Canada: Ontario Court Of Appeal Summaries (September 11 – September 15, 2017)

Last Updated: September 22 2017
Article by John Polyzogopoulos

Good afternoon. Below are the summaries of this week's civil decisions of the Court of Appeal for Ontario. There were two family law decisions, one in the context of the appointment of amici by the court, and the other a summary judgment decision with respect to property equalization. There was also an insurance decision regarding uninsured motorist coverage for an accident occurring in Minnesota and a case involving malicious prosecution.

Congratulations to Giovanna Asaro and Lisa Bruni of our office in successfully resisting an appeal from the dismissal of the claim against our client, the York Children's Aid Society.

Please feel free to share this blog with anyone whom you think might be interested. As always, we welcome your comments and feedback.

Patinios v Cammalleri 2017 ONCA 700

[Strathy C.J.O., van Rensburg and Trotter JJ.A.]

Counsel:

M Simaan, for the appellant

R Cammalleri, acting in person

Keywords: Torts, Malicious Prosecution, Miazga v. Kvello Estate, 2009 SCC 51, Courts of Justice Act, R.S.O. 1990, c. C.43, s.108(10)

Facts:

The appellant appeals the dismissal of his action for malicious prosecution. The criminal trial that was the subject of this action was stayed at the request of the Crown. The trial judge concluded that this was the result of a negotiated resolution, making it necessary to examine whether there were any sanctions imposed as a result of the stay.

Issue:

Did the trial judge err in dismissing the malicious prosecution action?

Holding:

Appeal Dismissed.

Reasoning:

No. To establish malicious prosecution the plaintiff must prove that (1) the prosecution was initiated by the defendant; (2) it was terminated in the plaintiff's favour; (3) there was an absence of reasonable and probable cause to commence the prosecution; and (4) the defendant's conduct in setting the criminal process in motion was fueled by malice (Miazga v. Kvello Estate, 2009 SCC 51).

The first element is not in dispute.

With respect to the second element, the appellant claimed that there was no evidence to support the trial judge's conclusion that there was a negotiated resolution, making it necessary to examine whether there were any sanctions imposed as a result of the stay.

On the third and fourth elements the appellant argued that the respondent's failure to attend at trial, and his own unchallenged evidence that the incidents leading to the charges did not occur, should have led the trial judge to find that the charges were groundless and motivated by malice.

The Court of Appeal acknowledged that the appellant's argument about the second element may have some merit, but found that the appellant had failed to establish the third and fourth elements on a balance of probabilities. Section 108(10) of the Courts of Justice Act provides that it is for the trier of fact to determine whether there was reasonable and probable cause for instituting the prosecution. Here the trier of fact found that the appellant had failed to establish the necessary facts on a balance of probabilities, the conclusions were supported by the evidence before him, and accordingly, the appeal was dismissed.

Chao v. Chao, 2017 ONCA 701

[Hoy A.C.J.O., van Rensburg and Roberts JJ.A.]

Counsel:

Alex Toolsie, for the appellant

Glenda D. McLeod, for the respondent

Keywords: Family Law, Property Law, Resulting Trust, Pecore v. Pecore, 2007 SCC 17, Equalization Payment, Security, Family Law Act,  s. 9(1)(b), s. 10(1)(d), Summary Judgment, Hryniak v. Mauldin, 2014 SCC 7¸ Family Law Rules, Rule 16

Facts:

This is a dispute between husband and wife over property ownership following the breakdown of their marriage. The parties separated in 2011 after 37 years of marriage.

The main issue in the matrimonial proceedings is how to characterize the more than $1.3 million in investments derived from money that the husband's parents provided during the parties' marriage. The money was invested, with some investments in the husband's name, others in the wife's name, and the remaining in both names jointly. The income generated from the investments was used to pay the majority of the family's expenses.

At or about the time of separation, and without the wife's consent, the husband transferred more than $1 million of the investments to his mother, Lillian Chao, or to accounts maintained by him with his mother or other family members (in some cases after forging the wife's signature).

The husband argues that all the disputed investments were held in resulting trust for his parents or were loans that must be repaid to his mother (since his father is deceased). The wife argues that all of the advances were gifts to both parties and that there was no expectation of repayment.

On summary judgment, the husband was ordered to pay the wife the sum of $592,308 in equalization, as well as spousal support arrears and pre-judgment interest. The wife was also granted a charge over the former matrimonial home to secure payment of the equalization amount.

