Joseph Di Luca

The Crown brought a motion to quash a Notice of Appeal and Judicial Review Application commenced by the defendant's wife in her personal capacity.

The defendant was on trial for offences under the Conservation Authorities Act.

The wife, acting as his agent, had unsuccessfully sought standing as a party to the litigation and a mistrial based on reasonable apprehension of bias.

The court granted the motion to quash, finding no statutory jurisdiction for an interlocutory appeal under the Provincial Offences Act, and that the wife had no standing to bring an appeal in her personal capacity.

The request for judicial review was also quashed as the Superior Court lacked jurisdiction without a request for urgency.

The Crown brought an application before the Superior Court of Justice to quash subpoenas issued by the defendant for three witnesses in an ongoing Provincial Offences Act trial.

The court confirmed that a Justice of the Peace lacks jurisdiction to quash a subpoena, which must be done via certiorari in the Superior Court, though a trial justice may excuse a witness whose evidence is irrelevant.

Applying the test of whether the witnesses were likely to give material evidence, the court quashed the subpoenas for the conservation authority's head and solicitor, finding their proposed evidence irrelevant or a fishing expedition.

The court declined to quash the subpoena for the hydrology expert who had already testified, leaving it to the trial justice to manage his recall and document production.

The accused were charged with multiple offences arising from an armed robbery of a jewellery store.

One accused pled guilty to several charges but contested the charge of attempted murder, while the other accused contested all charges based on identity.

The court found the circumstantial evidence, including cell tower data and intercepted communications, insufficient to prove the identity of the second robber beyond a reasonable doubt.

The court also acquitted the first accused of attempted murder, finding she lacked subjective awareness of any intent to kill by her co-perpetrator.

Both accused were acquitted of the contested charges.

The defendants brought a motion to compel the plaintiff to attend and complete a defence neuropsychological examination.

The plaintiff, who suffered catastrophic impairment in a motor vehicle accident, had attempted the assessment on three occasions but was unable to complete it due to severe headaches, fatigue, and psychological distress.

The court dismissed the motion, finding that the plaintiff was not malingering and that compelling further testing would be futile and pose an undue risk of self-harm.

The court also adjourned the pre-trial to allow the defendants time to review newly filed expert reports.

The plaintiff landlord moved for summary judgment for unpaid rent under a commercial lease.

The defendant tenant argued that the notice of default was insufficient and that the landlord's re-entry by changing the locks amounted to forfeiture rather than distraint.

The court found that actual notice was received via email and fax, satisfying the notice requirement.

The court also held that the re-entry was a proper distraint, as the landlord clearly communicated its intent to distrain and offered reasonable access to the premises.

However, the court found a genuine issue requiring a trial regarding the calculation of additional rent damages.

The defendant brought a motion to set aside a default judgment of over $467,000 entered against her in an action for unpaid construction materials.

The defendant claimed she was unknowingly made a director of her son's construction company and had no involvement in its operations.

Applying the five-factor test under Rule 19.08, the court found she had an arguable defence and a plausible explanation for her default, having relied on her son's assurances.

Despite significant delay in bringing the motion, the court balanced the factors and set aside the default judgment, ordering the defendant to pay $2,000 in costs thrown away to the plaintiffs.

The accused faced 22 charges relating to three random attacks on women and a scheme involving fake Craigslist job postings.

The Crown alleged the accused targeted women for kidnapping and sexual assault.

The court found the accused guilty of multiple offences, including robbery, attempt kidnapping, assault with a weapon, unlawful confinement, and attempt sexual assault in relation to the physical attacks, relying heavily on circumstantial evidence, DNA, and the doctrine of recent possession.

However, the court acquitted the accused of attempt kidnapping and attempt sexual assault regarding the Craigslist scheme, finding the acts did not go beyond mere preparation and the specific intent was not proven beyond a reasonable doubt.

The plaintiff electrical sub-contractor sued the defendant contractor for $87,437 in unpaid invoices relating to three restaurant construction projects.

