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Good evening.

Following are the summaries for this past week’s civil decisions of the Court of Appeal for Ontario.

In Dermann v. Baker, 2019 ONCA 584, the Court considered the qualifying of certain witnesses as experts for the purposes of r. 53.03 of the Rules of Civil Procedure, the standard of review for a trial judge’s charge to the jury in a civil trial, and costs assessments in the context of payments made in advance, and offers to settle. On the first issue, the Court held that r. 53.03 has no application to non-party experts as long as their opinions are limited to those formed based on observations made for a purpose other than litigation. On the second issue, the Court found that a new trial will not be ordered on the basis of a misdirection in a charge unless the error leads to a substantial wrong or miscarriage of justice. Finally, on the third issue, the Court held that r. 49.10(2) of the Rules of Civil Procedure has no application where the plaintiff is awarded a nil judgment.

In Buduchnist Credit Union Limited v. 2321197 Ontario Inc., 2019 ONCA 588, the Court considered the appeal routes from an order appointing a receiver. The Court found that when an order appointing a receiver is made under s. 243(1) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 and s. 101 of the Courts of Justice Act, R.S.O., c. C.43, then the more restrictive appeal provisions in the BIA govern the appeal routes. The Court went on to conclude that this case did not give rise to an appeal as of right, and that leave to appeal should not be granted. Specifically, the Court found that the case did not raise an issue of general importance, was not prima facie meritorious, and that an appeal would unduly hinder the progression of the receivership proceedings.

In Murray v. Alatishe, 2019 ONCA 596, the Consent and Capacity Board found that the appellant was incapable of consenting to treatment with respect to medications pursuant to s. 4(1) of the Health Care Consent Act. The appellant appealed to the Superior Court and again to the Court of Appeal, asserting that the decision was procedurally unfair and unreasonable. The appeal was dismissed. The appellant was found to be sufficiently aware of the two-part test for capacity to consent to treatment so no issue of procedural fairness was evident. The decision was also found to be reasonable since while the appellant was able to understand the information relevant to making a decision about treatment, he failed to acknowledge that he suffered from a mental condition and was thus unable to evaluate the potential benefits and risks of the proposed treatment.

Wishing everyone a nice weekend.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email


Table of Contents

Civil Decisions

Himidan v. Farquharson, 2019 ONCA 575

Keywords: Contract Law; Real Property; Purchase and Sale of Property; Refusal to Close a Transaction; Right of Way; Contractual Interpretation; Standard of Review; Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633; LeMesurier v. Andrus (1986), 54 O.R. (2d) 1 (C.A.); Ventas, Inc. v. Sunrise Senior Living Real Estate Investment Trust, 2007 ONCA 205, 85 O.R. (3d) 254.

Sub-Prime Mortgage Corporation v. 1219076 Ontario Limited, 2019 ONCA 581

Keywords: Civil Procedure, Mortgages, Discharge Statements, Appellate Jurisdiction, Judicial Discretion, Mortgages Act, R.S.O. 1990, c M.40, ss. 12(3), 12(9), 17, and 22, Interest Act, R.S.C. 1985, c. I-15, s. 8; Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 14.05(a), (d) and (e), Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(2), Fernicola (In Trust) v. Creview Development Inc., 75 RPR (4th) 226 (Ont SC), leave to appeal refused 80 RPR (4th) 178 (Ont Div Ct), Metroview Investment Corp. v. Araujo, [2000] OJ No. 2403 (Ont SC), Rokhsefat v. 8758603 Canada Corp, 2019 ONCA 273

Irps-Bleeker v. Van Gaalen, 2019 ONCA 592

Keywords: Civil Procedure, Limitation Period, Discoverability, Professional Negligence, Real Estate, Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 5 (1)(b)

Dermann v. Baker, 2019 ONCA 584

Keywords: Civil Procedure, Tort Law, Insurance Law, Personal Injury Law, Advanced Payment, Expert Witnesses, Non-Party Experts, Charge To The Jury, Costs Assessment, Offer To Settle, Rules of Civil Procedure, r. 53.03, r. 49.10(2), Courts of Justice Act, s. 120, Insurance Act, RSO 1990, c I.8, s. 267.5(7), Berthiaume-Palmer v. Borgundvaag, 2010 ONCA 470, S & A Strasser Ltd. v. Richmond Hill (Town) (1990), 1 O.R. (3d) 243

Buduchnist Credit Union Limited v. 2321197 Ontario Inc., 2019 ONCA 588

Keywords: Bankruptcy Law, Appeal From Order Appointing A Receiver, Appeal As Of Right, Leave To Appeal, Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, ss. 193(a), 193(b), 193(c), 193(e), 243(1), Courts of Justice Act, R.S.O., c. C.43, s. 101, Business Development Bank of Canada v. Astoria Organic Matters Ltd., 2019 ONCA 269, Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, 2403177 Ontario Inc. v. Bending Lake Iron Group Ltd., 2016 ONCA 225

Breen v. FCT Insurance Company Ltd., 2019 ONCA 598

Keywords: Real Property, Title Insurance, Unmarketable Title, Building Permit, Building Code Act, 1992, S.O. 1992, c.23, Fischer v. Stewart Title Guaranty Co., 2014 ONCA 798, MacDonald v. Chicago Title Insurance Company of Canada, 2015 ONCA 842

Bruyea v. Canada (Veteran Affairs), 2019 ONCA 599

Keywords: Small Claims Court; Defamation; Jurisdiction of Deputy Judges; Statutory Interpretation; Courts of Justice Act, RSO 1990, c. C.43, s. 137.1

Murray v. Alatishe, 2019 ONCA 596

Keywords: Capacity, Court-Ordered Assessment, Consent to Treatment, Criminal Law, Not Criminally Responsible, Judicial Review, Procedural Fairness, Health Care Consent Act, 1996, SO 1996, c. 2, Sch. A, s. 4(1), Statutory Powers Procedure Act, RSO 1990, c. S.22, s. 8, Starson v. Swayze, 2003 SCC 32, [2003] 1 SCR 722, Gajewski v. Wilkie, 2014 ONCA 897, 123 OR (3d) 481

Stockey v. Grant, 2019 ONCA 597

Keywords:

Real Estate Transaction, Lien Application, Cost Orders, Trial Management Conference, 60-day Deadline, Payment of Principal, Delay, Trial on the Merits

Short Civil Decisions

Browne v. Browne, 2019 ONCA 580

Keywords: Divorce Proceedings, Custody Order, Permission to Leave the Country, Change in the Status Quo, Motion Granted

