Canada: Ontario Court Of Appeal Summaries (November 12 – 16, 2018)

Blaney's Appeals
Last Updated: November 22 2018
Article by John Polyzogopoulos

Good evening.

There were only two civil decisions summarized this week. Both were procedural in nature, and both were appeals from orders made after adjournment requests were denied. Both appeals were dismissed.

My partner, Lea Nebel, and I are in the process of putting together our roster of speakers for our third annual "Top Appeals" CLE that will be taking place as a dinner program on Monday, February 25, 2019. If you have any suggestions on decisions that were released this past year that you feel we ought to consider for inclusion, please let us know. Stay tuned for more details in the coming weeks.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Royal Bank of Canada v Puzzolanti, 2018 ONCA 917

Keywords: Civil Procedure, Summary Judgment, Adjournments, Boaden Catering Ltd v Real Food for Real Kids Inc, 2017 ONCA 248, Hryniak v Mauldin, 2014 SCC 7

Vetro v St. George, 2018 ONCA 916

Keywords: Family Law, Civil Procedure, Uncontested Trial, Motion to Change, Adjournments

Short Civil Decisions

Ontario (Attorney General) v. Lochner, 2018 ONCA 910

Keywords: Civil Procedure, Appeals, Adjournments

Criminal Decisions

R. v. Wager , 2018 ONCA 907

Keywords: Criminal Law, Guilty Plea, Bias, Voluntariness, Ineffective Assistance of Counsel, Privilege

R. v. Clark , 2018 ONCA 779

Keywords: Criminal Law, Sentencing, Fines, Restitution Orders

R. v. Fleschhut , 2018 ONCA 911

Keywords: Criminal Law, Wilful Killing of Animal, Summary Conviction, Mens Rea, R v R.R, 2008 ONCA 497, Criminal Code, RSC, 1985, c C-46, s 429(1) and 445(1)

R. v. MacCullouch , 2018 ONCA 913

Keywords: Criminal Law, Summary Conviction, Criminal Harassment, Evidence, R v R.R, 2008 ONCA 497

R. v. Nguyen , 2018 ONCA 900

Keywords: Criminal Law, Summary Conviction, Guilty Plea, Sentencing, R v Rajaeefard, [1996] OJ No 108

R. v. Scrivener <, 2018 ONCA 909

Keywords: Criminal Law, Adjournments, Delay, Canadian Charter of Rights and Freedoms, s 11(b)

R. v. Smith , 2018 ONCA 908

Keywords: Criminal Law, Adjournments, Evidence, Conflict of Interest

R. v. Ebagua , 2018 ONCA 898

Keywords: Criminal Law, Appeal Book Endorsement

R. v. Zbib , 2018 ONCA 899

Keywords: Criminal Law, Appeal Book Endorsement

R. v. Sabir , 2018 ONCA 912

Keywords: Criminal Law, Criminal Harassment, Mischief, Possession of a Weapon, Use of Imitation Firearm, Self-Represented Accused, Voluntariness, Voir Dire, Grounds for Arrest, Search and Seizure, Right to Testify, Sentencing, R v Tran (2001), 55 OR (3d) 161, R v Dimmock (1996), 47 CR (4th) 120, R v Breton, 2018 ONCA 753, R v Park, [1981] 1 SCR 64, R v Hodgson, [1998] 2 SCR 449, R v Sweezey (1974), 20 CCC (2d) 400 (Ont CA), Erven v The Queen, [1979] 1 SCR 926, R v Richards, 2017 ONCA 424, R v Roberts, 2018 ONCA 411, R v Wills (1992), 70 CCC (3d) 529, R v Angelantoni (1975), 28 CCC (2d) 179 (Ont CA), R v Smuk (1971), 3 CCC (2d) 457 (BCCA), R v Bates (2000), 134 OAC 156, Criminal Code, RSC, 1985, c C-46, s 486.3, Canadian Charter of Rights and Freedoms, s 8 and s 10

