F. Bruce Fitzpatrick

The accused, an O.P.P. sergeant, was tried on charges of breach of trust and attempting to obstruct justice arising from allegedly false entries on traffic notice and summons documents for speeding offences.

The Crown relied on inconsistencies between the officer notes and laser-device data, as well as an interview said to contain admissions.

Applying the W.D. framework, the court found the accused's evidence was not fully believable but also could not be rejected, particularly given supporting circumstances including the laser-use log, recovered notes, and significant confusion and misleading statements during the police interview.

Considering the evidence as a whole, the court was left with a reasonable doubt about whether the accused had the requisite intent to falsify the documents.

The accused was acquitted on all charges.

Following a violent New Year's Day confrontation at a First Nation residence, the accused were tried on aggravated assault allegations arising from a group melee in a driveway.

The court found the sole direct identification evidence unreliable on the central issue of who struck the complainant, preferring other eyewitness evidence that pointed to another participant.

The court held the Crown had not proven beyond a reasonable doubt that either accused directly committed the aggravated assault or was liable as a party under s. 21 of the Criminal Code.

One accused was nevertheless convicted of failing to keep the peace and be of good behaviour based on his participation in the disturbance.

This was a costs-only decision following settlement of a motor vehicle personal injury action on the morning trial was to commence.

The plaintiff accepted an offer providing for payment of $22,500, prejudgment interest, and partial indemnity costs to the date of the offer, but the parties disputed the amount and scope of recoverable costs.

The court disallowed several disputed disbursements, including counsel travel, the plaintiff's travel advance for a medical-legal assessment, two housekeeping expert reports, and interest on a litigation loan, emphasizing proportionality and the fair-and-reasonable approach under Rule 57.

Partial indemnity fees were fixed at $10,000 plus HST, disbursements at $15,683.64 inclusive of HST, and the defendant received $200 plus HST for the costs hearing, deductible from the plaintiff's award.

The accused brought a pre-trial motion to exclude cannabis and cannabis resin seized from his residence pursuant to a search warrant.

He argued the information to obtain failed to provide sufficient information about confidential informants' reliability and that the forced entry execution of the warrant was itself unreasonable under section 8 of the Charter.

Applying the governing search warrant review principles and the Supreme Court's section 8 jurisprudence on forced entry searches, the court held the warrant was validly issued and the police manner of entry was not shown to be excessive or unreasonable.

The application to exclude the evidence under section 24(2) was dismissed.

In a judge-alone criminal trial on historical sexual assault allegations, the court applied the W.(D.) framework to conflicting testimony from the complainant and the accused.

The complainant alleged a sexual assault and threat occurring when she was 14, while the accused denied the allegations and advanced alibi evidence supported by employment records and defence evidence.

The court accepted the accused's evidence regarding his whereabouts and clothing habits, found aspects of the complainant's testimony troubling, and concluded the Crown had not proven guilt beyond a reasonable doubt.

The accused was acquitted on both counts.

On a summary judgment motion in an action arising from criminal breach of trust charges against a police officer responsible for sex offender registry administration, the court dismissed the claims for negligent investigation and malicious prosecution.

Applying the modern summary judgment framework and the elements of negligent investigation, the court held the moving parties did not initiate the criminal proceedings and, in any event, there were reasonable and probable grounds for the charges based in part on findings made in the prior criminal reasons.

The evidentiary record was found insufficient to support the pleaded conspiracy and Charter damages claims, but the court declined to dismiss them outright and granted leave to file a further fresh as amended pleading limited to those causes of action.

Claims against the police service as a non-entity were also dismissed.

The applicant sought leave before trial to cross-examine the affiant on an information to obtain a search warrant, arguing insufficient disclosure regarding the credibility and reliability of confidential informants and an alleged failure of full, frank, and fair disclosure.

Applying the Garofoli and Pires framework, the court held there was no reasonable likelihood that the proposed cross-examination would assist in determining a material issue or tend to discredit a statutory precondition to issuance of the warrant.

The court found the information to obtain, read as a whole, disclosed reasonable and probable grounds and investigative necessity, notwithstanding that some informant information was not borne out by the search.

