Canada: Court Of Appeal Summaries (January 3 – January 6, 2017)

Last Updated: January 12 2017
Article by John Polyzogopoulos

Below are the summaries of this week's civil decisions of the Court of Appeal. Most of them were procedural in nature (dismissal for delay, appellate jurisdiction, limitation periods, setting aside orders, summary judgment).

Table of Contents

Civil Decisions (click on case name to read summary):

PM v MA, 2017 ONCA 6

Keywords: Endorsement, Family Law, Child Protection, Civil Procedure, Appeals, , Jurisdiction, Interlocutory Orders

Ticchiarelli v. Ticchiarelli, 2017 ONCA 1

Keywords:  Civil Procedure, Dismissal for Delay, Rules of Civil Procedure, Rule 24.01, Langenecker v. Sauvé, 2011 ONCA 803, Wallace v Crate's Marine Sales Ltd., 2014 ONCA 671

W&W Fiberglass Tank Co. Profit Sharing Plan v. Bartholomew, 2017 ONCA 4

Keywords: Equitable Claims, Breach of Fiduciary Duty, Contracts, Forum Selection Clauses, Summary Judgement

D'Onofrio v. Advantage Car & Truck Rentals Limited, 2017 ONCA 5

Keywords: Civil Procedure, Orders, On Consent, Unopposed, Setting Aside

Roulston v McKenny, 2017 ONCA 9

Keywords: Estates, Trustee Act, RSO 1990, c T.23, s 38(3), Limitation Periods, Fraudulent Concealment

For Short Civil Decisions, click here.

For Criminal Decisions, click here.

Civil Decisions:

PM v MA, 2017 ONCA 6

[Gillese, Juriansz and Watt JJ.A.]

Counsel:

R. Rowe, for the appellant

K. Janczaruk, for the respondent M.A.

M. Chen, for the respondent Catholic Children's Aid Society of Toronto

T. Law, for the respondent Office of the Children's Lawyer

Keywords: Endorsement, Family Law, Child Protection, Civil Procedure, Appeals, , Jurisdiction, Interlocutory Orders

Facts:

The matter arose from litigation over access to children between the father PM, the mother MA, the Catholic Children's Aid Society and the Office of the Children's Lawyer. In child protection proceedings, the Society obtained an order in the Ontario Court of Justice varying the father's access, pending trial, from unsupervised to supervised. The father's appeal to the Superior Court was dismissed after his request for an adjournment was refused. He appealed to the Court of Appeal.

Issue:

Whether the Court of Appeal had jurisdiction to hear the appeal of the order concerning access pending trial.

Holding:

Appeal quashed for lack of jurisdiction.

Reasoning:

The order of the Ontario Court of Justice was interlocutory. The fact that order was the subject of an appeal does not change its fundamental nature. Both the order of the Ontario Court of Justice and the order of the Superior Court on appeal dealt with interim access pending trial, an interlocutory matter. The order of the Superior Court is interlocutory, notwithstanding that on its form there was a checkmark beside "final order". Because the order was interlocutory, the Court of Appeal had no jurisdiction to hear the appeal.

The appellant asked the Court of Appeal to transfer the appeal to the Divisional Court under s 110(1) of the Courts of Justice Act. The Court of Appeal refused to do so, as it appeared that s 19(4) of the Courts of Justice Act precludes an appeal to the Divisional Court. Rule 39(3) of the Family Law Rules is procedural and does not create a right of appeal where none exists.

Counsel's argument that the court had inherent or residual jurisdiction to hear the appeal was without merit, and the Court noted that there must be a statutory basis for the Court to hear an appeal. The Court of Appeal also refused to constitute itself a panel of the Divisional Court. While that option has been used in the past, the experience of the court has led to its practical abandonment.

Ticchiarelli v. Ticchiarelli, 2017 ONCA 1

[Simmons, LaForme and Pardu JJ.A.]

Counsel:

W. J. Burden, for the appellant

J.T. Akbarali, for the respondents, Nazzareno Ticchiarelli, 882897 Ontario Ltd., the Estate of Ermoli Piccioni, deceased, and John Doe as litigation guardian of the Estate of Danny Piccioni, deceased

Keywords:  Civil Procedure, Dismissal for Delay, Rules of Civil Procedure, Rule 24.01, Langenecker v. Sauvé, 2011 ONCA 803, Wallace v Crate's Marine Sales Ltd., 2014 ONCA 671

Facts:

This action involves a dispute over the ownership of shares of 897 Corporation, a company with an equity interest in a property development in Windsor, Ontario. On February 19, 2004, the appellant commenced the action against the respondents; his brother Nazzareno, his uncle Ermoli Piccioni and the estate of his cousin Danny Piccioni, as well as a related corporation (882897 Ontario Ltd. — "897 Corp."). Ermoli Piccioni died in 2006 and an Order to Continue from 2010 continued the action against his estate.

