A.J. O’Marra

The accused applied during jury selection for an order excluding unsworn prospective jurors from the courtroom while challenge-for-cause questions concerning potential racial bias were asked.

The defence argued that exclusion was necessary to prevent prospective jurors from becoming "schooled" by hearing repeated challenges and tailoring their responses.

The court considered the interaction between the inherent jurisdiction to exclude jurors and the statutory regime in s. 640(2.1) and s. 640(2.2) of the Criminal Code, as interpreted in prior decisions.

Finding that the defence concern related to juror schooling rather than preserving impartiality between the Crown and the accused, the court followed the approach in Sandham and exercised its discretion to exclude unsworn jurors while permitting rotating triers.

The accused were jointly tried for fraud over $5,000 arising from a scheme using a stolen and forged TD bank draft to obtain approximately $1.9 million in gold bullion from a Montreal dealer.

The Crown’s case was largely circumstantial and relied on telephone records, cell tower data, and evidence concerning the acquisition and subsequent disposition of Perth Mint gold bars.

The trial judge assessed the evidence under the principles governing circumstantial cases and the framework in R. v. W. (D.).

The court rejected the explanations advanced by the accused and concluded that they had acted together to present the fraudulent draft, obtain the gold, and distribute or conceal it afterward.

The accused was convicted by a jury on two counts of sexual assault arising from incidents involving two college students at a campus residence.

The first offence involved forced sexual touching after the complainant repeatedly refused consent, while the second involved forced vaginal intercourse with ejaculation despite the complainant’s protests.

The court emphasized denunciation and general deterrence given the serious nature of sexual violence and the vulnerability of the victims in a residence setting.

Although the accused was a youthful first offender with family support and rehabilitative prospects, the gravity of the offences and their lasting psychological impact on the victims warranted a penitentiary sentence.

A total sentence of three and a half years’ imprisonment was imposed, less credit for pre-sentence custody, along with mandatory ancillary orders.

Following conviction after trial for a violent home invasion robbery involving firearms, the offender was sentenced for multiple offences including armed robbery, aggravated assault, discharge of a firearm with intent to endanger life, unlawful confinement, and several firearms possession offences.

During the robbery three armed assailants entered an apartment, confined the victim, and shot him in the back as he attempted to flee, causing life‑threatening injuries.

The court emphasized denunciation and deterrence as primary sentencing objectives in home invasion and gun crimes.

Considering aggravating factors such as the use of firearms, the grievous injuries inflicted, and the offender’s prior youth record and breach of a firearms prohibition, the court imposed a significant penitentiary sentence within the established range for home invasion offences.

The accused brought a pre‑trial application under s. 24(2) of the Charter seeking a stay of proceedings for alleged violation of the right to be tried within a reasonable time under s. 11(b).

The charges arose from a search warrant execution that resulted in drug trafficking and proceeds of crime allegations.

The total delay from arrest to the scheduled trial date was approximately 23 months.

The court held that most delay prior to committal was inherent or attributable to co‑accused difficulties in retaining counsel and scheduling pre‑trial proceedings, which was neutral delay.

The institutional delay of approximately 10 months in the Superior Court was within acceptable guidelines and the alleged prejudice from the death of a potential defence witness was not causally connected to any Crown or institutional delay.

Following a successful motion by certain defendant insurers seeking a declaration that their law firm could continue acting despite the arrival of a lawyer who had previously acted for the opposing party, the court addressed the issue of costs.

The unsuccessful party argued that the motion arose from circumstances created by the law firm’s hiring decision and that each party should bear its own costs, or alternatively that the amount sought was excessive.

The court applied the principles governing costs under s.131.1 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, emphasizing fairness and reasonableness rather than strict indemnification.

Although the successful defendants claimed approximately $59,800, the court found that amount excessive for a half‑day motion.

Costs were fixed at $42,000 payable within 30 days.

Following a motion to strike portions of a statement of claim, the court determined the appropriate costs payable to individually named defendants whose claims had been struck as an abuse of process.

The plaintiff had asserted a $10 million claim against individual employees and directors of corporate defendants without adequately pleading separate acts or interests beyond their corporate roles.

The individual defendants sought substantial indemnity costs, arguing the claims constituted tactical harassment.

The court found the claims against the individuals lacked proper particulars but concluded the circumstances did not justify elevated costs.

Partial indemnity costs were instead fixed at reduced amounts reflecting duplication of work with corporate defendants’ counsel.

