Catrina D. Braid

The plaintiff contractor sued the defendant property owners for unpaid invoices and extra work related to the installation of a septic system and backfilling of a dog kennel.

The defendants counterclaimed for deficiencies and incomplete work.

The court found that the plaintiff completed the backfill contract and was entitled to payment for it and for snow removal, but dismissed claims for other extras.

The court also allowed the defendants' counterclaim in part, awarding them $5,000 to complete the septic system.

After set-off, the defendants were ordered to pay the plaintiff $5,578.50.

The applicant, who was found Not Criminally Responsible (NCR) for an aggravated assault due to schizophrenia, sought a declaration that his insurer owed a duty to defend him in a civil action brought by the victim.

The victim's claim was framed in negligence.

The court found that the negligence claim was derivative of the intentional tort of assault.

Furthermore, the court held that despite the NCR finding, the applicant's actions were both intentional and criminal within the meaning of the insurance policy's exclusion clauses.

The application was dismissed, and the insurer was found to have no duty to defend.

The offender was convicted of second-degree murder for stabbing his brother to death following a dispute over a loan.

The court considered the mandatory life sentence and determined the appropriate period of parole ineligibility.

Weighing numerous aggravating factors, including the unprovoked nature of the attack outside the home and the presence of the victim's wife, against mitigating factors such as the offender's lack of a prior record and refugee background, the court fixed the period of parole ineligibility at 13 years.

Julio Maldonado Vallejos, charged with human trafficking and related offences, sought directions from the court regarding the applicability of s. 276 of the Criminal Code to evidence of the complainant's sexual history.

The court addressed two issues: whether s. 276 applies when the accused is providing his response to allegations, and whether it applies when the charges are not enumerated offences under s. 276.

The court ruled that a s. 276 application is required in both scenarios, emphasizing a broad interpretation of the provision to protect complainants and trial integrity, particularly in cases connected to sexual exploitation like human trafficking.

Mohammed Younus was tried for the murder of his brother, Shamsul Alamshah.

The initial charge of first-degree murder was reduced to second-degree murder.

The court assessed the accused's defenses of accident, self-defence, and provocation.

The judge found Younus's testimony incredible and unreliable, concluding that he was the aggressor in the fatal stabbing.

The court rejected all defenses, finding that the Crown had proven beyond a reasonable doubt that Younus intended to cause death or bodily harm likely to cause death.

Younus was found guilty of second-degree murder.

The applicant, Kyle Jones, sought a stay of extradition proceedings based on abuse of process, arguing for perpetual piecemeal prosecution, and alternatively, requested disclosure to build a record for the Minister of Justice.

The court dismissed both applications, finding no air of reality to the abuse of process claim and that the disclosure request was not relevant to the committal hearing and would unduly prolong the expeditious extradition process.

The court emphasized that concerns about prosecutorial discretion and the appropriate forum for prosecution are primarily matters for the Minister of Justice at the surrender stage.

This ruling addresses a motion brought by the accused, Julio Maldonado Vallejos, during his judge-alone trial for human trafficking and related offences.

The motion sought directions on whether certain "impugned evidence" – text messages and discussions where the accused spoke about procuring other women for sex work as part of a "team" – required a discreditable conduct application for admissibility.

The court ruled that the impugned evidence directly relates to the actus reus and mens rea of the human trafficking and procuring charges, as it demonstrates the accused's control, direction, or influence over the complainant and his purpose of exploitation.

Therefore, a discreditable conduct application was not required for its admission regarding these specific charges.

The court found the evidence did not support the advertising or material benefit counts.

This decision addresses a motion by Slavica Pavlovic to stay an application brought by Strype Barristers LLP seeking approval of their fees.

Ms. Pavlovic had also commenced an action against Strype Barristers for professional negligence and breach of contract, and had previously brought her own application challenging the fees, which was stayed by consent.

The court determined that the Strype Barristers' application should not be stayed but rather asserted as a counterclaim in Ms. Pavlovic's action, effectively consolidating the proceedings to avoid multiplicity, inconsistent results, and to promote efficiency.

The court also addressed costs for Ms. Pavlovic's initial, stayed application, ordering her to pay $30,000 to Strype Barristers.

The applicant, Kyle Jones, sought disclosure of a hard drive and communications between Canadian and American authorities to support an abuse of process motion to stay extradition proceedings.

He alleged intentional delay by authorities to maximize incarceration and potential perpetual piecemeal prosecution.

The court dismissed the disclosure application, finding that the allegations were not capable of supporting a stay of proceedings and lacked an air of reality, being based on speculation rather than concrete proof.

The court emphasized the distinct roles of the judiciary and executive in extradition and that issues of delay and forum are primarily for the Minister of Justice.

Following the dismissal of the applicants' motion and application challenging the issuance of building permits, the respondent municipality and its Chief Building Officer sought costs.

The applicants argued for a mixed result and that parties should bear their own costs, but the court found the respondents were successful on the majority of issues.

Applying the principles of indemnity and reasonable expectations, the court fixed costs payable by the applicants to the respondents at $30,000.

The defendant brought a motion seeking declarations that a 1999 construction lien judgment was unenforceable or satisfied.

The plaintiff had obtained a judgment and writ of possession for an environmentally contaminated property but never sold it.

Twenty years later, the defendant sold the property and sought to vacate the lien.

The court held that under the Limitations Act, 2002, there is no limitation period to enforce a court order, so the judgment remained valid.

However, the court found that the lien did not secure post-judgment interest, meaning the defendant had paid sufficient funds into court to vacate the lien.

