Canada: Court Of Appeal Summaries (August 29 – September 2, 2016)

Last Updated: September 8 2016
Article by John Polyzogopoulos

Hello everyone.

While there were only four substantive civil decisions released by the Court of Appeal this week, three of them were fairly lengthy and of some interest. Victoria University v GE Canada is an appeal from a rent arbitration decision that examines the application of issue estoppel in the context of interpreting the meaning of a lease on how to determine fair market value rent. The court held that while the rent resets every 20 or 30 years on the 100 year lease at issue and a rent arbitration may be required every so often to set the rent if the parties cannot agree, that does not give the parties the right to relitigate the interpretation of the lease and the principles to be applied in setting the rent. The parties are bound by the prior interpretation of the lease made in the earlier arbitration. The Central Auto Parts v Barclay decision was a successful appeal by the Thunder Bay police service from a seven figure judgment made against it for negligent investigation. The court held that the trial judge ought to have relied on expert evidence on the appropriate standard of care for the conduct of a police investigation and was not in a position to determine the standard on her own. The Carleton Condominium case will be of interest to condo lawyers, particularly those who represent condo boards. In that case, the court set aside an application judge's order that had overturned the actions of a condo board that were alleged to have been oppressive within the meaning of section 135 of the Condominium Act, 1998. The court applied the "business judgment rule" and held that as long as a board acts honestly and in good faith and exercises the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances, deference should be given to its decisions, which should be reviewed on a reasonableness standard. The court found that the condo board's actions in dealing with one of the unit owners in this case were reasonable. Finally, there was a short endorsement in an unfair competition case dismissing an appeal by an employer whose claim against a departed employee for breach of a non-competition covenant had been dismissed by way of summary judgment.

Have a great long weekend!

Table of Contents:

Civil Decisions

Victoria University (Board of Regents) v. GE Canada Real Estate Equity, 2016 ONCA 646

Keywords: Real Property, Leases, Rent Arbitration, Fair Market Value, Musqueam Indian Band v Glass, Issue Estoppel, Arbitration Act, 1991, Standard of Review, Correctness, Reasonableness, Sattva Capital Corp v. Creston Moly Corp

3716724 Canada Inc. v. Carleton Condominium Corporation No. 375, 2016 ONCA 650

Keywords: Real Property, Condominiums, Condominium Act, 1998, Directors, s. 135, Oppression, Standard of Review, Deference, Reasonableness

Donaldson Travel Inc. v. Murphy, 2016 ONCA 649

Keywords: Employment law, Non-Competition Covenants, Non-Solicitation Covenants, Enforceability, Reasonableness, J.G. Collins Insurance Agencies Ltd. v. Elsley, H.L. Staebler Co. v. Allan, Breach of Confidence, Summary Judgment

495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656

Key words: Torts, Negligence, Negligent Police Investigation, Standard of Care, Reasonable and Probable Grounds, Expert Evidence, Damages, Non-Pecuniary Damages, Mental Distress

For Criminal Law decisions, click here

Civil Decisions:

Victoria University (Board of Regents) v GE Canada Real Estate Equity, 2016 ONCA 646

[Doherty, Pepall and Benotto JJ.A.]

S. Waqué, C. Higgs and R. Wood, for the appellant/respondent by way of cross-appeal, The Board of Regents of Victoria University

P. Griffin and A. Posno, for the respondents/appellants by way of cross-appeal, GE Canada Real Estate Equity and GE Canada Real Estate Equity Holding Company

S. Maidment, G. Moysa and S. Brown-Okrihlik, for the respondent/appellant by way of cross-appeal, Revenue Properties Company Limited

Keywords: Real Property, Leases, Rent Arbitration, Fair Market Value, Musqueam Indian Band v Glass, Issue Estoppel, Arbitration Act, 1991, Standard of Review, Correctness, Reasonableness, Sattva Capital Corp v. Creston Moly Corp


This appeal concerned the meaning of the term "fair market value of the demised lands" in the rent-reset clause of two long-term leases, and the application of issue estoppel. At issue was whether the value of the "demised lands" should take into account a potential use—a freehold residential condominium project—that is impossible because the lands are subject to a lease.

The appellant and respondents are parties to two 100-year leases (the "Leases"). When the lease was entered into in 1960, the land was vacant and condominiums were not yet in existence in Ontario, until the enactment of the Condominium Actin 1967. The Act limited condominiums to freehold property. Therefore, condominiums could not be built by a landlord or tenant on lands subject to a lease.