The husband appeals the motion judge's decision.

Issues:

  1. Was the summary judgment procedure appropriate in this matter?
  2. Was it appropriate to strike portions of the husband's affidavit?
  3. Was there improper double counting?
  4. Were the investment monies properly characterized?
  5. Was it was appropriate for the motion judge to grant security against the former matrimonial home?

Holding: Appeal dismissed.

Reasoning:

  1. The Summary Judgement Procedure was Appropriate in this Matter.

Rule 16(6) of the Family Law Rules provides that, on a summary judgment motion, if there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order.

The moving party bears the onus of showing there is no genuine issue requiring a trial. The responding party may not rest solely on mere allegations or denials, but shall "set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial": r. 16(4.1).

The husband made three related arguments disputing the appropriateness of summary judgment in this case.

First, the husband argued that a decision should not have been made without his mother's oral testimony, since her rights were affected by the judgment. The court did not give effect to this argument. The summary judgment procedure was invoked by the wife at a time when all of the evidence she had regarding the investments was available, and when it was apparent that the husband would not provide any further disclosure. It was up to the husband to ensure that his mother's position was before the court, and to join her as a party to the extent her interests were implicated. The appropriateness of adding a party to litigation cannot determine the suitability of summary judgment. The fact that the husband chose to put his mother's position before the court by affidavit, without seeking to join her as a party, was not a basis for refusing summary judgment.

Second, the husband argued that summary judgment should not have been granted without requiring oral evidence from his mother either under r. 16(6.2) or in a directed trial. The husband argues that her affidavit did not provide complete information. However, the husband did not ask for his mother to provide oral evidence at the summary judgment motion. Instead he asserted before the motion judge and on appeal, that his mother would be willing to attend at a trial to provide a complete account of the various advances that were made. This argument ignores the requirement in summary judgment for each party to "put its best foot forward". The court held that the husband cannot succeed on summary judgment by saying that further or better evidence would be available in the future. The motion judge was entitled to assume that the evidence before him was the best evidence available.

Lastly, the husband argued that it was an error to grant summary judgment since there were material facts in dispute. The husband relied on Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 that summary judgment is most often appropriate in document driven cases, with few witnesses and limited contentious factual issues. The court disagreed and stated that the decision in Hryniak clearly states that these articulated circumstances "are helpful observations but...should not be taken as delineating firm categories of cases where summary judgment is and is not appropriate" (at para. 48). The court agreed with the motion judge that there were no material facts in dispute.

  1. It was appropriate to strike portions of the husband's affidavit.

The husband contests the striking out of passages in which he pointed out errors in the wife's assumptions and calculations relating to the investment accounts. He says that striking these passages ought to have been reserved as a "last resort" and deprived the court of important evidence relevant to the equalization issue.

The court disagreed. The motion judge on summary judgment did not strike the husband's pleadings, and his order did not prevent the husband's participation in the motion. Rather, the motion judge struck paragraphs from the husband's affidavit containing evidence of the husband, which ought to have been supported by documents he failed to disclose. As such, the motion judge did not err in striking these paragraphs of the husband's affidavit. Rule 19 of the Family Law Rules provides that where a party does not follow the disclosure rule, the court may order that a document favourable to the party's case may not be used: r. 19(10)(b). The husband did not file his own net family property statement. He failed to comply with orders to provide documents respecting his investments, and with an order requiring his answers to undertakings and refusals on examination.

The wife's amended net family property statement was based on information that the wife says was available to her, including accounts transferred, disposed of or dissipated by the husband prior to and after separation.

The husband asserted that the motion judge erred in accepting the wife's figures, which included investments that no longer existed or had been transferred into new accounts. The court held that the husband cannot fail to provide a full accounting of the investments he managed, controlled, and ultimately liquidated and transferred, and then complain that the judgment was based on incomplete information.

  1. The investment monies were properly characterized.

The motion judge found that the presumption of resulting trust had been rebutted, and that the various advances made by the husband's parents to the husband and wife could not be characterized as loans.

The husband argues that the motion judge erred in concluding that all of the advances of his parents were by way of gift, and that the evidence did not rebut the presumption of resulting trust.

The court disagreed. There was little evidence to distinguish the circumstances of the various advances, which in any event were all characterized by the husband as advances that were invested by the husband on behalf of his parents, with the income used for the parties' living expenses.

