J. Paul R. Howard

The applicant, represented by her husband, sought the recusal of the presiding judge from a Divisional Court panel hearing a judicial review application.

The applicant alleged a reasonable apprehension of bias based primarily on comments made by the judge at the conclusion of the hearing, suggesting that the applicant would be better served by independent counsel.

The judge, with the concurrence of the other panel members, dismissed the recusal request, finding that the comments were made out of concern for the applicant's best interests and did not give rise to a reasonable apprehension of bias when viewed in context.

The accused, Donald Wilhelm Parker, applied for a bail review to set aside a detention order, arguing that late disclosure of text messages constituted a material change in circumstances.

The court applied the Palmer criteria for material change and the St. Cloud standard of review.

It found that the text messages did not establish a material change and would not have altered the original detention decision, as they reinforced safety concerns for the complainant and her children.

The application for judicial interim release was dismissed.

The plaintiffs sought damages for proprietary estoppel and/or negligent misrepresentation against the Town of LaSalle after the Town prohibited vehicular access to unopened road allowances, thereby restricting access to the plaintiffs' detached garage.

The plaintiffs alleged that the Town induced them to build the garage with implied permission for access via an unopened road allowance.

The court found that the Town was not aware of the plaintiffs' intention to use the unopened road allowance for vehicular access and that the plaintiffs' reliance was not reasonable.

The Town's actions were deemed a legitimate exercise of its powers to address legal, financial, and liability concerns.

The claims for proprietary estoppel, negligent misrepresentation, and punitive damages were dismissed.

The court also addressed the limitation period, finding the action was commenced within time.

The plaintiffs brought a medical malpractice action against a urologist, alleging negligent performance of a trans-urethral resection of the prostate (TURP) that resulted in total and continuous urinary incontinence.

The court dismissed the action, finding that the plaintiffs failed to establish, on a balance of probabilities, that the urologist breached the standard of care or that the alleged breach caused the incontinence.

The court concluded that the incontinence was a known complication, likely attributable to pre-existing conditions of an overactive bladder and a weakened external sphincter, rather than surgical negligence.

The applicants were charged with drug and firearms offences in June 2010.

After a first trial resulted in acquittals that were later overturned on appeal, a second trial was ordered.

The applicants brought an application under s. 11(b) of the Charter, arguing unreasonable delay.

Applying the new framework from R. v. Jordan, the court calculated a total delay of 79 months.

After deducting defence delay and appellate delay, the net remaining delay was 38 months, which exceeded the 30-month presumptive ceiling.

The court found the transitional exceptional circumstance did not apply and stayed the proceedings.

The accused was arrested following a nightclub shooting and placed in a dry cell for approximately two hours before police collected gunshot residue samples from his hands.

He was not provided an opportunity to contact legal counsel until after the samples were taken.

The accused brought a Charter application arguing his s. 10(b) rights were violated.

The court found that the police failed to facilitate the accused's right to counsel at the earliest practicable opportunity and that the delay was unreasonable.

Applying the Grant framework, the court concluded that admitting the gunshot residue evidence would bring the administration of justice into disrepute and excluded the evidence under s. 24(2) of the Charter.

The offender, an 18-year-old international university student, was convicted of sexually assaulting a 17-year-old highly intoxicated female student in a university residence.

The court considered the significant physical and psychological impact on the victim, the offender's lack of a prior criminal record, and the collateral immigration consequences of a custodial sentence.

The court determined that a sentence of 26 months' imprisonment was appropriate, emphasizing denunciation and deterrence for a serious crime of violence against a vulnerable victim.

The applicant husband brought a motion under Rule 25(19)(b) of the Family Law Rules to change an interim consent order that required him to pay $800 per month in spousal support.

He argued the order contained a 'calculation mistake' because the amount fell outside the Spousal Support Advisory Guidelines (SSAG) range based on his subsequent calculations.

The court dismissed the motion, finding no mutual mistake or misapprehension between the parties at the time of the consent order.

The court noted that the agreed-upon amount was within the SSAG range and that interim orders are meant to provide a reasonably acceptable temporary solution until trial.

The applicant mother sought to relocate with the children from Essex County to Thunder Bay for a new job opportunity, which would significantly improve her financial situation and the children's lives.

The respondent father opposed the move and brought a cross-motion for the children to remain in Essex County.

The court, applying the principles from Gordon v. Goertz and Plumley v. Plumley, found a material change in circumstances due to the mother's job loss.

It determined that the relocation was in the children's best interests, considering the mother's financial stability, the lack of alternative employment, and the proposed access schedule which maintained the father's overnight access.

The applicant's motion was allowed, and the respondent's cross-motion was dismissed.

The landlord appealed a Landlord and Tenant Board decision ordering him to pay $25,000 in compensation for disposing of the tenant's property after an eviction.

The tenant had been incarcerated, and his parents attempted to pay rent, but the landlord refused payment and ignored their communications.

The Divisional Court dismissed the appeal, finding the Board's conclusion that the landlord's conduct constituted an abuse of process was reasonable and supported by the evidence.