R. v. Hoshal , 2018 ONCA 914

Keywords: Criminal Law, Assault with a Weapon, Assault Causing Bodily Harm, Forcible Confinement, Mischief under $5,000, Failure to Comply with Probation, Criminal Harassment, Sentencing, Pre-Sentence Custody Credit, R v Summers, 2014 SCC 26, R v M(L), 2008 SCC 31, R v Codner, 2013 ONCA 138, R v Gamble, 2011 ONCA 308, R v Langlois, 2007 ONCA 642, R v MacFarlane, 2012 ONCA 82, R v Simoes, 2013 ONCA 465, R v Situ, 2010 ONCA 683, R v Wysokinski, [2005] OJ No 2299 (CA), R v Lacasse, 2015 SCC 64, Criminal Code, RSC, 1985, c C-46, s 719(3.1), s 753.1, s 753.2(1) and s 753.3(1), Corrections and Conditional Release Act, SC 1992, c.20, s134.1, Corrections and Conditional Release Regulations, SOR/92-620, s 161(1)

R. v. Headley , 2018 ONCA 915

Keywords: Criminal Law, Fraud, Hearsay Evidence, Jury Charge, R v Saleh, 2013 ONCA 742, R v Jones-Solomon, 2015 ONCA 654, R v P.J.B, 2012 ONCA 730, R v Newton, 2017 ONCA 496, R v Figliola, 2018 ONCA 578, R v Cudjoe, 2009 ONCA 543, Criminal Code, RSC, 1985, c C-46, s 715(1)

R. v. Ritchie , 2018 ONCA 918

Keywords: Criminal Law, Drug Trafficking, Evidence, Unreasonable Search and Seizure, Search Warrants, R v Marakah, 2017 SCC 59, R v Tsekouras, 2017 ONCA 290, R v Garofoli, [1990] 2 SCR 1421, R v Wu, 2015 ONCA 667, R v Spencer, 2014 SCC 43, R v Grant, 2009 SCC 32, Canadian Charter of Rights and Freedoms, s 8 and s 24(2), Criminal Code, RSC, 1985, c C-46, s 686(1)(b)(iii)

CIVIL DECISIONS

Royal Bank of Canada v. Puzzolanti , 2018 ONCA 917

[Watt, Miller and Nordheimer JJ.A.]

Counsel:

D. Saverino, for the appellant

N. Marconi, for the respondent

Keywords: Civil Procedure, Summary Judgment, Adjournments, Boaden Catering Ltd v Real Food for Real Kids Inc, 2017 ONCA 248, Hryniak v Mauldin, 2014 SCC 7

Facts:

The appellant deposited a forged cheque to his bank account. After commencing an action, the respondent moved for summary judgment. The motion judge set a timetable for the hearing of the motion. The appellant was not present, but his counsel was advised of the timetable.

Subsequently, the respondent's counsel served its materials on the appellant and reminded the appellant's counsel of the motion date. The day before the motion, the appellant's counsel advised the respondent's counsel that he had just been retained for the motion and requested consent to an adjournment, which was refused by respondent's counsel.

The motion proceeded before the motion judge. The appellant's counsel was not present. The motion judge was informed of the request for an adjournment but determined that she would proceed with the motion, which was granted. The appellant complained that the motion judge erred in refusing to grant an adjournment.

Issue:

(1) Did the motion judge err in proceeding with the summary judgment motion?

Holding:

Appeal dismissed.

Reasoning:

(1) No, the motion judge did not err in proceeding with the motion. The decision was within her discretion and should not be interfered with unless the judge had failed to take account of relevant factors and thus exercised her discretion unreasonably, such that the decision is contrary to the interests of justice.

The appellant had ample notice of the date that was set for the hearing of the motion. Waiting until the last day to request an adjournment was contrary to the principles surrounding the adjudication of summary judgment motions, including their role as a more efficient alternative to a trial. It was also contrary to the directive contained in the Consolidated Practice Direction. It was not contrary to the interests of justice to proceed with the motion in these circumstances. Further, no tenable defence was offered to the respondent's claim.

Vetro v. St. George , 2018 ONCA 916

[Watt, Miller and Nordheimer JJ.A.]

Counsel:

D. V., in person

G. S. G., in person

Keywords: Family Law, Civil Procedure, Uncontested Trial, Motion to Change, Adjournments

Facts:

The history of this proceeding stemmed from an uncontested trial in November, 2012. The trial was uncontested because the appellant's pleadings had been struck. The appellant appealed the trial judgement, which appeal was dismissed in May 2013.

