Canada: Ontario Court Of Appeal Summaries (February 4 – 8, 2019)

Blaney's Appeals
Last Updated: February 15 2019
Article by John Polyzogopoulos

Following are the summaries for this week's civil decisions of the Court of Appeal for Ontario (there were only three substantive decisions).

In Lam v University of Western Ontario, 2019 ONCA 82, the appellant claim against the university had been dismissed by way of summary judgment. The appellant claimed that he was pressured to switch out of a Ph.D program and into a master's program, in breach of contract and/or fiduciary duty. The appellant alleged that the committee lacked, or was unwilling to acquire, the necessary expertise in his area of research, and was misled and provided knowingly incorrect information about the availability and security of his funding. The motion judge had dismissed the claim largely on the basis of a determination that this was an academic matter that ought to have been pursued through the academic appeals process. The Court of Appeal disagreed and allowed the appeal. The Court confirmed that a relationship between a student and a university is contractual in nature, therefore there can be claims for breach of contract. The key to determining whether a claim is properly before the court as a breach of contract claim is the remedy sought. In this case, damages for breach of contract was the remedy sought, therefore this was properly before the civil courts and not a matter for the internal academic appeals process.

Other topics covered this week included the limitation period for enforcing foreign judgments (the later of the two years from the expiry of the appeal period from the foreign judgment and when the plaintiff knew or ought to have known that there were assets in Ontario against which the plaintiff could enforce its judgment), and striking pleadings as an abuse of process (attempt to re-litigate).

For our criminal law readers, we have also summarized two decisions relating to habeas corpus, mandamus and certiorari in the criminal law context where the parties and/or the court below had improperly treated the proceedings as judicial review applications, and applied the Rules of Civil Procedure and Judicial Review Procedure Act instead of the Criminal Proceedings Rules..

Finally, my partner, Lea Nebel, and I invite you to our third annual Top Appeals CLE, which will take place at the OBA, 20 Toronto Street, Toronto, on Monday, February 25. It is a three hour dinner program beginning at 5pm, which will also be available by live webcast for those who cannot attend in person.

Eliot Kolers, David Thompson and Katherine Di Tomaso will be our panelists on the first set of cases: Gillham v Lake of Bays and Mega International v Yung, and other decisions dealing with discoverability, appropriate means, and discoverability as it relates to claims for contribution and indemnity.

Tim Danson, Mark Wiffen and Peter Downard will discuss Platnick v Bent, Pointes Protection Association and the "Anti-SLAPP Sextet".

Last, but certainly not least, Glenn Chu of the City of Toronto, Yashoda Ranganathan of MAG and Donald Eady will discuss the high-profile, real-time, high-stakes constitutional litigation that was the City of Toronto v Attorney-General (reduction of wards from 47 to 25).

The full program agenda can be found here. Please join us for what promises to be a very interesting evening.

CIVIL DECISIONS

Nikou v. Karageorgos, 2019 ONCA 83

[Hourigan, Miller and Paciocco JJ.A.]

Counsel:

P. Côté, for the appellant

G. Tighe and J. Nehmetallah, for the respondents L.K., R.B., J.Z. and A.P.

J. Maggisano, for the respondents S.T., E.T., V.T. and A.T.

No one appearing for the respondent Philip David

Keywords: Civil Procedure, Vexatious Litigants, Striking Pleadings, Vexatious and Frivolous Claims, Abuse of Process, Rules of Civil Procedure, Rule 2.1.01, Gao v. Ontario WSIB, 2014 ONSC 6497, Joshi v. Canadian Imperial Bank of Commerce, 2018 ONCA 537, leave to appeal to S.C.C. refused, [2018] S.C.C.A. No. 273

Facts:

The appellant is aggrieved that he and his siblings were cut out of his grandfather's will. Further, he believes that his grandfather and grandmother were subject to undue influence and fraudulent conduct by other family members.

The appellant's grandfather died in March 2010, which led to two lawsuits – a 2012 action and a 2015 action. Those actions were ultimately dismissed and discontinued, respectively.

