Canada: Ontario Court Of Appeal Summaries (August 26-30 2019)

Blaney's Appeals
Last Updated: September 3 2019
Article by John Polyzogopoulos

Good afternoon.

Following are this week's summaries of the civil decisions of the Court of Appeal for Ontario.

In Andros v. Colliers Macaulay Nicolls, the court upheld the motion judge's decision that the termination clause in the parties' employment contract was void for attempting to avoid minimum benefits payable under the Employment Standards Act, and that therefore common law damages for wrongful dismissal were payable.

In Solomon v. Abughaduma, the Court dismissed a doctor's appeal from a finding of negligence for failure to obtain informed consent before conducting surgery on a golf instructor's wrist that left him unable to swing a golf club. The golf instructor's $60,000 damages award was therefore upheld. He represented himself on the appeal.

In Ludwig v Ludwig, the Court had the opportunity to review and apply the Supreme Court's new hybrid test set out in Office of the Children's Lawyer v Balev, 2018 SCC 16, for determining where a child is habitually resident for the purposes of the Hague Convention on the Civil Aspects of International Child Abduction. The Court agreed with the application judge that the children were habitually resident in Ontario, and therefore the Hague Convention did not apply.

In The Commonwell Mutual Insurance Group v. Campbell, the Court agreed with the application judge that once the insurer had defended the claim on behalf of the insured without having reserved its rights, it was estopped from relying on certain exemptions in the policy that might negate the duty to defend or the duty to indemnify.

I hope that everyone has had an enjoyable summer and that you all have a pleasant Labour Day long weekend.

John Polyzogopoulos

Blaney McMurtry LLP

416.593.2953 Email

Table of Contents

Civil Decisions

The Commonwell Mutual Insurance Group v. Campbell, 2019 ONCA 668

Keywords: Contracts, Insurance, Coverage, Homeowner's Policy, Duty to Defend, Duty to Indemnify, Reservation of Rights, Estoppel, Waiver, Insurance Act, RSO 1990, c I8, s 258, Progressive Homes Ltd v Lombard General Insurance Co of Canada, 2010 SCC 33, Rosenblood Estate v Law Society of Upper Canada (1989), 37 CCLI 142 (Ont HCJ), aff’d 16 CCLI (2d) 226 (Ont CA)

Solomon v. Abughaduma, 2019 ONCA 677

Keywords: Torts, Negligence, Medmal, Informed Consent, Causation, Evidence, Experts

Ludwig v. Ludwig, 2019 ONCA 680

Keywords: Family Law, Custody and Access, Child Abduction, Habitual Residence, Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35, Office of the Children's Lawyer v Balev, 2018 SCC 16, Housen v. Nikolaisen, 2002 SCC 33

Andros v. Colliers Macauley Nicolls Inc., 2019 ONCA 679

Keywords: Contracts, Interpretation, Employment, Wrongful Dismissal, Statutory Entitlements, Contracting Out, Void Ab Initio, Damages, Bonuses, Benefits, Employment Standards Act, 2000, S.O. 2000, c. 41, North v. Metaswitch Networks Corporation, 2017 ONCA 790, Ceccol v. Ontario Gymnastics Federation (2001), 55 O.R. (3d), Nemeth v. Hatch Ltd., 2018 ONCA 7, Roden v. Toronto Humane Society (2005), 202 O.A.C. 351, Hampton Securities Limited v. Dean, 2018 ONSC 101, Paquette v. TeraGo Networks Inc., 2016 ONCA 618

Short Civil Decisions

Kimaev v. Sobeys Inc., 2019 ONCA 681

Keywords: Civil Procedure, Vexatious Litigants, Abuse of Process, Rules of Civil Procedure, Rule 2.1

Criminal Decisions

R. v. Esseghaier, 2019 ONCA 672

Keywords: Criminal Law, Conspiracy to Commit Murder, Terrorism, Jury Selection, Jury Impartiality, Criminal Code, s. 640(2), R. v. Husbands, 2017 ONCA 607, R. v. Grant, 2016 ONCA 639

