Harrison S. Arrell

The court considered whether Jheidon Serieaux, convicted of first-degree murder, should be found not criminally responsible on account of mental disorder (NCRMD) under section 16 of the Criminal Code.

After a bifurcated hearing, the court found that Mr. Serieaux suffered from schizoaffective disorder at the time of the offence, with persistent psychotic symptoms, and that he was not malingering.

The court preferred the evidence of Dr. Komer and Dr. Grimes over Dr. Gojer, concluding that Mr. Serieaux was unable to appreciate the nature and quality of his act or know that it was morally wrong.

Mr. Serieaux was found NCRMD and remanded to the Ontario Review Board.

The court sentenced Carl Richard for convictions arising from a shooting at a Hamilton bar, including discharging a firearm with intent, possession of a loaded prohibited firearm, and assault with a weapon.

The court considered aggravating and mitigating factors, including Richard's lengthy criminal record, the seriousness of the offence, provocation, and harsh pre-trial custody conditions.

A global sentence of 10 years was imposed, less pre-trial custody and mitigation for harsh conditions, resulting in approximately 5 years and 11 months to be served.

Nancy White was found guilty of two counts of sexual assault and two counts of sexual interference, with the sexual assault convictions conditionally stayed under the Kienapple principle.

The offender, aged 37, engaged in vaginal intercourse and oral sex with the 14-year-old victim, S.B., on two separate occasions in 2020, abusing her position of trust as a family friend.

The Crown sought a sentence of 7-8 years incarceration, while the defence requested a conditional sentence of two years less a day, followed by three years probation, citing the offender's new baby and health issues.

The court rejected the conditional sentence, emphasizing the need for denunciation and deterrence in child sexual assault cases, and found the health issues not to be exceptional circumstances.

Distinguishing the case from more severe precedents, the court imposed a global sentence of 3.5 years incarceration, to be served concurrently for the sexual interference convictions.

Additional orders included a DNA order, a 10-year weapons prohibition, 20-year SOIRA registration, and a 10-year no-contact order with the victim and his family, with the victim surcharge waived.

This endorsement addresses costs following a motion to strike claims.

The defendants, Anthony Volpini, Linda Aceti, and Mary Ann Ley, sought to strike claims against them for disclosing no cause of action.

The plaintiffs, Anthony Falasca and Aryle Developments Inc., successfully defended the motion against Volpini and Aceti, though they conceded the claim against Ley in their reply factum.

The court found the plaintiffs were the most successful party and entitled to partial indemnity costs.

However, the claimed hourly rates and time spent by plaintiff's counsel were deemed excessive, and the plaintiffs' late concession regarding Ley was noted.

Consequently, the court reduced the requested costs.

The defendants Anthony Volpini, Linda Aceti, and Mary Ann Ley brought a motion under Rule 21 to strike the plaintiffs' claims against them for disclosing no cause of action.

The court applied the "plain and obvious" test, assuming pleaded facts to be true unless patently ridiculous, and reading the statement of claim generously.

The motion to strike was dismissed for Volpini and Aceti, as the pleadings provided sufficient factual matrix for a cause of action.

The claim against Ley was struck as the plaintiffs did not oppose it.

The applicant, Richard Sherk, brought a motion for an interim payment out of court of funds held to the credit of the action.

The respondent, Mark Sherk, opposed the motion, arguing that the funds served as a 'cushion' for potential damages he might be awarded and that further reduction would be prejudicial.

The court granted the applicant's motion, finding the respondent's arguments without merit, consistent with prior decisions and the Divisional Court's ruling that the respondent had no right to the funds as security ahead of judgment.

This decision addresses the issue of costs following the resolution of an estate matter.

The applicant sought full indemnity costs after the respondent withdrew her notice of objection.

The respondent argued for no costs or a reduced amount.

The court found inappropriate conduct from both parties but determined the applicant was the more successful litigant.

Applying principles of reasonableness and proportionality, the court assessed costs at $5,000 inclusive of HST and disbursements, a reduction from the applicant's claim.

The applicant sought a declaration of beneficial ownership of a property, arguing for a bare trust or, alternatively, a constructive trust due to unjust enrichment.

