Douglas C. Shaw

The Crown applied to have the offender, R.R., declared a dangerous offender following convictions for two counts of sexual assault.

The defence sought a long-term offender designation.

The court considered R.R.'s extensive criminal history, including prior sexual assault convictions and uncharged allegations, a psychiatric assessment, and a Gladue report.

Applying the framework from R. v. Boutilier, the court found that while R.R. presented a risk of reoffending, the evidence did not establish beyond a reasonable doubt a "high likelihood of harmful recidivism" or that his conduct was "intractable," particularly considering his age, future incarceration, and the availability of new correctional programs.

Consequently, the court did not designate R.R. a dangerous offender but found him to be a long-term offender, imposing a further 33 months imprisonment and 10 years of long-term supervision with specific conditions.

The defendant, John Harold White, brought a motion for leave to issue a writ of possession or, alternatively, an interim order for the preservation and custody of a property.

White was the registered owner, but the plaintiff, Yvan Gauthier, was in possession following an oral agreement to purchase the property, having paid $40,000.

A dispute arose regarding the total purchase price, with Gauthier claiming it was $40,000 (already paid) and White claiming it was $80,000.

The court dismissed both requests.

It held that a writ of possession requires an underlying order for possession, which was absent, and that an interlocutory order for possession was not warranted given the serious issue to be tried, the irreparable harm Gauthier would suffer if forced to vacate, and the balance of convenience favouring Gauthier.

The request for a preservation order was also denied, as it was sought to obtain possession for White's personal use, not for the actual preservation of the property.

The applicants, two First Nations, brought a motion seeking an interim order to restrain the four respondent First Nations from distributing funds from their jointly owned corporation, Rainy Lake Tribal Resource Management Inc., to its shareholders.

This motion was brought in connection with an application claiming relief under the oppression remedies of s. 248 of the Ontario Business Corporations Act.

The applicants argued that the notice for the shareholders' meeting, which approved the distribution, was inadequate and that the distribution was unfairly prejudicial.

The court applied the traditional three-stage test for interlocutory injunctions, as affirmed in Le Maitre Ltd v. Segeren and Lakhani v. Gilla Enterprises Inc, finding that the applicants failed to establish irreparable harm.

The court noted that the harm complained of was monetary and adequately secured by funds held in trust by the respondents' solicitors, and that the corporation itself had significant remaining funds.

Consequently, the motion for an interim restraining order was dismissed.

The applicant, an estate trustee and beneficiary, brought a motion for directions regarding the sale of the deceased's home to two other beneficiaries, who were also estate trustees.

The purchasing beneficiaries sought to credit their one-third beneficial interests against the discounted fair market value purchase price.

The applicant argued that the full purchase price should be paid to the estate to cover potential estate expenses before final distribution.

The court directed that the beneficiaries must pay the full discounted purchase price to the estate, without crediting their beneficial interests, to ensure sufficient funds for anticipated estate costs.

This decision addresses costs following a three-day trial where the applicant's claim for spousal support and imputation of income to the respondent was dismissed.

The court applied the pre-July 1, 2018 Family Law Rules, particularly Rule 24, which presumes a successful party is entitled to costs.

Factors considered included the importance and complexity of issues, parties' behaviour, lawyer rates, time spent, and financial circumstances.

Despite the respondent's success, the court adjusted the quantum of costs, taking into account the similar financial circumstances of both parties and the reasonableness of the applicant's litigation, ultimately awarding the respondent $22,052.68.

The trial addressed the quantum of spousal support payable by the respondent to the applicant following a long marriage and the applicant's severe medical disability.

The court applied a non-compensatory model of need, considering the applicant's Canada Pension Plan disability benefits and the respondent's employment income.

A central issue was the treatment of Manulife insurance benefits covering 95% of the applicant's long-term care costs.

The court decided to include these non-taxable insurance payments in the respondent's income for Spousal Support Advisory Guidelines calculations, while also accounting for the respondent's insurance premium costs.

Spousal support was awarded at the lower end of the Guidelines range, and specific orders were made for the distribution of past insurance payouts and the ongoing management of benefits.