R. v. A.R., 2019 ONCA 671 (publication ban)

Keywords: Criminal Law, Sexual Interference, Evidence, The Rule in Browne v Dunn, Motive, Sentencing, Browne v Dunn, (1863) 6 R. 67 (H.L.), R. v. W.(D.), [1991] 1 SCR 742

R. v. R.V., 2019 ONCA 664 (publication ban)

Keywords: Criminal Law, Sexual Interference, Invitation to Sexual Touching, R. v. J.F., 2008 SCC 60, R. v. Pittiman, 2006 SCC 9

R. v. Tomelty, 2019 ONCA 670

Keywords: Criminal Law, Assault, Possession of a Firearm, Evidence, Credibility

R. v. Kormendy, 2019 ONCA 676

Keywords: Criminal Law, Attempted Murder, Arson, Sentencing, R v Lacasse, 2015 SCC 64, R v Cheddesingh, 2004 SCC 16, R v Logan, [1990] 2 SCR 731

Ontario Review Board

Sparling (Re), 2019 ONCA 673

Keywords: Ontario Review Board, Procedural Fairness, Adjournments, Re Conway, 2016 ONCA 918


CIVIL DECISIONS

The Commonwell Mutual Insurance Group v. Campbell, 2019 ONCA 668

[Paciocco, Harvison Young and Zarnett JJ.A]

Counsel:

Cynthia Verconich and Jessica Forester, for the appellant The Commonwell Mutual Insurance Group

Christine A. Powell, for the respondent SC

FACTS:

In April 2013, the respondent, SC, was involved in a dirt bike accident. He collided with an all-terrain vehicle (ATV), injuring the ATV driver, and was sued in negligence in April 2015.

The appellant, The Commonwell Mutual Insurance Group ("Commonwell"), held SC's home owner's policy. In June 2015, without securing a non-waiver agreement or issuing a reservation of rights letter, Commonwell appointed a lawyer to defend the claim against SC. In March 2016, Commonwell advised SC in writing that they were denying coverage and would be moving for a declaration that Commonwell was not obligated to defend or indemnify him. Commonwell invoked an exemption from coverage in the policy for vehicles not owned by the insured that are "required to be registered under any government authority". In August 2016, Commonwell brought an application seeking declarations that SC did not have coverage, nor was Commonwell obliged to defend him. During the application, Commonwell invoked a further exemption from coverage for vehicles used without the owner's consent.

In October 2018, the application judge denied the application and held that Commonwell had either waived its right to deny coverage and refuse to defend, or was estopped from doing so. Commonwell appealed.

ISSUES:

(1) Did the application judge err in law by not distinguishing between waiver and estoppel?

(2) Did the application judge err in applying each of these doctrines?

(3) Did the application judge err in finding that Commonwell is prevented from denying coverage?

HOLDING:

Appeal dismissed.

Reasoning:

(1) No. The application judge referred to these doctrines disjunctively. His comment that "[e]ither waiver or estoppel would apply" did not reflect a failure to decide whether either doctrine applied. In context, he was clearly saying that the application must fail on either basis.

(2) No, the application judge did not err in applying each of these doctrines.

The Court of Appeal found that the application judge was entitled to conclude that the litigation was well-advanced, and to infer that allowing Commonwell to now assert that there is no coverage (and therefore no duty to defend) would be detrimental to SC. The Court of Appeal rejected Commonwell's argument that "well advanced" litigation is a formal legal status that can be identified by the stage of litigation, and that prejudice is presumed as a matter of law where litigation reaches this stage. The Court of Appeal stated that Rosenblood Estate v. Law Society of Upper Canada (1989), 37 CCLI 142 (Ont HCJ), aff’d 16 CCLI (2d) 226 (Ont CA) does not stand for such propositions.