At the time of the first rent reset in 1990, the parties could not agree on the rent. The rent reset clause makes reference to the fair market value ("FMV") of the demised lands. The dispute was resolved on appeal from arbitration to the Divisional Court, where it was held that the demised lands should be valued as if vacant but subject to a lease. This was referred to as the Revenue Properties #1 decision. Therefore, the FMV of the lands was determined without including a hypothetical freehold residential condominium project in the valuation.

After the first reset, Ontario enacted the Condominium Act, 1998, and the Supreme Court of Canada rendered its decision in Musqueam Indian Band v Glass, 2000 SCC 52, which addressed the interpretation of rent-reset clauses in long-term leases involving reserve lands. The Condominium Act, 1998 permitted leasehold condominiums. Musqueam established that absent a contrary intention in the lease, the word "land" refers to the freehold or fee simple interest in the lands at issue; the word "value" means the exchange value of the land, calculated by determining the "highest and best use" possible; and FMV should reflect legal restrictions on the land but should ignore any particular restrictions imposed by the lease itself.

The 2010 rent reset also resulted in arbitration. The majority of the arbitral panel (the "Majority") valued the lands based on development of a mixed-use commercial-retail and freehold condominium project. As a result of the Majority's interpretation, the rent of at least one of the respondents was reset at approximately four times the prior amount. On appeal, Wilton-Siegel J. (the "Appeal Judge") held that the Majority had erred in law in valuing the lands on the basis of its use for freehold condominium development. He set aside the award and remitted the dispute back to the same arbitral panel.

All of the parties appeal from that decision. The appellant asks that the Majority Award be restored. The appellant submits that the Appeal Judge erred in allowing the appeal of the Majority Award and requiring that the lands be valued by having regard to the impact of land use legislation on the tenants' use of the lands rather than on the basis of a valuation mandated by the ground leases themselves and the decision in Musqueam Indian Band v Glass. The respondents ask that the reasons of the dissenting arbitrator be adopted or that the dispute be remitted to a new arbitral panel.


(1) What is the correct standard of review?

(2) Does issue estoppel apply to prevent consideration of the interest to be valued and the impact of land use legislation?

(3) Did the Appeal Judge err in refusing to return the dispute to a new arbitral panel?


Appeal and cross-appeal dismissed.


(1) The Tenants appealed the Majority Award on two principal questions of law: (1) whether the interest to be valued was the landlord's freehold estate or the tenants' leasehold estate; and (2) the significance of the Condominium Act, 1998 for the valuation of the lands.

The Court of Appeal applied a correctness standard to the Appeal Judge's decision, as the identification and application of the appropriate standard of review is a question of law. With respect to the standard of review that ought to have been applied by the Appeal Judge to the Majority Award, the Court of Appeal applied the principles set out in Sattva Capital Corp v. Creston Moly Corp, 2014 SCC 53. The Majority considered well-established principles regarding issue estoppel in making their decision. The Court held that determination does not attract a correctness standard, and is not a legal question of general importance to the legal system as a whole. As such, a reasonableness standard of review applied to the Appeal Judge's review of the Majority Award.

Even though the Appeal Judge failed to identify issue estoppel as attracting a reasonableness standard, that failure was of no moment. Both the Appeal Judge and the Majority were correct in concluding that the decisions in Musqueam and Revenue Properties #1 were consistent. However, the Majority Award ignored the restrictions in the Condominium Act, 1998. The Act did not constitute a change in the law that permitted the Majority to avoid the application of issue estoppel and to include a potential freehold condominium project in the valuation. As a result, the Majority Award was unreasonable.

(2) Yes, issue estoppel applied.

The elements for issue estoppel are (1) that the same question is being decided; (2) that the judicial decision which is said to create the estoppel was final; and (3) that the parties to the judicial decision are the same persons as the parties to the proceedings in which the estoppel is raised or their privies. The elements were met, but the court retains discretion to not apply issue estoppel when its application would work an injustice. The Court then had to determine what Revenue Properties #1 decided and whether there is any basis (that can be characterized as a special circumstance warranting refusal to apply issue estoppel) from departing from the case.

The leases provided little guidance on the meaning to be attributed to the "FMV of the demised lands" and the evidence on surrounding circumstances was sparse. Revenue Properties #1, Musqueam, the Majority Award and the Appeal Judge all held that the freehold or fee simple interest should be the subject matter of the valuation, not leasehold interest. The Appeal Judge was correct in accepting the Majority's conclusion on this issue.

