Ian Carter

The plaintiffs brought an action for damages arising from catastrophic failures of emergency generators at a hospital.

Defendants SDMO and Kohler moved to stay proceedings, arguing lack of jurisdiction or that Ontario was not an appropriate forum.

The court found Ontario had jurisdiction simpliciter as the torts (property damage, failure to warn, negligent misrepresentation) occurred in the province.

The court also found the forum selection clause in the contract between SDMO and GAL Power was not properly before the court and would not apply to third parties or be enforceable against GAL Power.

Finally, the court determined Ontario was the most appropriate forum, considering the location of parties, witnesses, and evidence, and the existence of related proceedings.

The motion for a stay was dismissed.

The applicant, Marcus Pearson, sought a stay of proceedings under s. 11(b) of the Charter due to unreasonable delay.

He was charged with sexual assault offences, and the total delay from information sworn to trial completion was 26 months and 2 days, which is below the 30-month presumptive ceiling for Superior Court matters established in R. v. Jordan.

The applicant argued that the Crown's decision to prefer a direct indictment a year after the preliminary hearing was set caused unreasonable delay.

The court found that while the defence took meaningful steps to expedite proceedings, the applicant failed to demonstrate that the case took "markedly longer than it reasonably should have" particularly given that prosecutorial discretion in preferring an indictment is only reviewable for abuse of process, which was not alleged.

The application was dismissed.

The Crown appealed the acquittal of the respondent on an "over 80" charge, following a trial judge's finding of a s. 10(b) Charter breach and exclusion of breath results.

The trial judge had accepted the respondent's testimony that her request to call her mother was "obvious" in its purpose to facilitate finding a lawyer.

The appeal court found that the trial judge erred by failing to make a critical factual finding: whether the police officer knew or assumed the respondent's request to call a third party was for the purpose of facilitating her right to counsel.

Precedent requires the detainee to articulate this purpose, or for the officer to have such knowledge/assumption.

Without this finding, the s. 10(b) breach could not be established.

The appeal was allowed, and a new trial was ordered for the "over 80" charge.

The applicant sought a bail review to vary his release conditions, specifically a no-contact order with his wife, following charges of intimate partner violence.

The complainant provided a full recantation under oath, stating she had embellished the original allegations and wished to resume cohabitation.

The court applied the ladder principle and found that, given the recantation and the applicant's compliance with the original order, the no-contact condition was no longer necessary.

The application was granted, allowing contact subject to the complainant's written and revocable consent.

The Crown applied for a further detention order under s. 490(3) of the Criminal Code for three cell phones seized during a child pornography investigation.

Over the past year, police attempted 175 million passcodes using brute force attacks without success, representing an infinitesimal fraction of the 44 nonillion possible combinations.

The court dismissed the application, finding that further detention was not warranted because the evidentiary value of the phones remained non-existent while the respondent's privacy and property interests remained high.

The City of Kingston sought a permanent injunction to dismantle a homeless encampment in Belle Park, citing safety and public use concerns.

Respondents argued the By-Law prohibiting camping violated sections 7 and 15 of the Canadian Charter of Rights and Freedoms.

The court found that the By-Law was unconstitutional insofar as it prohibited homeless individuals from erecting temporary overnight shelter in public parks, as this grossly disproportionately affected their life, liberty, and security of the person.

However, the court did not extend this finding to daytime sheltering due to insufficient evidence.

The City's application for injunctive relief was dismissed because the proposed terms were too broad and did not comply with the ruling.

The Crown appealed a trial judge's decision to stay proceedings against the respondent for refusing an approved screening device sample.

The trial judge found a s. 9 Charter breach due to the respondent being arbitrarily detained for 74 minutes after arrest while the officer continued investigating Highway Traffic Act offences.

The appeal court upheld the finding of arbitrary detention, clarifying that placing a suspect in a police cruiser, of itself, requires reasonable necessity, and that the trial judge's reliance on *R. v. Aucoin* was correct.

However, the court remitted the matter to the trial judge to reconsider the appropriate remedy, as the Crown had not fully advanced arguments for alternative remedies at trial.

The appellant, David Zomou, appealed his convictions for impaired operation of a motor vehicle and refusal to provide a breath sample.

The appeal raised issues of reasonable apprehension of bias by the trial judge, arbitrary detention, sufficient grounds for arrest for public intoxication, and the voluntariness of the appellant's utterances.

The court found no reasonable apprehension of bias or arbitrary detention, and upheld the lawfulness of the arrest for public intoxication.

However, the court found that the trial judge erred in relying on inadmissible hearsay evidence to determine the voluntariness of the appellant's statements, which were crucial to the impaired operation conviction.

The appeal was allowed, and a new trial was ordered solely for the impaired operation charge, while the refusal conviction was upheld.

The defendants 1995636 Ontario Inc. and Lisa Bailey brought a motion seeking a stay of proceedings due to the plaintiff's alleged failure to timely disclose multiple settlement agreements with another defendant, 2495048 Ontario Inc. In the alternative, they sought severance of claims against them, arguing their involvement was discrete.

The court dismissed the motion for a stay, finding that the undisclosed agreements did not "entirely alter the landscape of the litigation" or change the adversarial position of the parties into a cooperative one.

The court also dismissed the motion for severance, determining that the test for joinder was met due to common questions of fact and law and interconnectedness between the claims across multiple properties, promoting efficiency and avoiding inconsistent judgments.

The applicant father brought a motion seeking interim parenting orders, and the respondent mother filed a cross-motion for interim relief.

