COURT OF APPEAL SUMMARIES (JUNE 25 – 29)

Good Morning,

The following are our summaries of this week’s civil decisions of the Ontario Court of Appeal.

First, I’d like to congratulate our very own Eric Golden on successfully representing the moving party receiver in B&M Handelman Investments Limited v Drotos, 2018 ONCA 58. The case dealt with the limited circumstances under which an appeal can be brought, or leave to appeal could be sought, from a sale approval and vesting Order under the Bankruptcy and Insolvency Act, with a focus on whether there was any duty on the Receiver to consult with fulcrum creditors on its marketing and sale processes relating to various types of real estate properties.

Other topics covered this week included the validity of a will of someone with chronic alcoholism, the Court of Appeal’s jurisdiction to hear an appeal from an order dismissing an application for habeas corpus in the immigration law context, zoning bylaw interpretation, easements, summary judgment in the commercial lease context, and family law (termination of support and contempt).

For our readers practicing in criminal law, there were an unusually high number of criminal decisions this week, particularly murder cases.

I hope everyone is enjoying their Canada Day long weekend!

John Polyzogopoulos

Blaney McMurtry LLP

jpolyzogopoulos@blaney.com

Tel: 416 593 2053

https://www.blaney.com/lawyers/john-polyzogopoulos

Table of Contents

B&M Handelman Investments Limited v Drotos, 2018 ONCA 581

Keywords: Bankruptcy and Insolvency, Receiverships, Vesting Orders, Civil Procedure, Appeals, Stay Pending Appeal, Leave to Appeal, Bankruptcy and Insolvency Act, ss 193(b), 193 (c), 193(e), Royal Bank of Canada v. Soundair Corp. (1991), 4 O.R. (3d) 1 (C.A.), 2403177 Ontario Inc. v. Bending Lake Iron Group Ltd., 2016 ONCA 225, Downing Street Financial Inc. v. Harmony Village-Sheppard Inc., 2017 ONCA 611, Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, Impact Tool & Mould Inc. (Receiver of) v. Impact Tool & Mould Inc. (Trustee of), 2013 ONCA 697, Ravelston Corp. (Re), [2005] O.J. No. 5351 (C.A.), Regal Constellation Hotel Ltd. (Re) (2004), 71 O.R. (3d) 355 (C.A.)

Berg v. Marks, 2018 ONCA 595

Keywords: Real Property, Easements, Civil Procedure, Simplified Procedure, Procedural Fairness, Self-Represented Litigants, Fresh Evidence, Rules of Civil Procedure, Rule 76.03(3)

Hutchinson v. Norfolk (County), 2018 ONCA 592

Keywords: Real Property, Municipal Law, Zoning By-laws, Permitted Uses, Accessory Use, Interpretation

McKinnon v. McKinnon, 2018 ONCA 596

Keywords: Family Law, Spousal Support, Child Support, Variation, Material Change in Circumstances, Spousal Support Advisory Guidelines, Evidence, Admissibility, Settlement Communications,Civil Contempt, Parreira v Parreira, 2013 ONSC 6595, Carey v Laiken, [2015] 2 S.C.R. 79, Family Law Rules, O. Reg. 114/99, Rule 18(8)

Canadian Language Leadership Centre – CLLC Inc. v. 20 Eglinton Commercial Centre Inc., 2018 ONCA 604

Keywords: Real Property, Contracts, Commercial Leases, Interpretation, Standard of Review, Extricable Errors of Law, Civil Procedure, Summary Judgment, Genuine Issues Requiring Trial

Dujardin v Dujardin, 2018 ONCA 597

Keywords: Wills and Estates, Wills, Validity, Testamentary Capacity, Expert Witness, Costs, Succession Law Reform Act, RSO 1990, c S 26, Section 4

Wang v. Canada (Public Safety and Emergency Preparedness), 2018 ONCA 605

Keywords: Immigration Law, Habeas Corpus, Practice and Procedure, Appeals, Jurisdiction, Habeas Corpus Act, s. 8(1), Courts of Justice Act, s. 6(1)(b)

For short civil decisions click here

For criminal, provincial offences, and Ontario Review Board decisions click here

Civil Decisions

B&M Handelman Investments Limited v Drotos, 2018 ONCA 581

[Paciocco, JA (Motion Judge)]

Counsel:

Eric Golden, for the moving party, Rosen Goldberg Inc.

James Zibarras, Leslie Dizgun, and Caitlin Fell, for the responding party World Finance Corporation

David Preger, for the responding party, B&M Handelman Investments Limited

Adam J. Wygodny, for the responding party, Money Gate Investment Corp.

Miranda Spence, for the purchaser, FPK

Keywords: Bankruptcy and Insolvency, Receiverships, Vesting Orders, Civil Procedure, Appeals, Stay Pending Appeal, Leave to Appeal, Bankruptcy and Insolvency Act, ss 193(b), 193 (c), 193(e), Royal Bank of Canada v. Soundair Corp. (1991), 4 O.R. (3d) 1 (C.A.), 2403177 Ontario Inc. v. Bending Lake Iron Group Ltd., 2016 ONCA 225, Downing Street Financial Inc. v. Harmony Village-Sheppard Inc., 2017 ONCA 611, Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, Impact Tool & Mould Inc. (Receiver of) v. Impact Tool & Mould Inc. (Trustee of), 2013 ONCA 697, Ravelston Corp. (Re), [2005] O.J. No. 5351 (C.A.), Regal Constellation Hotel Ltd. (Re) (2004), 71 O.R. (3d) 355 (C.A.)

Facts:

In three unrelated proceedings, the Court appointed a Receiver over several debtors that owned several properties, including CD, who held title to a vacant home on Birchmount Road in Toronto. The assets of the various debtors included several different properties, including commercial, industrial, vacant lots, an inn, and residential homes in Picton, on the Bridle Path and on the Scarborough Bluffs (the latter being the CD’s property on Birchmount Avenue).

Pursuant to the terms of the Appointment Order (based on the Commercial List Model Order), the Receiver proceeded to list on MLS and sell several of the Properties pursuant to the Appointment Order, including CD’s Birchmount property.  The properties were all sold at prices over, or in the range, of appraisals the Receiver had commissioned for each property from certified appraisers.

The Appointment Order contains the usual Model Order clauses granting the Receiver the power to engage consultants and appraisers, market the property, and negotiate the terms and conditions of sale. The Appointment Order also permits the Receiver to report to, meet with, and discuss with affected Persons (as defined in the Appointment Order) “as the Receiver deems appropriate” and to share information subject to confidentiality terms. It permits the Receiver to sell the property with court approval and to apply for a vesting order to convey the property to a purchaser free and clear of encumbrances.

