Catherine D. Aitken

The appellants appealed a Superior Court decision that quashed a building permit issued by the Chief Building Officer (CBO) for an accessory building on a lakeside residential property.

The property was a non-complying lot because it did not border a street, making the determination of lot lines and setbacks under the zoning by-law ambiguous.

The CBO reasonably interpreted the by-law to conclude that all lot lines were side lot lines, and issued the permit.

The Divisional Court allowed the appeal, finding that the appeals judge erred by applying a correctness standard of review and improperly considering land use planning principles from the Official Plan.

The CBO's decision was restored as it was reasonable and entitled to deference.

The applicant sought judicial review of a Human Rights Tribunal of Ontario (HRTO) decision dismissing her complaint against the Social Benefits Tribunal (SBT), the City of Windsor, and the Ministry of Community and Social Services.

The HRTO had dismissed the complaint against the SBT based on adjudicative immunity, and against the other respondents under s. 45.1 of the Human Rights Code, finding the issues had already been authoritatively decided by the SBT.

The Divisional Court dismissed the application for judicial review, holding that the HRTO's decisions were reasonable and that the applicant's proper remedy was to appeal the SBT decision rather than launch a collateral attack via a human rights complaint.

The applicant, who was convicted of manslaughter, brought an application for a stay of proceedings under s. 24(1) of the Charter, arguing that the delay of approximately six years and seven months from the date of charge to the anticipated end of his trial was unreasonable under s. 11(b).

The court applied the Jordan framework and determined that the delay attributable to certiorari proceedings and appeals therefrom should be excluded from the calculation.

The court found that the net delay was well below the 30-month ceiling.

Alternatively, even if the appellate delay was included, deductions for defence delay and exceptional circumstances (including discrete events and case complexity) brought the delay below the ceiling.

The application was dismissed.

The Plaintiffs sought partial indemnity costs of $117,629.60 after recovering modest damages (under $50,000 each) in an action against the Ottawa Police Services Board and several officers for negligent investigation, false arrest, unreasonable search and seizure, negligence in training, and Charter rights breaches.

The Defendants argued no costs should be awarded due to the low recovery, suggesting the case should have proceeded under Simplified Procedure.

The court found it reasonable for the Plaintiffs to have used the ordinary procedure given the importance of Charter rights, the need for discovery, oral evidence, and the complexity of legal issues.

However, the court found the Plaintiffs' counsel's docketing heavy, hourly rates inappropriate for the entire eight-year litigation, and the use of two senior lawyers unjustified given the modest recovery.

Considering proportionality and the importance of the issues, the court awarded the Plaintiffs $65,000 in costs, less $3,750 owed to the Defendants for an unsuccessful motion, resulting in a net recovery of $61,250.

The accused was convicted of manslaughter for his role in a home invasion and robbery that resulted in the shooting death of a 19-year-old victim.

The accused provided information and assistance to the perpetrators but was not present during the home invasion and did not have subjective foresight of death.

The court weighed the serious aggravating factors of a planned home invasion for greed against mitigating factors including the accused's youth, lack of criminal record, and adherence to bail conditions over five years.

The accused was sentenced to 9 years' imprisonment, less 17 months' credit for pre-sentence custody.

The accused, Jose Herrera, was charged with possession of a weapon for a dangerous purpose, assault with a weapon, and aggravated assault following a stabbing incident.

The court found Herrera not guilty of possession of a knife for a dangerous purpose due to insufficient evidence that a knife specifically was used.

However, he was found guilty of assault with a weapon (a sharp-edged object) and aggravated assault.

The defense of self-defense was rejected as lacking an "air of reality" given that Herrera initiated both altercations and there was no evidence of force or threat from the complainant prior to the stabbing.

The plaintiffs sought leave to appeal an interlocutory costs order that reserved the costs of their successful injunction motion to the trial judge.

The plaintiffs argued there were conflicting decisions and good reason to doubt the correctness of the order.

The Divisional Court dismissed the motion for leave, finding that the motion judge properly exercised his discretion in ordering costs in the cause, consistent with the normal practice for interlocutory injunctions, and that differing outcomes in other cases reflected discretionary fact-specific determinations rather than conflicting legal principles.

The defendants sought costs following a motion regarding a sealing order and restricted production of a document.

The court found that the plaintiff acted unreasonably by refusing to consider an informal proposal and a formal offer to settle that mirrored the eventual order.

The court awarded the defendants costs fixed at $5,000 on a partial indemnity basis from the date the informal proposal was made.

The applicant sought judicial review of a decision by the discipline panel of the Ontario College of Pharmacists dismissing his application for reinstatement.

The applicant's certificate had been revoked twice previously due to criminal convictions for trafficking narcotics and fraud.

The Divisional Court found that the panel's decision was reasonable, noting that the panel was entitled to weigh the risk to the public and the profession, reject the applicant's evidence as self-serving, and find that expert reports and educational courses were insufficient to allay concerns.

The application for judicial review was dismissed.

Counsel sought clarification on whether a previously granted stay pending appeal included a stay of further proceedings relating to costs in the Family Branch.

The court clarified that the stay applied to any further steps arising out of the lower court's endorsements, including making submissions on costs.

The court reasoned that it would be a more efficient use of court time and resources to hear the perfected appeal first, as a successful appeal would likely vitiate any costs award.

