Alissa K. Mitchell

The appellant appealed his convictions for sexual interference and exposing his genitals to a minor, challenging the trial judge's dismissal of his s. 11(b) Charter stay application and his s. 278 application for production of the complainant's counselling records.

The Superior Court of Justice upheld the trial judge's calculation of delay, including the finding that a judge's conflict of interest constituted an exceptional circumstance, and agreed the case did not warrant a stay below the Jordan ceiling.

The court also found no error in the trial judge's refusal to order production of the counselling records, as the appellant failed to establish likely relevance.

The appeal was dismissed.

The defendant, Matthew Legault, was charged with aggravated assault on Christopher Chrisjohn at Elgin-Middlesex Detention Centre.

Legault admitted to two physical altercations but claimed consent.

The Crown argued Legault was liable as a principal and as a party to a group assault.

The court found Legault's testimony incredible and unbelievable due to numerous inconsistencies.

While the Crown could not prove beyond a reasonable doubt that Legault as principal caused the "wounding" injuries (nasal bone fractures, gash between eyes) due to a subsequent attack by another inmate, it found him liable as principal for the lesser included offence of assault causing bodily harm.

Ultimately, the court found Legault liable as an aider and abettor for the aggravated assault, concluding that the 34-minute attack was a planned, deliberate, and orchestrated group assault involving Legault and other inmates.

The plaintiff brought a motion for the production of documents relating to unauthorized transfers from its business bank account.

The defendant consented to producing documents specific to the plaintiff's account but opposed producing documents relating to other online bank security breaches and the bank's general website security specifications.

The court dismissed the contested requests, finding that the request for documents about other breaches was a speculative fishing expedition without evidence of a systemic issue.

The court also held that the request for the bank's security specifications was premature, disproportionate to the $150,000 claim, and posed significant security risks.

The plaintiffs brought a motion for the production of a reporting letter sent by the defendants' former solicitor regarding an asset sale transaction.

The plaintiffs claimed the letter was relevant to prove the existence of a $250,000 promissory note, which the defendants denied existed.

The defendants opposed production on the grounds of relevance and solicitor-client privilege.

The court found the letter relevant to the plaintiffs' claim and held that statements of fact within the letter regarding the delivery of the note were not protected by privilege.

The court ordered the letter to be produced to the court in a sealed envelope for redaction of any privileged legal advice before disclosure.

The defendant brought a threshold motion during jury deliberations in a motor vehicle accident trial.

The jury awarded the plaintiff damages for pain and suffering, out-of-pocket expenses, and future health care costs.

The court applied the three-part test from Meyer v. Bright and found that the plaintiff suffered a permanent serious impairment of an important physical function due to chronic pain.

The defendant's threshold motion was dismissed, and the jury's award was upheld subject to statutory deductibles and collateral benefit deductions.

The plaintiff brought motions to amend the statement of claim to add her minor children as anonymous plaintiffs with herself as litigation guardian, and to strike portions of the defendants' statement of defence.

The defendants opposed her appointment as litigation guardian, alleging a potential conflict of interest, and opposed striking the pleadings.

The court appointed the plaintiff as litigation guardian, finding no evidence of a conflict.

The court also struck several paragraphs of the statement of defence that pleaded evidence or irrelevant post-incident facts, while allowing paragraphs relevant to the police investigation to remain.

The defendant in a motor vehicle accident claim brought a motion for production of police and Ministry of the Attorney General files relating to withdrawn criminal charges against the plaintiff for possession of stolen property and fraud.

The action had already been set down for trial.

The court denied leave under Rule 48.04, finding no substantial and unexpected change in circumstances, as the charges were discoverable long before the trial record was filed.

The court also held that the motion would fail under Rule 30.10 because the criminal files were not relevant to the civil action and there was no unfairness in the extensive discovery already conducted.

The applicant, operating a tree-service business as a sole proprietor under the name 'Arbor-Aide', brought an application alleging the respondent corporation, 'Arbor Aid Ltd.', passed off its business as the applicant's contrary to the Trade-Marks Act and common law.

The court dismissed the application, finding the applicant failed to establish the requisite goodwill in the respondent's geographic area of operation.

Furthermore, the court found no likelihood of confusion given the descriptive nature of the names, visual differences, and distinct business models, and concluded there was no evidence of actual or potential damages.

The applicant, Omar James, charged with drug trafficking, brought a Charter application challenging the validity of a search warrant and seeking exclusion of evidence.

The application alleged violations of his s. 8 Charter right due to insufficient grounds in the Information to Obtain (ITO), unauthorized video surveillance in a common hallway, improper acquisition of rental car information, non-disclosure of material information in the ITO, and failure to satisfy the Debot test for confidential informants.

The court dismissed the application, finding no s. 8 Charter breach and, alternatively, that the evidence would have been admissible under s. 24(2) of the Charter.

Darren Roth was charged with assault with a weapon (bottle), assault with a weapon (glass), and aggravated assault arising from a bar fight.

The second count was withdrawn by Crown counsel.

The court found the self-defence claim lacked an "air of reality" as the accused's subjective belief of threat was not reasonably held.

The court found the accused guilty of assault with a weapon (bottle) and the included offence of assault causing bodily harm, but not guilty of aggravated assault, as the complainant's injuries did not meet the threshold for wounding, maiming, disfigurement, or endangering life.

The plaintiffs brought a medical malpractice action against the deceased's family physician following the deceased's sudden cardiac death.

The plaintiffs alleged the physician breached the standard of care by failing to elicit symptoms of coronary artery disease during a periodic health examination and by failing to send a referral for a stress test.

The court found the physician met the standard of care during the examination.

