Brennagh Smith

The moving party sought leave to appeal an interim order regarding a mobility issue.

The Divisional Court granted leave to appeal to determine whether the motion judge erred in adjudicating the mobility issue on an interim basis rather than via summary judgment or trial, and whether the correct test and process were applied.

The appeal was expedited and the existing stay was continued pending the appeal.

This decision addresses the costs of an unsuccessful application for partition and sale of jointly owned property.

The applicant's motion was dismissed because it could prejudice the respondent's family law property claims.

The respondent sought costs, which the applicant argued should be deferred.

The court ruled that costs should not be deferred, as the applicant proceeded with the motion despite the respondent's prior suggestion to defer it until trust claims were resolved.

The respondent was awarded costs fixed at $3000.

The City of Toronto brought a motion to settle two appeals regarding its adoption of the Sherway Area Secondary Plan and Official Plan Amendment 469 (OPA 469).

The settlement proposed minor modifications to Policy 5.9A to clarify the application of mitigation measures for sensitive land uses near major transportation facilities.

Based on uncontradicted expert planning evidence, the Tribunal found the modifications represented good planning, were consistent with provincial policies, and satisfied legislative tests.

The Tribunal approved the settlement and allowed the appeals in part to bring the agreed-upon portions of OPA 469 into force.

This ruling addresses an application for leave to cross-examine an affiant and sub-affiants concerning a search warrant.

The court granted limited cross-examination on specific factual assertions within the Information to Obtain (ITO), including the association between parties, discrepancies in surveillance observations (e.g., backpack possession), and potential confusion in identification due to similar appearances between individuals.

However, leave was denied for cross-examination on the affiant's characterization of observations as drug trafficking and on the overall reliability of confidential information or the non-charging of other targets, deeming these matters more appropriate for legal argument.

The Crown sought an order for the complainant in a criminal trial (assault and sexual assault charges) to testify remotely from her home via Zoom, citing fear of the accused, medical conditions, and childcare issues.

The defence opposed, arguing the application fell under s. 714.1 of the Criminal Code, requiring exceptional circumstances, rather than s. 486.2.

The court determined s. 714.1 applied, requiring exceptional circumstances, especially given credibility was a key issue.

The court found the complainant's circumstances, including medical conditions and childcare, did not meet the threshold of exceptional circumstances, particularly considering prior in-person interactions with the accused and the uncontrolled nature of home testimony.

The Crown's motion was dismissed, requiring the complainant to testify in person.

The Ontario Land Tribunal issued an amending decision to correct typographical errors in its previous decision dated April 28, 2022.

The amendments added Canadian Tire Real Estate Limited as a party and corrected the spelling of a counsel's name from Calvin Lance to Calvin Lantz.

At a Case Management Conference regarding appeals of Official Plan Amendment No. 499 (Golden Mile Secondary Plan), the appellant 1941 Eglinton East Holdings Inc. brought a motion to schedule a hearing to determine the appropriate land use designation for its lands.

The City opposed the motion, arguing it was premature and that a motion regarding the Tribunal's jurisdiction should be heard first.

The Tribunal granted the appellant's motion, finding it in the public interest to provisionally schedule the hearing pending the outcome of the City's jurisdictional motion, as doing so would offer the best opportunity for a fair, just, and expeditious resolution.

This endorsement addresses the sentencing of an offender convicted of 10 counts of first-degree murder and 16 counts of attempted murder.

Due to a pending Supreme Court of Canada decision on the constitutionality of consecutive parole ineligibility periods under s. 745.51 of the Criminal Code, the court, with agreement from all counsel, decided to proceed with the evidentiary portion of the sentencing hearing and impose the mandatory life sentence for one count of first-degree murder.

The sentencing for the remaining counts will be adjourned until the Supreme Court of Canada releases its decision in R. v. Bissonnette.

The court also deemed it appropriate to transfer the offender to a federal penitentiary.

The Ontario Land Tribunal held a first Case Management Conference regarding appeals by DK Broadview Inc. against the City of Toronto's failure to make decisions on Official Plan and Zoning By-law Amendment applications for a 14-storey residential tower.

The Tribunal granted party status to two residents' associations and participant status to an individual and a condominium corporation.

The parties were directed to finalize a Procedural Order, and dates were set for the next CMC and a nine-day hearing.

The appellant, a forensic patient with schizophrenia, appealed a decision of the Consent and Capacity Board upholding his treating physician's finding that he was incapable of consenting to treatment with antipsychotic medication.

The appellant argued that his mutism during periods of deterioration did not equate to an inability to appreciate the reasonably foreseeable consequences of treatment decisions.

The Superior Court of Justice allowed the appeal, finding that the Board failed to analyze or address the appellant's central argument, rendering the reasons inadequate and preventing meaningful appellate review.

The Board's decision was quashed and the matter remitted for a rehearing.