In 2017, the appellant commenced three new actions against family members and a number of lawyers who were involved in transactions relating to his grandparents' estates, or who acted in the 2012 and 2015 actions. The three 2017 actions are overlapping and include claims framed in harassment and defamation. On May 29, 2018, after due notice, a motion judge dismissed those actions pursuant to Rule 2.1.01 of the Rules of Civil Procedure.

The appellant appealed each of the three dismissals, with three common grounds of appeal relating to each case, which can be described as follows:

  • The motion judge did not make a finding that the proceeding was frivolous or vexatious or an abuse of process as required by Rule 2.1.01(1);
  • The motion judge erred in dismissing the action because the harassment and defamation claims find support in the pleadings; and
  • The motion judge did not give reasons why the statement of claim could not be remedied with an amendment.

Issue:

(1) Did the motion judge fail to make a finding that the proceeding was frivolous or vexatious or an abuse of process as required by Rule 2.1.01(1)?

(2) Did the motion judge err in dismissing the action because the harassment and defamation claims find support in the pleadings?

(3) Did the motion judge fail to give reasons why the statement of claim could not be remedied with an amendment?

Holding:

Appeal dismissed.

Reasoning:

(1) In part. While the motion judge did not describe the actions as frivolous, vexatious or an abuse of process, it was clear that in all of the circumstances she found the claims to be frivolous and vexatious on their face. After considering the pleadings and what she found to be the appellant's unresponsive written submissions in each case, she concluded that although the claims appeared to identify causes of action, they did not contain pleadings supporting those causes of action. In other words, the claims were frivolous because they lacked a legal basis or legal merit, and they were vexatious in the sense that they were instituted without reasonable ground.

(2) No. The claims did not sufficiently express the gravamen of cognizable causes of action. To the extent that a basis for allegations of harassment and defamation could be gleaned from an optimistic reading of the pleadings, those allegations related to the pleadings and evidence given in the 2012 and 2015 actions. In other words, they represented an attempt to reopen the 2012 and 2015 actions. Attempting to relitigate, in a new action, matters that have already been determined by final court orders is an abuse of process and can form no basis for a cognizable cause of action.

(3) No. The motion judge explained that the pleadings did not have legal merit and could not sustain a cognizable cause of action. Accordingly, permitting amendments would be pointless.

Grayson Consulting Inc. v. Lloyd, 2019 ONCA 79

[Juriansz, Brown and Roberts JJ.A.]

Counsel:

G. Sidlofsky, for the appellant
M. Munro, for the respondent

Keywords: Civil Procedure, Private International Law, Conflicts of Laws, Foreign Judgments, Enforcement, Limitation Periods, Discoverability, Appropriate Means, Limitations Act, 2002, SO 2002, c 24, Schedule B, s 5, Independence Plaza 1 Associates, L.L.C. v. Figliolini, 2017 ONCA 44, 136 O.R. (3d) 202, General Motors Acceptance Corporation of Canada, Limited v. Town & Country Chrysler Limited, 2007 ONCA 904

Facts:

In August 2014, the appellant obtained a default judgment in the amount of US$451,435,577.37 against the respondent in the United States District Court for the District of South Carolina (the "SC Default Judgment"). On December 8, 2017, the appellant commenced this Ontario action to recognize and enforce the SC Default Judgment. On December 20, 2017, the appellant secured an ex parte Mareva injunction against the respondent. The motion judge set aside the Mareva injunction, holding that the action to enforce the SC Default Judgment was commenced outside the time period prescribed by the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.

Issue:

(1) Did the motion judge err in holding that time began to run 30 days after the date of the SC Default Judgment?

(2) Did the motion judge err in failing to find that time did not begin to run until the appellant had actual knowledge that the respondent had assets in Ontario?

Holding:

Appeal dismissed.

Reasoning:

(1) No. In Independence Plaza 1 Associates, L.L.C. v. Figliolini, 2017 ONCA 44, the Court of Appeal held that: (i) the basic two-year limitation period in s. 4 of the Limitations Act, 2002 applies to a proceeding on a foreign judgment; and (ii) the limitation period begins to run, at the earliest, when the time to appeal the foreign judgment has expired or, if an appeal is taken, the date of the appeal decision, unless the claim on the foreign judgment was not discovered within the meaning of s. 5 of the Limitations Act, 2002 until a date later than the appeal decision.

