A. K. Mitchell

The applicant, charged with fraud and theft over $5000, sought a Rowbotham order for state-funded counsel after being denied Legal Aid.

The court dismissed the application, finding that the applicant failed to exhaust his Legal Aid appeals, was not indigent given his household income and discretionary spending, and that the straightforward nature of the charges did not necessitate counsel to ensure a fair trial.

The accused was charged with making and possessing child pornography and luring a child after exchanging sexually explicit messages and images with a 9-year-old complainant on a dating website and messaging app.

The accused testified she believed the complainant was an adult, relying on the dating site's age restriction, the complainant's profile, and the mature nature of the conversation.

The court found the accused's evidence credible and held that, given the unusual circumstances of a child posing as an adult on an adult dating site, the Crown failed to prove the accused did not take reasonable steps to ascertain the complainant's age.

The accused was acquitted on all counts.

The applicant brought a Charter application alleging violations of his s. 8 rights to be free from unreasonable search and seizure, seeking exclusion of evidence under s. 24(2).

He argued the Information to Obtain (ITO) for a search warrant was drafted hastily and lacked sufficient grounds, and that police caused unreasonable damage to his property during the search.

The court found the ITO contained sufficient reliable evidence to justify the warrant and that the applicant failed to prove police caused unreasonable damage.

The application was dismissed, with the court noting that even if a breach had occurred, a Grant analysis would favour admitting the evidence.

The plaintiffs were injured in a motor vehicle accident in Texas while driving a rental vehicle.

The at-fault driver was underinsured.

The plaintiffs settled their claims, leaving a priority dispute between two insurers providing OPCF 44R family protection coverage: Liberty (insuring the plaintiff's employer) and Unifund (insuring the plaintiff's spouse).

Liberty brought a motion for summary judgment arguing its policy did not respond.

The court held that under section 2.2.3 of OAP 1, the Liberty policy did not cover the rental vehicle because the plaintiff was an employee of the named corporate insured.

Consequently, Unifund was the sole first loss insurer.

The action against Liberty was dismissed.

The defendant brought a motion for civil contempt against the plaintiff and his co-guardian for failing to file an amended management plan with the Public Guardian and Trustee, as required by a prior court order.

The court applied the three-part test for civil contempt from Carey v. Laiken.

While the order was clear and the respondents had knowledge of it, the court found their failure to comply was an unintentional oversight rather than an intentional breach.

Furthermore, the court exercised its discretion to dismiss the contempt motion, noting it was brought for tactical reasons and caused no damage to the estate.

Two actions were tried together involving a commercial property.

In the first action, the mortgagee sought to enforce a mortgage and claim the balance owing.

In the second action, the mortgagor/landlord claimed rental arrears from the tenant and sought to invalidate the mortgagee's purported sale of the property to itself under power of sale.

The court found that the mortgagee acted in bad faith, failed to obtain a proper price, and violated the rule against a mortgagee selling to itself.

The power of sale was declared void, and the title was rectified.

The court also found that the mortgage had been paid in full through the receipt of rents, dismissing the mortgage action.

The tenant and subtenant were found jointly and severally liable for rental arrears accruing after the mortgage was paid out.

The defendants brought a motion to set aside a Mareva Injunction and a possession order obtained ex parte by the plaintiff.

The court set aside the Mareva Injunction but upheld the possession order.

In this costs endorsement, the court found the defendants were the more successful party, noting the plaintiff's ex parte motion was over-reaching and failed to respect natural justice.

However, the court declined to award substantial indemnity costs because the defendants had failed to deliver up the purchased assets.

The defendants were awarded partial indemnity costs of $13,826.88.

The defendant brought a motion for summary judgment to dismiss the plaintiffs' claim for breach of warranty regarding defective windows and doors, arguing the claim was statute-barred.

The plaintiffs had purchased the products in 2008 and experienced leaking by 2010.

Despite ongoing repair attempts by the defendant, the plaintiffs wrote a letter in March 2012 threatening immediate legal action if the windows were not replaced.

The court found this letter demonstrated the plaintiffs knew litigation was an appropriate remedy at that time.

Because the action was not commenced until December 2014, more than two years later, the claim was statute-barred and dismissed.

The plaintiff challenged the validity of her late husband's 2009 corporate and personal wills, arguing he lacked testamentary capacity due to organic brain disease caused by chronic alcoholism.

The deceased had left his entire estate, consisting primarily of a 50% interest in a farm corporation, to his brother and business partner.

The court found that while the plaintiff established suspicious circumstances due to the deceased's alcoholism, the propounder of the wills successfully proved the deceased met the test for testamentary capacity.

The wills were declared valid and remitted to probate.

Two actions were tried together regarding the estate of the deceased.

The plaintiff daughter sought a declaration that the deceased's will was valid, while the defendant husband sought the return of personal property and funds misappropriated by the daughter using a power of attorney.

The court found suspicious circumstances regarding the deceased's testamentary capacity due to a terminal brain tumour and paranoia.

The daughter failed to attend the trial or prove the will's validity, resulting in the will being declared invalid and the estate passing on intestacy.

The court also found the daughter misappropriated funds and property, ordering her to return the items, repay the funds, and rectifying title to a foreign property to reflect joint ownership.

The accused brought a Charter application under s. 24(2) seeking exclusion of firearms, ammunition, and related evidence seized from his residence pursuant to a search warrant.

