Charles A. Painter

A discipline panel found professional misconduct where a registrant delayed until the next day making a mandatory report to a children’s aid society after receiving disclosures giving reasonable grounds to suspect child sexual abuse and a caregiver’s failure to protect.

The panel held that the immediate reporting duty under s. 125(1) of the Child, Youth and Family Services Act, 2017 was engaged and that the delay breached both the profession’s standard of practice and the misconduct regulation.

Applying the public-interest test governing joint submissions, the panel accepted an agreed penalty of a two-month suspension with a possible one-month remission tied to remediation, together with a reprimand and training terms.

The panel also accepted the joint costs submission of $4,700.

The moving party, The Corporation of the City of Peterborough, brought a motion for leave to appeal a prior decision.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $10,000 to the responding party.

The court dismissed a motion to strike the jury notice following closing arguments in a negligence trial arising from a motor vehicle accident.

The plaintiffs objected to 19 statements made by defence counsel in his closing address, alleging they were inflammatory, invited improper reasoning, misstated the law, and appealed to emotion.

The court found some statements objectionable but determined that corrective jury instructions were sufficient to remedy any prejudice, making discharge of the jury unnecessary.

The jury subsequently found the defendants liable in negligence, apportioning liability at 93% to one defendant and 7% to the other.

Three consolidated civil actions arose from a motor vehicle accident on April 22, 2016, near Stouffville, Ontario, involving three vehicles.

The defendant Rae argued he owed no duty of care to the plaintiffs.

The court ruled on the duty of care issue at the close of the plaintiffs' case, finding that Rae owed a duty of care to all plaintiffs as a driver to other users of the roadway.

The court applied established jurisprudence recognizing the duty of care owed by drivers to other road users and rejected Rae's arguments based on the distinction between nonfeasance and misfeasance, finding that driving is a heavily regulated activity and that the duty of care exists regardless of whether specific statutory obligations apply to the particular conduct alleged.

The defendant municipality brought a motion for summary judgment to dismiss the plaintiff's claim for damages arising from a scooter accident on a municipal road.

The court found that the plaintiff, who was self-represented and did not appear or file materials, failed to establish that the road was in a state of non-repair or that any non-repair caused the accident.

The municipality established statutory defences under the Municipal Act, 2001, including that the pothole was within the minimum maintenance standards.

The action was dismissed and costs awarded to the defendant.

The Court of Appeal for Ontario dismissed motions by tenants Michael Schram and Leslie Mitchell for an extension of time to file a notice of motion for leave to appeal and a notice of appeal regarding the termination of their tenancy and the dismissal of their action.

The court found that the proposed appeals lacked merit and that the justice of the case did not warrant an extension.

The court also dismissed the request for a stay of eviction and awarded costs to the responding parties.

The plaintiff, Blackstone Paving and Construction Limited, sought a stay of the defendant Town of Newmarket’s counterclaim, arguing that the Town’s failure to immediately disclose a settlement agreement with third party R.V. Anderson Associates Limited constituted an abuse of process.

The court found that the settlement did not materially change the litigation landscape or the adversarial relationship among the parties, and thus did not trigger an immediate disclosure obligation.

The application was dismissed, with costs reserved to the outcome of trial.

The Town of Milton brought a motion for summary judgment to dismiss a negligence claim by the plaintiffs, who alleged catastrophic injuries from a motorcycle accident caused by a pothole.

The court dismissed the plaintiffs' claim, finding no genuine issue requiring a trial.

The court ruled that the plaintiffs failed to prove non-repair or causation, and that the Town met the minimum maintenance standards for the road.

The motion was not premature despite incomplete discoveries, as the plaintiffs had ample opportunity to pursue discovery.

Costs were awarded to the Town of Milton.

The defendants brought a motion seeking an assessment of the plaintiff, Ruth Campbell, to determine her capacity to testify at trial due to advancing dementia, and for disclosure of a capacity assessment report obtained by the plaintiffs.

The court granted the assessment for the purpose of determining her ability to testify, but strictly limited the use of the resulting report to a voir dire on her testimonial capacity, prohibiting its use for substantive issues of liability or damages.

The court also ruled that the plaintiffs' capacity assessment report, obtained to determine the need for a litigation guardian, was protected by solicitor-client and litigation privilege and not subject to disclosure.

The appellant, Robert Lepp, sought an extension of time to file a Notice of Appeal from an August 17, 2023 order that dismissed his summary judgment motion and granted the respondent, Mandie Eddie's, cross-motion for defamation, awarding her $550,000 in damages and injunctive relief.

Lepp had failed to file sworn evidence in the original motions.

The Court of Appeal applied the four-factor test for extending time to appeal, considering bona fide intention, length and explanation for delay, prejudice, and merits of the proposed appeal.

The court found Lepp's explanation for delay (prioritizing a "Second Action" to gather evidence for an appeal) unacceptable, noted the lack of merit in his proposed appeal (challenging factual findings without competing evidence), and emphasized the significant prejudice and harm to the administration of justice, including the potential for a mistrial in the ongoing "Second Action." The motion for an extension of time was dismissed with costs.

The defendant municipality brought a motion for summary judgment to dismiss the plaintiff's negligence claim as statute-barred under the Limitations Act, 2002.

The plaintiff alleged the municipality negligently issued a building permit in 1981 without conservation authority approval, leading to foundation failure in 2017.

The court found the claim was discovered objectively by 2013 when the plaintiff obtained an engineering report identifying unsuitable fill, and that the 15-year ultimate limitation period had also expired.

The court rejected arguments that the limitation period was tolled by a municipal claims process or by fraudulent concealment, granting summary judgment and dismissing the action.

The defendants brought a motion for leave to appeal an order of the lower court.

The Divisional Court denied the motion for leave to appeal.

No costs were awarded as the responding party, who was self-represented, did not file a costs outline.

The Town of Aurora was entirely successful on a contempt motion against the self-represented plaintiff.

The Town sought costs of $16,200.98 on a full indemnity basis.

The court awarded costs of $12,000 on a full indemnity basis, noting the plaintiff's prior involvement in contempt motions and the need to deter contemptuous behaviour.

The court also set a schedule for the plaintiff's motion to add parties.

The plaintiff was previously found in civil contempt of court.

Following the dismissal of his appeal and a delay due to the COVID-19 pandemic, the court held a penalty hearing.

Noting that the plaintiff was a repeat offender who had previously been fined for contempt, but declining to order incarceration during the pandemic, the court imposed a fine of $3,000 to address both specific and general deterrence.

The moving party brought a motion for leave to appeal from two previous decisions.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties fixed at $5,000.

The appellant brought an adjournment application because a litigation guardian was recently appointed and the appellant had been hospitalized for mental health concerns.

The respondent opposed the adjournment.

The Court of Appeal granted the adjournment, setting timelines for responding to a Rule 2.1 application and scheduling the appeal hearing.

The City of Brampton sought costs following the dismissal of a motion brought by Essam Elbassiouni to be appointed as litigation guardian for his brother, Ahmed Elbasiouni.

The court rejected the applicant's argument that the parties had reached a no-costs settlement.

Finding that the motion had no reasonable prospect of success and was brought in a finally disposed proceeding, the court awarded substantial indemnity costs to the City.

The costs were ordered payable by Essam Elbassiouni, rather than the applicant's counsel, and were fixed at $15,536.83.

The appellant sought an adjournment of his appeal from an order declaring him a vexatious litigant, citing a pending Superior Court application to appoint a guardian for his property and care.

Despite concerns about delay and a previous dismissal of a litigation guardian application, the Court of Appeal granted a brief 60-day adjournment due to newly authored psychiatric evidence regarding the appellant's capacity.

The applicant, Essam Elbassiouni, brought a motion to be appointed as the litigation guardian for his brother, Ahmed Elbasiouni, in several ongoing proceedings against the City of Brampton.

The court found that the applicant failed to provide clear and cogent evidence that Ahmed lacked the capacity to instruct counsel or manage his litigation.

The court noted significant flaws in the capacity assessment report and concluded the motion was likely a tactic to delay an upcoming Court of Appeal hearing.

Furthermore, the court held that even if Ahmed required a litigation guardian, Essam would be inappropriate due to conflicts of interest.

The motion was dismissed.

The appellant municipality appealed a decision refusing to declare the self-represented respondent a vexatious litigant and refusing to dismiss his action under Rule 2.1.01.

The application judge had struck portions of the claim but allowed allegations of false arrest, false imprisonment, and misfeasance in public office to proceed under strict case management.

The Court of Appeal upheld the application judge's substantive decisions, finding no error in his cautious approach to Rule 2.1.01 and his decision to case manage rather than declare the respondent a vexatious litigant.

However, the Court of Appeal granted leave to appeal costs, finding the appellant achieved overall success below and awarding it $15,000 in partial indemnity costs for the application.