Howard Leibovich

The applicants sought a declaration regarding the scope of their right of way over the respondent's property to access their cottage, and an order that the respondent remove a gate and fences he installed.

The court held that the easement allowed the applicants to access their property from any point along the northern or eastern borders, but did not grant an ancillary right to park on the right of way.

The court found that the respondent's installation of a fence substantially interfered with the applicants' use of the right of way and ordered its removal, but held that the padlocked gate did not constitute a substantial interference.

The accused was charged with three counts of second-degree murder for the killings of his partner and her two children.

The accused admitted to the killings but argued he lacked the requisite intent for murder due to a cocaine-induced psychosis.

The court rejected the intoxication defence, finding the accused's actions and post-offence conduct inconsistent with a psychotic state.

The court found the accused had the specific intent for murder for all three victims and found him guilty on all counts.

The Crown prosecuted two accused after police surveillance of a licensed firearms purchaser culminated in a stop of a vehicle containing a Glock 17 in an unlocked case on the front passenger floor.

One accused testified that the purchaser accidentally left the firearm in the vehicle and that the pair were on their way to return it, invoking a theory of innocent temporary possession.

The court rejected that evidence as internally inconsistent, contrary to the physical evidence, and implausible, and applied the principles governing possession by requiring proof of knowledge and control.

The court found the circumstantial evidence overwhelmingly established that both accused acted together to acquire the firearm, and convicted both on the firearm counts.

The driver was also convicted on a guilty plea to dangerous operation arising from the police chase.

During a trial for three counts of second-degree murder, a voir dire was held to determine the voluntariness of the accused's videotaped statement to police.

The accused, who was self-represented with the assistance of amicus curiae, argued the statement was involuntary due to excessive force during arrest, oppressive conditions in custody, and a lack of an operating mind.

The court found that the police use of force was a reasonable response to the accused's resistance, the custody conditions were not oppressive, and the accused demonstrated an operating mind throughout the interview.

The statement was ruled voluntary and admissible.

Nathan Forsellino was convicted by a jury of sexual assault.

The Crown sought a penitentiary sentence of three and a half years, while the defence sought a conditional sentence of two years less a day or, alternatively, nine months.

The court, exercising its fact-finding role under s. 724(2) of the Criminal Code due to jury ambiguity, found beyond a reasonable doubt that the defendant forced sexual intercourse upon the victim, A.G., despite her objections and physical resistance, including placing a hand on her throat.

The court considered aggravating factors, such as the forced sexual intercourse and severe victim impact, and mitigating factors, including the defendant's lack of criminal record, strong community support, and low risk of re-offending.

The court determined that a conditional sentence was inappropriate due to the need for denunciation and deterrence in sexual assault cases.

The constitutional challenge to s. 742.1(f)(iii) was not addressed.

The accused was stopped for a traffic violation.

The police officer smelled freshly burnt marijuana and the accused admitted to smoking earlier.

The officer searched the vehicle under the Cannabis Control Act and found drugs.

The accused brought an application to exclude the evidence, arguing breaches of his s. 8 and s. 10(b) Charter rights.

The court found the officer lacked reasonable grounds to search the vehicle, violating s. 8, and that an unexplained 17-minute delay in providing rights to counsel violated s. 10(b).

Applying the Grant framework, the court excluded the evidence under s. 24(2), finding the Charter-infringing conduct serious and the impact on the accused's rights significant.

The applicant tenant brought an application seeking to have the court determine the market rate for a lease renewal and extend the contract, alleging the respondent landlord failed to negotiate in good faith.

The court reviewed the history of negotiations and found that both parties had negotiated in good faith but simply failed to reach an agreement.

The court also dismissed the applicant's alternative claims for compensation for leasehold improvements, noting the lease explicitly made such improvements the tenant's responsibility.

The application was dismissed.

The applicant, facing 14 charges including assault with a weapon and uttering death threats, sought a bail review under s. 520 of the Criminal Code after being detained following a preliminary inquiry.

He argued there was a material change in circumstances, including a new affidavit from the complainant and a proposed Charter challenge, and that the preliminary inquiry judge erred by failing to consider his status as a Black male under s. 493.2.

The Superior Court of Justice dismissed the application, finding no material change in circumstances, no error of law by the preliminary inquiry judge, and that the decision to detain on the secondary ground was not clearly inappropriate given the applicant's history of breaching a no-contact order and evidence of witness tampering.

The applicant tenant sought to renew a commercial lease, but the parties could not agree on the market rate for basic rent.

The applicant brought an application requesting the court to fix the market rate and extend the lease, arguing the respondent breached its duty to negotiate in good faith.

The court dismissed the application, finding that the lease's renewal clause contained a specific failure provision that revoked the renewal option if mutual agreement was not reached.

The court held it lacked jurisdiction to compel the landlord to accept an unagreed rent, and found no breach of the duty of good faith as both parties had negotiated genuinely but failed to agree.

The lease was extended by one month due to the respondent's delay tactics.

The Crown brought a motion to introduce evidence of the accused's prior discreditable conduct and the deceased's ante-mortem statements in a trial for second-degree murder.

The Crown sought to show the accused's animus and motive by introducing evidence of jealousy, arguing, and prior assaults.

The court applied the tests for prior discreditable conduct and threshold reliability for hearsay.

The court admitted evidence of recent threatening behaviour, jealousy, and a recent assault, finding the probative value outweighed the prejudicial effect and the statements met threshold reliability.

