Helen M. Pierce

The appellant, Zachary Leonard, appealed a decision where a reviewing judge, upon a breach of a conditional sentence, collapsed consecutive conditional sentences and ordered a custodial sentence that exceeded the maximum allowable for summary conviction offences.

The Superior Court of Justice considered whether consecutive conditional sentences merge for the purpose of reviewing a breach and if the reviewing judge exceeded her jurisdiction.

The court found that conditional sentences do not merge for breach review purposes and that the reviewing judge erred in principle by imposing a custodial sentence of 207 days, which exceeded the 180-day maximum for summary conviction offences under the Criminal Code.

The appeal was allowed, the sentence adjusted, and the appellant ordered released to resume his conditional sentence.

The applicants, Gina Gustafson and Juanita Curle, sought an order to wind up two corporations, Norall Group Inc. and Norall Group Contracting Inc., and a declaration of share ownership.

The respondents, Bruce Johnson and Allan Curle, opposed the winding up and claimed that the applicants held their shares in trust for their husbands.

The court found that the shares were validly gifted to the wives, rejecting claims of estoppel by convention, resulting trust, and constructive trust.

The court determined that the corporations had become dysfunctional due to management disputes, tax evasion convictions of the directors, and cessation of business, which prejudiced the shareholders.

Consequently, the court ruled it was just and equitable to wind up the corporations.

Following separation and a prior custody order granting joint custody with the children residing with the mother, the applicant sought current and retroactive child support while the respondent sought changes to access arrangements.

The existing order had suspended child support due to the significant travel required for access after the mother relocated with the children.

The court held that travel expenses for access do not replace the obligation to pay child support and that reasonable arrangements for child support must be ensured under the Divorce Act.

The respondent was ordered to begin paying guideline child support based on his income and to pay retroactive support from the date the application was commenced.

The court otherwise largely upheld the existing access structure, making only a minor order regarding the children’s communication device.

The defendants sought leave to appeal to the Divisional Court after a motion judge dismissed their motion to strike portions of the plaintiffs’ statement of claim alleging intentional interference with economic relations.

The action alleged that the defendants disseminated defamatory communications to customers and stakeholders and intimidated customers in an effort to disrupt business relationships.

The court considered the test under Rule 62.02(4) of the Rules of Civil Procedure governing leave to appeal.

It found a conflicting decision regarding the sufficiency of pleadings and whether material facts may be supplied only after examinations for discovery.

Concluding that the issues raised a serious question about the correctness of the order and warranted appellate consideration, the court granted leave to appeal on all issues.

A housing co-operative applied for a writ of possession following termination of a member’s membership and occupancy rights for permitting a non-member partner to reside in the unit beyond the permitted period.

The respondent, who had disabilities and relied on assistance from her partner, argued that eviction was unreasonable and discriminatory.

The court reviewed the board’s decision under a reasonableness standard and found the board relied on irrelevant prior complaints and failed to properly consider the partner’s membership application.

The evidence did not support concerns about misconduct, overcrowding, or funding risk.

Relief from forfeiture was granted and the writ of possession refused.

In a medical negligence action arising from alleged negligent chiropractic treatment, the plaintiffs moved to strike portions of the statement of defence referring to a professional complaint made to the College of Chiropractors, sought a “lesser and better” affidavit of documents excluding the complaint materials, and requested that the defendant be examined for discovery in Toronto.

The court interpreted s. 36(3) of the Regulated Health Professions Act, 1991 as barring the admissibility of documents prepared for regulatory proceedings but not the pleading of facts such as the timing of a complaint.

The court held that the defence’s reference to the timing of the plaintiff’s complaint did not plead a prohibited “report, document or thing” and could remain.

The court further declined to order a revised affidavit of documents, holding that admissibility issues and use of prior inconsistent statements should be determined by the trial judge.

The request to compel discovery in Toronto was also dismissed, with the court criticizing the motion as strategic and improper.

The defendants brought a motion for summary judgment dismissing a subrogated fire loss claim as statute-barred under the Limitations Act, 2002.

The fire occurred after a contractor left staining materials in a plastic bag on a deck, allegedly causing spontaneous combustion.