Holly v Greco, 2019 ONCA 579

Keywords: Family Law, Child Support, Adjournment, Costs

ACT Greenwood Ltd. v. Desjardins-McLeod, 2019 ONCA 585

Keywords: Contracts, Costs 

Criminal Decisions

R. v. Mayor, 2019 ONCA 578

Keywords: Criminal Law, Driving with a Suspended License, Impaired Driving, Possession of a Controlled Substance for the Purpose of Trafficking, Unlawful Detention or Arrest, Road Safety Purpose, Criminal Investigation, Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 55.2(1), 216(1), 217(2) Canadian Charter of Rights and Freedoms, ss. 8, 9, R v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 255, R. v. Ladouceur, [1990] 1 S.C.R. 1257, Brown v. Durham Regional Police Force (1998), 43 O.R. (3d) 223 (C.A.), R. v. Grant, 2009 SCC 32, R. v. Sandhu, 2011 ONCA 124, R. v. Nolet, 2010 SCC 24, R. v. Humphrey, 2011 ONSC 3024

R. v. Grant , 2019 ONCA 577

Keywords: Criminal Law, Appeal Book Endorsement, Charter of Rights and Freedoms, s. 11(b)

R. v.  Bajich, 2019 ONCA 586

Keywords: Criminal Law, Possession of Drugs for the Purpose of Trafficking; Reasonable Grounds for Arrest, Totality of Circumstances, Uneven Scrutiny of Evidence; Assessment of Witness Credibility; Confidential Informants; Standard of Review for Reasonable Grounds for Arrest; Interpretation of ‘for the Purposes of Trafficking’; Indicia of Trafficking; R. v. Quilop, 2017 ABCA 70, 49 Alta. L.R. (6th) 213; R. v. Storrey, [1990] 1 S.C.R. 241; R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63; R. v. Debot, [1989] 2 S.C.R. 1140; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527; R. v. Anang, 2016 ONCA 825, 367 C.R.R. (2d) 289; R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742; R. v. Labelle, 2016 ONCA 110; R. v. O.N., 2017 ONCA 923; R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.); R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000; R. v. Lohrer, 2004 SCC 80

R. v. Bhagwandat , 2019 ONCA 589

Keywords: Appeal Book Endorsement, Mental Disorder, Unequivocal Plea

R. v. Dean, 2019 ONCA 587

Keywords: Appeal Book Endorsement, Dangerous Driving, Recognizance, Motor Vehicle Collision, Immigration Consequences, Joint Submission, Fresh Evidence

R. v. J.B., 2019 ONCA 591

Keywords: Criminal Law; Jury Trials; Errors in Jury Instructions; Failure to Incorporate Evidence into the Jury Instructions; Failure to Relate Evidence to the Essential Elements of the Charge; Rules of Evidence; Accused’s Testimony; Out-of-Court Statements; Intrinsic Value as Substantive Evidence vs Impeachment of Credibility; Ability of Juries to Review Materials not in Evidence; Obligations of a Trial Judge in Responding to In-Deliberation Jury Requests; Unbalanced and One-Sided Review of Evidence; ‘Rushed Verdicts’; Exhortations to the Jury; R. v. Davison, DeRosie and MacArthur (1974), 20 C.C.C. (2d) 424 (Ont. C.A.); R. v. Fischer, 2005 BCCA 265; R. v. Groves, 2013 BCCA 446; R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.); R. v. S. (W.D.), [1994] 3 S.C.R. 521; R. v. De Bellefeuille (1994), 39 B.C.A.C. 276 (B.C. C.A.); Olbey v. R., [1980] 1 S.C.R. 1008; R. v. Ferguson (2000), 142 C.C.C. (3d) 353 (Ont. C.A.); R. v. Ferguson, 2001 SCC 6; R. v. R.M.G., [1996] 3 S.C.R. 362; R. v. Sims, [1992] 2 S.C.R. 858; Azoulay v. The Queen, [1952] 2 S.C.R. 495; R. v. Royz, 2009 SCC 13; Cluett v. The Queen, [1985] 2 S.C.R. 216

R. v. Lewis, 2019 ONCA 590

Keywords: Appeal Book Endorsement, Sentencing, Pre-Sentence Custody, Credit

R. v. Rajavadivel , 2019 ONCA 595

Keywords: Appeal Book Endorsement

R. v. Salama , 2019 ONCA 594

Keywords: Appeal Book Endorsement

R. v. Treleaven , 2019 ONCA 593

Keywords: Appeal Book Endorsement, Gladue Report, Fresh Evidence, Sentencing

Ontario Review Board

Shepherd (Re), 2019 ONCA 582

Keywords: Ontario Review Board, Criminal Law, Mental Illness, Detention, Conditional Discharge, Public Safety

Conway (Re), 2019 ONCA 583

Keywords: Ontario Review Board, Criminal Law, Sexual Assault, Assault, Uttering Death Threats, Restricted Liberty, Public Safety, Evidence, Procedural Fairness, Detention, Absolute Discharge, Conditional Discharge, Canadian Charter of Rights and Freedoms, ss. 1, 7, 12, Re LePage, 2019 ONCA 363


CIVIL DECISIONS

Himidan v. Farquharson, 2019 ONCA 575

[Huscroft, Trotter and Zarnett JJ.A.]

Counsel:

T. Pagliaroli and B. McKoy, for the appellant

C. Raphael and B. Chung, for the respondents

FACTS:

The parties entered into an agreement for the respondents to purchase the appellant’s house. Prior to the closing, neighbours of the property asserted ownership over a two foot strip of the nine foot wide driveway. The appellant and the neighbours were unable to resolve the dispute and litigation was commenced between the appellant and the neighbours. In light of the litigation, the respondents refused to close the sale on the basis that the appellant could not convey clear title to the entire driveway and walked away. The appellant commenced an action for damages arising from the failure to close. The respondents counterclaimed for a return of their deposit.  Both parties moved for summary judgment to dismiss the claims against them and for judgment on their own claims.

The motion judge found for the respondents because in her view, the purchase agreement was a representation that the appellant owned all of “what was visually apparent as the functioning private driveway.” She found that there was a defect in the appellant’s title to the driveway, and this defect was significant enough to entitle the respondents to refuse to close.

ISSUES:

(1) Did the motion judge err in her interpretation of the purchase agreement?

(2) If there was no error, did the motion judge err in finding the defect to be significant enough to permit the respondents to refuse to close?

HOLDING:

Appeal dismissed.

REASONING:

(1) No, the motion judge did not err in her interpretation of the purchase agreement.

The purchase agreement represented that the driveway was only 7 feet wide, but that the driveway belonged to property, subject to a right of way. However, the driveway, as it visually appeared, was nine feet wide. The appellant submitted that the motion judge erred by relying on the respondent’s subjective “understanding of what they were getting”, and not the text of the Schedule to the agreement.