Retroactive spousal support for the period the applicant was hospitalized was denied.

This decision addresses the costs of a passing of accounts application for Irmgard Burgstaler, a person under a disability.

Erwin Burgstaler, the Attorney for Property, was found to have breached his fiduciary duties by misusing funds, leading to an order for him to repay approximately $127,000 to the estate.

The Objectors, Barbara Morison and Peter Burgstaler, were substantially successful in their objections.

The court applied the "loser pays" principle in estate litigation, balanced with public policy considerations for proper estate administration.

A blended costs order was issued, requiring Erwin Burgstaler to personally pay partial indemnity costs, with the estate covering the difference to full indemnity costs for the Objectors.

The respondent, Trevor Shaw, brought a motion for summary judgment under Rule 16 of the Family Law Rules for the sale of a jointly owned family home.

The applicant, Khim Kaing, opposed the sale, arguing it would cause significant hardship to her and their three young children.

The court dismissed the motion, finding that a forced sale would be oppressive due to the severe hardship it would impose on the applicant and the children, considering the children's best interests and the applicant's inability to secure suitable alternative accommodation while unemployed and attending school.

The plaintiffs brought a motion under Rule 49.09 to enforce an alleged settlement agreement for the purchase and sale of shares in a private corporation.

The court found that a binding agreement was initially formed through an exchange of emails for the purchase of shares for $100,000.

However, the defendant subsequently breached this agreement by failing to take steps to implement it.

The court further found that the plaintiff, in response to the defendant's breach, accepted the defendant's repudiation of the contract by proposing a new, lower purchase price of $98,800.

This action by the plaintiff terminated the original agreement, discharging both parties from further obligations under it.

Consequently, the plaintiffs' motion for judgment to enforce the original $100,000 settlement agreement was dismissed.

The defendant brought a motion to dismiss the action for want of jurisdiction, arguing no real and substantial connection existed between the litigation and Ontario.

The plaintiff, a Canadian citizen residing in California at the material time, sued the California-based defendant for torts and breach of contract related to bail bonds posted in San Francisco.

The court applied the Van Breda test, finding none of the presumptive connecting factors (defendant's domicile/business in Ontario, tort in Ontario, contract in Ontario) were present.

The court rejected the plaintiff's argument that his sister's indemnitor role in Ontario or foreseeable damages in Ontario established jurisdiction.

The motion was granted, and the action dismissed.

The defendants brought a motion to dismiss the action for want of jurisdiction, citing enforceable forum selection clauses, a lack of real and substantial connection between the litigation and Ontario, and abuse of process due to prior arbitration and litigation in California concerning the same subject matter.

The plaintiffs, largely self-represented, opposed the motion.

The court found that the forum selection clauses were valid and enforceable, Ontario lacked jurisdiction simpliciter as no presumptive connecting factors were established, and allowing the action to proceed would constitute an abuse of process given the prior resolutions in California.

The action was dismissed, and a sealing order was granted to protect confidential commercial information.

This decision addresses the costs of a motion brought by the Crown to strike parts of the plaintiff's statement of claim.

The Crown successfully argued that the Construction Lien Act did not apply to the Federal Crown or First Nation lands, and the plaintiff conceded these points.

However, the plaintiff was granted leave to amend its claim to include unjust enrichment and quantum meruit, which the Crown had opposed.

The court found that the plaintiff's initial untenable pleading and failure to respond to pre-motion correspondence precipitated the motion, warranting a costs award to the Crown.

However, the award was tempered because the plaintiff's earlier settlement proposal (to strike with leave to amend) was largely the outcome, and the Crown's opposition to the amendment was unsuccessful.

The Crown's travel disbursements were disallowed due to the missed settlement opportunity.

The accused, Barry Mandamin, applied to remove the Kenora Crown Attorney's Office from prosecuting his charges due to an alleged conflict of interest.

This arose because his former defence counsel accepted employment with the Kenora Crown Attorney's Office shortly before his trial.

