Canada: Ontario Court Of Appeal Summaries (May 9-13, 2016)

Last Updated: May 20 2016
Article by John Polyzogopoulos

Good afternoon everyone,

Topics covered by the Court of Appeal this week included medmal (limitation periods and need for expert evidence on standard of care and causation), the standard of proof of misconduct in police disciplinary hearings, the onus of proof on an insurer alleging material misrepresentation, family law (variation of custody order, property claim, extension of time to appeal), an appeal from an arbitrator's ruling on the interpretation of a contract, and amending judgments to add judgment-debtors omitted because of alleged misrepresentations.

Have a nice weekend.


Klurfeld v. Nova Quest Logistics Inc., 2016 ONCA 348

[MacPherson, van Rensburg and Miller JJ.A.]

Sergio Grillone, for the appellants
David Stamp and Raphael Eghan, for the respondent

Keywords: Civil Procedure, Amending Order, Adding Judgment-Debtor, Discontinuance, Setting Aside, Rules of Civil Procedure, Rule 59

The appellants commenced an action against Grocery Dayton, Wakefern and several other parties, which was discontinued against all parties save for Grocery Dayton. The appellants noted Grocery Dayton in default and were subsequently granted judgment.

The appellants allege that they were induced to discontinue their claim by a statement made by Wakefern's in-house counsel that Wakefern was not affiliated with Grocery Dayton. Wakefern argued that the appellants discontinued because of multiple defects in their claim. In the course of an unsuccessful attempt to enforce their judgment against Grocery Dayton, the appellants concluded that Grocery Dayton was not independent of Wakefern and instead was an alias used to refer to Wakefern. The appellants thus brought a motion under r. 59 of the Rules of Civil Procedure to amend their judgment to add Wakefern as a judgment-debtor.

The motion judge dismissed the appellants' motion because: (1) there was insufficient evidence for a finding that Wakefern and Grocery Dayton were the same entity; (2) the appellants' failure to set aside the discontinuance of their action against Wakefern was a complete bar to the relief sought; and (3) it would be fundamentally unfair to add Wakefern as a judgment-debtor where it had had no opportunity to defend the action.

(1) Did the motion judge err by disregarding the appellant's evidence?

(2) Did the motion judge err in finding that the appellants' failure to set aside the discontinuance of their action against Wakefern a complete bar to the relief sought?

(3) Did the motion judge err in finding that it would be fundamentally unfair to add Wakefern as a judgment debtor where it had had no opportunity to defend the action?

Holding: Appeal Dismissed.

(1) No. The appellants argued that the motion judge erred by disregarding their evidence. The Court held that, while it would have been preferable for the motion judge to have provided more complete reasons, he did not make an overriding error. Moreover, while the motion judge's reasons ought to have demonstrated a greater engagement with the evidence, he also made no error in determining that there was insufficient evidence to support a finding that Grocery Dayton and Wakefern were the same entity.

(2) No. The appellants argued that the discontinuance would not need to be set aside given that a judgment against Grocery Dayton was, in reality, a judgment against Wakefern. The Court held that the appellants' argument could not succeed given the prior conclusion that the motion judge did not err in finding that there was insufficient evidence to conclude that Grocery Dayton and Wakefern were the same entity.

(3) No. The Court held that the discontinuance could have been a function of the comments made by in-house counsel for Wakefern and, given that, the Court agreed with the motion judge, who had set aside the discontinuance against Wakefern, that it would be unfair to add Wakefern as a judgment-debtor without giving it the opportunity to contest the action on its merits.

Robertson v. Robertson, 2016 ONCA 356

[MacPherson J.A. (In Chambers)]

William H. Fysh, for the moving party
Philip Viater, for the responding party

Keywords: Family Law, Sale of Matrimonial Home, Leave to Appeal, Rizzi v. Mavros

The applicant brings a motion seeking an order extending the time to appeal from the order of Jarvis J of the Superior Court of Justice dated April 24, 2015. The judge ordered the sale of the matrimonial home in Aurora. It is this component of the order from which the applicant seeks leave to appeal. The appeal should have commenced within 30 days of the date of the order. The applicant filed this motion April 15, 2016, eleven months late.

