Bruce G. Thomas

The court ruled on the admissibility of expert evidence in the manslaughter trial of Sean O’Rourke, an O.P.P. constable.

The defence sought to call Dr. Laurence Miller, a psychologist, to opine on neuropsychological reactions to stress and memory.

The court found the evidence neither necessary nor relevant, holding that the trier of fact could assess the issues without expert assistance.

The ruling reviews the necessity threshold for expert evidence and applies appellate guidance, ultimately excluding the proposed testimony.

The court considered whether Constable Sean O’Rourke’s use of his firearm, which resulted in the death of Nicholas Grieves during an attempted arrest, constituted the unlawful act of careless use of a firearm and thus supported a conviction for manslaughter.

After a detailed review of the evidence, including expert testimony and the circumstances of the incident, the court found that O’Rourke’s actions were reasonable and consistent with police training and policy.

The discharge of the firearm was found to be a tragic accident, not a marked departure from the standard of care of a reasonable police officer.

The charge of manslaughter was dismissed.

The court considered the admissibility of two statements made by Lovepreet Singh, charged with dangerous driving causing death.

The first was a roadside statement to police while Singh was being treated for burns; the second was an audio-recorded statement at the hospital.

The Crown sought to admit only the hospital statement.

The court found that the Crown had not proven voluntariness beyond a reasonable doubt, citing concerns about an unrecorded pre-statement conversation, a partial caution, and potential inducement.

The hospital statement was excluded as involuntary.

The Ontario Superior Court of Justice allowed P.P.'s appeal from convictions for sexual interference and sexual assault, finding that the trial judge erred in admitting irrelevant and prejudicial letters written years before the alleged offences and in permitting evidence of privileged marital communications without a valid waiver.

The cumulative effect of these errors undermined the credibility assessment of the defence and required a new trial.

The case involves two competing parenting motions to review and expand the father's parenting time with his six-year-old daughter, Adelle, following his demonstrated sobriety from alcohol.

The court considered the child's best interests, the father's consistent negative alcohol tests, and the mother's concerns regarding the pace of expansion and marijuana use.

The court expanded the father's mid-week overnight contact and maintained the existing "Happy Fridays" schedule, but limited weekend overnights to Sunday evening return.

The court also refined the alcohol testing regime and set a specific Christmas parenting schedule for 2024.

The plaintiffs sought summary judgment for a declaration that Economical Insurance held a valid and enforceable policy for a vehicle involved in a motor vehicle accident that caused catastrophic injuries to one of the plaintiffs.

Economical brought a cross-motion for a declaration that any claim regarding the accident was invalid and the right of recovery forfeited, citing the insured's failure to disclose material changes in risk, including the driver's G2 license status, a license suspension, and exclusive possession of the vehicle.

The court found that significant credibility issues regarding the driver's residency and vehicle use precluded a determination by summary judgment.

Instead of dismissing the motions, the court directed a "mini-trial" under Rule 20.04(2.2) to resolve these specific factual disputes.

The defendants brought a motion seeking leave to amend their Statement of Defence to plead a jurisdictional bar under the Workplace Safety and Insurance Act, 1997 (WSIA), and an adjournment of the trial.

The proposed amendment argued that the plaintiff's action was barred by WSIA sections 28 and 31, which grant exclusive jurisdiction to the Workplace Safety and Insurance Appeals Tribunal (WSIAT) for workplace injury claims against employers.

The court granted leave to amend the Statement of Defence, finding that while the delay was unfortunate, any prejudice to the plaintiff could be compensated by costs and an adjournment.

The trial was adjourned to allow for the amendment and a determination by WSIAT.

The defendants were ordered to pay the plaintiff partial indemnity costs and an additional amount for trial preparation efforts, totaling $28,578.28.

Mohamed Ahmed Abdirahman was charged with importation and possession for the purpose of trafficking of 196.7 kg of methamphetamine, found in his commercial truck cab at the Ambassador Bridge border crossing.

The Crown's case relied on circumstantial evidence to prove the accused's knowledge of the drugs.

The court found the circumstantial evidence, including the drug's quantity, value, location, a strong chemical odor, and the use of matching duct tape found in the cab, to be overwhelming.

The defence's alternative theories were dismissed as speculative.

The accused was found guilty on both counts.

The plaintiff brought a motion for default judgment after the defendant failed to file a defence to an action for negligence and breach of contract regarding substandard concrete work.

The court reviewed the plaintiff's affidavit and oral evidence, awarding damages for necessary repairs to the property and for loss of enjoyment.

The claim for loss of reputation was dismissed due to lack of evidence.

The respondent, Harrison Pensa LLP, brought a motion to transfer an application from Toronto to London.

The application concerned a dispute over a contingency fee agreement between Aylmer Meat Packers Inc. and Richard Walter Clare (applicants) and Harrison Pensa LLP.

The court considered the factors under Rule 13.1.02(2) of the Rules of Civil Procedure, finding a significant connection to London, where the contingency fee agreement was drafted and the related trial took place.

The court determined that London was a "significantly better" venue and granted the motion to transfer the proceeding to London.

The applicants, charged with gang sexual assault and other offences, brought a constitutional challenge to the common law principle that a person cannot consent to the intentional infliction of bodily harm during sexual acts, including BDSM.

They argued this principle, particularly as affirmed in R. v. Zhao, violated their Charter rights to freedom of expression (s. 2(b)), liberty and security of the person (s. 7), and equality (s. 15).

The court dismissed the application, finding that violence is not a protected form of expression, that the right to liberty does not extend to inflicting bodily harm, and that BDSM is not an analogous ground for discrimination under s. 15.