When the time to appeal a foreign judgment expires is a matter of the law of the foreign jurisdiction. In Ontario, foreign law is treated like a fact, the proof of which generally requires opinion evidence from a properly qualified expert. As established in General Motors Acceptance Corporation of Canada, Limited v. Town & Country Chrysler Limited, 2007 ONCA 904, the appropriate standard of appellate review on questions of foreign law is correctness.

The expert evidence accepted by the motion judge was that the appeal period from the SC Default Judgment expired 30 days after the judgment was issued. The appellant did not commence this enforcement action until December 8, 2017, more than two years after the expiration of the appeal period for the SC Default Judgment. As a result, it was within the motion judge's discretion to set aside the Mareva injunction on the basis that the appellant had failed to demonstrate a strong prima facie case that it had commenced the action less than two years after the appeal period expired.

(2) No. Section 5(1) of the Limitations Act, 2002 states that a claim is discovered on the earlier of:

(i) the s. 5(1)(a) date – i.e., the day on which the person with the claim first knew that the injury, loss or damage had occurred, was caused by an act or omission of the defendant, and a proceeding would be an appropriate means to seek to remedy it; and

(ii) the s. 5(1)(b) date – i.e., the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in s. 5(1)(a).

The motion judge's reasons disclose that he concluded that the day on which a reasonable person ought to have known of the matters referred to in s. 5(1)(a) was the date of entry of the SC Default Judgment. The motion judge held that "once the SC judgment became final (i.e. 30 days after August 22, 2014), the appellant was under an obligation to conduct itself with due diligence with respect to seeking enforcement opportunities against Lloyd" and it "was already in possession of enough information about Lloyd's real and substantial connection to Ontario that it ought to have taken investigatory steps when the SC judgment became final, or shortly thereafter." This conclusion was amply supported by the evidence.

The record was clear that throughout the South Carolina litigation, the appellant knew that the respondent was a resident of Ontario practising law in Hamilton. In those circumstances, one would expect a reasonable judgment creditor to take prompt steps to enforce a foreign judgment in the jurisdiction where the judgment debtor resides when the time to appeal the foreign judgment expires or, if an appeal is taken, when the appeal is decided. In the circumstances, when the 30-day period to appeal the SC Default Judgment expired, a proceeding to enforce the judgment in Ontario was an "appropriate means" to remedy the appellant's loss.

Lam v. University of Western Ontario, 2019 ONCA 82

[Strathy C.J.O., Lauwers and Zarnett JJ.A.]

Counsel:

S. Pieters and C. Stienburg, for the appellant

S. Jones, for the respondent

Keywords: Contracts, Breach, Duty of Honesty in Contractual Performance, Torts, Negligence, Breach of Fiduciary Duty, Administrative Law, Judicial Review, Universities, Civil Procedure, Summary Judgment, Gauthier v. Saint-Germain, 2010 ONCA 309, Jaffer v. York University, 2010 ONCA 654, Hashemi-Sabet Estate v. Mazzulla, 2016 ONCA 273, Bhasin v. Hrynew, 2014 SCC 71

Facts:

The appellant enrolled in a Ph.D. program at the respondent university. His research was funded through a grant obtained by his thesis supervisor. The appellant's supervisor subsequently died, as a result of which a new supervisory committee was formed. After various meetings and discussions with the new committee, the appellant transferred out of the Ph.D. and into a master's program.

The appellant commenced an action on the basis that he was pressured by the new committee to transfer out of the Ph.D. program, in a manner that involved breaches of contract and of fiduciary duties by the respondent. He alleged that the committee lacked, or was unwilling to acquire, the necessary expertise in his area of research, and misled and provided knowingly incorrect information to him about the availability and security of his funding. The respondent moved for summary judgment on the basis that the claim related to decisions that were "purely academic" in nature, which meant that the claim failed to disclose a reasonable cause of action.

The motion judge, after reviewing the evidence, found there were genuine issues of fact that would require a trial, including: (a) whether the committee recommended the appellant's transfer out of the Ph.D. program because it genuinely believed there were problems with the appellant's work (as the respondent argued) or because the members of the committee were unwilling to familiarize themselves with his research (as the appellant argued); and (b) what the appellant was told about funding by the supervisory committee and whether those statements were justified.