The application judge did not make a palpable and overriding error in finding detrimental reliance. Upon being served with a statement of claim in April 2015, SC contacted his insurance broker and was put in touch with adjusters for Commonwell. Instead of taking prudent steps (such as promptly issuing a non-waiver agreement and a reservation of rights letter), Commonwell appointed counsel for SC, conducted an investigation into his liability, prepared a detailed statement of defence, and made various tactical decisions. The Court of Appeal took no issue with the application judge's finding that the action had proceeded to the discovery stage.

Given that estoppel and waiver were redundant mechanisms for preventing Commonwell from denying coverage, the Court of Appeal did not find it necessary to consider whether the application judge erred in applying the doctrine of waiver.

(3) No. The Court of Appeal disagreed with Commonwell's argument that the application judge erred in finding that Commonwell is prevented from denying coverage, when an appropriate application of waiver or estoppel would simply oblige Commonwell to defend SC, not indemnify him. The application judge's finding that Commonwell is estopped from relying upon the exemptions undercuts Commonwell's ability to invoke these exemptions, whether to dispute its duty to defend or to dispute indemnification.

This outcome is not inconsistent with the fact that the obligation to defend is broader than the obligation to indemnify: Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada, 2010 SCC 33, [2010] 2 SCR 245, at para 19. The duty to defend is based on the possibility rather than the fact of coverage because, as a practical matter, the decision whether to defend has to be made before the duty to indemnify can be finally determined. This functional distinction between the duty to defend and the obligation to indemnify has nothing to do with resolving which provisions of the insurance contract the insurer is entitled to rely upon. The question before the application judge was whether exemption clauses could be invoked, not whether there was a possibility of coverage based on the facts pleaded and the terms of the insurance contract.

Solomon v. Abughaduma, 2019 ONCA 677

[Paciocco, Harvison Young, and Zarnett JJA]

Counsel:

Anu Koshal and Natalie V. Kolos, for the appellant RA

AS, acting in person

Shantona Chaudry and Brodie Noga, appearing as amicus curiae

FACTS:

AS earned a living teaching golf. As he aged, he developed pain and reduced wrist flexion. The doctors he initially consulted attempted to manage his condition with physiotherapy and anti-inflammatory medication. He was eventually referred to Dr. RA for surgical intervention. Dr. RA performed a total wrist fusion surgery on AS's left wrist, which involved inserting a four-inch metal plate above the wrist joint and placing AS's wrist in a cast. During the surgery, AS became inflicted with regional sympathetic dystrophy ("RSD"), a rare and unfortunate risk inherent with all surgeries. Upon the cast being removed a few weeks later, AS discovered that he had lost all wrist flexion. After the staples were removed, he was placed in another cast. After its removal, his wrist was swollen to the point of being unable to grip, and he could not move his fingers. AS sought a second opinion from Dr. Ax, who advised that there had been surgical alternatives to a full wrist fusion. Dr. Ax also cautioned that though there was a chance that further surgery could reduce pain, further surgery would not restore his hand or wrist to normal. AS had the further surgery, which improved his grip slightly, but not to the point of being able to grip a golf club. AS sued Dr. RA in negligence. Before trial, all claims were dismissed except for the claim that Dr. RA failed to obtain AS' informed consent. The trial judge found in AS' favour.

ISSUES:

(1) Did the trial judge err by holding that the risk of RSD should have been disclosed?

(2) Did the trial judge err in analyzing the law of causation?

(3) Did the trial judge misapprehend or improperly reject the defence expert's evidence?

(4) Did the trial judge misapprehend the evidence of AS' witnesses?

(5) Did the trial judge misapprehend AS' complaint, thereby failing to properly analyse the defence theory of "hindsight"?

HOLDING:

Appeal dismissed.

REASONING:

(1) No. The trial judge was mindful that the issue of RSD had only been raised tangentially and that the disclosure of the risk of RSD was not necessary to her decision.

