Deena Baltman

The appellant insurer appealed a motion judge's order lifting a stay of proceedings and refusing to dismiss the plaintiff's 18-year-old action for long-term disability benefits for delay.

The Divisional Court allowed the appeal, finding the motion judge made palpable and overriding errors, including incorrectly finding the appellant had consented to the stay and failing to recognize the prejudice caused by the delay.

The Court concluded the delay was inordinate, inexcusable, and created a substantial risk that a fair trial was no longer possible, and accordingly dismissed the plaintiff's action.

The plaintiff sued two doctors for medical malpractice, alleging that a failure to notify her of a referral appointment led to prolonged casting of her fractured fingers and a poorer outcome.

The court found that the referring doctor's office had properly notified the plaintiff of the appointment, which she failed to attend.

Furthermore, the court accepted expert evidence that the prolonged casting met the standard of care given the severity of the fractures, and that any delay in mobilization did not cause the plaintiff's permanent impairment.

The action was dismissed.

The offender was convicted of impaired driving causing bodily harm and dangerous driving causing bodily harm after losing control of her vehicle on a highway and striking another car, causing a broken clavicle to a passenger.

The offender had a prior conviction for driving over 80.

The court sentenced the offender to 15 months' imprisonment, a three-year driving prohibition, and one year of probation, emphasizing denunciation and general deterrence.

In a nationally certified class action alleging defective organic roofing shingles, the plaintiff moved to amend the certification order to add a subclass of homeowners who had previously settled warranty claims with the defendant manufacturer and signed release forms.

The plaintiff sought certification of common issues regarding the scope of the releases and whether they were unconscionable, along with summary judgment on those issues.

The court held that determining the scope of each release and whether it was unconscionable required highly individualized factual inquiries into negotiations, compensation, homeowner circumstances, and surrounding context.

Because these issues lacked sufficient commonality across the proposed subclass, they could not be certified as common issues under the Class Proceedings Act.

The proposed release subclass and related objector subclass were therefore refused certification.

The moving defendants sought an order striking portions of the statement of claim under Rules 21 and 25 of the Rules of Civil Procedure.

The plaintiff alleged former employees and related entities misappropriated architectural drawings and used them to obtain contracts.

The court held that breach of contract claims against certain corporate and individual defendants must be struck because no contractual relationship existed.

Claims for breach of confidence against two corporate defendants controlled by a former employee were allowed to proceed, but claims against another individual and his business were deficient and required amendment or would be struck.

Paragraphs referring to findings of the Ontario Association of Architects Complaints Committee were struck as prejudicial and inadmissible.

The accused was convicted by a jury of manslaughter in the death of her three‑year‑old child following a prolonged pattern of physical abuse.

Medical evidence established multiple blunt‑force injuries of varying ages, including skull fractures and internal bleeding, culminating in a fatal head injury inflicted while the child was in the accused’s sole care.

The court rejected the accused’s explanation that earlier injuries resulted from an accidental bookcase incident and found beyond a reasonable doubt that she had inflicted numerous prior assaults over weeks or months.

Emphasizing denunciation and deterrence in cases involving violence against vulnerable children and abuse of parental trust, the court imposed a substantial penitentiary term.

Immigration consequences were considered but given only modest weight.

During a jury trial for second degree murder arising from the death of a young child, the defence sought to call a kinesiologist as a forensic expert to testify that the child’s fatal injuries could have resulted from a series of accidental falls.

Applying the admissibility framework for expert evidence set out in Mohan and Abbey, the court found the proposed witness was not properly qualified and that the proposed field of "forensic kinesiology" was not a recognized scientific discipline.

The court also found the proposed opinion relied on limited anecdotal factual foundations and reflected an advocacy-driven approach rather than objective expertise.

The probative value of the evidence was minimal and its prejudicial effect significant because it purported to address the ultimate issue of accident versus homicide.

The application to admit the expert evidence was dismissed.

The accused was charged with impaired driving causing bodily harm and dangerous driving causing bodily harm following a late‑night highway collision that injured an occupant of another vehicle.

The Crown relied on circumstantial evidence including erratic driving behaviour, the presence of alcohol containers in the vehicle, witness observations of alcohol odour and slurred speech, and the accused’s statement to a treating nurse that she had consumed alcohol and was fatigued.

The court rejected the accused’s explanation that she had not consumed alcohol that day and found the defence evidence not credible under the W.(D.) framework.

The court concluded that alcohol impaired the accused’s ability to drive and that her driving constituted a marked departure from the standard of a reasonable driver.

Convictions were entered on both counts.

The accused brought a Charter application seeking exclusion of statements, blood samples, and evidence relating to a breath demand following a motor vehicle collision.

The court found that police failed to provide the accused with the right to counsel immediately upon arrest and improperly treated an equivocal request to speak with counsel as a waiver.

As a result, the taking of blood samples and the subsequent breath demand were causally connected to the breach of s. 10(b) of the Charter.

Applying the Grant framework, the court held that admission of the evidence would bring the administration of justice into disrepute.

The utterances were also excluded as involuntary or lacking sufficient context.

During a trial for second-degree murder involving the death of a three-year-old child, the Crown sought to introduce graphic autopsy photographs.

The accused objected, arguing the photographs were highly prejudicial and would alienate the jury.