The parties operated on an informal, verbal basis with payments often made on account rather than allocated to specific invoices.

The court found the plaintiff's evidence more credible regarding the authorization of extras and the allocation of payments.

The court also rejected the defendant's limitation period defence, finding that periodic payments on the running account served as an acknowledgment of debt.

The plaintiff was awarded $77,437.30, reflecting the amount claimed less a $10,000 deposit that had been specifically allocated.

The plaintiffs, Amber Lighting Limited and Alka Bhargava, brought a motion for summary judgment against the defendants, Rosa Petrozza and Vito Petrozza, seeking $123,500 plus interest.

The dispute arose from a mortgage default, with the core issue being whether the defendants were entitled to these additional funds in priority to the plaintiffs' third mortgage.

The court dismissed the motion, finding that a prior default judgment by Gray J. had already determined the amount owing under the second mortgage, including the additional funds.

The plaintiffs' attempt to dispute this was deemed a collateral attack on that judgment, which they had not moved to set aside despite being given the opportunity.

The appellant was convicted of impaired care or control and over 80.

He appealed the conviction, arguing the trial judge erred in finding that a "realistic risk of danger" is not a required element where the Crown relies on the presumption of care or control, in unreasonably finding a realistic risk of danger in obiter, and in assessing his evidence.

The appeal court dismissed the appeal, finding no legal error in the trial judge's analysis of de facto care or control and that the findings were not unreasonable.

The court also upheld the trial judge's credibility assessment.

This ruling addresses the admissibility of evidence under s. 24(2) of the Charter, following findings that five of six judicial authorizations were invalid and police exceeded the "plain view" doctrine during searches.

The court applied the R. v. Grant framework to various items.

Computer and cell phone evidence were excluded due to serious Charter violations and high impact on privacy interests.

Observations of the computer screen were also excluded.

However, handcuffs, a forensic textbook, handwritten notes, and Rogers cell phone records were deemed admissible, as their exclusion would bring the administration of justice into disrepute, despite some Charter breaches, particularly where lawful alternative means to obtain the evidence existed.

The appellant appealed a costs award made by an arbitrator, arguing that the arbitrator erred in law by limiting the assessment of costs to only the mediation/arbitration period, thereby excluding general steps taken in the proceedings prior to that phase.

The court granted leave to appeal, finding that the issue raised a question of law.

The court determined that the arbitrator misapplied Rule 24(10) of the Family Law Rules, which, as interpreted by case law, does not prevent a decision-maker from considering costs related to general litigation steps not requiring specific judicial intervention.

The appeal was allowed, and the matter was remitted back to the arbitrator for further consideration of costs, specifically those related to general steps and a misapprehended reserved costs order.

The defendant, T.G., brought an application seeking a discharge on all counts based on cause of action estoppel or, alternatively, a stay of proceedings for abuse of process.

The charges involved sexual assault, sexual interference, and invitation to sexual touching against his step-daughter, with alleged incidents occurring in both York Region (Ontario) and Winnipeg (Manitoba).

T.G. argued that the charges should have been combined and prosecuted in one province, and that the bifurcation deprived him of a global resolution.

The court dismissed the application, holding that the civil doctrine of cause of action estoppel does not apply in criminal law, where the comparable doctrine is double jeopardy.

Furthermore, the court found that while the police conduct in delaying the York Region charges was "far from ideal" it did not constitute an abuse of process warranting a stay, as there was no evidence of improper purpose or vindictiveness.

The applicant, facing 22 criminal charges including attempted sexual assault and kidnapping, brought a pre-trial application challenging the validity of six judicial authorizations (search warrants and a production order) under section 8 of the Canadian Charter of Rights and Freedoms.

The court conducted a Garofoli review, finding that while the affiant made full, fair, and frank disclosure, only the initial telewarrant for specific items (sunglasses and gloves) was valid.