The parties reached partial agreement, narrowing the issues to the expansion of the father's parenting time, including wrap-around weekends and mid-week overnights, and holiday schedules.

The court, applying the best interests of the child principle under the Children’s Law Reform Act, ordered an incremental increase in the father's parenting time, including an additional weekend overnight commencing in September and an every-other-week Wednesday overnight commencing in January 2024.

The court also made an interim order for Easter holiday parenting time and deferred decisions on other long weekends and summer holidays.

The appellant, Hany Komy, appealed his convictions for sexual assault and assault, arguing the trial judge misapprehended evidence regarding his credibility.

The Superior Court of Justice found that while the trial judge did misapprehend some evidence concerning the appellant's testimony about a complainant's hiring and training, this misapprehension was not material to the overall credibility assessment.

The trial judge had numerous other valid reasons for her negative credibility finding, including the appellant's combative demeanor, evasiveness, self-serving answers, and failure to comply with the rule in Browne v. Dunn.

The appeal was dismissed.

The Applicant Father brought a motion seeking interim orders regarding parenting time, decision-making, and communication, and to strike portions of the Respondent Mother’s pleadings for failing to provide court-ordered disclosure.

The Mother filed a cross-motion addressing similar issues.

The court granted the Father increased parenting time, ordered the Mother to provide full consent for the child's developmental services, and compelled her to complete outstanding financial disclosure.

The Mother was also ordered to pay the Father's costs due to her non-compliance with disclosure orders.

The court declined to grant sole decision-making responsibility to either parent, leaving that issue for a future trial.

Following a twelve-day trial on a motion to change regarding parenting and relocation, the successful party sought costs of $91,098.07.

The opposing party argued for each party to bear their own costs due to divided success and financial hardship.

The court found the moving party was clearly successful and entitled to costs, but declined to award full indemnity costs as the judgment was not more favourable than the offer to settle on all issues.

The court awarded costs of $45,000, applying reductions for the unnecessary use of second counsel and the opposing party's dire financial circumstances.

The appellant, Ali Mankal, appealed his conviction for operating a motor vehicle while impaired by drug.

The appeal centered on whether the trial judge materially misapprehended the Drug Recognition Expert's (DRE) opinion evidence regarding the cause of pinpoint pupils.

The defence argued that the impairment, including pinpoint pupils, could be attributed to a concussion, while the trial judge concluded it was solely due to drug impairment, relying on a misinterpretation of the DRE's testimony.

The appellate court found that the trial judge's misapprehension of this critical evidence played an essential part in the conviction, leading to a miscarriage of justice.

The accused faced charges of invitation to sexual touching, sexual interference, sexual assault, and criminal harassment arising from allegations by a younger cousin.

The court found the complainant's evidence on the sexual offence counts materially inconsistent, lacking in reliable detail, and insufficient to prove those allegations beyond a reasonable doubt, particularly in light of the accused's denial and the equivocal electronic communications.

On the criminal harassment count, however, the court rejected the accused's evidence, found repeated communications and related conduct overwhelmingly established, and held that the complainant subjectively feared for her safety, including her psychological and emotional security.

That fear was objectively reasonable given the volume, tone, threats, attendance at the complainant's home and work, and the surrounding relationship dynamics.

Acquittals were entered on the sexual counts and a conviction on criminal harassment.

Following a decision staying the applicant's application pending payment of arrears, the court determined the issue of costs.

The respondent was successful in obtaining the stay and was presumptively entitled to costs.

However, because success was divided on the issues raised during the motion, the court apportioned costs and ordered the applicant to pay $4,500 to the respondent.

The Father brought a motion to change previous parenting orders, seeking primary residence and final decision-making authority, and opposing the Mother's planned relocation to Australia with the children.

The court found a material change in circumstances due to the Mother's unsubstantiated allegations of abuse against the Father, which led to CAS involvement, and a complete breakdown in communication.

The court determined it was not in the children's best interests to relocate to Australia, as they required stability and there were serious concerns the Mother would not support their relationship with the Father.

The Father was granted primary residence and final decision-making authority, while the Mother was granted graduated unsupervised parenting time.

The appellant appealed her summary conviction for driving with a blood alcohol concentration over 80 mg.

At the police station, the appellant expressed confusion about her right to counsel, and the police officer offered her a binary choice of calling a free lawyer immediately or waiting until after she was released.

The appeal court found that this created a trap, as the appellant was not informed she would lose her 'hold-off' protection if she waited.

This constituted a breach of her s. 10(b) Charter rights.

Applying the Grant framework, the court excluded the breath sample evidence under s. 24(2) and entered an acquittal.

The respondent mother brought a motion to stay the applicant father's divorce and parenting application until he paid outstanding costs orders and transferred funds from his RRSP to satisfy child support arrears, as required by a 2014 court order.

The court found that while the father had complied with the monthly payment order, he had failed to obey the order requiring him to apply RRSP withdrawals to his arrears, having used the 2015 and 2016 withdrawals for his own purposes.

Applying Rule 1(8) of the Family Law Rules, the court granted the motion and stayed the father's application pending his payment of $18,092.11, representing the RRSP funds he failed to transfer.

Both parties brought motions for interim relief in a family law proceeding.

The mother sought sole decision-making, retroactive child support, and orders regarding passports and photographs.

The father sought equal parenting time, alleging parental alienation by the mother.

The court declined to make an interim order for decision-making or to change the parenting schedule, finding insufficient evidence of parental alienation at the interim stage.

The court ordered the father to sign passport renewals and return certain photographs, while leaving the issue of retroactive child support to the trial judge.