer one affidavit over another in the absence of explanatory reasons for the preference that permit appellant review.  While the Court agreed that the appellant’s motion for summary judgment should have been dismissed, it disagreed with the reasons provided.  It was not appropriate on this record to dismiss the action, given the factual dispute.

Choquette v Choquette, 2019 ONCA 306

[Watt, Miller and Nordheimer JJ.A.]

Counsel:

G. Joseph and M. Melito, for the appellant

H. Niman and M. Maleki, for the respondent

Keywords: Family Law, Spousal Support, Termination, Material Change in Circumstances, Spousal Support Advisory Guidelines, Divorce Act, RSC 1985, c 3 (2nd Supp.), s 15(7), 17(7), Johanson v Hinde, 2016 ONCA 430, Hersey v Hersey, 2016 ONCA 494, Walsh v Walsh, 2007 ONCA 218, Moge v Moge, [1992] 3 SCR 813, Gray v Gray, 2014 ONCA 659, Walsh v Walsh (2006), 29 RFL (6th) 164, rev’d in part, on other grounds, 2007 ONCA 618, Juvatopolos v Juvatopolos (2004), 9 RFL (6th) 147 (ONSC), aff’d (2005), 19 RFL (6th) 76 (ONCA)

Facts:

In 1994, the parties separated after 15 years of marriage, and divorced two years later.  At trial in 1996, the respondent was ordered to pay spousal support in the amount of $4,750 per month on an indefinite basis.  The order was based on the appellant’s quick return to work.  The appellant did not return to work and the respondent continued to pay support for 22 years.  In 2016, in anticipation of retirement, the respondent moved to change the order and sought the termination of support.  The appellant moved to increase support to $15,000 per month.  The motion judge allowed the respondent’s motion and ordered that support be terminated.

When the parties married, they each held degrees in commerce and were employed in that field.  The appellant stopped working when their first child was born and removed herself from the workforce for 10 years to care for the children.  In 1996, there were two children, aged 13 and 6.  The respondent was awarded custody of both children and thereafter the appellant had effectively no involvement with the older child and limited access to the younger child. In 2000, the appellant’s involvement in the children’s lives more or less ceased.

In 1996, the respondent was a bank analyst and earned $390,000 the previous year.  Later, he would earn in excess of $1 million per year.  At this time, the appellant was not employed but had obtained a CMA accounting designation and a real estate agent’s licence.  She testified at trial that she planned to become self-sufficient.  The appellant never re-entered the workforce and her income was almost exclusively from spousal support.  She purchased rental properties, some of which operated at a loss, and an organic farming business that also operated at a loss.  In 1996, the appellant’s net worth was $200,000 while his net worth at trial was $780,000.

The motion judge found that the appellant never obtained employment, despite having marketable skills, because she never made any serious attempt to do so.  Despite arguing that she was unable to work because of depression and disability, she provided no evidence of those conditions, and the motion judge found her not to be credible.  The motion judge concluded that the only order that could be made to promote her self-sufficiency would be to terminate support.

Issues:

Did the motion judge err:

(1) By giving the objective of self-sufficiency pre-eminence over other objectives of spousal support in the Divorce Act?

(2) In finding that the appellant was not entitled to support on a compensatory basis?

(3) In finding that the appellant was not entitled to share in the post-separation increase in income?

(4) By terminating support rather than reducing it or imputing income?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The motion judge specifically assessed each of the objectives under s. 17 of the Divorce Act, finding that none of them spoke in favour of continued support.  The motion judge found that the appellant’s failure to return to work constituted a material change in circumstances.

With respect to the recognition of economic advantage or disadvantage arising out of the marriage, the motion judge found that any disadvantage to the appellant had been compensated for by the length of support.  With respect to apportioning financial consequences for child care, the motion judge noted that all responsibility for child care, post-trial, was borne by the respondent.  With respect to economic hardship, the motion judge determined that any economic hardship arising from the breakdown of the marriage had long been addressed through the provision of support.  The motion judge noted that any current economic hardship was not a result of the marriage or its breakdown, but of the appellant’s choices.

(2) No. The trial judge and the motion judge both considered the principles of compensation addressed under the Divorce Act, s 15(7)(a-c) and 17(7)(a-c).  The motion judge was alive to the fact that the appellant withdrew from the workforce, that the appellant had significant child care responsibilities and that the appellant’s child care obligations were sharply reduced at the time of separation and eliminated entirely by 2000.

Assuming, without deciding, that the motion judge’s characterization of the basis for spousal support ordered by the trial judge was an error, it was neither palpable nor overriding.  The trial judge did not expressly state the basis of the support order but anticipated that it would be varied “relatively quickly” as the appellant moved to self-sufficiency.  Even if the order was made in part on a compensatory basis, that would not entitle the appellant to support in perpetuity.  While the Spousal Support Advisory Guidelines did not exist during the trial in 1996, they did provide a measure of what is a reasonable quantum and duration of support.  In these circumstances, the high end for length of support would be 15 years.  The respondent paid support for 22 years.