Following a successful motion striking the plaintiff’s statement of claim as disclosing no reasonable cause of action and as an abuse of process, the court determined the appropriate costs award.

The successful defendant sought substantial indemnity costs based on the plaintiff’s litigation conduct, including extensive discovery questioning seeking privileged information and late service of voluminous materials.

The court held that while the plaintiff’s conduct increased the complexity and time required to prepare the motion, it did not rise to the level of reprehensible, scandalous, or outrageous behaviour necessary to justify substantial indemnity costs.

Applying the principles governing costs under s.131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure, the court fixed costs on a partial indemnity basis.

Costs were awarded in the amount of $20,057 payable by the plaintiff to the successful defendant.

The offender, a 56-year-old first-time offender, was found guilty of sexually assaulting his then-girlfriend's 13-year-old daughter in 2005.

The Crown sought a penitentiary term of 3 to 4 years, while the defence sought a conditional sentence.

The court considered the principles of denunciation and deterrence, but noted the offence was a single, transitory incident of touching by a person in a quasi-position of trust.

Applying the law as it existed at the time of the offence, the court found a conditional sentence was available and appropriate.

The offender was sentenced to a 9-month conditional sentence to be served under house arrest, along with a 20-year SOIRA order and a DNA order.

The accused was sentenced following convictions for possession of child pornography and accessing child pornography under ss. 163.1(4)(a), 163.1(4)(b), and 163.1(4.1) of the Criminal Code.

Police discovered child pornography on multiple electronic devices after a member of the public observed the accused viewing images of young girls on a laptop in a public library.

The collection included over 160 images and several videos, including a number of hardcore depictions involving sexual acts with young children.

The court emphasized denunciation and deterrence as primary sentencing objectives for offences involving the abuse and exploitation of children.

The accused was sentenced to eight months’ incarceration less one month credit for pre‑trial custody, followed by two years’ probation and several ancillary orders including DNA sampling, sex offender registration for life, forfeiture of digital devices, and a five‑year prohibition order under s. 161.

The defendants brought a motion for a declaration that an ethical screen implemented by their counsel of record was sufficient to prevent the disclosure of the plaintiff's confidential information after a lawyer who previously represented the plaintiff joined the firm.

The plaintiff brought a cross-motion to disqualify the firm due to a conflict of interest.

The court applied the test from MacDonald Estate v. Martin and considered the Law Society's guidelines for ethical screens.

Finding that the firm had implemented timely and comprehensive institutional measures, the court concluded that a reasonably informed person would be satisfied that no use of confidential information would occur.

The defendants' motion was granted and the plaintiff's cross-motion was dismissed.

The defendants moved under Rules 21 and 25 of the Rules of Civil Procedure to strike the plaintiff’s statement of claim alleging civil conspiracy, unlawful interference with economic interests, trespass, and breach of confidence arising from alleged GPS tracking of the plaintiff’s service vehicles to obtain customer information.

The court held that the pleadings for civil conspiracy lacked the required material facts and particulars but granted leave to amend.

The claim for intentional interference with economic interests was struck without leave to amend because the pleadings failed to allege unlawful means directed at a third party as required by the Supreme Court’s formulation of the tort.

Allegations against individual corporate officers were struck as an abuse of process for failing to plead independent tortious conduct.

Claims for trespass to chattels and breach of confidence were allowed to proceed, while the trespass to land claim was struck with leave to amend.

The defendant brought a motion for summary judgment seeking dismissal of a claim arising from a land purchase agreement involving residential development lands in Oshawa.

The plaintiff alleged that the Agreement of Purchase and Sale and related Omnibus Agreement required a post-closing readjustment of the purchase price where the net developable area of the lands was later reduced.

The court held that the contracts did not provide for post-closing adjustments to the purchase price, and that the closing adjustments based on the consultant’s calculation of net developable area were final.

The plaintiff’s later attempt to rely on a recalculation based on modified development constraints was not conducted using the contractual definition of net developable area and was based on the purchaser’s subsequent development choices.

Interpreting the agreements to allow indefinite post-closing adjustments would create commercial uncertainty and absurdity.

Summary judgment was granted dismissing the claim.

The subcontractor defendant moved for summary judgment dismissing a negligence action arising from the collapse of a partially constructed riding arena.

