Bonnie R. Warkentin

The applicant sought judicial review of decisions by the Information and Privacy Commissioner regarding a freedom of information request for an OPP investigation report.

The Commissioner had found that the Ministry repeatedly failed to properly exercise its discretion under the law enforcement exemption, but closed the appeal file claiming he was functus officio and had no further recourse.

The Divisional Court quashed the Commissioner's decisions, finding he erred in law by misapprehending the scope of a prior Supreme Court of Canada remittal order.

The Court remitted the matter back to the Commissioner and issued a declaration that the Ministry had disregarded the Commissioner's proper directions regarding its exercise of discretion.

The Crown applied to admit the hearsay statements and prior trial testimony of a witness, Ali Abdul-Hussein, who failed to appear for the accused's murder trial.

The witness had previously given a sworn video statement implicating the accused but recanted at the first trial, claiming he lied to secure a plea deal.

The court dismissed the application, finding that the evidence was inadmissible under s. 715(1) of the Criminal Code because the accused was denied a full opportunity to cross-examine the witness at the first trial.

Furthermore, the statements did not meet the threshold reliability requirement under the principled exception to the hearsay rule due to the witness's history of lying and the lack of independent corroborating evidence.

The Crown brought an application to admit the videotaped police statement of an unavailable witness under the principled exception to the hearsay rule in a first-degree murder re-trial.

The witness, who had been subpoenaed, failed to appear.

The court found that while the statement met the necessity criterion and threshold reliability through corroborating evidence, its admission would severely impact trial fairness.

The statement lacked spontaneity, having been guided by police theories, and the inability of the defence to cross-examine the witness rendered the statement's prejudicial effect disproportionate to its probative value.

The application was dismissed.

The accused, Grace Go Gaurino, sought a directed verdict of acquittal on charges of fraud over $5,000 and theft over $5,000 after the close of the Crown's case.

The Crown presented evidence that Ms. Gaurino received 19 cheques, which she wrote and deposited, totaling $16,629.96 beyond her salary, while caring for a 98-year-old, pain-medicated, and forgetful employer.

Applying the test from *R. v. Arcuri*, the court found sufficient evidence upon which a reasonable jury, properly instructed, could return a guilty verdict, noting that the judge's role is not to weigh competing inferences.

The motion for a directed verdict was dismissed.

The Crown sought to admit hearsay statements of a deported witness, Omar Ahmed, and his prior transcript testimony in a re-trial for first-degree murder.

The Respondent objected on grounds of necessity and reliability.

The court found that while necessity was met due to Ahmed's deportation, threshold reliability was not established due to his criminal background, inconsistencies in prior testimony, and the Respondent's lack of full opportunity to cross-examine him in a fair trial setting.

The court also exercised its residual discretion to exclude the evidence to protect the Respondent's constitutional right to a fair trial, given the prior conviction was overturned due to a miscarriage of justice.

The applicant, charged with first-degree murder, sought to exclude 104 private communications intercepted under six wiretap authorizations, arguing violations of section 8 and 24(2) of the Charter.

The applicant alleged that the affiant failed to make full, frank, and fair disclosure in the Information to Obtain (ITO) for the first authorization, leading to invalidity of all subsequent authorizations.

The court reviewed the ITO for probable cause and investigative necessity, finding that despite some errors and omissions by the affiant, they were not intentional or grossly negligent and did not seriously distort the assessment of witness credibility.

The court concluded that the issuing justice had a sufficient basis to grant the authorizations, as probable cause and investigative necessity were established.

The motion to exclude the wiretap evidence was dismissed.

The Applicant, charged with first-degree murder, sought to exclude call detail records obtained via search warrants, arguing violations of his s. 8 Charter rights.

The Applicant contended that the Informations to Obtain (ITOs) contained inaccuracies, lacked reasonable grounds to believe the records would afford evidence, and that police failed to file Reports to Justice as required by s. 489.1 of the Criminal Code.

The court found that while there were minor inaccuracies in the ITOs, they were made in good faith and, once excised, sufficient grounds remained for the warrants.

The court also found that the police's failure to file Reports to Justice constituted a s. 8 Charter breach but, following established jurisprudence, determined that this technical breach did not warrant the exclusion of evidence under s. 24(2) of the Charter, especially given the serious nature of the charge.

The application to exclude evidence was dismissed.

The plaintiffs sued the police for negligence after the plaintiff was severely injured in a drive-by shooting, alleging the police knew he was a likely target but failed to warn him or arrest the known shooter.

The defendants appealed a motion judge's decision dismissing their motion to strike the claim.

The Divisional Court dismissed the appeal, finding that the amended statement of claim pleaded sufficient material facts to establish a relationship of proximity analogous to the recognized duty of care in Jane Doe, and it was not plain and obvious that the claim would fail.

The court considered the defendant's request for partial indemnity costs following a successful outcome in the main proceeding.

The plaintiff opposed the costs order, arguing the initial decision was incorrect.

The court exercised its discretion under the Courts of Justice Act and Rule 57.01, finding the requested quantum reasonable given the complexity of the initial litigation.

Costs were awarded to the defendant.

The court determined costs following a summary judgment in favour of a defendant.

The successful defendant sought substantial indemnity costs, while the plaintiffs argued for a lower partial indemnity award.

The court found that while some aspects of the plaintiffs' position had no chance of success, their argument regarding the nature of the retainer required judicial interpretation and was not unreasonable.

Consequently, costs were awarded on a partial indemnity scale to the successful defendant, payable by the plaintiffs, in the amount of $25,200.16 inclusive of HST and disbursements.

N.K. was charged with nine counts of assault, including assault with a weapon, against her four children.

The trial involved testimony from the children and their father.

