David Jason Rose

Following the quashing of the defendant's appeals, the plaintiff sought costs on a substantial indemnity basis, arguing the defendant's conduct constituted an abuse of process.

The court reviewed the standard for elevated costs and found the defendant's conduct was not reprehensible, scandalous, or outrageous.

The court awarded costs to the plaintiff on a partial indemnity scale, fixed at $6,000.

In an estate dispute involving a will challenge and alleged resulting trust over joint bank accounts, the applicants sought an interlocutory order restricting an adult child’s access to joint accounts held with the deceased.

The court applied the presumption of resulting trust articulated in Pecore v. Pecore, which places the burden on the surviving joint account holder to establish that the deceased intended a gift of survivorship.

The court found that the respondent’s evidence rebutting the presumption was thin and raised a serious issue to be tried.

Given the risk of depletion of estate assets before trial, the court limited the respondent’s withdrawals from the accounts to $2,000 per month pending trial.

Costs were ordered in the cause.

The appellant appealed his dangerous offender designation and indeterminate sentence, arguing the sentencing judge failed to properly consider reducing his risk through chemical castration.

He sought a long-term offender designation combined with a section 810.2 recognizance.

The Court of Appeal dismissed the appeal, finding the appellant's condition intractable and that he could not be controlled within the duration of a long-term sentence.

The Court reaffirmed that a section 810.2 order cannot be used as a stop-gap for highly dangerous offenders who fail to meet the long-term offender criteria.

The moving defendants sought an order requiring the corporate plaintiff to post security for costs under Rule 56.01(1)(d) of the Rules of Civil Procedure.

The plaintiff acknowledged having insufficient assets in Ontario but asserted that it was impecunious and unable to post security.

The court held that the evidentiary threshold for establishing impecuniosity was high and required detailed financial disclosure, including evidence of the financial circumstances of the corporation’s principals.

The plaintiff failed to provide sufficient documentary or financial evidence demonstrating either corporate impecuniosity or the inability of its shareholders to raise funds for security.

Given the lack of proof of impecuniosity and the neutral merits of the claim, the court ordered that security for costs be posted and stayed further steps in the proceeding pending determination of the amount and timing.

The appellant appealed his life sentence for attempted murder following a vicious knife attack on his roommate.

The appellant, diagnosed with paranoid schizophrenia, refused treatment and was deemed a continuing danger to the community.

The Court of Appeal dismissed the appeal, finding that the trial judge did not err in imposing a life sentence given the brutality of the crime, the appellant's severe mental illness, and the ongoing risk he posed to public safety.

The accused was charged with driving with excess alcohol following a roadside stop in the early morning hours of October 14, 2012.

The Crown relied on breath test results showing readings of 179 and 173 milligrams of alcohol in 100 millilitres of blood.

The defence challenged the admissibility of the breath test results on two grounds: (1) the breath technician failed to record the expiry date of the alcohol standard solution used in the Intoxilyzer 8000C device, and (2) the tests were not taken as soon as practicable as required by statute.

The court found that the technician's testimony regarding the suitability of the standard solution was sufficient, and that the total delay from roadside stop to breath testing was reasonable and within statutory requirements.

The accused was found guilty.

The appellant appealed a Divisional Court decision that found a reasonable apprehension of bias regarding the adjudicator appointed for a police disciplinary hearing.

After leave to appeal was granted, the respondent officer retired, which by operation of the Police Services Act ended the disciplinary proceedings.

The Court of Appeal dismissed the appeal as moot, declining to exercise its discretion to hear the case because the substratum of the dispute had disappeared and the issues did not raise questions of broad public importance.

The accused brought a pre-trial application seeking to allow collateral attack on Employment Standards Act orders, alternatively seeking a stay of proceedings for abuse of process, and alternatively seeking a declaration that certain sections of the Employment Standards Act were unconstitutional.

The accused had been charged with failing to comply with orders to pay outstanding wages to employees.

The accused argued he was impecunious and unable to meet the statutory requirement to pay or post a letter of credit to appeal the orders.

The court rejected all three applications, finding that the rule against collateral attack applied, that no abuse of process had occurred, and that the relevant statutory provisions did not violate the Charter.

The applicants sought to stay an ongoing coroner's inquest into the deaths of a mother and two children in a fire, pending judicial review of the coroner's refusal to expand the scope of the inquest and call certain witnesses regarding social services in the Jane-Finch community.

The Divisional Court applied the RJR MacDonald test and dismissed the motion for a stay, finding no serious issue to be tried, no irreparable harm, and that the balance of convenience favoured completing the inquest.

The applicant, a police officer, brought an application for judicial review to prohibit a retired superintendent from continuing as an adjudicator in a disciplinary proceeding against him.