The court also held that while the plaintiff was not required to sell the property, it had an obligation to account for any benefits received while in possession.

The defendant's claim for equitable set-off required a trial with viva voce evidence, and the doctrine of laches did not apply.

The applicant, charged with human trafficking and prostitution-related offences, brought a pre-trial application challenging the constitutionality of sections 286.3 and 286.4 of the Criminal Code.

The applicant relied on a recent Superior Court decision that declared the provisions unconstitutional.

The court declined to follow the prior decision, finding it plainly wrong in its conclusion that Parliament allowed the sale of sexual services.

Instead, the court followed other concurrent decisions upholding the provisions, ruling that the trial would proceed and the constitutional challenge would be fully litigated after the evidence is called.

The applicants brought an application seeking a declaration that building permits issued for a neighbouring townhouse development did not comply with a zoning by-law restricting development to one storey.

The applicants also brought a motion to amend their application to include an appeal under the Building Code Act and to stay construction.

The court dismissed the motion to amend, finding that the applicants failed to appeal the permits within the statutory 20-day period and did not provide reasonable grounds for an extension.

The request for a stay of construction was also dismissed as the applicants failed to meet the test for an interlocutory injunction.

However, the court granted an order requiring the town to enforce a settlement agreement restricting the use of adjacent municipally-owned lands.

The mother brought a motion to vary a final order to address matters raised at trial but not decided, specifically regarding the enforcement of a child support overpayment and a line of credit payment for post-secondary expenses.

The court varied the order to allow for Family Responsibility Office enforcement of the overpayment if no further child support obligations arise by September 2023.

The court also addressed the costs of the trial, finding that the self-represented father engaged in bad faith by persistently failing to provide basic financial disclosure, which unduly lengthened and complicated the trial.

The father was ordered to pay $25,000 in costs to the mother.

The mother brought a Motion to Change a 2016 consent final order, seeking to terminate child support for the parties' three adult children, retroactively adjust support, and determine the sharing of post-secondary expenses.

The father repeatedly failed to provide financial disclosure and sought to withdraw his previous consent to impute his income at $300,000.

The court terminated child support for the eldest child effective June 2018 and for the twins effective June 2020.

The court imputed the father's income at $300,000 due to his failure to disclose, ordered him to pay down a line of credit for post-secondary expenses, and directed that section 7 expenses be shared 85% by the father and 15% by the mother.

The applicant father brought a motion for an interim parenting schedule for his 18-month-old daughter, Aria, after the respondent mother unilaterally moved to Toronto and restricted his parenting time.

The mother raised concerns regarding the father's parenting abilities, the suitability of his family home for overnight visits, and potential COVID-19 health risks due to her and the maternal grandmother's alleged underlying conditions.

The court rejected all the mother's concerns, finding no evidence to support claims of inadequate parenting or a "toxic" home environment, and that the mother failed to substantiate her or the grandmother's health vulnerabilities.

The court emphasized the importance of meaningful contact with both parents during the pandemic.

An interim order was granted establishing a transitional and then regular weekend overnight parenting schedule for the father, with him bearing transportation costs.

The existing child support amount was maintained, and strict COVID-19 safety protocols were mandated.

The applicant mother brought an emergency motion to suspend the respondent father's in-person access to two of their children due to concerns about COVID-19 exposure, citing one child's respiratory issues and the father's blended family living arrangements.

The court dismissed the motion, finding that the child's health issues were mild and well-controlled, and the father's household, including his partner's children and their biological father's household, meticulously adhered to COVID-19 safety protocols.

The court reiterated the principle that existing parenting arrangements should generally continue during the pandemic unless there is compelling evidence of a reckless exposure risk.

The mother was ordered to pay costs to the father.

This is a summary conviction appeal concerning the mens rea for the offence of failing or refusing to provide a breath sample.

The respondent, Roberto DeCaire, was acquitted at trial after the judge found a reasonable doubt as to whether his failure to provide a breath sample was deliberate, citing severe sciatic pain.

The Crown appealed, arguing an error in law regarding the applicable mens rea standard.

The appeal court dismissed the appeal, finding that the trial judge did not err in law by applying a standard that required proof of intentional failure or refusal, consistent with a harmonious reading of conflicting authorities.

Dian and Aaryn Doyle moved to set aside a registrar's order dismissing their action for delay, stemming from two motor vehicle accidents in 2010.

The court applied the four Reid factors (explanation for delay, inadvertence, promptness of motion, and non-compensable prejudice).

The court found a reasonable explanation for delay due to personal difficulties, health issues, confusion regarding undertakings, settlement discussions, and a conflict of interest with previous counsel.

The deadline was missed through inadvertence, and the motion was brought promptly.

The court found no non-compensable prejudice to the defendants, as no critical evidence was lost due to delay.

The motion was granted, setting aside the dismissal order for Dian and Aaryn Doyle, but not for Aiden Doyle who did not participate.

No costs were awarded due to counsel's inadvertence.

The applicants, Erica and Geoff Chovaz, brought motions to strike the pleadings of the respondents, 7120761 Canada Inc., Daniel St. Jean, and Laurel Simmons (collectively "712 group"), in both Superior Court and Small Claims Court actions, alleging non-compliance with pleading rules.

The Chovazs also sought costs for 712 group's abandoned motion to transfer the Small Claims action to Superior Court.

The court granted the motions to strike, finding significant deficiencies in 712 group's pleadings, including lack of clarity regarding causes of action, misrepresentation elements, and damages.

Leave was granted to file amended pleadings.

The court also awarded costs to the Chovazs for the abandoned transfer motion, citing 712 group's problematic litigation conduct.