The plaintiffs sued the Ottawa Police Services Board and several officers for negligent investigation, false arrest, and Charter breaches following a dramatic police raid on their home.

The raid stemmed from a long-standing neighbourhood dispute over a drainage pipe, which led an investigating officer to obtain a public safety warrant and arrest the plaintiff for mischief and intimidation.

The court found the officer's investigation was negligent, as he failed to interview key witnesses or consider the lack of urgency.

The court also held the arrest was unlawful and the search violated section 8 of the Charter due to material omissions in the warrant application and the unreasonable use of a SWAT team.

The plaintiffs were awarded damages for false arrest, negligent investigation, wrongful seizure of firearms, and Charter breaches.

The plaintiff corporation sought a sealing order and a 'counsel eyes only' order for a 34-page document containing sensitive financial information.

The document had previously been disclosed to the individual defendant during family law proceedings involving the plaintiff's principal.

The court granted the sealing order to protect the plaintiff's commercial interests and the integrity of the government procurement process.

On consent, the corporate defendant was denied access to the document.

However, the court refused to deny the individual defendant access, finding that he needed to see the document to ensure trial fairness and to respond to the plaintiff's allegations.

The mother brought a motion to stay two orders of a motions judge pending appeal.

The motions judge had ordered that the child be placed in the primary care of the father and suspended his child support obligations, after the mother sought permission to relocate the child to Ottawa.

The Divisional Court granted the stay, finding that the mother had a strong arguable appeal, that changing the child's long-standing primary residence with the mother would cause irreparable harm, and that the balance of convenience favoured maintaining the status quo pending the appeal.

Costs of $3,000 were awarded to the mother.

The Defendant sought costs against the Plaintiff following the dismissal of the Plaintiff's action on a motion for summary judgment.

The court considered factors such as the principle of indemnity, proportionality, amount claimed, complexity, importance of issues, and conduct of the parties.

The Plaintiff, who was self-represented, had made the litigation more difficult and had unreasonably fought the dismissal.

The court awarded the Defendant fixed costs of $7,500, inclusive of disbursements and HST, finding it to be a fair, reasonable, and proportionate award.

During a trial, the Crown sought to introduce intercepted telephone conversations to show the state of mind of the witnesses, rather than for the truth of their contents.

The defence objected, arguing the Crown must first attempt to refresh the witnesses' memories or establish past recollection recorded.

The court ruled that the intercepted communications were admissible as real evidence without a preliminary voir dire or the need to exhaust the witnesses' memories, allowing the Crown to play the recordings and ask the witnesses to comment.

The Crown sought to admit certain text messages for the truth of their contents in a criminal trial.

The Defence objected, citing concerns about necessity and reliability under the principled approach to hearsay.

The court ruled that two of the four contested text messages were admissible for the truth of their contents under the present intentions and co-conspirators’ exceptions to the hearsay rule, finding that they met the necessity and reliability requirements despite the declarant's availability.

The other two messages were deemed to lack probative value for their truth.

The Crown sought to admit out-of-court statements made by two accomplices who refused to testify at the accused's trial for second degree murder.

The accomplices had previously given statements to police and one had testified at his own trial.

Applying the principled approach to hearsay, the court found that the police statements met the test for threshold reliability due to corroborating evidence and circumstantial guarantees of trustworthiness.

However, the court excluded the prior trial testimony of one accomplice, finding that the leading cross-examination by the Crown at that trial undermined its reliability and admission would negatively impact trial fairness.

Sam Tsega was charged with second-degree murder.

The Crown sought to admit evidence of Tsega's marijuana use and dealing to establish opportunity, motive, context, and witness credibility.

The defense argued inadmissibility due to lack of support for inferences and prejudicial effect outweighing probative value.

The court applied the Handy/L.B. framework, finding the evidence relevant and material to central issues, and while discreditable, its probative value significantly outweighed any minimal prejudice, especially in a judge-alone trial.

The evidence was deemed admissible.

Kristopher McLellan and Kyle Mullen were cited for contempt of court after refusing to testify at the second-degree murder trial of Sam Tsega.

Both had previously provided statements to police and, in McLellan's case, testified at his own murder trial, implicating Tsega.

The court found both guilty of contempt.

Considering aggravating factors such as the refusal to testify in a murder trial, the highly probative nature of their evidence, the disruption to the trial, and their criminal records, alongside mitigating factors like no prior contempt, respectful conduct, and the risks associated with being labeled an informant in prison, the court sentenced each to 30 months imprisonment, to be served consecutively to their existing life sentences.

Sentencing decision following jury convictions for sexual assault with a weapon, unlawful confinement, assault, uttering threats, dangerous driving, and mischief arising from attacks on two vulnerable sex trade workers.

The court treated denunciation and general deterrence as the dominant sentencing objectives, emphasizing predation on vulnerable women, use of a knife, and multiple penetrative sexual assaults.

The court also considered harsh remand conditions as a modest mitigating factor and applied enhanced pre-sentence custody credit under ss. 719(3) and 719(3.1) of the Criminal Code.

A seven-year global sentence was imposed, reduced by four years' credit for pre-sentence custody, leaving an additional three-year custodial term, with ancillary weapons, DNA, no-contact, and SOIRA orders.