In concluding that the advances were by way of gift, the motion judge applied the correct legal test and considered the relevant factors. He began his inquiry with the presumption of resulting trust and then weighed all the evidence to determine the parents' actual intent at the time of the transfer: Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795.

The legal test is intent at the time of the transfer.  Evidence of intention that arises subsequent to a transfer must be relevant to the intention of the transferor at the time of the transfer. The court must assess the reliability of such evidence and determine what weight it should be given, guarding against evidence that is self-serving or tends to reflect a change in intention: Pecore, at paras. 44 and 59.

The conclusion that the monies advanced to the parties were given with the intent to make a gift was amply supported by the objective evidence in this case. The court found no error in principle.

  1. It was appropriate for the motion judge to grant security against the former matrimonial home.

Sometime after separation, the parties agreed on the value of the matrimonial home and consented to an order dated January 22, 2016, transferring the wife's interest in the home to the husband for $390,000. The motion judge ordered a charge on the former matrimonial home, now fully owned by the husband, as security for payments he owed to her under the judgment.

The husband argued that the January 2016 consent order prohibits the charge because the consent order provides that "[n]either party shall make any further claim with respect to the former matrimonial home once the property is transferred." The court did not give effect to this argument. The charge is not in respect of a claim to the property, but rather secures "the performance of an obligation imposed by the order" against property that now belongs to the husband: Family Law Act,  s. 9(1)(b), s. 10(1)(d). Accordingly, the court found no basis to interfere with the judgment.

Morwald-Benevides v. Benevides, 2017 ONCA 699

[Feldman, Gillese, Pepall JJ.A.]

Counsel:

Chantelle Blom, for the appellant non-party Crown

Bonnie C. Oldham, appearing as amicus curiae

  1. Andrew Thomson, appearing as amicus curiae

Keywords:

Family Law, Civil Procedure, Amicus Curiae, Compensation, Legal Aid Ontario, Stay of Proceedings, Ontario v. Criminal Lawyers' Association of Ontario, 2013 SCC 43

Facts:

During a complex custody and access trial, the trial judge appointed an amicus on behalf of each party to assist the court. The wife had discharged several lawyers, while counsel for the husband sought to have herself removed as lawyer on record due to nonpayment of fees. The Attorney General was not given notice of the appointments. The Attorney General challenged the amicus appointments, which was rejected by the trial judge. The Attorney General appealed this ruling. The appeal judge determined that he required the assistance of amicus to resolve the issues raised on appeal, and appointed the same lawyers who had served as amicus at trial. The two lawyers would not accept legal aid rates for acting on the appeal, and wanted to negotiate rates with the Attorney General. The Attorney General was not prepared to negotiate, and instead provided the court with a list of three highly qualified counsel who were prepared to assist the court and to accept legal aid rates. The appeal judge determined that he required the two lawyers who were already familiar with the case to assist, and ordered a stay of the Crown`s appeal, stating that the Attorney General was obligated to "attempt to negotiate a mutually acceptable rate in good faith". The non-party Crown appealed this decision.

Issues:

(1) Did the appeal judge err in finding that the Attorney General had an obligation to negotiate a fair and reasonable fee agreement with the appointed amici;

(2) Did the appeal judge err in staying the Crown's appeal; and

(3) Did the appeal judge err in holding that two amici, as opposed to a single amicus, were required to provide responding submissions.

Holding: Appeal allowed.

Reasoning:

(1) Yes. Whether the appeal judge had jurisdiction to make the orders that he did turns on the interpretation and application of the Supreme Court's decision in Ontario v. Criminal Lawyers' Association of Ontario, 2013 SCC 43. The majority decision in Criminal Lawyers' Association imposed no obligation on the Attorney General to negotiate rates with amicus. The majority did suggest that when a judge requires help and appoints amicus, the amicus and the Attorney General "should meet to discuss rates and a mode of payment", but there is no requirement that the negotiation be in good faith. While the Attorney General did not meet with counsel appointed as amicus, they did correspond to discuss rates. This correspondence fulfilled the expectations set out by the majority in Criminal Lawyers' Association.

(2) Yes. The decision in Criminal Lawyers' Association made the remedy of a stay available to a judge where the assistance of amicus is "truly essential", the appointed amicus and the Attorney General cannot agree on a rate of remuneration, and there is no other recourse but to stay the proceedings until another appropriate amicus is found. Although the appeal judge's preferred counsel were not available, as they would not work for legal aid rates, a court is not necessarily entitled to amicus of its choice where other appropriate counsel have been made available by the Attorney General. A stay was not required, as the Attorney General offered three experienced counsel for the appeal judge's consideration.