The respondents, estates of former officers, claimed ownership.

The court found no express bare trust due to lack of certainty of intention and objects.

However, it found unjust enrichment of the respondents' estates and corresponding deprivation of the applicant, with no juristic reason for the enrichment.

A remedial constructive trust was imposed on the sale proceeds, with the applicant receiving 75% and the respondents' estates receiving 25%.

The plaintiff, Deborah Tilli, brought an action for damages for personal injuries sustained in a physical altercation with another student, Erica DiTomaso, at school.

The action also alleged negligent supervision against the Hamilton-Wentworth Catholic District School Board and its teachers.

The court found no liability on the part of the school board, determining that its supervision policy met the standard of a careful and prudent parent for 15-year-old students.

However, the court found Erica DiTomaso liable for battery, concluding that while the initial altercation was a "consent fight," DiTomaso used excessive and unreasonable force by banging the plaintiff's head on the floor.

Damages were mitigated by the plaintiff's provocation (name-calling), resulting in DiTomaso being 60% responsible and the plaintiff 40% responsible for her injuries.

Lexfund Inc. brought a motion for a limited Mareva injunction to protect funds held in court in an action involving Future Health Inc. and its trustee in bankruptcy, preventing their disbursement without notice to Lexfund.

Lexfund, a creditor of the deceased solicitor Lou Ferro (whose practice was intertwined with Future Health), alleged fraud and conspiracy regarding loans made to Ferro.

The court found a strong prima facie case of fraud and an inferred risk of asset dissipation.

The court granted a modified injunction, ordering $50,000 of the approximately $125,000 in court to be paid to Ellen Helden, with the balance remaining in court pending further order and notice to Lexfund.

The judge also appointed himself case management judge for related Lexfund actions.

This endorsement addresses costs for a motion brought by Daniel Sherk, seeking to compel Verge Insurance Brokers Limited to pay the balance of Deloitte's forensic accounting fees.

Daniel Sherk was unsuccessful in his motion.

The court awarded Verge partial indemnity costs, fixing them at $37,500.00, significantly less than the $79,629.31 requested on a substantial indemnity basis.

Additionally, Verge was awarded $1,500.00 for its involvement in Deloitte's separate application for payment.

The court emphasized reasonableness and proportionality in fixing costs, noting that the motion was uncomplicated and senior counsel's time appeared inordinate.

Deloitte, a forensic expert, brought a motion for costs against Daniel Sherk for an outstanding account, following a prior ruling that established Sherk's responsibility for the balance.

Sherk had agreed to judgment for the amount owed but disputed the basis and quantum of costs.

The court found Sherk's opposition was not "reprehensible, scandalous, or outrageous" to warrant substantial indemnity costs or sanctions.

The court awarded Deloitte costs on a partial indemnity basis, reducing the requested amount from $27,546.00 to $17,500.00, considering proportionality and Deloitte's failure to respond to Sherk's offer.

This endorsement addresses a costs dispute following the settlement of a personal injury claim.

The plaintiffs' action had settled, and the infant plaintiff's settlement was approved.

The remaining issue was the allocation of costs between two sets of defendants: 1583170 Ontario Inc. (the plaza owner) and the Big Bear Food companies (the franchisor).

Despite other parties agreeing to release the Big Bear Food companies early in the litigation, 1583170 Ontario Inc. insisted they remain, leading to warnings that costs would be sought against them.

The court found that the Big Bear Food companies were entitled to partial indemnity costs from 1583170 Ontario Inc. While the Big Bear Food companies requested over $80,000, the court awarded $35,000, inclusive of disbursements and HST, emphasizing reasonableness, proportionality, and the limited exposure and role of the Big Bear Food companies in the overall litigation.

The defendant Daniel Sherk moved for the plaintiffs (Verge Insurance Brokers Limited et al.) to pay the total costs incurred by Deloitte Forensic Inc. for recreating, preserving, and analyzing 79 backup tapes.

The court reviewed previous orders by Quinn J. and Turnbull J., which stipulated that while Verge had an obligation to produce relevant documents from the tapes, Daniel's subsequent audit by Deloitte was generally at his own expense.