The Court found that the motion judge used the factual matrix to “deepen” her understanding of the intentions of the parties at the time of executing the contract. Further, in LeMesurier, the Court of Appeal had previously held that purchasers were entitle to assume that “everything which to the eye appeared part of the driveway” was in fact part of the driveway. The motion judge was entitled to find as she did that any reasonable person, upon viewing the property, would assume the driveway was in fact 9 feet wide, notwithstanding the provision in the APS that indicated the driveway was only 7 feet wide.

The fact that the purchase agreement made reference to right of way was of no relief to the appellant as the neighbours’ claim was for ownership, not right of way.

The Court also referenced the need to interpret contracts in accordance with sound commercial principals and good business sense, as was discussed in Ventas. If, as the appellants submitted, they were only selling seven of the nine feet of the driveway, as well as the house, it would mean they would, if successful against the neighbours, retain a two foot strip of driveway and nothing else. The Court found this did not make commercial sense and so rejected this argument.

(2) No, the motion judge did not err in finding the defect to be significant enough to permit the respondents to refuse to close.

The neighbours were seeking $200,000 to settle their claim to ownership. The appellant later sold the property for $145,000 less than the respondents had agreed to purchase it for. The two foot strip that was subject to dispute, in the appellant’s own words, interfered with opening car doors and use of the garage. In light of these facts, the Court found no error in the motion judge’s reasons. “The respondents’ reliance on it in refusing to close was neither arbitrary nor capricious” and so was not a wrongful refusal to close.


Sub-Prime Mortgage Corporation v. 1219076 Ontario Limited, 2019 ONCA 581

[Feldman, Hourigan and Brown JJ.A.]

Counsel:

G.E. Cohen and B. Lailna, for the appellant

V. Ivanov, for the respondent

FACTS:

The appeals arise from a dispute about the calculation of balances owing on two mortgages over two properties for discharge purposes. The respondent is the first mortgagee of the two properties subject to the mortgages. The appellant, as second mortgagee, filed applications in the Superior Court of Justice seeking orders permitting it to obtain an immediate discharge of the respondent’s mortgages on each property by paying money into court, pending further court orders or the resolution of the parties’ dispute.

The respondent issued different calculations of balances owing on mortgages for two properties. The appellant disputed a number of entries in the discharge statements for both properties and urgently filed two applications with the Superior Court of Justice, relying on provisions of the Mortgages Act, the Interest Act and the Rules of Civil Procedure.

The applications did not specifically seek a determination of the balance owing for each mortgage. With respect to one mortgage, the appellant took issue with an open-ended list of items including charges for non-sufficient funds or missed payments, a three-month interest charge, and an automatic renewal fee. With respect to the other mortgage, the appellant also took the position that the respondent was obliged to accept its tender of $675,937.73 for the discharge of the mortgage which, due to a calculation error, the respondents claimed was actually $683,133.76.

The application judge found that s. 12(3) of the Mortgages Act did not apply as the language refers to situations where a mortgagee cannot be found, and the section “is not engaged automatically any time there is a dispute with respect to the amount owing on a mortgage”. Even if s. 12(3) did apply, the application judge declined to exercise her discretion to grant the relief sought because there was no compelling reason based on the available record to do so. In addition, the application judge was not satisfied that there was sufficient evidence of tender with respect to the second property. In her view, the appellant should have paid the mortgage balances under protest and subsequently brought a proceeding to dispute any charges it viewed as excessive.

ISSUES:

(1) Did the Court of Appeal have jurisdiction to hear the appeals?

(2) Did the application judge err in law by declining to grant a discharge under s. 12(3) of the Mortgages Act?

HOLDING:

Appeals dismissed on the substantive issues, but matter remitted back to the Superior Court to be determined pursuant to Rule 14.05(3)(e).

REASONING:

(1) Yes, the Court of Appeal has jurisdiction. Pursuant to s. 12(10) of the Mortgages Act, “an appeal lies to the Divisional Court from any order made under [s.12 of the act].” However, even if the appeals of the dismissal of the s. 12 relief should be in the Divisional Court, the applicants relied on other statutory grounds and Rule 14 and therefore the appeals were otherwise properly before the Court of Appeal. Pursuant to s. 6(2) of the Courts of Justice Act, the Court of Appeal elected to hear the appeals on all issues.

(2) Yes, the application judge erred in law in finding that the process under s. 12(3) of the Mortgages Act was unavailable to the appellant because it is a second mortgagee and not a mortgagor. There is case law that suggests that s. 12(3) applies more broadly than situations where a mortgagee is unavailable or a proper discharge cannot be obtained, but even that line of authority recognizes that s. 12(3) applies in limited circumstances and not in every case where there is a dispute over what is owing on a mortgage. In addition, there is an acknowledgment in that case law that the use of s. 12(3) is a matter of discretion to be applied to the individual facts of each case.

However, the application judge decided that even if s. 12(3) could be interpreted as available to the appellant, she would not make the order requested. That was a discretionary decision and the Court was not satisfied that the application judge’s discretion was wrongly exercised.

The Court of Appeal then went on to state that if a mortgagor has legitimate concerns about the amount claimed to discharge a mortgage, an application should be brought under Rule 14.05(3)(e). The application judge will determine what is owing and may even make an interim order for the payment of monies into court. In this case, the appellant did not seek an assessment of disputed costs and charges, but rather requested that such costs and charges be assessed at a later date but that the mortgages be discharged immediately without any payment to the respondent.

The application judge could not have made a finding on the validity of the amounts claimed by the respondent as the appellant never sought a judicial determination of all of the disputed items and lacked evidentiary support for its position.

The Court of Appeal determined that the appropriate course is that the matter should be remitted back to the Superior Court, with the parties required to file amended application materials so that court could make a determination under Rule 14.05(3)(e) whether the disputed costs and charges should be allowed.

The Court also held that the respondent was not bound by the errors in its discharge statement with respect to the second mortgage. However, the appellant is at liberty to argue in the Superior Court that the respondent’s failure to accept tender reduces the interest that can be charged or otherwise impacts the amount owing.

Given the Court’s decision to remit the applications back to the Superior Court, the substantial indemnity costs order was quashed.


Irps-Bleeker v. Van Gaalen, 2019 ONCA 592

[Tulloch, Roberts and Miller JJ.A.]

