Ian V.B. Nordheimer

On an ex parte application arising from a police investigation, the court considered whether subscriber name and address information linked to cellular telephone numbers could be compelled through an assistance order issued with a transmission data recorder warrant.

The responding telecommunications company argued that such subscriber information required a general warrant, relying principally on privacy reasoning from Spencer.

The court held that subscriber information was not itself encompassed by the definition of transmission data, but that an assistance order under s. 487.02 could properly compel disclosure where reasonably required to give effect to a valid warrant.

The court further held that a general warrant under s. 487.01 is a remedy of last resort and was unavailable because another statutory route existed.

The applicant was stopped by police in a park while they were investigating a robbery.

The police claimed the applicant acted nervously and had a heavy pocket, leading them to believe he had a gun.

A struggle ensued, during which the applicant was beaten by multiple officers, and a handgun was found in his pocket.

The court found the officers' evidence to be contradictory and unreliable, concluding they had no reasonable grounds for the arrest or search.

The court held that the applicant's rights under ss. 8 and 9 of the Charter were violated.

Applying the Grant framework, the court excluded the firearm from evidence under s. 24(2) due to the seriousness of the police misconduct and the significant impact on the applicant's rights.

The Crown applied for certiorari to review a preliminary hearing judge's decision discharging the accused on firearm charges.

The preliminary hearing judge found there was 'no evidence' the object used in the robbery was a firearm because it was not recovered or fired.

The Superior Court granted the application, finding the judge committed jurisdictional error by failing to consider circumstantial evidence, such as the complainant's testimony about the object's appearance and use, which could allow a reasonable jury to infer it was a firearm.

The matter was remitted with an order of mandamus directing committal for trial on the firearm offences.

On a Crown motion to remove defence counsel in a murder prosecution, the court considered whether former representation of a proposed Crown witness created a disqualifying conflict of interest.

The court held that the alleged conflict based on a possible alternate suspect theory and anticipated cross-examination was too speculative, particularly given express waivers after independent legal advice, sworn evidence that the witness was not the alternate suspect, and the availability of co-counsel to conduct any cross-examination.

Applying the governing principles on counsel of choice and solicitor conflict, the court found no compelling reason to disqualify counsel.

Following the dismissal of the appellant's appeal and the respondent's cross-appeal regarding a finding of professional misconduct, the court determined the issue of costs.

The appellant argued that no costs should be awarded because the proceeding involved matters of public interest and novel issues.

The court rejected this argument, noting that while the case clarified the law, the appellant was unsuccessful and should bear the costs.

The court awarded costs of $30,000 to the respondent, which included a reduction to reflect the respondent's lack of success on the cross-appeal.

The accused brought pre-trial motions challenging police access to his contact information from municipal social services, a production order for his cell phone records, and the admissibility of gloves and ammunition seized during execution of a robbery search warrant.

The court held that the accused had no reasonable expectation of privacy in his address and telephone number in the circumstances, and upheld the production order because the information sought would afford evidence respecting the robberies.

However, the court found the search warrant was not properly granted because the information to obtain did not establish reasonable grounds to believe the accused was one of the actual bank robbers whose clothing could be found in the searched locations.

The court further held that the Crown failed to establish lawful seizure of the gloves and ammunition under s. 489 of the Criminal Code, and that the ammunition evidence was inadmissible as discreditable conduct because its prejudicial effect substantially outweighed any probative value.

The appellant employee appealed the dismissal of his motion for partial summary judgment in a wrongful dismissal action.

He argued that the termination provision in his employment contract was ambiguous, failed to oust his common law entitlement to reasonable notice, and violated the Canada Labour Code.

The Divisional Court dismissed the appeal, finding the contractual language clearly rebutted the common law presumption and did not contravene the Code, as it explicitly incorporated statutory minimums if the contractual severance fell short.

The appellants appealed a decision of the Ontario Licence Appeal Tribunal that refused or revoked their registrations under the Motor Vehicle Dealers Act, 2002.

They argued they were denied procedural fairness by the Vice-Chair's conduct of the hearing.

The respondent conceded that the unrepresented appellant was denied procedural fairness because he was not allowed to cross-examine witnesses.

The Divisional Court allowed the appeal for the unrepresented appellant and remitted his matter for a rehearing.

However, the court dismissed the appeal for the represented appellants, finding that while the hearing was conducted perfunctorily, they were not denied basic procedural rights such as cross-examination.

The plaintiffs successfully defended an appeal from a certification order and sought substantial indemnity costs, arguing the defendant's conduct was part of a litigation strategy to obfuscate and delay.

The Divisional Court rejected this argument, finding no reprehensible conduct to justify substantial indemnity costs.

The court awarded the plaintiffs partial indemnity costs fixed at $35,000, finding the defendant's costs outline of approximately $34,400 to be a more reasonable reflection of the work required for two half-day hearings.

On a Crown application in a criminal price-fixing prosecution, the court considered whether factual information supplied by cooperating corporations to the Competition Bureau during immunity and leniency proffers was protected from disclosure by settlement privilege or solicitor-client privilege.

The court held that solicitor-client privilege was waived when the information was voluntarily provided to the prosecuting authorities for use against other accused persons.

It further held that settlement privilege did not extend to factual information given in circumstances where the providers knew the information would be used to prosecute others and were themselves no longer exposed to resulting criminal or civil jeopardy.

