Ewa Krajewska

Appeal under Part XX.1 of the Criminal Code from an Ontario Review Board disposition.

The appellant challenged findings related to the index offences and the driving prohibition contained in the Board’s current order.

The Court of Appeal held it had no authority on this appeal to revisit the facts underlying the index offences and found the driving prohibition appropriate in light of the offence circumstances.

The appeal was dismissed.

The appellant appealed a disposition of the Ontario Review Board imposing a detention order.

The Court of Appeal dismissed the appeal, finding the detention order was the least onerous and least restrictive disposition given the appellant's history of non-compliance, unstructured lifestyle, and need for daily monitoring to abstain from substance abuse and rule out a schizoaffective disorder diagnosis.

The Person in Charge for Ontario Shores Centre for Mental Health Sciences appealed a disposition of the Ontario Review Board.

The Court of Appeal admitted fresh evidence, finding it trustworthy and relevant to the issue of risk to public safety.

Concluding that the fresh evidence could reasonably have affected the Board's decision, the Court allowed the appeal and ordered a new hearing before the Board.

The appellant, who was previously found not criminally responsible for threatening to kill his sister, appealed a disposition of the Ontario Review Board ordering his continued detention in a forensic unit with limited community privileges.

He sought a conditional discharge or discretion for community living.

The Court of Appeal dismissed the appeal, finding that the Board's conclusion that the appellant remained a significant threat to public safety was supported by the evidence, and the disposition was appropriate.

The defendants brought a motion under Rules 21.01(1)(b) and 21.01(3)(a) of the Rules of Civil Procedure to strike a claim alleging negligence in the conduct of a federal tender process relating to hydroelectric facilities.

The plaintiff sought damages, declarations, and injunctive relief, alleging that a profit‑sharing requirement in the Request for Proposals was ultra vires the governing federal legislation.

The court held that Parks Canada was acting as a federal board, commission, or tribunal within the meaning of the Federal Courts Act and that the relief sought fell within the exclusive jurisdiction of the Federal Court under s. 18.

The court distinguished Canada (Attorney General) v. TeleZone Inc., finding that the action effectively challenged administrative decisions and sought traditional judicial review remedies.

The statement of claim was struck for lack of jurisdiction.

Following a motion hearing concerning a significant advance payment request in complex estate-related litigation, the court determined the appropriate costs award.

Applying the factors in Rule 57 of the Rules of Civil Procedure, the court considered the importance and novelty of the issues and the reasonable expectations of experienced litigants.

The plaintiff was successful and entitled to substantial costs for the motion.

The court also addressed the entitlement of the estate trustee during litigation to costs payable from the estate under a prior order.

A surviving spouse sought an advance equalization payment of $4.5 million from the estate of her deceased husband under the Family Law Act or, alternatively, partial summary judgment.

The motion was opposed by several defendants asserting potential claims against the estate and challenging their standing and the appropriateness of the advance.

The court held that the equalization entitlement between spouses is personal under the Family Law Act and that the defendants were neither proven creditors nor beneficiaries.

Applying the three-part test for advance equalization payments from Laamanen v. Laamanen, the court found a reasonable need for litigation funding, little doubt of entitlement to at least the requested amount, and that granting the advance was just in the circumstances.

The defendants sought leave to appeal the dismissal of their summary judgment motion.

The underlying action involved a claim for $1.4 million for breach of a television series production and distribution agreement.

The summary judgment motion had been dismissed because the motions judge found that the discoverability of the claim required multiple findings of fact on conflicting evidence, which could only be achieved at trial.

The Divisional Court found no reason to doubt the correctness of the motions judge's application of the full appreciation test and dismissed the motion for leave to appeal.

Following earlier rulings on a derivative leave motion in estate litigation, the court addressed outstanding procedural directions and the issue of costs for five related motions.

The plaintiffs sought substantial indemnity costs exceeding $144,000 for work connected primarily to the derivative issues.

Applying Rule 57 of the Rules of Civil Procedure and the proportionality principles discussed in Boucher v. Public Accountants, the court held that the requested amount far exceeded the reasonable expectations of the unsuccessful parties for a one‑day motion.

Substantial indemnity costs were denied.

The court fixed costs payable by the defendants jointly and severally at $55,000 inclusive of taxes and interest.

The applicant, who was found not criminally responsible (NCR), was granted an absolute discharge by the Ontario Review Board.

The Crown appealed, which automatically suspended the absolute discharge under s. 672.75 of the Criminal Code, reverting the applicant to a conditional discharge.

The applicant brought a motion challenging the constitutionality of the automatic suspension.

The Court of Appeal held that it had jurisdiction to hear the motion and found that s. 672.75 violates ss. 7 and 9 of the Charter by depriving the NCR accused of liberty without due process and arbitrarily detaining them.

The violations were not saved by s. 1.

The court declared the offending words in s. 672.75 of no force and effect, suspended for 12 months.

The appellant appealed a disposition of the Ontario Review Board that was more restrictive of his liberty than previous orders.

