Alissa K. Mitchell

The applicants sought to exclude firearms and drug-related evidence, arguing that initial warrantless searches of their residence and subsequent searches conducted under warrants violated their section 8 Charter rights.

The court found that the broad "clearing search" of the entire residence, and a second search of a bedroom for firearms, were unreasonable.

It also determined that the subsequently issued search warrants were invalid because they relied on unlawfully obtained information and failed to meet *Lavallee* guidelines for law office searches.

Consequently, the court granted the applications, excluding all challenged evidence under section 24(2) of the Charter due to the seriousness of the Charter breaches and their significant impact on the applicants' privacy interests, which outweighed the public interest in adjudication on the merits.

This ruling addresses a s. 11(b) Charter application for a stay of proceedings due to unreasonable delay.

The applicant, charged with sexual assault and touching for a sexual purpose, argued that the total delay of 33 months and 16 days exceeded the 30-month presumptive ceiling established in R. v. Jordan.

The Crown attributed significant portions of the delay to defence conduct and exceptional circumstances.

The court analyzed the procedural chronology, attributing 120 days of delay to the defence, primarily due to counsel's availability for the preliminary inquiry and a delay in responding to a pretrial invitation.

With this defence delay deducted, the net delay fell to 29 months and 2 days, below the presumptive ceiling.

Consequently, the onus shifted to the applicant to prove the delay was unreasonable, which they did not attempt.

The application for a stay of proceedings was dismissed.

The defendants brought an ex parte request under Rule 2.1.01(1) to dismiss the plaintiff's action, arguing it was frivolous, vexatious, or an abuse of process because it was statute-barred.

The plaintiff failed to respond to two notices from the Registrar regarding the court's consideration of dismissal.

The court found that the plaintiff's claim, issued April 26, 2024, arose on March 15, 2020, when the defendants defaulted on lease payments.

As such, the claim was commenced beyond the two-year limitation period under the Limitations Act, 2002, and was therefore dismissed as frivolous, vexatious, and an abuse of process.

The defendants requested the court to dismiss the action brought by the plaintiff under Rule 2.1.01(1), arguing it was frivolous, vexatious, statute-barred, and improperly commenced in the Superior Court.

The court, acting on this ex parte request, issued a notice to the plaintiff.

As the plaintiff failed to file submissions, the court directed a fresh notice be issued and stayed the action pursuant to s.106 of the Courts of Justice Act, pending the outcome of the Rule 2.1 hearing.

The Trustee in bankruptcy sought to set aside alleged transfers at undervalue made by the bankrupt to his estranged spouse and two sons in the two years prior to bankruptcy.

The court found the payments made in the year immediately preceding bankruptcy to be transfers at undervalue, as the respondents failed to provide compelling corroborating evidence for an alleged oral separation agreement.

However, the court found the bankrupt was not insolvent at the time of the payments made in the second year prior to bankruptcy, thus those transfers were not set aside.

The applicant, Tiffani Martin, sought to exclude evidence (fentanyl, cocaine, and hashish) seized from her purse, arguing violations of her ss. 7, 8, 9, and 10(b) Charter rights.

The court found multiple Charter breaches, including arbitrary prolonged investigative detention, arbitrary arrest for possession of a restricted weapon without reasonable and probable grounds, delayed notification and facilitation of the right to counsel, and an unlawful search of her purse (not incidental to arrest nor a lawful inventory search).

Applying the R. v. Grant factors for s. 24(2) Charter exclusion, the court determined that the seriousness and impact of the police misconduct outweighed society's interest in admitting the reliable evidence.

Consequently, the drug evidence was excluded, which is anticipated to lead to the applicant's acquittal on the drug trafficking charges.

The defendant, Evan Beedawia, was sentenced after being found guilty of dangerous driving causing death and dangerous driving causing bodily harm.

The court considered statutory aggravating factors, including the death of one person and serious injury to another, the offender being remunerated, and operating a large commercial vehicle.

Mitigating factors included no prior criminal or driving record, youthfulness, strong family support, and genuine remorse.

The court emphasized denunciation and general deterrence but found that a penitentiary term was not required due to the lower moral blameworthiness of the conduct, which was characterized by acts of omission and negligence rather than intentional acts.

A conditional sentence of two years less a day was imposed, followed by three years of probation, along with a seven-year driving prohibition and other ancillary orders.

The defendant, a commercial truck driver, was found guilty of dangerous operation of a conveyance causing death and bodily harm after failing to stop at a controlled intersection, resulting in the death of a 4-year-old child and serious injury to her mother.

The court found that the defendant's decision to maintain a high speed despite darkness, fog, fatigue, and distraction, and his failure to brake, constituted a marked departure from the standard of care expected of a reasonably prudent commercial driver.

This application concerned a creditor's attempt to set aside a property transfer from a bankrupt debtor to his spouse as a 'transfer at undervalue' under the Bankruptcy and Insolvency Act (BIA).

The court found that the debtor's half-interest in the property was transferred for nil consideration, that the spouses were not dealing at arm's length, and that the transfer occurred within the five-year period preceding bankruptcy.

Crucially, the court determined that the transfer rendered the debtor insolvent by divesting him of his most valuable asset.

Consequently, the court declared the transfer void against the trustee, making the property available for distribution to creditors.

The respondent brought a motion to stay proceedings, arguing that a dispute resolution clause in the parties' separation agreement mandated binding arbitration for parenting time disputes under the Arbitration Act, 1991.

The applicant opposed, contending the clause did not meet the mandatory formalities for "secondary arbitration agreements" as required by Ontario Regulation 134/07.

The court found that while the clause intended to provide for secondary arbitration, it failed to include the necessary provisions stipulated by the regulation.