(3) Yes. While two amici were required by the trial judge given the circumstances of the case, the appeal was not concerned with the merits between the parties, but rather with the constitutional and policy issues surrounding the power to appoint amicus in a civil case. Applying the "truly essential" test, there was no basis for the decision to appoint two amici.

The stay was set aside, and the matter remitted back to the appeal judge to select one of the three amicus counsel originally proposed by the Attorney General.

Hartley v. Security National Insurance Company, 2017 ONCA 715  

[Epstein, Hourigan and Paciocco JJ.A.]

Counsel:

W G Woodward, for the appellant

R Campbell, for the respondent

Keywords: Insurance Law, Motor Vehicle Accidents, Contractual Interpretation, Out of Province, Coverage, Underinsured Motorist Coverage, , Family Protection Coverage Endorsement, OPCF 44R, s. 1.1.5(a), s. 4, Special Damages, Foreign Legal Costs

Facts:

Glen Hartley, the respondent, and his wife, Theresa Hartley, were seriously injured in a traffic accident while touring on a motorcycle in the State of Minnesota. The Hartleys' motorcycle was struck by a State of Minnesota owned truck, operated by a state employee. The Hartleys retained Minnesota counsel and sued the State of Minnesota for damages.  Even though Mr. Hartley's injuries warranted damages in excess of US$500,000, he obtained a settlement of only US$500,000. This was the maximum payable by Minnesota to a tort claimant, in the circumstances. After legal costs were accounted for, Mr. Hartley was left with approximately C$386,500. Mr. Hartley looked to his Canadian insurance company, Security National Insurance Company ("SNIC"), the appellant, to pay him the difference between the damages he received of approximately C$386,500, and the C$1,000,000 underinsured motorist coverage ceiling provided for in an endorsement to his motor vehicle insurance policy. Specifically, he relied on the optional statutory Family Protection Coverage Endorsement, OPCF 44R, pursuant to a policy issued to Mr. Hartley by SNIC. SNIC refused to pay, stating that Minnesota was not an "inadequately insured motorist" within the meaning of OPCF 44R, and that, even if there were coverage, the policy would not include legal expenses incurred in the Minnesota action. Mr. Hartley sued.

The motion judge held that Minnesota was "underinsured" or, in the words of OPCF 44R, an "inadequately insured motorist". He also held that Mr. Hartley could claim the legal costs he paid ("U.S. fees") as special damages against SNIC. SNIC appealed.

Issues:

(1) Did the motion judge err in finding that Minnesota is an "inadequately insured motorist" within the meaning of OPCF 44R?

(2) Did the motion judge err in allowing Mr. Hartley to claim his U.S. fees as special damages in his Ontario action against SNIC?

Holding:

Appeal allowed, in part.

Reasoning:

(1) No. SNIC raised three bases for refusing Mr. Hartley's claim for the shortfall left after his settlement agreement. First, it argued that Minnesota was not underinsured, but self-insured, and therefore underinsured coverage does not apply. Second, it argued that the shortfall in recovery is not the result of underinsurance, but rather the result of a statutory immunity. Finally, SNIC contended that even if a self-insured state enjoying statutory immunity can be an "inadequately insured motorist", it is not accurate to say that Minnesota is underinsured since Minnesota offers single occurrence coverage up to US$1,500,000 that exceeds the C$1,000,000 coverage ceiling payable under OPCF 44R. SNIC thus maintains that its maximum liability is zero under the terms of OPCF 44R.

SNIC's first argument was misdirected. Given the definition of "inadequately insured motorist" in s 1.1.5(a) of OPCF 44R, the fact that Minnesota chooses to self-insure is not inconsistent with it being an "inadequately insured motorist". Interpreting the language of this section would lead an average person applying for insurance to understand the ordinary meaning of the phrase "financial guarantees as required by law in lieu of insurance" as including a legislated obligation by an uninsured state (such as the Minnesota Torts Claims Act) to indemnify its employees by paying compensation for tortious damage caused by those employees. Even though the motion judge did not engage in a close exercise in contract interpretation, he was correct in holding that Minnesota was an "inadequately insured motorist" within the meaning of OPCF 44R.

