Hugh K. O'Connell

The applicant sought an order of mandamus compelling a justice of the peace to proceed with the respondent's trial for a speeding infraction.

The justice of the peace had previously ruled that the court lost jurisdiction over the respondent because administrative adjournments during the COVID-19 pandemic were not properly recorded on the offence notice.

The Superior Court found that the justice of the peace erred, as the respondent had attorned to the court's jurisdiction by appearing via a representative, and the administrative adjournments complied with COVID-19 directives.

The application for mandamus was granted.

The defendants brought a motion to discontinue the plaintiff's action pursuant to Rules 23.01(1)(b) and 23.04(1) of the Rules of Civil Procedure.

The self-represented plaintiff agreed to the discontinuance, acknowledging that the case would be over.

The court granted the order on consent, noting the plaintiff's voluntary agreement and thanking counsel for their professionalism.

The plaintiff sought equitable relief from forfeiture of a substantial deposit on a real estate purchase agreement after defaulting on a payment.

The defendant vendor sought full forfeiture, arguing the deposit was liquidated damages.

The court applied the two-part test for relief from forfeiture, assessing whether the deposit was disproportionate to the vendor's damages and if its retention would be unconscionable.

The court found no unconscionability, noting the purchaser was a foreign buyer who agreed to a larger deposit, had legal representation, and the vendor had granted multiple indulgences.

The deposit amount was deemed commercially reasonable given the circumstances.

Summary judgment was granted in favour of the vendor, allowing full forfeiture of the deposit.

The plaintiffs brought an action against their insurer, TD Insurance, for various claims including bad faith, breach of contract, and mental distress, stemming from an accident in 2003 and subsequent denial of benefits.

Both parties brought motions for summary judgment, and the plaintiffs also sought to strike the defendant's claim.

The defendant's motion for summary judgment was based on the expiry of the applicable limitation periods under the Limitations Act and the Insurance Act.

The court found that all of the plaintiffs' claims were statute-barred, having been commenced some 12 years after the accident and discovery of the claims.

The court dismissed the plaintiffs' allegations of bad faith and lack of production due to insufficient evidence.

Consequently, the defendant's motion for summary judgment was granted, and the plaintiffs' motions were dismissed.

Following a trial where the plaintiffs were unsuccessful in their will challenge, the court determined the issue of costs.

The court awarded costs to two non-party lawyers who testified at trial, payable out of the estate.

Applying the 'loser pays' principle, the court ordered the plaintiffs to pay the successful defendant's costs on a partial indemnity basis up to the date of a reasonable settlement offer, and on a substantial indemnity basis thereafter.

However, the court ordered $36,000 of the plaintiffs' discovery costs to be paid out of the estate, which was deducted from the costs payable to the defendant.

The appellant appealed his summary conviction and sentence for fraud under $5,000, arising from the installation of a skimming device on an ATM.

The appellant argued the verdict was unreasonable based on circumstantial evidence, the trial judge misapprehended the evidence, the reasons were insufficient, and a discharge should have been granted.

The summary conviction appeal court dismissed the appeal, finding the trial judge's reasons were sufficient, the verdict was reasonable and supported by the evidence, and the sentence was fit and not contrary to the public interest.

The defendant insurer brought a motion to amend its statement of defence to allege that the plaintiffs committed arson and fraud, eight years after the fire that destroyed the plaintiffs' business.

The insurer had originally only pleaded a lack of co-operation.

The court dismissed the motion, finding that the extreme and unexplained delay in seeking the amendment would cause non-compensable prejudice to the plaintiffs, who had lost the opportunity to properly investigate the allegations when the evidence was fresh.

The court also noted concerns regarding the insurer's duty of utmost good faith.

The third party moving parties sought summary judgment dismissing allegations of contributory negligence arising from a motor vehicle collision at an intersection where the opposing driver failed to yield at a stop sign.

The responding defendants argued that issues of speeding and failure to keep a proper lookout created a genuine issue requiring trial.

The court reviewed the discovery evidence, witness testimony, and the defendant’s guilty plea to failing to yield.

It concluded there was no evidence supporting contributory negligence by the driver who had the right of way and that the collision was unavoidable from his perspective.

Summary judgment was granted in favour of the moving parties.

The applicants sought permanent injunctive relief arising from extensive dumping of fill on rural property without the required permits and contrary to municipal by-laws, the Building Code Act, planning controls, and Oak Ridges Moraine legislation.

The responding parties argued the material was only topsoil intended for a future tree nursery and said the activity was protected as an agricultural use.

The court held the evidence established massive unauthorized fill placement, substantial alteration of grade and drainage, and conduct far more akin to a commercial fill operation than a normal farming practice.

The asserted future farming use and business licence did not excuse non-compliance, and no application had been made to the Normal Farm Practice Protection Board.

Permanent injunctive and related relief were granted.

The applicant sought certiorari to quash an order committing him to stand trial following a preliminary inquiry on charges of sexual assault and sexual touching of a person with a disability in a position of trust.

The applicant argued the preliminary inquiry justice erred by committing him for trial despite the absence of direct identification evidence linking him to the alleged perpetrator.

The court reviewed the circumstantial evidence, including the complainant’s description of a staff member named “Terry,” testimony from a staff supervisor who knew the accused, and evidence that the accused had been suspended following the complaint.

Applying the principles in Arcuri and Charemski, the court held that the evidence constituted some evidence of identification sufficient to permit a reasonable jury to infer identity.