The defendants argued the claim was discovered immediately after the fire in August 2008, making the September 2010 action out of time.

The court held the claim was not discoverable until the investigation revealed that stain-soaked rags likely caused the fire, which occurred on September 25, 2008.

Because the statement of claim was issued within two years of that date, the action was timely and summary judgment was refused.

On a motion for temporary custody in a high-conflict matrimonial dispute, each parent sought sole custody, exclusive possession of the matrimonial home, and related relief.

The court considered extensive affidavit evidence concerning caregiving history, allegations of domestic violence, and the parties’ respective ability to support the children’s relationship with the other parent.

Applying the best interests test under s. 16 of the Divorce Act, the court found that both parents had historically participated in caregiving but expressed concern that the mother’s hostility toward the father risked undermining the children’s relationship with him.

On an interim basis, the father was granted custody and exclusive possession of the matrimonial home, with the mother receiving regular parenting time.

The Office of the Children’s Lawyer was requested to conduct a social work investigation for purposes of the eventual trial.

A mother sought custody, child support, retroactive support, section 7 expenses, and enforcement remedies after the father failed to participate in the proceedings and failed to pay support following separation.

The court imputed income to the father at $60,000 during periods where he had the capacity to work as a journeyman electrician and later used his Ontario Disability Support Plan income to calculate ongoing support.

Retroactive child support and section 7 expenses were awarded along with ongoing support obligations.

To secure payment of arrears and future support, the court ordered the transfer and vesting of one-half of the father’s locked-in RRSP pursuant to s. 66(4) of the Pension Benefits Act.

The father was also ordered to obtain life insurance naming the child as beneficiary to secure ongoing support.

The applicant mother brought a motion for interim custody, child support, and spousal support following the parties’ separation.

A preliminary issue arose as to whether a prior custody and support order made during an earlier separation remained in force after the parties reconciled for several years.

The court held that the reconciliation terminated the earlier order, requiring the court to determine custody and support afresh.

On an interim basis, the court granted the mother sole custody of the child, established an access schedule for the father, fixed the father’s income for support purposes, and ordered interim child and spousal support.

The applicant brought a motion concerning parenting time, child support, and spousal support following separation.

The court ordered an interim shared parenting arrangement with the children residing with each parent on alternate weeks.

The principal financial issue concerned whether annuity payments from a structured settlement arising from a catastrophic personal injury should be treated as income for child support purposes.

The court held that only the portion of the settlement attributable to loss of earning capacity should be included in income and excluded portions intended for future care and personal damages.

Based on this calculation, the respondent’s income for support purposes was set at a reduced amount and child support and interim spousal support were ordered.

Following a long-term marriage of more than three decades, the parties disputed the quantum and duration of spousal support after separation and retirement-related income changes.

The applicant spouse had been a homemaker for most of the marriage and suffered from significant health issues, limiting her ability to return to the workforce.

The court found that the respondent spouse retained sufficient earning capacity through employment, pension, and Canada Pension benefits to pay support.

Applying the Spousal Support Advisory Guidelines and the compensatory principles underlying long-term marriages, the court ordered indefinite spousal support of $3,600 per month until pension division, reducing to $2,500 monthly thereafter.

Requests for indexing and for the court to fix arrears were dismissed.

The accused was charged with sexual assault alleged to have occurred in the mid‑1980s, criminal harassment in 2011, and two breaches of recognizance conditions.

The court found that the complainant’s evidence regarding a single instance of non‑consensual intercourse was undermined by inconsistencies, omissions in prior statements, and surrounding circumstances of a long‑term consensual relationship that continued for years thereafter.

The Crown also failed to prove the elements of criminal harassment, including repeated communications and a reasonable fear for safety, particularly given ongoing intermittent contact initiated by the complainant and her family.

Evidence relating to the alleged breaches of recognizance did not establish the required mens rea for the offences.

All charges were dismissed.

The Crown appealed an Ontario Court of Justice order appointing amicus curiae for a self‑represented accused charged with failing to file income tax returns under s. 238(1) of the Income Tax Act.

The trial judge had appointed amicus on the basis that the accused struggled to understand disclosure and court procedure, and that the appointment could improve trial fairness and efficiency.