The court upheld the common law principle as constitutional and justifiable under s. 1 of the Charter.

Kelly Jacobs was convicted by a jury of impaired operation of a motor vehicle causing the death of Beulah Peters.

The court considered sentencing objectives, aggravating factors (high intoxication, prolonged drinking, dangerous driving, unlicensed driving, frequency of impaired driving in the community, impact on victims), and mitigating factors (no prior criminal record, positive Gladue report, strong community support, employment, education, remorse, compliance with release conditions except alcohol abstinence).

The court applied Gladue principles, noting that the offender's circumstances did not diminish moral culpability to warrant a further reduction in sentence.

A conditional sentence was deemed unfit.

The applicant, Francisco Calles, sought to void a contingency fee agreement (CFRA) with the respondent law firm, Yormak & Associates, and to recover fees paid, requesting the court to fix or assess the fees.

The respondent, Steven Yormak, brought a motion to strike portions of the applicant's materials and a counter-application for disclosure of the applicant's new counsel's file.

The court voided the CFRA due to numerous deficiencies under the Solicitors Act and its Regulations, finding it unfair and unreasonable.

The respondent's motion to strike was partially granted, and the counter-application was dismissed as a "fishing expedition" seeking privileged material.

The court fixed the respondent's fees on a quantum meruit basis at $62,150, reducing the claimed hours, and ordered the respondent to remit $6,290.62 to the applicant.

The defendants brought a motion to transfer a motor vehicle accident action from Guelph to London, seeking to consolidate it with a separate London action against the plaintiff's long-term disability insurer.

The plaintiff opposed the transfer.

The court, applying Rule 13.1.02(2)(b) factors holistically, found that the cause of action, damages, and subject matter were Guelph-centric.

It determined that the convenience of parties and witnesses did not favor London, and transferring would significantly delay the Guelph trial, which was already on the trial list.

The motion was dismissed, upholding the plaintiff's prima facie right to choose venue and emphasizing the negative financial impact of delay on the plaintiff.

The applicant mother brought multiple motions, and the respondent father brought cross-motions, seeking interim orders regarding parenting time, child support, spousal support, and issues related to the matrimonial home mortgage and section 7 expenses.

The court maintained the existing 60/40 parenting split for the younger child, imputed income to the applicant for child support calculations, dismissed the applicant's claim for interim spousal support, and dismissed the applicant's request to remove her name from the mortgage or sell the home.

Section 7 expenses were ordered to be divided proportionally.

The defendant brought a motion to transfer the action from Kitchener to London, Ontario, arguing it was in the interests of justice.

The plaintiff opposed the transfer.

The court considered the factors under Rule 13.1.02(2)(b) of the Rules of Civil Procedure.

While the location of the collision, damages, and subject matter favored London, and the convenience of parties and witnesses also leaned towards London, the court found that significant backlogs in criminal cases and judicial complement issues in London would severely delay a civil jury trial.

Upholding the plaintiff's prima facie right to choose venue, the court concluded that the defendant failed to demonstrate that a transfer was desirable in the interests of justice, particularly concerning the timely and expeditious determination of the proceeding.

The motion was dismissed.

The applicant, Dylan Schaap, charged with second-degree murder and firearms offences, sought release on bail.

The Crown opposed release on secondary and tertiary grounds.

The court reviewed the proposed release plan, including multiple sureties and electronic monitoring, and assessed the applicant's past conduct, the seriousness of the charges, and the strength of the Crown's case.

The court found that the applicant failed to meet the onus to justify release on both secondary (public safety/recidivism/interference with justice) and tertiary (maintaining confidence in the administration of justice) grounds, citing concerns about the reliability of the sureties and the applicant's history of non-compliance and dishonesty.

The application for release was dismissed.

The media parties sought to terminate or vary sealing orders related to Informations to Obtain (ITOs) for search warrants in a high-profile murder and terrorism case.

The Crown and the accused, Nathaniel Veltman, sought to maintain significant restrictions to protect fair trial rights and privacy.

The court applied the Sherman test, finding a serious risk to fair trial rights and privacy due to widespread pre-trial publicity.

The court ordered a publication ban on broad swathes of evidence and a limited sealing order on highly sensitive personal and graphic information, concluding these measures were necessary and proportionate to balance open court principles with fair trial rights and privacy.

The court-appointed receiver sought approval of a vesting order, ancillary orders, and a distribution order for the unsecured creditors of Royal Timbers Inc. A creditor of a related company in receivership, Banwell Development Corporation, objected to the payment of post-receivership interest to Royal Timbers' creditors, arguing the interest should instead be paid pro rata to Banwell's creditors due to a potential shortfall in the Banwell estate.

The court rejected this argument, holding that the two receivership estates were separate and the unsecured creditors of Royal Timbers were entitled to post-receivership interest from the surplus generated by the sale of Royal Timbers' assets.

The plaintiffs moved to strike the defendant's jury notice and requested a judge-alone trial, potentially virtual and in tranches, citing substantial trial delays due to the COVID-19 pandemic.

The defendant opposed, arguing for the preservation of the right to a jury trial and suggesting a "wait and see" approach.

The court granted leave for the motion, finding a "substantial or unexpected change in circumstances" due to the pandemic.

Considering the local court conditions in Windsor, including limited courtroom capacity and a significant backlog of criminal and family cases, the court determined that a civil jury trial would face inevitable and considerable delay into 2022 or beyond.

The court found that the delay constituted prejudice to the plaintiffs, outweighing the defendant's right to a jury trial, and that a judge-alone virtual trial would better serve the interests of justice by providing a more expeditious resolution.