E.A. Quinlan

J.G., a young person with significant cognitive disabilities, sought an extension of time to appeal a 2005 finding of not criminally responsible on account of mental disorder (NCR).

The court granted the application, finding that J.G. had a bona fide intention to appeal, a reasonable explanation for the 13-year delay (lack of understanding of NCR consequences and appeal rights due to cognitive limitations), and a meritorious proposed appeal (the NCR verdict was potentially unreasonable given the evidence of impulse control issues rather than an inability to appreciate the physical consequences of his actions).

The court emphasized that the interests of justice strongly favoured granting the extension due to the profound and indefinite deprivation of liberty resulting from the NCR finding for relatively minor offences.

This ruling addresses the admissibility of statements made by the accused, Terrence Barrett, who is charged with second-degree murder and aggravated assault.

The Crown sought to admit various utterances and two videotaped statements made to police.

The defence argued that the statements were involuntary due to Barrett's medical and mental state and oppressive conditions, and that his right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms was infringed.

The court found that the Crown proved beyond a reasonable doubt that the statements were voluntary and that Barrett's Charter rights were not infringed.

Consequently, the Crown's application to admit the statements was granted, and the defence application to exclude them was dismissed.

This costs endorsement followed a motion to change where the applicant father sought to reduce child support, but the court imputed a higher income to him.

The respondent mother sought costs on a full recovery basis.

The court awarded the mother $14,082.80 in costs, finding her substantially successful.

The court disallowed the mother's claims for self-represented time that duplicated counsel's costs and rejected costs for earlier steps where they were not specifically reserved.

The applicant mother was found in contempt for failing to comply with access and notification provisions of a prior order.

The respondent father sought costs for the contempt and subsequent penalty hearings.

The court found the mother's actions following the contempt finding constituted bad faith, specifically her allegations of sexual impropriety against the father, which were made despite being aware that child protection services had found the complaint unverified.

The court awarded the father costs on a full recovery basis, finding his behaviour reasonable and the mother's behaviour egregious and intended to inflict emotional harm and deceive the court.

The Crown sought to admit expert evidence from Dr. Neil Lazar in a criminal trial for manslaughter and criminal negligence causing death against Joanna Flynn, a registered nurse.

The proposed evidence concerned medical ethics and accepted practices in ICUs regarding end-of-life decision-making, including determination of death, discontinuing life support, and obtaining informed consent from substitute decision-makers.

The defence opposed, arguing irrelevance, lack of qualification, and prejudicial effect.

The court applied the two-stage Mohan/White Burgess test for expert evidence admissibility.

It found Dr. Lazar qualified as an expert in medical ethics and ICU decision-making.

The court ruled that evidence regarding the 24-hour wait period before terminating life support and the process of obtaining informed consent from a substitute decision-maker was admissible, as it was relevant and necessary for the jury.

However, evidence related to the technical declaration of "brain death" and the specific GBGH Discontinuation of Life Support policy was deemed irrelevant or outside Dr. Lazar's expertise for interpretation and thus inadmissible.

Joanna Flynn, a registered nurse, was charged with manslaughter and criminal negligence causing death after discontinuing a patient's life support.

The Crown sought to examine hospital physicians and nurses regarding their awareness and understanding of hospital policies and practices concerning life support discontinuation, informed consent, and pronouncing death.

The defence argued this evidence was not logically relevant to the standard of care, which requires expert testimony, and that its probative value was outweighed by its prejudicial effect.

The court dismissed the Crown's application, ruling that the understanding and experience of other hospital staff could not establish the standard of care for a "reasonable" or "reasonably prudent" person, which must be determined by expert evidence.

The applicant father brought a motion to change a Final Order to reduce child support, while the respondent mother sought an increase, both agreeing to a material change in circumstances.

The court found the father's reported income inconsistent with his lifestyle and earning capacity, and imputed an income of $100,000 to him.

Consequently, the court ordered an increase in child support and a proportionate sharing of s. 7 expenses based on the imputed income.