The application was dismissed.

The accused brought an application under s. 520 of the Criminal Code seeking review of a detention order made by a justice of the peace.

The applicant argued that the doctrine of issue estoppel required the second bail court to follow an earlier decision releasing him on separate charges arising from related events.

The reviewing judge held that issue estoppel applies only where the identical issue was previously decided between the same parties.

Because the earlier bail hearing addressed a different charge and did not determine the risk assessment relating to the possession of stolen property offence, the issue had not previously been adjudicated.

The justice of the peace therefore committed no error of law in conducting a fresh bail analysis and ordering detention.

Following a trial concerning a passing of accounts relating to the estate of a deceased person, the successful objector sought over $87,000 in costs on a full indemnity basis.

The court emphasized that costs are discretionary and guided by proportionality under Rule 57.01 of the Rules of Civil Procedure.

Although the objector had succeeded in requiring repayment of $10,000 and a reduction in compensation claimed by the estate trustee, the court found the requested costs grossly disproportionate to the amounts at issue and the manner in which the litigation was conducted.

The proceedings involved limited witnesses, no discoveries, and inefficiencies arising from personal family disputes.

The court therefore fixed modest costs to reflect proportionality and the limited financial stakes of the litigation.

Former spouses brought competing motions in family proceedings.

The applicant sought interim spousal support, while the respondent moved for summary judgment dismissing the applicant’s claim to equalization and division at source of the respondent’s pension following the applicant’s bankruptcy discharge.

The court held that the marital roles established entitlement to interim spousal support and ordered temporary support based on the Spousal Support Advisory Guidelines.

However, applying bankruptcy and family property jurisprudence, the court concluded that any equalization claim arising at separation constituted a provable claim in bankruptcy and was released upon the applicant’s discharge.

Summary judgment was therefore granted dismissing the pension-related equalization claim.

Application concerning the passing of accounts of an attorney acting under a continuing power of attorney for property under the Substitute Decisions Act.

The attorney transferred substantial funds from the incapable person's accounts into a personal PayPal account, failed to maintain proper accounting records as required by regulation, and used estate funds to pay for personal expenses, claiming them as compensation.

The court found several breaches of statutory duties, including inadequate record-keeping and improper methods of taking compensation, though the incapable person's financial well-being was not materially harmed.

Exercising its discretion on a passing of accounts, the court reduced the attorney’s compensation and ordered repayment of a portion of the funds taken.

The attorney was required to repay $10,000 to the estate while the accounts were otherwise passed.

The defendants brought motions to strike the statement of claim brought by a parent and a minor child against a child protection agency, its employees, and a school vice-principal.

The parent alleged negligence relating to the apprehension of the child, the child’s placement in foster care, and school disciplinary decisions.

The court held that child protection agencies and their staff owe a duty of care to the child, not to the parent, relying primarily on the Supreme Court’s decision in Syl Apps Secure Treatment Centre v. B.D., and found that the parent’s pleading disclosed no reasonable cause of action.

The court also found statutory immunity under the Child and Family Services Act was not displaced due to the absence of pleaded particulars of bad faith.

The parent’s claim was struck without leave to amend, while the minor’s claim was stayed pending appointment of a litigation guardian represented by counsel.

Applicants sought a declaration that their insurer owed a duty to defend and indemnify them under a Directors and Officers liability policy in relation to an action by a contractor alleging breach of contract, unjust enrichment, and quantum meruit for unpaid construction work.

The court applied established duty-to-defend principles requiring a broad interpretation of coverage and examination of the pleadings to determine whether a potentially covered wrongful act was alleged.

It held that the essence of the underlying action was a collection claim for unpaid invoices and did not constitute a “wrongful act” within the meaning of the policy.

The court further held that the unjust enrichment and quantum meruit claims were derivative of the breach of contract claim and therefore caught by the contractual exclusion.

The application for declaratory relief was dismissed.

Following a three-day family trial concerning child support, spousal support, and section 7 extraordinary expenses, the applicant husband sought full indemnity costs of over $83,000 based on several offers to settle under the Family Law Rules.

The court held that the offers contained imprecise and severable cost provisions, preventing a finding that the judgment was more favourable than the offers for purposes of rule 18(14).