The adjudicator had previously presided over two other disciplinary hearings involving the applicant and had expressed opinions regarding his character.

The Divisional Court granted the application, finding that an informed person would conclude there was a reasonable apprehension of bias due to the adjudicator's pre-existing knowledge of the applicant's disciplinary history.

The applicant police officer sought a stay of his disciplinary proceedings pending an application for judicial review.

The judicial review application alleged a reasonable apprehension of bias against the adjudicator, who had previously presided over other hearings involving the applicant.

The Divisional Court dismissed the motion for a stay, finding that while there was a serious issue to be determined, the applicant failed to establish sufficient irreparable harm and the balance of convenience favoured the public interest in proceeding with the hearings without further delay.

The applicant, Nishnawbe Aski Nation, sought a stay of a coroner's inquest into the death of an aboriginal youth pending an application for judicial review.

The judicial review challenged the Coroner's refusal to issue a summons to a government official regarding the representativeness of First Nations people on the jury roll under the Juries Act.

The Divisional Court granted the stay, finding that the representativeness of the jury roll raised a serious issue, that proceeding with a potentially unrepresentative jury could cause irreparable harm to public confidence, and that the balance of convenience favoured a stay.

The appellant appealed his convictions for multiple sexual assaults and his designation as a dangerous offender.

He argued that a saliva sample used for DNA comparison was obtained in violation of his Charter rights under s. 8 and s. 10(b).

The Court of Appeal held that the appellant provided a valid, informed waiver that severed any connection between the prior s. 10(b) breach and the taking of the sample.

The court also found no error in the jury instructions regarding expert DNA evidence or in the trial judge's dangerous offender designation, which properly assessed the appellant's treatability and risk to the community.

The appeal was dismissed.

The appellants appealed a Divisional Court decision dismissing their application to direct the Commissioner of the Cornwall Public Inquiry to state a case regarding his jurisdiction to hear certain evidence.

The Commissioner had ruled he had jurisdiction to hear evidence from a complainant regarding a recent sexual assault by teenagers and the subsequent police investigation.

The Court of Appeal allowed the appeal, finding that the Commissioner committed a jurisdictional error by misconstruing the Order in Council that established his mandate.

The Court held that the inquiry's subject matter was limited to historical sexual abuse of young people by persons in authority or positions of trust, and the proposed evidence fell outside this scope and was not reasonably relevant.

The applicants sought an order directing the Commissioner of the Cornwall Public Inquiry to state a case to the Divisional Court regarding whether the proposed evidence of two witnesses fell within the Inquiry's Terms of Reference.

The evidence concerned a sexual assault reported contemporaneously, which the applicants argued did not constitute 'historical abuse' under the mandate.

The majority of the Divisional Court dismissed the application, finding that the Commissioner had not exceeded his jurisdiction and that the evidence was reasonably relevant to the Inquiry's mandate to examine the institutional response to allegations of abuse.

A dissenting opinion would have granted the application.

The appellants appealed a judgment regarding a mortgage dispute involving s. 22 and s. 36 of the Mortgages Act and a tax issue.

The Court of Appeal dismissed the appeal, finding that the trial judge's comprehensive reasons and findings of fact were open to him and there was no basis to interfere.

Costs were awarded to the respondents.

The appellants were stopped for speeding on a highway.

The police officers, suspecting the appellants were drug couriers based on neutral indicators, detained them and requested to search their rental car without advising them of their right to counsel.

After the passenger withdrew his initial consent, the officers searched the trunk and found 22 pounds of marijuana.

The Court of Appeal held that the police breached the appellants' rights under ss. 8, 9, and 10(b) of the Charter.

The majority concluded that the breaches were serious and that admitting the evidence would bring the administration of justice into disrepute under s. 24(2).

The appeal was allowed, the convictions were set aside, and acquittals were entered.

The appellant appealed his convictions for possessing and transferring firearms after selling starter pistols to an undercover officer.

The appellant argued the pistols were deemed not to be firearms under s. 84(3)(b) of the Criminal Code because they were designed exclusively for firing blank cartridges.

The Court of Appeal dismissed the appeal, finding that even if the pistols were designed exclusively for blanks, the appellant knew the officer intended to convert them to fire live ammunition, thus failing the second conjunctive requirement of the exemption.

The appellant was convicted of sexual assault against a young girl.

On appeal, the appellant argued that the trial judge failed to instruct the jury on the presumption of innocence, despite instructing them on reasonable doubt in accordance with Lifchus.

The Court of Appeal held that without an instruction on the presumption of innocence, the jury could not properly apply the burden of proof.

The failure to object by counsel could not cure such a fundamental error.

The appeal was allowed, convictions quashed, and a new trial ordered.