Coats

The moving party sought costs for a motion for non-party productions.

The responding parties consented to the relief sought, but only after the moving party had prepared and filed its motion materials.

The moving party argued the motion was necessitated by the responding parties' failure to cooperate and obtain relevant records from their bank and accountant.

The court agreed, finding the responding parties had an obligation to inquire and obtain relevant documents, and their inaction necessitated the motion.

Costs were awarded to the moving party fixed at $5,000.

The plaintiff brought a motion to set aside a Registrar's order dismissing his action for delay.

The delay was caused by the plaintiff's former counsel, who suffered from severe depression and complicated grief following the death of his daughter, leading him to inadvertently neglect the file.

The court applied the contextual approach and the four Reid factors, finding that the plaintiff always intended to proceed, the delay was adequately explained by the solicitor's mental health issues, the motion was brought promptly once new counsel was appointed, and the defendant suffered no significant prejudice.

The motion was granted and the dismissal order was set aside.

The accused was tried for assault following an incident observed by an independent witness driving a truck.

The witness testified to seeing the accused repeatedly strike the female passenger and place her in a headlock while driving.

The complainant, who was the accused's girlfriend, denied the assault occurred, claiming they were merely 'play fighting'.

The court found the independent witness credible and reliable, rejected the complainant's evidence due to inconsistencies and a clear power imbalance, and found the accused guilty of assault.

The applicant brought a pre-trial motion to exclude evidence obtained from a warrantless entry and search of his residence, arguing his s. 8 and s. 9 Charter rights were violated.

Police had entered the home without a warrant after receiving a 911 call from a witness who observed a man assaulting a woman in a vehicle that was later located in the applicant's driveway.

The court found that the applicant had a reasonable expectation of privacy, but the warrantless entry was justified under the common law exigent circumstances doctrine due to concerns for the woman's safety.

The court also held that the police had reasonable and probable grounds to arrest the applicant and that drugs found in the basement were lawfully seized in plain view.

The application to exclude evidence was dismissed.

The plaintiff brought a medical malpractice action against two anaesthetists after experiencing intra-operative awareness during a robotic-assisted laparoscopic hysterectomy.

Due to the plaintiff's malignant hyperthermia, the defendants used Total Intravenous Anaesthesia (TIVA) rather than inhaled anaesthetic gases.

The court found that the supervising anaesthetist met the standard of care.

However, the court found that the primary anaesthetist breached the standard of care by administering an inadequate infusion rate of Propofol, particularly after significantly reducing the nitrous oxide levels.

The court concluded that this breach caused the plaintiff's intra-operative awareness.

The plaintiff underwent cataract surgery performed by the defendant ophthalmologist.

Prior to surgery, the defendant measured the plaintiff's eyes using an older A-scan method, which produced highly variable results.

The defendant failed to inform the plaintiff of these variable results and the increased risk of not achieving her expected visual outcome, nor did he recommend the more accurate IOL Master method at that time.

The surgery resulted in significant under-correction (hyperopia).

To correct this, the plaintiff underwent a piggyback lens surgery, which subsequently caused severe dysphotopsia.

The court found the defendant breached the standard of care regarding informed consent by failing to disclose the material risks associated with the variable A-scan results.

The court established causation and awarded damages for pain and suffering, past income loss, future care costs, and a Family Law Act claim for the plaintiff's son.

During a habeas corpus application challenging his immigration detention, the self-represented applicant sought to call a Canada Border Services Agency employee as a witness.

The respondent moved to quash the subpoena, arguing the witness had no relevant evidence.

The court allowed the applicant to commence questioning to establish relevance, but halted the testimony when the applicant failed to show the witness made any decisions affecting him or had any direct disclosure obligations.

The court effectively quashed the subpoena, leaving issues of disclosure and delay for final argument.

Within a habeas corpus application challenging his immigration detention, the self-represented applicant subpoenaed two Legal Aid Ontario employees to give evidence and produce documents.

Legal Aid Ontario brought a motion to quash the subpoenas.

The court granted the motion, finding that under section 88 of the Legal Aid Services Act, 1998, the employees are not compellable witnesses and are not required to produce documents obtained in the performance of their duties without the consent of Legal Aid Ontario.

The self-represented applicant, an inmate contesting his immigration detention via a habeas corpus application, brought a motion to quash his 2002 criminal conviction or vary his sentence to avoid collateral immigration consequences.