Consequently, the clause did not constitute an enforceable arbitration agreement under the Arbitration Act, and the court dismissed the respondent's motion to stay the proceedings.

This endorsement concerns the costs arising from successful summary judgment motions brought by Eaton Industries (Canada) Company and The Corporation of The City of London against Albert Bloom Limited (ABL).

The motions dismissed ABL's claims as statute-barred.

ABL conceded entitlement to costs but disputed the quantum, alleging duplication and excessiveness, particularly given Eaton's prior cost award in a related third-party motion.

The court found the claimed costs reasonable, noting the significance of the litigation, Eaton's efforts to avoid duplication, and ABL's failure to disclose its own costs for comparison.

In this criminal trial before the Ontario Superior Court of Justice, John Gubbels faced charges of assault with a weapon and sexual assault with a weapon against the complainant, M.D., within the context of a BDSM relationship.

The central issue was consent.

The court found the defendant not guilty of sexual assault with a weapon (Count 1) and two counts of assault with a knife (Counts 2 and 3) due to reasonable doubt regarding the complainant's consent and the defendant's knowledge of lack of consent, stemming from inconsistencies in the complainant's testimony and the nature of BDSM play.

However, the defendant was found guilty of one count of assault with a hose (Count 4), as these incidents occurred outside the BDSM context and were clearly non-consensual acts of intimidation.

The accused, Lawrence Thompson, was charged with sexual interference, sexual assault, kidnapping, and abduction of a child under 14.

The charges stemmed from an incident where Thompson picked up a four-year-old complainant, B.S., and drove her a short distance.

The court assessed the credibility and reliability of the child witness, noting inconsistencies but finding her core testimony credible.

The court found the accused's after-the-fact conduct (removing car parts, false statements) indicative of a guilty conscience.

The court rejected the defense of mistake of fact regarding consent for kidnapping, stating a four-year-old cannot consent to confinement by a stranger.

All four charges were proven beyond a reasonable doubt.

The defendant, Nafi Selmanovski, was charged with sexual interference and sexual assault against a complainant who was under 16 years old at the time of the alleged offences.

The Crown presented evidence from the complainant and another former employee.

The defendant did not testify.

The court found numerous material inconsistencies in the complainant's evidence, both internal and external, which undermined credibility and reliability.

The court also noted a potential motive for fabrication by the complainant, who faced criminal charges involving police at the time of reporting.

Consequently, the Crown failed to prove guilt beyond a reasonable doubt, and the defendant was acquitted on all counts.

A member of the public requested a digital recording of a hearing held on May 9, 2016, for an application involving Todd Elliott Speck and The Law Society of Upper Canada.

The court denied the request, exercising its absolute discretion.

The reasons for denial included that the hearing was public, the decision was already released and final, no oral evidence was introduced making the recording an aide memoire, the decision was based on a written record available to the public, and no persuasive reason or relevance to current proceedings was provided by the requesting party.

The plaintiff, Ian McLarty, was successful in his action for payment and dismissed the defendant's counterclaim.

This endorsement addresses the costs of the proceeding.

The court found that the plaintiff's offer to settle, though not strictly compliant with Rule 49.10, triggered substantial indemnity costs from June 18, 2018, onwards, and partial indemnity costs prior to that date, under the residual discretion of Rule 49.13.

The court assessed the reasonableness of the claimed costs, considering factors such as the exaggerated initial lien claim, the complexity of the case (simple breach of contract), the necessity of junior counsel, and the defendant's conduct (false affidavit, failure to answer undertakings).

The court ultimately awarded the plaintiff $45,000 in fees, $5,850 in HST, and $7,351.48 in disbursements, totaling $58,201.48.

The applicant, Adam Dabrowski, sought a bail review under s. 520(1) of the Criminal Code, arguing material changes in circumstances: the COVID-19 pandemic and his sister's availability as a residential surety.

The court found that the sister's availability was not a material change, as it represented a change in legal strategy rather than new circumstances.

However, the court accepted the COVID-19 pandemic as a material change, triggering a de novo hearing.

Despite this, the proposed release plan, which included the sister as surety and house arrest, was deemed insufficient to address primary, secondary, and tertiary grounds for detention, particularly given the applicant's history of breaching bail, credibility issues, and the surety's limited capacity for supervision.

The application for release was dismissed.

The plaintiff, a general contractor, sought payment for construction work performed for the defendant, Great Lakes Food Company, based on unjust enrichment and quantum meruit.

The defendant counterclaimed for damages due to delay and deficiencies.

The court found that delays were primarily due to the defendant's poor planning and CFIA licensing issues, not the plaintiff.

The court allowed the plaintiff's claim for extras at a reasonable "shop rate" but disallowed overtime and reduced the trailer damage claim.

The defendant's claims for deficiencies in Room D were dismissed, but a credit was allowed for drain covers in Room H. The defendant's counterclaim for damages under the Construction Lien Act for an exaggerated lien was dismissed due to lack of proven damages.

The court found the defendant wrongfully terminated the contract.

Judgment was awarded to the plaintiff for $87,244 plus interest.

The third party, Eaton Industries (Canada) Company, brought a motion for summary judgment to dismiss the third party claim of the London Transit Commission (LTC) on the basis that it was statute-barred by the Limitations Act, 2002.

The LTC's third party claim alleged environmental contamination caused by Eaton's predecessors.

The court found that the LTC had actual or ought to have had knowledge of its claim against Eaton by May 22, 2013, when it was served with the plaintiff's statement of claim, and failed to rebut the presumptive limitation period.

The court dismissed the LTC's arguments for a separate limitation period for other damages, concluding all claims were statute-barred.

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.