(2) No. This ground of appeal was centred on Dr. RA's thesis that the basis for the trial judge's finding of damages arose from the RSD, but this is not correct. While the trial judge may have allowed the RSD symptoms to modestly influence her general damages assessment, she did not find that AS lost the ability to golf because of RSD. The trial judge emphasized several times that it was the total wrist fusion surgery AS had without proper warning that prevented him from playing golf. Thus, a finding that the trial judge erred in applying the law of causation is not realistic.

(3) No. Dr. RA contended that the trial judge erred in rejecting the oral evidence of Dr. RA's expert witness because it was not contained in the expert report (which was never admitted as evidence), and for mischaracterizing the evidence. The trial judge found that while the report was carefully worded, the expert became an advocate during oral testimony. The trial judge committed no error in using the expert report to evaluate the credibility of the expert.

While there was some basis to Dr. RA's contention that the trial judge failed to appreciate his expert's oral evidence, she gave several reasons for not accepting the evidence of the expert, including that the expert offered opinions based on inaccurate factual assumptions and without adequate foundation. She also found that he exceeded his established expertise in offering the opinion. These shortcomings outweighed the trial judge's oversight.

(4) No. Dr. RA suggested that because AS' expert testified, it was fair that Dr. RA inferred that AS had advanced osteoarthritis, and the trial judge did not include this answer in summarizing the expert's evidence. She committed a fatal error because that answer undermined her conclusion with respect to Dr. RA's liability. Even though it was fair to conclude that AS' osteoarthritis was severe, it would not have altered the expert's position that surgical alternatives were available.

(5) No. Dr. RA's position at trial was that AS never complained about the total wrist fusion surgery, and that his evidence that he did so is distorted by hindsight. Rather, Dr. RA suggested that AS' real complaint was that Dr. RA botched the surgery. This was actually a challenge to the factual finding of the trial judge that accepted AS' evidence that he complained about his unexpected total wrist fusion surgery "loud and clear". That was a credibility finding the trial judge was entitled to make, and for which she gave cogent reasons. The trial judge, in coming to that decision, was not obliged to refer to AS' answer on cross-examination that he complained about the surgery being botched. The answer was not an unequivocal acknowledgement by AS that botched surgery was his only complaint. He was responding to leading questions that were framed as pertaining to a particular complaint.

Ludwig v Ludwig, 2019 ONCA 680

[Tulloch, Roberts and Miller JJA]

Counsel:

S.M. Bookman and G Bookman, for the appellant

P Senson and S Scott, for the Office of the Children's Lawyer

FACTS:

This appeal concerns the Convention on the Civil Aspects of International Child Abduction, Can. T.S. 1983 No. 35 ("Hague Convention"). The appellant and the respondent are spouses who raised their four children in Germany. They then moved with their children to Ontario. Less than a year later, the appellant and respondent separated. The appellant wanted to return to Germany with the children. The respondent wanted to remain in Ontario with the children. The appellant commenced an application under the Hague Convention seeking the children's return to Germany. Before the hearing of the application, Grace J ordered the involvement of the Office of the Children's Lawyer ("OCL"). OCL counsel interviewed each of the four children; three of the children wished to stay in Ontario and the fourth did not express any preference.

The application judge applied the new two-step hybrid approach to habitual residence that the Supreme Court of Canada adopted in Office of the Children's Lawyer v Balev, 2018 SCC 16 ("Balev"):

1. When did the retention at issue take place?

2. Immediately prior to the retention, in which state were the children habitually resident?

The application judge concluded that (i) the retention at issue took place before September 2018 when the children were still living in Ontario and therefore (ii) the children were habitually resident in Ontario. Accordingly, the Hague Convention did not apply and the application judge dismissed the appellant's application. The appellant appeals from this decision.

ISSUES:

(1) Were the application judge's reasons inadequate?

(2) Did the application judge misapply the hybrid model from Balev?