With regards to SNIC's second argument, the legal entitlement to recover that triggers the obligation to indemnify is not compromised by limits on the ability to recover, whether those limits arise from statutory bars to action or statutory or contractual immunity provisions. The kind of limited immunity created by Minnesota's Torts Claim Act does not, therefore, prevent the legal entitlement to recover under OPCF 44R. In fact, the damage limitation imposed by Minnesota's Torts Claim Act impedes the ability to recover fully against the tortfeasor, thereby triggering the call on the "inadequately insured motorist" coverage. The fact that Minnesota's Tort Claims Act provides a partial statutory immunity, capping the amount of damages recoverable from the state, is therefore not an answer to Mr. Hartley's claim.

Regarding SNIC's third argument, the court held the following: When the words "The insurer's maximum liability under [OPCF 44R]... is the amount which the limit of family protection coverage exceeds the total of all limits of motor vehicle liability insurance, or bonds, or cash deposits, or other financial guarantee as required by law in lieu of insurance, of the inadequately insured motorist" in s. 4 of OPCF 44R are given their ordinary meaning in context, it is clear that they refer to the funds available to the claimant bringing the claim. Refuge from liability for the shortfall in coverage under Minnesota's Tort Claims Act cannot therefore be found in the insurer's maximum liability.

(2) Yes. The U.S. fees cannot be claimed against SNIC as special damages. These fees cannot be claimed as compensatory damages, nor can they be claimed as special damages. OPCF 44R does not offer coverage to Mr. Hartley for U.S. fees, and its terms make clear that compensation will solely be for a shortfall in compensatory damages caused by an inadequately insured motorist.

Short Civil Decisions

Huszti Holdings Inc v Your Quick Gateway (Windsor) Inc. (Appeal Book Endorsement), ONCA 708

[Strathy C.J.O., van Rensburg and Trotter JJ.A.]

Counsel:

Mark P. Nazarewich, for the appellants

Shaun F. Laubman and Niklas Holmberg, for the respondent

Keywords: Real Property, Easements, Expiration

S.C. v. York Region Children's Aid Society (Publication Ban) (Appeal Book Endorsement), 2017 ONCA 707

[Strathy C.J.O., van Rensburg and Trotter JJ.A.]

Counsel:

Giovanna Asaro and Lisa Bruni, for the respondent

S.C., acting in person

Keywords: Civil Procedure, Striking or Dismissing Pleadings, No Reasonable Cause of Action

Consent and Capacity Board Decisions

Wall (Re), 2017 ONCA 713

[Watt, Huscroft and Trotter JJ.A.]

Counsel:

Anita Szigeti, for the appellant Abraham Wall

Janice Blackburn, for the respondent the Person in Charge of St. Joseph's Health Care Hamilton

Rebecca Schwartz, for the respondent Attorney General of Ontario

Keywords: Health Law, Criminal Law, Review Board, Significant Threat to Public Safety, Criminal Code, ss. 672.54, 672.78(1), Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, Re Carrick, 2015 ONCA 866, Re Ferguson, 2010 ONCA 810

Nelson v Livermore, 2017 ONCA 712

[Doherty, Benotto and Trotter JJ.A.]

Counsel:

Suzan E. Fraser, for the appellant

Janice Blackburn and Julia Lefebvre, for the respondent Dr. Craig Livermore

Yashoda Ranganathan and Hayley Pitcher, for the respondent Attorney General of Ontario

Keywords: Health Law, Consent and Capacity Board, Mental Health Act, R.S.O. 1990, c. M.7, ss. 24(1). Canadian Charter of Rights and Freedoms, ss. 7, 9, 11(h), and 12, Involuntary Admission

Flowers (Re), 2017 ONCA 710

[Watt, Huscroft and Trotter JJ.A.]

Counsel:

Jonathan Ferrandes, for the appellant

Barbara Walker-Renshaw, for the respondent the Person in Charge of Ontario Shores Centre for Mental Health Sciences

Jennifer Epstein, for the respondent Attorney General of Ontario

Janice Blackburn, for the respondent the Person in Charge of Waypoint Centre for Mental Health Care

Keywords: Health Law, Criminal Law, Ontario Review Board, Involuntary Admission, Assault, Not Criminally Responsible by Reason of Mental Illness

Criminal Decisions

R v Kemp, 2017 ONCA 703

[MacPherson, Rouleau and Miller JJ.A.]