The motion judge held, however, that it was not necessary for those issues to proceed to trial, because "as a matter of law" the appellant's action should have been brought as a complaint to the University and "should not be before [the] court to begin with." According to the motion judge, academic and legal issues must be distinguished when reviewing a university's conduct; academic issues are to be resolved using a university's informal operational and formal appeal processes and thereafter by judicial review. He accordingly granted summary judgment and dismissed the action.

Issues:

(1) Did the trial judge err in granting summary judgment?

Holding:

Appeal allowed.

Reasoning:

(1) Yes. The Court began by noting that since this appeal was centred on the application of legal principles by the motion judge, the standard of review was correctness.

Referring to its decisions in Gauthier v. Saint-Germain and Jaffer v. York University, the Court concluded that if a plaintiff alleges the elements of a cause of action based in tort or breach of contract, while claiming damages, a court will have jurisdiction even if the dispute stems from the university's academic activities. The question to be addressed here was whether the factual issues could, if resolved in the appellant's favour, make out a cause of action. Because they could, the respondent's motion ought to have been dismissed.

Addressing Gauthier and Jaffer in detail, the Court drew a number of conclusions. First, the relationship between a student and a university has a contractual foundation, giving rise to duties in contract and tort. This was relevant to the case on appeal here because the appellant asserted a breach of contract. The terms of the contract and the organizing principles of contract law were important to determine whether a breach of contract would be made out if the facts determined at trial favoured the appellant. However, the motion judge did not analyze this.

Second, a student agrees to be subject to the university's discretion in resolving academic matters. The motion judge referred to this, but not in the proper context. Given the contractual basis of the parties' relationship, this proposition was best understood as an implied term of the parties' contract. The implied term was relevant because it addressed whether what the appellant complained of was a breach of contract (i.e. a viable cause of action because the impugned conduct fell outside the respondent's discretion). The motion judge failed to consider this implied term in light of the contract's express terms and the legal obligations it entailed.

Third, the motion judge incorrectly found that a court is without jurisdiction to deal with a claim for breach of contract or tort because it arises out of an academic dispute. Rather, it is the remedy sought that is indicative of jurisdiction. Where the claim by the student is for damages for a breach of contract or tort, jurisdiction exists to deal with the claim even if the dispute arises out of an academic matter. This is in contradistinction to a claim to reverse an internal academic decision, which would be pursued by judicial review. The motion judge failed to approach the matter this way. Without considering whether the facts that might be found at trial would show a breach of contract, he examined whether the dispute arose out of an academic matter and concluded the court could and should not deal with it.

Fourth and finally, a claim by a student against a university will fail if it is an indirect attempt to appeal an academic decision for which judicial review would be the remedy, or if insufficient detail is given in the pleadings to show that the university's actions go beyond the broad discretion it enjoys. The Court concluded that this principle does not invite a court to decline to entertain a legal claim for damages for breach of contract in favour of an internal university complaint process. A claim that is an indirect appeal of an academic decision is not really a claim that the university breached its agreement, but rather a claim that it should have exercised its discretion differently.

Thus, the Court concluded that the correct approach was not to ask whether a complaint falls on the academic or legal end of a spectrum and then determine the answer by considering which, as between a court and an internal university process, is the more desirable forum from the standpoint of efficiency, policy and practicality. Rather, the correct approach was to ask whether the complaint was one for damages for breach of contract or tort, as opposed to an assertion that what the university did was something it had a discretion to do.

Turning to the question of whether summary judgment should have been granted notwithstanding the motion judge's error with respect to jurisdiction, the Court observed that on motions for summary judgment, a court must take the plaintiff's claim at its strongest in assessing whether a legal impediment exists that would warrant summary judgment notwithstanding genuine factual issues. In the present case, it was clear that the motion judge did not consider that the respondent's impugned conduct fell outside even its broad academic discretion.

The Court reiterated that the parties' relationship was based in contract, and that the appellant made several allegations with respect to contractual documents, such as the respondent's Graduate Student Handbook, which could support a claim for breach of contract. Further, the parties' contract ought to have been interpreted in light of general provisions of law, such as the duty of honesty in contractual performance established in Bhasin v Hrynew.