The applicant mother was found in contempt for breaching an access order and failing to provide notice of a school change.

This endorsement addresses the penalty and compliance.

The court found the mother had not purged her contempt and was actively undermining the child's relationship with the father through various means, including influencing the child and involving an off-duty police officer friend to thwart access.

The court ordered reconciliation counseling, paid by the mother, and a modified access schedule with police enforcement to re-establish the father's relationship with the child.

The defendants brought an unsuccessful summary judgment motion.

The plaintiffs sought costs on a full or substantial indemnity basis.

The court found that the defendants acted unreasonably in bringing the motion, as the case involved voluminous exhibits, credibility issues, and a 30-year history, making it clearly unsuitable for summary judgment.

The court awarded the plaintiffs costs on a substantial indemnity basis, fixed at $52,500.

The accused, Andrew Carthew Tidey, was charged with aggravated assault.

The Crown brought a motion to admit evidence of prior discreditable conduct and after-the-fact conduct to establish animus, motive, context, and to rebut a potential self-defence theory.

The defence opposed, arguing the evidence was irrelevant and highly prejudicial.

The court applied the probative value versus prejudicial effect balancing test.

It admitted evidence concerning the accused's financial difficulties, a dispute with tenants over rent and laundry, the accused "picking a fight" with a tenant, and a "nice try" text message sent by the accused shortly after the incident.

However, the court excluded evidence of a prior alleged attack, theft, mischief, and damage to property (crib) due to low probative value and high prejudicial effect, finding that such evidence would distract the jury and risk unfair prejudice.

The defendant, charged with aggravated assault, brought a motion to edit two videotaped statements given to the police, seeking to remove prejudicial and irrelevant comments.

The defence argued for redaction of officer opinions on case strength, witness credibility, injury causation, references to independent witnesses, exercise of right to counsel and silence, and miscellaneous court process information.

The Crown opposed, arguing for context and flow.

The court applied principles of balancing probative value against prejudicial effect, largely granting the redaction requests for specific portions deemed more prejudicial than probative, while retaining others necessary for context and admissions.

This costs endorsement followed a ten-day trial concerning custody, parenting time, and decision-making for a child.

The father (respondent) was largely successful at trial, achieving equal parenting time and final decision-making on health matters, which matched or exceeded his offers to settle.

The mother (applicant) had sought sole custody and reduced parenting time for the father, and her offers were not matched.

The court found the father's conduct reasonable and the mother's position unreasonable.

Consequently, the court awarded the father full recovery costs from the date of his first offer and partial recovery for the period prior, totaling $53,037.63.

This motion to change concerned custody and access arrangements for two children, J. and B., following a history of parental separation, reconciliation, and ongoing conflict, primarily driven by the paternal grandmother's interference.

The applicants (father, paternal grandmother, and paternal grandfather) sought sole custody for the father, while the respondent (mother) sought sole custody for herself.

The court found that the grandmother's negative influence and undermining of the mother's role significantly harmed the children's emotional health, particularly J.'s anxiety.

The father was found to be marginally involved and had unresolved alcohol and mental health issues requiring supervised access.

The mother demonstrated improved parenting, a stable environment, and a commitment to the children's needs.

The court granted sole custody to the mother, allowing the children to remain in Orangeville.

The father's access was ordered to be supervised, with the grandparents explicitly prohibited from acting as supervisors until they undergo counselling to address their conduct and demonstrate an appreciation of the harm caused.

Child support was also adjusted based on the father's current income.

The applicant, Jeremy Boulton, challenged the constitutionality of the mandatory minimum sentencing provision in s. 7(2)(b)(i) of the Controlled Drugs and Substances Act (CDSA) under s. 12 of the Charter of Rights and Freedoms.

Boulton, convicted of producing 117 marijuana plants for trafficking, argued the six-month mandatory minimum was grossly disproportionate for reasonably foreseeable hypothetical offenders, specifically a "generous university student" sharing six plants.