Counsel:

O. Niedzviecki and K. Dryla, for the appellant

A. Gibson, for the respondents Janny Van Gaalen, Executor of the Estate of Cor Van Gaalen, deceased, Realty Executives Platinum Limited, Andrew Wildeboer, Bill Wildeboer, Chris Van Berkel and Royal LePage RCR Realty

A. Powell, for the respondents Werner Ritgen, Fred Lobb, Rick Lobb and Royal LePage Heartland Realty Brokerage

FACTS:

This action arose out of the sale of a property owned by the appellant and her then-spouse. The home was sold on January 9, 2009. The appellant alleged that the respondent real estate agents improperly induced her to sign a counter-offer and presented the counter-offer to the purchaser against her instructions.

The appellant had previously commenced a claim against her family law lawyer on March 12, 2012 in respect of the allegedly improper sale. The appellant asserted that she only became aware that she had a claim against the respondent real estate agents in the case at bar during the examination for discovery of her family law lawyer on March 18, 2015.

The appellant commenced this action against the respondent real estate agents by notice of action on June 12, 2015 and subsequently issued a statement of claim on July 10, 2015.

However, the appellant obtained her real estate license on June 14, 2013 prior to which she took courses in real estate, including courses where she learned about the obligations owed by real estate agents to their clients.

The motions judge accepted that the appellant did not subjectively know of her claim against the real estate agents until March 18, 2015.  However, the motions judge also found that she knew that by January 9, 2009 the real estate respondents had “treated her unfairly”, and also that when she began taking the real estate courses, a reasonable person with her abilities and in her circumstances would seek out whether she had a legal remedy for what she saw as the unfair conduct of the respondents.  The appellant should have known of her claim before June 12, 2013, and thus her claim was statute barred.

ISSUES:

Was the appellant’s action against the respondents brought outside the allowable limitation period and thus barred by statute?

HOLDING:

Appeal dismissed.

REASONING:

Yes, the action was commenced outside the limitation period. The motions judge made no palpable and overriding errors of fact by finding that the appellant should have known of her claim before June 12, 2013, and in finding that the appellant’s claim was barred pursuant to s. 5(1)(b) of the Limitations Act.

The motions judge was entitled to make these factual findings based on the evidence before him. He applied the relevant legal principles to these findings and concluded that a reasonably prudent person with the abilities and in the circumstances of the appellant would have known more than two years before the she commenced her claim that there were grounds to believe her real estate agents had been negligent.


Dermann v. Baker, 2019 ONCA 584

[Feldman, Hourigan and Brown JJ.A]

Counsel:

D. Roncari, for the appellant

D. Reisler, for the respondents

FACTS:

The appellant was a passenger in a car that was involved in a collision with a car owned and operated by the respondents. The appellant brought a tort action against the respondents for injuries she sustained as a result of the collision. Liability was admitted, but the respondents disputed the extent of the appellant’s injuries.

Shortly before the original trial date, the respondents requested an adjournment. In exchange for the adjournment, the respondents agreed to pay a $20,000 non-refundable advance on the appellant’s recovery in addition to $5,000 for costs thrown away.

At trial, the jury awarded the appellant $50,000 in damages, reduced by a $37,983.33 statutory deductible pursuant to s. 267.5(7) of the Insurance Act, RSO 1990, c I.8.

Because the net amount of $12,016.67 was less than the $20,000 already paid in advance, the trial judge entered a nil judgment for the appellant, and ordered her to pay $61,801.56 in costs to the respondents.

ISSUES:

(1) Did the trial judge err in qualifying as experts certain witnesses called by the respondents?

(2) Did the trial judge err in his charge to the jury?

(3) Did the application judge err in his costs assessment?

holding:

Appeal dismissed.

REASONING:

(1) Did the trial judge err in qualifying as experts certain witnesses called by the respondents?

No. The appellant objected to three medical doctors as witnesses on the basis that the requirements of r. 53.03 of the Rules of Civil Procedure had not been complied with. That rule requires a party intending to call an expert witness to timely file the expert’s report containing certain information.

The doctors in question had each examined the appellant and prepared reports for use by the appellant’s SABS insurance provider.

The Court found that the trial judge correctly found that r. 53.03 did not apply to the witnesses called by the respondents. In Westerhof v. Gee Estate, 2015 ONCA 206, the court observed that the rule only applies to a specific class of expert witnesses. Namely, those who are “engaged by or on behalf of a party to provide opinion evidence in relation to a proceeding”. The Court emphasized that r. 53.03 does not apply to non-party experts as long as their opinions are limited to those formed based on observations made for a purpose other than litigation.

In this case, the three witnesses called by the respondents were clearly non-party experts, as they had been retained by a non-party to the litigation (the SABS insurance provider). Therefore, subject to the trial judge’s discretion, they were entitled to give expert opinion evidence within the confines of observations they made to prepare medical assessment reports for the insurance provider. As long as the witnesses remained within those confines, they could be qualified as experts without compliance with r. 53.03.

(2) Did the trial judge err in his charge to the jury?

No. The Court reiterated the principle from Berthiaume-Palmer v. Borgundvaag, 2010 ONCA 470, that a trial judge’s charge in a civil trial is not reviewed on a standard of perfection. A new trial will not be ordered even when there is a misdirection unless the error leads to substantial wrong or miscarriage of justice. A trial judge is not required to review all of the facts in a civil jury trial, and the charge should be evaluated within the greater context of the trial. The trial judge’s failure to recount a particular aspect of evidence favourable to the appellant did not render the charge as a whole deficient.

(3) Did the application judge err in his costs assessment?

No. The appellant submitted that the application judge erred in his costs assessment because he did not give effect to the cost consequences of an offer to settle under r. 49.10(2). The Court found that this rule was inapplicable to the circumstances of the case.

It was mentioned that before the adjournment, the respondents made an offer to settle the action for $150,000. This offer was never accepted. The appellant conceded that the trial judge entered the correct judgment account, which was nil, due to the advance payment made by the respondents. Section 120 of the Courts of Justice Act provides that a plaintiff who receives a payment from a defendant releases the defendant from liability to the extent of that payment.

However, the appellant submitted that the trial judge should not have considered the advance payment in his costs analysis. She submitted that she was successful against the respondents because she obtained a greater verdict than the statutory deductible. She also acknowledged that even before deducting the advance payment, her recovery was less than the respondents’ settlement offer. As a result, she relied on r. 49.10(2) for the position that she is entitled to be partially indemnified for costs she incurred until the date of the respondents’ settlement offer, and that the respondents are only entitled to be indemnified for costs they incurred after that date.

The Court found that under r. 49.10(2), the costs consequences flowing from a defendant’s offer to settle depend on the judgment obtained, not other amounts received during the litigation. However, as noted in S & A Strasser Ltd. v. Richmond Hill (Town) (1990), 1 O.R. (3d) 243, this rule has no application where the plaintiff does not recover any judgment. Due to the fact that the appellant obtained a $nil judgment, it was therefore not an error for the trial judge to consider the appellant to be in the same position for costs purposes as she would have been had the action been dismissed.