The appellant's allegations could have resulted in a finding that he was knowingly misled with respect to his financial support – in breach of the Handbook's express terms and in violation of the duty of honest performance – and in a finding that the supervisory committee agreed to supervise him without sufficient familiarity with his field of research or a willingness to gain it – also in breach of the Handbook's express terms. Consequently, these were genuine issues requiring trial which could not be precluded as a matter of law, making summary judgment inappropriate in the circumstances.


SHORT CIVIL DECISIONS

Devry Smith Frank LLP v. Chopra, 2019 ONCA 78

[Hoy A.C.J.O., Simmons and Pardu JJ.A.]

Counsel:

C. Statham, for the appellant

Mu. C. and Mo. C., self-represented

Keywords: Contracts, Debtor-Creditor, Fraudulent Conveyances, Matrimonial Home

Baraz v. Vorobyev, 2019 ONCA 90

[Hourigan, Miller and Paciocco JJ.A.]

Counsel:

V. Vorobyev, acting in person

A. Baraz, acting in person

Keywords: Family Law, Divorce, Grounds, Cruelty, Knoll v. Knoll, [1970] 2 O.R. 169 (CA)

Christopher v. Freitas, 2019 ONCA 84

[Hourigan, Miller and Paciocco JJ.A.]

Counsel:

B. Kelly and H. Bernard, for the appellant

B. Paquette, for the respondent

Keywords: Family Law, Matrimonial Home, Joint Tenancy

Colasanti v. 1808278 Ontario Inc., 2019 ONCA 96

[Hourigan, Miller and Paciocco JJ.A]

Counsel:

M. Shulgan, for the appellant

R. Godard and A. Kubica, for the respondents

Keywords: Contracts, Consideration

Lee v. McGhee, 2019 ONCA 99

[Hoy A.C.J.O., Simmons and Pardu JJ.A.]

Counsel:

B. Lee, acting in person

R. Brown, for the respondent Gene Simmons

P. Champagne, appearing via videoconference for the respondent Canadian
Tire Centre

Keywords: Civil Procedure, Striking Pleadings, Failure to Pay Costs, Failure to Comply with Interlocutory Order, Rules of Civil Procedure, Rules 57.03(2) and 60.12

Lucijanic v. Hashmi, 2019 ONCA 97

[Hoy A.C.J.O., Simmons and Pardu JJ.A.]

Counsel:

M. Khan, for the appellants

E. Youssoufian, for the respondents

Keywords: Contracts, Real Property, Agreements of Purchase and Sale of Land


CRIMINAL DECISIONS

Forster v. Canada (Correctional Service), 2019 ONCA 91

[Simmons, Lauwers and Trotter JJ.A.]

Counsel:

P. Slansky, for the appellant

M. Binnie and S.Kurelek, for the respondent

Keywords: Criminal Procedure, Civil Procedure, Judicial Review, Jurisdiction, Prerogative Writs, Writ of Habeas corpus, Certiorari, Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7, s 6.11(2), Rules of Civil Procedure, Rules 21.01(3)(a) & 21.01(1)(b), Canadian Charter of Rights and Freedoms ss. 10 & 24(1), May v. Ferndale Institution, 2005 SCC 82, Mission Institution v. Khela, 2014 SCC 24, R. v. Lyons, [1987] 2 S.C.R. 309, R. v. Gamble, [1988] 2 S.C.R. 595, R. v. Sarson, [1996] 2 S.C.R. 223, R. v. Jordan, 2016 SCC 27

Facts:

The appellant was imprisoned as a dangerous offender for more than 30 years. His appeal of this decision was dismissed. The appellant then commenced a habeas corpus application which was dismissed without prejudice to the applicant commencing a new application citing proper grounds for habeas corpus.

13 years later, he made an application requesting a writ of habeas corpus with certiorari in aid and relief under s. 24(1) of the Canadian Charter of Rights and Freedoms (the "Charter"), which is the subject of this appeal. The respondent filed a motion to have the application dismissed under rule 21.01(3)(a) of the Rules of Civil Procedure, (the "civil rules"), which permits a defendant to move before a judge to have an action dismissed or stayed because "the court has no jurisdiction over the subject matter of the action."