(3) Did the application judge err in determining the children's habitual residence?

(4) Did the application judge err by permitting OCL counsel to give evidence and advance legal argument from the counsel table?

(5) Did the application judge err by permitting the respondent's counsel to give evidence that was not in the record?

holding:

Appeal dismissed.

reasons:

(1) No, the application judge's reasons were not inadequate. The application judge set out the law and the analytical framework from Balev. She surveyed and analyzed the relevant evidence before she made the findings on both parental intention and habitual residence. Read in context, her reasons explain why she made those findings and ground those findings in the evidence. Accordingly, the reasons met the standard from Lawson v. Lawson (2006), 81 OR (3d) 321 (CA), at para. 9: reasons are adequate if they allow the parties, the general public, and the reviewing court to know whether the judge properly considered the applicable law and evidence.

(2) No, the application judge did not misapply the hybrid model from Balev.

(3) No, the application judge did not err either factually or in law in determining the children's habitual residence. As it relates to the alleged factual errors:a. The application judge correctly determined the retention date as September 2018 because the applicant used that date in his Hague Convention application.

b. The application judge did not commit a palpable and overriding error in finding that there was no shared parental intention. She relied on an abundance of evidence to make this finding; a finding that requires deference under Housen v. Nikolaisen, 2002 SCC 33.

c. The application judge did not commit a palpable and overriding error in the consideration and weight she gave to the preferences of the children expressed to the OCL.

d. There is no merit to the appellant's allegations of forum shopping and custody rights.

The application judge did not err in law by conflating the circumstances of the children with the settling-in exception from Article 12 of the Hague Convention. This exception is only triggered if the application for return proceedings is commenced one year or more following the date of wrongful retention. Under that exception, a court must consider the children's circumstances at the date of hearing, not the date of retention. The application judge repeatedly made clear that she was analyzing the children's links to Ontario immediately before the date of alleged wrongful retention, September 2018, and not after. Considering all of the relevant links is required by Balev and not a conflation of the settling-in exception in the inapplicable Hague Convention.

The application judge also did not err in considering the children's preferences for the purposes relevant to the test for habitual residence. When the application judge's reasons are read in context, it is clear that she considered the children's views and preferences as evidence of their circumstances and links to Ontario, not as Article 13(2) objections that are relevant only if the Hague Convention is applicable.

(4) No, the application judge did not err in permitting OCL counsel to give evidence and advance legal argument from the counsel table. The OCL was given "full power to act for the children", including the rights to call evidence and make legal submissions. Furthermore, the OCL counsel did not stray into giving opinion evidence and the application judge did not receive the submissions as such.

(5) No, the application judge did not err because she did not expressly rely on any of the evidence that the respondent's counsel allegedly tendered. The appellant is unable to point to any connection between such evidence and the application judge's decision.

Andros v. Colliers Macauley Nicolls Inc., 2019 ONCA 679

[Tulloch, Hourigan and Fairburn JJ.A.]

Counsel:

George Avraam and Jennifer Bernardo, for the appellant

Andrew Pinto and Jonas Granofsky, for the respondent

FACTS:

The respondent worked for the appellant, a large commercial real estate company. His employment was terminated without cause on January 19, 2017. The respondent brought an action for wrongful dismissal. He successfully argued that the termination provision in his employment agreement was unenforceable because it attempted to contract out of employment standards in the ESA. Given the unenforceability of the termination provision, the respondent was found to have been entitled to common law notice.

issues:

(1) Did the motion judge err in finding the termination clause unenforceable?

(2) Did the motion judge fail to interpret the termination clause as a whole?

(3) Did the motion judge find ambiguity where there was none?

(4) Did the motion judge err by failing to acknowledge that clauses 4(a) and 4(b) incorporated ESA entitlements by silence?

(5) Did the motion judge err in finding that the respondent was entitled to compensation for the bonus he would have earned while working and during the notice period?