With respect to the CD matter, the Receiver was appointed on April 13, 2018.  CD’s Birchmount property is a 12,900 square foot house on the Scarborough Bluffs that was vacant, in need of repairs and unfit for occupancy. The Receiver’s appraisal came is at $3.2 million, and after reviewing various listing proposals the Receiver entered into a 90-day listing agreement with a listing broker on April 30, 2018 at a sale price of $3.8 million.  Subject to court approval, the Receiver accepted an offer for $3.45 million made May 8, 2018, which would result in a shortfall to the second mortgagee who was the creditor who moved for the appointment of the receiver.  The sale of CD’s Birchmount property was scheduled to close on June 11, 2018.

On the Receiver’s motion for a sale approval and vesting Order for five of the properties (including CD’s Birchmount property), each involving different debtors and mortgagees (other than the mortgagees who moved to appoint the receiver), the same law firm (Brauti Thorning Zibarras, or “BTZ”) was representing fulcrum creditors with respect to four of the properties being sold (not including CD’s Birchmount property, and was also representing the first mortgagee and third mortgagee (World Finance Corporation) over CD’s Birchmount property. BTZ‘s main position was that the Receiver failed to consult its clients about the sale and marketing process for all five properties, as well as the listing price.

Justice Dunphy issued the requested Order for each property on June 1, 2018 (the “Dunphy Order”), holding that the test in Royal Bank of Canada v. Soundair Corp. (1991), 4 O.R. (3d) 1 (C.A.) had been satisfied.

Justice Dunphy held that the Receiver’s business judgment had been applied and informed by the appraisals responsibly sought, and the properties sold for over the appraised value. The Receiver did not act too quickly. The MLS marketing process was designed to obtain offers as soon as reasonably practicable and multiple offers were received. There was no requirement for the Receiver to consult with BTZ’s clients on the marketing process and give them a greater degree of input, as the interests of all of the parties is the same. Their interest is in obtaining the highest and best price reasonably available.

On June 7, 2018, World Finance served and filed a Notice of Appeal seeking to appeal the Dunphy Order to a panel of the Court of Appeal, but only relating to CD’s Birchmount property, on the basis that it could do so as of right pursuant to subsections 193(b) and 193 (c) of the Bankruptcy and Insolvency Act (“BIA”) (and in which case the Dunphy Order would be automatically stayed). If World Finance could not fit its appeal into subsections 193(b) or s. 193(c) of the BIA, it sought as alternate relief in its Notice of Appeal leave to appeal pursuant to s. 193(e) of the BIA, but it did not seek a stay of the Dunphy Order in its Notice of Appeal, or otherwise move for a stay.

World Finance argued that its proposed appeal was prima facie meritorious. It contended that the Receiver failed to consider World Finance’s interests, and that the process used was unfair because the Receiver did not consult with World Finance on the marketing process, or the price at which the Birchmount Property would be listed. Dunphy J. misapplied the Soundair principles in finding otherwise and erred in law (i) when finding that the Receiver had considered World Finance’s interests by assuming that all parties had the same interest, namely, obtaining a higher sale price and (ii) finding the process to have been fair by considering irrelevant or improper explanations for the Receiver’s failure to consult with World Finance about the marketing process and listing price.

World Finance appealed notwithstanding that it stood to not recover anything under its mortgage because the second mortgagee (the moving creditor with respect to the Appointment Order over CD) was already incurring a shortfall.

Given the urgency because of the closing date of the sale of CD’s Birchmount Property (originally June 11, 2018 and extended to June 14, 2018), the Receiver brought a motion for advice and directions before a single judge of the Court of Appeal, taking the position that World Finance required leave to appeal because its appeal did not fall within subsections 193(b) or s. 193(c) of the BIA, that leave should not be granted, that the Closing was not stayed, and seeking to approve the closing on June 14, 2018.  World Finance sought an adjournment, but the Court of Appeal denied the request.

Issues:

1. Whether there was an appeal as of right to the Court of Appeal pursuant to subsection 193(b) of the BIA because the Dunphy Order is likely to affect other cases of a similar nature in the bankruptcy proceedings, and subsection 193 (c) of the BIA because the property involved in the appeal exceeds in value $10,000.00?

2. If not, whether leave to appeal was required and should be granted under section 193(e) of the BIA?

3. Did the Receiver’s sale and marketing process satisfy the test in Royal Bank of Canada v. Soundair Corp. (1991), 4 O.R. (3d) 1 (C.A.), [1991] O.J. No. 1137?

4. Was there a duty on the Receiver to consult with BTZ’s clients about the sale and marketing process for all five properties, as well as the listing price?

Holding:

There was no appeal as of right under either subsections 193(b) or 193(c) of the BIA. Leave to appeal was required under subsection 195(e) of the BIA, but should not be granted.

Reasoning:

  1. Appeal of as right

There was no appeal as of right. Reliance on subsection 193(c) would not have been tenable given World Finance’s emphasis on process-related errors (2403177 Ontario Inc. v. Bending Lake Iron Group Ltd., 2016 ONCA 225, 396 D.L.R. (4th) 635, at para. 54).

Subsection 193(b) should not be interpreted in the expansive manner that World Finance submits.  As per Downing Street Financial Inc. v. Harmony Village-Sheppard Inc., 2017 ONCA 611, 49 C.B.R. (6th) 173, at para. 20, there is a “clear direction in recent case law in favour of a narrow construal of the rights to appeal in ss. 193(a) to (d) of the BIA”.  This “narrow construal” is incompatible with World Finance’s position, and there are good reasons for it.

Furthermore, in 2403177 Ontario Inc. v. Bending Lake Iron Group Ltd., 2016 ONCA 225, 396 D.L.R. (4th) 635, at para. 49, Brown J.A. explained that initially the BIA provided only for appeals as of right. The inclusion in 1949 of a leave to appeal provision removed the need for a broad interpretive approach to ss. 193(a) to (d). More importantly, the appeal as of right provisions should be read harmoniously with the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, which requires leave for all appeals from orders made under the statute. Reading s. 193’s appeal as of right subsections narrowly avoids disharmony between the two insolvency regimes.  Also, s. 193(b) applies where there is a real dispute that is likely to affect another case in the same bankruptcy proceedings.  The Order that World Finance proposes to appeal was made in one receivership proceeding and pertains only to that proceeding. The fact that the outcome of the proposed appeal could affect cases involving BTZ’s clients arising out of other receivership proceedings is insufficient to give rise to an appeal as of right. There is no appeal as of right in this case under s. 193(b).