The court found that Verge had already paid for Deloitte's analysis of the initial 13 tapes as ordered by Turnbull J. due to Verge's initial non-compliance.

However, Daniel's motion for Verge to cover the additional costs for the remaining 66 tapes (approximately $280,000) was dismissed, with the possibility of rearguing these costs as disbursements at trial.

The court also denied Deloitte's claim for interest on the $67,613.99 already paid by Verge, as Deloitte had failed to cash the cheque promptly.

The defendants brought a summary judgment motion seeking dismissal of the plaintiff's claim based on the expiry of the two-year limitation period under the Limitations Act, 2002.

The plaintiff argued the limitation period had not expired or, in the alternative, that there were genuine issues requiring a trial.

The court found that the plaintiff's decision to forebear from suing earlier, based on promises of payment and a long-standing business relationship, was reasonable.

The court also determined that there were serious credibility issues and disputed facts regarding the nature of the contracts and payments, making it impossible to dispose of the matter summarily.

The motion for summary judgment was dismissed, requiring a full trial on the merits.

Clark Eric Sauve was convicted of second-degree murder of his wife, Linda Sauve.

The court considered aggravating factors including attempts to deflect culpability, lack of remorse, elements of planning, use of a gun, and domestic homicide.

Mitigating factors included his age (62), lack of criminal record, prior good character, and significant health issues and depression.

The court applied sections 745(c) and 745.4 of the Criminal Code to determine parole ineligibility.

Citing R. v. Shropshire and R. v. McKnight, the court set the parole ineligibility period at 12 years, emphasizing denunciation and general deterrence.

The accused was convicted of possession of cocaine for the purpose of trafficking and possession of proceeds of crime.

The Crown sought a penitentiary term of 2 years, while the defence proposed a conditional sentence of 2 years less a day with strict house arrest.

The court considered the principles of sentencing, including denunciation, deterrence, and rehabilitation, and applied the criteria for a conditional sentence from *R. v. Proulx*.

Given the offender's lack of criminal record, strong family support, and low risk of re-offending, the court found a conditional sentence appropriate, concluding it could achieve punitive and restorative objectives effectively.

The accused brought a motion to quash a search warrant and exclude evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms, arguing that the Information to Obtain (ITO) contained misleading information and material omissions.

The warrant authorized a search of the accused’s rural property, resulting in the seizure of marijuana plants, firearms, and other drug-related items.

The court applied the Garofoli framework to assess whether the issuing justice could have granted the authorization based on the record, including information provided by multiple confidential informants.

The court found the informants’ information to be credible, mutually corroborative, and sufficiently detailed to establish reasonable and probable grounds.

The motion to quash the warrant and exclude the evidence was dismissed.

Former union members sued a union, its local, and trustees of a health and welfare trust seeking an accounting and payment of alleged surplus contributions accumulated in a “dollar bank” benefit system after their expulsion following employer decertification.

The defendants brought a Rule 21 motion to strike the claim for disclosing no cause of action and argued the Superior Court lacked jurisdiction.

The court held the motion was improperly brought without leave after the matter had been set down for trial and was not brought promptly, as the pleadings had been unchanged for over three years.

In any event, the claim raised numerous factual issues requiring evidence, including the interpretation of trust agreements, the effect of an employee benefit booklet, and entitlement to credits upon termination of union membership.

The court also held that the Superior Court had jurisdiction because issues of fiduciary duty and punitive damages fell outside the Labour Relations Board’s authority.

The accused applied for a stay or exclusion of evidence under ss. 8 and 24(2) of the Charter after police discovered cocaine and cash during a vehicle stop.

The defence argued the traffic stop was a pretextual ruse based on a hunch about drug activity.

The court held that the officer had lawful authority under s. 216(1) of the Highway Traffic Act to stop the vehicle to verify licensing and investigate suspicious circumstances.

Drugs became visible when the accused exited the vehicle, providing reasonable grounds for arrest and a search incident to arrest.

The court also found the subsequent strip search at the station reasonable under the principles set out in Golden.