The Court found that there was no basis from departing from Revenue Properties #1 as a result of the introduction of the Condominium Act, 1998. The Act permits leased condominium development on leased lands. The inability to develop freehold condominiums in place in 1990 is still in place. Therefore, the Condominium Act, 1998 does not constitute a change in the law sufficient to justify a departure from issue estoppel.

In upholding the application of issue estoppel, the Court of Appeal noted that parties to litigation should be entitled to expect certainty and to be able to deal with others in the confidence that the legal precedent established by a prior judicial procedure will be left undisturbed.

(3) No. The Appeal Judge's decision declining the request to remit the dispute to a new arbitral panel was discretionary. Absent an error of law, a material misrepresentation or a clearly wrong result, a discretionary decision attracts deference.

Section 45(5) of the Arbitration Act, 1991, SO 1991, c 17 provides the court with the power to remit an arbitral award to an arbitral tribunal and to give directions about the conduct of the arbitration. "Arbitral tribunal" is not defined in the Act and nothing in s. 45(5) or in the Act read as a whole requires the court to return the matter to the same arbitral tribunal.

The Court of Appeal held that deference was not owed to the Appeal Judge's decision on the appropriate remedy with respect to the appeal of the arbitral decision, due to legal errors in his analysis relating to the requisite statutory or common law authority. However, the Court of Appeal agreed with the factors considered by the Appeal Judge, as well as his disposition to remit to the existing panel. The Court of Appeal considered the principles of efficiency and cost effectiveness that characterize the arbitral model of decision making in coming to this conclusion.

3716724 Canada Inc. v. Carleton Condominium Corporation No. 375, 2016 ONCA 650

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


C. Allen, for the appellant

N. J. Authier, for the respondent

Keywords: Real Property, Condominiums, Condominium Act, 1998, Directors, s. 135, Oppression, Standard of Review, Deference, Reasonableness


The respondent, 3716724 Canada Inc., owns a number of commercial parking spots in a mixed-use condominium, and rents them out on a monthly basis. It wanted to start renting out the spots on an hourly basis to increase profits. The respondent asked the appellant, Carleton Condominium, to approve changes to the common elements in order to make that switch. The board of directors of the condominium was concerned about the increased security risk, as the condo is located in a high-crime area. The board therefore required the respondent to hire a full-time security guard to monitor the operation; otherwise, it would refuse the changes.

The respondent commenced this application, submitting that the board had unfairly disregarded its interests, contrary to s.135 of the Condominium Act. The application judge agreed with the respondent, ordering that the respondent be allowed to make the changes, and dispensing with the need for a vote of the unit owners. The board appealed.


1) Did the application judge rely on evidence not properly before him?

2) Did the application judge err in concluding that the appellant unfairly disregarded the interests of the respondent?


Appeal allowed.


1) Yes. The appellant argued that the financial information relied on by the application judge could only be found in a supplementary affidavit related to the respondent's claim for damages, which the parties agreed would be adjourned to a later day. The application judge had reasoned that a full-time security guard was not a viable option and would be "prohibitively expensive", and therefore concluded that the appellant unfairly disregarded the interests of the respondent. The evidence relied upon by the application judge in making these findings was contained only in an untested affidavit, which the parties had advised the judge not to consider. Therefore, the judge relied on information not properly before him.

2) Yes. The application judge erred by assessing the board's decision on a subjective basis and substituting his judgment for that of the board.

i. The board's decision was owed deference:

The first question for a court reviewing a condominium board's decision is whether the directors acted honestly and in good faith and exercised the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances. If they did, then the board's balancing of the interests of a complainant under s. 135 of the Act against competing concerns should be accorded deference. The question is not whether a reviewing court would have reached the same decision as the board, but whether the board reached a decision that was within a range of reasonable choices. If it did, then it cannot be said to have fairly disregarded the interests of a complainant.

ii. The board's decision was reasonable:

The appellant acted honestly and in good faith. The respondent did not succeed in impugning the competence of the board or the process leading up to its decision. The board was transparent as to the nature of its concerns. In this case, the real question was whether the board reached a decision that was within a range of reasonable choices. The application judge erred in not focusing on this question because he disagreed with the balancing between competing interests struck by the board.

Donaldson Travel Inc. v. Murphy, 2016 ONCA 649

[Feldman, Simmons and Lauwers JJ.A.]