The application was summarily dismissed on this motion because it was "plain and obvious" that it could not succeed. The application judge accepted that he had authority to dismiss the proceedings on a motion to strike, and considered the viability of the appellant's claim for relief through the lens of the Supreme Court of Canada's decisions in R. v. Lyons, [1987] 2 S.C.R. 309, R. v. Gamble, [1988] 2 S.C.R. 595, and R. v. Sarson, [1996] 2 S.C.R. 223 (the "Lyons/Gamble/Sarson Framework").

Issues:

(1) Did the motion judge err in dismissing the appellant's habeas corpus application without a full hearing on the merits?

Holding

Appeal allowed.

Reasoning:

(1) Yes. The application judge's judgment was rendered in response to a motion for summary dismissal predicated on inapplicable civil rules instead of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7 (the "criminal rules") and the claim should not have been dismissed. The Court first stated that the importance of habeas corpus could not be understated, and that the right to test the validity of one's detention is guaranteed by s. 10(c) of the Charter. In May v. Ferndale Institution, 2005 SCC 82, the Supreme Court of Canada held that only in limited circumstances will it be appropriate for a provincial superior court to decline to exercise habeas corpus jurisdiction. The Court of Appeal stated that declining to exercise habeas corpus jurisdiction is different from striking out an application on a summary basis. In Mission Institution v. Khela, 2014 SCC 24, at para. 78, the Supreme Court held that a provincial superior court hearing a habeas corpus application has no inherent discretion to refuse to review the case. This could also be understood as stating that if the prisoner does raise an arguable issue, there is no room for discretion and the matter should then proceed to a hearing so that a full and proper determination can be made.

The Court found that the respondent and application judge's reliance on the civil rules was misplaced in several respects. Firstly, rule 21.03(a) deals with a lack of jurisdiction over the subject matter. It appeared the application judge did not apply this sub-rule in using the language "plain and obvious", which was more appropriate for rule 21.01(1)(b). However, neither rule was applicable in the circumstances of this case. This habeas corpus application was criminal in nature. It arose directly from the imposition of a penal sanction under the Criminal Code, and accordingly was governed by the criminal rules. On appeal, the respondent attempted to rely on a number of the criminal rules, and attempted to fortify its position by invoking R. v. Jordan, 2016 SCC 27, to stress the need to prevent the criminal courts from becoming clogged by unmeritorious cases such as the appellant's.

The Court found that the appellant's claim should not be dismissed. The Court found that the criminal rule most applicable to these proceedings was rule 6.11(2), which gives a judge discretion to dismiss the application summarily where the application does not show a substantial ground for the order sought, if the judge considered that the matter is frivolous or vexatious and can be determined without a full hearing. The appellant's current application was not vexatious because the appellant's previous habeas corpus application was terminated without prejudice to commencing a new one. The appellant also raised new grounds that were arguably unique, outside of the Lyons/Gamble/Sarson Framework, by arguing that his initial warrant of committal was invalid at the time it was issued. Finally, it was not a forgone conclusion that the appellant could have raised these complaints at his appeal of his sentence.

The Court was not prepared to adjudicate on the merits of the appellant's claim on the record currently before the Court.

Zreik v. Ontario (Attorney General), 2019 ONCA 89

[Feldman, Lauwers and Nordheimer JJ.A.]

Counsel:

M. Moon, for the appellant

E. Bala and J. Chan, for the respondents

Keywords: Criminal Procedure, Civil Procedure, Judicial Review, Jurisdiction, Prerogative Writs, Mandamus, Certiorari, Avon v. Ontario (Ministry of Community Safety and Correctional Services), 2013 ONCA 249, R. v Ross, 2000 SKQB 134, aff'd, 2000 SKCA 69, Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7, Judicial Review Procedure Act, RSO 1990, c J1, Criminal Code, ss. 774 and 482

Facts:

During the course of a police-involved shooting, the appellant was hit by one of the bullets fired by the police officers. She was a bystander standing inside her own home. The Director of the Special Investigations Unit conducted an investigation into the shooting, concluding that no charges should be laid against any of the officers involved. The Director found that the appellant was "simply in the wrong place at the wrong time".