Should the applicant be granted leave to appeal?

Holding: Motion Dismissed

The court relied on the decision in Rizzi v. Mavros, which sets out the factors to consider on a motion for leave to extend time to appeal:

(1) whether the appellant formed an intention to appeal within the relevant period;
(2) the length of the delay and explanation for the delay;
(3) any prejudice to the respondent;
(4) the merits of the appeal; and
(5) whether the "justice of the case requires it".

The court held on the first factor, the applicant retained counsel to appeal Jarvis J's order on May 7, 2015. A motion for leave to appeal to the Divisional Court was delivered on May 8, 2015. The court held that the appellant formed an intent to appeal and acted on it within two weeks of the order.

With regards to the second factor, the applicant's original leave motion was filed in the wrong court. She only filed materials in the right court on April 15, 2016. She has an eleven month delay to explain, and her explanation is that she thought she was in the right court. The court did not accept this explanation. She was warned by opposing counsel and by one superior court judge that she may be in the wrong court. Further, the applicant took no steps to move the appeal forward even while it was lodged in the wrong court. The court found her explanation for the delay unpersuasive.

The court held on the third factor that there will be prejudice to the respondent if leave to appeal is granted. On the fourth factor, the court concluded that the applicant's position on the sale of the matrimonial home before, during and after the hearing was that matrimonial home be sold and therefore there was no merit to the appeal. On the final factor, the court decided that the justice of the case requires that a meritless appeal not be permitted to proceed.

Jacobs v. Ottawa (Police Service), 2016 ONCA 345

[Laskin, Hourigan and Brown JJ.A.]


W Mark Wallace and Elizabeth Warren, for the appellant, Constable Kevin Jacobs
Ian J. Roland and Michael Fenrick, for the intervenor, Police Association of Ontario
Eric Granger and Lawrence Greenspon, for the respondent, Mark Krupa
Christiane F. Huneault, for the respondents Ottawa Police Service
Benson Cowan and Kathryn Chung, for the respondent, Ontario Civilian Police Commission

Keywords: Administrative Law, Regulated Professions, Police Officers, Police Services Act, Misconduct, Standard of Proof, Clear and Convincing Evidence, Penner v. Niagara (Regional Police Services Board)

The appellant is a police officer employed by the respondent Ottawa Police Service. He was found guilty of misconduct under the Police Services Act (the "PSA") resulting from the arrest of the respondent, Mark Krupa. The respondent, the Ontario Civilian Police Commission (the "Commission"), affirmed the hearing officer's finding of guilt, and the appellant's judicial review application to the Divisional Court was dismissed.

What is the standard of proof applicable to a finding of misconduct under s. 84(1) of the PSA?

Holding: Appeal granted. The matter was remitted to the Commission for further consideration.

The standard of proof in PSA hearings is a higher standard of clear and convincing evidence and not a balance of probabilities. The Court of Appeal is bound by the Supreme Court's statement in Penner v. Niagara (Regional Police Services Board) that set out the standard of proof. The Divisional Court erred in relying on F.H. v. McDougall.

Children's Aid Society of Ottawa v. A.V., 2016 ONCA 361

[Rouleau, Pardu and Benotto JJ.A.]

Gordon S. Campbell, for the appellant S.M.
Marie-Hélène Godbout and Yanik S. Guilbault, for the respondent A.V.
Tracy Engelking, for the respondent the Children's Aid Society of Ottawa
Jennifer Gallagher, for the Officer of the Children's Lawyer

Keywords: Family Law, Custody and Access, Joint Custody, Application to Vary Divorce Order, Material Change in Circumstances, Sole Custody, Supervised Access, Children's Aid Society, Protection Application, Child and Family Services Act, ss. 47(1) and 54(8), Divorce Act, s. 17, Gordon v. Goertz

Facts: The appellant is the father of two girls. He appeals an order of the Family Court granting the mother (the respondent A.V.) sole custody of the girls with supervised access to him and allowing the Children's Aid Society of Ottawa (the respondent CAS) to withdraw its Protection Application. The Office of the Children's Lawyer (OCL) joins the respondents in asking that the appeal be dismissed.