(3) No. The support order made no provision for support to be indexed to any increases in income.  This was consistent with the trial judge’s anticipation that the support order would soon be varied to account for the appellant’s return to work.  Further, given the motion judge’s finding that the appellant made no attempt to become self-sufficient, it was entirely appropriate that she not be entitled to participate in the respondent’s increase in income.

(4) No.  The appellant conceded that where there is a lack of effort to achieve self-sufficiency, it can be appropriate to reduce support to incentivize a recipient to make appropriate efforts toward self-sufficiency. The motion judge considered that the appellant was not without significant resources, notwithstanding that the respondent has amassed considerably more.  But the motion judge found that the mere fact that there was a disparity between the parties’ respective resources did not supply a juristic reason to continue support.  While the result was harsh, the motion judge was entitled to make the order that he did and there was no basis to interfere. 

Hughes v. Liquor Control Board of Ontario, 2019 ONCA 305

[Hoy A.C.J.O., Simmons and Pardu JJ.A.]

Counsel:

P. Bates, L. Visser and T. Planeta, for the appellants

K. Thomson, M. Milne-Smith and M. Lubetsky, for the respondent Liquor Control Board of Ontario

M. Eizenga, R. Agarwal and I. Ishai, for the respondent Brewers Retail Inc.

J. Galway and N. Henderson, for the respondent Labatt Brewing Company Limited

M. S. Dunn and R. Amarnath, for the intervener Attorney General of Ontario

A. Dantowitz and J. Safayeni, for the Law Foundation of Ontario

A. Ship, for the respondents Molson Coors Canada Inc. and Molson Canada 2005

Keywords: Competition Law, Torts, Misconduct by Civil Authority, Regulated Conduct Defence, Unjust Enrichment, Civil Procedure, Class Proceedings, Summary Judgment, Constitutional. Law, Division of Powers, Statutory Interpretation, Retroactive Effect, Competition Act, RSC, 1985, c C-34, ss. 36, 45(1) and 45(7), Liquor Control Act, RSO 1990, c L18, ss. 3(1.1) & 10(3), Liquor Licence Act, RSO 1990, c L19, Constitution Act, 1867, s. 92(13) & 92(16), AG Can v Law Society of BC, [1982] 2 SCR 307, Régie des rentes du Québec v. Canada Bread Company Ltd., 2013 SCC 46, General Motors of Canada Ltd. v. City National Leasing, [1989] 1 SCR 641, Paradis Honey Ltd. v. Canada (Ministry of Agriculture and Agri-Food), 2015 FCA 89, Brad-Jay Investments Ltd. v. Szijiarto (2006), 218 OAC 315 (CA)

Facts:

The appellants were an individual beer consumer and the licensed restaurant he operated. The appellants took issue firstly with a “Framework Agreement” between the respondents, the Liquor Control Board of Ontario (“LCBO”) and Brewers Retail Inc. signed in 2000, which they alleged violated s. 45(1) of the Competition Act. The Framework Agreement provided terms concerning where and how beer could be sold. Secondly, the appellants took issue with a surcharge that Brewers Retail Inc. levied on licensees (essentially, persons such as restaurants and pubs licensed under the Liquor Licence Act, to sell beer), which they alleged violated the Liquor Control Act.

The respondents moved for summary judgment. The motion judge granted the motion for summary judgment and dismissed the appellants’ proposed class action.

Issues:

(1) Did the motion judge err in dismissing their action based on the Framework Agreement?

(2) Did the motion judge err in finding that Brewers Retail Inc. was entitled to impose a surcharge on beer?

(3) Did the motion judge err in finding that even if a novel tort of misconduct by a civil authority existed in Ontario, that the appellants would not have been entitled to damages?

(4) Did the motion judge err in finding that the retroactive legislative sanctioning of the conduct complained of in the action was a lawful exercise of the province’s undoubted ability to regulate the sale of alcoholic beverages?

(5) Should leave to appeal costs be granted?

Holding: Appeal dismissed.

Reasoning:

(1) The appellants argued that the regulated conduct defence required identifying legislative authority that specifically permitted the impugned conduct and that the Liquor Control Act in effect in June 2000 did not specifically authorize the alleged market conspiracy. They also argued that, even if intra vires of Ontario, retroactive legislation could not be considered in determining the application of the regulated conduct defence. The Court found that the motion judge was correct in finding that the Liquor Control Act authorized the impugned conduct and that the regulated conduct defence insulated the respondents from liability under the Competition Act arising out of the Framework Agreement.