The appellant asserts that Nazzareno, in reliance on misrepresentations by Danny and Ermoli Piccioni, misused a power of attorney that the appellant had granted to Nazzareno and deprived the appellant of repayment of his $225,000 shareholder loan to 897 Corp., $25,000 owed to him for common shares that Nazzareno sold to Danny Piccioni, and the appellant's share of profits pursuant to a Profit Sharing Agreement that Nazzareno purported to execute on the appellant's behalf. The respondents acknowledge some indebtedness, and promise to pay it when it becomes due; they deny the allegations of conspiracy, misrepresentation, undue influence and unconscionability.

The issues in the action centred on the signing of two agreements in June 1996 and the intention of the parties when those agreements were signed. However, the appellant did not commence the action until February 2004, more than seven and a half years after the relevant events. Meanwhile, Danny Piccioni had died during the previous year.  According to the motion judge, the action began with "reasonable dispatch", but, after the appellant delivered his affidavit of documents, the action became dormant for over five years. The appellant allowed four years to pass between when his first lawyer ceased to represent him and the time when he retained a new one in 2009.

This second lawyer took action by proposing a settlement in May 2010 and by cross-examining Danny and Ermoli Piccioni's estate trustees on November 4, 2010. However, no progress occurred between November 2010 and July 2014. In September 2014, the appellant made an offer to settle, but, by 2015, the negotiations failed. During 2015, the parties agreed to mediation, but, on June 8, two days before the mediation date, counsel for the Estate of Ermoli Piccioni cancelled the mediation. Shortly thereafter, all of the defendants except for Nazzareno Ticchiarelli moved to dismiss the action for delay. The motion was granted. Since the motion judge's decision, one of the proposed witnesses, Angeladea Piccioni, has died. Rinaldo Ticchiarelli appeals.

Issue:

  1.   Is fresh evidence admissible?
  1. Did the motion judge err in dismissing the action for delay?

Holding:

Appeal dismissed.

Reasoning:

  1. Yes. There is no opposition to the admission of the new evidence that one proposed witness for the trial of this action, Angeladea ("Angela") Piccioni, has died since the motion judge's decision. The relevance of the evidence and its admissibility are obvious and ought to be admitted on appeal.
  1. No. The dismissal of an action for delay will be justified where the delay is inordinate, inexcusable, and prejudicial to the defendants in that it gives rise to a substantial risk that a fair trial of the issues will not be possible. The court may derive its jurisdiction to dismiss an action for delay either from r. 24.01 of the Rules of Civil Procedure, or through its inherent jurisdiction to prevent an abuse of its own process.

(i) Inordinate delay?

The motion judge correctly observed that "the inordinance of the delay is measured simply by reference to the length of time from the commencement of the proceeding to the motion to dismiss". He also noted the appellant's concession that the eleven year delay in this case was inordinate and agreed that it was. While the appellant seems to resile from that concession on appeal, the Court of Appeal finds no reason to disagree with the appellant's concession on the motion or the reasonableness of the motion judge's agreement with that concession.

(ii) Inexcusable delay?

Whether the delay is inexcusable requires an examination of the reasons for it and whether they present an adequate explanation. Such an examination would look for explanations that are "reasonable and cogent" or "sensible and persuasive". The court will consider not only the explanations offered for individual parts of the delay, but also the overall delay and the effect of the explanations considered as a whole. Through this examination, the delay could then be excused, at least to the extent that an order dismissing the action would be inappropriate.

The appellant's explanation for the delay from 2004 – 2009 is extremely weak. His excuse is that he always has understood that this dispute is a "family dispute, which could and should be resolved among family members". Yet, he next asserts that he always intended to pursue the lawsuit. Similarly, his explanation for the delay from 2010 – 2014 is incoherent. On the one hand, he believed that the respondents would honour their duty to return his investment. On the other hand, he claims that he always intended to pursue the lawsuit.