The appellant and A.V. divorced in 2012. The divorce order provided for joint custody with a shared parenting arrangement. Ongoing disputes rendered the arrangement unworkable and CAS commenced a Protection Application. During the protection proceedings, the parties consented to an assessment by Dr. Worenklein under s. 54 of the Child and Family Services Act, who reported that the appellant was alienating the children against their mother and that the situation was extremely volatile and high-conflict. He recommended that the mother be granted full custody with supervised access to the appellant. In response to the report, CAS sought to amend the Protection Application to place the children in the custody of the mother with supervised access to the appellant. The mother then brought a motion to change the final divorce order to grant her sole custody. The appellant brought a cross-motion for sole custody. Labrosse J. concluded that the divorce order should be varied; the mother was to have sole custody and the father was to have supervised access to the children. He then determined that the children were not in need of protection and allowed CAS to withdraw its Protection Application.

1) Did the motions judge err in finding a material change in circumstances warranting a variation of the custody arrangement in the divorce order?

2) Did the motions judge err in ordering the two motions be argued simultaneously?

3) Did the motions judge err by not holding a "hearing" in connection with the CAS motion to withdraw pursuant to s. 47(1) of the CFSA and then further err by failing to specifically find that the children were not in need of protection?

4) Did the motions judge violate s. 54(8) of the CFSA by considering the evidence of Dr. Worenklein on the motion to vary?

Holding: Appeal dismissed.

1) No. The test for varying an order under s. 17 of the Divorce Act was set out by the Supreme Court of Canada in Gordon v. Goertz, [1996] 2 S.C.R. 27. The motions judge made detailed findings in connection with the appellant's inability to set aside the parental conflict and meet the needs of the children. The change materially affected the children and was not contemplated when the joint custody order was made, as it was not reasonably foreseeable at the time that the relationship between the parties would reach the level of dysfunction demonstrated by the evidence. The motions judge considered the best interests of the children, and concluded that the appellant had embarked on a campaign to alienate the children from their mother.

2) No. It was a proper exercise of the motions judge's discretion and exactly what is contemplated by the Family Law Rules, O. Reg. 114/99 to hear the child protection and custody proceeding simultaneously. The Rules impose a duty on the court to deal with cases justly by controlling the process of the case and by dealing with as many aspects of the case as possible on the same occasion.

3) No. The law is clear that a "hearing" in a child protection matter may take many forms. It may proceed on consent, take the form of a motion seeking leave to withdraw, a motion for summary judgment, or a trial. The motions judge considered and rejected the appellant's request for cross-examination, having determined that there were no issues that could be advanced. The decision to allow questioning is within the discretion of the motions judge. Furthermore, contrary to the appellant's submission, the motions judge did make a finding that the children were not in need of protection. The motions judge reviewed the evidence and concluded: "I am satisfied that there are no protection concerns, provided that the Mother has sole custody and that the Father's access continues to be supervised."

4) No. CFSA s. 54(8) precludes the use of an assessment report "in any other proceeding" except in child protection proceedings and other limited circumstances. The motions judge took care to separate the findings made on the Protection Application from the motion to vary. He based his conclusion that the appellant's attempt to alienate the children from their mother and his decision to grant the mother sole custody on the evidence before him, including affidavits and audio recordings, which largely came from the appellant. In any event, he observed that the report was not conclusive on the issue of custody. Furthermore, in a lengthy affidavit filed in the custody proceeding, the appellant himself put many parts of Dr. Worenklein's report into evidence. The appellant was critical of the doctor's failure to rule out the abuse allegations the appellant had previously made against the mother. The appellant cannot now raise the issue that the evidence was inadmissible.