On appeal, the Superior Court held that the proper test is whether appointment of amicus is necessary to prevent a failure of justice.

The court found the case was simple, the potential penalties modest, and the accused capable of understanding the proceedings with assistance from the court and existing resources.

The appointment of amicus was therefore unnecessary and the order was quashed.

Following a seven‑day construction lien trial in which the plaintiff obtained judgment exceeding its pre‑trial offer to settle, the court determined the appropriate costs award.

The plaintiff sought elevated costs relying on Rule 49.10 and alleged reprehensible litigation conduct by one of the defendants.

The court held that the offer to settle engaged Rule 49.10 and that the defendant’s conduct at trial— including untruthful testimony, refusal to admit obvious facts, late allegations of deficiencies, and unfounded accusations of dishonesty— constituted reprehensible conduct that lengthened the trial.

Substantial indemnity costs were therefore appropriate, subject to reductions for certain law clerk and client‑incurred expenses considered overhead or not recoverable.

The defendants were ordered to pay costs totalling $88,679.30.

The appellant appealed a conviction for sexual assault involving a young child.

The conviction had been based on circumstantial evidence that the accused had placed his arm under a blanket where the child was sleeping and the child awoke startled, asking what he was doing.

The appellate court applied the unreasonable verdict test and held that the evidence did not establish beyond a reasonable doubt that any touching was intentional or sexual in nature.

The circumstances were equally consistent with the accused, who was intoxicated, entering a dark bedroom to find a place to sleep and inadvertently touching the child.

The court concluded the inference of sexual assault was not the only reasonable inference available on the evidence and allowed the appeal.

The applicants sought removal of an attorney for property and appointment of themselves as guardians of their mother's property and person under the Substitute Decisions Act, 1992.

Capacity assessments established that the mother was capable regarding personal care and capable of appointing an attorney for property, although incapable of managing property.

The evidence also indicated she did not wish the applicants appointed as guardians and was satisfied with the existing attorney.

The court held that a guardianship order was unnecessary because the existing power of attorney constituted a less restrictive alternative under s. 22(3) of the Act.

The application for guardianship was dismissed, but the court ordered the attorney to pass accounts given that more than ten years had elapsed since the last accounting.

The bankruptcy trustee applied for court approval of her statement of receipts and disbursements and sought increased remuneration in administering a bankruptcy estate.

The court reviewed the trustee’s fees under s. 39 of the Bankruptcy and Insolvency Act and the jurisprudential principles governing trustee compensation.

While the estate involved complications caused by the bankrupt’s lack of disclosure and required court appearances and investigations, the court found several billing entries improper, including duplication of court preparation time, excessive travel charges, and charges for clerical work that constituted office overhead.

Applying a value-based assessment of services rendered to the estate, the court reduced the trustee’s fees accordingly.

The trustee’s remuneration was allowed in a reduced amount after disallowing specific items.

The Crown appealed a summary conviction acquittal on a charge of operating a motor vehicle with blood alcohol exceeding the legal limit.

The respondent argued the appeal was not properly constituted because the notice of appeal had not been served within the required time.

The court considered whether it had jurisdiction to hear the appeal where service of the notice of appeal occurred after the prescribed period and the Crown sought retroactive validation of the service.

Applying authorities governing extension of time and service requirements, the court held that service out of time could not be ratified nunc pro tunc and that proper service is a prerequisite to appellate jurisdiction.

As the Crown had not obtained an order extending time prior to service and failed to justify the delay under the applicable factors, the court lacked jurisdiction to hear the appeal.

Following two unsuccessful defence motions seeking to adjourn a scheduled construction lien trial and introduce a late expert report, the court addressed costs consequences.

The court found that the motions were tactical attempts to delay the proceedings and manipulate the Rules of Civil Procedure after a trial date had already been scheduled.

Substantial indemnity costs were awarded against the defendants for both motions as a sanction for litigation conduct intended to frustrate the plaintiff’s claim and waste court resources.

The court reduced certain hourly rates claimed but fixed costs on a substantial indemnity basis for each motion.

The defendants were ordered to pay fixed costs totaling $6,309.12 for the June motion and $5,761.02 for the August motion.