Buduchnist Credit Union Limited v. 2321197 Ontario Inc., 2019 ONCA 588

[Feldman, Hourigan and Brown JJ.A.]

Counsel:

B.L. Grossman, for the moving party/respondent

A. Winton and P. Underwood, for the responding parties/appellants

FACTS:

This is a motion to quash the appeal filed by the appellants from an order appoint a receiver over two pieces of real property pursuant to s. 243(1) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (“BIA), and s. 101 of the Courts of Justice Act, R.S.O., c. C.43 (“CJA”).

The appellants borrowed money for many years from the respondent, both in individual and corporate capacities. The order appointed a receiver over two properties, the family residence and the cottage of the individual appellant.

ISSUE:

(1) Does an appeal exist as of right from a receivership appointment order?

(2) Should leave to appeal be granted?

HOLDING:

Motion granted, appeal quashed.

REASONING:

(1) Does an appeal exist as of right from a receivership appointment order?

No. Both s. 243(1) of the BIA and s. 101 of the CJA authorize a court to appoint a receiver when it is “just or convenient to do so.” In Business Development Bank of Canada v. Astoria Organic Matters Ltd., 2019 ONCA 269, the court concluded that where an order is made pursuant to both s. 243 of the BIA and s. 101 of the CJA, the more restrictive appeal provisions in the BIA govern the rights of appeal and appeal routes.

In this case, the order expressly states that the appointment of the receiver is made pursuant to BIA s. 243(1) and CJA s. 101. Accordingly, the right to appeal the order and the appeal routes are those set out in the BIA.

According to Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, there is no appeal as of right under BIA ss. 193(a) or (c) from an order appointing a receiver.

The appellants argued that they have an appeal as of right under BIA s. 193(b), “if the order or decision is likely to affect other cases of a similar nature in the bankruptcy proceedings.” However, the Court found that according to cases like 2403177 Ontario Inc. v. Bending Lake Iron Group Ltd., 2016 ONCA 225, the jurisprudence has interpreted s. 193(b) as meaning that a right of appeal will lie where the decision in question will likely affect another case raising the same or similar issues in the same bankruptcy or proceeding. The Court went on to conclude that s. 193(b) has no application to this case.

As a result, the appellants require leave to appeal under BIA s. 193(e).

(2) Should leave to appeal be granted?

No. The principles guiding the consideration of a request for leave to appeal under s. 193(e) were set out in Pine Tree Resorts. The Court must look to whether the proposed appeal: (1) raises an issue that is of general importance to the practice in bankruptcy/insolvency matters or to the administration of justice as a whole; (2) is prima facie meritorious; and (3) would unduly hinder the progress of the bankruptcy/insolvency proceedings.

The Court quickly disposed of the first consideration, finding that the proposed appeal did not raise an issue of general importance. Rather, it concerned a very fact-specific dispute between two debtors and their creditor.

On the second consideration, the Court found that on the face of the application judge’s reasons, it was not apparent that the judge made any palpable and overriding error. The appellants had not demonstrated a prima facie meritorious appeal from the order.

Finally, regarding the third consideration, the Court noted that although the enforcement of the order against the family residence had been stayed for some time, the receiver had been reluctant to freely exercise its powers under the order to market and sell the cottage while the appeal is pending. The Court therefore concluded that an appeal would unduly affect the conduct of the receivership proceedings, at least in respect of the cottage.


Breen v. FCT Insurance Compant Ltd, 2019 ONCA 598

[Lauwers, Fairburn and Nordheimer JJ.A.]

Counsel:

A. Faith, J. Haylock and E. Carver, for the appellant

D. Morin and P. Reinitzer, for the respondent

FACTS:

In October 1989, a building permit for a cottage in the Township of Lake of Bays was issued and construction began. During the construction, the Township completed three inspections to which he found no issues. Six months following the last inspection, the Township’s Chief Building Official wrote to the owner of the cottage that, failing to reply, the Township would assume the project was complete and close its files. Over a year later, the Chief Building Official wrote to the owner again indicating that the Township considered construction to be completed, that the Township would advise the Assessment Commissioner to add the property to the tax roll, and that the Township had closed its file on the permit.

Mr. Breen purchased this cottage in 1999. The Breens accepted their conveyancing solicitor’s advice to not request a final inspection since the Building Department did not appear to be concerned as to whether or not the cottage had a final inspection. Before the closing date, Mr. Breen obtained a title insurance policy from FCT. In 2011, the Breens decided to renovate. In the course of preparing for the renovation, their contractor identified violations under the Building Code Act, 1992. An engineer was retained and he identified several significant structural issues that needed to be dealt with. Both the contractor and the engineer advised that a complete rebuild would need to be considered.

On February 26, 2014, Mr. Breen sent a notice of claim to FCT. On May 21, 2014, FCT denied coverage because it had learned that there was no open building permit, and that, instead, the Township had closed its file on the permit.

ISSUES:

Are the defects in the construction of the cottage covered by the provision providing coverage for unmarketable title?

HOLDING:

Appeal allowed.

REASONING:

No. The trial judge applied the principles from Macdonald v. Chicago Title Insurance Company of Canada, 2015 ONCA 842, to conclude that the Policy did provide coverage. The Court found that the trial judge erred in failing to recognize significant distinctions between the facts in this case and those in Macdonald. The Court reasoned that there are two fundamental differences between this case and Macdonald.

The first is the fact that Mr. Breen knew of the potential problem with the building permit process and the inspections (or lack thereof). Central to the conclusion in Macdonald was the fact that there was no reason for the purchasers, or their conveyancing solicitor, to know that construction had been undertaken without a building permit. In this case, the conveyancing solicitor knew that the cottage had been constructed pursuant to a building permit issued by the Township. The conveyancing solicitor also knew that there had been some inspections of the construction but no evidence that a final inspection had been conducted. Mrs. Breen was advised that they could ask the Township to conduct a final inspection prior to completing the purchase, but the solicitor thought it better to let matters lie as they were.

The second distinction is that in Macdonald, had the conveyancing solicitor known of the demolition of certain walls and conducted an investigation, the solicitor would have discovered that no building permit existed. That would then have alerted the solicitor to the fact that the demolition was done illegally. In Macdonald, their title was unmarketable because the previous owner failed to obtain the necessary municipal approval. In this case, however, the evidence is that, even if a final inspection had been conducted, that inspection would not have revealed the construction defects because they were hidden behind the walls that were already constructed and had passed inspection. The defects would not then be an issue regarding the marketability of the title, even under the broad meaning given to that term in Macdonald.

