Joseph R. Henderson

In a pretrial motion in a first degree murder prosecution, the Crown sought to admit expert toolmark evidence relating to damage on a bathtub wall in the accused’s residence.

The proposed expert opinion suggested the mark was consistent with damage caused by a saw or serrated knife and was relied upon by the Crown to support a theory of attempted dismemberment in the bathtub.

The court applied the admissibility framework for expert evidence from R. v. Mohan, as refined in R. v. Abbey and White Burgess Langille Inman v. Abbott and Haliburton Co. The court found no evidentiary foundation supporting the Crown’s dismemberment theory and concluded the expert evidence had little or no probative value while posing significant prejudicial risk.

The evidence was therefore excluded.

The accused brought a pretrial Charter motion seeking exclusion of drugs seized after police stopped his vehicle during an investigation for another suspect who had fled from police.

The defence alleged breaches of ss. 8, 9, and 10(a) of the Canadian Charter of Rights and Freedoms and sought exclusion of evidence under s. 24(2).

The court held that the vehicle stop constituted a lawful investigative detention supported by a nexus between the vehicle occupants and the suspect being pursued.

The subsequent arrest for driving while suspended and the search incident to arrest were lawful, and the seizure of drugs in the vehicle was justified under the plain view doctrine.

No Charter breach was established and the evidence was not excluded.

The Children's Aid Society brought a summary judgment motion on a status review application, seeking a final order granting custody of two children to their maternal great aunt and uncle.

The children's mother and maternal grandmother opposed the motion, seeking custody or placement with supervision.

The court found that the children had flourished in the care of their great aunt and uncle for three years and that there was no realistic possibility of an outcome other than a custodial order in their favour.

Summary judgment for custody was granted, but the issue of access was directed to trial.

On a Crown application in a murder trial, the court considered whether preliminary inquiry testimony of an unavailable inmate witness could be admitted under s. 715(1) of the Criminal Code.

The court held that the Crown proved on a balance of probabilities that the witness was absent from Canada, largely through hearsay evidence with sufficient indicia of reliability.

However, the court exercised its discretion to exclude the evidence because admission would operate unfairly to the accused, given the centrality of credibility, the witness's potential motive to shift blame, significant internal and external inconsistencies, the availability of surveillance video never put to the witness, and new evidence arising after the preliminary hearing.

The Crown application was dismissed.

In a murder prosecution, the Crown sought leave under s. 9(2) of the Canada Evidence Act to cross-examine a Crown witness who was a co-accused and had previously given a videotaped statement pursuant to a plea agreement.

The defence argued the statement was unreliable because of pressure arising from plea negotiations, fear of sanctions, and an apparent inconsistency with surveillance evidence.

The court held that those concerns could be adequately addressed through cross-examination and found the videotaped statement to be a reliable record given under circumstances indicating the witness understood the importance of telling the truth.

Applying the ends of justice analysis, the court granted leave to cross-examine the witness on the inconsistent portion of the statement.

The accused moved for a directed verdict of acquittal at the close of the Crown's case on charges of second degree murder and the included offence of manslaughter arising from an inmate's suicide in custody.

The court interpreted s. 222(5)(c) of the Criminal Code, defined the elements of threat, fear of violence, and causation, and held there was some evidence on which a properly instructed jury could find that the moving party's conduct, including making and sending a noose, constituted a threat or contributed significantly to the victim's fear of violence and suicide.

Applying the directed verdict test and the circumstantial evidence framework, the court held the case should go to the jury on second degree murder and manslaughter.

The alternative theory that the moving party aided and abetted another inmate was removed from the jury for lack of evidence.

The applicant mother brought a motion for a declaration that the Ontario Superior Court of Justice had jurisdiction over all matrimonial issues, including custody, support, and property division.

The respondent father argued that a New Orleans court had already assumed jurisdiction over the divorce and ancillary matters, excluding custody.