Second, this outcome does not operate to unfairly deny World Finance an opportunity to challenge the Dunphy Order that it says will likely affect other cases it will be involved in. This is because a party whose interests are likely to be affected in another case of a similar nature arising in other bankruptcy proceedings can move to protect those interests by seeking leave to appeal, where an appeal as of right is not available. Where leave is warranted in the circumstances, it will be granted.

  1. Leave to appeal

The granting of leave to appeal under s. 193(e) is discretionary and contextual. The test for leave described by Blair J.A. in Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, 115 O.R. (3d) 617, at para. 29, was adopted by a panel of the Court of Appeal in Impact Tool & Mould Inc. (Receiver of) v. Impact Tool & Mould Inc. (Trustee of), 2013 ONCA 697, at para. 3. The proposed appeal must:

  1. a) raise an issue that is of general importance to the practice in bankruptcy/insolvency matters or to the administration of justice as a whole, and is one that this [c]ourt should therefore consider and address;
    b) be prima facie meritorious; and
    c) [not] unduly hinder the progress of the bankruptcy/insolvency proceedings.

As Doherty J.A. noted in Ravelston Corp. (Re), [2005] O.J. No. 5351 (C.A.), 24 C.B.R. (5th) 256, at para. 28, the leave inquiry should begin with some consideration of the merits of the proposed appeal, for if the appeal cannot possibly succeed, “there is no point in granting leave to appeal regardless of how many other factors might support the granting of leave to appeal.”

World Finance’s grounds of appeal are not legitimately arguable points. They do not present a realistic possibility of success and therefore lack prima facie merit.

First, there is no reasonable prospect that fault could be found in Dunphy J.’s conclusion that, in seeking the highest and best price reasonably available, the Receiver was considering the shared interest of all of the parties. World Finance’s argument that, as a fulcrum creditor, it had unique interests in the marketing strategy and list price that were not considered has no traction. Marketing strategy and list price are means to an end, namely, achieving the highest and best price reasonably available, the very thing that Dunphy J. considered.

There was no requirement to consult BTZ’s clients on the marketing and sale process, but even if there was  Dunphy J. was clearly entitled to come to the decision he did, for the reasons he expressed.  Courts exercise considerable caution when reviewing a sale by a court-appointed receiver and will interfere only in special circumstances.

World Finance’s claim that Dunphy J. considered irrelevant and improper explanations for the Receiver’s failure to consult directly with World Finance about the marketing and listing price for the Birchmount Property is also without merit.

World Finance did not present any authority for the proposition that a receiver has a positive obligation to consult with subsequent mortgagees as to a particular sales process and the listing price.

Furthermore, the Appointment Order in this case expressly permits the Receiver to report to, meet with, and discuss with affected Persons “as the Receiver deems appropriate” and to share information subject to confidentiality terms. The Receiver had discretion under the order to proceed as it did.

Moreover, even if a general duty to consult applied in this case, Dunphy J. was clearly entitled to come to the decision he did, for the reasons he expressed. In this case there was confusion as to the secured creditors’ true identities and who represented their interests. There were also fraud allegations at play, which explained why the Receiver was not more proactive in its dealings with certain creditors. Moreover, those creditors previously showed a low level of interest in seeking to shape the process. In these circumstances, Dunphy J. found that making the appraisals available to those creditors who chose to consult them was sufficient.

None of these factors are irrelevant or improper considerations. Dunphy J. was entitled to consider them. As Blair J.A. pointed out in Regal Constellation Hotel Ltd. (Re) (2004), 71 O.R. (3d) 355 (C.A.), [2004] O.J. No. 2744, at para. 23, courts exercise considerable caution when reviewing a sale by a court-appointed receiver and will interfere only in special circumstances. Moreover, deference is owed to the decision Dunphy J. made.

Finally, World Finance’s proposed appeal lacks merit for the simple reason that even if CD’s Birchmount Property were to sell for the amount World Finance claims it could have achieved, World Finance would still receive nothing. World Finance’s process-based complaint is therefore an idle appeal. There is no material wrong it can complain of.

Even if World Finance’s proposed appeal had prima facie merit, leave to appeal, would still have been denied, as neither of the other two leave to appeal requirements are satisfied.

World Finance’s proposed appeal does not raise an issue that is of general importance to the practice in bankruptcy matters or to the administration of justice as a whole. It is a fact-specific dispute about the propriety of this particular sale transaction.

Granting leave to appeal would also unduly hinder the bankruptcy proceeding. If the sale was delayed, additional interest and costs payable on the first mortgage would have continued to accrue, serving only to further denude the second mortgagee’s position.

Moreover, the agreement of purchase and sale provided specific timelines for the obtaining of court approval and for the closing of the sale. It permitted postponement of the closing date for only 60 days after the original closing date. The sale transaction was originally scheduled to close on June 11, 2018 and was postponed until June 14, 2018. If leave to appeal had been granted, the additional delay required for the disposition of the appeal could have resulted in the loss of this transaction.

Berg v. Marks, 2018 ONCA 595

[Pepall, van Rensburg and Paciocco JJA]

Counsel:

A Rouben, for the appellant

EO Gionet and JA Valler, for the respondents

Keywords: Real Property, Easements, Civil Procedure, Simplified Procedure, Procedural Fairness, Self-Represented Litigants, Fresh Evidence, Rules of Civil Procedure, Rule 76.03(3)

Facts:

The appellant and the respondents are neighbours. A laneway runs between the two properties. At the end of the laneway lies a catch basin that connects to a municipal storm sewer.  The catch basin was built in approximately 1980.

The appellant owns the laneway, but the respondents have a right of way “in, over and upon” the laneway. It is undisputed that the respondents have a right of way for ingress and egress to their property. What is in dispute is the extent of the easement.

The parties had been living in a state of peaceful co-existence until 2006, when the appellant’s partner prevented one of the respondents from attempting to repair parts of the catch basin. Things got worse in 2010 when the appellant poured a concrete pad over the catch basin rendering it inoperable. The respondents’ property experienced flooding.

In 2011, the respondents commenced an action against the appellant under the Simplified Procedure seeking a declaration of entitlement to a right in, over, and upon and damages for the cost of reinstating the catch basin, the cost of repair work for the basement apartment, and loss of rental income.

The trial judge found that the appellant intended to make the catch basin inoperable for surface drainage from the respondents’ property and that he substantially interfered with the respondents’ right to use the laneway. She granted a declaration that work be performed to reinstate the catch basin so that the drainage function was restored and a declaration that the appellant not block the laneway. She also awarded $211,491.60 in damages to the respondents. As the action was commenced as a Simplified Procedure action, the damages were limited to $100,000.