The appellant then brought a motion to change in June 2014. In those materials, the appellant asserted that he had developed a mental disability, which he claimed constituted a material change in circumstances. The motion to change was adjourned a number of times. It was then rescheduled for March 2017, but was later adjourned on the basis of a consent order.

The appellant intended to seek leave to appeal to the Supreme Court of Canada from the order that was dismissed in May 2013. The aforementioned consent order required that the appellant commence his appeal on or before September 15, 2017. The appellant then sent his motion for an extension of time and for leave to the appeal to the Supreme Court of Canada on September 15, 2017. The materials were deficient in a number of respects.

The respondent then brought a motion to strike out the motion to change, along with other relief. The motion judge found that the appellant's efforts were "too little too late" and struck out the appellant's motion to change.

The appellant appealed the motion judge's decision.

Issue:

(1) Did the motion judge err in striking the appellant's motion to change?

Holding:

Appeal dismissed.

Reasoning:

(1) No. The motion judge was entitled to exercise her discretion. To that end, the appellant failed to establish any fundamental error in which the motion judge exercised her discretion.

SHORT CIVIL DECISIONS

Ontario (Attorney General) v. Lochner, 2018 ONCA 910

[Feldman, Roberts and Fairburn JJ.A]

Counsel:

S. Lochner, in person

H. Freeman, for the respondent

CRIMINAL DECISIONS

R. v. Wager, 2018 ONCA 907

[Feldman, Roberts and Fairburn JJ.A]

Counsel:

K. Wager, in person

L. Bolton, for the respondent

R. v. Clarke, 2018 ONCA 905

[Feldman, Roberts and Fairburn JJ.A]

Counsel:

A. Hotke, for the Crown

M. Clarke, in person

A. Ohler, for the respondent

R. v. Fleschhut, 2018 ONCA 911

[Feldman, Roberts and Fairburn JJ.A]

Counsel:

T. Fleschhut, in person

D. Robitaille, duty counsel

V. Bayly, for the Crown

R. v. MacCullouch, 2018 ONCA 913

[Feldman, Roberts and Fairburn JJ.A]

Counsel:

E. MacCullouch, in person

D. Robitaille, duty counsel

M. Petrie, for the respondent

R. v. Nguyen, 2018 ONCA 900

[Feldman, Roberts and Fairburn JJ.A]

Counsel:

C. Nguyen, in person

D. Robitaille, duty counsel

H. Freeman, for the Crown

R. v. Scrivener, 2018 ONCA 909

[Feldman, Roberts and Fairburn JJ.A]

Counsel:

M. Halfyard, duty counsel

J. Smith, for the respondent

R. v. Smith, 2018 ONCA 908

[Feldman, Roberts and Fairburn JJ.A]

Counsel:

A. Derwa, for the appellant

L. Daviau (not retained) and D. Robitaille (duty counsel), for the respondent

R. v. Ebagua, 2018 ONCA 898

[Feldman, Roberts and Fairburn JJ.A]

Counsel:

No one appearing for the appellant

A. Ross, for the respondent

R. v. Zbib, 2018 ONCA 899

[Feldman, Roberts and Fairburn JJ.A]

Counsel:

M. Zbib, in person

A. Ross, for the respondent

R. v. Sabir, 2018 ONCA 912

[Feldman, Roberts and Fairburn JJ.A]

Counsel:

B. Bytensky, for the appellant

C. Sharawy, for the respondent

R. v. Hashal, 2018 ONCA 912

[Feldman, Roberts and Fairburn JJ.A]

Counsel:

B. Hoshal, in person

L. Strezos, duty counsel

H. Freeman, for the respondent

R. v. Headley, 2018 ONCA 915

[Sharpe, Lauwers and van Rensburg JJ.A]

Counsel:

M. Halfyard and B. Vandebeek, for the appellant

A. Derwa, for the respondent

R. v. Ritchie, 2018 ONCA 918

[MacPherson, Hourigan and Miller JJ.A]

Counsel:

J. Wilkinson, for the appellant

S. Wheildon, for the respondent

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

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Authors
John Polyzogopoulos
Events from this Firm
6 Feb 2019, Other, Toronto, Canada

When it comes to class actions, costs regimes vary across Canada. Ontario follows the traditional two-way costs regime while other jurisdictions like British Columbia have adopted a no cost regime.

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