The Crown conceded the redacted information to obtain (ITO) lacked sufficient grounds to justify the warrant, establishing a breach of the accused’s s. 8 Charter right against unreasonable search and seizure.

The court found the ITO not only deficient but materially misleading, particularly regarding the reliability and source of confidential informant information and the failure to disclose the informant’s criminal record or properly verify the information relied upon.

Applying the three‑part test from Grant, the court held that the seriousness of the state conduct and the significant privacy intrusion of searching a residence outweighed society’s interest in adjudication on the merits.

The seized evidence was therefore excluded.

The moving municipal defendant sought an order transferring a negligence action concerning alleged structural defects in a residential property from Toronto to London.

The plaintiffs resisted the transfer, arguing their presumptive right to choose venue and asserting that maintaining the action in Toronto would enhance efficiency and access to justice.

Applying the holistic factors under Rule 13.1.02(2)(b) of the Rules of Civil Procedure, the court found that the property, alleged damage, parties, witnesses, and community interest were all centered in London.

The court also rejected arguments that Toronto’s procedural advantages or the location of plaintiffs’ counsel justified maintaining the action there.

Concluding that the action had no rational connection to Toronto and that the interests of justice favoured London, the court ordered the transfer.

The applicant mortgagors sought a permanent injunction to restrain the respondent mortgagee from enforcing its security against a restaurant business, arguing they were entitled to pay interest only on the loan.

The court found the chattel mortgage clearly required principal repayments and the applicants were in default.

However, the court noted the respondent's seizure of the assets was unlawful due to lack of statutory notice.

The injunction was denied as damages would be an adequate remedy, and the damages claim was dismissed without prejudice due to an insufficient evidentiary record.

At a status hearing under Rule 48.14(13), the plaintiffs sought to restore their breach of contract action to the trial list, while the defendants sought its dismissal for delay.

The action had been commenced in 2008 and was subject to multiple delays, missed timetables, and changes of counsel.

The court found that the plaintiffs failed to provide an acceptable explanation for the nearly seven-year delay, particularly the period following an unsuccessful mediation in 2013.

As the plaintiffs failed to satisfy their onus to show cause why the action should not be dismissed, the court dismissed the action with costs.

The plaintiff accepted an offer to settle her wrongful dismissal and mental distress claim for $15,000 plus costs to be assessed or agreed.

The parties could not agree on costs.

The defendants argued no costs should be payable because the settlement amount fell within the Simplified Procedure threshold.

The court rejected this argument, noting the offer expressly provided for costs and the action was reasonably brought under the ordinary procedure given the complexity of the mental distress claims.

The court assessed the plaintiff's partial indemnity costs, reducing the claimed amount for unnecessary steps and disbursements, and awarded $9,716.50 in fees and $2,003.80 in disbursements, plus $500 for the costs of the assessment.

In a commercial dispute concerning banking facilities and losses allegedly arising from the termination of credit supporting commodity hedging, the defendant bank brought a motion seeking approval of a proposed electronic discovery plan and compelling compliance with Phase 2 documentary production.

The plaintiffs opposed the plan and argued that a prior court order already constituted the governing discovery plan.

The court held that the earlier timetable order did not satisfy the requirements of a discovery plan under Rule 29.1.03 of the Rules of Civil Procedure because it lacked the necessary scope, production, and procedural details.

Applying the Sedona Canada Principles and principles of relevance and proportionality, the court determined the appropriate scope of Phase 2 electronic discovery and approved the bank’s proposed discovery plan with limited amendments.

The plaintiffs’ motion seeking related relief was dismissed.

The moving party sought leave to appeal a costs order issued following settlement of family law proceedings involving custody, access, support, and property issues.

The trial judge had awarded costs to the other party after concluding that although success was divided, that party prevailed on the most complex and time‑consuming issues, particularly child and spousal support requiring extensive financial disclosure and expert accounting evidence.

The moving party argued the trial judge erred in fact‑finding, improperly awarded substantial indemnity costs, and created a reasonable apprehension of bias by releasing the decision before reply submissions were filed.

The court held that leave to appeal costs orders is granted only in obvious cases of error in principle or plainly wrong outcomes and found that the trial judge properly exercised discretion.

The motion for leave to appeal was dismissed.

The applicant, a former member of the Labourers' Union, sought an order permitting him to make claims against the union's Benefit Trust or a return of his Dollar Bank Balance after being expelled for violating a dual union policy.

He also claimed the trustees breached their fiduciary duties.

The court dismissed the application, finding that the applicant ceased to be a beneficiary upon expulsion, had no right to a distribution of the notional dollar bank account, and that the trustees did not breach their fiduciary duties by adopting or enforcing the dual union policy.

The plaintiffs brought a motion for leave to amend their statement of claim to substitute two identified individuals carrying on business as a security automation service in place of a fictitiously named defendant, “John Doe.” The motion arose from water damage allegedly caused by a defective sprinkler head following inspection of the sprinkler system by contractors retained by a security company.

The proposed defendants argued that the amendment would improperly add parties after expiry of the limitation period under the Limitations Act, 2002.

The court held the amendment constituted correction of a misnomer because the statement of claim clearly described the technicians involved in the inspection and the “litigation finger” was directed at them from the outset.

As no non‑compensable prejudice was shown and the action remained at an early stage, leave to amend was granted.