Applying rule 24 of the Family Law Rules, the court found the applicant was the successful party but declined full indemnity, particularly because significant preparation related to custody, access, and property issues that were settled before trial.

The court fixed reasonable costs for the trial at $15,000 plus HST and disbursements.

The resulting costs award was ordered to be set off against the applicant’s ongoing child support obligations.

Sentencing decision following conviction for transferring a firearm without authorization contrary to s. 99(1) of the Criminal Code.

The court determined that the applicable minimum sentence was three years under s. 99(2), rejecting the defence argument that the one‑year minimum under s. 99(3) applied.

Although the offence involved no violence and the firearm was quickly recovered by police, the accused had a lengthy criminal record.

The court declined to apply Gladue principles due to insufficient evidence establishing Indigenous identity or a connection between background factors and the offence.

The accused received the mandatory minimum sentence with enhanced credit for difficult pre‑sentence custody conditions.

The plaintiffs brought a motion to set aside a Registrar's Order dismissing their action for delay and to amend the Statement of Claim to substitute a named defendant for 'John Doe'.

The action arose from an airplane accident.

The court applied the Reid test, finding that the plaintiffs satisfactorily explained the litigation delay, inadvertence, and delay in bringing the motion, and that the defendants would not suffer non-compensable prejudice.

The motion to set aside the dismissal was granted, and the plaintiffs were permitted to amend their claim to add the named defendant.

The appellant appealed a summary conviction for sexual assault and breach of recognizance, arguing the trial judge failed to properly apply the credibility analysis required by R. v. W.(D.).

The appellate court held the trial judge improperly treated the case as a credibility contest between the complainant and the accused, rather than applying the full W.(D.) framework.

The reasons relied heavily on the complainant’s demeanour and failed to explain how the evidence as a whole established guilt beyond a reasonable doubt, particularly in light of inconclusive DNA evidence and other contradictory facts.

The court concluded this constituted a palpable and overriding error of law.

The conviction was quashed and a new trial ordered.

During a negligence trial concerning alleged diesel fuel contamination of lands belonging to a First Nation, the defendants brought a mid‑trial motion seeking to disqualify the plaintiff’s proposed expert geoscientist.

The defendants argued the expert report failed to comply with Rule 53.03 of the Rules of Civil Procedure because it was not prepared for the litigation and did not clearly set out the issues, opinions, and bases for those opinions.

The court held that the report was only minimally compliant with Rule 53.03 and did not sufficiently identify the substance of the proposed expert testimony, thereby prejudicing the defendants’ ability to prepare for trial.

However, completely barring the witness from testifying would be too harsh.

The court granted leave for the witness to testify as a fact witness, subject to strict limits on use of the report and possible supplementation.

A 90‑year‑old grocery store patron was struck by another customer pushing an overloaded cart and suffered catastrophic injuries resulting in quadriplegia before his death several years later.

The estate and spouse sued the patron and the store operators alleging occupiers’ liability and negligent failure to control the use of overloaded carts.

The court held the store owed a duty under the Occupiers’ Liability Act but had reasonable safety policies and no employee had sufficient opportunity to observe and prevent the hazardous conduct.

Liability was found entirely against the patron who pushed the cart without being able to see where he was going.

Damages for general damages, pecuniary loss, and Family Law Act loss of care and companionship were awarded against the patron, while the claims against the store defendants were dismissed.

The defendant municipality sought leave to appeal an interlocutory injunction prohibiting public use of municipal land pending trial in a nuisance action brought by neighbouring landowners.

The court considered the test for leave under rule 62.02(4) of the Rules of Civil Procedure, which requires either conflicting authority or good reason to doubt the correctness of the order combined with broader importance.

Although no conflicting jurisprudence was shown, the court held that the scope of the injunction—effectively barring all municipal use of public land—raised serious questions regarding judicial oversight of municipal policy decisions and therefore met the “doubt the correctness” test.

Leave to appeal the injunction and the associated costs order was granted.

However, the court declined to stay the injunction pending appeal, finding no irreparable harm and that the balance of convenience favoured maintaining the order.