The subcontractor argued it was an unnamed insured under the owner’s builder’s risk policy and that the policy’s waiver of subrogation barred the insurer’s subrogated claim.

The court held that the evidentiary record was insufficient to determine whether the subcontractor was an unnamed insured and whether the contractual matrix supported a waiver of subrogation.

The absence of evidence regarding contractual risk allocation and the defendants’ own insurance policies created genuine issues requiring a trial.

The motion for summary judgment was dismissed and the claim was permitted to proceed.

The defendants moved under Rule 21.01 of the Rules of Civil Procedure to strike the plaintiff’s statement of claim alleging the tort of abuse of process.

The plaintiff alleged that the defendants improperly used enforcement proceedings and a court order requiring sale proceeds to be paid into court as leverage to compel payment of money beyond what a judgment creditor was entitled to receive.

The court held that the pleadings failed to establish the essential elements of abuse of process, including a collateral purpose and an overt act separate from the legal proceedings themselves.

The court also found that settlement negotiations were protected by settlement privilege and could not be relied upon as admissions of improper purpose.

Further, the claim for legal fees as “special damages” constituted an impermissible collateral attack on prior costs decisions and related court orders.

The statement of claim was therefore struck as disclosing no reasonable cause of action and as an abuse of process.

A contractor sought payment for remedial road repairs following settlement of municipal sewer trench backfill completed under contract with a municipality.

The contractor alleged the work was extra to the contract and alternatively claimed compensation on a quantum meruit or unjust enrichment basis, asserting that native soil specified for backfill was too wet to compact properly.

The municipality maintained that settlement resulted from insufficient compaction at the lower levels of the trench and that the contractor was contractually responsible for remediation at no additional cost.

The court accepted expert evidence that settlement was caused by poorly compacted backfill and found the contractor failed to prove unsuitable soil or any oral agreement for additional compensation.

The court held the remedial work was required due to deficiencies in the contractor’s work.

The accused applied under s. 24(2) of the Charter to exclude evidence obtained from a warrantless search of his laptop at a public library, arguing that his consent to the search was not informed and therefore violated his s. 8 right against unreasonable search and seizure.

Police officers had asked for permission to search the laptop while investigating a report that the accused was viewing images of young girls.

The court applied the consent criteria from R. v. Wills and found that the accused voluntarily and knowingly consented to the search, understanding the nature of the investigation and the potential consequences.

The court rejected the argument that the officer fabricated the consent process and found the accused’s evidence less credible.

Even if a minor deficiency in the consent process existed, the court held the evidence would not be excluded under the Grant framework.

Sentencing for possession of crack cocaine for the purpose of trafficking under s.5(2) of the Controlled Drugs and Substances Act and possession of proceeds of crime under s.354(1)(a) of the Criminal Code.

The offender had a significant prior criminal record including related drug trafficking offences and had committed the offence shortly after release from a previous custodial sentence.

Despite strong aggravating factors and the Crown seeking a sentence of 2½ to 3 years, the court gave weight to credible evidence of sustained rehabilitation during more than two years on strict bail conditions, including stable employment and family support.

Balancing denunciation and deterrence with rehabilitation, the court imposed a custodial sentence followed by probation and community service.

Following dismissal of a motion by the Crown to strike a negligence and negligent misrepresentation claim arising from a government procurement process for school bus services, the court determined the appropriate costs award.

The plaintiffs sought substantial indemnity costs while the Crown argued for a lower partial indemnity award.

Applying Rule 57 of the Rules of Civil Procedure and the fairness principles from Boucher, the court held that the motion, although unsuccessful, was not wholly devoid of merit and therefore did not justify substantial indemnity costs.

The court also rejected the Crown’s submission that HST should not be included in a costs award against it.

Partial indemnity costs of $39,897 inclusive of disbursements and HST were awarded to the plaintiffs.

Following dismissal of a counterclaim alleging wrongful dismissal and breach of contract and seeking $11.8 million in damages, the successful defendant by counterclaim sought substantial indemnity costs exceeding $299,000.

The court considered Rule 57 of the Rules of Civil Procedure and the principles governing cost awards under the Courts of Justice Act, including the effect of an unaccepted Rule 49 settlement offer and allegations of uncooperative litigation conduct.

Although the court accepted that some conduct of opposing counsel created additional expense, it declined to award substantial indemnity costs.

Applying the objective of fairness and reasonableness to the unsuccessful party, the court fixed costs on a partial indemnity basis.