Firstly, the Court applied the regulated conduct defence to s. 45.1 of the Competition Act. In the context of provincial regulated conduct, for the regulated conduct defence to be available, the law providing for criminal liability must leave room for the regulated activity to operate without being criminalized. The motion judge held that the version of s. 45(1) in effect until March 2010, signaled, through the use of the word “unduly”, that the regulated conduct defence was available. He explained that conduct authorized by valid provincial or federal legislation is deemed to be in the public interest and cannot constitute an “undue” limit on competition under Jabour. The motion judge held that s. 45(7) of the Competition Act that came into effect in March 2010 preserved the regulated conduct defence. The Court agreed that as a matter of statutory interpretation, the regulated conduct defence was available to defend civil claims under s. 36 of the Competition Act arising out of conduct allegedly contrary to s. 45(1).

The Court applied Jabour to find that the Liquor Control Act in effect in 2000 authorized the alleged market conspiracy. The appellants argued that express provision or necessary implication in the regulatory regime authorizing or directing the respondents to engage in the impugned conduct was necessary to rely on the regulated conduct defence. The Court rejected this approach, finding that Jabour did not require this level of specificity. The Court agreed that the direction or authorization may be by necessary implication, and there was no differentiation between an express grant or a necessary implication for the purpose of the regulated conduct defence.

The Court rejected the appellants’ argument that the word “authorization” in s. 45(7) imported a requirement that the conduct prohibited by the Competition Act be specifically authorized by the legislation. There was nothing in the language of s. 45(7) that suggested a legislative intention to change the common law interpretation of “authority” as decided in Jabour. The Court then found that the Liquor Control Act at the time of the Framework Agreement authorized the respondents to engage in the impugned conduct. The provisions of the Liquor Control Act authorized the LCBO to allocate sales of beer as between LCBO stores and Brewers Retail Inc. outlets.

Next, the Court considered that the Ontario Legislature in August 2015 enacted s. 10(3) of the Liquor Control Act, which expressly directed the LCBO to enter into the Framework Agreement. This expressly gave retroactive effect back to when the Framework Agreement was signed, “with the effect that the legislation in question is deemed to have always included this provision”: Régie des rentes du Québec v. Canada Bread Company Ltd.  The Court rejected the appellant’s argument that the respondents should not be able to take advantage of the regulated conduct defence where the conduct in issue was retroactively sanctioned. The purpose of extending that defence in the context of the Competition Act was to avoid criminalizing conduct that a province deems to be in the public interest. That same interest should be recognized whether it is expressed in legislation in force at the time of the impugned acts, or expressed in retroactive legislation.

(2) No. The appellants argued that the motion judge erred in his interpretation of the Liquor Control Act and that, correctly interpreted, the surcharge violated that Act. Further, they argued that, even if constitutional, retroactive legislation cannot be considered when determining whether there was a juristic reason for a defendant’s enrichment. The Court found that it was not necessary to consider statutory interpretation because the government of Ontario enacted s. 3(1.1) of the Liquor Control Act which retroactively authorized the price differential in issue and declared what the law was. The Court rejected the appellants’ argument that juristic reason cannot be provided by retroactive legislation because the deeming provision in s. 3(1.1) supplied a juristic reason for the enrichment. There was no doubt that retroactive legislation can defeat financial expectations based on the law in place before the retroactive amendment.

(3) No. The Court found that even if that basis for liability were adopted in Ontario, the appellants could not succeed. The appellants relied on Paradis Honey Ltd., in which Stratas J.A. proposed that in claims for damages for misconduct by a civil authority, courts could grant relief where the civil authority acted unacceptably or indefensibly according to public law principles, and where the court decides in its discretion that damages are appropriate. The Court found that relief was not available because the Framework Agreement allocating the beer market was authorized by both the current and retroactive versions of the statute. The price differential was also authorized, at least by retroactive legislation. The conduct of the LCBO was reasonable in the public law sense.

(4) The appellants argued that s. 10(3) of the Liquor Control Act was outside the legislative competence of the government of Ontario, and that it amounted to an impermissible intrusion into the federal government’s trade and commerce and criminal law powers. The Court found that, in considering the “pith and substance” of this provision, the essence of both the overall regulatory regime embodied in the Liquor Control Act and s. 10(3) itself was the regulation and control of the sale of liquor in the province which was unquestionably within a province’s jurisdiction under the Constitution Act, 1867. Furthermore, provinces may also deal with competition in the exercise of their legislative power as was observed in General Motors of Canada Ltd. v. City National Leasing. Here, there was no conflict between valid provincial legislation and the federal Competition Act, as the federal legislation accorded leeway to provinces to implement legislation to advance their public interest, without running afoul of s. 45 of the Competition Act.

(5) No. The Court declined to grant leave to appeal costs. Leave to appeal costs awards should be granted sparingly and only in “obvious cases where the party seeking leave convinces the court there are ‘strong grounds upon which the appellate court could find that the judge erred in exercising his discretion’”: Brad-Jay Investments Ltd. v. Szijiarto. The motion judge largely considered all the arguments made by the appellants, and did not fail to consider a relevant factor.

Kawartha-Haliburton Children’s Aid Society v. M.W., 2019 ONCA 316

[Lauwers, Benotto and Brown JJ.A..]

