Fowler Byrne

The accused brought a Charter application seeking to exclude evidence obtained during a traffic stop and subsequent warrantless vehicle search, arguing breaches of ss. 8, 9, and 10 of the Charter.

The accused was under police surveillance for suspected drug trafficking and was pulled over after failing to signal a lane change.

The court found the detention was lawful as the police had reasonable and probable grounds to arrest for drug possession, and the traffic stop was not a mere ruse.

Although the Crown conceded a breach of the accused's s. 10 rights because the officer asked about the contents of a bag before advising of the right to counsel, the court applied the Grant framework and concluded the evidence should not be excluded under s. 24(2).

The application was dismissed.

The applicant, Kirk Matthew Fairley, sought to sever one count of assault (December 1, 2018) from five other counts (December 14, 2018) on an indictment, arguing potential prejudice from photographic evidence of the first assault.

The court applied the factors from R. v. Last to balance the risk of prejudice against the public interest in a single trial.

Despite acknowledging potential for impermissible propensity reasoning or credibility bolstering, the court found the factual nexus, lack of complexity, the accused's intention to testify on all counts, and administrative efficiency favored a joint trial.

The application to sever was dismissed, with the court noting that a clear jury instruction could mitigate prejudice.

The Father brought a motion for summary judgment to declare a child support settlement binding and enforceable.

The Mother opposed, denying a binding settlement, and cross-moved for summary judgment to set aside any agreement, alleging it undervalued support and improperly waived support for one child.

The court dismissed both motions for summary judgment, finding that partial summary judgment was inappropriate as it would not be proportionate, expeditious, or less expensive, and could lead to inconsistent findings, especially concerning child support which is the right of the child and cannot be bartered away.

The court ordered further disclosure from both parties.

The plaintiff sought declarations of interest and sale of four properties, alleging a "Property Venture" agreement.

The defendants denied this, asserting a "Commission Agreement" where property advances were compensation for business referrals.

The court found a 20% commission agreement existed, not the "Property Venture." It dismissed the plaintiff's claims for interest and rectification of title on two properties (Aloma and 2580 Property) and denied the sale of the Olive Property (due to corporate ownership not being a party).

It ordered the sale of the 2824 Property, where the plaintiff already held 50% title.

The defendant's counterclaim for damages based on a later "May 2017 Note" was also dismissed due to lack of evidence of referred work and uncertainty of terms.

The defendants brought a motion for summary judgment to dismiss the plaintiff's slip and fall action.

The plaintiff alleged she slipped on ice at a GO station, and evidence from discovery suggested a leaky eavestrough may have caused ice formation.

The court found that a genuine issue requiring a trial existed because the evidentiary record was incomplete, specifically regarding outstanding undertakings about the eavestrough and incident reports.

The motion for summary judgment was dismissed.

Sentencing for convictions for accessing, possessing, and making child pornography available arising from peer-to-peer file sharing of highly aggravating material depicting very young children and explicit abuse.

The court exercised its discretion to hear a moot constitutional issue and held that the one-year mandatory minimum sentences in ss. 163.1(3) and 163.1(4.1) of the Criminal Code violate s. 12 of the Charter and are of no force or effect, following prior Superior Court authorities and the Court of Appeal's guidance in Sullivan.

Applying Friesen, the court emphasized denunciation and deterrence, found numerous aggravating features including the nature of the collection, the ages of the children, and online dissemination, and rejected mitigation based on COVID-19 and bail conditions beyond standard pre-sentence credit.

The accessing conviction was stayed under Kienapple, and concurrent custodial sentences of 2 years and 3 years were imposed, together with DNA, forfeiture, SOIRA, and ten-year s. 161 orders.

The applicant, who was found guilty of child pornography offences, applied for a stay of sentencing under s. 11(b) of the Charter, arguing unreasonable delay between the verdict and the sentencing hearing.

The court applied the Jordan framework and found that the presumptive ceiling of five months for sentencing delay was exceeded.

However, the court dismissed the application, concluding that the delay was reasonable due to the exceptional circumstances of the COVID-19 pandemic, which caused a suspension of regular court operations and a significant backlog.

The respondent father brought a motion seeking a finding that the applicant mother was in non-compliance with a temporary access order, along with requests for make-up time and various behavioural orders.

The children had been refusing to attend parenting time with the father, which the father alleged was due to parental alienation by the mother, while the mother alleged it was due to the father's past behaviour.

The court reviewed the efforts of multiple professionals and the mother's disciplinary actions, concluding that on an interim record, it could not find the mother in non-compliance.

The court dismissed the non-compliance motion but varied the temporary order to require psychological assessments of the children and participation in an intensive therapy program to facilitate access.

The accused applied to exclude evidence obtained by police, alleging violations of sections 8 and 10(b) of the Canadian Charter of Rights and Freedoms.

The alleged violations included a delay in advising the accused of his right to counsel upon arrest and an unlawful vehicle search at the detachment, as well as unreasonable pat-down searches.

The court found a breach of section 8 regarding a third pat-down search and a breach of section 10(b) due to delayed counsel advice and access for some charges.

However, the court determined that the vehicle search at the detachment was a lawful continuation of a search incident to arrest.

Applying the R. v. Grant framework, the court concluded that the Charter breaches were not serious, had minimal impact on the accused's protected interests, and therefore, admitting the evidence would not bring the administration of justice into disrepute.

The application to exclude evidence was dismissed.

The applicant husband brought a motion for the return of the parties' child from British Columbia to Ontario, arguing that Ontario was the child's habitual residence.

The respondent wife brought a cross-motion to stay the proceedings or transfer them to British Columbia, where she had commenced a family law proceeding under provincial legislation.

