F. Bruce Fitzpatrick

The accused, T.B., applied for a stay of serious criminal charges, alleging a breach of their s. 7 Charter right to security of the person due to state action.

The court found that police deliberately breached T.B.'s confidential informant privilege by showing a recorded interview, where T.B. implicated other criminals, to a criminal associate (Mr./Ms. X).

This disclosure led to T.B. being severely assaulted in jail.

The court determined this police conduct constituted an abuse of process, offensive to societal notions of fair play and decency, and that no lesser remedy could adequately dissociate the justice system from the egregious conduct.

Consequently, a stay of all proceedings against T.B. was granted.

The appellants appealed an application judge's order granting an oppression remedy to the minority shareholder respondents.

The application judge found that the majority shareholder's exercise of a drag-along right to force the sale of the respondents' shares was oppressive because the sale price was below fair market value, and ordered a valuation.

The Divisional Court allowed the appeal in part, holding that while the application judge did not err in finding a reasonable expectation that the drag-along right required a sale at fair market value, he erred in concluding the sale was below fair market value without evidence.

The court varied the order to make the valuation an interim step before determining if oppression occurred.

The appellant appealed the dismissal of her wrongful dismissal and human rights claims following her failure to return to work after maternity leave.

She argued the trial judge erred in finding that an 8:30 a.m. start time was a fundamental term of her employment contract, and that the employer's insistence on this time constituted constructive dismissal and family status discrimination.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's conclusion that the start time was an existing contractual term and that the appellant failed to establish a prima facie case of discrimination regarding her child care needs.

The applicant sought a declaration under the Road Access Act, arguing that a road on the respondent's property (the "Pink Road") was an "access road" to her dock, which the respondent had blocked.

The respondent contended that the applicant had alternative vehicular access to her property via a municipal road.

The court found that the applicant's property was not "landlocked" as she had vehicular access via a municipal road to her undivided parcel of land.

The Act was interpreted to prevent blocking all road access to a parcel, not to guarantee preferred access to a specific portion (like a dock) when other vehicular access exists.

The application was dismissed, with the court concluding that the Pink Road was not an "access road" under the Act.

The accused pleaded guilty to criminal negligence causing the death of three people after operating an overloaded, ill-equipped boat in severe weather while impaired by alcohol, despite police warnings.

The court considered the accused's Indigenous background and intergenerational trauma detailed in a Gladue report.

Balancing denunciation and deterrence with rehabilitation, the court sentenced the accused to 18 months in custody followed by three years of probation, along with ancillary orders including a DNA order and a qualified boating prohibition.

The plaintiffs, Gerald Witiluk and the trustees of the Gerald Witiluk Family Trust, brought a motion seeking an order that the defendants, Jack Witiluk and others, were in contempt of three previous court orders regarding document production in an ongoing oppression remedy case.

The court dismissed the motion, finding that while there were delays in production, the plaintiffs failed to prove beyond a reasonable doubt that the defendants' conduct was intentionally contemptuous.

The court exercised its discretion, considering the complex, long-standing nature of the family business litigation, the moving target of the share valuation date, and the defendants' good faith efforts to comply.

The court also criticized the plaintiffs' use of aggressive language in their motion, including a request for imprisonment, which was deemed unhelpful to the process.

The applicant sought to terminate or reduce spousal support, arguing his early retirement constituted a material change in circumstances.

The respondent opposed the motion and sought an increase in support.

The court dismissed the applicant's motion, finding that an event known and intended at the time of the original support order, such as early retirement, cannot later be relied upon as a material change.

The court emphasized that a support payor cannot voluntarily reduce their income to avoid spousal support obligations, and the focus remains on their income-earning ability.

The appellant appealed convictions for impaired driving and two counts of failing to remain.

The appeal raised two issues: whether the trial judge erred in finding reasonable grounds for arrest by misapprehending the evidence regarding the odour of alcohol, and whether the trial judge erred in articulating the test for identification based on circumstantial evidence.

The court dismissed the appeal, finding that the misapprehension of evidence regarding the "strong odour" of alcohol did not undermine the overall analysis for reasonable grounds, given other strong indicia of impairment and connection to the vehicle.

On the identification issue, the court affirmed that no specific incantation is required for circumstantial evidence, and the trial judge's finding of "the logical inference" was sufficient to demonstrate proof beyond a reasonable doubt.

The plaintiff, AGC Flat Glass North America Ltd., moved for summary judgment on its construction lien claim against the defendants, Man-Shield (NWO) Construction Inc. et al., concerning a condominium development.

The court granted partial summary judgment to AGC for specific amounts related to the windows and doors subcontract ($84,201.80), a glass shower enclosure extra ($53,839.42), and mirrors and hollow glazing extras ($19,484.07).

However, the court found genuine issues for trial regarding alleged "walking glass" deficiencies in guardrails and the quantum of a caulking extra, necessitating mini-trials for these two issues.

The court rejected the respondent's general arguments for delaying payment based on counterclaims and "flow through" claims from the owner, emphasizing the need for parties to present their best evidence on summary judgment motions.

The appellant, Althea Reyes, appealed her conviction for failing to appear before court.

At trial, she conceded the actus reus of the charge and argued an honest but mistaken belief regarding her attendance.

On appeal, she sought to raise a new argument that she was not required to attend court, which was contrary to her trial position.

The court dismissed the appeal, finding that the appellant failed to meet the preconditions for raising a new issue on appeal, including the sufficiency of the evidentiary record and the absence of tactical reasons for not raising it at trial.

The court also declined to admit fresh evidence (transcripts from prior proceedings) as the Palmer test for admissibility was not satisfied.

