R. Cary Boswell

The accused, facing serious charges for trafficking carfentanil and possessing numerous firearms, applied for a second bail review under s. 520 of the Criminal Code.

The accused proposed a novel release plan involving 24/7 physical surveillance by a private security firm, GPS monitoring, and strict house arrest with multiple sureties.

The court found that this enhanced plan, combined with the severe difficulties the accused faced in preparing for trial due to COVID-19 restrictions in custody, constituted a material change in circumstances.

The court concluded that the stringent conditions sufficiently attenuated the primary, secondary, and tertiary ground concerns, and ordered the accused's release.

The added defendants (purchasers) moved to discharge a Certificate of Pending Litigation (CPL) obtained ex parte by the plaintiff, to lift a stay on a writ of possession, and for the return of their purchase funds after a failed real estate closing.

The court found the plaintiff failed to make full and frank disclosure when obtaining the CPL and that the equities favoured the purchasers.

The court discharged the CPL, lifted the stay on the writ of possession, and ordered the vendors' solicitor to immediately return the purchase funds to the purchasers, as the vendors failed to provide vacant possession and clear title on closing.

The defendants brought a motion to impose a discovery plan in a Simplified Rules motor vehicle accident claim.

The parties disagreed on whether the plaintiff should be required to produce certain medical and employment records prior to oral examinations, and who should bear the upfront cost of obtaining them.

The court ordered the plaintiff to use her best efforts to obtain and disclose the disputed productions prior to discoveries, finding them relevant and proportionate.

The court also held that under Rule 76.03, the plaintiff is presumptively required to obtain and disclose these documents at her own expense.

The plaintiff sued the owners, property managers, and cleaning contractors of a shopping mall after slipping and falling near the food court.

The defendants moved for summary judgment, arguing there was no objective evidence of a hazard on the floor.

The court dismissed the motion, finding that the plaintiff's direct evidence that her foot stuck to a sticky substance raised a genuine issue for trial.

Furthermore, the court found insufficient evidence on the record to determine whether the defendants had a reasonable system of inspection and maintenance in place.

The plaintiff, a long-term executive director of a not-for-profit chamber of commerce, sued for wrongful dismissal after being terminated for cause.

The employer alleged the plaintiff breached her fiduciary duties through various financial irregularities, including altering a banking document, taking unauthorized vacation pay, and allowing an unauthorized pay raise to continue.

The court found that the plaintiff was a fiduciary and that her cumulative misconduct and poor judgment irredeemably fractured the employer's trust.

The court concluded the employer had just cause for termination and dismissed the plaintiff's claims for notice, aggravated damages, and punitive damages.

The offender pleaded guilty to possession of cocaine, obstructing a police officer, and breach of recognizance after a traffic stop where he gave a false name and was found with 25 grams of cocaine.

The Crown sought 10 months' custody, while the defence sought time served based on pre-trial custody and strict bail conditions.

The court sentenced the offender to four months' custody, credited as time served, plus 12 months of probation, noting his rehabilitation efforts and guilty plea.

The applicants, charged with human trafficking offences, applied under s. 462.34(1) of the Criminal Code to access approximately $133,000 in restrained funds held in their corporation's bank account to pay for living and legal expenses.

The court found the applicants had an interest in the funds and lacked sufficient other means to pay their legal fees, though they did not need the funds for living expenses.

However, because the corporation owed approximately $67,000 in unremitted HST, which is deemed to be held in trust for the Crown under the Excise Tax Act, the court only released the remaining $66,000 to the applicants' counsel to fund their defence.

The plaintiff moved for urgent injunctive relief against his neighbours, the defendants, alleging their excavation activities encroached on his lands and caused flooding.

The court granted an interim interim injunction enjoining the defendants from trespassing and ordering them to permit the plaintiff's expert access to their property to conduct investigations.

The court declined to enjoin the defendants from conducting further landscaping on their own lands, finding no evidence of irreparable harm.

The plaintiff slipped and fell on an icy sidewalk outside a post office.

Over three years later, he moved to amend his statement of claim to add several third and fourth parties as defendants to the main action.

Two of the proposed defendants opposed the motion, arguing the claims were statute-barred under the Limitations Act, 2002.

The court found that the plaintiff failed to exercise reasonable diligence in investigating the cause of the ice build-up and delayed informing his counsel about a broken eavestrough.

Factoring in the COVID-19 limitation period suspension, the court concluded the limitation period had expired and dismissed the motion against the opposing parties.

The applicant conservation authority sought an interim injunction to stop the respondents from excavating peat and depositing fill on their property, which is located within a provincially significant wetland.

The respondents had been carrying out these activities without the required permits under the Conservation Authorities Act and Ontario Regulation 179/06.

The court found that the respondents were in flagrant breach of the regulation and that their activities were causing irreparable harm to the wetland.

