Bonnie R. Warkentin

This case involves the sentencing of David Voss for his significant role in a large-scale art fraud scheme involving forged paintings attributed to the renowned Indigenous artist Norval Morrisseau.

The court emphasized the profound and far-reaching damage caused by the fraud, extending beyond financial losses to the cultural and spiritual identity of Indigenous art and artists.

Voss was sentenced to five years in a penitentiary for two charges of fraud.

Other charges against Voss and all charges against co-accused Diane Champagne were withdrawn.

The court declined to order restitution due to the immense complexity of identifying all victims and quantifying losses, deeming it unmanageable and detrimental to the administration of justice.

A forfeiture order was made for the identified forged artwork.

The plaintiff, a construction company, sued the defendant for unpaid services and materials related to a renovation project.

The defendant counterclaimed for breach of contract, poor workmanship, and lost rental income.

The court found no binding fixed-price contract, determining it was a time and materials project.

While the plaintiff's hourly rate was deemed reasonable, the claimed hours were reduced due to discrepancies.

The defendant's counterclaim for deficiencies was partially successful for poor workmanship in the bathrooms, but claims related to electrical panel, hot water tank, furnace, and lost rental income were dismissed due to the defendant's instructions for cost-cutting or her own responsibilities.

The plaintiff was awarded a net amount after set-off for the successful portion of the counterclaim.

This class action concerned historical sexual abuse perpetrated by Ralph Rowe, an Anglican priest and Scout leader, against Indigenous boys in remote communities.

The court approved a $13.25 million settlement, which included a unique trauma-informed claims process with two tracks (simplified Schedule A up to $140,000, and more rigorous Schedule B up to $350,000).

The settlement also provided for apologies from the Anglican Church of Canada and Scouts Canada, and funding for counselling.

The court found the settlement fair, reasonable, and in the best interests of the class members, emphasizing the benefits of timely resolution and the innovative, claimant-centric claims protocol.

This decision addresses the issue of costs following the dismissal of an application alleging a contravention of the Municipal Conflict of Interest Act.

The respondent, who successfully defended the application, sought costs on an actual or substantial indemnity basis.

The applicant argued for a significantly lower amount.

The court, exercising its discretion under the Courts of Justice Act and Rule 57.01, applied the principle of reasonableness.

Despite the respondent's offer to settle for dismissal without costs, the court found the quantum sought by the respondent excessive given the limited complexity and duration of the proceeding.

The court awarded costs on a partial indemnity scale, increased due to the respondent's offer to settle, for a total of $15,000.00 to be paid by the applicant.

The plaintiff sued the defendant plastic surgeon for medical malpractice, alleging he breached the standard of care by failing to assess her and obtain x-rays within 7 to 10 days following surgery for a fractured finger.

The plaintiff claimed this delay prevented an immediate repeat surgery and necessitated a more complex corrective procedure months later.

The Superior Court of Justice dismissed the action, finding no established standard of care requiring a general plastic surgeon to conduct a post-operative assessment and x-rays within the 7 to 10-day window.

The applicant sought a declaration that the respondent, a municipal councillor, contravened the Municipal Conflict of Interest Act (MCIA) by participating in a council vote to indemnify himself and other councillors for legal expenses incurred in responding to a Human Rights Tribunal application.

The applicant argued the respondent had a pecuniary interest and sought to have his seat declared vacant.

The court dismissed the application, finding that the respondent's actions did not contravene the MCIA, particularly under the s. 4(i) exception for benefits related to a member's duties, and that the indemnification by-law was mandatory.

The court also noted that even if there was a contravention, the severity claimed was not warranted, and the respondent acted in good faith.

This motion addressed the quantum of interest owing on litigation loans obtained by the plaintiff, Rudolph Steinberg, from BridgePoint Financial Services Limited.

The plaintiff argued the high interest rates were unconscionable and sought a cap on the interest.

The court found the loan agreements contractually sound, noting the plaintiff received legal advice and acknowledged the terms.