The court dismissed the "over the licence limit" hypothetical but accepted the "generous university student" scenario, finding that a six-month mandatory jail sentence for such an offender would be grossly disproportionate and violate s. 12 of the Charter.

The court concluded that s. 7(2)(b)(i) of the CDSA violates s. 12 of the Charter, with further submissions on s. 1 justification to follow.

The plaintiffs sought an interlocutory injunction to prevent the defendants from breaching non-competition, non-solicitation, and trade name use covenants following the sale of a business.

The court applied the modified injunction test for restrictive covenants, finding a strong prima facie case of breach by the defendants, directly and indirectly through an employee and his company.

The court drew an adverse inference from the defendants' failure to provide an affidavit from the key employee.

Irreparable harm was presumed and also found on evidence of lost sales and market confusion.

The balance of convenience favored the plaintiffs, as the defendants' alleged breaches were deliberate.

The injunction was granted, along with an order for production of the defendants' general ledger and customer lists.

Mr. Robertson, an accused under the jurisdiction of the Ontario Review Board (Board) and detained at Waypoint Centre for Mental Health Care, applied for a writ of habeas corpus with certiorari in aid.

He challenged the use of the Acute Risk of Violence Scale (ARVS) by Waypoint staff, alleging Charter violations and seeking various remedies including damages, injunctions, and orders for employee termination or police investigation.

The Superior Court, sitting as a criminal court on a habeas corpus application, determined it lacked jurisdiction to grant most of the civil remedies sought.

It affirmed that the Ontario Review Board is a court of competent jurisdiction for Charter remedies related to conditions of detention, and is the more appropriate forum for such issues, except for costs.

The court found no basis to award costs against the Crown.

Consequently, Mr. Robertson's application was dismissed.

The defendant Debra Penman moved to strike the plaintiff's statement of claim for failing to disclose a reasonable cause of action.

The plaintiff Mary Lou McGillvray brought a cross-motion for leave to amend.

The court granted the plaintiff leave to further amend her claim to sue in her capacity as trustee for unjust enrichment.

This endorsement addresses the costs of these motions.

The court found that the motions were necessary due to the plaintiff's failure to adequately respond to the defendant's warnings about the deficient claim.

Despite the plaintiff obtaining leave to amend, the defendant's motion was necessary to clarify the cause of action.

The defendant Debra Penman was awarded costs on a partial indemnity basis, fixed at $5,000.00, payable in any event of the cause at the conclusion of the trial.

Following a summary judgment motion with divided success regarding unidentified motorist coverage, both parties sought costs.

The defendant was successful in dismissing the claim under the OPCF 44R endorsement, while the plaintiff successfully resisted the dismissal of the standard coverage claim under the OAP.

Considering the divided success and the factors under Rule 57.01, the court ordered that each party bear its own costs.

Following a judgment obtained after a defendant’s statement of defence was struck for failure to answer undertakings from an examination for discovery, the plaintiffs sought substantial indemnity costs exceeding $130,000.

The court considered the governing principles under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, emphasizing fairness, reasonableness, and proportionality.

The court held that substantial indemnity costs were not justified because there had been no determination on the merits and no exceptional conduct warranting such a scale.

Several items in the bill of costs were disallowed or reduced, including motion-related costs already awarded, excessive hourly rates, and travel time billed at full rates.

Applying proportionality and reasonable expectations of the losing party, the court fixed costs at $45,000 inclusive of disbursements and HST.

Following repeated adjournment requests by the applicant in a family trial and the eventual adjournment after medical evidence indicated the applicant was unfit to attend, the respondent sought costs thrown away.

The court reviewed the principles governing costs thrown away under s.131 of the Courts of Justice Act and Rule 24 of the Family Law Rules.

Even absent fault, a party responsible for an adjournment may be required to compensate the opposing party for wasted trial preparation.

The court found the applicant responsible for the adjournment and awarded the respondent full indemnity costs thrown away for wasted preparation and court attendances, together with partial indemnity costs of the costs motion.