David Sydney Steinberg

This is a ruling on a Corbett application to determine the admissibility of the accused's criminal record for cross-examination on credibility during a trial for second-degree murder.

The court balanced the probative value and prejudicial effect of the record, considering the nature, similarity, and remoteness of previous convictions, and the need to prevent an unbalanced picture for the jury.

The judge decided to admit an edited version of the record, excluding drug offences, mischief over $5000, crimes indicating antipathy to the justice system (assault peace officer, escape lawful custody), sexual assaults, and possession of a firearm, while allowing crimes of dishonesty (theft, possession of stolen property) and some assaults and breaches of court orders, with aggravated assault reduced to assault.

The respondent, as assignee of a debt owed for legal services provided in real property litigation, registered a mortgage on the property to secure the debt.

The appellants, claiming beneficial ownership interests in the property, appealed the motion judge's decision, arguing that no valid debt existed and that the respondent was not entitled to the secured funds based on unjust enrichment and misrepresentation on title.

The Court of Appeal upheld the motion judge's finding that a debt was owed, noting the respondent's husband's testimony and the property owner's consent to the mortgage registration.

The court held that the respondent, as a bona fide purchaser for value with a registered interest, had priority over any unregistered beneficial interests of the appellants, and that there was no unjust enrichment as the assignment of the debt provided a juristic reason for the benefit received.

This costs endorsement addresses three motions within a consolidated proceeding.

The court awarded substantial indemnity costs to the Adair parties (defendants) against the Pichelli parties (plaintiffs) for their successful summary judgment motions, finding that the allegations of fraud and malfeasance were unsubstantiated.

For the summary judgment motion brought by the Vuletic defendants against the Pichelli parties, costs were reserved to the trial judge due to unresolved factual disputes, including an allegation of forgery.

Finally, for a motion to vary a previous decision regarding Ante Kegalj, the Pichelli parties were awarded partial indemnity costs, significantly reduced from their claim, due to the straightforward nature of the motion and issues with their bill of costs.

The defendants in multiple related actions brought motions for summary judgment against the Pichelli plaintiffs, who were investors in a real estate development project.

The plaintiffs alleged that the developers (the Vuletics), a title holder (Kegalj), and the developers' lawyers (the Adairs) engaged in fraudulent and improper conduct.

The court granted summary judgment dismissing the claims against the Adair defendants, finding that the lawyers owed no duty of care to the non-client investors.

The court also granted summary judgment dismissing the claims against Kegalj, finding no relationship or duty owed to the plaintiffs.

However, the court dismissed the Vuletics' motion for summary judgment, finding that genuine issues of credibility and conflicting versions of the lot purchase agreements required a trial.

Following a successful appeal that dismissed the plaintiffs' action against the moving defendants, the issue of costs for four summary judgment motions was returned to the motion judge.

The moving defendants sought substantial indemnity costs, arguing the plaintiffs alleged fraud and failed to accept a walk-away offer.

The court rejected these arguments, finding no fraud was pleaded and the communication was not a formal offer to settle.

Applying the principle of reasonableness and noting duplication of effort among multiple defence counsel, the court awarded partial indemnity costs fixed at a total of $235,000.

The appellants, who were volunteer directors of corporations within the insolvent First Leaside group, appealed a motion judge's refusal to dismiss negligence and breach of fiduciary duty claims against them.

The plaintiffs, investors in the group, alleged the directors owed them a duty of care regarding the financial stewardship of the corporations.

The Divisional Court allowed the appeal and dismissed the actions against the appellants, holding that a director's duty of care is owed to the corporation, not to individual shareholders or investors, absent specific circumstances like fraud or independent tortious conduct, which were not pleaded.

The plaintiffs sued a father and son after the son breached an agreement of purchase and sale for a residential property.

The son forfeited his deposit, and the plaintiffs sought further damages from the father, alleging the son acted as his agent or that the father induced the breach.

The father moved for summary judgment to dismiss the action against him.

The court granted the motion, finding no evidence of an agency relationship or that the father intended to induce a breach of contract.

The court held that partial summary judgment was appropriate to remove the father from the action, leaving only the quantification of damages against the son.

Following a series of motions and applications in a complex family estate and joint venture dispute, the court determined the appropriate costs awards.

The court awarded partial indemnity costs to Mattamy Homes for an abandoned summary judgment motion and a successfully defended summary judgment motion.

The litigation guardian was also awarded partial indemnity costs.

However, the joint attorneys for property were awarded substantial indemnity costs of $180,000 against the Bistricers, as the court found the Bistricers' conduct in the litigation to be reprehensible, duplicitous, and driven by ulterior motives.

Following the dismissal of the plaintiff's action, the successful defendants sought costs.

The defendants had made offers to settle that the plaintiff did not accept, and the judgment reflected that the defendants achieved what they offered.

The court awarded costs on a substantial indemnity scale pursuant to Rule 49 and section 131 of the Courts of Justice Act, noting that the plaintiff's claim was specious and an inappropriate use of the litigation process.

The plaintiff was ordered to pay costs of $33,362.34 to one defendant and $24,712.82 to the others.

The respondent slipped and fell on a wet floor in the vestibule of a department store operated by the appellants, fracturing her kneecap.

The trial judge found the appellants liable for negligence under the Occupiers' Liability Act, concluding that the wet floor caused the fall and that the appellants lacked an effective inspection or maintenance system.

The appellants appealed, arguing the trial judge failed to require proof that the wet floor created an unreasonable risk of harm and erred in rejecting expert evidence about the safety of the tile flooring.