Counsel:

C Spear, for the appellant

M Pilch, for the respondent Kawartha-Haliburton Children’s Aid Society

S Giannandrea and S Byers, for the respondent Curve Lake First Nation

I Ross, for the respondent Office of the Children’s Lawyer

C Kasper and E Hill, for the intervener Aboriginal Legal Services

T Law and D Miller, for the intervener Ontario Association of Child Protection Lawyers

K Kehoe, for the intervener National Self-Represented Litigants Project

M Wente and L Farr, for the intervener Anishinabek Nation

Keywords: Family Law, Custody and Access, Crown Wardship, Civil Procedure, Summary Judgment, Child and Family Services Act, RSO 1990, c C11, Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sched. 1, Family Law Rules, O Reg 114/99, Hryniak v. Mauldin, 2014 SCC 7, Catholic Children’s Aid Society of Hamilton v. G.H., T.V. and Eastern Woodlands Metis of Nova Scotia, 2016 ONSC 6287, New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 SCR 46

Facts:

The respondent Society became involved with the appellant after her oldest child was born. The children, all of whom were First Nations, were apprehended based on protection concerns. The appellant did not contest that all of the children were in need of protection. The respondent moved for summary judgment under the then-in-force Child and Family Services Act (“CFSA”). The appellant consented to Crown wardship but argued in favour of access. The motion judge made the children Crown wards, but denied access. On that issue, he reviewed the then-in-force CFSA to conclude that no order for access should be made because the children’s access to the mother was neither meaningful nor beneficial. However, he failed to determine whether the children were Indigenous, which analysis was required under s. 47(2) of that same legislation.

At the time of the motion, the definitions of “Indian”, “Native person” and “Native child” in the CFSA had been declared invalid on the basis that they infringed section 15(1) of the Charter. That declaration of invalidity was suspended to allow the Legislature to take corrective steps. After the motion judge’s decision was released, the Legislature announced the new Child, Youth and Family Services Act, 2017 (“CYFSA”) was to take effect on April 30, 2018. Transitional provisions stated that all cases not concluded would be covered by the new legislation.

The mother appealed the decision, seeking access. The Divisional Court’s decision was released seven days after the CYFSA was proclaimed in force. The Divisional Court concluded that the motion judge erred first by applying the wrong legal test for summary judgment, and then by failing to provide reasons for his conclusion on access. The Divisional Court found that the motion judge had set out the wrong legal test by failing to ask the key question of whether it was in the interests of justice for him to resolve the case summarily.  The Divisional Court also determined that he did not set out the basis for his conclusion on access, but that it was nevertheless apparent from the facts that the mother had not met her burden to establish that access was meaningful and beneficial to the children. The Divisional Court declined to address the matter of the children’s Indigenous heritage, finding that the proclamation of the CYFSA had no bearing on the issue.

Issues:

(1) Did the Divisional Court err by failing to apply the transitional provisions of the CYFSA?

(2) Did the Divisional Court err by changing the test for summary judgment in child protection matters?

Holding:

Appeal allowed.

Reasoning:

(1) Yes. The Court noted that the CYFSA was enacted to replace the CFSA. Importantly, the CYFSA changed the criteria for access to children in extended care by removing the presumption against access, making the child’s “best interests” predominant and emphasizing the importance of preserving Indigenous children’s cultural identity. A regulation was enacted to provide guidance on transitional matters. It provided that a proceeding commenced under the CYSA but not concluded before the CYFSA came into force continued as a proceeding under the CYFSA. The Court rejected the respondent’s claim that the transitional regulation did not apply, and that “but not concluded” meant that the evidence was not concluded. Had the Legislature intended to capture only proceedings in which the hearing had not concluded, it would have said so. Further, the Court noted that the CYFSA’s remedial scheme, as well as the wording of specific sections, supported this interpretation. The proclamation date was the same date that the previous definition of “Indian” and “native person/child” under the CFSA were deemed to be invalid, thereby avoiding a legislative void. Thus, the transitional provisions applied to this case.

The Court next observed that the record in this case was insufficient to apply the test under the CYFSA. Under the CFSA, the onus was on the person seeking access to establish that the relationship was meaningful and beneficial. This changed under the CYFSA, which  states that a court shall not make an access order unless it is satisfied that it is in the child’s best interests. Looking at the relevant provisions, the Court concluded that the burden of proof was no longer on the person requesting access. Instead, the court undertakes a best interests analysis, assesses whether the relationship is beneficial and meaningful, and considers impairment to adoption opportunities as part of this assessment. This mean that it is no longer the case that a parent who proffers no evidence will not gain access. Accordingly, the test for access to children in extended care was expanded in such a way that the record here was insufficient to satisfy its requirements.

