Alexandre Kaufman

On a pre-trial application under ss. 276 and 278.92-278.94 of the Criminal Code, the accused sought to adduce prior-conduct evidence and to classify various defence-held materials as non-records.

The court held the proposed sexual-history evidence did not satisfy s. 276(2), finding it invited impermissible twin-myth reasoning and was not proper rebuttal evidence.

On the record-screening issue, the court applied the J.J. framework and concluded the disputed videos, emails, and photographs did not contain intimate or highly personal information sufficient to engage the statutory regime.

Only police reports were found to be records.

The court also barred Crown use at trial of materials determined to be non-records that surfaced through the defence application for directions.

The accused, charged with ten firearm offences and one count of possession of cocaine, brought a Charter application seeking exclusion of a handgun and cocaine seized from him, alleging breaches of ss. 8, 9, and 10 of the Charter.

The court found the investigative detention was lawfully grounded in reasonable suspicion based on the totality of circumstances, including the officer's observation of a suspected drug transaction at a location of prior drug activity.

While a s. 10(b) breach was established due to a nearly two-minute delay in advising the accused of his right to counsel upon detention, the court declined to exclude the evidence under s. 24(2), finding the breach arose from a mistake rather than deliberate misconduct, had minimal impact on Charter-protected interests, and the reliable physical evidence was central to serious charges.

The applicant sought a declaration that he is the beneficial owner of two properties and all common shares of a corporation, claiming he was in a 31-year common-law relationship with the respondent during which he provided funds for purchases registered in her name.

The respondent moved for summary judgment, asserting they were never in a common-law relationship.

The court declined summary judgment on that ground but found the applicant lacked standing to pursue the application due to two prior bankruptcies.

The applicant had made false statements in his bankruptcy filings, declaring no assets while allegedly holding beneficial interests in the properties.

The court found the transfers were made with intent to defeat creditors and that allowing the claim to proceed would condone fraudulent conduct in bankruptcy.

The applicant sought an order requiring the return of the parties' two children to Ottawa and prohibiting the respondent from removing them from Canada.

The respondent requested that the application be stayed in favour of proceedings she commenced in Brampton.

The court determined that while the older child's habitual residence was Ottawa, the younger child's habitual residence was Mississauga.

The court stayed the Ottawa application in favour of the Brampton proceeding, which was commenced first, to avoid multiplicity of proceedings and potential inconsistent judgments.

The respondent's agreement to surrender her passport and NICOP card to her counsel adequately mitigated concerns about international removal.

The defendant Rhonda Niles brought a motion under Rule 42.02 to discharge a certificate of pending litigation (CPL) registered against her property at 55 Avenue Road, Toronto.

The CPL was obtained ex parte by the plaintiff in December 2017.

Ms. Niles argued that the plaintiff failed to provide full and frank disclosure of material facts when obtaining the CPL.

The court found three instances of material non-disclosure: (1) the affiant asserted personal knowledge when the evidence was based on information and belief; (2) the affiant mischaracterized the defendant's financial independence and income sources; and (3) the affiant failed to disclose material facts regarding the property's acquisition and financing.

Although Ms. Niles delayed seven years before bringing the motion, the court exercised its equitable discretion to grant relief, considering the plaintiff's failure to make full and frank disclosure, the plaintiff's lack of diligence in prosecuting the action, and the tenuous connection between the defendant's property and the alleged misappropriated funds.

The CPL was discharged and costs awarded to the defendant.

The applicant sought a temporary order requiring the parties' two children to attend École Élémentaire Catholique Édouard-Bond in Ottawa and a declaration confirming the children's ordinary residence in Ottawa.

The respondent opposed the school choice and sought retroactive child support.

The court found that the respondent failed to meet her burden of demonstrating that a school change was in the children's best interests.

The court ordered the children to continue attending Édouard-Bond and declared that the children have their ordinary residence in both provinces due to equal time-sharing arrangements.

The applicant was awarded partial costs of $7,000.

The decision addresses three mid-trial motions in a solicitor’s negligence action.

The plaintiffs sought leave to admit late-served expert reports and to call Ms. Tara Sweeney as a participant expert.

The defendant sought to limit the plaintiffs’ claim to damages arising from an alleged improvident settlement and objected to the plaintiffs calling multiple experts on the same issue.

The court held that the plaintiffs are precluded from advancing any theory of liability beyond the improvident settlement claim, denied leave to rely on the late-served expert reports, found Ms. Sweeney is not a participant or non-party expert, and permitted the plaintiffs to call both Mr. Will and Ms. Maitland-Carter as experts on Mr. Cardill’s standard of care, but not both Mr. Will and Ms. Sweeney on Mr. Good’s standard of care.

The court dismissed a motion to certify a class action brought by Rodney Wilson against the Ontario Provincial Police for alleged privacy breaches arising from video recording detainees using the toilet in OPP cells.

The court found that the proposed common issues, including alleged Charter breaches and damages, required individualized adjudication and were not suitable for certification.

The court also addressed the evolution of OPP privacy policies and the balance between detainee privacy and institutional security.

Costs were awarded to the defendant.

The plaintiffs brought a mid-trial motion seeking to prevent the defendant, John Cardill, from relitigating whether their former solicitor, Donald Good, breached the standard of care in settling their personal injury actions.

The plaintiffs argued that this issue had already been determined in a prior costs assessment by Justice Hackland.

The court reviewed the doctrine of abuse of process and concluded that it did not apply in this case, as Mr. Cardill was not a party to the prior proceeding and it would be unfair to bar him from making a full defence.

