Anser Umar Farooq

The accused was charged with sexual assault and assault against his wife.

The trial turned on credibility and reliability, with no independent eyewitness or forensic evidence.

The court applied the W. (D.) framework to assess the conflicting testimony.

Although the court rejected the accused's evidence, it found that inconsistencies between the complainant's trial testimony and her prior statements to police raised a reasonable doubt.

The accused was acquitted on both counts.

During a trial for sexual assault, the accused brought a motion for a directed verdict of acquittal at the close of the Crown's case.

The court applied the test of whether there was any evidence upon which a properly instructed trier of fact could convict.

The court found that the complainant's testimony regarding her lack of consent and submission due to fear provided some evidence on the essential elements of the offence.

The motion for a directed verdict was dismissed.

This decision addresses a high-conflict family law trial regarding the primary residence of a four-year-old child, S.P., following the separation of her parents, Sanjay Patel and Beejal Yogesh Sesha Patel.

The court considered issues of relocation, parenting time, decision-making responsibility, child and spousal support, and equalization of net family property.

The court found that it was in S.P.'s best interests to continue residing with her mother in London, England, and for the existing parenting schedule to remain in place.

The court also ordered retroactive and ongoing child support, retroactive spousal support, and set out directions for the continuation of the trial on outstanding financial issues.

The applicant, Hugh Kuang, sought an order for $4,110,000.00 in interim legal costs and disbursements to fund an upcoming trial under the Ontario Business Corporations Act and the Family Law Rules.

The respondents resisted, arguing that a prior consent order providing $1,000,000.00 did not establish the applicant's ongoing entitlement to interim funding.

The court determined that the prior consent order resolved the issue of entitlement, leaving only the questions of compliance and quantum.

Finding the applicant's proposed budget excessive but recognizing the complexity of the litigation, the court granted the motion in part and ordered the corporate respondents to pay $2,725,000.00 in four staged payments.

The defendants brought a motion for leave to appeal the order of Mirza J. dated June 2, 2023.

The Divisional Court dismissed the motion for leave to appeal without costs.

The Crown appealed stays of proceedings granted to three respondents on the basis of their s. 11(b) Charter right to trial within a reasonable time.

The trial judge had found breaches of the Jordan ceilings, but the Court of Appeal found that she did not adequately account for the systemic disruptions to court operations caused by the COVID-19 pandemic as discrete exceptional circumstances.

The Court provided guidance on how trial courts should account for pandemic-related delays, emphasizing a holistic approach and treating province-wide closures, jury blackouts, local restrictions, and backlog prioritization as discrete exceptional circumstances.

The appeals were allowed, and the stays of proceedings were set aside.

The applicant, charged with human trafficking and drug and firearm offences, brought an application for a stay of proceedings under s. 11(b) of the Charter due to a 51-month delay.

The Crown argued that the delay was mitigated by defence delay and exceptional circumstances arising from the COVID-19 pandemic.

The court deducted periods for defence delay and pandemic-related jury trial blackouts, but found the Crown failed to act reasonably promptly in seeking a direct indictment.

The net delay of 34 months and 12 days exceeded the 30-month ceiling, resulting in a stay of proceedings.

This costs endorsement followed a successful appeal where the appellants were wholly successful on the underlying motion.

The appellants sought costs of approximately $28,800 for the motion.

The court found this amount reasonable, considering the respondent had previously been awarded $34,663.03 on partial success of the same motion.

The court ordered the respondent to pay the appellants $28,800 in all-inclusive costs for the motion.

The appellants appealed a motion judge's decision that partially set aside a default judgment against them and imposed substantial indemnity costs, including a personal costs order against their counsel.

The default judgment stemmed from their inability to close on a home purchase agreement, leading to the respondent retaining their down payment and selling the property at a significant loss.

The Court of Appeal allowed the appeal in full, finding that the motion judge erred in her assessment of the appellants' arguable defence, misapplied principles regarding promptness and prejudice, and made palpable and overriding factual errors.

The personal costs order against counsel was set aside due to a breach of procedural fairness and factual errors.

The Court ordered the default judgment and noting in default to be set aside entirely, allowing the appellants to file a full statement of defence and counterclaim, and awarded substantial indemnity costs of the appeal to the appellants.

Following a judge-alone trial on multiple allegations of sexual assault and assault within a marriage, the court accepted the complainant’s evidence as detailed, clear, and largely uncontroverted.

The defence alleged fabrication, motive arising from related family litigation, and manipulation of audio recordings and text messages, but the court rejected those submissions.

Applying the authentication requirements for electronic documents under s. 31.1 of the Canada Evidence Act, the court held that discrepancies in metadata timestamps did not establish tampering and admitted the electronic records.

The court found the accused guilty on seven counts of sexual assault, one count of assault with a weapon, and one count of assault, and acquitted on one assault-with-a-weapon count involving a car tire.

This is an appeal from a Superior Court decision concerning the enforceability of a non-competition covenant in an employment agreement.