Issues:

(1) Did the trial judge err by failing to provide the self-represented appellant with adequate assistance to ensure procedural fairness?

(2) Did the trial judge err in failing to recognize that the criteria for establishment of the right of way was not met?

(3) Should fresh evidence be admitted?

Holding: Appeal dismissed.

Reasoning:

(1) No. The trial judge tried to assist the appellant. The court rejected the appellant’s arguments of procedural unfairness:

(i) The appellant argued that the name of one of the respondent’s witnesses, Mr. F, was omitted from the respondents’ Simplified Procedure form of affidavit of documents, no “will-say” statements were exchanged, and the trial judge relied on Mr. F’s impermissible testimony. The court found that the appellant suffered no prejudice from this omission. The appellant knew Mr. F was a person who might reasonably be expected to have knowledge of the matters in issue, as she had originally included him in her Affidavit of Documents.

The trial judge cannot be faulted for failing to deal with the absence of any will-say statements because this was never mentioned at trial and she did not possess the Master’s order that addressed this issue. There would have been no reason for the trial judge to raise this issue with the appellant, and furthermore, the appellant herself had also not delivered any will-say statements.

The trial judge did not improperly rely on hearsay evidence from Mr. F. The witness testified on his personal observations and discussions in the drafting and registration of the easement; his involvement with the construction of the catch basin; and his personal experience with the laneway.

(ii) The appellant also asserted that the respondents failed to undertake the work ordered by Master Brott, and when the appellant sought to introduce Master Brott’s orders into evidence, the trial judge refused the request and declined to consider them. The appellant complained that the trial judge also declined to permit the appellant to cross-examine the respondent on Master Brott’s orders.

The court rejected these arguments. The trial judge determined that the Master did not have authority to appoint an expert to testify at trial. Even if one accepted that the trial judge ought to have permitted evidence of Master Brott’s orders, they would have had no impact, in that the opinions of the two expert engineers were the same: the optimal solution was to keep the catch basin in the existing location with connection to the Town’s sewer.

On the issue of cross-examination, the trial judge permitted the appellant to conduct extensive cross-examinations of the respondent and the respondents’ experts, but without reference to the specifics of the Master’s orders.

(2) No. The evidentiary record established that, when the right of way was created, the dominant and servient owners differed, contrary to the appellant’s submission. Furthermore, this defence was never pleaded.

(3) No. The tests in Palmer v. R., [1980] 1 S.C.R. 759; and Sengmueller v. Sengmueller (1994), 17 O.R. (3d) 208, were not met. The information would have no impact on the outcome of the appeal.

Hutchinson v. Norfolk (County), 2018 ONCA 592

[Simmons, Huscroft and Miller JJ.A.]

Counsel:

Michael Bordin, for the appellant

Mark Abradjian, for the respondent Corporation of Norfolk County

Dennis M Touesnard, for the respondent Debono Greenhouses Ltd

Keywords: Real Property, Municipal Law, Zoning By-laws, Permitted Uses, Accessory Use, Interpretation

Facts:

This is an appeal from the application judge’s order declaring that storing and grinding wood is an accessory use to the commercial greenhouses on the respondent’s property under the Corporation of Norfolk County’s Zoning Bylaw I-Z-2014 (the “Bylaw”).

On application, the appellant homeowner sought a declaration that storing and grinding wood on the neighbouring respondent’s property contravened the Bylaw, which in relevant part provides as follows:

1.4.3 (b) where the main use is wholly situated in one zone, an accessory structure or use may be permitted in any other Zone than the Provincially Significant Wetland Zone (PSW) provided it meets all provisions of section 3.0 except non-residential accessory structures shall not be permitted in residential zones.

2.3 “ACCESSORY USE” shall mean a use naturally and normally incident to, subordinate to and exclusively devoted to a principal use and located on the same lot herewith.

The application judge found that storing and grinding wood was not a permitted use under the Bylaw. Therefore, it was incumbent upon the respondent to establish that it was an “accessory use” of the greenhouse operation within the Bylaw’s meaning. Ultimately, the application judge was satisfied that storing and grinding wood was an accessory use to the respondent’s property. In making this determination, the application judge interpreted the Bylaw as requiring that an accessory use be: (i) naturally and normally incidental to the principal use, (ii) subordinate to the principal use; (iii) exclusively devoted to the principal use; and (iv) located on the same lot as the principal use.

On appeal, the appellant submitted that the application judge failed to consider the plain and ordinary meaning of the terms “naturally and normally incidental”.  Furthermore, the appellant submitted that it meant “customarily incidental” as this was consistent with requirements found in other bylaws. In any case, the appellant contended that both of the above-noted phrases indicated restrictive interpretations of an accessory use. Moreover, the appellant submitted that evidence of customary use was required to establish an accessory use and the application judge erred in concluding there was sufficient evidence.

Issue:

(1) Did the application judge err in concluding that the storage and grinding of wood is an accessory use of the respondent’s property?

Holding: Appeal dismissed.

Reasoning:

(1) No. The application judge made no error. The court held that in every case the question is simply whether a particular use meets the definition considered in the context of the bylaw as a whole. Accordingly, there was no need to determine whether, or the extent to which, the language in the Bylaw differed from the language found in other bylaws. The court also held that the concept of accessory use is common to zoning bylaws and provides a measure of flexibility in using property. Therefore, while it was not appropriate to give the term an overly expansive interpretation, it was not necessary to give the term a restrictive interpretation as the appellant submitted. The court held that while in some cases evidence may be required to establish an accessory use, no objection to its admissibility was made before the application judge. Consequently, the court held that there was no basis to interfere with the application judge’s findings.

McKinnon v. McKinnon, 2018 ONCA 596

[Rouleau, van Rensburg and Pardu JJ.A.]

Counsel:

Sheila McKinnon, self-represented

Randall McKinnon, self-represented

Keywords: Family Law, Spousal Support, Child Support, Variation, Material Change in Circumstances, Spousal Support Advisory Guidelines, Evidence, Admissibility, Settlement Communications,Civil Contempt, Parreira v Parreira, 2013 ONSC 6595, Carey v Laiken, [2015] 2 S.C.R. 79, Family Law Rules, O. Reg. 114/99, Rule 18(8)

Facts:

The appellant S.M and the respondent R.M were married for 28 years. Their separation agreement provided for spousal support for S.M and child support for the youngest of their three children. Support was based on the respondent’s annual income of $91,300.

The respondent brought his first motion to change in 2010 seeking a reduction in child and spousal support based on a material change in circumstances. By order, McGee J. ordered monthly spousal support of $800 and child support of $807, after imputing annual income to the respondent of $91,225, and $10,000 to the appellant.