The court granted the interim injunction, prohibiting the respondents from interfering with the wetland without prior written approval.

The applicant sought temporary spousal support, and the respondent sought an order for the sale of two co-owned properties located in Quebec.

The court found the applicant entitled to support and imputed an income of $138,265 to the respondent based on a three-year average of his corporate earnings.

Temporary spousal support was ordered at $3,000 per month, factoring in the applicant's exclusive possession of one Quebec property and imputed rental income from the other.

The court dismissed the respondent's motion to sell the Quebec properties, finding it lacked jurisdiction to order the sale of extra-provincial lands under the Partition Act or Family Law Act, and that the Catania test for in personam jurisdiction was not met.

During a wrongful dismissal trial, the plaintiff objected to the defendant adducing evidence of financial irregularities, arguing the defendant breached the rule in Browne and Dunn by failing to confront her with this evidence during cross-examination.

The court dismissed the objection, finding the defendant had generally met its obligations as the plaintiff was well aware of the allegations from pleadings and discovery.

The court held that the appropriate remedy for any specific transactions not put to the plaintiff would be to recall her to testify, rather than excluding the defendant's evidence.

The applicant grandparents brought a motion for a contact order with their seven-year-old granddaughter after the respondent mother cut off contact due to ongoing family conflict.

The mother argued that her parental autonomy should be respected and that the grandparents' contact should be at her discretion.

The court found that the mother's decision to terminate contact was arbitrary and not in the child's best interests, given the child's close historical relationship with the grandparents.

The court granted a temporary contact order providing for monthly in-person visits, alternating between day visits and overnights, as well as weekly virtual contact.

The appellant hired the respondent for leasehold improvements and failed to pay the final invoice balance.

More than two years after the last payment, the respondent commenced a Small Claims Court action.

The trial judge found that a text message sent by the appellant constituted an acknowledgment of the debt under s. 13 of the Limitations Act, 2002, extending the limitation period.

On appeal, the Divisional Court upheld the decision, finding the text message was a clear acknowledgment and that the unique identifiers of a cellular phone satisfy the signature requirement under s. 13(10) of the Act.

The plaintiffs sought to add two radiologists as defendants to a medical malpractice action after the presumptive expiry of the limitation period, claiming they only recently discovered the claim through expert advice.

The proposed defendants brought a motion to compel disclosure of the identities of the plaintiffs' consulting experts and all communications with them, which the plaintiffs resisted on grounds of relevance and litigation privilege.

The court held that by relying on the experts' advice to explain the delay in discovering the claim, the plaintiffs impliedly waived privilege over the experts' identities and certain notes of conversations with them, as fairness required the proposed defendants to be able to test the plaintiffs' evidence on discoverability.

However, other requested documents remained protected by privilege or were irrelevant.

The applicant previously obtained an urgent, ex parte temporary parenting order against the respondent, with a return date set for an open motions list.

When the respondent attempted to file a counter-motion, the court registry refused to accept it on the basis that the open list motion was already scheduled for the maximum one hour.

The court intervened, holding that it would be contrary to natural justice and procedural fairness to prevent the respondent from filing a counter-motion after an ex parte order had been made against him.

The court directed that the counter-motion be accepted and set strict time limits for both parties to make their submissions within the allotted one hour.

The appellant, an ODSP recipient, appealed an interim ruling of the Social Benefits Tribunal regarding its jurisdiction to hear complaints about overpayment calculations from 2010 and prior years.

The Director raised a threshold issue of prematurity, arguing that appeals to the Divisional Court under s. 31(1) of the Ontario Disability Support Program Act are only permitted from final decisions.

The Divisional Court agreed, holding that the administrative law doctrine of prematurity applies to prevent fragmentation and delay, and dismissed the appeal.

The applicant sought judicial review of a Workplace Safety and Insurance Appeals Tribunal decision barring her civil action against the respondents for injuries sustained in a parking lot fall.

The Tribunal found that although the applicant was paid by a numbered company, the respondent Sargent Farms Limited was her de facto employer and she was in the course of her employment at the time of the accident.

The Divisional Court dismissed the application, finding the Tribunal's conclusion that the respondent extensively controlled her employment was reasonable and supported by the evidence.

The moving party brought a motion for leave to appeal an order dated December 9, 2019.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party on a partial indemnity basis in the amount of $3,500.

The appellant tenant appealed a Landlord and Tenant Board order terminating her tenancy and evicting her family following an altercation with the building superintendent over a clogged sink.

The Divisional Court allowed the appeal, finding the Board made several errors of law.

Specifically, the Board failed to consider whether the tenant 'permitted' the illegal act (spitting) under s. 61(1) of the Residential Tenancies Act, improperly speculated about future risk under s. 66(1), and failed to consider all relevant circumstances for relief from eviction under s. 83.

The eviction order was set aside and the landlord's applications were dismissed.