The appellant employer sought to enforce the covenant against a former employee, a pharmacist, who left to work at a competing pharmacy.

The application judge found the covenant unenforceable due to ambiguity and overbreadth.

The Court of Appeal upheld this decision, affirming that the covenant's broad wording, which prohibited the employee from being "concerned with" or "interested in" any similar business, extended beyond what was reasonably required to protect the employer's legitimate interests.

The court reiterated that it cannot rewrite an unreasonable restrictive covenant.

The appellant sought to overturn a motion judge's order declining to restore their action to the trial list, dismissing it for delay, and discharging a certificate of pending litigation.

The Court of Appeal found no error in the motion judge's conclusions that the delay in prosecuting the action was entirely the appellant's responsibility, was unexplained, inordinate, and inexcusable.

The court agreed that an inference of prejudice arose from the lengthy delay, jeopardizing the likelihood of a fair trial due to the passage of time, impact on witness memories, and lack of proper discoveries.

The appeal was dismissed with costs.

The appellant appealed his summary convictions for assault and assault with a weapon, seeking to withdraw his guilty pleas on the basis that they were involuntary, uninformed, and the result of ineffective assistance of counsel.

The Superior Court of Justice dismissed the appeal, finding that the appellant failed to establish that his pleas were invalid or that he suffered prejudice.

The court rejected the appellant's credibility, noting he admitted to lying to the court during his plea allocution to achieve his goals.

The defendant brought a motion to dismiss the plaintiff's action for delay under Rules 24 and 48 of the Rules of Civil Procedure.

The underlying action, involving a shareholder dispute, was commenced in 2015.

The defendant was noted in default in 2017, and a default judgment was issued in 2018, which was later set aside in 2019.

The court dismissed the motion, finding that the delay was largely attributable to the period when the defendant was in default and the suspension of limitation periods during the COVID-19 pandemic.

The court also found no intentional or contumelious delay by the plaintiff and no prejudice to the defendant.

The plaintiff brought a motion for leave to appeal an order dated September 28, 2020.

The Divisional Court dismissed the motion for leave to appeal and ordered the plaintiff to pay costs of $5,000 to the defendants.

The plaintiff moved to restore its action to the trial list under Rule 48.11, while the defendant cross-moved to dismiss the action for delay under Rule 24.01.

The court found that the plaintiff failed to provide a reasonable explanation for the significant delay in prosecuting the action since its inception in 2012, and also failed to demonstrate that the defendant would not suffer non-compensable prejudice if the action were restored.

The court drew an adverse inference from the plaintiff's reliance on lawyer affidavits rather than a deponent with direct personal knowledge.

Given the plaintiff's history of contempt findings and failure to pay costs in related litigation, the court concluded the plaintiff lacked good faith in prosecuting the action.

Consequently, the plaintiff's motion was dismissed, and the defendant's motion to dismiss the action for delay was granted, with an order to discharge the certificate of pending litigation.

The Crown appealed the sentence of a conditional discharge, probation, DNA order, and s. 110 order imposed on the respondent for assault and uttering a threat, arguing it was demonstrably unfit and failed to adequately emphasize denunciation and deterrence.

The court upheld the trial judge's sentence, finding no error in principle or law, and that the sentence was not demonstrably unfit, despite being comparatively lenient.

The accused was tried on charges of sexual assault and attempting to obstruct justice arising from an alleged non-consensual sexual encounter and an interrupted 911 call.

The court rejected the accused’s evidence as contradictory, illogical, and implausible, but held that disbelief of the accused did not relieve the Crown of proving guilt beyond a reasonable doubt under the W.(D.) framework.

Although the court accepted much of the complainant’s evidence and found it likely that a sexual assault occurred, it identified material inconsistencies, inaccuracies, and improbabilities going to the core events inside the apartment.

Those concerns left the court with a reasonable doubt on both counts, resulting in acquittals.

The father appealed a trial judge's order granting the maternal uncle monthly weekend access to the children following the mother's death.

The trial judge had awarded sole custody to the father but ordered that the uncle have access one weekend per month, including overnight visits.

The father argued the trial judge erred in finding that access would not occur without a court order, that the trial judge failed to provide sufficient reasons for disbelieving his evidence that he would voluntarily provide access, and that the trial judge failed to consider potential psychological harm to the father.

The Court of Appeal dismissed the appeal, finding the trial judge's decision was properly driven by the children's best interests and entitled to deference.

Anissah Auckbaraullee was convicted of fraud over $5000 against the Ontario Hospital Association, involving a breach of trust.

The court considered aggravating factors, including the breach of trust and planning, and significant mitigating factors, such as a history of spousal abuse, health issues, financial hardship, and the profound impact of the criminal proceedings and potential deportation on her family life.

Despite the Crown seeking 12-18 months imprisonment, the court imposed a conditional sentence of two years less a day with house arrest, followed by two years probation, and a restitution order of $80,370, finding it to be one of the rare cases where a conditional sentence was appropriate for large-scale fraud due to compelling circumstances and the collateral immigration consequences.