The Court of Appeal upheld the trial judgment, finding the trial judge properly applied the statutory duty of care and reasonably rejected the expert evidence.

The accused pleaded guilty to three counts of fraud over $5,000.

Over approximately six years, he defrauded the Ministry of Community and Social Services of approximately $467,000 by falsely claiming his daughter suffered from diabetes, blindness, and developmental disability, and by submitting forged medical documents and false invoices for non-existent treatments.

Over 13 years, he defrauded Camp Quality, a charity for children with cancer, of approximately $80,000 by falsely claiming both his children had leukemia.

The accused had made restitution of $233,000 at the time of sentencing.

The court imposed a two-year penitentiary sentence concurrent on all counts, followed by three years of probation, along with a fine in lieu of forfeiture and a restitution order for outstanding amounts.

Following summary judgment motions brought by nine defendants, which were largely dismissed but resulted in the narrowing of the plaintiffs' claims, the court determined the issue of costs.

The plaintiffs sought $182,725 on a partial indemnity basis, while the defendants sought $289,249.

The court found that the plaintiffs were generally successful as the actions were not dismissed, but granted the defendants a 25% credit ($72,000) for their partial success in narrowing the issues.

The plaintiffs were awarded net costs of $100,000.

The plaintiffs in a construction deficiency action brought a motion to compel the defendant Monterey Park to provide a further and better affidavit of documents, specifically seeking income tax returns, financial statements, general ledgers, and working papers for a three-year period.

The plaintiffs alleged Monterey Park was the alter ego of the defendant Ridgevale.

The court dismissed the motion, finding that the requested documents were not relevant to the pleaded allegations, as existing productions already demonstrated the financial relationship between the corporate parties.

The court also held that the broad request for three years of financial records offended the principle of proportionality.

Two brothers were charged with assault against their cousin, with whom one was in a common law relationship.

The alleged assault occurred on January 18, 2016.

The complainant recanted her allegations at trial, denying she had been assaulted.

The only evidence supporting the Crown's case was hearsay testimony from the complainant's sister regarding statements made contemporaneous to the alleged assault.

The court found the hearsay admissible under the Khan principles but determined that the Crown had not met its burden of proof due to insufficient particulars, questionable witness reliability, and reasonable doubt regarding what actually occurred.

The charges were dismissed.

The appellants appealed an interlocutory order of Newbould J. that required them to produce Alexander Rovt for examination for discovery on behalf of Princess Gates Hotel Limited Partnership.

The appellants argued the order was final because it disposed of Mr. Rovt's right to refuse to attend as a non-party.

The Court of Appeal held that the order was interlocutory as it merely determined which individual would be examined for discovery on behalf of a party to the action, and that the order obligated the appellants as defendants to produce Mr. Rovt, not Mr. Rovt himself.

The motion to quash the appeal was granted.

The moving parties brought a motion for leave to appeal a final order as to costs made by the motion judge following a summary judgment motion regarding a continuing trespass.

The motion judge had awarded the responding parties elevated costs of $28,000, finding the moving parties' conduct to be outrageous.

The Divisional Court dismissed the motion for leave to appeal, finding that the motion judge did not err in principle, misapprehend significant facts, or act in a non-judicial manner in awarding elevated costs.

Sentencing for historical sexual offences committed by an adult uncle against two teenage nieces over a ten-year period at repeated family gatherings.

The court applied the governing sentencing principles for sexual violence against children, giving primary weight to denunciation, deterrence, and separation from society under ss. 718 and 718.01 of the Criminal Code, and treated the offender's position of trust, the duration and escalation of abuse, the rape conviction, and the profound lifelong harm to the complainants as major aggravating factors.

Rehabilitation was given little weight, particularly in light of subsequent sexual offending and the offender's lack of remorse or insight.

A global penitentiary sentence of six years was imposed, together with SOIRA, DNA, weapons prohibition, s. 161, and non-communication orders.

The plaintiffs brought a motion for summary judgment seeking a mandatory injunction to require the defendants to remove a mass of concrete poured onto the plaintiffs' property during a home renovation.

The defendants, who were renovating the adjacent property, removed the plaintiffs' walkway and excavated soil without permission, and later poured concrete that encroached onto the plaintiffs' property when their temporary shoring failed.

The court found the defendants liable in trespass and rejected their defence of necessity.

The court adjourned the issue of the mandatory injunction pending a joint engineering report on the safety and feasibility of removing the concrete.

The defendants' counterclaim for delay damages was dismissed.

In a jury trial involving historical sexual offence allegations against two teenage family members, the Crown brought a cross-count similar fact application at the close of its case.

Applying the framework in Handy, the court held that the similarities in the surrounding circumstances of the alleged assaults, including familial relationship, age, secrecy, opportunistic abuse in private settings, lewd comments, and attempted bribery, supported admission despite some factual differences between the incidents.

The court also found that, although there was an air of reality to a collusion allegation because the complainants had discussed the abuse before going to police, the Crown established on a balance of probabilities that there was no concoction.

The evidence of each complainant was therefore admissible in relation to the other complainant.

In a pre-trial similar fact application in a historical sexual assault prosecution, the Crown sought to admit the accused's prior sexual offence convictions involving teenage stepdaughters.

Applying the framework in Handy, the court held that the prior conduct and the charged conduct shared sufficient circumstantial similarities, including familial relationships, positions of trust, private settings, and exploitation of vulnerable teenage girls.

The court rejected collusion concerns, found the temporal gap did not materially undermine admissibility given the later-occurring convictions, and concluded that limiting instructions would adequately address moral and reasoning prejudice.

The application was granted and the prior conviction evidence was ruled admissible at trial.