The motion judge rejected the argument that at least some of the delay falls at the feet of the respondents. As this court noted in Wallace v Crate's Marine Sales Ltd., 2014 ONCA 671, the plaintiff is responsible for moving the action along. In this case the motion judge reasonably found that the appellant failed to meet this responsibility.

(iii) Prejudice to fair trial rights?

Here the test is whether the delay has been prejudicial to the defendants in that it creates a substantial risk that a fair trial of the issues will not be possible. The motion judge correctly stated this principle and the related rule that inordinate delay generates a presumption of prejudice. He then directed himself to the comments of this court in Langenecker, at para. 11: "Memories fade and fail, witnesses can become unavailable, and documents can be lost. The longer the delay, the stronger the inference of prejudice to the defence case flowing from that delay".

In these circumstances, the motion judge's finding that the presumption of prejudice was not rebutted is completely reasonable. Indeed, actual prejudice was made out as a result of the death of key witnesses. The motion judge's further conclusion that the prejudice creates a substantial risk that a fair trial of the issues will not be possible is also reasonable.

(iv) Inherent jurisdiction?

Finally, the motion judge concluded his reasons by granting the respondents relief under rule 24.01, but he went on also to dismiss the action in reliance on the court's inherent jurisdiction. Clearly, the motion judge was of the opinion that the civil justice system could no longer tolerate the inordinate and inexplicable delay in this case. His view on the record before him was that the time had come when enough was enough. The Court of Appeal agreed that the record certainly supports the motion judge's conclusion and it was not unreasonable.

W&W Fiberglass Tank Co. Profit Sharing Plan v. Bartholomew, 2017 ONCA 4

[Gillese, MacFarland and Pepall JJ.A.]

Counsel:

R. G. Chapman, for the appellant

J. M. Picone, for the respondents

Keywords: Equitable Claims, Breach of Fiduciary Duty, Contracts, Forum Selection Clauses, Summary Judgement

Facts:

It is undisputed on the record that the money paid by the appellant, earmarked for a specific fund, and no other, was in fact otherwise invested by the individual respondents and, to date, has not been repaid. The funds were diverted to third-party companies connected to the respondents. When the appellant's money was not returned following his lawyer's demand letter dated October 8, 2015, the Statement of Claim was issued October 30, 2015, and a summary judgment motion was promptly set down.

That motion was adjourned at the respondents' request, pending settlement discussions. The respondents do not dispute the facts – there is no Statement of Defence, no affidavit evidence filed by either respondent, or on their behalf, and they did not seek to cross-examine the appellant's affiants.

The respondents entered into Minutes of Settlement with the appellant. That said, they argue that because the Minutes provided that the settlement was "not agreed or effective", unless certain stipulated payments were made, they may not be relied upon.

On this appeal, there is no need to decide whether the Minutes of Settlement are enforceable or otherwise admissible into evidence. According to the Court of Appeal, the case turns on whether the respondents breached their fiduciary duties, misappropriated funds belonging to the appellant, and are obliged to account.

The sole ground of defence raised in opposition to the appellant's summary judgment motion was that, although both respondents were served and live in Ontario, the action had to be stayed – and the motion for summary judgment dismissed – because of the choice of forum clause contained in the Subscription Agreement (the "Agreement").

The motion judge accepted this argument and, by order dated May 27, 2016 (the "Order"), dismissed the appellant's motion for summary judgment and stayed the action.

Issue:

Did the motion judge err in misconstruing the nature of the appellant's claim?

Holding:

Appeal allowed.

Reasoning:

Yes. While breach of contract under the Agreement was also pleaded, the action was also for breach of fiduciary duty and for an accounting from the respondents – who are, on the evidence, responsible for, and who facilitated, the movement of the appellant's money without authority. The Statement of Claim alleges that the respondents breached their fiduciary duty to the appellant, by causing the appellant's monies to be advanced to third parties connected to the respondents. The choice of forum clause in the Agreement therefore has no application.

Although there is no evidence in the record that the respondents were also an operating mind of the recipients of the funds, the respondents did not contest the appellant's assertion that the respondents worked in concert to misappropriate the monies. The self-dealing aspects of the transactions are readily apparent. Therefore, the claim is for breach of fiduciary duty and an accounting and, in its essence, is one for the return of misappropriated funds. The motion judge's order was set aside and summary judgment was granted in favour of the appellant.