The appellants, homeowners, appealed a trial judgment that awarded the respondent masonry subcontractor $14,714.12 on a construction lien claim and dismissed the appellants' $200,000 cross-claim for slander of title.

The appellants argued the trial judge erred in interpreting the contract, finding the lien was preserved in time, and awarding $30,000 in costs.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings regarding the contract terms and the date of last work.

The court also upheld the costs award, noting the appellants had refused to transfer the matter to Small Claims Court and had unnecessarily complicated the proceedings.

The appellants brought a motion to introduce fresh evidence on appeal, specifically an aerial photograph they claimed showed the respondent's equipment had been removed from the construction site earlier than the respondent testified.

The Divisional Court applied the Palmer test and dismissed the motion, finding that the evidence could have been discovered before trial with due diligence, was not decisive to the core issue of when the work was completed, and lacked credibility without expert interpretation.

The appellant car wash business appealed an Ontario Municipal Board order requiring it to pay $86,943.20 in costs to the respondent municipality after its claim for injurious affection was dismissed.

The appellant argued the costs were excessive and the Board placed undue reliance on the respondent's $15,000 settlement offer.

The Divisional Court applied a reasonableness standard of review and dismissed the appeal, finding the Board properly exercised its discretion under the Expropriations Act to award costs based on the appellant's unreasonable conduct in refusing the offer and proceeding with a meritless claim.

The defendants appealed a motion judge's decision granting judgment in favour of the plaintiffs based on original minutes of settlement.

The motion judge found that the individual defendant had fraudulently misrepresented the financial status of the corporate defendant to extract an agreement from the plaintiffs to amend the settlement and remove his personal liability.

The Divisional Court upheld the motion judge's findings of fraudulent misrepresentation and equitable rescission, concluding that the original minutes of settlement were binding despite not being formally executed.

The appeal was dismissed.

The father appealed an order requiring him to return his child to Denmark pursuant to the Hague Convention.

The father argued that a parenting plan signed by the mother before they moved to Denmark established that the child's habitual residence remained in Ontario.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the application judge's conclusion that the parenting plan was unenforceable and signed under duress, and that the child's habitual residence was Denmark at the time of the wrongful removal.

The appellant husband appealed a final spousal support order, arguing a lack of procedural fairness.

The Divisional Court found that the lower court judge, who had presided over a settlement conference, erred by deciding the substantive issue without clear consent from both parties.

Furthermore, the unrepresented husband was prejudiced by the late service of the respondent's factum and affidavit on the morning of the hearing.

The appeal was allowed, the support order was set aside, and the matter was remitted to the Family Court for a new hearing before a different judge.

The defendants moved to dismiss the plaintiffs' action for inordinate and inexcusable delay, spanning 22 years.

The litigation arose from a business partnership dissolution and minority shareholder dispute from 1993, involving allegations of oppression, breach of fiduciary duty, and fraudulent manipulation of accounts.

The court applied the Langenecker v. Sauvé test under Rule 24.01, finding the delay inordinate and inexcusable, particularly due to the plaintiffs' failure to advance the case and the loss of their entire file, including critical financial documentation and the death of the primary plaintiff and key accountants.

The court concluded that a fair trial was no longer possible due to both presumed and actual prejudice to the defendants.

The plaintiffs' action was dismissed for delay.

The defendant, Plasponics Inc., brought a motion to transfer the proceeding from Brampton to Windsor, Ontario, pursuant to Rule 13.1.02(2) of the Rules of Civil Procedure.

The plaintiff, Concept Plastics Ltd., opposed the transfer.

The court applied a holistic approach to the enumerated factors, requiring the moving party to demonstrate that the proposed venue was "significantly better" than the plaintiff's chosen venue.

The court found that the defendant failed to provide sufficient evidence, particularly regarding judicial resource availability in the receiving region, to establish that a transfer was desirable in the interests of justice.

The motion to transfer was dismissed.

The parties separated and initially shared a nesting arrangement in the matrimonial home.

Following the sale of the home, both parties brought motions regarding the parenting schedule, schooling, and child support.

The mother sought primary residence and interim sole custody, while the father sought to continue an alternating week schedule.

The court excluded surreptitious surveillance evidence obtained by the mother against the father.

Finding that the father's demanding schedule as a medical resident made him largely unavailable to parent the children without delegating to his extended family, the court ordered primary residence to the mother with the father having alternate weekends and Wednesday overnights.

The court also ordered the children to attend the school proposed by the mother and ordered the father to pay table child support.

The Waterloo Region District School Board appealed an Ontario Municipal Board decision awarding interest to Erbsville Road Development Inc. on expropriated land from the date of draft subdivision approval, rather than the later date of actual expropriation.

The Divisional Court dismissed the appeal, holding that under s. 33(1) of the Expropriations Act, interest can accrue from a date preceding expropriation when the owner ceases to make productive use of the land due to the impending expropriation.

The court found the board member's determination that productive use ceased upon draft approval was reasonable.