The Court of Appeal dismissed the appeal, finding a solid evidentiary basis for the disposition and noting the Board's intention to maintain oversight while allowing for the possibility of an earlier hearing if progress was made.

The appellant appealed from a Divisional Court order dismissing an appeal from a Master's refusal to grant an extension of time to serve a notice of action and statement of claim.

The appellant had delayed service by approximately 30 days for tactical reasons.

The Master refused the extension, finding prejudice to the respondent due to the 13-year lapse since the relevant events and the destruction of documents.

The Court of Appeal allowed the appeal, holding that the Master erred in law by failing to distinguish between prejudice caused by the passage of time since the events and prejudice caused by the delay in service.

As the 30-day delay in service caused no prejudice, the extension was granted.

Following the granting of summary judgment dismissing the plaintiff’s claims against two defendants in a medical negligence action, the court determined the issue of costs.

The successful defendants sought costs after the self‑represented plaintiff failed to deliver responding submissions within the allotted time.

Although the defendants had incurred significantly higher legal costs, each requested a reduced amount.

The court found the proposed amounts reasonable and fixed costs at $7,500 for each successful defendant.

The plaintiff alleged wrongful psychiatric detention and negligence against a hospital and psychiatrist after being held as an involuntary patient for approximately two weeks and reported to the Ministry of Transportation, which led to suspension of his driver's licence and alleged financial losses.

The defendants brought motions for summary judgment, arguing there was no genuine issue requiring a trial because the plaintiff had produced no expert evidence establishing breach of the medical standard of care.

The defendants filed expert reports concluding that the psychiatrist’s clinical decisions and the nursing care met the applicable standards and that the report to the Ministry of Transportation was appropriate.

The court held that medical malpractice claims generally require expert evidence and that without such evidence the plaintiff had no reasonable prospect of success.

Statutory protections under the Health Care Consent Act, 1996 and the Highway Traffic Act also shielded the physician for actions taken in good faith and for mandatory reporting.

Summary judgment was granted dismissing the action against the hospital and physician.

The defendant brought a motion for summary judgment seeking dismissal of a breach of contract action on the basis that the claim was statute‑barred under the Limitations Act, 2002.

The dispute centred on discoverability and when a reasonable person in the plaintiff’s circumstances ought to have known that a loss had occurred and that a proceeding would be an appropriate remedy.

The court applied the Court of Appeal’s guidance in Combined Air Mechanical Services Inc. v Flesch concerning the “full appreciation” test for summary judgment under Rule 20.04(2.1) of the Rules of Civil Procedure.

Given the voluminous record and conflicting evidence regarding the parties’ knowledge and accounting expertise, the court held that multiple credibility findings would be required.

The interest of justice therefore required that the matter proceed to trial.

The estate trustee during litigation sought full indemnity costs following a contested passing of accounts in an estate matter.

The objector, a beneficiary, repeatedly failed to particularize objections, disregarded procedural directions, and caused significant delay and inefficiency during the proceedings.

The court found the estate trustee was substantially successful and that most objections were unsupported.

Although full indemnity costs from the estate were appropriate in principle for a passing of accounts, the court held the amount claimed was excessive given the nature of the issues and inefficiencies arising from multiple counsel and staff working on the file.

Costs were therefore reduced to a reasonable amount.

The appellant sued the Center for Addiction and Mental Health for allegedly improper detention, treatment, and medication while involuntarily detained.

The respondent moved to dismiss the action, supported by an expert report stating the standard of care was met and exceeded.

The motion judge dismissed the action because the appellant provided no evidence to challenge the expert opinion.

The Court of Appeal found no error and dismissed the appeal.

The appellant hospital appealed a disposition of the Ontario Review Board granting the respondent an absolute discharge after she was found not criminally responsible for wilful mischief endangering life.

The Court of Appeal allowed the appeal, finding that the Review Board misapprehended the expert psychiatric evidence regarding the respondent's risk of acting on delusional beliefs and failed to consider evidence from the respondent's sister and the hospital treatment team.

The disposition was set aside and the matter remitted for a new hearing.

The appellant appealed a summary judgment dismissing his medical negligence and battery action against a surgeon and hospital defendants.

The Court of Appeal found no genuine issue requiring a trial, noting the appellant gave informed consent to the surgery and failed to provide expert evidence establishing a breach of the standard of care.

The court also held the hospital was not vicariously liable for the surgeon, who was not an employee.

The appeal was dismissed with costs.

The appellant's appeal under the Municipal Conflict of Interest Act was previously quashed.

The court received written submissions on costs.

The respondent sought substantial indemnity costs of $35,779.80 or partial indemnity costs of $20,534.60.

The court found no basis for substantial indemnity costs, as the appellant's dilatory conduct did not rise to the level of reprehensible conduct.

However, the respondent was entitled to costs for steps taken to move the appeal forward, including motions to expedite and dismiss for delay.

The court fixed costs at $10,000 inclusive of disbursements and HST.