While the physician admitted breaching the standard of care by failing to send the referral later, the court concluded this breach did not cause the death, as the deceased would not have received treatment before his death due to specialist wait times, and the fatal arrhythmia was likely caused by pre-existing scarring rather than an acute ischemic event.

The action was dismissed.

The applicant brought a motion to change a final order to increase spousal support and terminate child support.

The respondent sought to terminate spousal support.

The court found that the applicant's receipt of provincial disability benefits did not constitute a material change, as she was still capable of part-time work and her disability was unrelated to the marriage.

However, the court found that the passage of time of over ten years and the amount of support paid constituted a material change.

The court concluded that the applicant's entitlement to both compensatory and non-compensatory support had ended, and terminated the respondent's spousal support obligation.

Child support was also terminated on consent.

The plaintiff employee, who had been on a prolonged medical leave of absence since 2012, brought a motion for summary judgment seeking termination and severance pay under the Employment Standards Act, 2000, arguing his employment contract was frustrated due to illness.

The defendant employer argued frustration requires an act of the employer and denied the contract was frustrated.

The court held that frustration occurs as a matter of law when there is no reasonable likelihood of the employee returning to work, which occurred in October 2016 based on medical evidence.

The court granted summary judgment for the statutory entitlements but dismissed the plaintiff's claim for punitive and aggravated damages, finding the employer's conduct was not malicious.

The defendant sought summary judgment to dismiss the plaintiff's slip and fall claim on a municipal sidewalk adjacent to its retail store.

The central issue was whether the defendant was an "occupier" of the sidewalk under the Occupiers' Liability Act or owed a common law duty of care.

The court found no special circumstances to deem the defendant an occupier, nor sufficient objective evidence to establish a common law duty of care arising from conditions on its property affecting the sidewalk.

The motion for summary judgment was granted, and the action was dismissed.

In a medical malpractice action, the plaintiffs challenged the admissibility of evidence from a defendant cardiologist, Dr. Wong, concerning average wait times for stress tests.

Dr. Wong's testimony was based on patient records and a summary chart prepared by his office staff.

The plaintiffs argued this constituted inadmissible hearsay, as Dr. Wong did not personally verify all the underlying data.

The court ruled that Dr. Wong's evidence was admissible in its entirety.

It found that the patient records contained Dr. Wong's first-hand knowledge and served to refresh his memory, and the chart was a summary of this information.

Any weaknesses or limitations in the process of compiling the data were deemed to affect the weight of the evidence, not its admissibility.

This costs endorsement followed a successful status hearing motion by the plaintiffs and a partially successful cross-motion by the defendants.

The plaintiffs sought substantial indemnity costs for the status hearing, citing the defendants' litigation conduct.

The court awarded the plaintiffs partial indemnity costs for the status hearing, finding no basis for substantial indemnity as the criticized conduct related to the general litigation, not the specific motion.

For the cross-motion, where success was divided, the court ordered each party to bear their own costs.

This decision addresses two motions: one by defendant Martini to compel the examination of Gheorghe Leferman (sole officer/director of the plaintiff, Romcan Limited) as a witness under Rule 39.03 for a pending motion for a further and better affidavit of documents, and another by defendant Shulgan to compel Mr. Leferman's examination for discovery.

The court granted Martini's Rule 39.03 motion, limiting the scope of examination to specific areas where Mr. Leferman had improperly introduced hearsay evidence, and deemed requests for personal documents premature.

Shulgan's motion for examination for discovery was also granted, finding that he had met the preconditions and the benefits of early discovery outweighed the burden of a second examination for Mr. Leferman.

Martini's motion for a further and better affidavit of documents was adjourned.

Costs were divided for Martini's motion due to mixed success, while Shulgan was awarded $5,000 for his entirely successful motion.

The defendant, Attorney General of Canada, brought a motion for summary judgment to dismiss the plaintiffs' claims for negligence, breach of contract, breach of fiduciary duty, mental distress, and wrongful/constructive dismissal.

The court granted the motion, finding the claims statute-barred under the Limitations Act, 2002, as they were discovered by February 3, 2014, but the action was commenced on February 5, 2016, exceeding the two-year limitation period.

Additionally, the court found that the claims constituted workplace grievances falling under the comprehensive grievance process of the RCMP Act and Commissioner’s Standing Orders, thus deferring jurisdiction to that administrative scheme.

The Royal Canadian Mounted Police was removed from the style of cause as it is not a separate legal entity.

The plaintiffs sought a status hearing under Rule 48.14 to allow their action to proceed despite a five-year delay and requested a timetable.

The defendants opposed, seeking dismissal due to non-compensable prejudice from a key witness's death and alleged spoliation of evidence.

The court found the plaintiffs provided acceptable explanations for the delay, which was largely attributable to interlocutory proceedings and the defendants' actions.

The court also determined that any prejudice from the witness's death or evidence destruction did not arise from the delay necessitating the status hearing and was not so extensive as to prevent a fair trial.

The defendants' cross-motion to strike parts of a reply affidavit was granted in part.

The main motion to allow the action to proceed was granted, and a timetable was imposed.

The plaintiff, Pattison Outdoor Advertising Ltd., sought reimbursement of $45,332 plus HST from the defendants, Winchester Real Estate Investment Trust Limited and 1096966 Ontario Ltd., alleging payments were made under a mistake of fact for billboards removed from the Simcoe Property in 2003.

The defendants contended they were entitled to the payments under a valid and unteminated lease.

The court found no bad faith on the part of the defendants, interpreted the lease as granting an exclusive right to erect signage for a fixed rent, and concluded that the defendants had a legal right to receive the payments as the lease was never formally terminated by the plaintiff.

The action was dismissed.