D'Onofrio v. Advantage Car & Truck Rentals Limited, 2017 ONCA 5

[Gillese, Benotto and Roberts, JJ.A.]

S.Singh, for the appellants

S.Ross and M. McLean, for the respondents Advantage Car & Truck Rentals Limited and Anita Marques

A.Z. Khan, for the respondent Unifund Assurance Company

Keywords: Civil Procedure, Orders, On Consent, Unopposed, Setting Aside

Facts: In early August 2008, Anthony D'Onofrio was injured when the van he was driving was rear-ended by another vehicle. The young female driver of the vehicle spoke briefly with D'Onofrio but drove off without providing ownership and insurance information. D'Onofrio recorded the license plate number of the other car at the scene of the accident. The car was traced to Advantage Car and Truck Rentals Ltd.

D'Onofrio had a standard automobile policy with Unifund Assurance Company. That policy contained an unidentified motorist provision. D'Onofrio and his parents started an action for damages in which it named Advantage, Jane Doe (the driver of the vehicle), and Unifund. Unifund defended and cross-claimed against Advantage and Jane Doe.

Through Unifund's investigations, it came to believe that Anita Marques, who was an employee of Advantage at the time, was the probable driver of the vehicle. The Plaintiffs substituted Marques for Jane Doe.

Advantage and Marques defended the action based on "Identity Defences". These defences were that the identities of the driver and/or the owner of the vehicle were unknown, as was whether the driver was operating the offending vehicle with the owner's consent.

Unifund launched a summary judgment motion for an order dismissing the action against it because the identities of the owner and driver of the vehicle were known.

In a letter dated July 31, 2015, counsel for Advantage and Marques responded to Unifund and advised that those parties would take no position on the Summary Judgment Motion on the basis that no costs would be sought against them.  On August 11, 2015, Unifund advised all parties that "we will agree to a consent motion to dismiss the action without costs against our client." Counsel for Advantage and Marques did not respond to the Unifund Letter. They did not file responding materials on the Summary Judgment Motion nor did they attend the hearing.

At the Summary Judgment Motion, counsel for Unifund advised the court that the order it sought was "on consent". No party other than Unifund attended at the hearing of the motion. The Summary Judgment motion judge made the order which Unifund sought, stating that the Plaintiffs took no position and that Advantage and Marques consented to it. The action was dismissed as against Unifund, leaving Advantage and Marques as the sole defendants.

The parties all agreed that the Summary Judgment Motion was decided in error, because, in fact, the Plaintiffs, Advantage and Marques had not consented, but instead had taken no position. Counsel for Advantage and Marques put the Plaintiffs on notice that they considered the First Order to have no effect on the Identity Defences and that they intended to continue to rely on those defences at trial. As a result, the Plaintiffs brought a motion to settle the effect of the First Order.

In this motion, the Plaintiffs asked for an order precluding Advantage and Marques from raising the Identity Defences at trial. They argued that Advantage and Marques were estopped from asserting the identity defences in virtue of the position they had taken on the Summary Judgment Motion, or alternatively, having failed to "put their best foot forward" on that motion. The Plaintiffs asked that the First Order be set aside so that Unifund would continue as a party to the action. The motion judge dismissed the motion ("Second Order") and made a "clerical correction" to the First Order by amending the wording of the second paragraph in its preamble to state that Advantage and Marques had taken no position on the Summary Judgment Motion. Finally, the motion judge issued a Costs Order, ordering the Plaintiffs to pay costs of the Clarification Motion to Unifund in the amount of $6,312.25 and to Advantage and Marques in the amount of $9,949.72.

The Plaintiff appealed all three orders.

Issues:

1) Did the clarification motion judge err in failing to find that the First Order bound Advantage and Marques such that they are now estopped from raising the Identity Defences at trial?

2) If the answer to the first question is "no", did the summary judgment motion judge err in failing to provide adequate reasons on the Summary Judgment Motion?

Holding: Appeals allowed.

Reasoning:

1) Yes. The Identity Defences which Advantage and Marques sought to raise at trial were directly affected by the Summary Judgment Motion, therefore they were interested in the outcome of the Summary Judgment Motion. Further, as parties to the action, Advantage and Marques were bound by the First Order. This was so regardless of the position that they took on the Summary Judgment Motion. The Summary Judgment Motion was brought to decide the central question of this action, which was whether the Plaintiffs would look to Advantage and Marques for a remedy, or to Unifund. Thus, Advantage and Marques were directly affected by the Summary Judgment Motion. Their ability to maintain the Identity Defences at trial depended on the motion being dismissed. Unifund could only have been let out of the action if the summary judgment motion judge was satisfied that the action no longer involved an uninsured motorist vehicle claim. On the record before the court, the judge could only have been satisfied of that if he accepted that Advantage and Marques were the owner and driver of the offending vehicle.