The Crown brought a late application to introduce discreditable conduct evidence after the accused re-elected to be tried by judge alone shortly before trial.

The Crown argued the re-election changed its trial strategy, as it had not intended to put the highly prejudicial evidence before a jury.

The court dismissed the application, refusing to grant leave to extend the time under the Rules of Criminal Practice, finding that admitting the late application would be unfair to the accused, who did not know the case he had to meet, and would likely cause trial delay.

The plaintiff, The Floor Show Ltd. (TFS), brought motions for partial summary judgment in two actions against the defendant Man-Shield (NWO) Construction Inc. (MS) concerning unpaid construction contracts for two condominium projects (Allure and Aurora).

MS asserted counterclaims for delay, back-charges for floor protection and cleanup, and owner damage claims, and relied on a "pay when paid" clause.

The court granted partial summary judgment to TFS for significant amounts, finding most of MS's counterclaims lacked merit or particulars, and that the "pay when paid" clause was inapplicable due to MS's termination from the project.

Some discrete issues regarding quantum of upgrades and extras were directed to trial.

M.K. was convicted of indecent assault and sexual assault against his niece, R.K., occurring between 1981 and 1987 when R.K. was a minor.

The court applied the Kienapple principle, entering a conditional stay on the indecent assault charge and sentencing M.K. on the sexual assault conviction.

The Crown sought a custodial sentence of two years less a day, while the defence argued for a conditional sentence.

Considering M.K.'s Indigenous background, advanced age, lack of criminal record, and the victim's impact statement, the court emphasized denunciation and deterrence.

The judge found M.K. showed no remorse and was a poor candidate for a conditional sentence, ultimately imposing a 15-month period of incarceration (less credit for pre-trial custody) followed by 18 months of probation, along with ancillary orders.

The defendants, T-Bay Movers Corporation and Konrad Kuhne, moved for partial summary judgment on their counterclaim against the plaintiff, Sean Bouttell, seeking specific performance of a "Second Contract" to unwind a previous share purchase agreement.

The plaintiff argued that the email exchanges did not constitute a binding contract and raised issues of illegality and non-compliance with the Ontario Business Corporations Act.

The court found that the email exchanges clearly evidenced a meeting of the minds, forming a binding "Second Contract." The plaintiff's arguments regarding the conditional nature of the agreement and illegality were rejected due to lack of credible evidence.

The court granted specific performance to the defendants, dismissing the plaintiff's statement of claim in its entirety, as it was premised on the non-existence of the "Second Contract."

The applicant, Marilyn Ellen Mihalcin (Sally), sought to amend her pleadings to include an equalization claim against the estate of her deceased husband, Frank Mihalcin, and to extend the six-month limitation period for filing such a claim under the Family Law Act (FLA).

The court applied the three-part test under FLA s. 2(8) for extending time limits: apparent grounds for relief, delay incurred in good faith, and no substantial prejudice.

The court found that the applicant failed to provide sufficient evidentiary basis to demonstrate apparent grounds for relief, as no financial statement was filed to show an entitlement to an equalization payment.

Furthermore, the applicant failed to prove that the delay in formally filing the election was incurred in good faith, citing vague evidence regarding her former solicitor's actions.

While the court agreed that no substantial prejudice would arise, the failure to satisfy the first two criteria, coupled with insufficient grounds for exercising residual judicial discretion, led to the dismissal of the motion.

On an application for judicial interim release in an extradition proceeding, the applicant sought release pending a hearing on possible extradition to the United States on allegations analogous to sexual interference.

The court applied the reverse-onus bail framework under the Extradition Act and Part XVI of the Criminal Code, with particular attention to the tertiary ground as explained in St-Cloud.

Although the extradition case was strong and the allegations were grave and disturbing, uncertainty about the precise foreign charges and potential sentence, together with a stringent surety-based release plan, favoured release.

The court held that detention was not justified on the primary, secondary, or tertiary grounds and ordered release on extensive conditions.

The defendants moved for the release of cash posted into court as security to vacate a construction lien under s. 44 of the Construction Lien Act.

The parties were engaged in a private arbitration to resolve their disputes, and the arbitrator had issued a partial award but deferred the determination of costs and counterclaims until the conclusion of the arbitration.

The Superior Court dismissed the motion as premature, finding that competing claims against the security remained unresolved and that releasing funds before the arbitration concluded would be prejudicial.

The plaintiff veterinary clinic brought an undefended action against a former employee for theft and misappropriation of funds.

The court found that the defendant, acting in a fiduciary capacity, fraudulently processed unauthorized refunds to his own bank account totaling $37,643.99.

The court awarded damages in that amount and declared that the debt would survive any future bankruptcy discharge pursuant to s. 178(1)(d) of the Bankruptcy and Insolvency Act.

Punitive damages were denied due to pending criminal charges.

The applicants sought a declaration that a proposed municipal fee for a fill permit was an illegal tax, and a mandamus order compelling the respondent municipality to issue the permit.

The municipality had refused to issue the permit until a fill agreement and fill management plan were finalized, which included resolving several outstanding technical and environmental issues.

The Divisional Court dismissed the application as premature, finding that the applicants did not yet have a clear legal right to the permit and the municipality was not under an obligation to issue it while significant issues remained unresolved.

The appellant appealed an order requiring him to pay interim spousal support.

The original motion was brought solely to seek the sale of the matrimonial home, and neither party had requested interim spousal support in their motion materials.

The Divisional Court allowed the appeal, finding that the motion judge committed an error of law by ordering interim spousal support without providing the parties notice or an opportunity to make submissions on the issue.

The provision ordering spousal support was struck.