(6) Did the motion judge err in not awarding the plaintiff compensation for lost benefits during the notice period?

holding:

Appeal dismissed and cross-appeal allowed.

reasoning:

(1) No. The appellant suggested that the motion judge made three extricable errors of law, reviewable on a correctness standard, in her interpretation of the termination clause: (a) she failed to interpret the clause as a whole; (b) she read ambiguity into clauses 4(a) and 4(b) where there was none; and (c) she failed to appreciate that there was no need for a specific reference to statutory entitlements in clauses 4(a) and 4(b) for those entitlements to apply.

The ESA contains employment standards distinct from those at common law. The length of notice of termination, the payment of benefits during notice periods, and the payment of severance all constitute "requirements" applying to an employer for an employee's benefit, and therefore constitute employment standards. It is not possible to simply void the part of a termination clause that offends the ESA. If a termination clause purports to contract out of an employment standard without clearly substituting a greater benefit in its place, the entire termination clause is void: North v. Metaswitch Networks Corporation, 2017 ONCA 790, at para. 24.

(2) No. To the contrary, the court found that the motion judge interpreted the clause as a whole. She observed, when summarizing the appellant's position, "[u]nder that provision, [the respondent] was entitled to the notice specified in the agreement, or notice in accordance with the ESA, whichever was greater." She clearly interpreted the termination clause as a whole, viewing the first clause as separate and distinct from clauses 4(a) and 4(b).

(3) No. The appellant maintained that the motion judge erred when she found that: "[a]t best, the termination provision in [the respondent's] employment contract is unclear or ambiguous as to whether he would have been entitled to severance had clause 4a applied on his termination, and employee benefits had clause 4b then applied." The motion judge immediately went on to observe that when a termination clause is unclear or can be interpreted in more than one way, courts should prefer the interpretation that favours the employee: Ceccol v. Ontario Gymnastics Federation (2001), 55 O.R. (3d) 614 (C.A.), at paras. 45, 49; Nemeth v. Hatch Ltd., 2018 ONCA 7, at para. 12. Read contextually, the Court understood the motion judge's reference to "at best" to mean that, because clauses 4(a) and 4(b) did not clearly include ESA entitlements, the best the appellant could argue was that there was ambiguity and that the clauses should be interpreted to include those entitlements.

The Court found no error in the view that the incorporation of ESA entitlements into the first clause did not apply. The disjunctive nature of the termination clause and the absence of a reference to ESA entitlements in clauses 4(a) and 4(b) (with the exception of "benefits" in clause 4(a)), coupled with the specific reference to ESA entitlements in the first clause, supported that interpretation.

(4) No. The appellant relied upon Roden v. Toronto Humane Society (2005), 202 O.A.C. 351 (C.A.), and Nemeth in support of the proposition that silence about ESA entitlements does not entail a contracting out of those entitlements. The motion judge specifically considered both Roden and Nemeth and concluded that they were distinguishable from this case. As she noted, Roden was distinguishable on the basis that the applicable termination clause made "specific reference to the applicable employment standards", yet no such reference was made in clauses 4(a) and 4(b). The motion judge concluded that Nemeth was distinguishable from this case on the basis that the termination clause only attempted to limit the amount of notice that the employee would have received on termination.

The overriding question is whether the termination clause purports to limit the minimum statutory obligations. While clauses 4(a) and 4(b) may provide an employee with more notice than the first clause, when the termination clause is read as a whole, it purports to limit ESA entitlements.

This view is fortified when the actual content of clauses 4(a) and 4(b) are considered. Unlike Roden and Nemeth, the fact is that clause 4(a) is not simply silent as to everything but notice. Rather, it makes specific reference to "compensation and benefits" being unchanged during the working notice period. Yet clause 4(b) makes no reference to benefits. In these circumstances, it cannot be said that the clauses merely suffer from silence as to statutory entitlements.