The court ruled the photographs admissible, finding they were necessary to demonstrate the nature and extent of the injuries, which was critical to the Crown's theory that the injuries were inflicted deliberately rather than accidentally.

The court concluded the probative value of the photographs outweighed their prejudicial effect, subject to limiting instructions to the jury.

The accused, charged with second-degree murder following the death of her three-year-old child from blunt force head trauma, applied for a directed verdict on both second-degree murder and manslaughter.

The Crown's case relied on circumstantial evidence and expert medical testimony indicating the child suffered multiple inflicted injuries of varying ages while in the exclusive care of the accused.

The court applied the Sheppard test and found sufficient evidence upon which a reasonable jury could conclude the accused committed an unlawful act causing death, and that she had the requisite intent for murder.

The application for a directed verdict was dismissed.

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.

In a criminal trial ruling on admissibility, the accused challenged a search warrant obtained on confidential informant information and argued the apartment search breached s. 8 of the Charter.

The court applied the Debot and Garofoli frameworks, upheld the adequacy of the judicial summary used in the step six procedure, and found the unredacted ITO provided reasonable and probable grounds to issue the warrant despite weaknesses in the informant's proven reliability.

In the alternative, the court held that even if there had been a Charter breach, the handgun and ammunition would be admitted under s. 24(2) after applying Grant.

The firearm evidence was therefore ruled admissible.

The accused brought a Charter motion seeking exclusion of narcotics discovered during a search following arrest for possession for the purpose of trafficking.

The court considered whether police had reasonable and probable grounds to arrest after observing what they believed was a hand-to-hand drug transaction in a shopping plaza parking lot.

The judge found the officers’ accounts inconsistent and unreliable, concluding the arrest was based largely on suspicion rather than objectively grounded reasonable and probable grounds.

The arrest was therefore unlawful and the search incidental to arrest violated s. 8 of the Charter.

Applying the framework in R. v. Grant, the court held the seriousness of the breach and its impact on the accused’s Charter-protected interests justified exclusion of the drug evidence.

The accused, charged with terrorism offences, brought a motion for a stay of proceedings, arguing that his right to make full answer and defence under s. 7 of the Charter was breached because an undercover officer deleted text messages and the police failed to retrieve data from the officer's phone.

The court dismissed the motion, finding that the police conduct did not amount to unacceptable negligence and that the accused suffered no actual prejudice, as the text messages were innocuous and fully transcribed in the officer's notes.

The court concluded that a stay of proceedings was not warranted as there was no irreparable harm to the justice system or the accused's rights.

After a jury conviction for terrorism offences related to attempting to participate in and counselling participation in the activities of Al‑Shabaab, the accused brought a motion seeking a stay of proceedings for abuse of process.

The accused alleged entrapment by an undercover officer, improper prolongation of the police investigation, and police misconduct in creating a credibility contest through delayed wiretap authorization and deletion or loss of text messages.

Applying the entrapment framework from R. v. Mack, the court held that police merely opened dialogue and did not provide an opportunity to commit an offence until after reasonable suspicion existed.

The court rejected arguments that the investigation was improperly prolonged or that police deliberately engineered evidentiary prejudice.

The application for a stay was dismissed.

During an ongoing criminal terrorism trial, a media organization requested access to an audio exhibit consisting of recorded conversations between the accused and an undercover police officer obtained under a consent wiretap authorization.

The court had previously issued a non-publication order protecting the identity of the undercover officer to preserve his ability to continue working undercover.

The court held that the order extended to the officer’s voice because broadcasting it could reveal his identity.

The media organization was permitted to obtain a copy of the audio recording subject to signing an undertaking and complying with the prohibition on broadcasting or transmitting the officer’s voice.

The accused applied under s. 591(3) of the Criminal Code to sever an indictment charging multiple assaults against his children and assaults and sexual assaults against his former spouse.

The court considered the interests of justice test articulated in R. v. Last, balancing potential prejudice to the accused from a combined trial against the public interest in efficient proceedings and minimizing repeated testimony by child witnesses.

The court found a significant risk of propensity reasoning if all counts were tried together but also recognized the burden of requiring the children to testify in multiple trials.

As a compromise, the court ordered severance only of the sexual assault counts relating to the spouse, while leaving the remaining counts to proceed together.

The accused brought a Stage 2 third‑party records application seeking production of counselling records of two complainants following a Stage 1 finding of likely relevance under the O’Connor framework.

After reviewing the records, the court conducted the balancing analysis between the accused’s right to make full answer and defence and the privacy interests of the complainants.

The court found no indication that the counselling process revived, refreshed, or shaped the complainants’ memories of the alleged abuse.

As the records disclosed no basis to support the defence theory arising from the preliminary hearing testimony, production was refused.

The counselling records were not ordered produced to the accused.

The accused, charged with terrorism offences for attempting to participate in and counselling participation in the terrorist group Al‑Shabaab, brought a motion under s. 587 of the Criminal Code seeking further particulars regarding the alleged mode and means of participation.

The court considered whether the indictment and disclosure provided sufficient information to permit full answer and defence.

The court held that the counts already specified the relevant time period, location, statutory provisions, and the terrorist group involved, and that defined statutory terms and extensive disclosure further clarified the allegations.

The Crown was not required to particularize the precise mode of participation or disclose its theory of the case.

The motion for further particulars was dismissed.