Liu v. Wong, 2016 ONCA 366

[Blair, MacFarland and Lauwers JJ.A.]

Songyan Liu, in person
Cynthia Kuehl and Stephen Ronan, counsel to the respondents

Keywords: Torts, Negligence, Medical Malpractice, Summary Judgment, Limitation Periods, Limitations Act, 2002, Expert Evidence, Larman v Mount Sinai Hospital

The plaintiff/appellant alleged that the defendant negligently removed surgical staples from his right knee in September, 2011 approximately two weeks after the plaintiff received knee surgery to repair his knee following a motor vehicle accident. He alleged the defendant broke one of the staples in the process of removing them which caused him to suffer pain and bleeding, and resulted in his knee becoming permanently injured.

In October, 2012, the plaintiff was assessed by a different doctor under advisement by his lawyer bringing his tort claim arising out of the accident. The doctor concluded that the plaintiff's knee was permanently injured and could not return to normal, but did not provide any opinion with respect to an injury that may have arisen as a result of the staple removal. The plaintiff commenced a medical malpractice proceeding against the defendant by way of statement of claim which was issued in October, 2014.

On a motion for summary judgment brought by the defendants/respondents, the motion judge dismissed the plaintiff's action as statute barred pursuant to the 2-year limitation period in the Limitations Act, 2002, as well as for his failure to adduce and file an expert medical opinion as required in cases that involve the application of clinical skills outside the ordinary knowledge and experience of a trier of fact.

Did the motion judge err in holding that:

(1) the plaintiff's action was statute barred by the 2-year limitation period provided for in the Limitations Act, 2002? and

(2) this was not one of "the clearest of cases" in which no expert's report is required to support the plaintiff's malpractice allegations?

Holding: Appeal dismissed.

(1) No. The court found the motion judge was correct in dismissing the claim on the basis that it was statute barred. It was clear that the plaintiff was fully aware that he had problems with his knee immediately following – if not during – the removal of the staples by the defendant in September, 2012.

(2) No. Despite finding it unnecessary to deal with this issue, in light of the expired limitation period, the court also agreed with the motion judge's disposition with regard to the lack of an expert opinion. The court stated that medical malpractice cases are complex – even where they may appear simple to the eye of a layperson – and judges and juries lack the expertise necessary to assess difficult questions such as causation, standard of care, and breach of the standard of care, without the assistance of expert reports. For that reason, the court cited its decision in Larman v Mount Sinai Hospital, 2014, ONCA 923, for the principle that aside from "the clearest of cases" the absence of expert evidence in support of the plaintiff's medical malpractice claim is fatal.

Wright v. Holmstrom, 2016 ONCA 360

[Strathy C.J.O., MacFarland and Brown JJ.A.]

Jeanie DeMarco, for the appellant
Susan Adam Metzler, for the respondent

Keywords: Family Law, Property, Credibility, Standard of Review, Palpable and Overriding Error

The appellant claimed a half interest in a house. The trial judge was required to make findings of fact based on conflicting evidence and assess the credibility of the parties. The trial judge rejected the appellant's evidence in support of his claim to an interest in the home. The judge found the appellant's payment of $130,000 to her was a gift.

The appellant wants the court to reassess and re-weigh the evidence concerning his claim to an interest in the house.

Issues: Did the trial judge err in assessing the evidence?

Holding: Appeal dismissed.

No. The trial judge did not err in assessing the evidence. The trial judge gave sufficient reasons for rejecting the appellant's evidence and accepting the respondent's.

The appellant argued two principal errors that were overriding. First, he argued the respondent's lawyer's file is strong evidence in support of his version of the facts against the respondent. The court disagreed because the file, at best, establishes that at one time the respondent may have contemplated that the appellant could acquire an interest in her house. The trial judge accepted the respondent's evidence that the appellant gave the money to her as a gift.