Thus, the Court found that the Divisional Court improperly addressed the sufficiency of the record, because it applied the CFSA and erroneously concluded that the record was complete. There was no mention in the Divisional Court’s reasons of the children’s best interests. Further, the Divisional Court applied a “presumption against access” which no longer existed under the CYFSA. Finally, by not applying the new legislation, the Divisional Court failed to account for the children’s views.

Lastly, the Court observed that the record was most insufficient under the CYFSA in relation to the children’s Indigenous heritage. After the judicial finding of unconstitutionality of the definitions of “Indian”, “Native person” and “Native child” in the CFSA, the CYFSA broadened the definition of who is recognized as an Indigenous child. Any child who identifies as Indigenous, has a family member who so identifies, or if there is a connection between the child and a band, is now recognized as Indigenous. Given that the children were Indigenous, the CYFSA required the court to consider how to preserve their connection to their specific Indigenous community and culture. The Divisional Court failed to make a finding as to the children’s First Nations status, consequently failing to consider whether access would assist the children in preserving their cultural identity.

(2) Yes. The Court observed that the Divisional Court misstated the principles of summary judgment in child protection matters, since the Family Law Rules address such motions. Further, the Divisional Court ignored Hryniak’s direction that no genuine issue requiring a trial will exist only “when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment”. Decades of jurisprudence emphasized that fairness in a child protection summary judgment motion necessitates caution and accounting for special considerations. Further, the Court undertook a thorough analysis of why Hryniak’s fairness principle requires that caution is needed for child protection summary judgment motions. In particular, the Court reviewed several factors: the Charter implications of child protection matters; the reality of the litigation for the participants; and the wisdom of the jurisprudence that the Divisional Court overturned.

With respect to Charter implications, the Court observed that child protection litigation engages the Charter rights of both parents and children – in particular, the s. 7 right to security of the person.  Indeed, not only are Charter rights engaged, but the participants themselves are unlikely to be able to advance them. With respect to the reality of the child protection litigant, the Court noted that courts should be especially mindful of the reality and material circumstances of those subject to child protection proceedings. Poverty and other forms of marginalization form part of the experience of many parents involved in child protection proceedings. Parents, even when represented by counsel, may simply be overpowered by Children’s Aid societies.

Lastly, the court affirmed that the cautious approach to summary judgment in child protection has long been recognized by Ontario courts. The child protection jurisprudence crafted an approach to the fair and just determination of issues using summary judgment motions by recognizing that in child protection proceedings there are Charter implications at stake for vulnerable litigants.  The Divisional Court erred in its understanding of the pre-Hryniak rule and jurisprudence, and that case’s effect on the approach to summary judgment in child protection proceedings. The current correct approach to summary judgment in child protection was and remains highly cautionary. The Court concluded by summarizing the approach that the courts should take on summary judgment motions in child protection proceedings as follows:

  1. Hryniak’s fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding.  In determining whether there is a genuine issue requiring a trial, the court must exercise caution and apply the objectives of the CYFSA.
  2. The burden of proof is on the party moving for summary judgment.
  3. The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial.
  4. Judicial assistance must be provided for self-represented litigants.
  5. The special considerations that apply to Indigenous children must be part of every decision involving Indigenous children.

French v. H&R Property Management Ltd., 2019 ONCA 302

[van Rensburg, Benotto, Harvison Young JJ.A.]

Counsel:

The appellant, acting in person

M.A. Freake, for the respondents

Keywords: Real Property, Residential Tenancies, Torts, Negligence, Civil Procedure, Amending Pleadings, Limitation Periods, Limitations Act, 2002, SO 2002, c 24, Sched B, Residential Tenancies Act, 2006, SO 2006, c 17, Rules of Civil Procedure, Rules 25.06(5), 25.08(2), 26.01, & 76.12(3), Housen v. Nikolaisen, 2002 SCC 33, Frohlick v. Pinkerton Canada Ltd., 2008 ONCA 3, United Food and Commercial Workers Canada, Local 175 Region 6 v. Quality Meat Packers Holdings Limited, 2018 ONCA 671, Dee Ferraro Ltd v. Pellizzari, 2012 ONCA 55, 1100997 Ontario Ltd v. North Elgin Centre Inc., 2016 ONCA 848, Davis v. East Side Mario’s Barrie, 2018 ONCA 410

Facts:

Following a dispute regarding the appellant’s eviction from the respondents’ property, the appellant attended the premises to retrieve his belongings.  When the respondents saw him remove a firearm, they asked him to leave and called the police.  The appellant alleged he was assaulted, and that his cat was gone when he later returned.  The appellant commenced an action against the respondents, seeking damages for assault and for breach of s. 41 of the Residential Tenancies Act (“RTA”).  At trial, the appellant abandoned his assault claim and moved to amend his statement of claim in order to assert a claim in negligence relating to the lost cat.  The trial judge refused to allow the amendment, finding that the negligence claim was statute-barred under s. 4 of the Limitations Act, 2002.  The trial judge also dismissed the claim for breach of s. 41 of the RTA.