Further, the off-title search that Mr. Breen’s conveyancing solicitor did conduct revealed that there was a building permit for the construction of the cottage (unlike the situation in Macdonald). That off-title search not only would not have revealed the construction defects, but also would not have revealed any of the other deficiencies that Mr. Breen alleges were associated with the handling of the building permit by the Township, and the construction undertaken pursuant to that building permit. The purpose of title insurance is to protect against what off-title searches would reveal – and obviate the need for exhaustive and costly off-title searching – not to protect against defects that would not be revealed by such searches.


Bruyea v. Canada (Veteran Affairs), 2019 ONCA 599

[Lauwers, Fairburn and Nordheimer JJ.A.]

Counsel:

P. Champ, for the appellant

R. MacKinnon and S. Goudarzi, for the respondents

S. Kar, for the Attorney General of Ontario (by written submissions)

FACTS:

The appellant was a disabled veteran of the Canadian Forces. He published an article that analyzed and criticized the Liberal government’s plan for veteran affairs. The Minister of Veteran Affairs at the time, the respondent, published an article in response claiming the appellant was stating mistruths to serve his own agenda. The appellant brought this suit in Small Claims Court for defamation.

At the Small Claims Court, the respondent moved to dismiss the claim under s. 137.1 of the CJA. The deputy judge presiding over the motion granted the motion and dismissed the claim as the respondent’s remarks on matters of public interest. S. 137.1 was introduced to provide the courts with “a pretrial procedure designed to quickly and inexpensively identify and dismiss those unmeritorious claims that unduly entrenched on an individual’s right to freedom of expression on matters of public interest”.

The appellant brought this appeal claiming that a deputy judge of the Small Claims Court did not have jurisdiction to grant the motion under s. 137.1.

ISSUES:

Did the Deputy Judge have jurisdiction to grant a motion dismissing the claim under s. 137.1 of the CJA?

HOLDING:

Appeal allowed.

REASONING:

No. This was essential a question of statutory interpretation. Since the Small Claims Court is a creation of a statute, its jurisdiction, and the jurisdiction of the various persons who comprise it must be derived from that statute. The Court of Appeal looked at the wording of s. 137.1 of the CJA specifically makes reference to judges being able to grant such orders. The question was whether reference to judges also included deputy judges.

Since ‘judge’ or ‘deputy judge’ is not a defined term in the CJA, the Court turned to other sections of the Act. In multiple sections, authority is granted to both judges and deputy judges explicitly. The Court interpreted this to mean that where the legislature wanted to grant jurisdiction to deputy judges, they did so via explicit reference. If the term judge included deputy judges, specific reference to deputy judges in certain sections would be redundant and unnecessary.

The Court also discussed the important distinction between when a statue grants authority to a court versus when authority is granted to a judge. The court includes all persons who have jurisdiction to hear proceedings under the Act, whereas granting separate authority to judges specifically denotes an intention by the legislature to grant that specific authority to only an enumerated group of persons, namely judges. This intention must be respected and must be used to frame the decision at hand.

For the section in question, the reference is specifically to judges, and so with the above in mind, the Court found that the deputy judge did not have jurisdiction to grant the motion. The appeal was granted and the matter returned to Small Claims Court.


Murray v. Alatishe, 2019 ONCA 596

[Tulloch, Benotto and Huscroft JJ.A.]

Counsel:

J. Murray, in person

S. Fraser, appearing as amicus curiae

J. Blackburn, for the respondent

FACTS:

The appellant was first diagnosed with psychotic delusional disorder in 2013 and had been admitted to hospital on many occasions since then as a result of his mental condition. Since 2015, the appellant has been the subject of inpatient court-ordered assessment concerning various criminal charges for which he was found not criminally responsible. He was detained in hospital until his firs Review Board hearing. In 2016, the respondent psychiatrist found the appellant incapable of making treatment decisions with respect to various recommended medications prescribed to address his psychotic delusional disorders, persecutory type, and potential side effects. The appellant has a college diploma, was gainfully employed for many years in a position of significant responsibility, and had a long-term girlfriend, and had a variety of interests.

The appellant applied to the Consent and Capacity Board (the “Board”) for a hearing. He insisted on self-representing at the hearing and the Board permitted him to do so. The Board issued its decision and confirmed the respondent psychiatrist’s finding that the appellant was incapable of consenting to treatment with respect to medications pursuant to s. 4(1) of the Health Care Consent Act (“HCCA”). While the appellant was able to understand the information relevant to making a decision about treatment, he failed to acknowledge that he suffered from a mental condition and was thus unable to evaluate the potential benefits and risks of the proposed treatment.

Following the Board’s decision, the appellant retained counsel, who filed a notice of appeal to the Superior Court of Justice and submitted a factum on his behalf. The appellant then terminated his counsel and self-represented again on the Superior Court appeal. He presented as “articulate” and “engaging”, however the Superior dismissed the appellant’s appeal that found him incapable of consenting to treatment, ruling that the Board hearing was procedurally fair and the decision was reasonable.

ISSUES:

(1) Was the Consent and Capacity Board hearing procedurally unfair?

(2) Was the Consent and Capacity Board decision unreasonable

(3) Was the appellant’s counsel who represented him during his appeal to the Superior Court ineffective?

HOLDING:

Appeal dismissed.

REASONING:

(1) No, the Consent and Capacity Board hearing was not procedurally unfair. Section 4(1) of the HCCA outlines a two-step test for capacity to consent to treatment. First, a person must be able to understand the information that is relevant to making a treatment decision. Second, a person must be able to appreciate the reasonably foreseeable consequences of the decision. This second element requires a person to be able to apply the relevant information to her own circumstances and to be able to weigh the foreseeable risks and benefits of a decision or lack thereof.

Amicus submitted that the fact that the appellant was unassisted by counsel made it incumbent on the Board to ensure he understood the two-part test and they failed to do so. This argument was rejected by the Court. The Board’s failure to explain the two-part test to the appellant did not undermine the appellant’s ability to know the case he had to meet. The Board provided the appellant with a summary which clearly outlined the two-part test and how the respondent’s evidence applied to it. The appellant asserted that he was given insufficient time review it, however the appellant stated at the hearing that “everyone’s had a chance to go over [the document]” and also quoted from the summary in a question in cross-examination. Additionally, the responded outlined the two-part test in his opening submissions. He restated and explained the test again when the appellant cross-examined him. In these circumstances, the Board was not required to take additional steps to ensure the appellant understood the legal test.

