J.F. McCartney

The appellant appealed a conviction for committing an indecent act under s. 173(1)(b) of the Criminal Code after being found to have exposed his buttocks toward occupants of a passing vehicle.

The trial judge rejected the appellant’s explanation that his pants had accidentally slipped and accepted the testimony of the complainant witnesses.

On appeal, the court applied the reasonableness standard for reviewing verdicts and considered the credibility analysis conducted at trial using the principles from W.(D.).

The appellate judge held that the trial judge properly assessed credibility and reasonably concluded that the evidence established guilt beyond a reasonable doubt.

The conviction and the suspended sentence with probation were upheld.

Interim family law motions arising from a separation following a 13‑year marriage addressed parenting arrangements, support, exclusive possession of the matrimonial home, and sale of the home.

The court declined to determine custody pending further information and the involvement of the Children’s Lawyer, but ordered an interim alternating weekly residence schedule for the child.

Interim child support and spousal support were ordered based on the parties’ incomes and the circumstances of the marriage.

Requests for exclusive possession of the matrimonial home and for a non‑removal order preventing relocation of the child were denied, while the parties’ agreement to list and sell the matrimonial home was incorporated into the order.

The applicant father brought an ex parte motion to enforce a prior interim custody order granting him custody of three children after the respondent mother failed to return them following weekend access.

The court found that the existing custody order remained in effect and that the respondent had not complied with its terms.

The father sought a police enforcement order directing authorities to apprehend and return the children.

The court granted the motion and authorized any police force in Ontario to apprehend the children and return them to the father in accordance with the prior custody order.

The applicant father brought a motion seeking dismissal of the respondent mother's motion to change and an order preventing her from bringing further motions without leave of the court.

The underlying family litigation involved prior orders granting the father custody and restricting the mother's access, along with outstanding child support, costs, and equalization issues.

The court declined to dismiss the respondent's motion to change outright, finding that further procedural steps were necessary given the ongoing disputes regarding parenting and financial obligations.

The court ordered that the motion to change not proceed until a further case conference was held to consider potential involvement of the Office of the Children’s Lawyer, psychological assessment, mediation resources, and supervised access programming.

The applicant brought an uncontested motion to change seeking termination of existing child and spousal support orders made following divorce.

The court reviewed the parties’ financial circumstances, including the respondent’s unemployment following the collapse of the family business and his reliance on RRSP withdrawals while retraining for new employment.

The court held that one adult child remained a "child of the marriage" due to mental health difficulties and ongoing dependency.

Spousal support and child support obligations were not terminated but were reduced to nominal amounts given the respondent’s limited present income, while support for another adult child was terminated.

The appellants were successful on appeal, significantly increasing their recovery from the trial judgment.

The respondent sought costs based on a pre-litigation offer that exceeded the appeal award but was only open for five days.

The court noted the respondent made no Rule 49 offer, while the appellants made three, though for amounts greater than their ultimate recovery.

Given the recovery and the necessity of the appeal, the court awarded the appellants $15,000 inclusive of costs.

The applicant sought a divorce and corollary relief including parenting arrangements, child support, extraordinary expenses, spousal support, and pension division.

The court granted a divorce based on separation and addressed parenting of three children.

The court determined the children's primary residence should be with the mother, emphasizing the need for stability and continuity in the matrimonial home, while granting the father structured access.

The father was ordered to pay guideline child support and contribute proportionately to extraordinary expenses, while spousal support was reduced to a nominal amount due to limited means.

The respondent’s employment pension was ordered to be divided equally pursuant to the Pension Benefits Act.

The applicant housing co‑operative sought termination of a member’s membership and occupancy rights following complaints regarding smoking in hallways and smoke affecting other tenants.

The co‑operative’s board had previously warned the member that eviction could follow further complaints but later voted to terminate membership at a meeting held without providing the statutory notice required under s. 178(2)3 of the Co‑Operative Corporations Act.

The court held that the earlier warning letter did not constitute adequate notice of the later board meeting nearly three years later.

It also rejected the argument that the member had agreed to voluntarily relinquish her membership and tenancy during settlement negotiations.

The application to enforce the eviction and termination of membership was dismissed.

The appellant appealed a sentence imposed after pleading guilty to truancy under s. 30(5) of the Education Act.

The sentencing court had suspended sentence and imposed a period of probation.

The appellant sought to have the sentence set aside and requested an absolute discharge due to concerns that the conviction record could negatively affect future opportunities.

The Superior Court found that the matter had been commenced under the Provincial Offences Act and should have been tried in Provincial Offences Court rather than Youth Criminal Justice Court.

The court set aside both the conviction and sentence and directed that the matter be sent to Provincial Offences Court.

The court issued an endorsement as to costs following an appeal.

Having reviewed the written submissions from both parties, the court fixed the costs payable to the successful respondent at $4,000.