Issues:

(1) Did the trial judge err in dismissing the appellant’s motion to amend the statement of claim?

(2) Did the trial judge err in concluding that the respondents had not breached the RTA?

(3) Did the trial judge err in refusing to admit the affidavit of the appellant’s ex-wife into evidence?

Holding:

Appeal dismissed.

Reasoning:

(1) No.  There was no dispute that the facts relied on in support of the negligence claim were known to the appellant as of 2010, meaning that the new cause of action was clearly statute-barred based on the expiration of the two-year limitation period. Nevertheless, the Court considered the distinction between pleading a new cause of action versus pleading new relief based on the originally-pleaded facts. The Court found that the trial judge correctly articulated the test for whether a new cause of action was pleaded when he framed the relevant question as being whether there were sufficient material facts originally pleaded which, liberally construed, could nevertheless support a cause of action in negligence. The Court agreed with the trial judge that the appellant had failed to plead the requisite material facts to support a claim in negligence.  Furthermore, the court held that while the word “negligence” appeared in the appellant’s reply, it was impermissible to assert a new claim by way of reply.

(2) No.  The trial judge found that the respondents had complied with their obligations under s. 41 of the RTA because the appellant’s belongings were retained on site and available for him to pick up for a 72-hour period.  Indeed, the appellant had returned later to retrieve his belongings and the evidence indicated that the appellant’s property had been removed from storage.

(3) No.  At trial, the appellant sought to introduce into evidence an affidavit sworn by his ex-wife, in order to establish that the appellant owned a third cat and certain other property. The trial judge refused to admit the affidavit, as the ex-wife was not available to be cross-examined on it. According to the appellant, his ex-wife was too ill to attend trial and testify in person. The appellant did not make the necessary arrangements to have his ex-wife cross-examined by video-conference. The appellant had ample notice of the respondents’ intention to examine the appellant’s ex-wife, and could have made those arrangements.  Further, there was no prejudice to the appellant, as the trial judge accepted that he had a third cat.  The rest of the ex-wife’s evidence as to other property was moot, as the trial judge simply rejected that the respondents had breached s. 41 of the RTA.

Clark v Ontario (Attorney General), 2019 ONCA 311

[Lauwers, Huscroft and Trotter JJ.A.]

Counsel:

L. Honickman, for appellants

S. Mathai and H. Burnett, for the respondent

Keywords: Torts, Negligence, Misfeasance in Public Office, Crown Liability, Crown Immunity, Civil Procedure, Striking Pleadings, No Reasonable Cause of Action, Questions of Law, Frivolous, Vexatious and Abuse of Process, Limitation Periods, Proceedings Against the Crown Act, RSO 1990, c P 27, ss 7, 10, Rules of Civil Procedure, Rules 21.01(1)(a), (b), 21.01(3)(d), 25.11, , Limitations Act, 2002, SO 2002, c 24, Sched B, Odhavji Estate v. Woodhouse, 2003 SCC 69, Hunt v. Carey Canada Inc., [1990] 2 SCR 959, Salewski v. Lalonde, 2017 ONCA 515, Nelles v. Ontario, [1989] 2 S.C.R. 170, Proulx v. Quebec (Attorney General), 2001 SCC 66, [2001] 3 S.C.R. 9, Miazga v. Kvello, 2009 SCC 51, [2009] 3 S.C.R. 339, Henry v. British Columbia (Attorney General), 2015 SCC 24, Vancouver (City) v. Ward, 2010 SCC 27, Smith v. Attorney General of Ontario, 2018 ONSC 993, Anns v. Merton London Borough Council, [1978] A.C. 728, Cooper v. Hobart, 2001 SCC 79, Paton Estate v. Ontario Lottery and Gaming Commission, 2016 ONCA 458, R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, Arora v. Whirlpool Canada LP, 2013 ONCA 657, leave to appeal refused, [2013] S.C.C.A. No. 498, Thompson v. Ontario (Attorney General) (1998), 113 OAC 82 (CA), Gilbert v. Gilkinson (2005), 205 OAC 188 (CA), leave to appeal refused, [2006] SCCA No 67

Facts:

Following the appellant officers’ arrest of two men in 2009, both men alleged that the officers assaulted them in the course of arrest. As a result, one man’s charges were stayed, and the other’s conviction was set aside.

The appellant officers sued the respondent Attorney General, alleging that the prosecuting Crown attorneys were negligent and misfeasant because they failed to adequately investigate and call evidence to refute the allegations.

On October 20, 2015, the appellants served notice on the respondent under the Proceedings Against the Crown Act of their intention to commence an action. They commenced their action on June 22, 2016, asserting claims in negligence and misfeasance in public office. The respondent moved under Rule 21.01(1)(a) of the Rules of Civil Procedure to strike the action on the grounds that it was barred by the two-year limitation period in the Limitations Act, 2002, and under Rule 21.01(1)(b) because it disclosed no reasonable cause of action. The respondent also moved under Rules 21.01(3)(d) and 25.11 to strike the claims as scandalous and/or vexatious. The motion judge dismissed the motion to strike based on the limitations issue, struck the negligence claim as disclosing no reasonable cause of action, and allowed the misfeasance claim to proceed. He made no order under Rules 21.01(3)(d) or 25.11.