In any event, the accused's constitutional right to make full answer and defence would override settlement privilege, and the applicable disclosure standard was the first party Stinchcombe regime.

The appellant lawyer appealed a decision of the Law Society Appeal Panel finding him guilty of professional misconduct for incivility during a criminal trial.

The Appeal Panel had reduced his penalty to a one-month suspension and $200,000 in costs.

The Divisional Court dismissed the appeal, finding that the Law Society has jurisdiction to discipline lawyers for in-court conduct without intruding on judicial independence.

The Court articulated the test for when incivility becomes professional misconduct, requiring that the conduct undermines or has the potential to undermine the proper administration of justice.

The Court found the Appeal Panel's application of the test and the resulting penalty and costs orders to be reasonable.

The Law Society's cross-appeal regarding the evidentiary use of prior judicial comments was also dismissed.

The applicant sought an order under ss. 7 and 24(1) of the Charter compelling disclosure of edited portions of an Information to Obtain used to secure a search warrant in a firearms prosecution.

The Crown had redacted the ITO to protect informer privilege and provided a summary of the edits.

The court held that challenges to the adequacy of Crown disclosure ordinarily belong to the trial judge and that only exceptional cases justify pre-trial superior court intervention under s. 24(1).

The applicant’s desire to make an informed decision about a Dawson application at the preliminary hearing did not constitute such an exceptional circumstance.

The application was dismissed.

The appellant lawyer appealed a decision of the Law Society Appeal Panel that reinstated a particular of professional misconduct in a Notice of Application, which had been struck by the Hearing Panel.

The Divisional Court applied the reasonableness standard of review, finding the Appeal Panel's decision defensible as the Notice provided sufficient information for the appellant to know the case to meet.

The court also upheld the Appeal Panel's order requiring the appellant to repay costs he had received from the Law Society, as the foundation for that costs award fell away when the Hearing Panel's decision was overturned.

The appeal was dismissed with costs.

The applicant sought judicial review of a decision by the College of Veterinarians of Ontario removing his counsel of record due to an alleged conflict of interest arising from the counsel's former representation of a co-respondent.

The College brought a motion to quash the application as premature.

The Divisional Court dismissed the motion to quash, finding that the deprivation of counsel of choice raised real issues of fairness and natural justice.

On the merits, the Court allowed the application for judicial review and set aside the College's order, concluding there was no evidence of a realistic risk of a conflict of interest or misuse of confidential information.

The moving parties sought leave to appeal an order that stayed their proposed class action (the Labourers Action) and granted carriage to a competing proposed class action (the DALI Action).

The underlying actions alleged securities misrepresentations by Barrick Gold Corporation.

The Divisional Court granted leave to appeal, finding that the motion judge's approach to assessing the complexity of claims and the state of preparation conflicted with established case law and provided good reason to doubt the correctness of the decision.

Accused charged with bribery of foreign public officials sought production of investigative records from the World Bank’s Integrity Vice Presidency in support of a Garofoli challenge to wiretap authorizations.

The World Bank asserted immunity as an international organization and refused to produce additional materials.

The court held that by initiating and actively assisting the Canadian criminal investigation, the organization had impliedly waived immunity and must accept the procedural burdens of a criminal prosecution.

The applicants established likely relevance under the first stage of the O’Connor framework.

Production was ordered for certain investigative materials for judicial review.

The applicant brought a motion to set aside an order quashing his application for judicial review of an arbitrator's decision upholding his termination.

The applicant argued he was denied procedural fairness because his union failed to provide a Somali interpreter at the arbitration hearing, which he claimed fell under the deficient representation exception to the rule against individual standing.

The Divisional Court dismissed the motion, finding no error in the motion judge's conclusion that the evidence did not support the need for an interpreter and noting the applicant's proper remedy was before the Ontario Labour Relations Board.

The applicant sought judicial review of a Workplace Safety and Insurance Appeals Tribunal decision that rejected his claim that s. 43(1)(c) of the Workplace Safety and Insurance Act, 1997 violated s. 15(1) of the Charter.

The impugned section limits loss of earnings benefits to two years for workers injured at age 63 or older.

The Divisional Court upheld the Tribunal's decision, finding that the provision did not discriminate on the basis of age as it did not create a disadvantage based on prejudice or stereotyping.

The court further held that even if the provision violated s. 15(1), it would be saved under s. 1 of the Charter.

The application for judicial review was dismissed.

The moving party brought a motion to quash the respondent's Notice of Appeal from a decision of the Law Society Tribunal Appeal Division.

The moving party argued the grounds of appeal lacked definiteness and that the order appealed from was interlocutory because it ordered a new hearing.

The Divisional Court dismissed the motion, finding the grounds were sufficiently detailed and the order was final as it finally disposed of the appeal proceeding.

The appellant property assessment corporation appealed a decision declaring a student residence located on a college campus exempt from property taxation.

The college had entered into a 99-year land lease with a private developer to construct and operate the residence.

The Divisional Court allowed the appeal, finding that the application judge erred in concluding the college was the tenant of the land.

The Court held that the private developer was the tenant and paramount occupier of the land, making it liable for property taxes under the Assessment Act, and that the college lost its specific tax exemption when it ceased to solely occupy the land.