The court found it had jurisdiction simpliciter due to the mother and child's habitual residence in Ontario.

However, applying the doctrine of forum non conveniens, the court stayed all claims except custody and access to avoid conflicting judgments with the New Orleans court.

Following the dismissal of their appeals from decisions of the Environmental Review Tribunal regarding wind farm approvals, the appellant landowners argued they should not pay costs because the litigation was in the public interest.

The Divisional Court held that while the appeals were not public interest litigation that would merit no costs, they did contain a strong public interest component regarding the constitutionality of the legislative regime.

Taking this into account, along with the lack of particularity in the respondents' bills of costs and the lower scale of costs typically awarded on appeals to the Divisional Court, the court awarded reduced partial indemnity costs to the successful respondents totaling $67,000.

The appellants, residents living near three proposed wind turbine farms, appealed decisions of the Environmental Review Tribunal (ERT) that confirmed the Director's issuance of Renewable Energy Approvals (REAs) for the projects.

The appellants argued that the statutory test requiring them to prove the projects would cause 'serious harm to human health' violated section 7 of the Charter.

The Divisional Court dismissed the appeals, finding that the statutory test aligned with the jurisprudential threshold for section 7 claims and did not depart from the consensus scientific view on wind turbines.

The Court also upheld the ERT's treatment of lay witness evidence, its finding that it lacked jurisdiction to review the Director's REA issuance process for Charter compliance, and its discretionary decisions denying adjournments.

The accused applied to exclude evidence, including a loaded handgun, seized from a hotel room following a warrantless police entry.

The accused argued the initial police entry violated s. 8 of the Canadian Charter of Rights and Freedoms and sought exclusion under s. 24(2).

The court held that the accused did not have a reasonable expectation of privacy in the hotel room because his lawful entitlement to occupy the room had expired before police entered.

In the alternative, the court found that the brief warrantless entry by police was justified as a safety search to secure a firearm and ensure no persons remained in the room.

The application to exclude the evidence was dismissed.

The defendants brought a motion under Rule 56.01(1)(a) of the Rules of Civil Procedure seeking security for costs on the basis that the plaintiff resided outside Ontario and had no assets in the province.

The plaintiff alleged an assault by police officers in Ontario but relied on asserted assets in New York State and reciprocal enforcement legislation to resist the motion.

The court held that the plaintiff failed to provide sufficient objective evidence establishing that the foreign assets were appropriate and sufficient to satisfy a potential costs order.

The court also rejected arguments that financial hardship caused by the alleged assault or the Victims’ Bill of Rights precluded the order.

Balancing the relevant factors, the court exercised its discretion to order security for costs.

The appellant employee was laid off after seven years of employment and subsequently paid his minimum entitlements under the Employment Standards Act.

He sued for wrongful dismissal, arguing the layoff was a constructive dismissal and that the employer's breach, along with its failed after-the-fact allegation of just cause, precluded it from relying on the employment contract's termination clause.

The Divisional Court dismissed the appeal, holding that neither the constructive dismissal nor the failed just cause defence prevented the employer from invoking the contractual provision limiting severance to the statutory minimums.

In a family law proceeding involving parenting issues, the respondent brought a motion seeking production of marriage counselling notes and records created by a psychologist who conducted joint counselling sessions with the parties prior to their separation.

The court held that such records are privileged and ordinarily require the consent of both parties for disclosure.

Although the court has authority to order production of privileged documents where relevant and fair to both parties, the motion was brought too close to the scheduled trial and risked necessitating an adjournment and updates to the Office of the Children’s Lawyer report.

Given the presumption of confidentiality in marriage counselling and the late timing of the request, the court found disclosure would be unfair at that stage of the proceeding.

The plaintiffs brought a motion at the start of trial to strike the jury notice served by the defendant, arguing the issues surrounding the plaintiff's severe brain injury were too complex for a jury.

The defendant opposed the motion or alternatively sought bifurcation.