The appellant then brought an application, pursuant to the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) ("Criminal Proceedings Rules"), challenging the decision of the Director not to lay charges against any of the officers who were involved in her being shot. The respondents disputed the jurisdiction of the application judge to hear the matter. They contended that the application was in the nature of judicial review and ought to be heard by the Divisional Court as required by the Judicial Review Procedure Act ("JRPA").

The application judge agreed with the respondents. He dismissed the application without prejudice to the appellant commencing an application under the JRPA. In doing so, the application judge concluded that the proper forum is dictated by the legislation under which the decision in issue was rendered. In this case, the SIU and its mandate flowed from a provincial statute. The application judge therefore observed that "the case law indicates that as such the relief sought herein is a matter of judicial review by virtue of the JRPA".

Issues:

(1) Did the application judge err concluding that the matter ought to be heard by the Divisional Court, as required by the JRPA?

Holding:

Appeal allowed.

Reasoning:

(1) Yes. The issue raised was clearly one relating to a criminal matter, and consequently the Criminal Proceedings Rules direct that it be heard by a single judge of the Superior Court of Justice. Indeed, the application judge found that there is no doubt that the investigations undertaken by the Special Investigations Unit are criminal in nature.

However, the Court observed that contrary to the appellant's position, it was not the provisions of the Criminal Proceedings Rules that confer jurisdiction on the Superior Court of Justice. Because the Criminal Proceedings Rules are procedural rules only, they do not (and cannot) confer jurisdiction on a court. Rather, the combined effect of ss. 774 and 482 of the Criminal Code confers jurisdiction.

Looking first to s. 774, the Court noted that that section brings within the scope of the Criminal Code any application for an extraordinary remedy if it involves a criminal matter. Turning next to s. 482, the Court noted that this section provides the jurisdiction for the Superior Court to adopt the Criminal Proceedings Rules which, in turn, provide for the forum where applications for extraordinary remedies in criminal matters will be heard and determined. In particular, the Court emphasized s. 482's wording confirms a proceeding is something different than a prosecution. A proceeding does not have to include, or arise out of, a prosecution.

The Court next distinguished this case from Avon v. Ontario (Ministry of Community Safety and Correctional Services), the case on which the application judge principally relied. As that case expressly involved an issue of provincial law, it was not a criminal matter and therefore not relevant to the case on appeal here. The Court further distinguished two other Ontario Superior Court decisions which appeared superficially to touch on the question at issue here, noting that these decisions were in fact centred on other questions. However, the Court did observe that in R. v Ross — the only other case in which this issue had been considered — the Saskatchewan Court of Queen's Bench reached a similar conclusion to the Court here.

R. v. Durant, 2019 ONCA 74

[Watt, Huscroft and Trotter JJ.A.]

Counsel:

M. Durant, acting in person

M. Lacy and B. Greenshields, for the appellant

T. Kozlowski and D. Bonnet, for the respondent

Keywords: Criminal Law, First Degree Murder, Manslaughter, Evidence, Admissibility, Similar Fact Evidence, R. v. Arp, [1998] 3 S.C.R. 339, R. v. Woodcock (2003), 177 C.C.C. (3d) 346 (Ont. C.A.), R. v. MacCormack, 2009 ONCA 72, Severance, Criminal Code, s. 591(3)(a), R. v. Jeanvenne, 2010 ONCA 706, R. v. Last, 2009 SCC 45, Jurors, Discharge,, Impartiality, Criminal Code, s. 644 (1), R. v. Giroux (2006), 207 C.C.C. (3d) 512 (Ont. C.A.)

R. v. Kennedy, 2019 ONCA 77

[Watt, Huscroft and Roberts JJ.A.]

Counsel:

G. Dorsz and V. Sayed, for the appellant

S. Aujla, for the respondent

Keywords: Criminal Law, Production of Marijuana, Theft of Utilities, Injury to Property, Criminal Code, s. 441, Sentencing

R. v. R.S., 2019 ONCA 76

[Watt, Huscroft and Roberts JJ.A]

Counsel:

J. Shanmuganathan, for the appellant

J. Cameron, for the respondent

Keywords: Criminal Law, Sexual Assault, Sentencing

R. v. Khan, 2019 ONCA 81

[Feldman, Lauwers and Nordheimer JJ.A.]