J. McDonald, for the appellant

G. Flaxbard, for the respondent Mary Murphy

P. Forte, for the respondents Peter Van Der Heyden and 1631318 Ontario Inc.

Keywords: Employment law, Non-Competition Covenants, Non-Solicitation Covenants, Enforceability, Reasonableness, J.G. Collins Insurance Agencies Ltd. v. Elsley, H.L. Staebler Co. v. Allan, Breach of Confidence, Summary Judgment


The appellant travel agency appeals from an order granting summary judgment against it, dismissing its claims against the respondent departed employee and her new employer. The travel agency alleged breach of contract, misappropriation of confidential information, inducing breach of contract and interference with contractual relations.


  1. Did the motion judge err in interpreting a restrictive covenant as a non-competition clause instead of a non-solicitation clause?
  2. Did the motion judge err in finding that the former employee had not misappropriated her former employer's confidential information?


Appeal dismissed.


1. No. At issue was the following restrictive covenant: "[The personal respondent] agrees that in the event of termination or resignation that she will not solicit or accept business from any corporate accounts or customers that are serviced by [the appellant], directly, or indirectly." The Court held that the motion judge had not erred in interpreting "or accept business" as restricting competition.

Given that the restrictive covenant was a non-competition clause (as opposed to a non-solicitation clause) and contained no temporal limitation, the Court held that there was no basis on which to interfere with the motion judge's conclusion that the clause was unreasonable and therefore unenforceable: J.G. Collins Insurance Agencies Ltd. v. Elsley, [1978] 2 S.C.R. 916, at para. 19; H.L. Staebler Co. v. Allan, 2008 ONCA 576, 92 O.R. (3d) 107, at para. 36.

2. No. Regarding the issue of whether the departed employee had disclosed sales volumes and revenues associated with particular client names, the motion judge found that the appellant's evidence was not inconsistent with the respondent's evidence. Both parties agreed that the departed employee had disclosed only her own annual sales volumes.

The motion judge's findings were available on the record before him. The appellant objected that the motion judge erred in failing to conduct a mini-trial. However, the appellant did not cross-examine the respondents' witnesses on their affidavits. Therefore, the Court held that assertions as to inferences to be yielded through a cross-examination lacked foundation.

Given that the claim for disclosure of confidential information and breach of contract failed with respect to the former employee, the Court held that the claims against the new employer for participating in the disclosure and inducing the breach also failed.

495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656

[Juriansz, Epstein and Pepall JJ.A.]


C. Kirk Boggs, J. T. Akbarali, and D. Litwin, for the appellants

P.J. Pape, and J. L. Nairn, for the respondents

Key words: Torts, Negligence, Negligent Police Investigation, Standard of Care, Reasonable and Probable Grounds, Expert Evidence, Damages, Non-Pecuniary Damages, Mental Distress


Mr. Ricardo ("Rick") Mercuri, along with his father and other family members, ran an auto recycling company, the respondent, 495793 Ontario Ltd c.o.b. as Central Auto Parts ("Central"), in Thunder Bay, Ontario. In 1997, the Thunder Bay Police Service began an investigation into stolen vehicles and auto parts in their community. On April 22, 1999, a search warrant was executed on Mr. Mercuri's business premises. He was subsequently charged with eleven counts of possession of stolen property.

Six charges were withdrawn after the Crown was required to disclose information on the confidential vehicle identification number ("CVIN") after an unsuccessful application under s. 37 of the Canada Evidence Act, R.S.C. 1985, c. C-5. An amended indictment of five charges was presented at trial, but the Crown withdrew two more charges. There were acquittals, after directed verdicts, on two of the remaining three charges that proceeded to trial before Wright J. of the Superior Court of Justice. On June 8, 2005, Wright J. found Mr. Mercuri not guilty on the remaining charge, without calling on the defence for submissions.

In December 2005, Mr. Mercuri and Central sued Frank Barclay and the City of Thunder Bay Police Service in tort for negligent police investigation. At trial, Pierce R.S.J. issued judgment in favour of Mr. Mercuri and Central.

The trial judge found that the police did not meet the standard of care in four respects. The trial judge also rejected the expert opinion evidence on the standard of care, which was provided by an auto theft investigation police expert. The trial judge observed that the courts have ruled on the reasonableness of the conduct of the police for centuries. Moreover, she concluded that the lead investigator had conceded that the investigation was deficient and had apologized to the individual respondent during the course of the trial for errors in the investigation.