Second, the appellant argued that the trial judge should not have rejected the appellant's evidence on the origin of the "Declaration of Shared Ownership" and should not have found that he created the document for the lawsuit. There is no reason to interfere with the trial judge's rejection of the appellant's evidence on this issue. There was no error in her reasoning.

C.H. Robinson Worldwide Inc. v. Northbridge Commercial Insurance Corp., 2016 ONCA 364

[Laskin, Simmons, and Huscroft JJ.A.]

Michael D. Magonet, for the appellant
James Manson, for the respondent

Keywords: Insurance Law, Insurance Act, s.132, Voiding Coverage, Material Misrepresentation

C.H. Robinson Worldwide Inc. ("Robinson") retained KLM Express ("KLM") to transport cargo. The KLM truck carrying the cargo was involved in a collision and the cargo was destroyed. Robinson sued KLM for the full value of the lost cargo. KLM did not defend the action and Robinson obtained a default judgment against it. Robinson then sought payment from KLM's insurer, Northbridge, pursuant to s.132 of the Insurance Act, which entitled Robinson to recover the amount of its unsatisfied judgment from Northbridge, "but subject to the same equities as the insurer would have if the judgment had been satisfied."

The application judge denied Robinson recovery, holding that KLM's insurance policy was void because, when applying for coverage, KLM had made a material misrepresentation in answering in the negative whether it had any contracts "with shippers that stipulate limits of liability that are required to supercede the applicant's standard Bill of Lading?"

Neither KLM's "standard Bill of Lading" nor evidence regarding same was put before the application judge. Nonetheless, she held that KLM's answer amounted to a misrepresentation as the contract between Robinson and KLM provided liability for actual loss or damage that was well in excess of the limited liability under the Uniform Conditions of Carriage: Carriage of Goods regulation. The application judge concluded the misrepresentation was material as it affected KLM's premium.

(1) Did the application judge err in finding a misrepresentation in the absence of any evidence about KLM's standard bill of lading?

(2) Even if KLM made a misrepresentation, did the application judge err in finding that the misrepresentation was material to Northbridge's underwriting process?

Holding: Appeal Allowed.

(1) The insurer has the onus of showing a material misrepresentation. Northbridge contended that KLM's survey answer was a material representation, but did not produce its insured's standard bill of lading and did not lead any evidence of its terms. The Court found that, in the absence of KLM's standard bill of lading, Northbridge failed to meet its onus of showing a misrepresentation.

The Court also found that Northbridge drafted the survey in question and must accept the consequences of the answers to the questions it posed. The question in issue focused on KLM's standard bill of lading, which was not produced and thus could not be analyzed. The Court reasoned that, presumably, Northbridge was able to produce its insured's standard bill of lading if it existed, and its failure to do so undermined its misrepresentation defence. The Court allowed the appeal and granted judgment in favour of the plaintiff.

(2) Given the finding on the first issue, the second issue did not require any comment from the Court.

Ottawa (City) v. Coliseum Inc., 2016 ONCA 363

[MacPherson, van Rensburg and Miller JJ.A.]

W.A. Derry Millar, Keith A. MacLaren and Owen Bourns, for the appellant
Ronald F. Caza and Anne M. Tardif, for the respondent

Keywords: Contracts, Real Property, Leases, Interpretation, Arbitration, Arbitration Act, Standard of Review, Reasonableness, Sattva Capital Corp v. Creston Moly Corp., 2014 SCC 53

The appellant, The Coliseum Inc. ("Coliseum"), entered into a long-term lease agreement (the "Stadium Agreement") with the respondent, the City of Ottawa (the "City") to operate an indoor sports and recreation facility under a dome. The Stadium Agreement was in relation to Frank Clair Stadium at Lansdowne Park in Ottawa.

In 2004, there was a dispute between the parties about Coliseum's right of possession. The dispute was resolved by Minutes of Settlement. A further dispute arose and an arbitrator interpreted the two crucial provisions of the Minutes of Settlement in favour of Coliseum. The City appealed and the application judge granted leave to appeal, allowed the appeal and overturned the arbitrator's award. Coliseum appeals to this court.