Counsel:

Andrew Furgiuele, for the appellant

Geoffrey Roy, for the respondent

Keywords: Criminal Law, Possession of Cocaine for the Purpose of Trafficking, R. v. Villaroman, 2016 SCC 33

R. v. Markos, 2019 ONCA 80

[MacPherson, Pardu and Brown JJ.A.]

Counsel:

P. Brauti and J. Wilkinson, for the appellant

J. Epstein, for the respondent

Keywords: Criminal Law, Dangerous Driving Causing Bodily Harm, Criminal Negligence Causing Bodily Harm, Mens Rea, R. v. Romano, 2017 ONCA 837, 41 C.R. (7th) 305, Actus Reus, R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, R. v. Hawley, 2016 ONCA 143, Sentencing, R. v. Rawn, 2012 ONCA 487, 294 O.A.C. 261, Criminal Code, s. 259(2)(b), R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089

R v. C.P., 2018 ONCA 85

[Feldman, MacPherson and Nordheimer JJ.A.]

Counsel:

M. Gourlay, for the appellant

G. Choi, for the respondent

Keywords: Criminal Law, Sexual Assault, Defences, Consent, Standard of Review, Criminal Code, s. 686(1)(a)(i), R. v. Yebes, [1987] 2 S.C.R. 168; R. v. Biniaris, 2000 SCC 15, R. v. P. (R.), 2012 SCC 22, R. v. Esau, [1997] 2 S.C.R. 777

R. v. Sabir, 2019 ONCA 92

[Strathy C.J.O., Nordheimer J.A. and McKinnon J. (ad hoc)]

Counsel:

B. Bytensky, for the appellant

C. Sharawy, for the respondent

Keywords: Criminal Law, Weapons Offences, Sentencing, Prohibition Orders, Appeals, Jurisdiction, Criminal Code, s. 109(1)(b), Rules of Civil Procedure, Rule 59.06(1), R. v. Codina, 2009 ONCA 907, R. v. Kohl, 2009 ONCA 254

R. v. V.J., 2019 ONCA 86

[Sharpe, Benotto and Brown JJ.A.]

Counsel:

L. Thomas, for the appellant

L. Shin, for the respondent

Keywords: Criminal Law, Sexual Assault, Sexual Interference, Invitation to Sexual Touching, Evidence, Adverse Inferences, R. v. W.(D.), [1991] 1 S.C.R. 742

R. v. Van Bodegom, 2019 ONCA 93

[Watt, Huscroft and Roberts JJ.A.]

Counsel:

J. Shanmuganathan, for the appellant

C. Weiler, for the respondent

Keywords: Criminal Law, Fraud, Money Laundering


ONTARIO REVIEW BOARD

Labadie (Re), 2019 ONCA 75

[Feldman, Lauwers and Nordheimer JJ.A.]

Counsel:

S. Gehl, for the appellant

J. Tatum, for the respondent Attorney General of Ontario

J. Zamprogna Balles, for the respondent Southwest Centre for Forensic Mental Health Care

Keywords: Ontario Review Board, Appeal Book Endorsement, Absolute Discharge, Joint Submission, Significant Threat

Robertson (Re), 2019 ONCA 88

[Simmons, Lauwers and Trotter JJ.A.]

Counsel:

J. Robertson, in person

C. Francis, as Amicus Curiae

L. Shin, for the Attorney General of Ontario

Keywords: Criminal Law, Fraud, Money Laundering

Woods (Re)

[Doherty, Miller and Trotter JJ.A.]

Counsel:

A. Szigeti, for the appellant

C. Sharawy, for the Crown

M. Warner, for the Person in Charge of the Centre for Addiction and Mental Health

Keywords: Criminal Law, Mental Health Law, Mental Health Disorder, Substance Abuse Disorder, Uncontroverted, Mental Health Act, R.S.O. 1990, c. M.7, Carrick (Re), 2015 ONCA 866, 128 O.R. (3d) 209

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