Daniel Stern

Media organizations applied to vary a publication ban in a second degree murder prosecution involving the death of a child.

The Crown and defence sought to maintain broader anonymity for the accused, the deceased, and family members, while the applicants proposed a narrower ban limited to the surviving siblings.

Applying the Dagenais-Mentuck framework, the court held the evidentiary record did not establish that a broader ban was necessary to prevent a serious risk to the proper administration of justice.

The ban was varied to prohibit only publication of the names of the surviving children.

A media applicant sought to vary a publication ban imposed during a criminal trial so that the offenders' and victim's names could be published while continuing to protect the identities of surviving children.

Applying the Dagenais-Mentuck framework, the court held that a broader ban shielding the adult offenders' identities was not necessary to prevent a serious risk to the proper administration of justice or the relevant public interest in protecting vulnerable children.

The court distinguished authority concerning anonymity for child cyberbullying victims and emphasized the significant deleterious impact on the open court principle of withholding the names of adult offenders in a homicide case.

The publication ban was varied to prohibit only publication of the names of surviving children of the offenders.

Following convictions for manslaughter by failing to provide the necessaries of life to a child, a publication ban had been imposed under s. 486.5 of the Criminal Code protecting the identities of surviving siblings and information that could identify them.

A media organization sought to narrow or vary the ban, while counsel for the convicted parents requested the appointment of amicus curiae to advance the interests of the affected children.

The Crown ultimately supported narrowing the ban but took no position on the appointment of amicus.

The court considered competing interests between freedom of expression and the protection of vulnerable children.

The court appointed a child advocacy legal clinic as amicus curiae to assist in determining the proper scope of the publication ban before sentencing.

The appellant appealed a Small Claims Court decision awarding the respondent $7,500 in damages for defamation.

The appellant, president of a housing co-operative, had sent an email to board members accusing the respondent of theft after she allegedly took a confidential document from a meeting.

The trial judge found the statement defamatory and concluded the appellant acted with malice, defeating his defence of qualified privilege.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's determination that the appellant lacked an honest belief in the truth of his statement and acted with malice.

The plaintiff, a Toronto lawyer and community volunteer, brought a defamation action against a newspaper and journalist over an article questioning transparency in the handling of donations from a charity concert organized to raise funds for victims of the 2008 Sichuan earthquake.

The court held that, read in context, the article did not convey a defamatory meaning about the plaintiff.

In any event, the defendants established the defences of substantial truth, fair comment on a matter of public interest, and responsible communication.

The court also found no evidence of malice and concluded that the plaintiff had not proven any meaningful reputational harm.

In a certified class proceeding concerning an alleged defective charitable gift program, the plaintiff moved to amend the certified common issues and to stay the defendants’ third‑party claims against distributors until after the common issues trial.

Competing drafts of revised common issues and orders were submitted by the plaintiff, defendants, and another defendant concerned about exposure to an unpleaded claim.

The court preferred the plaintiff’s proposed revisions and order because they more directly preserved the objective of a focused common issues trial that would not bind or involve the distributors.

However, the proposed amendments required clarification to address concerns that they might create liability for negligent implementation of an otherwise valid program, which had not been pleaded or certified.

The court directed that the revisions be modified to limit the issues or, alternatively, that the plaintiff bring a motion to amend the statement of claim and certify the additional common issue.

Following dismissal of a counterclaim alleging wrongful dismissal and breach of contract and seeking $11.8 million in damages, the successful defendant by counterclaim sought substantial indemnity costs exceeding $299,000.

The court considered Rule 57 of the Rules of Civil Procedure and the principles governing cost awards under the Courts of Justice Act, including the effect of an unaccepted Rule 49 settlement offer and allegations of uncooperative litigation conduct.

Although the court accepted that some conduct of opposing counsel created additional expense, it declined to award substantial indemnity costs.

Applying the objective of fairness and reasonableness to the unsuccessful party, the court fixed costs on a partial indemnity basis.

A software developer and his corporation brought a counterclaim against a securities trading firm alleging wrongful dismissal and breach of contract following termination of his role as chief technology officer.

The court first determined that despite a services agreement structured through a corporation, the relationship functioned as employment, applying the multi‑factor test from Sagaz Industries.

The court held that a prior service agreement had been fully released by mutual release and could not ground claims.

It also rejected the claimant’s assertion that he was entitled to commissions based on algorithmic trading profits, finding the agreement applied to traders and not to a software developer who neither created strategies nor executed trades.

The court further found just cause for termination where the employee inserted malicious code into the firm’s trading platform, removed source code access, attempted to market competing software, and breached confidentiality obligations.

The counterclaim for wrongful dismissal and breach of contract was dismissed.

The defendants brought a motion for leave to appeal an order certifying the plaintiff's action regarding allegedly defective organic asphalt shingles as a class proceeding.

The defendants argued that the claims for negligent design and negligent manufacture should have been pleaded separately, that there was no common defect, and that the claim for pure economic loss could not succeed.

The Divisional Court dismissed the motion, finding no conflicting decisions or reason to doubt the correctness of the certification order, and emphasizing the flexibility of the class proceedings process.

The applicant, the Toronto Star, sought access to pre-sentence reports and a victim impact statement filed as exhibits in three youth court proceedings where the young persons were found guilty of serious criminal offences.

The applicant argued that access was necessary under the open court principle and freedom of the press.

The provincial Crown and amicus curiae opposed the application, arguing that access should be denied to protect the privacy and rehabilitation of the young persons under the Youth Criminal Justice Act.

Applying the Dagenais/Mentuck test, the court found that denying access was necessary to prevent a serious risk to the proper administration of justice, specifically the privacy and rehabilitation of the young persons.

The court concluded that the salutary effects of denying access outweighed the deleterious effects on freedom of the press.

The application was dismissed.