The respondent’s second motion to change resulted in a temporary order of Hughes J., on consent. The consent order was for monthly child support of $373 and spousal support of $345. By final order, Hughes J. varied her earlier order to provide for monthly child support of $479 and spousal support of $800.

The respondent initiated a third motion to change in seeking to terminate spousal and child support. Again, the respondent did not request an order terminating his life insurance obligation, however in March 2016 the appellant learned that the life insurance had been cancelled in 2015, and she brought a motion for contempt which was heard together with the respondent’s motion to change.

The trial judge made a final order that varied Hughes J.’s order of October 4, 2013 to terminate child support for the youngest child effective July 1, 2014, and to remove the requirement to provide life insurance to cover the support payable for that child. This aspect of his decision is not appealed.

The trial judge dismissed the appellant’s contempt motion. He referred to the requirement that the appellant prove that the respondent deliberately breached an order which was clear and unambiguous.

Issues: 

  1. Did the trial judge err in his spousal support award?
    • Did the trial judge err in refusing to impute to the respondent an annual income of $60,000 from January 1, 2016 onward?
    • Did the trial judge err in terminating spousal support on February 1, 2015, and not requiring spousal support to be paid for approximately two years?
    • Did the trial judge err in departing from the Spousal Support Advisory Guidelines (“SSAGs”) in fixing spousal support?
  2. Did the trial judge err in refusing to find the respondent in contempt of the McGee J. order requiring him to provide life insurance for his support obligations?

Held: Appeal allowed.

Reasons:

  1. The trial judge erred in his spousal support award.
    • The trial judge did not err in refusing to impute to the respondent an annual income of $60,000 from January 1, 2016 onward. The court stated that in arriving at the figure of $35,000, the trial judge considered the relevant factors of the respondent’s qualifications, his age (60), his employment history, and his relatively good health, that “his best earning opportunity” was as an auto mechanic, and the income actually generated by his most recent period of employment as an auto mechanic.
    • The trial judge erred in terminating spousal support on February 1, 2015, and not requiring spousal support to be paid for approximately two years. The court stated that the trial judge did not explain why he made an order terminating spousal support. The court concluded that even if the trial judge’s criticism of the appellant for refusing to voluntarily terminate child support was warranted, this could not reasonably justify the complete elimination of the respondent’s spousal support obligation for a period of two years.
    • The trial judge erred in departing from the SSAGs in fixing spousal support. The court found that the trial judge’s reasons suggest that he was guided by the parties’ mediated settlement. The court then stated that it was an error for the trial judge to use the parties’ negotiated settlement as a reference point for determining spousal support. The court stated that offers to settle are inadmissible in subsequent family law proceedings except when dealing with costs issues: particularly rule 18(8) of the Family Law Rules. The court found that the same applies to draft minutes of settlement tendered on another party but not signed, citing Parreira v Parreira, 2013 ONSC 6595. The court concluded that this rationale extends to a settlement that was agreed upon but could not be implemented.

Yes. The trial judge erred in refusing to find the respondent in contempt of the McGee J. order requiring him to provide life insurance for his support obligations. The court stated that civil contempt requires that the moving party establish beyond a reasonable doubt that (a) the order alleged to have been breached states clearly and unequivocally what should or should not be done; (b) the alleged contemnor had actual knowledge of the order’s terms; (c) the alleged contemnor intentionally did the act the order prohibited or intentionally failed to do the act the order required. The court stated that a judge retains an overriding discretion to decline to make a contempt finding where the foregoing factors are met where it would be unjust to do so, such as where the alleged contemnor has acted in good faith to take reasonable steps to comply with the relevant court order, citing Carey v Laiken, [2015] 2 S.C.R. 79, at paras. 33-35, 37. In conclusion, the court found that the trial judge’s reasons on the contempt issue were conclusory. The court stated that the trial judge did not explain why he concluded that contempt had not been made out and, on a review of the evidence, the court found that there was no valid reason to refuse a contempt order.

Canadian Language Leadership Centre – CLLC Inc. v. 20 Eglinton Commercial Centre Inc., 2018 ONCA 604

[Pepall, van Rensburg and Paciocco JJ.A.]

Counsel:

Jerome R. Morse and David M. Trafford, for the appellant

Alanna P. Brogan, for the respondent

Keywords: Real Property, Contracts, Commercial Leases, Interpretation, Standard of Review, Extricable Errors of Law, Civil Procedure, Summary Judgment, Genuine Issues Requiring Trial

Facts:

The appellant, Canadian Language Leadership Centre – CLLC Inc. (“CLLC”), sued its commercial landlord, the respondent, 20 Eglinton Commercial Centre Inc. (“20 Eglinton”), for damages arising from water leaks and from a non-functioning gas line. 20 Eglinton sought and obtained summary judgment dismissing CLLC’s action on the basis that it disclosed no genuine issue requiring a trial. CLLC sought, on appeal, to have the summary judgment set aside.

Issues:

(1) Did the motion judge err in finding that the factual disputes did not require a resolution by trial in this case?

(2) Did the motion judge err in finding that the damage claims linked to the gas leak were without merit?

Holding:

Appeal allowed.

Reasoning:

(1) Yes. There were material facts contested between the parties that presented genuine issues requiring a trial. The disputed facts relevant to the application of the clause in question included when CLLC took possession of the premises, and when water leaks caused damage to CLLC. The parties disagreed about whether the premises were insurable in light of the water leaks. This was an important fact given 20 Eglinton’s concession that if the premises were not insurable when CLLC’s obligation to insure arose, then CLLC could not be bound by the clause.

(2) Yes. The motion judge failed to note the difference between the “Premises” and “Building” as defined in the contract, and disregarded Schedule “E” when applying the “as is” clause, committing extricable errors of law in interpreting the contract. Further, the motion judge failed to consider whether the disconnection of the gas line was at the fifth floor, and within the premises, or elsewhere, and arguably outside the premises.

Dujardin v Dujardin, 2018 ONCA 597

[Pepall, Brown and Trotter JJA]

Counsel:

JJ Neal, for the appellant

FE Leitch, QC, for the respondent

Keywords: Wills and Estates, Wills, Validity, Testamentary Capacity, Expert Witness, Costs, Succession Law Reform Act, RSO 1990, c S 26, Section 4

Facts:

This appeal concerns the validity of two wills executed by the late JHD. JHD and his brother N jointly owned a farm property that had been in their family since 1958. In 2009, they executed mirror wills – personal and corporate – leaving their equal interests in the farm to each other as a way to minimize probate fees.