However, the court excluded evidence of older alleged assaults and a threat without context, finding them insufficiently reliable or probative.

The applicants, charged with firearms offences, brought a pre-trial motion to exclude evidence obtained from a forensic search of their cellphones.

They argued the Information to Obtain lacked reasonable grounds and the police failed to file a report to justice regarding the data analysis.

The court denied leave to cross-examine the affiant and upheld the validity of the warrant despite minor misstatements.

Although the court found a section 8 Charter breach due to the failure to file a report to justice for the data analysis, the evidence was admitted under section 24(2) as the breach was minor and technical.

The plaintiff transferred $96,000 to the defendant during their brief intimate relationship.

After the relationship ended, the plaintiff sued to recover the funds, claiming they were a loan, while the defendant argued they were a gift.

The court applied the presumption of resulting trust, placing the onus on the defendant to prove the transfers were gifts.

Finding the defendant's testimony not credible and the text messages equivocal, the court concluded the defendant failed to meet her onus and ordered her to repay the $96,000.

Following the dismissal of the plaintiff's action regarding a stolen RV, the successful defendants sought costs on a substantial indemnity basis, relying on a Rule 49.10 offer of $15,000.

The court found the offer was a token amount and not meaningful, awarding costs on a partial indemnity basis instead.

The court also reduced the claimed costs due to excessive preparation time billed by junior counsel, fixing the final costs award at $60,000 inclusive of HST and disbursements.

During a sexual assault trial, the accused brought an application to exclude photographs of an Instagram conversation and testimony regarding a deleted text message.

The accused argued the Instagram photos lacked authentication under the Canada Evidence Act and the text message testimony was hearsay.

The court dismissed the application, admitting the Instagram photos because the Crown met the modest threshold for authentication through the anticipated testimony of the witness.

The court also allowed the testimony regarding the deleted text message, ruling it was not hearsay as it was being led to prove the request was made, not for the truth of its contents.

The plaintiff purchased an RV from the defendants and left it at their dealership for storage until his campsite was ready.

The RV was stolen from the dealership's lot.

The plaintiff sued the defendants for negligence as a bailee.

The court found that the defendants were a gratuitous bailee and therefore only liable for gross negligence.

After reviewing expert evidence on the dealership's security system, the court concluded the defendants met the requisite standard of care and dismissed the action.

The offender pleaded guilty to operating a motor vehicle with methamphetamine causing death, operating while prohibited, and failing to comply with bail.

He crossed the center line and caused a fatal head-on collision.

The court weighed the severe aggravating factors, including his prior impaired driving record and driving prohibitions, against mitigating factors such as his guilty plea and remorse.

The court imposed a global sentence of 6 years imprisonment, reduced by 60 days for COVID-19 collateral consequences, and granted 1347 days of pre-sentence custody credit, leaving a remnant of 2 years and 53 days to serve.

A 12-year driving prohibition was also ordered.

The Crown appealed a trial judge's decision to stay proceedings against the respondent, an Indigenous offender who pled guilty to domestic assault and breach of recognizance.

The trial judge had stayed the charges, finding the respondent's s. 7 Charter rights were breached due to over-incarceration while awaiting a Gladue report that Aboriginal Legal Services (ALS) ultimately could not produce, and because ALS allegedly breached a court order to provide the report.

The Superior Court allowed the appeal, finding the respondent was actually detained on other charges, not just awaiting the report.

Furthermore, the trial judge only requested, not ordered, the report, and had no jurisdiction to order a non-party like ALS to produce one.

The stay was set aside and the matter remitted for sentencing.

The parties, who were in the middle of a divorce, brought competing interim motions regarding the parenting of their five-year-old daughter.

The respondent mother sought to relocate with the child from Whitby to Keswick, while the applicant father sought to increase his parenting time to an equal shared schedule.

The court dismissed the mother's relocation motion, finding it premature to decide before trial.

The court partially granted the father's motion, increasing his parenting time to better accommodate his schedule and minimize disruptions, but declined to order equal shared parenting on an interim basis due to conflicting affidavit evidence regarding the parties' ability to co-parent.

The self-represented applicant brought an application for habeas corpus, claiming his arrest for failing to appear and subsequent detention were unlawful.

He advanced Organized Pseudolegal Commercial Argument (OPCA) concepts, rejecting his legal name and the court's jurisdiction over him as a 'living man'.

The court dismissed the application, finding no valid legal foundation or reasonable grounds for his complaint, and noting that such jurisdictional arguments have been repeatedly rejected by the courts.

The court also noted the applicant had not exhausted his legal avenues, such as seeking a bail review.

The applicant, Alden Nunes, brought an application to exclude evidence (guns, fentanyl, ecstasy) obtained via a search warrant, arguing a violation of his s. 8 Charter rights.

The court found that the Information to Obtain (ITO) for the search warrant lacked sufficient grounds to believe evidence would be found at the searched residence (21 Redvers Street, Whitby), as the police failed to establish Mr. Moore's current residency there or investigate beyond his outdated bail conditions.

Despite the absence of police bad faith, the Charter-infringing conduct was deemed serious due to the lack of investigation and the high expectation of privacy in a dwelling.

Applying the Grant factors, the court concluded that admitting the evidence would bring the administration of justice into disrepute, and therefore excluded the evidence under s. 24(2) of the Charter.