The court found no error in the motion judge's interpretation of the termination clause and deferred to her conclusion that the termination clause is unenforceable because clauses 4(a) and 4(b) purport to limit the employer's obligations respecting employment standards.

(5) No. The motion judge ruled that the respondent was entitled to compensation for the bonus he would have earned while he was still employed from January 1 to 19, 2017 and for the bonus he would have earned during the eight-month reasonable notice period to which she found he was entitled at common law. The motion judge found that Paquette v. TeraGo Networks Inc., 2016 ONCA 618 applied. In Paquette, the court found that a clause in an employment agreement that said a bonus recipient must be "actively employed by TeraGo on the date of the bonus payout", did not disentitle those who are within a notice period from receiving damages in lieu of the bonuses they would have received during the notice period.

The court found nothing in the employment agreement in this case that disentitled the respondent to a pro rata share of his bonus for the period of time that he actually worked and the period of notice granted.

(6) Yes. The plaintiff was therefore awarded an additional 10% of his base salary as compensation for the lost benefits, as agreed to by the parties.


SHORT CIVIL DECISIONS

Kimaev v. Sobeys Inc., 2019 ONCA 681

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

Counsel:

AK, in person

Elizabeth Nixon and Eliot Kolers, for the respondent

Keywords:


CRIMINAL DECISIONS

R. v. Esseghaier, 2019 ONCA 672

[Rouleau, Hourigan and Zarnett JJ.A.]

Counsel:

Erin Dann and Janani Shanmuganathan, amicus curiae

Chiheb Esseghaier, by video conference

Frank Addario and Medgan Savard, for the appellant, Raed Jaser

Kevin Wilson and Ian Bell, for the respondent

Keywords: Criminal Law, Conspiracy to Commit Murder, Terrorism, Jury Selection, Jury Impartiality, Criminal Code, s. 640(2), R. v. Husbands, 2017 ONCA 607, R. v. Grant, 2016 ONCA 639

R. v. A.R., 2019 ONCA 672

[Watt, Huscroft and Jamal JJ.A.]

Counsel:

Esmaeil Mehrabi, for the appellant

Christopher Webb, for the respondent

Keywords: Criminal Law, Sexual Interference, Evidence, The Rule in Browne v Dunn, Motive, Sentencing, Browne v Dunn, (1863) 6 R. 67 (H.L.), R. v. W.(D.), [1991] 1 SCR 742

R. v. R.V., 2019 ONCA 664

[Watt, Huscroft and Jamal JJ.A.]

Counsel:

Esmaeil Mehrabi, for the appellant

Christopher Webb, for the respondent

Keywords: Criminal Law, Assault, Possession of a Firearm, Evidence, Credibility

R. v. Tomelty, 2019 ONCA 670

[Watt, Huscroft and Jamal JJ.A.]

Counsel:

Thomas Tomelty, appearing via videoconference

Benita Wassenaar, for the respondent

Margaret Bojanowska, duty counsel

Keywords: Criminal Law, Sexual Interference, Evidence, The Rule in Browne v Dunn, Motive, Sentencing, Browne v Dunn, (1863) 6 R. 67 (H.L.), R. v. W.(D.), [1991] 1 SCR 742

R. v. Kormendy, 2019 ONCA 676

[Feldman, Paciocco and Zarnett JJ.A.]

Counsel:

Elise Nakelsky, for the appellant

Peter Copeland, for the respondent

Keywords: Criminal Law, Attempted Murder, Arson, Sentencing, R v Lacasse, 2015 SCC 64, R v Cheddesingh, 2004 SCC 16, R v Logan, [1990] 2 SCR 731


ONTARIO REVIEW BOARD

Sparling (Re), 2019 ONCA 673

[Watt, Huscroft and Jamal JJ.A.]

Counsel:

Suzan E. Fraser, for the Crown

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

Keywords: Ontario Review Board, Procedural Fairness, Adjournments, Re Conway, 2016 ONCA 918The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.

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Events from this Firm
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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