The application to quash the committal was therefore dismissed.

The accused brought a certiorari application seeking to quash a committal for trial following a preliminary inquiry, arguing that the preliminary inquiry judge lost jurisdiction by refusing a requested adjournment after counsel was discharged.

The reviewing court examined the procedural history, including numerous adjournments and opportunities afforded to the accused to retain counsel.

The court held that the preliminary inquiry judge acted within jurisdiction and exercised appropriate control of the proceedings.

There was ample evidentiary basis for committal and no breach of natural justice or procedural fairness.

The application to quash the committal was dismissed.

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

The trial judge had excluded breath test evidence after finding a s. 8 Charter breach, concluding the officer failed to properly consider the possibility of fresh mouth alcohol before administering an approved screening device.

The appeal court held the trial judge misapprehended the evidence and incorrectly applied the governing legal principles regarding reliance on ASD results and the obligation to delay testing.

There was no evidentiary basis requiring the officer to suspect fresh mouth alcohol or delay the test.

The acquittal was set aside and a conviction substituted, with the matter remitted for sentencing.

The respondent was successful on an appeal from a Small Claims Court decision and sought costs on a full indemnity basis, alleging the appellant engaged in deliberate delay and frivolous litigation.

The appellant argued for partial indemnity costs.

The court rejected the request for full indemnity, finding no reprehensible or egregious conduct by the appellant.

Costs were fixed at $5,500 inclusive of tax and disbursements, taking into account the preparation required for a fresh evidence application.

The defendants and an added party sought leave to appeal to the Divisional Court from an order permitting the plaintiff to add additional defendants to an action despite the expiry of the limitation period.

The moving parties argued the order conflicted with other jurisprudence and raised issues of general importance concerning the effect of limitation periods on motions to add parties.

The court held that the decision under appeal properly followed binding Divisional Court authority holding that the relevant date for limitation purposes is the service of the motion to add a party, not the date the motion is argued.

Finding no conflicting authority, no reason to doubt the correctness of the order, and no issue of general importance, the court refused leave to appeal.

Following the granting of summary judgment dismissing a civil action against federal parole officers, the court determined the appropriate costs award.

The defendants sought substantial indemnity costs, arguing that the plaintiff’s litigation conduct was vexatious, misleading, and devoid of merit.

The court found that the plaintiff repeatedly attempted to mislead the court, engaged in deceptive conduct, unnecessarily complicated the proceedings, and pursued a claim lacking any legal merit.

Applying the principles of reasonableness, fairness, proportionality, and Rule 57 of the Rules of Civil Procedure, the court held that the conduct justified substantial indemnity costs.

Costs were fixed at $70,000 inclusive of disbursements and HST.

The appellant appealed a Small Claims Court decision finding him liable for unjust enrichment for property management services provided by the respondent.

The appellant argued that the trial judge made palpable and overriding errors in fact-finding and credibility assessments, and erred in quantifying damages without expert evidence on fair market value.

The Divisional Court dismissed the appeal, finding ample evidence that the appellant continued to demand services and that the trial judge's credibility findings and damages assessment based on historical billing were reasonable.

The defendants brought a motion to strike the plaintiff's Second Amended Statement of Claim, which alleged malicious prosecution, conspiracy, and various other torts against numerous police officers and Crown attorneys.

The plaintiff, a self-represented litigant, also sought to rely on a Draft Fresh as Amended Claim.

The court granted the motion to strike, finding that the claims failed to disclose a reasonable cause of action, were statute-barred by the Limitations Act, and constituted an improper collateral attack on the plaintiff's prior criminal convictions.

Leave to amend the claim was denied.

The applicants sought certiorari to quash their committal for trial following a preliminary inquiry involving alleged drug trafficking and firearms offences connected to a stash house.

They argued the preliminary inquiry justice exceeded jurisdiction by relying on speculative inferences to find some evidence of knowledge and control over the contraband necessary to establish constructive possession.

The reviewing court held that the preliminary inquiry justice properly considered the totality and context of the circumstantial evidence, including intercepted communications, surveillance, and the conduct of alleged co-conspirators.

The inferences of knowledge and control supporting constructive possession and conspiracy were reasonably available on the record.

As a result, no jurisdictional error was established and the committal decision stood.

Following a successful medical negligence trial, the plaintiffs sought costs after achieving complete success on liability and damages of $190,000.

The plaintiffs had made a Rule 49 offer of $150,000 inclusive of prejudgment interest prior to trial and argued that the judgment exceeded the offer by 31%, entitling them to substantial indemnity costs from the offer date.

The defendant argued the claimed costs were disproportionate to the damages and that agreeing to damages prior to trial prevented a determination that the offer had been beaten.

The court found the plaintiffs had repeatedly attempted settlement and that the defendant displayed intransigence in proceeding to trial despite the standing offer.

Applying the principles of fairness, reasonableness, and the reasonable expectations of the parties, the court awarded the plaintiffs their full claimed costs and disbursements.

The Town of Aurora brought an application seeking a declaration on whether the Municipal Conflict of Interest Act applies to deem an indirect pecuniary interest to a councillor appointed to the board of a non-share capital corporation.

The court held that section 2 of the Act does not apply because a non-share capital corporation does not offer securities to the public.

Furthermore, the court found that even if an indirect pecuniary interest existed, the exemptions under subsections 4(h) and 4(k) would apply, as the appointment serves a public duty and any interest would be too remote to influence the councillor.