At a Case Management Conference regarding appeals of an Official Plan Amendment and a Heritage Conservation District designation, the Tribunal considered requests for party status and appellant substitution.

The Tribunal granted appellant status to the current owner of 619 Yonge Street, substituting them for the previous owner.

The Tribunal also granted party status to the owners of two abutting properties, allowing them to shelter under the 619 Yonge Street appeal, as the properties comprise a single site proposed for redevelopment.

This was a Case Management Conference regarding appeals of the City of Toronto's Official Plan Amendment 183 and the designation of the Historic Yonge Street Heritage Conservation District.

The Tribunal ordered that the appeals be heard together, granted party status to two community associations, and established a procedural timeline for the exchange of draft changes and issues lists.

The accused, who suffers from schizophrenia, attacked a co-worker without provocation, striking her repeatedly with a metal brake part.

He was charged with attempted murder.

The matter was converted to a trial on consent, and a finding of guilt was made.

A hearing was then held to determine whether the accused was not criminally responsible on account of mental disorder.

Applying the Supreme Court of Canada's framework in Oommen, the court found that the accused's active psychosis deprived him of the capacity for rational perception and rational choice about the moral wrongfulness of his actions.

The accused was found not criminally responsible.

The accused drove a rented van down a busy sidewalk in Toronto, killing 10 people and injuring 16 others.

He admitted to the acts but raised a defence of not criminally responsible (NCR) under s. 16 of the Criminal Code, arguing that his Autism Spectrum Disorder (ASD) rendered him incapable of knowing his actions were morally wrong.

The court found that while ASD qualifies as a mental disorder under s. 16, the accused did not lack the capacity to rationally evaluate his actions.

He knew his actions were legally and morally wrong but chose to commit them to achieve notoriety.

The NCR defence failed, and the accused was found guilty of 10 counts of first-degree murder and 16 counts of attempted murder.

The defence brought a motion for a sealing order and in camera proceedings during the testimony of their key expert witness, a US-based psychiatrist.

The expert issued an ultimatum that he would withdraw from the case unless his video recordings of the accused were sealed and shielded from public broadcast, citing concerns about copycat violence, notoriety, and stigmatization of the autism community.

Applying the Dagenais/Mentuck test, the court found that while the expert's concerns did not themselves justify a sealing order, his threat to withdraw would deprive the accused of his only defence, thereby creating a substantial risk to the administration of justice.

The court reluctantly granted the motion to preserve the accused's right to a fair trial, balancing it against the open court principle by implementing limited restrictions on public access to the video exhibits.

During a trial for multiple counts of first-degree murder and attempted murder, the Crown brought an application for the disclosure of audio and video recordings made by defence psychiatric experts during their interviews with the accused and his family.

The accused had raised a defence of not criminally responsible under s. 16 of the Criminal Code.

The court held that the recordings were protected by litigation privilege, but that this privilege would be waived if the experts were called to testify or if the recordings were used by a witness to refresh their memory.

The court ordered that the recordings must be disclosed to the Crown immediately upon any of the experts being called to testify.

The plaintiffs brought a motion to set aside an administrative dismissal of their action for damages arising from a residential oil spill.

The action was dismissed by the registrar in 2019 for not being set down for trial within five years.

The defendants conceded that the delay was explained and the deadline was missed by inadvertence, leaving prejudice as the only issue.

The court found that the defendants had early notice of the claim, evidence was preserved, and any prejudice from reviving the action was minimal.

The motion was granted and the dismissal was set aside.

The plaintiff's motion for judgment based on acceptance of an offer was previously dismissed.

Both parties sought costs.

The court found that although the defendants were successful on the motion, they were not entitled to costs because the motion was necessitated by their error in failing to withdraw the offer.

In a rare circumstance, the court awarded costs of $4,000 to the unsuccessful plaintiff.

The plaintiff commenced an action for constructive dismissal and other claims.

The defendants made a $25,000 settlement offer in a 'without prejudice' letter in 2016.

Over the next three years, the scope of the plaintiff's claims was significantly reduced through other proceedings.

In 2020, the plaintiff attempted to accept the 2016 offer.

The defendants refused, arguing the offer was not a Rule 49 offer, the acceptance was a counteroffer, and circumstances had changed.

The court found the offer was a valid Rule 49 offer and the acceptance was valid.

However, the court exercised its rare discretion to refuse to enforce the settlement, concluding it would be unjust to allow the plaintiff to profit from the defendants' error in failing to withdraw the offer after circumstances had significantly changed.

The appellant appealed the dismissal of his application to quash a municipal bylaw establishing an administrative penalty system for parking infractions.

He argued the bylaw was ultra vires, conflicted with provincial statutes, violated the Charter, and was enacted in bad faith.

The Court of Appeal dismissed the appeal, finding the bylaw was explicitly authorized by statute, did not conflict with provincial legislation, and did not engage sections 7 or 11(d) of the Charter as it involved no penal consequences.