The court found that the husband's application under the Divorce Act took precedence and that the child was habitually resident in Ontario, as the wife had relocated without the husband's consent.

The court ordered the wife to return the child to Ontario within 30 days.

The applicant, charged with sexual offences, brought an application for a stay of proceedings under s. 11(b) of the Charter, arguing that the 40-month and 19-day delay in bringing him to trial was unreasonable.

The Crown argued that the delay was justified by exceptional circumstances, specifically the COVID-19 global pandemic and the time it took the applicant to secure funding for counsel.

The court agreed, deducting 10 months and 12 days for the pandemic and 3 months for the funding delay, bringing the net delay to 28 months and 8 days, which fell below the 30-month presumptive ceiling.

The application was dismissed.

The applicant son brought a motion seeking a capacity assessment of his 89-year-old mother, production of her medical and legal records, the striking of certain affidavits, and a preservation order over her assets, amidst a dispute with his sister over their mother's care and powers of attorney.

The respondent sister and mother brought cross-motions to lift the freeze on the mother's bank accounts and for reimbursement of expenses.

The court dismissed the request for a capacity assessment, finding it unnecessary and intrusive given existing assessments and the lack of urgency.

The court ordered limited production of medical and legal records, finding the applicant met the minimum evidentiary threshold.

The court struck portions of an interpreter's affidavit containing unqualified opinion evidence but left hearsay evidence for the application judge to weigh.

Finally, the court granted a preservation order over the mother's main bank account, while ordering the release of funds to reimburse the sister for care expenses and providing a monthly allowance for the mother's ongoing needs.

A lawyer sought leave to intervene in an appeal of a costs decision that made adverse findings against him regarding his duty to the court and ordered his former client to pay substantial indemnity costs.

The underlying action had settled, rendering the appeal moot.

The court granted the lawyer leave to intervene, finding he had an interest in protecting his professional integrity, especially since his former client was relying on the costs decision in a separate collection action for legal fees.

The court also exercised its discretion to depart from the doctrine of mootness, finding that the issues regarding a lawyer's duty to the court and the costs consequences for a client were of public importance and could otherwise evade review.

The appeal was allowed to proceed on limited issues with amicus curiae appointed to argue the opposing position.

The offender, a 31-year-old first-time offender, was found guilty of sexual assault after forcing the complainant to have vaginal intercourse twice.

The Crown sought 28 months' custody, while the defence sought 14 to 18 months followed by probation.

The court emphasized denunciation and deterrence, noting the highly aggravating circumstances of the major sexual assault and the offender's lack of remorse, while acknowledging his lack of prior record.

The offender was sentenced to two years in the penitentiary along with ancillary orders.

The applicant wife brought an urgent motion for interim spousal support.

The wife, who was on long-term disability, sought support based on the husband's income as a police officer and his retained corporate earnings.

The court found the wife had established a prima facie entitlement to support based on need and the husband's ability to pay.

The court imputed the husband's income at $170,000, including base salary, overtime, and corporate retained earnings, and ordered interim spousal support of $3,500 per month retroactive to February 2020.

The applicant mother and respondent father both brought motions regarding interim parenting of their two young children.

The mother sought primary residence with alternate weekend access for the father, while the father sought a shared parenting arrangement.

The court ordered a graduated access schedule for the younger child to eventually synchronize with the older child's schedule, emphasizing the need to accommodate the mother's return to work and the children's best interests.

The court also ordered the father to discharge a property encumbrance as previously agreed.

The appellant's vehicle was towed to the respondent's auto centre following an accident.

The appellant signed a blank work order but subsequently requested his vehicle back, refusing to authorize repairs.

The respondent proceeded with repairs based on an estimate provided by the appellant's insurer and refused to release the vehicle.

The Small Claims Court awarded the respondent the cost of repairs.

On appeal, the Divisional Court set aside the judgment, finding that the respondent failed to comply with the strict estimate and authorization requirements of the Consumer Protection Act, 2002, and that it would be inequitable to require the appellant to pay for unauthorized repairs.

The respondent father brought a motion for the immediate pre-trial sale of the jointly owned matrimonial home.

The applicant mother opposed the sale and sought an order for the father to cooperate in renewing the mortgage, arguing that their 19-year-old child with autism and intellectual disabilities required the stability of the home and its proximity to specialized school programs.

The court dismissed the father's motion, finding that a pre-trial sale would irreparably prejudice the mother's claim for exclusive possession at trial and negatively impact the vulnerable child.

The court granted the mother's request, ordering the father to cooperate in refinancing the matrimonial home.

A non-party sibling, Sandra Gail Grier, brought a motion for contempt against D.J. Grier and, in the alternative, for disclosure of settlement approval documents in estate litigation involving her siblings D.J. Grier and J.L. Grier, both under disability.

The motion for contempt was dismissed due to improper personal service.

The court granted partial disclosure, ordering D.J. Grier and J.L. Grier to serve Sandra and Garret (Sandra's son) with specific affidavits related to the settlement approval, excluding solicitor-client privileged information, and ordered certain affidavits to be sealed.

Sandra was awarded $1,000 in costs, with the determination of who pays to be made later.

The Respondent Father brought two motions: one for extensive disclosure, including solicitor-client communications and forensic audits of email accounts, and another for the removal of the Applicant Mother's counsel due to alleged conflict and misconduct.

The court dismissed most of the Father's disclosure requests, finding them to be fishing expeditions lacking relevance or proportionality, and protected by solicitor-client privilege.

The court also dismissed the request to remove the Mother's counsel, finding no conflict of interest or sufficient evidence to warrant disqualification.

A limited disclosure order for specific emails between the Mother and a non-party was granted, and a schedule for witness lists and affidavits of documents was set.