Howard Leibovich

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.

The plaintiffs brought a motion to enforce a prior order prohibiting the defendants from dealing with a property, arguing that the defendants' default on Minutes of Settlement allowed them to continue the action under Rule 49.09(b).

The plaintiffs also sought a contempt order.

The third-party purchasers of the property sought to intervene.

The court dismissed the motion to intervene, finding it would not make a useful contribution.

The court also dismissed the plaintiffs' motion, holding that Rule 49.09(b) does not apply to negotiated Minutes of Settlement, and that the prior prohibition order had been set aside and was no longer in effect.

The plaintiffs' remedy was to move for judgment on the settlement.

The applicant sought a stay of charges for unreasonable delay under section 11(b) of the Charter, arguing the 42-month delay exceeded the 30-month Jordan threshold.

The Crown contended that defence delay and the COVID-19 pandemic, an exceptional circumstance, reduced the net delay below the threshold.

The court dismissed the application, finding that after deducting 42 days for defence unavailability in setting the preliminary inquiry and 8 months for the defence's waiver of 11(b) rights, plus 5.5 months for pandemic-related delay, the net delay was approximately 27 months and one week, which was reasonable and below the presumptive ceiling.

The two accused were charged with sexual assault causing bodily harm following an incident in a van outside a party.

The Crown alleged the complainant was highly intoxicated, blacked out, and did not consent or lacked the capacity to consent to sexual intercourse with both men.

The accused gave statements to police claiming the sexual activity was consensual.

The trial judge rejected the accuseds' statements but found the complainant's evidence regarding her level of intoxication and blackouts insufficiently reliable to prove lack of subjective consent or lack of capacity beyond a reasonable doubt.

Both accused were acquitted.

The offender pleaded guilty to possessing fentanyl for the purpose of trafficking.

The Crown sought a four-year penitentiary sentence, while the defence sought a conditional sentence.

The court noted the offender's lengthy criminal record and the significant amount of fentanyl involved, but also recognized his exceptional rehabilitative efforts and success in overcoming a long-standing drug addiction.

Applying recent appellate jurisprudence, the court found that returning the offender to jail would undermine his rehabilitation and serve little useful purpose.

A conditional sentence of two years less a day was imposed, along with a 10-year weapons prohibition and a DNA order.

The applicant corporation sought to rectify a directors' resolution that declared capital dividends, after discovering its accountant had miscalculated the available balance in the capital dividend account, resulting in unintended tax consequences.

The court dismissed the application, finding that the resolution accurately recorded the parties' agreement to issue the specific dividend amounts recommended by the accountant.

Applying the Supreme Court's decision in Fairmont Hotels, the court held that rectification cannot be used to retroactively amend an agreement merely to avoid unanticipated tax liabilities, and noted the applicant had alternative remedies available.

The accused, charged with impaired driving causing death, brought a Charter s. 8 application to exclude blood alcohol evidence obtained via a search warrant.

The accused argued the Information to Obtain (ITO) contained misleading statements and that the police unlawfully seized his blood by placing a seal on a vial at the hospital before obtaining the warrant.

The court conducted a sub-facial review of the ITO, excised minor errors, and found the amplified record still provided reasonable grounds to issue the warrant.

The court also held, following appellate precedent, that placing a seal on a blood vial taken for medical purposes and left in the hospital's control did not constitute an unreasonable seizure.

The application was dismissed.

The offender was convicted of sexually abusing his stepdaughter between the ages of four and twelve.

The Crown sought a seven-year penitentiary sentence, while the defence sought a conditional sentence or reformatory term, citing the offender's mental health issues, lack of criminal record, and the historical nature of the offences.

Applying the principles from R. v. Friesen, the court emphasized denunciation and deterrence for sexual offences against children.

The court sentenced the offender to five years' imprisonment, balancing the profound harm caused to the victim against the offender's mental illness and rehabilitative efforts.