2) Yes. The summary judgment motion judge gave a single reason for making the first order, which was the consent of the parties. This reason is wrong, although this is not the judge's error, because he was told by Unifund that all parties consented to the granting of the order as sought.

A consent judgment is not a judicial determination on the merits of a case, but only an agreement between the parties elevated to an order on consent. The clarification motion judge erred in treating the fact that Advantage and Marques took no position on the Summary Judgment Motion as the equivalent of having consented to the motion. Had Advantage and Marques consented to the Summary Judgment Motion, they could not have purported to resile from its underlying determination that there were no genuine Identity Defences to go to trial. It was only because they had taken "no position" on the Summary Judgment Motion that they could be purported to be entitled to raise those defences at trial.

Roulston v McKenny, 2017 ONCA 9

[Doherty, Brown and Huscroft JJ.A.]

Counsel:

R. T. Morris, for the appellant

S. Dewart and A. Lei, for the respondent

Keywords: Estates, Trustee Act, RSO 1990, c T.23, s 38(3), Limitation Periods, Fraudulent Concealment

Facts:

The appeal concerned the estate of Mr. Penner, who died in March 2013. He was survived by his sister, the appellant Rita Roulston, who is his estate trustee, as well as the beneficiary under his will. He was also survived by his former wife, the respondent Pauline McKenny. Mr. Penner and Ms. McKenny signed a separation agreement in 2002. Part of the agreement was that Mr. Penner would maintain $150,000 in life insurance designating Ms. McKenny as the beneficiary. The parties also agreed that in the event Mr. Penner failed to maintain the insurance, Ms. McKenny would have a first charge against his estate in the amount of $150,000.

Mr. Penner had failed to pay the premiums on the life insurance policy, which lapsed before his death. His estate was worth more than $100,000. His will divided the residue 50:50 between his sister, Ms. Roulston, on the one hand, and several nieces and nephews, on the other.

In September 2015, Ms. McKenny commenced an action against the estate seeking payment of $150,000. In the context of an application for directions brought by Ms. Roulston as estate trustee, the parties asked the court to determine Ms. McKenny's claim against the estate. The estate trustee argued Ms. McKenny's claim was statute-barred. The application judge held Ms. McKenny's claim for a first charge against the estate was not statute-barred. Ms. Roulston appealed, in her personal capacity as a beneficiary under her brother's will.

Section 38(3) of the Trustee Act, RSO 1990, c T.23 provides that an action brought against an estate trustee under s 38 shall not be brought after the expiration of two years from the death of the deceased. Mr. Penner died on March 20, 2013. Ms. McKenny commenced her action more than two years later, on September 18, 2015. The application judge held that Ms. McKenny's action was not statute-barred because the application of the doctrine of fraudulent concealment to the conduct of the estate trustee tolled the two-year limitation period until at least September 25, 2013. As a result, Ms. McKenny commenced her action within the limitation period. Applying the principles regarding fraudulent concealment in Giroux Estate v Trillium Health Centre (2005), 74 OR (3d) 341 (CA), the application judge found (i) the estate trustee, Ms. Roulston, was in a special relationship with Ms. McKenny because she had exclusive possession of knowledge and information whether an insurance policy existed and thus whether Ms. McKenny had a debt claim against the estate; (ii) the estate trustee acted in an unconscionable manner by withholding from Ms. McKenny material facts about the status of the insurance policy; and, (iii) as a result of withholding that information, Ms. McKenny had a reasonable belief, at least until September 25, 2013, that Mr. Penner's insurance policy had been in good standing at the time of his death.

Issue:

(1) Whether the trial judge erred in finding a special relationship existed between the estate trustee and Ms. McKenny.

(2) Whether the trial judge erred in finding that the conduct of the estate trustee was such as to attract the operation of the doctrine of fraudulent concealment.

Holding:

Appeal dismissed.