While largely rejecting the unconscionability argument, the court granted a reduction of $75,000 in accrued interest due to legitimate delays caused by the COVID-19 pandemic, balancing this against the plaintiff's own conduct which had exacerbated the accrual of interest.

This criminal trial concerned 17 counts of domestic abuse allegations against the accused, Leon Giardino, involving his former spouse, Santina Giardino, between 2013 and 2021.

Charges included assault, assault with a weapon, choking, mischief, uttering threats, and failing to comply with release orders.

The court applied the W.(D.) framework for assessing conflicting testimony.

The judge found the accused guilty of 10 counts, including multiple assaults, assault by choking, uttering threats, and one count of failing to comply with a release order, while acquitting on other charges due to insufficient evidence or reasonable doubt.

The Crown brought a pretrial application to admit evidence of similar acts and prior discreditable conduct of the accused in a domestic violence case involving multiple assault charges.

The defence opposed the admission, arguing the evidence was highly prejudicial and presumptively inadmissible.

The court, applying the principles from *R. v. Z.W.C.*, denied the Crown's application.

It found that the probative value of the proposed evidence did not outweigh its prejudicial effect, as it largely constituted hearsay or vague observations not directly describing Criminal Code offences, and would risk impermissible bad character reasoning.

This decision concerns the sentencing of Jonathan Yellowhead for manslaughter, following his conviction after a two-week trial.

The victim's death was attributed to hypothermia, blunt facial trauma, and ethanol intoxication.

The Crown sought 8-12 years of incarceration, while the defence proposed 3-5 years.

The court considered aggravating factors, including the accused's violent criminal history, and significant mitigating Gladue factors related to his Indigenous background and the intergenerational impacts of residential schools.

The court also granted 2:1 credit for pre-sentence custody due to "abhorrent conditions" in jail.

The final sentence imposed was five years and four months incarceration, with 51 months credit for pre-sentence custody, resulting in 13 months remaining to serve, followed by a three-year probation order with specific conditions, a DNA order, and a lifetime firearms prohibition.

The applicants sought partition and sale of a jointly owned recreational property under the Partition Act.

The respondents opposed, arguing a co-ownership agreement governed the dispute and that the applicants acted in bad faith.

The court found the co-ownership agreement inoperable regarding fair market value and tax implications, and that the respondents were not acting reasonably or in good faith by arbitrarily determining the property's value.

The court exercised its discretion to grant the application for sale.

The accused, Marshall Hardy-Fox, pleaded guilty to kidnapping and accessory after the fact in connection with the death of Lee Chiodo, who was kidnapped and murdered over a drug debt by co-accused David Hui and Musab Saboon.

Hardy-Fox, a drug addict with no prior criminal record, acted as the driver during the kidnapping and later cooperated with the police, testifying against Hui and Saboon.

The Crown sought a total sentence of 6-8 years, while the defence argued for time served (21 months) plus probation, emphasizing Gladue factors and the accused's cooperation.

The court considered aggravating factors, including the drug-related nature of the offences and the use of a firearm, alongside significant mitigating factors such as the accused's lack of record, early guilty plea, remorse, assistance to the prosecution, and Indigenous background (Gladue factors).

The judge imposed a sentence of 3 years and 8 months (44 months) for kidnapping and 2 years concurrently for accessory after the fact.

With 21 months credit for pre-sentence custody and restrictive bail conditions, the remaining custodial sentence was 23 months, followed by a 3-year probation order.

The applicant, Shirley-Anne Spencer, a common-law spouse of the deceased, brought an application seeking dependent support from the estate, a constructive trust over certain assets, and enforcement of an alleged oral agreement for equal division of all assets with the deceased's son, Jeffrey Hutchings.

The court dismissed all of the applicant's claims, finding that she had been adequately compensated as a dependent through beneficiary designations, that there was no unjust enrichment to support a constructive trust, and that no legally binding oral agreement for equal division of the estate assets was formed.

The Severances, defendants by counterclaim, moved to strike a counterclaim brought by Her Majesty the Queen in Right of the Province of Ontario and Carillion Canada Inc. (HMQ) in the Subject Action.

