Alissa K. Mitchell

The applicants, Stephen Jurkus and Leslie Lonsbary, sought a stay of proceedings under sections 11(b) and 24(1) of the Charter due to unreasonable delay in bringing their criminal matter to trial.

Applying the framework from R. v. Jordan, the court calculated the total delay at 1,178 days (39.3 months), exceeding the 30-month presumptive ceiling for Superior Court cases.

After subtracting defence-caused delay, the net delay remained above the ceiling.

The Crown failed to rebut the presumption of unreasonableness by establishing exceptional circumstances or case complexity.

The court also found the delay unreasonable under the pre-Jordan Morin framework, considering factors such as prolonged disclosure, institutional delays, the Crown's joint prosecution decision, and significant prejudice to the accused.

The applications for a stay of proceedings were granted.

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.

The parties separated and resolved all issues except the primary residence of their two young children.

The applicant father sought to maintain the interim week-about shared parenting arrangement, while the respondent mother sought primary residence.

The court considered the mother's history of post-partum depression and the father's active involvement in parenting, including caring for their son who has epilepsy.

Finding that the children were thriving under the status quo and that both parents provided stable, loving homes, the court ordered the continuation of the week-about shared parenting schedule and joint custody.

The accused was arrested during an undercover 'buy and bust' drug operation after driving the target of the investigation to a pre-arranged drug transaction.

The accused brought a motion to exclude evidence (cocaine and cash) seized during a search incident to arrest, arguing his ss. 8, 9, and 10(b) Charter rights were violated.

The court dismissed the motion, finding the police had reasonable and probable grounds to arrest the accused for trafficking based on his act of transporting the target and the drugs to the transaction.

The court also found no breach of the right to counsel.

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 defendant brought a motion for summary judgment to dismiss a construction lien claim filed by the plaintiff, Kyle Stephen Chambers, arguing that the defendant had contracted with the third party, Steven Patrick Chambers (Kyle's father), not Kyle.

The court applied the objective test for contract formation (consensus ad idem) and found that all objective evidence, including signed contracts and communications, indicated that the defendant contracted with Steven Chambers' sole proprietorship.

The plaintiff failed to provide evidence to the contrary.

The motion was granted, dismissing Kyle's lien claim and ordering the return of funds held in trust to the defendant.

Steven Chambers retains an unsecured claim.

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 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 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.

This is a costs endorsement following an appeal where the appellant was predominantly successful in overturning a wrongful dismissal finding but unsuccessful on other grounds.

The court assessed the appellant's claim for substantial indemnity costs, which was significantly higher than the damages awarded and the Small Claims Court jurisdiction.

The court found that Rule 49.10 of the Rules of Civil Procedure does not apply to appeals, nor does Rule 14.07 of the Small Claims Court Rules provide for enhanced costs on appeal.

Considering factors under s. 131(1) of the Courts of Justice Act and r. 57.01(1) of the Rules, including the proportionality of costs to the amount at stake and the level of success, the court awarded the appellant $10,000 in costs, inclusive of disbursements and HST, significantly less than the $56,320.96 claimed.

The plaintiff condominium corporation sued the adjacent property owner for damages to its easement rights due to the defendant's failure to maintain a shared retaining wall, pleading negligence and nuisance.

The defendant, third parties (Development Engineering (London) Limited, Aviva Insurance Company of Canada), and fourth party (Atkinson, Davies Inc.) brought motions for summary judgment to dismiss the claims.

The court found no common law, statutory, contractual, or equitable duty for the servient tenement (defendant) to repair the wall, especially since the defendant was not responsible for its initial collapse.

Consequently, the plaintiff's claims were dismissed.

The court also found that the defendant, third parties, and fourth party were not concurrent tortfeasors, thus precluding claims for contribution and indemnity under the Negligence Act.

The applicant sought an order in the nature of mandamus to compel the Law Society of Upper Canada to issue him a Class L1 license to practice law, alleging undue delay in the assessment of his good character.

The delay stemmed from the Law Society awaiting the outcome of a grievance proceeding related to the applicant's termination for cause by a former employer.

The court determined it lacked jurisdiction to order the issuance of a license, as licensing falls under the exclusive jurisdiction of the Law Society.

However, the court affirmed its jurisdiction to ensure the Law Society conducts its mandate in a timely manner.

The application was dismissed, but the Law Society confirmed that its Proceedings Authorization Committee was scheduled to make a determination regarding the applicant's character assessment.

The defendants brought a motion for summary judgment to dismiss the plaintiff's personal injury claim arising from a motor vehicle accident.

The plaintiff alleged she was waved into traffic by a cement truck driver, causing her to collide with the defendant Dalessandro's vehicle.

The court granted summary judgment dismissing the claim against Dalessandro, finding no evidence he breached the standard of care.

However, the court dismissed the summary judgment motion regarding the cement truck driver and owner, finding that conflicting evidence regarding the driver's identity created a genuine issue requiring a trial by jury.

The trustee of an estate brought an application for the court's opinion, advice, and direction regarding a will provision that directed funds for awards or bursaries exclusively to 'Caucasian (white) male, single, heterosexual students' and a 'single, Caucasian white girl who is not a feminist or lesbian'.

The court declared the qualifications void as contrary to public policy because they discriminated on the basis of race, gender, marital status, and sexual orientation.

The court further held that the doctrine of cy-pres could not be applied to save the trust, as the testator had expressly provided that the gift should be deleted if the qualifications were found void for public policy.

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 sought forfeiture of cash seized during a traffic stop under the Civil Remedies Act, 2001.

The court held that, on a balance of probabilities, the bundled cash was proceeds of unlawful activity or an instrument of unlawful activity, relying on the circumstances of seizure, the presence of marijuana-related indicia, the packaging of the money, and unchallenged expert opinion evidence concerning drug-trafficking cash practices.

The court rejected the explanation that the funds were intended for a legitimate tobacco purchase, finding that evidence inconsistent with the ordinary payment practices of the business.

A forfeiture order was granted.

The appellant commercial tenant moved for a stay of an order dismissing his application and dissolving an interim interlocutory injunction, seeking reinstatement of the injunction pending appeal.

Applying the RJR-MacDonald framework for stays, the court held that the moving party failed to establish a serious issue for adjudication because the proposed appeal largely repeated arguments already rejected by the application judge, including objections based on settlement privilege and counsel's participation.

The court deferred to the application judge's evidentiary ruling and interpretation of counsel correspondence as proving a binding settlement agreement.

Because the first branch of the test was not met, the court did not consider irreparable harm or balance of convenience.

The motion was dismissed with no costs.

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.