Jay Herbert

The accused brought a mid-trial application alleging a breach of his s. 8 Charter rights, arguing that police exceeded the temporal scope of a search warrant when extracting data from his seized cell phones.

The Crown sought summary dismissal of the application.

The court found that the warrant's temporal limits applied only to usage timelines, not to communications related to trafficking, and that the accused failed to provide evidence that police actually examined data outside the warrant's scope.

The application was summarily dismissed as manifestly frivolous.

The court issued supplementary reasons clarifying its prior ruling on a Charter application.

The applicant sought to exclude evidence, including cell phones and their contents, arguing a breach of s. 8 Charter rights.

The court reiterated that no Charter breach was established regarding the search of the applicant's person incident to a lawful arrest for firearm offences, and therefore, there was no basis to exclude the seized phones or their information under s. 24(2) of the Charter.

The initial ruling dismissing the application remained unchanged.

The applicant, Noah Hope, brought a motion seeking to exclude evidence obtained from a search of his vehicle and backpack, arguing a breach of his s. 8 Charter rights.

The vehicle was involved in a single-car accident.

Police entered the vehicle without permission after a tow truck driver noted items left inside.

A gun was found, leading to the applicant's arrest and further searches.

The court dismissed the application, finding that the applicant failed to establish a reasonable expectation of privacy in the vehicle or its contents, primarily because he was not the lawful owner and had no legal right to control access, effectively being a trespasser.

The accused, Justice Snache, was charged with second-degree murder.

The trial proceeded in two stages: first, to determine guilt based on an Agreed Statement of Facts, and second, to determine criminal responsibility due to mental disorder.

The court found that the Crown proved the elements of murder beyond a reasonable doubt, including the actus reus and mens rea, based on the agreed facts and the accused's admission.

However, the court then considered the Not Criminally Responsible on Account of Mental Disorder (NCRMD) defence under Section 16 of the Criminal Code.

Relying on expert psychiatric evidence, particularly from Dr. Naidoo, the court found that the accused was suffering from schizophrenia at the time of the offence, which rendered him incapable of appreciating the moral and legal wrongfulness of his actions.

Consequently, the accused was found not criminally responsible for the murder and remanded to the jurisdiction of the Ontario Review Board for disposition.

The accused, charged with second-degree murder, brought several pre-trial applications seeking to exclude his confession to police, set aside search warrants, and exclude GPS cell phone data.

The court found that while the police breached the accused's s. 8 Charter rights by conducting a non-compliant strip search, the breach did not warrant a stay of proceedings or the exclusion of his voluntary confession under s. 24(2).

The court also dismissed the Garofoli application, finding no material omissions in the search warrant informations.

Finally, the court ruled that GPS location data from the accused's phone was admissible without expert testimony, taking judicial notice of the reliability of GPS technology.

The accused, Graham Polmateer, brought an application for an in-person trial, while the Crown brought a s. 714 application.

The court dismissed the accused's application, ordering the trial to proceed remotely as previously scheduled.

The court found the application was brought too late, violating the 60-day notice rule, and that the accused was bound by his earlier agreement to a remote trial.

The judge emphasized that "personally" in the Criminal Code does not necessitate physical presence in a courtroom, and that modern technology facilitates access to justice.

The Crown's s. 714 application was deemed moot but would have been allowed.

This is an appeal concerning the application of limitation periods to tort claims, including sexual assault, against a police officer.

The motion judge had dismissed the appellant's motions to strike and for summary judgment, finding that the sexual assault allegations triggered s. 16(1)(h) of the Limitations Act, 2002, and that s. 16(1.3) extended this to related torts due to the officer's position of trust.

The Court of Appeal upheld the motion judge's decision regarding the application of s. 16(1.3) to claims against the perpetrator and related torts, but set aside the declaration that no limitation period applied to all claims, stating this ultimate determination should be left to the trial judge.

The appeal regarding costs was dismissed, affirming the motion judge's award.

The applicant brought a motion before the Court of Appeal.

A non-publication order under s. 517 of the Criminal Code was imposed at the bail hearing in the court below.

Because the decision contains information covered by that order, the court directed that the decision will not be published online until the non-publication order ceases to be in effect, though a copy is available at the Registry.

The court determined costs following a reference decision on priority of claims.

The applicant, Joe Guerrieri, was awarded reduced substantial indemnity costs ($40,000) in priority to all parties except the first mortgagee, Frances Gower.

Gower was awarded significantly reduced substantial indemnity costs ($20,000) with first priority.

Rob Rolston Building Materials Ltd. was awarded $5,000 in costs.

Jerry Schmanda and Dawna Catharine Fairbairn (the Schmandas), whose unsuccessful equitable mortgage claim caused the reference, were made liable for any unrecoverable costs awarded to Guerrieri, Gower, and Rolston.

The court considered Rule 57 factors, proportionality, and settlement offers, noting that while offers were made, none were accepted in a way that avoided the reference hearing costs.

The respondent successfully brought a motion for disclosure against the applicant.

Following the motion, the parties agreed on costs, but the applicant's counsel failed to finalize the settlement.

The respondent then filed costs submissions, seeking the agreed-upon costs plus additional costs for the applicant's failure to follow through.

The court reviewed the principles of costs in family law, emphasizing indemnification, settlement encouragement, and discouraging inappropriate behavior.

The court found the applicant's conduct regarding disclosure and the costs settlement unreasonable and ordered the applicant to pay the respondent's costs, including an additional amount for the delay caused by the applicant's failure to finalize the settlement.

Chappell Partners LLP (CP), counsel for the respondent Miranda Leigh Smith, sought full recovery costs of $5,518.50 against the applicant Peter Brian Cozzi.

Cozzi was the unsuccessful party on a motion heard December 16, 2015, which sought to remove a collateral mortgage secured by CP for fees.

The court found Cozzi's conduct unreasonable, noting he brought a motion for relief already pleaded in another file and made unproven, false allegations of fraud and dishonesty against CP, particularly regarding independent legal advice.

Applying Rule 24(11)(b) of the Family Law Rules and common law principles, the court awarded full recovery costs to CP against Cozzi.

Costs decision following a successful motion by defendants to set aside a default summary judgment.

The court considered whether the defendants, as the successful parties on the motion, were presumptively entitled to costs or whether the plaintiff should recover costs thrown away as a condition of setting aside the judgment.

The court held that where a default judgment is set aside, the non‑defaulting party may be compensated through costs thrown away even if unsuccessful on the motion.

As the plaintiff had complied with the Rules of Civil Procedure and the defendants failed to respond before judgment was obtained, fairness required compensating the plaintiff.

The plaintiff’s partial indemnity costs of responding to the motion were therefore included in costs thrown away.

The defendants brought a motion under r. 37.14 of the Rules of Civil Procedure to set aside a summary judgment obtained in their absence.

The judgment had been granted after the defendants failed to attend the motion, which they asserted occurred through mistake and lack of awareness of the motion date while self‑represented.

The court held that r. 37.14 grants a broad discretionary power to set aside orders where a party fails to appear through accident, mistake, or insufficient notice.

Considering the absence of deliberate disregard of the process and the policy favouring adjudication on the merits, the court exercised its discretion to set aside the summary judgment.

The defendants were ordered to pay costs thrown away and the action was restored to the trial list.