M. Gregory Ellies

The accused was tried on charges arising from a fatal ATV rollover after a night of social drinking.

The court held that the Crown failed to prove beyond a reasonable doubt that the accused's ability to operate the vehicle was impaired by alcohol, preferring the evidence of the eyewitness and attending officer over unreliable lay observations from other young witnesses.

The court further held that, even if impairment had been proven, causation was not established because the rollover was explained by the vehicle's instability and sharp turning capability at low speed.

The accused was acquitted of impaired driving causing death and over-80 causing death, but convicted of taking the ATV without consent.

The Crown appealed an acquittal on multiple sexual offence charges involving a child complainant.

The appeal court held that, read in the context of the evidence and submissions, the trial judge's reasons did not disclose why he found a conflict of equally credible evidence or how he arrived at reasonable doubt.

Applying the governing framework on sufficiency of reasons and the principles associated with W. (D.), the court found the verdict could not be meaningfully reviewed on appeal.

The acquittal was set aside and the matter remitted for a new trial, but convictions were not substituted.

The applicant, a resident of the United States, was charged under the Environmental Protection Act with failing to comply with a court order.

A summons was sent to him by registered mail pursuant to s. 26(3) of the Provincial Offences Act.

The applicant brought an application for an order prohibiting the Provincial Offences Court from continuing the proceeding, arguing that s. 26(3) does not expressly authorize service outside of Ontario or Canada.

The court dismissed the application, applying the modern principle of statutory interpretation to find that s. 26(3) implicitly authorizes service of a summons via registered mail upon an individual who resides anywhere outside of Ontario, including outside of Canada.

This was a costs-only endorsement following an earlier ruling.

The successful party sought $1,148.02 all-inclusive after responding to an application commenced in contravention of a prior vexatious litigant order under s. 140 of the Courts of Justice Act.

Applying the presumption in rule 24(1) of the Family Law Rules, the principle of indemnity in rule 57.01(0.a) of the Rules of Civil Procedure, and the requirement that costs be fair and reasonable, the court held the amount claimed was fair and reasonable.

Costs were awarded in full.

This was a costs endorsement following a family law proceeding in which the successful responding party sought $8,000 in costs on a substantial indemnity basis.

The court applied Rule 24(10) of the Family Law Rules and the Court of Appeal's decision in Islam v. Rahman to conclude that costs could not be awarded for an earlier procedural step where no costs order had been made at the time.

The claimed amount was therefore reduced by removing the September 18 appearance costs and part of the preparation time.

An additional $500 in previously reserved costs from a later appearance was added, for a total costs award of $5,500.

On a motion to change that proceeded to trial, the applicant sought termination of child support for an adult daughter with a chronic illness.

The court held that, despite uncertainty about the daughter's future and her medical condition, the evidence showed she was presently able to withdraw from parental charge and obtain the necessities of life, including through ODSP and her living arrangements.

Applying the Divorce Act definition of “child of the marriage”, the court found she no longer met that status at present.

The prior support order was terminated, with no costs awarded.

The plaintiff mortgagees moved for summary judgment arising from a chattel mortgage over a mobile home after the defendants defaulted on monthly payments.

The court held there was no genuine issue requiring a trial on the plaintiffs' entitlement to possession of the collateral and on their entitlement in principle to payment of principal, interest, and insurance amounts authorized by the mortgage.

However, material factual disputes remained regarding the number of missed payments, the date from which interest was payable on certain defaults, the amount of insurance premiums paid, and whether lot rental payments were recoverable at all.

A trial was therefore required on those disputed monetary issues.

The defendants moved to strike an overlong and prolix statement of claim arising from an alleged failure to treat a child, a report to child protection authorities, and alleged defamation in medical records and related reporting.

The self-represented plaintiff sought to strike counsel's supporting affidavit and to dismiss the hospital's parallel motion on procedural grounds.

The court rejected those procedural objections, holding that an affidavit sworn by a lawyer in the same firm was not improper on these facts and that the hospital's filing deficiencies were mere irregularities.

Applying Rule 25.11, the court found the pleading so filled with evidence, argument, and unnecessary verbatim conversations that the offending portions could not practicably be severed.

The entire statement of claim was struck with leave to file a Fresh as Amended statement of claim within 30 days.

In a wrongful dismissal action, the moving party sought production of an internal email exchanged during the employer’s misconduct investigation and copied to external employment counsel.

The court applied the settled test for solicitor-client privilege and held the employer failed to prove the email entailed the seeking or giving of legal advice.

The surrounding evidence suggested the author was providing an internal unbiased opinion on discipline rather than communicating for the purpose of obtaining legal advice, and the employer relied only on weak hearsay evidence on the author’s intention instead of best evidence.

The motion to compel production was granted, with costs to the moving party subject to written submissions.

The appellants appealed a Small Claims Court decision awarding the respondent $25,000 in damages and $7,500 in costs, payable jointly and severally by the appellants and their lawyer.

The appellants argued the deputy judge should have recused himself due to bias, the costs were excessive, and costs should not have been awarded against counsel.

The Divisional Court dismissed the appeal regarding the damages and the quantum of costs, finding no reasonable apprehension of bias and no error in the costs assessment.