HMQ's counterclaim sought contribution and indemnity for claims asserted against them in a separate Barrie Action, where the Severances were not parties.

The court found that HMQ's counterclaim was procedurally improper under Rule 21.01(1)(b) as it did not disclose a reasonable cause of action in the Subject Action, as such claims should be brought as third-party claims in the Barrie Action.

The motion to strike was granted without leave to amend, though HMQ was not prejudiced from seeking leave to add the Severances as third parties in the Barrie Action.

The defendants brought a motion to add Brian Kraynyk as a party to their counterclaim, alleging fraud and negligent misrepresentation.

The motion was dismissed because the two-year limitation period for adding Mr. Kraynyk had expired.

The court found that the defendants had knowledge of the underlying issue (failure to install a septic tank) well over two years prior to bringing the motion, and their claim of newly discovered evidence was not credible.

While the motion to add a party was dismissed, the motion to amend the statement of defence was granted, excluding any paragraphs referencing the proposed added party and personal claims against him.

The offender, A.K., was convicted of sexual interference and sexual assault against a child, A.A., who was 7 when the offences began and continued until she was 13.

The court considered aggravating factors including the offender's position of trust and authority, the victim's young age, the duration and nature of the assaults, and the use of force.

Mitigating factors included no prior criminal record and community support.

Applying sentencing principles of denunciation and deterrence, particularly for child sexual abuse, the court imposed an eight-year penitentiary sentence, reduced to seven years and seven months after pre-trial custody credit.

Various ancillary orders were also made, including a lifetime weapons prohibition, DNA order, National Sex Offender Registry registration for 20 years, and a lifetime contact prohibition with the victim and restrictions on contact with persons under 16.

Bay City Contractors (Thunder Bay) Inc. moved for partial summary judgment for $200,338.56 for work completed on a construction project.

Quinan Construction Limited counterclaimed for $285,713.24, alleging contractual breaches, delays, deficiencies, and post-termination costs.

The court granted partial summary judgment to Bay City for the undisputed amount of $200,338.56 but found a genuine issue for trial regarding Quinan's counterclaim.

Payment of the summary judgment was stayed until the counterclaim is resolved.

Costs for the motion were divided, with each party bearing their own.

The appellant appealed her conviction for refusing to provide a breath sample, arguing that the trial judge's reasons were insufficient, particularly regarding credibility findings in a Charter application.

The Charter application alleged arbitrary detention and sought exclusion of evidence, claiming the traffic stop was solely for a roadside sobriety test.

The trial judge dismissed the Charter application, finding the traffic stop lawful based on observed Highway Traffic Act infractions and that the breath demand complied with the Criminal Code.

The appellate court dismissed the appeal, deferring to the trial judge's credibility findings and concluding that the reasons were sufficient, finding no basis to interfere with the rulings.

Following success on a summary judgment motion, the defendants sought costs to be awarded personally against the plaintiff's lawyer, Mr. Brian MacIvor, under Rule 57.07(2).

The court clarified that such a request cannot be satisfied by usual costs submissions and requires a formal motion supported by affidavit evidence, allowing the solicitor to respond.

The court outlined the two-part test for personal costs against a solicitor, requiring that costs be incurred unnecessarily and that the court exercise its discretion.

The request for personal costs was dismissed in the context of the costs submissions, with the court directing the defendants to bring a proper motion if they wished to pursue the matter.

The Crown sought to admit video statements of a child complainant (A.A.) under s. 715.1 of the Criminal Code in a sexual assault trial.

The respondent objected, arguing the statements were not made within a reasonable time after the alleged offences.

The court found that while a three-year delay might be acceptable given the complainant's reasons for non-disclosure, the Crown failed to present the entire video statements in the voir dire.

Without viewing the full statements, the court could not ascertain if they conformed to the rules of evidence and met all s. 715.1 criteria, particularly regarding leading questions.

Consequently, the Crown's application was denied.