Counsel:

Amy Ohler, duty counsel

Peter M. Campbell, for the respondent

Keywords: Criminal Law, Possession for the Purposes of Trafficking, Controlled Drugs and Substances Act, ss 5(2), Canadian Charter of Rights and Freedoms, ss 11(b), R v Jordan, (2002) 162 C.C.C. (3d) 385, R v Moran, 21 O.A.C. 257

R v Patel, 2017 ONCA 702

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

Counsel:

Lisa Joyal, for the appellant

Nader Hasan and Stephen Aylward, for the respondent

Keywords: Criminal Law, First Degree Murder, Crown Appeal, Jury Charge, Criminal Code, ss 21 (1) and (2), R v Caddedu, 2013 ONCA 729,  R v Simpson, 60 O.A.C. 327

R v Sandhu, 2017 ONCA 709

[Laskin, Trotter and Fairburn JJ.A. ]

Counsel:

Melina Macchia, for the appellant

Concetta Zary, for the respondent

Keywords: Criminal Law, Possession for the Purposes of Trafficking, Knowledge and Control, Evidence, Reasonable Inferences, R v Pannu, 2015 ONCA 67

R v. Del Mastro, 2017 ONCA 711

[Strathy C.J.O., Benotto and Miller JJ.A. ]

Counsel:

Scott Fenton, for the appellant

Croft Michaelson, Q.C. and Brendan Gluckman, for the respondent

Keywords: Criminal Law, Election Law, Exceeding Election Expense Limits, Willfully Exceeding Personal Contribution Limits, Filing False or Misleading Election Campaign Returns, Canada Elections Act, S.C. 2000, c. 9, ss. s. 407(1), 407(3), 463(1), 497(3)(v) and 500(5), Interpretation Act, R.S.C. 1985, c. I-21, ss. 34(2), Harper v. Canada (Attorney General), 2004 SCC 33, R. v. Raghubeer, 2006 ONCJ 165, R. v. R.(R.), 2008 ONCA 497

R v. Ebagua (Appeal Book Endorsement), 2017 ONCA 706

[MacPherson, Rouleau and Miller JJ.A.]

Counsel:

Anthony Moustacalis, for the appellant

N Devlin, for the respondent

Keywords: Criminal Law, Unfair Proceedings, Ineffective Legal Counsel, New Trial

R v. Hayne (Appeal Book Endorsement), 2017 ONCA 704

[MacPherson, Rouleau and Miller JJ.A.]

Counsel:

Kathryn Wells, for the appellant

Luke Schwalm, for the respondent

Keywords: Criminal law, Driving Motor Vehicle While Disqualified, Identification Evidence

R v. McClung (Appeal Book Endorsement), 2017 ONCA 705

[MacPherson, Rouleau and Miller JJ.A.]

Counsel:

Eva Taché-Green, for the appellant

Nancy Dennison, for the respondent

Keywords: Criminal Law, Warrant of Committal, Sentencing, Credit for Pre-Trial Custody

R v. R.A. (Publication Ban), 2017 ONCA 714

[Gillese, Huscroft and Trotter JJ.A.]

Counsel:

Howard L. Krongold, for the appellant

Rachel Young, for the respondent

Keywords: Criminal Law, Publication Ban, Sexual Assault Against a Minor, Sexual Interference, Invitation to Sexual Touching, Evidence, Hearsay, Criminal Code, ss. 151, 152, 271 and 715.1, Kienapple v. R., [1975] 1 S.C.R. 729, R. v. Khan, [1990] 2 S.C.R. 531, R v W.(D.), [1991] 1 S.C.R. 742, R. v. H. (D.), 2016 ONCA 569

R v. Grandine, 2017 ONCA 718

[MacPherson, Simmons and Brown JJ.A.]

Counsel:

Michael W. Lacy and Adam Posluns, for the appellant

Roger Shallow, for the respondent

Keywords: Criminal Law, Manslaughter, Sentencing, Criminal Code, ss. 245 and 215, R. v. Groot (1998), 41 O.R. (3d) 280, R. v. Largie, 2010 ONCA 548 and R. v. Khan, 2001 SCC 86

R v. Grandine, 2017 ONCA 718

[MacPherson, Simmons and Brown JJ.A.]

Counsel:

Michael W. Lacy and Adam Posluns, for the appellant

Roger Shallow, for the respondent

Keywords: Criminal Law, Manslaughter, Sentencing, Criminal Code, ss. 245 and 215, R. v. Groot (1998), 41 O.R. (3d) 280, R. v. Largie, 2010 ONCA 548 and R. v. Khan, 2001 SCC 86

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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To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions