Christopher Moore

This decision concerns a failed real estate transaction and a motion for summary judgment under the simplified procedure.

The plaintiffs, Robert Wayne Colley and Mary Jean Colley, sought damages after the defendant, Zekiye Yousuf Hammoe, failed to close on the purchase of their property.

The court found that there were irreconcilable factual disputes regarding who requested an extension of the closing date and whether both parties signed an amendment.

The court also found the record insufficient to fairly assess damages, particularly regarding mitigation efforts.

As a result, the motion for summary judgment was dismissed, and the matter was directed to proceed to a summary trial.

The defendant, Sasikaran Thanapalasingam, was charged with first-degree murder of his estranged wife, Tharshika Jeganathan.

The murder involved a brutal machete attack, captured on video, following a history of domestic violence, bail breaches, and explicit threats.

The defence argued for a conviction of second-degree murder, asserting that the defendant's capacity to form the requisite intent was impaired by alcohol intoxication.

The court found the murder to be planned and deliberate, rejecting the intoxication defence by concluding that the defendant was not incapacitated to an appreciable degree at the time of the offence, despite later showing signs of severe intoxication.

The court emphasized the defendant's clear intent, planning, and physical coordination during the attack, finding him guilty of first-degree murder.

The accused was charged with possession of a loaded, prohibited handgun and breaches of court orders prohibiting weapon possession.

At trial, the defence brought a Charter application under section 24(2) seeking exclusion of the firearm and related evidence, alleging violations of section 10(b) (right to counsel without delay) and section 10(a) (right to be informed of reasons for arrest).

The Crown conceded a breach of section 10(b) with respect to a portion of the delay between arrest and access to counsel.

The court found serious and unjustified breaches of the right to counsel spanning approximately 4.5 hours, with particular concern regarding the deliberate failure of senior officers to record their interactions and decision-making.

The court excluded the evidence under section 24(2), finding that admission would bring the administration of justice into disrepute.

This ruling addresses the retrospective or prospective application of jury selection amendments introduced by Bill C75, specifically concerning the elimination of peremptory challenges and the change in the challenge for cause process.

The court determined that these amendments operate prospectively, meaning the pre-Bill C75 jury selection procedures apply to the accused who elected trial by jury prior to the amendments' enactment.

The accused was charged with refusing to provide a breath sample into an approved screening device following a traffic stop.

The officer had reasonable grounds to believe the accused had consumed alcohol and made a lawful demand for a roadside breath sample.

The accused refused the demand multiple times over approximately seven minutes, providing various reasons including frustration with the stop and claims of not having consumed alcohol.

The accused testified that he did not understand what was being asked of him and was anxious about being taken to a police station due to a prior traumatic experience with police.

The court found that the accused's refusals were unequivocal and that he understood what was being demanded of him, despite his testimony to the contrary.

The court rejected the accused's explanations and found him guilty of refusing to provide a breath sample.

The accused was charged with one count of sexual assault arising from a June 10, 2017 encounter with the complainant.

The complainant testified that after being taken to a dentist appointment and lunch, she went to the accused's home to see his motorcycle.

After she mentioned needing money for car repairs, the accused suggested she prostitute herself.

When she objected, he proceeded to touch her without consent, including groping her thigh, breast, and genitals, pinning her against a wall, and forcing her hand against his erect penis.

The accused testified that the complainant initiated sexual contact by stroking his penis and then asked for a loan, which he refused.

The court found the complainant's evidence credible and convincing, rejected the accused's implausible account, and convicted him of sexual assault.

This costs endorsement followed a one-day motion brought by Hanan El Badry to set aside a default judgment obtained by 620369 Ontario Inc. The motion was successfully opposed by 620369 Ontario Inc., making them prima facie entitled to costs.

The court found the motion was not unusual or complex and awarded partial indemnity costs, fixed at $5,000 all-inclusive, to be paid by Hanan El Badry to 620369 Ontario Inc. The court excluded costs related to bankruptcy proceedings or judgment enforcement as outside its jurisdiction.

Hanan El Badry brought a motion to set aside a default judgment obtained by 620369 Ontario Inc. (HBC) for breach of trust.

The court determined that the judgment, despite being labeled a default judgment, was essentially a consent judgment due to Minutes of Settlement signed by Hanan and Ottawa Permanent Roofing Inc. Applying the stricter test for setting aside consent judgments, which requires grounds such as fraud or issues with agreement formation, the court found that Hanan failed to provide sufficient evidence to set aside either the Minutes of Settlement or the judgment.

The court also addressed the argument regarding the lack of particulars for breach of trust in the pleadings, concluding that this was not a valid reason to set aside a consent judgment, as a defendant can admit to a general allegation.

Hanan's motion was dismissed.

The accused brought a motion to stay a charge of Over 80 based on unreasonable delay under section 11(b) of the Canadian Charter of Rights and Freedoms.

The accused was arrested on April 2, 2016, with trial scheduled for November 16, 2017, representing 19.5 months of delay.

The Crown argued that defence delay should be deducted, resulting in a net delay of 16 months, below the 18-month ceiling established in R. v. Jordan.

The defence contended the net delay was 18.5 months.

The court found the net delay was 18.5 months and that the Crown failed to establish an exceptional circumstance to rebut the presumption of unreasonableness.

The charge was stayed.

The accused was charged with aggravated assault and threatening bodily harm arising from an alleged altercation on September 4, 2016.

The complainant suffered a significant incised wound to his left arm requiring over 60 stitches.

The Crown's case relied entirely on the complainant's identification of the accused as the perpetrator.

However, the complainant had initially provided police with a false identification, claiming an unknown black male was responsible, later recanting this account after speaking with his sister.

The court found the complainant's identification of the accused was rendered problematic by this initial false identification and was uncorroborated despite multiple witnesses present at the scene.

The court concluded that in the absence of supporting evidence and given the radically inconsistent statements regarding the perpetrator's identity, reasonable doubt existed as to whether the accused was responsible for the injuries.

The Crown sought committal on first-degree murder under section 231(5)(e) of the Criminal Code based on constructive murder arising from unlawful confinement.

The accused was charged with second-degree murder in the stabbing death of the victim.

The Crown argued that the victim was unlawfully confined in his bedroom following the stabbing in the living room, and that the confinement and murder formed part of the same transaction.

The defence argued that the confinement occurred after the victim was stabbed and that the victim managed to escape the apartment.

The court found insufficient evidence that the accused exploited a position of dominance over the victim through confinement to justify committal on first-degree murder.

The accused was committed to stand trial on second-degree murder only.

The defendant WR Property Service Inc. brought a motion for summary judgment in a slip and fall personal injury action.

The Morguard defendants, co-defendants in the action, requested an adjournment of WR's summary judgment motion and the upcoming trial, arguing they had insufficient time to prepare a proper response, including securing an affidavit and conducting cross-examinations.

The court granted the adjournment, finding that denying it would cause significant prejudice to the Morguard defendants by preventing them from fully presenting their case, and that the interests of justice in resolving the matter on its merits outweighed the delay.

Following a trial where the applicant successfully defended a will challenge, the parties made written submissions on costs.

The applicant sought substantial indemnity costs against the unsuccessful objectors.

The objectors argued their costs should be paid from the estate because they had reasonable grounds to challenge the will.

The court applied the modern approach to estate litigation costs, finding that the strength of the objectors' case regarding the testator's capacity engaged public policy considerations.

The court ordered the objectors' costs of $50,227.17 and the applicant's full costs to be paid out of the estate.

The applicant, Jon Jessie William Driscoll, sought a Certificate of Appointment of Estate Trustee with a Will, naming him as the sole beneficiary of his mother, Shirley Driscoll's, estate.

Three of Shirley's daughters (the objectors/respondents) challenged the will, alleging lack of testamentary capacity and undue influence.

The court conducted a summary trial, reviewing medical evidence and family testimony.

The court found that Shirley Driscoll possessed testamentary capacity when she executed her will and was not subjected to undue influence.

The decision emphasized that a testator has the right to treat beneficiaries unjustly, and the will reflected Shirley's long-held mindset of primogeniture.

The objections were dismissed, and Jon Driscoll was confirmed as Estate Trustee.

This criminal trial concerned a shooting incident at a busy mall.

The accused, Yaqoub Ali, was charged with multiple counts related to the shooting.

The central issue was the identification of the shooter, who was referred to as "Superman" based on surveillance video.

The court relied on a combination of surveillance video evidence, corroborated eyewitness testimony, and evidence extracted from the accused's cell phone (including text messages and photos) to establish the identity of the shooter beyond a reasonable doubt.

The accused was found guilty.

The accused, Yaqoub Ali, was charged with 10 counts related to a shooting at a mall.

The central issue was the identity of the shooter, referred to as "Superman" due to his attire.

The victim did not cooperate with the police.

The court relied on surveillance video evidence, the corroborated testimony of one eyewitness (Adam Kilmartin), and circumstantial evidence from the accused's cell phone, including text messages indicating a dispute with the victim and photographs showing the accused wearing a hat similar to the shooter's.

Despite inconsistencies in other eyewitness accounts, the cumulative effect of the evidence led the court to conclude beyond a reasonable doubt that the accused was the shooter.

Yaqoub Ali was found guilty.

The defendant brought a motion to set aside a noting of default in a slip and fall action.

The plaintiff had commenced the action beyond the two-year limitation period and noted the defendant in default after the defendant's insurer closed its file due to a miscommunication.

The court applied the test for setting aside a noting of default, considering the behaviour of the parties, the reasons for delay, the complexity of the claim, and prejudice.

The court found that the defendant had a continuing intention to defend, the delay was adequately explained, and the defendant would suffer clear prejudice if not allowed to defend.

The motion was granted, and the noting of default was set aside with no order as to costs.