Issues:

(1) Was the action time-barred?

(2) Did the action lie against the Crown for negligence?

(3) Did the action lie against the Crown for misfeasance in public office?

Holding: Appeal dismissed.

Reasoning:

(1) No. Although the Court rejected the motion judge’s conclusion that this case constituted a novel claim and was therefore an “arguable exception” to the limitation period, the Court nevertheless found that it would be incorrect to find that the action was time barred in the context of a Rule 21.01(1)(a) motion. An argument that a claim is time barred is a defence to a claim, and as such, it must be pleaded. The respondent was required to specifically plead the limitations defence, but it had not done so because it had not delivered a defence. Second, the Court noted that relevant Ontario authority affirmed that a limitations issue is not normally a question of law that can be determined on a pleadings motion. There may be an issue of discoverability, which is fact-based. Although there may be certain very limited circumstances in which a Rule 21.01(1)(a) motion would be appropriate – for example, after the close of pleadings and in the absence of any factual dispute – a limitation issue in the vast majority of cases should not be determined absent a full record.

(2) No. The Court noted that it is settled law that no claim lies against the Crown in negligence. Notwithstanding recent Supreme Court jurisprudence permitting a claim against the Crown to proceed on the basis of wrongful non-disclosure and awarding Charter damages, the Supreme Court has nevertheless been consistent in its position that the Crown is immune from negligence claims. However, the Court took issue with the motion judge’s analysis in reaching this conclusion – particularly his finding that the existing Supreme Court case law was not dispositive on the issue. The motion judge treated the matter as an open question, and conducted his own duty of care analysis. He concluded that there was a prima facie duty of care, limited to allegations of serious misconduct by police officers in the context of Charter motions. However, he concluded at the second stage of the analysis that public policy considerations defeated the duty of care.

The Court took a different approach in reaching the same conclusion, noting that this aspect of Crown immunity had been determined by the Supreme Court. This line of authority could not be avoided simply by substituting one class of claimants (former accused persons) for another (police officers). Therefore, the motion judge erred in finding that existing case law was not dispositive of the officers’ negligence claim. The Court noted that the motion judge’s approach was too narrow. Notwithstanding that courts have not considered potential Crown Attorney civil liability to police officers, prior Court of Appeal authority already confirmed that it is not determinative, on a motion to strike, that the law has not yet recognized a particular claim. Rather, the court must ask whether it is plain and obvious that the claim has no reasonable prospect of success.

The Court rejected the argument that the negligence claim should not have been struck stage because of the lack of a proper evidentiary record, and because it was speculative that policy considerations accepted in the Supreme Court jurisprudence were applicable here. Relying on Court of Appeal authority, the Court observed that a policy analysis can be conducted on a pleadings motion where there is no indication that a factual record could be of assistance. Further, such an analysis is appropriate where there exists a significant body of jurisprudence to assist in answering the question. Both sets of circumstances were applicable here, as there was no indication that a factual record would have been of assistance, and the relevant case law was extensive.

The Court next addressed the applicability of the Supreme Court’s decision in Henry v. British Columbia (Attorney General). There, Moldaver J found that the “good governance” concerns of the Supreme Court’s malicious prosecution jurisprudence informed the proper scope of Crown liability for Charter damages. Here, the Court noted that Moldaver J’s two “good governance” concerns were also of assistance. The first policy concern  – the diversion of Crown attorneys from their primary duties – was equally valid in the case of police claimants. Allowing claims based in negligence would expose Crown attorneys to innumerable claims of police officers who feel aggrieved by decisions with which they do not agree. The second policy concern – encouraging defensive lawyering by Crown attorneys – would mean exposure to negligence claims by the police and would encourage Crown attorneys to focus on extraneous factors during the course of a prosecution. Thus, the Court concluded that the policy concerns in Henry were relevant here.

Lastly, the Court declined to address the respondent’s request to “correct” the motion judge’s conclusion that there was a relationship of proximity between the police and Crown attorneys. In the Court’s view, there was a clear correspondence between the factors animating the scope of Crown immunity and the factors at the second stage of the Anns/Cooper analysis, such that all analytical paths led to the same conclusion. The Court therefore found it unnecessary to engage in a hypothetical inquiry that should properly be saved for a scenario in which it is required.