The trial judge awarded non-pecuniary damages of $200,000 for the humiliation and worry suffered by Mr. Mercuri while the charges remained outstanding for six years. In awarding damages for loss of business income, the trial judge considered the evidence of the experts tendered by each party on the quantum of business losses to Central as a result of the prosecution of Mr. Mercuri. The experts did not differ, for the most part, as to how damages should be quantified, but disagreed as to the length of time that income loss was suffered. The trial judge rejected the appellants' expert opinion that the economic losses should be limited to 18 months, and awarded damages of $1,042,179.00 for the period from May 1, 1999 to September 30, 2008. Damages of $70,000 were also awarded for damage to vehicles that were improperly stored by the police. The police appealed.


  1. Did the trial judge err by determining the standard of care without relying on expert evidence in the particular circumstances of this case?
  2. Did the trial judge, in formulating the standard of care, err by considering whether the police could prove Mr. Mercuri had knowledge that the auto parts were stolen rather than whether the officers had reasonable and probable grounds to believe that an offence had been committed?
  3. Did the trial judge ignore or misapprehend relevant considerations, including the committal of Mr. Mercuri to trial, the legislation at issue, Mr. Mercuri's admissions, the evidence regarding the altered vehicle identification numbers ("VINs"), and Mr. Mercuri's possession of stolen property?
  4. Finally, the appellants take issue with the assessment of non-pecuniary damages and damages for loss of profits.


Appeal allowed.


For the reasons that follow, the Court concluded that the trial judge erred by deciding the content of the standard of care without expert evidence. There are two exceptions to the general rule that expert evidence is required. Neither exception applies here. Without such evidence, there was no basis for determining the appropriate content of the standard of care of a reasonable Thunder Bay police officer conducting a specialized investigation into stolen auto parts, and consequently no basis upon which the trial judge could find that the standard had been breached. The trial judgment was therefore set aside, with the exception of the $70,000 award for damage done to the vehicles from the improper storage by the police.

1. Yes. The general rule is that the content of the standard of care of a professional, such as a police officer, will require expert evidence. Strathy C.J.O. in Meady explained that that general rule is subject to the exception for "nontechnical matters or those of which an ordinary person may be expected to have knowledge". The second is where the impugned actions are so egregious that it is obvious that the defendant's conduct has fallen short of the standard of care without even knowing precisely the parameters of the standard of care.

Whether expert evidence as to the standard of care of a police officer is required turns on the nature of the issues and the facts of each case, with particular regard to the specialized or technical nature of the circumstances, and whether a trier of fact can rely on its own knowledge and experience to determine the appropriate standard of care and whether it is met.

In this case the trial judge erred in departing from the general rule. She made no specific reference to the general rule, but her reasons suggest she considered she could rely on both exceptions. The trial judge erred in determining the content of the standard of care without expert evidence in the particular circumstances of this case. This was a technical, complicated investigation outside the knowledge of an ordinary person and there was no basis for finding the police conduct was egregious.

2. Yes. Even if the trial judge could have determined the standard of care without relying on expert evidence, she erred in formulating the content of the standard of care. The trial judge repeatedly used language that suggested that the police obligation was to prove Mr. Mercuri's guilt in order to be acting reasonably. Whether police had reasonable and probable grounds to charge is what should have informed the standard of care.

The trial judge, in formulating the content of the standard of care, erred by considering whether the police could prove Mr. Mercuri had knowledge that the auto parts were stolen rather than whether the officers had reasonable and probable grounds to believe that an offence had been committed.

3. Yes. The trial judge's errors were compounded by her failure to accord proper weight to the fact that there had been a committal to trial on all charges after a preliminary hearing, or to the role of the Crown and the criminal justice system as the prosecution proceeded. The trial judge failed to place any weight on the committal for trial. She also failed to fully assess the role that the Crown played in providing oversight of the prosecution despite the inadequacies in what was provided, and to give sufficient consideration to the fact that there were several relevant determinations in the criminal proceedings. These failures further undermine the trial judge's conclusions that the standard of care in this case could be evaluated based on the knowledge and experience of a Superior Court judge and that the conduct was clearly egregious.

The trial judge did not give proper consideration to the fact that the deficiencies in the information to obtain the search warrant had been considered in the course of the criminal proceedings and that the criminal trial judge had concluded that the deficiencies did not warrant exclusion of the evidence. Nor did the trial judge adequately consider the connection between the withdrawal of charges and the s. 37 ruling requiring the Crown to disclose the location of CVIN numbers. Those charges were not withdrawn because the Crown perceived some deficiency in the reasonable and probable grounds to charge Mr. Mercuri. The trial judge leapt from the withdrawal of those charges to a finding of negligence premised on the failure of the police. She failed to adequately focus on whether the police had reasonable and probable grounds at the time they laid these charges.