However, the court allowed the appeal regarding costs against the appellants' lawyer, finding he was not given sufficient notice under Rule 57.07.

The appellant sought to set aside a Small Claims Court order dismissing his dental negligence action for failing to comply with settlement conference orders requiring expert reports.

The court held that the order was mandatory, that the appellant had ample time to obtain the required report, and that the record did not establish reasonable efforts to do so.

The court further held that expert evidence was necessary to establish the applicable standard of care and breach in the professional negligence claim, and that fairness required disclosure of the substance of any expert opinion.

The appeal was dismissed.

The self-represented applicant brought a motion to change a 2003 family law order and a motion to change venue.

The court dismissed the venue motion because the alleged concerns related to judges who regularly sat in Sault Ste.

Marie and no apprehension of bias was alleged against the motion judge.

The court held that the motion to change the order was barred by res judicata because an earlier motion involving the same parties, issue, and evidence had already been dismissed.

The court further observed that, even absent res judicata, the supporting affidavits were outdated and largely bald allegations.

Costs were not fixed in the decision, with further written submissions invited.

The applicant, previously subject to an order prohibiting her from commencing proceedings without leave, brought a family law application that did not seek only rescission of the vexatious litigant order and was not shown to have been served on the Attorney General.

The court held that the Family Law Rules did not adequately address proceedings under s. 140 of the Courts of Justice Act, requiring reference to the Rules of Civil Procedure.

Applying Rule 2.1.03, the court treated the responding party's letter and motion without notice as a written request to dismiss the unauthorized proceeding.

The application was dismissed and removed from the hearing list, with costs submissions invited.

The respondent, Sharon Fair, brought a motion in writing to amend the Divisional Court's earlier written reasons, alleging clerical errors.

The applicant school board opposed the motion.

The court noted that the applicant had already obtained leave to appeal the judgment to the Court of Appeal.

The court dismissed the motion, finding that even if it had jurisdiction to amend its reasons, it would be unseemly to do so while an appeal was pending, and that justice would be better served by leaving the determination of any errors to the Court of Appeal.

A self-represented parent who had previously been declared a vexatious litigant under s. 140(1) of the Courts of Justice Act sought emergency leave to bring a motion without notice for temporary custody and access-related relief.

The motion alleged denial of access under an existing custody order and a dispute regarding holiday access scheduling.

The court held that, under s. 140(4) of the Courts of Justice Act, the moving party was required to demonstrate that the proposed proceeding was not an abuse of process and that reasonable grounds existed.

The evidence provided was incomplete and failed to establish that the opposing parent had acted improperly or that the motion had reasonable grounds.

Leave to bring the motion was therefore denied.

The appellant father brought a motion for a stay pending appeal of an Ontario Court of Justice order that transferred the children’s primary residence from him to the mother.

The court reviewed the applicable framework for stays of custody orders under s. 74 of the Children’s Law Reform Act and considered jurisprudence addressing the RJR‑MacDonald test and its modification in family law contexts.

The court found the appeal raised a serious issue, particularly regarding whether the trial judge misapprehended evidence about an ex parte custody order and improperly discounted the status quo.

Given the young ages of the children and the risk of instability if they were moved pending the appeal, the court concluded that their best interests favoured maintaining the current arrangement.

A stay of the trial judge’s custody order was granted pending the appeal.

The applicant school board sought judicial review of two Human Rights Tribunal of Ontario decisions finding it discriminated against an employee by failing to accommodate her disability and ordering her reinstatement with damages.

The Divisional Court dismissed the application, finding the Tribunal's decisions on liability and remedy were reasonable and amply supported by the evidence.

The Court also rejected the applicant's arguments regarding procedural fairness and reasonable apprehension of bias.

Following the dismissal of the applicant's application for judicial review, the court received written costs submissions from the respondent Ministry.

The applicant did not provide submissions.

The court found the Ministry's requested costs to be fair and reasonable, awarding partial indemnity costs in the amount of $6,275.

Following earlier family law proceedings, the applicant sought costs on a full indemnity basis alleging the respondent failed to provide proper financial disclosure despite a prior court order.

The court considered Rule 24(10) of the Family Law Rules, which requires costs to be addressed promptly after each procedural step.

Relying on appellate authority, the court held that it could not award costs for earlier case conferences where no costs orders had been made at the time.

After removing those amounts and other fees previously ruled non-compensable, the court reduced the claimed amount and awarded costs on a partial indemnity basis.

The applicants sought certiorari to quash their committal to stand trial for first degree murder under s. 231(5)(e) of the Criminal Code.

They argued there was no evidence that the victim was killed while being forcibly confined or regarding the role each applicant played in the killing.

They also argued they were denied natural justice because the preliminary inquiry judge relied on post-offence conduct and specific medical evidence without giving them an opportunity to make submissions.

The Superior Court of Justice dismissed the applications, finding that the applicants were permitted to address the evidence and were not denied natural justice.

The court further held that even if there was a breach, the applicants suffered no prejudice because a committal was inevitable based on the pre-offence and post-offence circumstantial evidence, which was sufficient to permit a jury to infer a common intention and that each applicant played a substantial and integral role in the killing.