There are two main issues, leave to appeal and reasonableness of the arbitrator's decision.

Leave to Appeal
(1) Does this court have jurisdiction to review a decision of a Superior Court judge granting leave to appeal an arbitral decision under s. 45(1) of the Arbitration Act?

(2) If the answer to 1(a) is in the affirmative, did the application judge err in granting leave to appeal?

Reasonableness of the arbitrator's decision
(1) Did the application judge err in finding the arbitrator's interpretation of the Minutes of Settlement unreasonable?

(2) If the answer to 2(a) is in the negative, did the application judge err in finding the arbitrator's decision on waiver and estoppel unreasonable?

(3) If the answer to 2(a) is in the affirmative, did the application judge err in finding the arbitrator's decision not to reduce damages by 40 per cent unreasonable?

Holding: Appeal allowed.


Leave to Appeal

(1) With respect to commercial arbitrations, leave to appeal to the Superior Court of Justice is governed by s. 45 and s. 49 of the Arbitration Act. The court held that it has no jurisdiction on this appeal to review the application judge's decision to grant leave to appeal from the arbitral award, citing Denison Mines Ltd. v. Ontario Hydro.


(1) The arbitrator found that paragraph 6 of the Minutes of Settlement must be read in light of the more general provisions of paragraph 5. In particular, he found that the City had to provide a site similar to Ben Franklin Park as it was in 2004, provided that the "alternative site(s) were appropriate for Coliseum Inc.'s operations". The application judge disagreed with the arbitrator's analysis. She interpreted paragraphs 5 and 6 of the Minutes of Settlement in a two-step fashion. Paragraph 5 mandated that Coliseum and the City work together in "good faith negotiations" to find an alternative site for Coliseum's operations if Frank Clair Stadium became unavailable.

The court held that the application judge's interpretation of paragraphs 5 and 6 of the Minutes is a possible- even a reasonable – interpretation. However, that is not the relevant point. In the court's view, the same could be said about the arbitrator's interpretation. The court held that the arbitrator's reasoning was entirely faithful to this approach. His reasoning and result simply cannot attract the label "unreasonable". Accordingly, the application judge erred by setting aside the arbitrator's interpretation of the Minutes of Settlement and substituting her own. The fact that the application judge's interpretation is also reasonable does not affect the result, as the arbitrator was owed deference on his reasonable interpretation. In light of this ruling, the court did not deal with the second matter of waiver and estoppel.

(3) The court stated because the application judge allowed the appeal on the contractual interpretation issue, she did not, strictly speaking, need to consider the damages issue. The court held that the arbitrator's decision on damages cannot be unreasonable. The court held that the arbitrator dealt with the issue and concluded that Coliseum Inc.'s damages should not be reduced on account of the privity of contract issue, despite significant reservations on this issue.


Hiamey c. Conseil scolaire de district catholique Centre-Sud, 2016 ONCA 354

[Rouleau, Pardu and Benotto JJ.A.]

Godfred Kwaku Hiamey
The respondents were neither present nor represented at the hearing

Keywords: Employment Law, Wrongful Dismissal, Human Rights Complaint, Extension of Time to Appeal, Motion Dismissed

Lynda Keith Marketing, Communications and Events Inc. v. Camp Maple Leaf Incorporated, 2016 ONCA 341

[Laskin, Pepall and Brown JJ.A.]

Samuel Nash, for the appellants
Brian Sherman, for the respondent

Key Words: Appeal Book Endorsement, Varying Judgment, Incorrect Defendants

Nizic v. Petrovic, 2016 ONCA 340

[Laskin, Pepall and Brown JJ.A.]

Glenroy Bastien, for the appellants
James Smith, for the respondent

Contracts, Statute of Frauds, s. 4, Part Performance, Tax Avoidance, Limitations Act, 2002, Appeal Dismissed


R v. Doell, 2016 ONCA 350

[Cronk, Juriansz and Watt JJ.A.]