Finding that the appellant was able to adequately review the Board’s summary document led the Court to reject the argument by amicus that the Board failed to comply with s. 8 of the SPPA. The wording of s. 8 does not require consideration of whether incapacity put the good character, propriety of conduct or competence of the appellant at issue. Even if it did, the Board still satisfied its obligations under s. 8 as the appellant was able to adequately review the document prior to the hearing and thus received reasonable information of the respondent’s allegations before the hearing commenced.

(2) No, the Consent and Capacity Board decision was not unreasonable. The standard of review of the Board’s decision is reasonableness. Absent an error of law, the Board’s decision is owed considerable deference on appeal. The Board made no legal errors and reasonably concluded that the appellant was incapable with respect to treatment. The Board correctly outlined the two-part test for capacity under s. 491) of the HCCA and appropriately applied it to the facts. The appellant did not meet the second step of the test as he was unable to apply the relevant information to his circumstances to weigh the foreseeable risks and benefits of a decision.

While the Court found the appellant to be intelligent, he was unable to recognize he was affected by a mental condition and was unlikely to recognize the potential benefits of treatment even if he did have rational concerns over side effects. The appellant’s evidence was that he was “completely fine”. Accordingly, it was reasonable for the Board to accept the respondent’s evidence that the appellant was unable to appreciate the consequences of his decision because he was unable to appreciate the potential benefits of the treatment.

(3) No, the appellant was adequately assisted by counsel. The Court admitted considerable fresh evidence provided by the appellant in order to evaluate his ineffective assistance of counsel claim. Amicus submitted the appellant was adequately assisted, and pointed out that the appellant’s counsel was retained for a very limited purpose after the Board’s decision was rendered and before the appeal to the Superior Court.

The Court was not persuaded that counsel’s conduct was ineffective. There was no prejudice to the appellant. He was able to present his arguments to the Superior Court, and while he claims he was not advised he could present fresh evidence at that hearing he presented ample fresh evidence at this appeal.

On the topic of fresh evidence, the Court held that its admission would not have affected the result. A court reviewing a decision of the Consent and Capacity Board is not concerned with the patient’s present mental capacity. Instead, the focus of the appeal is the reasonableness of the Board’s finding in relation to the patient’s capacity at the time of the hearing.


Stockey v. Grant, 2019 ONCA 597

[Huscroft, Trotter and Zarnett JJ.A.]

Counsel:

R. L. Gilliland, for the appellant

I. K. Latimer, for the respondents

FACTS:

The appellant appealed an order dismissing two related proceedings and striking out his statement of defence in a third related proceeding, which arose out of an aborted real estate transaction in 2004. The appellant commenced two actions against the respondent (CV-06-2644-00 and 615/08), as well as a lien application (85/11). The respondent then also commenced an action against the appellant (390/08). Over the course of the case’s history, the appellant also accumulated many cost orders.

In March 2018, the respondent brought a motion to strike out the appellant’s statement of defence (390/08) and to dismiss one of the appellant’s actions (CV-06-2644-00). Action 615/08 and the lien application (85/11) were not part of this proceeding.

The Motion Judge stated that the respondent would be granted the relief sought if the appellant did not pay his outstanding costs orders within 60 days. The appellant did not make the 60-day deadline, but instead attempted to make the payment of the principal amount owing (excluding interest) one week later. The appellant’s bank draft was received by the respondent’s counsel, but it was not cashed.

The appellant requested that the order be set aside, however the request was denied. The judge held that while a trial on the merits is always preferred, the appellant had many opportunities to pursue his case and he was not convinced that any further opportunities to the appellant would continue to result in delay. The judge’s order was to cover both actions 390/08 and 615/08.

The appellant however submits that 615/08 was not the subject of the order and therefore should not have been dismissed. Further, the appellant argues it would be unfair to dismiss the proceedings because he had substantially complied with the costs order, albeit one week late; the parties were on the eve of trial; he had been unwavering in his desire for a trial on the merits; he was self-represented; and he had some evidence for his tardiness (i.e., medical issues).

The respondent submitted that the judge did not err, as the appellant has brought many motions and has been the cause of much delay throughout the long history of the case. Further, restoring the appellant’s action would only result in further delay.

ISSUES:

Did the Judge err in the dismissal of the appellant’s action?

HOLDING:

Appeal allowed (subject to certain conditions being satisfied).

REASONING:

The Court held that the appeal must be allowed and the judge erred in the dismissal of the plaintiff’s action. The dismissal of the 615/08 action was done without advance notice to the appellant and that action was not part of the initial proceedings commenced by the respondent’s motion.

In regards to the dismissal of action CV-06-2644-00, the Court held that while the appellant did miss a significant deadline, he had tendered payment for all costs orders made against him and is determined to have the case decided on its merits. The court then affirmed that a trial on the merits is always preferred. The Court further stated that it made little sense to restore 615/08 alone, as the three proceedings relate to the same subject matter. By allowing 615/08 to proceed alongside 390/08 with the appellant’s statement of defence struck out may compromise the presiding judge’s ability to adjudicate this dispute on the merits.

The Court held that the appellant’s actions (CV-06-2644-00 and 615/08) should be restored, and the order striking his statement of defence in 390/08 set aside. Further, the Court held that the costs must be paid by the appellant, and directed that the appellant pay into the Superior Court of Justice to the credit of action 390/08 the total sum of $30,233.18 within 30 days of the date of these reasons. If these conditions are satisfied, the appeal is allowed and the order will be set aside set in its entirety. However, if the conditions are not satisfied, the appeal is dismissed.


SHORT CIVIL DECISIONS

Browne v. Browne, 2019 ONCA 580

[Feldman, Hourigan and Brown JJ.A.]

Counsel:

G. Browne, self-represented

S. Browne, self-represented

Keywords: Divorce proceedings, Custody order, Permission to leave the country, Change in the status quo, Motion granted


Holly v Greco., 2019 ONCA 579

[Feldman, MacPherson and Simmons JJ.A.]

Counsel:

M. Fordjour, for the appellant

J.B.C. Edney, for the respondent

Keywords: Family Law, Child Support, Adjournment, Costs


ACT Greenwood Ltd. v. Desjardins-McLeod, 2019 ONCA 585

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

Counsel:

R. Harrison and Z. Levy, for the appellant

J. Necpal and A. Hassan, for the respondent

Keywords: Contracts, Costs


CRIMINAL DECISIONS

R. v. Major, 2019 ONCA 578

[Tulloch, van Rensburg and Harvison Young JJ.A.]