When JHD died, he was married to LJD. He did not provide for her in his 2009 wills. However, he designated her as the sole beneficiary of a Registered Retirement Income Fund (“RRIF”), which was worth about $123,000 at the time of his death. Having been left nothing in the wills, LJD challenged their validity. She contended that, as a result of chronic alcoholism, JHD lacked testamentary capacity. The trial judge dismissed LJD’s claim. She appealed.

Issues:

(1) Did the trial judge err in not allowing a doctor to provide expert testimony to support the appellant’s position that the testator lacked testamentary capacity?

(2) Did the trial judge err in finding that the testator knew and approved of the contents of his will?

(3) Did the trial judge err in finding that the testator had testamentary capacity?

(4) Did the trial judge err in finding that the wills were properly executed?

Holding: Appeal dismissed.

Reasoning:

(1) No. There was no error in the trial judge’s conclusion that the evidence was inadmissible on a cost/benefit analysis, in terms of balancing “relevance, reliability and necessity…against the counterweights of consumption of time, prejudice and confusion”: R. v. J.-L.J., 2000 SCC 51, [2000] 2 SCR 600, at para 47. Dr. J never met the testator. His opinion was based on JHD’s hospital records following his 2007 heart attack, and other documents associated with this litigation (including examination for discovery transcripts). This case was fought and decided on the evidence of those who knew, interacted with, or treated JHD, not on the basis of experts who had never met or examined the man, and who could only offer tentative views on the ultimate issue the trial judge had to decide. Ultimately, the trial judge was best placed to assess the potential value of Dr. J’s evidence. Her conclusion is entitled to deference, especially given that it turned on her role as gatekeeper.

(2) No. On the evidence before the trial judge, there was a sound basis to satisfy the knowledge and approval requirements of testamentary capacity. The trial judge found that JHD was aware that the corporation, in which he held an equal share with N, owned the farmland on which they worked, and the farmhouse where they lived, for their entire adult lives. Understanding that LHD would not benefit under the will, JHD took steps to provide for LHD outside the will by setting up a RRIF.

(3) No. The evidence supports the trial judge’s overall conclusion that, while JHD had his issues with alcohol, and his health suffered because of it, he was of sound mind when he executed his 2009 wills. The trial judge commenced her analysis of testamentary capacity by setting out its constituent elements relying on Lata v. Rush, 2012 ONSC 4543, 219 ACWS (3d) 1008, at para. 32, and Royal Trust Corp. of Canada v. Saunders, [2006] OJ No 2291 (SC), at para. 58:

Testamentary capacity is established where the testator:

  1. understands the nature and effect of the will;
  2. recollects the nature and extent of his or her property;
  3. understands the extent of what he or she is giving under the will;
  4. remembers the people he or she might be expected to benefit under his or her will; and
  5. understands the nature of the claims that may be made by persons he or she is excluding under the will.

The trial judge turned each of these elements into a question and answered all of them in the affirmative. She provided careful reasons. The evidence amply supported her conclusions.

(4) No. The trial judge properly addressed the formal requirements of the validity of the wills under section 4 of the Succession Law Reform Act, RSO 1990, c S 26 (“SLRA”). In accordance with this section, there was ample evidence from lawyer Mr. G, his law clerk NT, and N to support the conclusions that: (1) JHD signed his wills at the end of each document, (2) he signed them in the presence of two witnesses (Mr. G and Ms. T), and (3) the witnesses signed the wills in JHD’s presence. On the day that the wills were executed, Mr. G had no reason to believe that JHD had been drinking. Moreover, the brothers were fully aware of the assets at their disposal, which were principally the shares in the farming business. The trial judge found that N, as propounder of the wills, had the onus of proving compliance with the SLRA. At para 20, the trial judge said, “The formalities have been proven and, therefore, it is presumed JHD knew of and approved the contents of the wills.” There is no basis to disturb this finding, which rests on a very solid evidentiary foundation.

Wang v. Canada (Public Safety and Emergency Preparedness), 2018 ONCA 605

[Hourigan, Benotto and Fairburn JJ.A.]

Counsel:

Rocco Galati, for the appellants

James Todd and Nicholas Dodokin, for the respondents

Andrea Bolieiro, for the Attorney General for Ontario

Keywords: Immigration Law, Habeas Corpus, Practice and Procedure, Appeals, Jurisdiction, Habeas Corpus Act, s. 8(1), Courts of Justice Act, s. 6(1)(b)

Facts:

This matter arose from an appeal against an order dismissing an application for habeas corpus in an immigration detention case. The appellants are citizens of China and the Dominican Republic. They originally entered Canada on temporary resident visas in 2012. Pursuant to s. 55 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, the appellants were arrested by the Canadian Border Services Agency in 2014 and held in immigration detention. In February 2017, a third application to the Immigration Division to alter the terms of their release order was dismissed.

The appellants did not seek to have that decision judicially reviewed by the Federal Court. Instead, they pursued an application for a writ of habeas corpus in the Superior Court of Justice. Diamond J. dismissed the application for a writ of habeas corpus because he determined that there was no deprivation of liberty.

Issues:

(1) Does this court have jurisdiction to hear an appeal from a Superior Court order dismissing an application for habeas corpus?

(2) Does a finding of no deprivation of liberty trigger the application of s. 8(1) of the Habeas Corpus Act, R.S.O. 1990, c H.1 (HCA)?

Holding: The court has jurisdiction to hear the appeal. The parties should proceed to obtain the earliest date available for the hearing of the appeal.

Reasoning:

(1) Yes. Section 8(1) of the HCA only applies in circumstances where the person appealing was “confined or restrained of his or her liberty” and “brought before a judge upon a writ of habeas corpus ad subjiciendum” and “remanded into custody upon the original order or warrant of commitment or by virtue of any warrant, order or rule of such judge”. Only where all of these statutory criteria are met, will the appellant be required to appeal the “decision or judgment of the judge to the Divisional Court”. In all other situations, the appeal will lie to the Court of Appeal pursuant to s. 6(1)(b) of the Courts of Justice Act (CJA), as a final order of a judge of the Superior Court of Justice.

(2) No. The nature of Diamond J.’s dismissal order rested on his finding that the appellants were not deprived of liberty, the first prong of s. 8(1) is not met. The appellants are not “confined or restrained” of their liberty. Accordingly, there is no need to assess the remaining criteria in s. 8(1). The court concluded that the order appealed falls outside the scope of s. 8(1) of the HCA. Consequently, an appeal lies to the Court of Appeal under s. 6(1)(b) of the CJA.