The court found the scientific evidence and damages calculations related to the brain injury were unduly complex and better suited for a judge alone.

However, the court determined the liability issues were straightforward enough for a jury.

The motion was allowed in part, and the trial was bifurcated with liability to be tried by a jury and damages by a judge alone.

The plaintiff brought an occupiers’ liability action after slipping on a greasy food substance in a casino buffet restaurant.

The court considered whether the occupier breached the duty of care under s. 3(1) of the Occupiers’ Liability Act by failing to implement adequate inspection and cleaning policies.

Evidence showed that multiple staff members were responsible for monitoring and cleaning spills and that the spill causing the fall had occurred only seconds before the incident.

The court held that the inspection system was reasonable in the circumstances of a busy buffet-style restaurant and that no breach of the statutory duty of care was established.

In the alternative, the court found the plaintiff failed to prove causation because the spill occurred only moments before the fall and could not reasonably have been prevented.

The appellant appealed a conviction for sexual assault entered in the Ontario Court of Justice.

The appellant argued that the trial judge erred in assessing credibility by allegedly giving the complainant a “credibility handicap” and by applying different credibility standards to the complainant and the accused.

The court reviewed the applicable appellate standard under s. 686(1)(a)(i) of the Criminal Code and the deference owed to trial-level credibility findings.

The court concluded that the trial judge properly applied the R. v. W.(D.) framework and conducted a detailed analysis of both the accused’s and the complainant’s evidence.

Finding no error in principle and no unreasonable verdict, the appeal was dismissed.

Following the breakdown of a marriage with two children, the court determined unresolved issues relating to equalization of net family property, child support, spousal support, and various financial claims.

The court addressed whether mortgage payments made directly by the payor spouse as spousal support should generate a credit upon sale of the matrimonial home and concluded no such credit was warranted under the Family Law Act.

The court also resolved disputes regarding ownership and debt related to a recreational trailer, deductions for property owned at the date of marriage, and arrears of support.

An equalization payment was ordered, arrears of spousal support were fixed, child support obligations were adjusted following a change in the children’s residence, and the respondent’s claim relating to an improperly collapsed RESP was granted.

The applicant brought a motion for documentary disclosure and production from the respondent and several third parties in the context of an application to set aside a 2006 settlement and final order relating to support and property claims following the parties’ common‑law relationship.

The applicant alleged the respondent failed to make full disclosure of assets and income at the time of settlement, including interests in Spanish real estate, stock options, and tax liabilities.

The court found the application to set aside the settlement was not frivolous but held that many of the disclosure requests were overly vague or overly broad.

Limited disclosure was ordered, including documentary production from a bank regarding severance and stock options, authorizations permitting the applicant to obtain the respondent’s Irish tax returns, and disclosure of addresses for Spanish properties.

Costs between the parties were reserved, and no costs were ordered for the bank.

The appellants, former directors of a condominium corporation, appealed two costs decisions that ordered them to personally pay costs for an unsuccessful injunction motion and an administration application they initiated on behalf of the corporation.

The Divisional Court allowed the appeal regarding the injunction motion, finding the motion judge erred by failing to apply the 'man of straw' test for awarding costs against non-parties.

However, the court dismissed the appeal regarding the administration application, finding the application judge correctly applied the test, properly found the directors acted in bad faith, and afforded procedural fairness.

The costs for the injunction motion were redirected to the condominium corporation.

Following an appeal from a Deputy Judge’s decision in Small Claims Court, the appellant obtained partial success when the court set aside the dismissal of the claim and allowed the matter to proceed to trial.

However, several key issues—including the identity of the contracting parties, the applicability of the limitation period, and potential personal liability—were reserved for determination at trial.

The court found that the appeal arose largely from a misnomer in the plaintiff’s claim attributable to the appellant itself.

Although the appeal permitted the action to continue, that benefit did not justify awarding costs.

The court therefore declined to award costs to either party.