Robert Sheppard, for the appellant
Moiz Rahman, for the respondent

Key Words: Criminal Law, Sexual Offences, Inconsistent Verdict, Jury Charge, Elements of the Offence, Credibility

R v. Ferdinand, 2016 ONCA 353

[Cronk, Juriansz and Watt JJ.A.]

Carol Cahill, for the appellant
Katie Doherty, for the respondent

Key Words: Criminal Law, Robbery, Cumulative Sentence, Pre-Disposition Custody, Enhanced Credit, R. v. Summers

R v. K.M., 2016 ONCA 347

[Pardu and Benotto JJ.A.]

Vikram Singh, for the appellant
Shawn Porter, for the respondent

Key Words: Criminal Law, Sexual Assault, Unlawful Confinement, Misapprehension and Weighing of Evidence, Adequacy of Reasons, Unreasonable Verdict, Elements of the Offence, Appeal Allowed

R v. Najafov, 2016 ONCA 351

[Feldman, Simmons and Pepall JJ.A.]

Telman Najafov, in person
Erika Chozik, duty counsel
Leslie Paine, for the respondent

Key Words: Criminal Law, Sexual Assault, Unlawful Confinement, Sentencing, Appeal Dismissed

R. v. S.R.J (Publication Ban), 2016 ONCA 352

Key Words: Criminal Law, Publication Ban

R v. Walford, 2016 ONCA 355

[Weiler, Simmons and Epstein JJ.A.]

James Carlisle and Haran Aruliah, for the appellant
Roger Shallow, for the respondent

Key Words: Criminal Law, Aggravated Assault, Assault Causing Bodily Harm, Included Offence, Mens Rea, Appeal Allowed

R v. Iyeke, 2016 ONCA 349

[Cronk, Juriansz and Watt JJ.A.]

Andrew Furgiuele, for the appellant
John A. Neander, for the respondent

Key Words: Criminal Law, Possession of a Firearm, Evidence, Confidential Informant, Hearsay, Closing Address, Jury Charge, Appeal Allowed

R v. Ellis, 2016 ONCA 358

[Simmons, van Rensburg and Benotto JJ.A.]

Breana Vandebeek, for the appellant
Jessica Smith Joy, for the respondent

Key Words: Criminal Law, Attempting to Possess a Firearm, Misapprehension of Evidence, Unreasonable Verdict, Mens Rea, Appealed Allowed in Part

R v. Luckese, 2016 ONCA 359

[Brown J.A. (In Chambers)]

Stephen Whitzman, for the appellant
Michael Perlin, for the respondent

Key Words: Criminal Law, Manslaughter, Bail Pending Appeal, Public Interest, Good Character Evidence, Application Dismissed

R v. Staples, 2016 ONCA 362

[Gillese J.A. (In Chambers)]

Michael Lacy and Marco Sciarra, for the applicant
Lorna Bolton, for the respondent

Keywords: Criminal Law, First Degree Murder, Appointment of Counsel, Criminal Code, s. 684(1), Legal Aid, Financial Disclosure

R v. McGuffie, 2016 ONCA 365

[Doherty, Simmons and van Rensburg JJ.A.]

Howard L. Krongold, for the appellant
James D. Sutton, for the respondent

Keywords: Criminal Law, Possession for Purpose of Trafficking, Canadian Charter of Rights and Freedoms, Arbitrary Detention, s. 9, Right to Counsel, s. 10(b), Unreasonable Search or Seizure, s. 8, Exclusion of Evidence, s. 24(2), Police Misconduct, Appeal Allowed


Gibson (Re), 2016 ONCA 369

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

Stephen F. Gehl, for the appellant
Janice Blackburn, for St. Joseph's Health Care Hamilton
Brock Jones, for the Attorney General of Ontario

Keywords: Ontario Review Board, Criminal Harassment, Not Criminally Responsible, Conditional Discharge, Public Safety

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Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.