The motion was dismissed.

This decision addresses whether Anne Meehan, a plaintiff in the action, is competent to testify at trial.

The court held a voir dire to determine her testimonial competence, considering her ability to understand the nature of an oath or solemn affirmation and her capacity to communicate evidence.

Despite inconsistencies and some cognitive limitations, the court found that Ms. Meehan demonstrated the necessary capacities to perceive, recollect, and communicate, and ruled that she may testify on a promise to tell the truth.

This ruling addresses whether Anne Meehan, a plaintiff, is competent to testify at trial.

The court reviews medical assessments of Ms. Meehan’s capacity, the statutory requirements under the Ontario Evidence Act, and the parties’ arguments regarding the necessity and form of a competency examination.

The court concludes that a voir dire is required to determine Ms. Meehan’s competency, as mandated by section 18(2) of the Evidence Act, and clarifies that such an examination need not occur in a formal courtroom setting.

The defendants, Dude Mitshabu and Isabelle Kayakeza, sought to set aside a default judgment issued against them in a motor vehicle accident case.

The court reviewed the relevant factors for setting aside a default judgment, including promptness, explanation for default, arguable defence, prejudice, and the effect on the administration of justice.

The court found the defendants did not act promptly, provided implausible explanations, and failed to present an arguable defence.

The motion to set aside the default judgment was dismissed.

The applicants sought to set aside an arbitral award under section 46 of the Arbitration Act, 1991, and moved for leave to introduce fresh evidence.

The court found that the fresh evidence was not relevant to the issues before the arbitrator and would not have affected the outcome.

The application was dismissed as an impermissible appeal of the merits of the arbitration, as the parties had excluded any right of appeal in their agreement.

The court confirmed that section 46 provides only limited grounds for setting aside an award and is not a substitute for an appeal.

Costs were awarded to the respondent.

The court considered whether the plaintiffs could pursue a negligence action against a lawyer who drafted a will, after a Certificate of Appointment of Estate Trustee with a Will (CAETW) had been granted.

The plaintiffs alleged the will failed to reflect the testator’s intentions, resulting in a partial intestacy.

The court held that the action was a collateral attack on the CAETW, which is conclusive as to the will’s validity and contents, and dismissed the action.

The court also addressed the principles of summary judgment, the legal effect of probate, and awarded costs to the defendants.

The plaintiff, First of Five Incorporated, sought an interlocutory injunction to prevent the defendants, Recipe Unlimited Corporation and J.S.M. Corporation (Ontario) Ltd., from terminating a franchise agreement, lease, and sublease pending the outcome of litigation.

The court found that the plaintiff had a contractual right to renew the franchise, subject to certain conditions, and that the issues raised—including good faith, payment disputes, and the effect of the Arthur Wishart Act—were serious and required trial.

The court held that irreparable harm would result if the injunction were not granted, and the balance of convenience favored the plaintiff.

The injunction was granted, and costs were awarded to the plaintiff.

The respondent brought a motion to change a 1992 child support order, seeking to rescind or reduce significant accrued interest on arrears.

The applicant opposed, arguing for full interest and a pro-rata application of payments.

The court, applying the principles from Colucci v. Colucci, found that while the respondent had contributed to the accumulation of arrears, strict enforcement would cause undue hardship due to his limited financial means and health issues.

The court reduced the outstanding interest debt from over $10,000 to $2,229 and set monthly payments at $75, declining the applicant's request for a pro-rata payment calculation as it was contrary to O. Reg. 167/97.

The Corporation of the City of Ottawa moved to set aside a Registrar's order dismissing its action for delay and to reinstate the action.

The motion was opposed by some third parties.

The court applied the test for setting aside a dismissal order for delay, finding that the City provided a satisfactory explanation for the delay, consistently intended to prosecute the action, and acted promptly to address the dismissal.

The court also determined that the opposing parties would not suffer significant prejudice from the reinstatement.

The motion was granted, reinstating the main action and automatically reviving derivative third-party claims.

The applicant sought to recognize and enforce a Quebec Superior Court default judgment in Ontario.

The respondent opposed enforcement, arguing lack of territorial jurisdiction, failure to consider the underlying contract's language, and insufficient notice period for appointing new counsel.

The court found the Quebec court had jurisdiction based on contract formation, dismissed arguments regarding the contract's language as irrelevant to the enforcement agreement, and held that the respondent's failure to act after receiving notice of counsel withdrawal and default proceedings did not constitute a denial of natural justice.

The motion was granted, and the Quebec judgment was recognized and rendered enforceable in Ontario.

The defendant sought an adjournment of a five-week civil jury trial on the grounds of late document disclosure regarding the plaintiff's tip income.

The plaintiff opposed, citing prejudice due to the seven-year delay since the accident, witness availability, and increasing monetary thresholds.

The court denied the adjournment, finding that suitable measures could mitigate prejudice to the defendant and that the prejudice to the plaintiff and the broader impact on the administration of justice outweighed the defendant's need for delay.

Royal and SunAlliance (RSA) brought a motion seeking a court order to compel the Ontario Provincial Police (OPP) to disclose investigation records related to a motor vehicle accident.

These records were crucial for a private arbitration between RSA and Certas Home & Auto Insurance regarding a priority dispute over statutory accident benefits.

The arbitrator could not compel the third-party OPP.

The court, applying Section 29(4) of the Arbitration Act, 1991, determined it had the authority to order pre-hearing third-party disclosure to assist the arbitration.

Finding the evidence highly relevant, the relief non-burdensome, and consistent with efficient dispute resolution, the court granted RSA's application.