He argued his guilty plea should be struck because he should not have been charged criminally until his refugee claim was adjudged, and that his counsel was ineffective for failing to advise the sentencing judge of the immigration consequences.

The Superior Court of Justice dismissed the motion, holding that a court hearing a habeas corpus application does not sit as an appellate court and cannot be used to circumvent the ordinary appeal procedures established in the Criminal Code.

The applicant accused brought an application for a bail review under s. 520 of the Criminal Code, challenging his detention under s. 524(8).

The accused argued that the justice of the peace erred in law by ordering his detention without confirming whether the new hybrid offences he allegedly committed while on release were proceeding by indictment.

The court held that a Crown election to proceed summarily on a hybrid offence alters its nature such that it is no longer deemed indictable for the purposes of a s. 524 hearing, and this determination must be made at the time of the hearing, not at the time of arrest.

Because the justice of the peace failed to ascertain jurisdiction, the detention order was vacated, restoring the accused's eligibility for enhanced pre-trial custody credit.

The appellant appealed his convictions for two counts of assault against his wife and daughter, and brought an application to adduce fresh evidence consisting of bank records and travel documents.

The court dismissed the fresh evidence application, finding the evidence was not relevant to a decisive issue, could not reasonably be expected to affect the result, and could have been adduced at trial with due diligence.

On the conviction appeal, the court rejected the appellant's arguments that the trial judge misapprehended the evidence, applied uneven scrutiny to credibility, or failed to properly apply the W.(D.) principles.

The appeal was dismissed.

Following a power of sale by the first mortgagee, surplus funds were paid into court.

The second mortgagee and the Ministry of Finance both brought motions claiming priority to the surplus funds.

The Ministry claimed priority for unremitted retail sales tax collected by the mortgagors.

The court held that the deemed trust provisions under section 22 of the Retail Sales Tax Act gave the Ministry priority over all other security interests, including the registered second mortgage.

The Ministry was awarded its claim from the surplus funds, with the balance to the second mortgagee.

The Crown sought to qualify an oral maxillofacial surgeon to provide expert opinion evidence on the diagnosis, mechanism, causation, direction of force, and magnitude of force of the complainant's jaw fractures in an aggravated assault trial.

Following a voir dire, the court qualified the doctor to opine on the diagnosis and mechanism of the injuries based on his extensive clinical experience.

However, applying the Mohan and Abbey frameworks, the court held the doctor was not properly qualified to opine on causation, direction, or magnitude of force, as he lacked specialized training, research, or prior qualification in those specific forensic areas.

The applicant sought to re-litigate an abuse of process stay application after the original judge, who had dismissed the application but not yet provided reasons, was elevated to the Court of Appeal.

The applicant argued that only the trial judge has jurisdiction to hear a stay application.

The court held that a judge other than the trial judge has jurisdiction to hear a stay application under s. 24(1) of the Charter and Rule 27 of the Criminal Proceedings Rules.

The court also found that it had jurisdiction to continue the proceedings under s. 669.2(1) of the Criminal Code and that it was not in the interests of justice to re-litigate the identical application on the same record.

The motion was dismissed.

The plaintiff and defendant, who are siblings, were involved in estate litigation.

The plaintiff alleged that he, the defendant, and another sister entered into an oral agreement to each contribute $10,000 towards a legal retainer, and in return, share equally in any settlement proceeds.

The defendant denied the agreement, arguing she never verbally promised to share the proceeds.

The court found that by paying her $10,000 share of the retainer, the defendant objectively assented to the terms of the oral agreement.

The court also held that the oral agreement was not collateral to the written Minutes of Settlement, and even if it was, it did not conflict with them.

The plaintiff was awarded his one-third share of the settlement proceeds.

In an uncontested family law trial, the applicant mother sought sole custody, supervised access, child and spousal support, and an equalization payment.

The respondent father's pleadings had been struck for failure to make financial disclosure.

The court granted the mother sole custody and ordered that the father's access be supervised due to his untreated sex addiction and recent involuntary psychiatric hospitalization.

Based on expert evidence, the father's income was imputed at $248,500.

The court ordered ongoing child and spousal support, fixed support arrears at $162,105, and ordered an equalization payment of $57,753.85.

Costs were awarded to the applicant on a substantial indemnity basis.