The court found significant evidence of collusion between the children and their father, and concerns that the allegations were exaggerated or part of a family law dispute strategy.

The youngest child's testimony revealed discussions among the children and father prior to and during the trial, including coaching and expressions of animus towards the mother.

The court found the father's testimony self-serving and unreliable.

Due to the combined effect of collusion and animus, the court was left with reasonable doubt regarding the children's evidence and found N.K. not guilty on all charges.

The Attorney General of Canada brought a motion to strike the plaintiff's 40-page statement of claim without leave to amend, arguing it failed to disclose a reasonable cause of action, was frivolous/vexatious, would prejudice a fair trial, and that the plaintiff lacked legal capacity for certain claims.

The plaintiff, Roland Eid, self-represented, alleged negligence, negligent investigation, malicious prosecution, and intentional infliction of mental distress against the AG, stemming from his time as a CSIS informant, his company's bankruptcy, and an incident at the Canadian embassy in Lebanon.

The court granted the motion, striking the entire statement of claim, finding that the plaintiff lacked standing for claims related to his company's bankruptcy and his family's damages, and that his claims for negligent investigation and malicious prosecution failed due to his criminal convictions.

The court also found the pleading violated Rule 25 requirements for form and material facts.

This decision addresses a voir dire application in a murder trial to determine the voluntariness and admissibility of three statements made by the accused to police.

The court found the August 22, 2006 telephone statement and the November 8, 2006 video statement to be voluntary and admissible.

Portions of the November 8, 2006 surreptitiously audio-recorded statement were deemed admissible, specifically those relating to the murder investigation, while police opinions and commentary on unrelated criminal investigations were excluded due to prejudicial effect outweighing probative value.

The court rejected arguments that the accused was induced, misled about his status or the use of the interview, or that the statements' prejudicial effect outweighed their probative value.

The plaintiff, Shelly Wine, brought a motion for leave to appeal to the Divisional Court from an order setting aside a default judgment against two defendants, Houman Mahadjeri and Rayvin Teena Squires.

The motion judge had set aside the default judgment on terms, including payment of costs thrown away.

The plaintiff argued the motion judge misapprehended evidence regarding the timing of counsel retention and failed to address the defendants' delay, leading to prejudice.

The court applied the two-part test for leave to appeal under Rule 62.02(4)(b), which requires "good reason to doubt the correctness" of the order and that the appeal involves "matters of such importance." The court found no good reason to doubt the correctness of the motion judge's decision, which had properly considered the five factors for setting aside default judgment as outlined in Mountain View Farms Ltd. v McQueen.

The motion for leave to appeal was dismissed, and costs were awarded to the respondents.

The appellant appealed a decision of the Law Society Appeal Panel regarding a costs award made by a Hearing Panel that had recused itself.

The Divisional Court applied a reasonableness standard of review to the Appeal Panel's decision.

The Court dismissed most of the appellant's arguments, finding the Appeal Panel reasonably concluded that both parties were at fault for failing to raise a conflict of interest issue earlier, and that success was divided on a bias motion.

However, the Court reduced the costs awarded to the Law Society for a motion to exclude evidence by 50%, as the parties agreed the motion took less time than the Appeal Panel had estimated.

The appeal was otherwise dismissed.

The appellants appealed a Landlord and Tenant Board review order requiring them to pay the respondent tenant $9,439.13 for a bad faith eviction.

The appellants argued the Board failed to articulate the legal test for bad faith and lacked an evidentiary record.

The Divisional Court dismissed the appeal, finding that the Board's conclusion of bad faith was a factual finding or a finding of mixed fact and law, which is not reviewable under section 210 of the Residential Tenancies Act, as appeals are restricted to questions of law.

The plaintiff brought a motion for summary judgment seeking repayment of $400,000 advanced to the defendant, and to dismiss the defendant's counterclaim for $813,000.

The court granted summary judgment for the $400,000 as the defendant admitted receiving the funds and owing the debt.

However, the court refused to dismiss the counterclaim, finding that the lack of written agreements and contradictory evidence regarding the defendant's remuneration and the share purchase created a genuine issue for trial.

The court stayed the enforcement of the $400,000 judgment pending the outcome of the counterclaim trial, as the defendant may be entitled to an equitable set-off.

The defendant solicitor brought a motion for summary judgment to dismiss the plaintiffs' professional negligence claim against him.

The plaintiffs alleged the solicitor failed to advise them of a conflict of interest, failed to commence a negligence action against their former counsel, and failed to advise them of the applicable limitation period.

The court granted summary judgment, finding the solicitor's retainer was limited to the assessment of the former counsel's accounts, the plaintiffs were informed of the conflict, and the solicitor fulfilled his duty by advising the plaintiffs to seek independent legal advice regarding any potential negligence claims.

The proposed defendant, having successfully defended a motion by the plaintiffs to add him as a party after the limitation period expired, sought substantial indemnity costs of $9,910.28.

The plaintiffs argued for nominal costs.

The court awarded costs on a partial indemnity scale in the amount of $6,082.64, finding the proceeding was not complex but of significant importance to the proposed defendant.

The court declined to order costs jointly and severally against the plaintiffs' principal, as no evidence was presented to justify such an exceptional order.

The plaintiff mortgagee brought a motion for summary judgment for possession and sale of properties after the defendant mortgagors defaulted on first and second mortgages.

The defendants brought a cross-motion seeking to dismiss the summary judgment and set aside the mortgages, alleging the plaintiff made an oral promise to lift the second mortgage and that the terms were unconscionable.

The court found no genuine issue requiring a trial, rejecting the defendants' claims of an oral promise and unconscionability, as the defendants had legal representation and were not vulnerable borrowers.

Summary judgment was granted in favour of the plaintiff for the amount owing, possession, and sale of the properties.