(3) Yes. The Court concluded first, that the appellants properly pleaded misfeasance in public office, and second, that the motion judge correctly found that Crown attorneys are not immune from liability for misfeasance in public office. Noting that a court was only required at the pleadings stage to assume the plaintiffs can prove their allegations, the Court concluded that the pleading of misfeasance in public office was adequate, properly particularized, and carefully tracked the elements of the tort as set out in Odhavji Estate v. Woodhouse. On the second issue, the Court rejected the same arguments advanced by the respondent in respect of the negligence claim, because misfeasance in public office provided a very high threshold for liability and therefore did not engage the same policy concerns. Looking again to the existing Supreme Court jurisprudence, the Court concluded that the tort already established a high threshold by requiring claimants to advance cogent evidence to substantiate the presence of bad faith or improper motives.


CRIMINAL DECISIONS

R. v. 2095540 Inc. (Appeal Book Endorsement), 2019 ONCA 296

[Benotto, Brown and Fairburn JJ.A]

P.B. Norton, duty counsel

J.D.M. Clark, for the Crown

Keywords: Criminal Law, Proportionality, Forfeiture

R. v. Bajwa (Appeal Book Endorsement), 2019 ONCA 295

[Benotto, Brown and Fairburn JJ.A]

The appellant, in person

A. Hotke, for the respondent

Keywords: Criminal Law, Fraud over $5,000, Conspiracy, Sentencing

R. v. Gotzamanis (Appeal Book Endorsement), 2019 ONCA 298

[Benotto, Brown and Fairburn JJ.A]

P. Copeland, duty counsel

The appellant, in person

M. Fawcett, for the Crown

Keywords: Criminal Law, Sentencing, Probation, Procedural Unfairness

R. v. Rocker, 2019 ONCA 299

[Benotto, Brown and Fairburn JJ.A]

The appellant, in person

G. Chan, Duty Counsel

A. Hotke, for the respondent

Keywords: Criminal Law, Human Trafficking, Credibility, Sentencing, Consecutive Sentences

R. v. Stockton, 2019 ONCA 300

[Benotto, Brown and Fairburn JJ.A]

The appellant, in person

L. Csele, for the respondent

Keywords: Criminal Law, Possession of Methamphetamine,  Breach of Recognizance, Search Warrants, s. 8 Charter Applications, Cross-Examination, s. 11 of the Charter of Rights and Freedoms, Right to be Tried within a Reasonable Time, Sentencing, Victim Fine Surcharge, R. v. Jordan, 2016 SCC 27

R. v. D.A., 2019 ONCA 310

[Feldman, Benotto and Brown JJ.A.]

M. Dineen, duty counsel

J. Smith-Joy, for the Crown

Keywords: Criminal Law, Sexual Assault, Sexual Exploitation, Sentencing, Non-Communication Orders, R. v. D.M., 2012 ONCA 520

R. v. Goulart, 2019 ONCA 308

[Juriansz, Watt and Harvison Young JJ.A.]

A. Menchynski, for the appellant

J. Conroy and M. Elias, for the respondent

Keywords: Criminal Law, Possession for the Purposes of Trafficking, Possession of the Proceeds of Crime, Search Warrants

R. v. McGregor, 2019 ONCA 307

[Watt, Pardu and Roberts JJ.A.]

R. Litkowski, for the appellant

A. Alyea, for the respondent

Keywords: Criminal Law, Kidnapping, First Degree Murder, Constructive First Degree Murder, s. 231(5) of the Criminal Code, Predicate Offence, Continuing Domination, Jury Instructions, Post-Offence Conduct, Provocation, Closing Submissions, R. v. Harbottle, [1993] 3 SCR 306, R. v. Paré, [1987] 2 SCR 618, R. v. Parris, 2013 ONCA 515, R. v. Calnen, 2019 SCC 6

R. v. Paul, 2019 ONCA 304

[Feldman, Benotto and Brown JJ.A.]

M. Dineen, duty counsel

A. Baiasu, for the respondent

Keywords: Criminal Law, Sentencing, Credit for Pre-Sentence Custody

R. v. Latif, 2019 ONCA 309

[Benotto, Brown and Fairburn JJ.A.]

The appellant, in person

P. Norton, duty counsel

M. Fawcett, for the respondent

Keywords: Criminal Law, Sentencing, Victim Fine Surcharge, Recognizance, Probation, Pre-Sentence Custody, R. v. Wilson, 2008 ONCA 510


ONTARIO REVIEW BOARD

Kassa (Re), 2019 ONCA 313

[Hoy A.C.J.O., Doherty and Zarnett JJ.A.]

K. Bryan, for appellant

J. Hanna, for the respondent

Keywords: Ontario Review Board, Schizophrenia, Uttering a Threat to Cause Bodily Harm, Not Criminally Responsible on Account of Mental Disorder, Significant Threat to the Safety of the Public, Wall (Re), 2017 ONCA 713, Winko v. British Columbia (Forensic Psychiatric Institute), [1992] 2 SCR 625

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.

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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, construction, environmental contamination, product liability, debtor-creditor, insolvency and other business litigation. He also handles professional discipline and professional negligence matters, as well as complex estates and matrimonial litigation. In addition, John 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.