Short Civil Decisions

Chinese Publications for Canadian Libraries Ltd v Markham (City), 2018 ONCA 586

[Doherty and Pepall, JJA and Gray J (ad hoc)]

Counsel:

Qiang Li Cao, for the plaintiff (appellant)

David G. Boghosian and Magdalena Fish, for the defendants (respondents)

Keywords: Costs, Partial Indemnity

Bertolli v Toronto (City), 2018 ONCA 595

[Simmons, Huscroft, and Miller JJA]

Counsel:

Michael Kealy, for the appellants

Miranda Serravalle and Karen Bernofsky, for the respondents

Keywords: Civil Procedure, Amending Pleadings, Substituting Parties, Rules of Civil Procedure, Rule 26

Boodhoo v Manuel, 2018 ONCA 603

[Simmons, Huscroft, and Miller JJA]

Counsel:

Stephen Dyment, for the appellants

Jarvis Ortega, for the defendants

Keywords: Torts, Nuisance

Criminal, Provincial Offences, and Ontario Review Board Decisions

R v Duncan, 2018 ONCA 574

[Lauwers, Pardu, and Miller, JJA]

Counsel:

AD, self-represented

Nader R. Hasan, appearing as duty counsel

Hannah Freeman, for the respondent

Keywords: Criminal Law, Making False Documents, Criminal Code, s 366(1), Possessing Identity Documents to Commit an Indictable Offence, Criminal Code, s. 402.2(1), Using, Trafficking, or Possessing Forged Documents, Criminal Code, s 368(1), Possession of Property Obtained by Crime, Criminal Code, s 354(1), Trafficking in Another Person’s Identity Information, Criminal Code, s 402.2(2), Sentencing, Conditional Sentence, Immigration Consequences, Criminal Code, s 718, R v McKenzie, 2017 ONCA 128, R v Pham, 2013 SCC 15

R v Figliola, 2018 ONCA 578

[Doherty, Epstein, and Pepall, JJA]

Counsel:

Michael Lacy and Deepa Negandhi, for the appellant

Rosella Cornaviera and Susan L. Reid, for the respondent

Keywords: Criminal Law, First Degree Murder, Criminal Code, s 229, Criminal Code, s 231(1), Jury Instructions, R v PJB, 2012 ONCA 730, R v Morales (2006), 81 OR (3d) 161, R v Cairney, 2013 SCC 55, Evidence, Admissibility, Adverse Witnesses, Canada Evidence Act, s 9(1), Prior Inconsistent Statements, R v Soobrian (1994), 21 OR (3d) 603 (CA), R v Figliola, 2011 ONCA 457

R v Fogah, 2018 ONCA 564

[Feldman, Brown, and Fairburn, JJA]

Counsel:

Anil Kapoor and Dana Achtemichuk, for the appellant

Leslie Paine, for the respondent

Keywords: Criminal Law, First Degree Murder, Criminal Code, s 229, Criminal Code, s 231(1), Attempted Murder with a Prohibited Firearm, Criminal Code, s 239(1)(a), Aggravated Assault by Wounding, Criminal Code, s 268(1), Discharging a Firearm with Intent to Wound, Criminal Code, s 244(1), W(D) Instructions, R v W(D), [1991] 1 SCR 742, Evidence, Credibility, Burden of Proof

R v Morillo, 2018 ONCA 582

[Paciocco JA (Motion Judge)]

Counsel:

LM, acting in person

Mark Wiffen, amicus curiae

Arend J. Wakeford, for the responding party

Keywords: Provincial Offences, Speeding, Highway Traffic Act, s 128(1), Leave to Appeal, Question of Law, Special Grounds, Provincial Offences Act, s 139(1), Vaughan (City) v Antorisa Investments Ltd., 2012 ONCA 586, Provincial Offences Act, s. 139(2), Self-Represented Litigants, Evidence, Prior Inconsistent Statements, W(D) Instructions, R v W(D), [1991] 1 SCR 742, Credibility, Statement of Principles on Self-Represented Litigants and Accused Persons

R v Murtaza, 2018 ONCA 579

[Sharpe, Roberts, and Trotter, JJA]

Counsel:

Anil K. Kapoor and Dana Achtemichuk, for the appellant

Marie Comiskey and Sébastien Lafrance, for the respondent

Keywords: Criminal Law, Importation, Controlled Drugs and Substances Act, s 6(1), Possession for the Purpose of Trafficking, Controlled Drugs and Substances Act, s 5(2), Possession of Proceeds of Crime, Criminal Code, s 354(1), Jury Instructions, Expert Evidence, Cross-Examination

McFarlane (Re), 2018 ONCA 583

[Sharpe, Roberts, and Trotter, JJA]

Counsel:

Anita Szigeti, for the appellant

Elena Middelkamp, for the respondent, the Attorney General of Ontario

Michele Warner, for the respondent, the Centre for Addiction and Mental Health

Keywords: Criminal Law, Ontario Review Board, Criminal Code, s 672.54, NCR, Conditional Discharge, Form 1, Procedural Fairness, Conway (Re), 2016 ONCA 918, Reasonable Apprehension of Bias, Tolias (Re), 2016 ONCA 463

R v Dacosta, 2018 ONCA 588

[Simmons, Huscroft, and Miller, JJA]

Counsel:

Mark Halfyard, for the appellant

Christine Tier, for the respondent

Keywords: Criminal Law, Assault, Criminal Code, s 265(1), Evidence, Admissibility, Materiality, Hearsay, Opinion

R v Gardner, 2018 ONCA 584

[Hourigan, Pardu, and Nordheimer, JJA]

Counsel:

Jennifer Epstein, for the appellant

Karen Seeley, for the respondent

Keywords: Criminal Law, Summary Conviction, Operation While Impaired, Criminal Code, s 253(1)(b), Standard of Review, Correctness, Housen v Nikolaisen, 2002 SCC 33, Highway Traffic Act, s 48(1), Investigative Detention, Charter of Rights and Freedoms, s 8, s 9, s 10(a), s 10(b), R v Simpson (1993), 12 OR (3d) 182 (CA), R v Roberts, 2018 ONCA 411, R v Orbanski; R v Elias, 2005 SCC 37

R v Garcia, 2018 ONCA 580

[Hourigan, Pardu, and Nordheimer, JJA]

Counsel:

David M. Humphrey and Naomi M. Lutes, for the appellant

Alexandro Alvaro, for the respondent

Keywords: Criminal Law, Publication Ban, Sexual Assault, Criminal Code, s 271, Fresh Evidence, Criminal Code, s 683(1), Palmer v The Queen, [1980] 1 SCR 759, R v Truscott, 2007 ONCA 575, Character Evidence

R v Brooks, 2018 ONCA 587

[Hourigan, Pardu, and Nordheimer, JJA]