Reasoning:

(1) No. The special relationship arose from a combination of the duties owed at law by an estate trustee to estate creditors and Ms. Roulston's control over information about insurance policies owned by the deceased. The law imposes on estate trustees duties to the deceased's creditors. Property of a deceased that vests in his estate trustee is subject to the payment of his debts: Estates Administration Act, RSO 1990, c E.22, s 2(1). As a result, one of the fundamental duties of an estate trustee is to ascertain the debts and liabilities owing by the estate and to pay them.

Information about any insurance policies in place at the time of the deceased's death lay within the control of the estate trustee. Following Mr. Penner's death, counsel for Ms. McKenny wrote to counsel for the estate asking for particulars of any policy of insurance under the separation agreement. Estate counsel responded on June 4, 2013 that the estate trustee was "currently making investigations with respect to the insurance policy." Ms. McKenny's counsel then contacted the insurer seeking information about any policy. The insurer advised it could only release information to the estate trustee.

Ms. McKenny was unable to obtain information about a policy directly from the insurer. There was no error in the application judge's findings that (i) the estate trustee had exclusive possession of knowledge and information of whether Ms. McKenny's debt actually existed and (ii) since the estate trustee was in a unique and privileged position to obtain information, it was reasonable for Ms. McKenny to rely on what she was being told.

(2) No. There was no reversible error in the application judge's finding that the estate trustee's conduct was unconscionable. On April 29, 2013, estate counsel wrote to the insurer inquiring whether Mr. Penner's life insurance policy was in good standing. On May 9, the insurer advised the deceased had no active policies – his two policies had lapsed because of non-payment of the premiums. Notwithstanding this clear information from the insurer, on June 4 estate counsel informed Ms. McKenny's counsel that investigations were underway because Mr. Penner "had expressed to Ms. Roulston and the deceased's mother that there was insurance in place. Upon receipt of such information, we will provide correspondence to you." In a subsequent September 25, 2013 letter to Ms. McKenny's lawyer, estate counsel was only prepared to go as far as to say that the insurer had "advised that the policy may have lapsed." Neither representation by estate counsel was accurate; the estate trustee knew back on May 9 that Mr. Penner had let his insurance policy lapse.

It was open to the application judge to find that by withholding material facts, the estate trustee concealed from Ms. McKenny that she had a legitimate debt against the estate as a creditor. Given the special relationship between the estate trustee and Ms. McKenny, it was unconscionable for the estate trustee to initially suggest that insurance was in place, then delay matters by promising to bring an application for directions, and then later take the position that the time for claiming against the estate had expired.

The Court of Appeal saw no basis to interfere with the application judge's conclusion that the doctrine of fraudulent concealment applied to the conduct of Ms. Roulston, as estate trustee, with the result that the two-year limitation period for Ms. McKenny's claim was tolled from the date of Mr. Penner's death until at least September 25, 2013, when estate counsel advised the policy "may have lapsed." Ms. McKenny's action claiming a first charge of $150,000 on the estate's assets was not statute-barred.

Short Civil Decisions:

Mariner Foods Ltd. v. Leo-Progress Enterprises Inc., 2017 ONCA 7

[Sharpe, Lauwers and Miller JJ.A.]

Counsel:

Shahzad Siddiqui, for the appellant

Assunta Mazzotta, for the respondent

Keywords: Endorsement, Bankruptcy and Insolvency, Fresh Evidence

Romanoski Estate v. Seburn, 2017 ONCA 8

[Sharpe, Lauwers and Miller JJ.A.]

Counsel:

Chris Blom, for the appellant, 144673 Ontario Limited carrying on business as Whiskey A Gogo

Robert J. Hooper, for the respondent, Estate of Freddie Romanoski

Keywords: Endorsement

Criminal Decisions:

R. v. Carrington, 2017 ONCA 2

[Simmons, Pardu and Miller JJ.A.]

Counsel:

David E. Harris, for the appellant

Gavin N. MacDonald, for the respondent

Keywords: Criminal Law, Robbery, Misapprehension of Evidence, R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, Insufficient Reasons

R. v. Nicholson, 2017 ONCA 3

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

Counsel:

Erin Dann and Janani Shanmuganathan, for the appellant

David Finley, for the respondent

Keywords: Criminal Law, Attempted Murder, First Degree Murder, Intent, Criminal Code, s. 686

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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 unsubscribe@mondaq.com 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.

Cookies

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.

Links

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.

Mail-A-Friend

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.

Security

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 webmaster@mondaq.com.

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 EditorialAdvisor@mondaq.com.

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 enquiries@mondaq.com.

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