However, specific seizures and searches conducted under this initial warrant (handcuffs, a forensic textbook, and activating a laptop screen) were deemed unlawful as they exceeded the warrant's scope or the plain view doctrine.

The subsequent five judicial authorizations, including a second telewarrant for laptop seizure, two warrants to search laptop contents, a warrant to search a cell phone, and a production order for cell phone records, were all quashed due to insufficient grounds or fatal flaws on their face.

The court emphasized that "plausibility" or "possibility" is not the legal standard for issuing warrants, which require "reasonable and probable grounds." The admissibility of the unlawfully obtained evidence will be determined in a subsequent s. 24(2) Charter analysis.

The Plaintiffs, a former common-law partner and her mother (who held title), brought a motion seeking an interim order for the Defendant (the other former common-law partner) to vacate the property, for the property to be immediately listed for sale, and for 50% of the net proceeds to be released to the Plaintiffs, with the remaining 50% held in trust.

The Defendant brought a cross-motion seeking similar orders for sale but with all net proceeds held in trust, claiming a 50% interest based on constructive trust principles.

The court granted the Plaintiffs' motion, ordering the Defendant to vacate, the property to be sold, and 50% of the net proceeds to be disbursed to the Plaintiffs, with the other 50% held in trust pending the resolution of the Defendant's constructive trust claim.

The Defendant's cross-motion was dismissed.

The accused, charged with historical sexual offences, brought pre-trial applications seeking disclosure of redacted police notes and directions on the timing of an anticipated abuse of process application.

The accused alleged that the Crown improperly bifurcated charges between Manitoba and Ontario, resulting in a loss of opportunity to resolve all matters globally.

The court found the accused's Charter application met the threshold to proceed.

To determine if the redacted disclosure was protected by solicitor-client privilege, the court ordered the Crown to provide un-redacted copies under seal for judicial review.

The court also directed that the abuse of process application proceed before the trial.

The plaintiff brought a motion to determine the order of examinations for discovery, arguing he had the right to examine the defendant first because he initiated the discovery process.

The defendant argued it had the prima facie right to examine first because it was the first to serve an affidavit of documents and notice of examination under Rule 31.04.

The court found that the defendant had the prima facie right to determine the order of examinations and that the circumstances did not warrant the exercise of the court's discretion to direct a different order.

The motion was dismissed.

The accused, Antonio Ricciardi, brought a pre-trial application challenging the warrantless seizure of his sweatshirt by police during a court appearance.

The Crown argued the seizure was authorized under s. 489(2) of the Criminal Code as a simple seizure of evidence in plain view.

The court, applying a broad and purposive interpretation of Charter s. 8 privacy rights, held that the non-consensual removal of clothing from a person constitutes a "search and seizure" not merely a "seizure." Since s. 489(2) only authorizes a seizure and not a search, the police action fell outside its scope and violated the accused's s. 8 Charter rights.

The defendant requested the court to dismiss the plaintiff's action as frivolous, vexatious, or an abuse of process under Rule 2.1.01 of the Rules of Civil Procedure.

The plaintiff's claim, stemming from an involuntary detention in 2010, was found to lack material facts and a plausible cause of action.

The court also determined the claim was barred by the Limitations Act, rejecting the plaintiff's discoverability argument based on a Consent and Capacity Board decision.

Consequently, the court dismissed the action and related motions.

The Third Party, Frederick Page, brought a motion for summary judgment against the Defendant, Ronald Sharman, seeking dismissal of the Third Party Claim.

The claim arose from a motor vehicle collision where Sharman rear-ended the Plaintiff, Khow Chin Hew, and sought to apportion liability to Page, alleging Page's sudden stop was negligent.

The court applied the Hryniak v. Maudlin test for summary judgment, finding no genuine issue requiring a trial.

It was determined that Page's braking and left turn were not negligent, as the vehicles immediately behind him stopped safely, and Sharman was found to be following too closely given his vehicle and road conditions.

The motion for summary judgment was granted, and the Third Party Claim against Page was dismissed with costs.