Counsel:

Dirk Derstine, for the appellant

David Finley, for the respondent, the Attorney General of Ontario

Michele Warner, for the respondent, the Centre for Addiction and Mental Health

Keywords: Criminal Law, Publication Ban, First Degree Murder, Criminal Code, s 229, Evidence, Hearsay, Co-conspirators Exception, R v Tsekouras, 2017 ONCA 290, Jury Instructions, R v Mapara, 2005 SCC 23, R v Simpson, 2007 ONCA 793

R v Burke, 2018 ONCA 594

[Hourigan, Pardu, and Nordheimer, JJA]

Counsel:

Lorna Bolton for the Crown, appellant

Brian Eberdt, for the respondent

Keywords: Criminal Law, Publication Ban, Extradition, Canadian Charter of Rights and Freedoms, s 11(b), R v Cody, 2017 SCC 31, R v Jordan, 2016 SCC 27, Defence Delay, R v MacIntosh, 2011 NSCA 111 aff’d, 2013 SCC 23

R v Imona-Russell, 2018 ONCA 590

[Sharpe, Brown, and Paciocco, JJA]

Counsel:

Christopher Hicks and Kristin Bailey, for the appellant

Leslie Paine, for the respondent

Keywords: Criminal Law, First Degree Murder, Sexual Assault, Criminal Code, s 231(5)(b), Predicate Offence, Fraudulent Consent, R v Pare, [1987] 2 SCR 618, Constructive First Degree Murder, Evidence, Cross-Examination, Post-Offence Conduct

R v Sidhu, 2018 ONCA 591

[Watt, Pardu, and Roberts, JJA]

Counsel:

Jeff Marshman, for the appellant

Kathleen Farrell, for the respondent

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

R v Zekarias, 2018 ONCA 585

[Sharpe, Roberts, and Trotter, JJA]

Counsel:

Michael Dineen, for the appellant

Karen Papadopoulos, for the respondent

Keywords: Criminal Law, First Degree Murder, Criminal Code, s 229, Evidence, Identification, Jury Instructions, Post-Offence Conduct, R v White, [1998] 2 SCR 72, Concoction, R v O’Connor (2002), 62 OR (3s) 263 (CA), Criminal Code, s 686(1)(b)(iii)

R v Crocker, 2018 ONCA 600

[Watt, Pardu, and Roberts, JJA]

Counsel:

John Fennel, for the appellant

Ghazala Zaman, for the respondent

Keywords: Criminal Law, Possession for the Purpose of Trafficking, Controlled Drugs and Substances Act, s. 5(1), Evidence, Admissibility, Prior Consistent Statements, Credibility, Notorious Facts, Sentencing, R v Gladue, [1999] 1 SCR 688, Gladue Principles

R v Dobson, 2018 ONCA 589

[Doherty, Pepall, and Nordheimer, JJA]

Counsel:

James C. Fleming, for the appellant

Eric H. Siebenmorgen and Amy Alyea, for the respondent

Keywords: Criminal Law, First Degree Murder, Criminal Code, s 229, NCR, Criminal Code, s 16(1), Statutory Interpretation, R v Oommen, [1994] 2 SCR 507, R v Chaulk, [1990] 3 SCR 1303, R v Campione, 2015 ONCA 67,  Criminal Code, s 8(3), R v Gagnon (1993), 84 CCC (3d) 143

Shepherd (Re), 2018 ONCA 593

[Lauwers, Miller, and Fairburn, JJA]

Counsel:

Ken J. Berger, for the appellant

Alexandrea Hrybinsky, for the respondent Attorney General of Ontario

Julia Zambrogna Ballès, for the respondent Southwest Centre for Forensic Mental Health Care

Keywords: Criminal Law, NCR, Detention Orders, Public Safety, Fresh Evidence, Criminal Code, s 672.81, Chaudry (Re), 2015 ONCA 317, Murray (Re), 2017 ONCA 731

R v MC, 2018 ONCA 606

[Strathy CJO (Motion Judge)]

Counsel:

Jonathan Rudin and Melissa D. Atkinson, for the proposed intervener

Candice Suter, for the respondent

Louis P. Strezos, for the appellant

Keywords: Criminal Law, Publication Ban, Evidence, Criminal Record, R v Corbett, [1988] 1 SCR 670, R v Gladue, [1999] 1 SCR 688, Gladue Principles, Interveners, R v Seaboyer (1986), 50 CR (3d) 395 (Ont CA), Practice Direction Concerning Criminal Appeals

R v Omar, 2018 ONCA 599

[Feldman and Benotto, JJA and Sachs J (ad hoc)]

Counsel:

Dirk Derstine, for the appellant

Craig Harper, for the respondent

Keywords: Criminal Law, Publication Ban, First Degree Murder, Criminal Code, s 229, Mr. Big, Contempt of Court, R v Glasner (1994), 19 OR (3d) 739 (CA), Sentencing, Criminal Code, s 719(3), Pre-Trial Custody Acquittal, R v Grant, [1991] 3 SCR 139, Deference,  R v Lacasse, 2015 SCC 64

R v Reyes, 2018 ONCA 607

[Sharpe, Brown, and Paciocco, JJA]

Counsel:

Althea Reyes, acting in person

Andrew Hotke, for the respondent

Keywords: Criminal Law, Bench Warrant, Criminal Code, s 800(2), Summary Conviction, Evidence, Relevance, R v Sihota, 2009 ONCA 770, Criminal Appeal Rules, Perfecting Appeals

R v Shulz, 2018 ONCA 598

 [Watt, Brown, and Huscroft, JJA]

Counsel:

Martin Schulz, acting in person

Grace Choi, for the respondent

Keywords: Criminal Law, Possession of Child Pornography, Criminal Code, s 163.1(4), Evidence, Admissibility, Solicitor-Client Privilege, Canadian Charter of Rights and Freedoms, s 8, Fresh Evidence, R v Manasseri, 2016 ONCA 704, Canadian Charter of Rights and Freedoms, s 24(2), R v Cole, 2012 SCC 53, Grant Factors, Sentencing, Probation, Prohibition Orders, Criminal Code, s 161(1)(d), R v Brar, 2016 ONCA 724, R v Perron, 2015 QCCA 601

Rogers (Re), 2018 ONCA 602

[Sharpe, Brown, and Paciocco, JJA]

Counsel:

R. Brown, for the appellant, Leonard A. Rogers

C. Elmasry, for the respondent Attorney General of Ontario

J. Blackburn, for the respondent the Person in Charge of the Centre for Addiction and Mental Health

Keywords: Criminal Law, NCR, Detention Orders, Public Safety

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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