The plaintiffs appealed a trial judgment regarding a contract for the construction of a home that was destroyed by fire before completion.

The trial judge found the plaintiffs had terminated the contract and awarded the defendant $100,000 on its counterclaim for lost profits, while awarding the plaintiffs a small net judgment from insurance proceeds.

The Divisional Court upheld the finding that the plaintiffs terminated the contract but found the trial judge erred in calculating the insurance trust funds and the counterclaim damages.

The appeal was allowed in part, reducing the counterclaim to $20,000 and varying the net judgment in favour of the plaintiffs to $60,765.

The applicant sought judicial review of the City of Hamilton's decision not to process an application for the renewal of a body rub parlour licence.

The licence had automatically terminated under the municipal by-law when the controlling interest in the applicant corporation was transferred following the death of its principal.

The Divisional Court dismissed the application, finding that the automatic termination constituted a lawful revocation under the by-law, which permanently reduced the number of available licences and left the City with no authority to issue a new one.

The landlord appealed a Landlord and Tenant Board decision ordering it to pay $3,000 in statutory compensation to former tenants who had received a notice of termination for conversion of their mobile home site.

The tenants were subsequently evicted for non-payment of rent and owed over $3,300 in arrears.

The Divisional Court upheld the Board's findings that the compensation obligation survived the eviction and that the claim was not statute-barred.

However, the Court allowed the appeal on the basis that the Board erred in law by failing to set off the rent arrears against the compensation owed, resulting in no net compensation payable to the tenants.

The landlord appealed a Landlord and Tenant Board decision that found a 9 percent rent increase levied exclusively against pet-owning tenants was an impermissible penalty under the Residential Tenancies Act, 2006.

The Board held that this penalty substantially interfered with the tenant's reasonable enjoyment of the rental unit and awarded a rent abatement.

The Divisional Court dismissed the appeal, finding the Board's decision was reasonable and that the Board properly looked at the real substance of the rent increase.

The appellant appealed a trial decision ordering him to pay $1,400 per month in spousal support.

The Divisional Court found no errors of fact or law in the trial judge's decision, noting the award was slightly below the midpoint of the suggested guidelines based on the parties' incomes at the time.

The court dismissed the appeal but advised the self-represented appellant that he could seek a variation of the support order due to his recent medical leave and reduced income.

Following the dismissal of the appellant's appeal, the successful respondents sought costs totaling approximately $98,000 on a substantial indemnity basis.

The appellant conceded the respondents' entitlement to costs but argued the quantum was excessive, suggesting $20,000 was appropriate.

The Divisional Court reviewed the factors under Rule 57.01, noting the appeal was not particularly complex despite the appellant's conduct lengthening the proceedings.

Applying the principle that costs must be fair and reasonable rather than an exact measure of actual costs, the court found the respondents' claimed hours and amounts to be unreasonable.

The court fixed total costs at $25,000, apportioned among the three respondent groups.

The appellant appealed a civil jury verdict dismissing his claims for assault, negligence, and intentional infliction of nervous shock against police, ambulance attendants, and store security, and awarding damages on the respondents' counterclaims.

The appellant argued the trial judge erred by refusing adjournments, admitting prejudicial expert testimony, and excluding medical reports.

The Divisional Court dismissed the appeal, finding no palpable and overriding errors in the trial judge's discretionary rulings on adjournments and evidence, and concluding there was a sufficient basis for the jury's punitive damages award.

The applicant sought judicial review of an Ontario Racing Commission decision suspending his racing licenses for ten years and imposing a $20,000 fine for administering a performance-enhancing drug (EPO) to a horse.

The applicant argued his confession to investigators was involuntary and obtained in violation of his Charter rights.

The Divisional Court dismissed the application, finding the statement was admissible under the Statutory Powers Procedure Act and statutory compulsion, and that the common law confession rule and section 7 of the Charter did not apply to these administrative proceedings.

The court also upheld the penalty as reasonable given the need for general deterrence in the horse racing industry.

The applicants sought judicial review to set aside a settlement reached by the Workplace Safety and Insurance Board in a subrogated action against the respondent.

The Board, acting as dominus litis, settled the action for $130,000 after considering an independent legal opinion and the applicants' position.

The Divisional Court applied the patent unreasonableness standard of review and found that the Board's decision to compromise the lawsuit was reasonable, dismissing the application.

The applicant sought judicial review of an order by the Information and Privacy Commissioner requiring the Ministry of the Attorney General to disclose records provided under the Casino Rama Revenue Agreement.

The applicant argued the records contained commercial information and their disclosure would cause harm.

The Divisional Court applied a reasonableness standard of review and upheld the Commissioner's finding that the records related to the administration of funds, not commercial operations, and that the applicant failed to provide sufficient evidence of expected harm.

The application for judicial review was dismissed.