4. It was deemed unnecessary to address the issue of damages but nevertheless, the Court made certain observations.

First, the trial judge did not distinguish between Mr. Mercuri and Central in awarding damages. She awarded all categories of damages "to the plaintiffs" jointly. Central was not entitled to the non-pecuniary damages predicated on Mr. Mercuri's personal experience, nor reimbursement of legal fees that Mr. Mercuri incurred personally for his defence of the criminal charges.

Second, the evidence did not support the trial judge's substantial non-pecuniary award of $200,000. She made no finding that Mr. Mercuri's "emotional upset" rose to the level of personal injury. There was nothing in the evidentiary record that would support such a finding.

Disgust, anxiety, agitation or other mental states that fall short of injury." Here, the trial judge found Mr. Mercuri suffered "emotional upset" and summarized the basis for that conclusion. As frustrated and upset as Mr. Mercuri may have been as a result of the charges against him, his unsupported testimony of emotional upset was insufficient to ground the substantial award of non-pecuniary damages the trial judge made.

In awarding substantial loss of income damages, the trial judge seems to have relied heavily upon what she viewed as the police's breach of the standard of care in communicating with the media. Without expert evidence of what normal police practices in communicating with the media are or should be, the trial judge was not in a position to evaluate whether the action of the police chief in calling a press conference fell below the standard of care in this case.

Criminal Decisions:

R. v. Figueroa, 2016 ONCA 645

[Pepall, Tulloch and Pardu JJ.A.]


B. Snell, for the appellant Cristian Figueroa

J. S. Wilkinson and D. Negandhi, for the appellant Fabian Loayza-Penaloza

J. Corelli, for the respondent

Keywords: Criminal Law, First Degree Murder, Aiding and Abetting, Miscarriage of Justice, Evidence, Admissibility, Hearsay, Reasonable Factual Inferences, Cross-Examination, Prior Inconsistent Statements, Jury Instructions, Vetrovec Warning, Criminal Code, Sections 21(1)(b) and 21(2).

R. v. Merelles, 2016 ONCA 647

[Pepall, Tulloch and Benotto JJ.A.]


A. Fedorowicz, for the appellant

G. Zaman, for the respondent

Keywords: Criminal Law, Trafficking, Possession, Search Warrants, Validity, Standing, R. v. Campbell, 2010 ONCA 588, Reasonable Expectation of Privacy, R v. Edwards, 1 S.C.R. 128,

R. v. Dhaliwal, 2016 ONCA 652

[Strathy C.J.O., Pepall and Hourigan JJ.A.]


J. Lockyer, for the appellant

L. Joyal, for the respondent

Keywords: Criminal Law, Possession, Public Mischief, Evidence, Cross-Examination, Hearsay, Fresh Evidence

R. v. Bent, 2016 ONCA 651

[Strathy C.J.O., Gillese and Pardu JJ.A.]


C. Harper, for the appellant

P. Calarco, for the respondent

Keywords: Criminal Law, Sexual Touching, Consent, Similar Fact Evidence, R. v. Handy, 2002 SCC 56, Sufficiency of Reasons

R. v. Hope, 2016 ONCA 648

[Epstein J.A. (In Chambers)]


M. Webb, for the applicant Lucy

A. Cecchetto, for the responding party

Keywords: Endorsement, Criminal Law, Second Degree Murder, Criminal Code, Section 679(7.1), Release Pending Trial, Gladue Principles

R. v. Dupe, 2016 ONCA 653

[Doherty, Feldman and Brown JJ.A.]


P. Campbell, for the appellant

R. A. Pinnock, for the respondent

Keywords: Criminal Law, First Degree Murder, Hearsay, Surrebuttal Evidence, Defence of Provocation, Air of Reality

R. v. Johnson, 2016 ONCA 654

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


D. C. Santoro, for the appellant

G. Zaman, for the respondent

Keywords: Endorsement, Criminal Law, Possession, Trafficking, Air of Reality, Burden of Proof

R. v. Logue, 2016 ONCA 659

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


S. Friedman, for the appellant

M. Fawcett, for the respondent

Keywords: Endorsement, Criminal Law, Impaired Driving Causing Bodily Harm, Evidence

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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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.