The court applied the principles from *MacDonald Estate v. Martin* and found that the Crown failed to provide clear and convincing evidence of institutional safeguards to rebut the strong inference of disclosure of confidential information.

Given the early stage of proceedings and the high potential for misuse of confidential information, the application was granted, and the prosecution was ordered to be conducted by a Crown Attorney's Office from outside the District of Kenora.

The defendants, Aikins, MacAulay & Thorvaldson and Jonathan B. Kroft, brought a motion for summary judgment to dismiss the action against them, arguing there was no genuine issue requiring a trial.

The plaintiff, Man-Shield (NWO) Construction Inc., opposed the motion, contending it was premature and requested a stay until after the examination for discovery of another defendant, Gisele Macdonald.

The court found no evidence that Aikins and Kroft engaged in or assisted in any dishonest or fraudulent act, and that the plaintiff's allegations were speculative.

The motion for summary judgment was granted, and the action against Aikins and Kroft was dismissed.

Robert Baxter moved to change a 2014 final order for child custody and support, citing undue hardship due to other support obligations and work-related travel expenses, and seeking to terminate support for one child and vary retroactive support.

Cindy Lisa Maureen Sakakeep opposed the motion and sought increased retroactive and ongoing child support based on Mr. Baxter's higher actual income.

The court dismissed Mr. Baxter's undue hardship claim for failure to provide financial disclosure and to meet the household standard of living test.

The court found a material change in circumstances regarding one child ceasing to be a dependent and Mr. Baxter's increased income.

The court fixed significant retroactive arrears against Mr. Baxter and issued an interim, interim order for ongoing support for the remaining children, imputing income to Mr. Baxter due to insufficient disclosure regarding WSIB benefits.

Costs were awarded to Ms. Sakakeep.

The applicant, Terry Korczynski, brought a motion to retroactively and prospectively vary a child support order from 2007, seeking rescission of arrears.

The court found a material change in circumstances due to the applicant's significant and sustained income reduction, attributed to bipolar affective disorder.

Applying the D.B.S. principles, the court determined that arrears should be rescinded from 2011 and future child support set to zero, as the applicant was unable to pay.

The respondent's request to transfer property to satisfy arrears was denied.

This decision addresses the costs arising from a receivership application, specifically motions to approve an asset purchase agreement and a cross-motion to postpone the sale.

The court awarded substantial indemnity costs to the Receiver due to unfounded allegations impugning its integrity.

Partial indemnity costs were awarded to the Secured Creditor and Legacy Hill Resources Ltd. The court declined to hold Mr. Wetelainen, a principal of the respondent, personally liable for costs, finding no evidence of fraud or abuse of the bankruptcy process for a wrongful collateral purpose, despite his breach of a prior order and the respondent's inability to pay.

The Crown sought a review of a Justice of the Peace's decision to release the accused on bail, arguing errors in law and that the decision was clearly inappropriate, primarily on secondary and tertiary grounds.

The reviewing judge found no error in law regarding the Justice of the Peace's handling of the surety's cash deposit or her application of bail principles.

The judge also determined that the decision to release the accused was not 'clearly inappropriate,' given the robust release plan and the Justice of the Peace's positive assessment of the surety.

Consequently, the Crown's application for review was dismissed, upholding the accused's pre-trial release.

The plaintiff, Finn Way General Contractor Inc., brought an uncontested trial for judgment against the defendant, Senator Group Inc., after the defendant was noted in default for breach of contract.

The defendant failed to construct pre-fabricated buildings as per the purchase order, leading the plaintiff to incur significant additional costs to complete the project with other contractors.

The court found the defendant liable for breach of contract and awarded the plaintiff damages for the excess costs incurred, plus pre- and post-judgment interest and costs.

The accused was charged with sexual assault, unlawful confinement, uttering threats, and theft under $5,000.

The charges stemmed from an incident involving the accused and the complainant at a motel.

The court found the complainant's evidence unreliable due to severe intoxication and memory impairment from alcohol and drugs.

The accused's statement to police provided a plausible alternative explanation.

Consequently, the Crown failed to prove guilt beyond a reasonable doubt, and the accused was acquitted on all counts.