Counsel:

C. Halfyard, for the appellant

J. A. Morische, for the respondent

Keywords: Criminal Law, Driving with a Suspended License, Impaired Driving, Possession of a Controlled Substance for the Purpose of Trafficking, Unlawful Detention or Arrest, Road Safety Purpose, Criminal Investigation, Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 55.2(1), 216(1), 217(2) Canadian Charter of Rights and Freedoms, ss. 8, 9, R v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 255, R. v. Ladouceur, [1990] 1 S.C.R. 1257, Brown v. Durham Regional Police Force (1998), 43 O.R. (3d) 223 (C.A.), R. v. Grant, 2009 SCC 32, R. v. Sandhu, 2011 ONCA 124, R. v. Nolet, 2010 SCC 24, R. v. Humphrey, 2011 ONSC 3024


R. v. Grant, 2019 ONCA 577

[Appeal Book Endorsement, Charter of Rights and Freedoms, s. 11(b)]

Counsel:

H. Akin, for the moving party

G. Singh, for the responding party

Keywords: Criminal Law, Appeal Book Endorsement, Charter of Rights and Freedoms, s. 11(b)


R. v. Bajich, 2019 ONCA 586

[Feldman, van Rensburg and Huscroft JJ.A.]

Counsel:

M.J. Webb, for the appellant

D. Lumba, for the respondent

Keywords: Criminal Law, Possession of Drugs for the Purpose of Trafficking; Reasonable Grounds for Arrest, Totality of Circumstances, Uneven Scrutiny of Evidence; Assessment of Witness Credibility; Confidential Informants; Standard of Review for Reasonable Grounds for Arrest; Interpretation of ‘for the Purposes of Trafficking’; Indicia of Trafficking; R. v. Quilop, 2017 ABCA 70, 49 Alta. L.R. (6th) 213; R. v. Storrey, [1990] 1 S.C.R. 241; R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63; R. v. Debot, [1989] 2 S.C.R. 1140; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527; R. v. Anang, 2016 ONCA 825, 367 C.R.R. (2d) 289; R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742; R. v. Labelle, 2016 ONCA 110; R. v. O.N., 2017 ONCA 923; R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.); R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000; R. v. Lohrer, 2004 SCC 80


R. v. Bhagwandat, 2019 ONCA 589

[Rouleau, Tulloch and Fairburn JJ.A.]

Counsel:

L. Bhagwandat, self-represented

N. Gorham, duty counsel

M. Fawcett, for the respondent

Keywords: Appeal Book Endorsement, Mental Disorder, Unequivocal Plea


R. v. Dean, 2019 ONCA 587

[Rouleau, Tulloch and Fairburn JJ.A.]

Counsel:

A. Dean, in person

P. Norton, duty counsel

A. Hotke, for the respondent

Keywords: Appeal Book Endorsement, Dangerous Driving, Recognizance, Motor Vehicle Collision, Immigration Consequences, Joint Submission, Fresh Evidence


R. v. J.B., 2019 ONCA 591

[Rouleau, Watt and Huscroft JJ.A.]

Counsel:

R. Litkowski, A. Bryant and M. Huberman, for the appellant

K. Rawluk, for the respondent

Keywords: Criminal Law; Jury Trials; Errors in Jury Instructions; Failure to Incorporate Evidence into the Jury Instructions; Failure to Relate Evidence to the Essential Elements of the Charge; Rules of Evidence; Accused’s Testimony; Out-of-Court Statements; Intrinsic Value as Substantive Evidence vs Impeachment of Credibility; Ability of Juries to Review Materials not in Evidence; Obligations of a Trial Judge in Responding to In-Deliberation Jury Requests; Unbalanced and One-Sided Review of Evidence; ‘Rushed Verdicts’; Exhortations to the Jury; R. v. Davison, DeRosie and MacArthur (1974), 20 C.C.C. (2d) 424 (Ont. C.A.); R. v. Fischer, 2005 BCCA 265; R. v. Groves, 2013 BCCA 446; R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.); R. v. S. (W.D.), [1994] 3 S.C.R. 521; R. v. De Bellefeuille (1994), 39 B.C.A.C. 276 (B.C. C.A.); Olbey v. R., [1980] 1 S.C.R. 1008; R. v. Ferguson (2000), 142 C.C.C. (3d) 353 (Ont. C.A.); R. v. Ferguson, 2001 SCC 6; R. v. R.M.G., [1996] 3 S.C.R. 362; R. v. Sims, [1992] 2 S.C.R. 858; Azoulay v. The Queen, [1952] 2 S.C.R. 495; R. v. Royz, 2009 SCC 13; Cluett v. The Queen, [1985] 2 S.C.R. 216


R. v. Lewis, 2019 ONCA 590

[Rouleau, Tulloch and Fairburn JJ.A.]

Counsel:

J. Myers, for the appellant

D. Garg, for the respondent

Keywords: Appeal Book Endorsement, Sentencing, Pre-Sentence Custody, Credit


R. v. Rajavadivel, 2019 ONCA 595

[Rouleau, Tulloch and Fairburn JJ.A.]

Counsel:

M. Bojanowska, for the appellant

M. Fawcett, for the respondent

Keywords: Appeal Book Endorsement


R. v. Salama, 2019 ONCA 594

[Rouleau, Tulloch and Fairburn JJ.A.]

Counsel:

No one appearing for the appellant

D. Garg, for the respondent

Keywords: Appeal Book Endorsement


R. v. Treleaven, 2019 ONCA 593

[Rouleau, Tulloch and Fairburn JJ.A.]

Counsel:

R. Treleaven, self-represented

M. Smith, for the appellants

B. Vandebeek, duty counsel

D. Garg, for the respondent

Keywords: Appeal Book Endorsement, Gladue Report, Fresh Evidence, Sentencing


ONTARIO REVIEW BOARD

Shepherd (Re), 2019 ONCA 582

[Doherty, MacPherson and Benotto JJ.A.]

Counsel:

J. Berger, for F. Shepherd

K. Rawluk, for the Crown

J. Zamprogna, for the Hospital (Southwest Centre)

Keywords: Ontario Review Board, Criminal Law, Mental Illness, Detention, Conditional Discharge, Public Safety


Conway (Re), 2019 ONCA 583

[Doherty, MacPherson and Benotto JJ.A.]

Counsel:

S. E. Fraser, for P. Conway

C. Harper, for the Attorney General of Ontario

J. Blackburn, for the person in charge, St. Joseph’s Healthcare Hamilton

Keywords: Ontario Review Board, Criminal Law, Sexual Assault, Assault, Uttering Death Threats, Restricted Liberty, Public Safety, Evidence, Procedural Fairness, Detention, Absolute Discharge, Conditional Discharge, Canadian Charter of Rights and Freedoms, ss. 1, 7, 12, Re LePage 2019 ONCA 363


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…

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.