Julianne A. Parfett

The moving party mother sought to vary a temporary consent order to allow for increased, unsupervised access to her child, as well as a restraining order against the responding party father.

The mother had previously consented to supervised access due to severe substance abuse issues but had since demonstrated significant efforts towards sobriety and rehabilitation.

The court found a material change in circumstances and determined it was in the child's best interests to gradually increase the mother's access and remove the supervision requirement, subject to strict conditions including random drug testing and COVID-19 protocols.

The court also granted the restraining order but declined to order counselling for the child.

The applicant, Awso Peshdary, facing terrorism charges, brought applications under s. 7 of the Charter and s. 38.14 of the Canada Evidence Act, seeking a stay of proceedings or exclusion of evidence due to the destruction of notes by a key Crown witness (A.M.), a former CSIS human source.

As part of these applications, Peshdary sought disclosure of various CSIS documents, including policies on human source handling, drafts of an affidavit from a CSIS employee ('John'), and materials related to A.M.'s handler.

The court granted disclosure for CSIS policies related to human source safety and note-taking, finding them relevant to the Charter application concerning the right to make full answer and defence.

However, it denied disclosure for draft affidavits and handler-related materials, citing litigation privilege and lack of likely relevance, or prior Federal Court rulings on privilege.

This endorsement addresses the issue of costs following a successful motion by the defendant to dismiss the plaintiff's action for lack of jurisdiction.

The defendant, as the successful party, sought costs.

The plaintiff opposed, arguing bad faith due to a forum selection clause.

The court applied Rule 57.01 of the Rules of Civil Procedure, considering factors such as complexity, importance, and reasonable expectations.

The court found partial indemnity costs appropriate and ordered the plaintiff to pay $8,000 to the defendant, inclusive of disbursements and HST.

The Crown appealed the accused's acquittal on a charge of driving over 80mg.

The trial judge had acquitted the accused after finding the Crown failed to prove identity and that the accused's section 8 and 9 Charter rights were breached because the arresting officer misspoke the blood alcohol formula.

The Superior Court of Justice allowed the appeal, finding the trial judge made a palpable and overriding error by ignoring agreed statements of fact regarding identity, and erred in law in her section 24(2) analysis by excluding the breathalyzer evidence for a minor technical breach.

The accused's cross-appeal alleging a section 10(b) breach was dismissed, as the police exercised reasonable diligence in attempting to contact his counsel of choice.

A new trial was ordered.

The appellant appealed a Master's decision appointing an Estate Trustee During Litigation (ETDL) to manage an intestate estate.

The appellant argued the Master exceeded her jurisdiction by effectively removing her as administrator and authorizing the ETDL to distribute the residue of the estate.

The Divisional Court dismissed the appeal, finding no error in the Master's decision to appoint an ETDL due to the adversarial relationship between the parties.

However, the court noted that certain provisions of the resulting order exceeded the Master's jurisdiction and directed the parties to amend the order or return to the Master.

The Children's Aid Society of Ottawa brought a protection application concerning two children, S.B. and A.O.H., alleging physical harm and a pattern of neglect by their mother.

The mother failed to attend trial, and her counsel was removed.

The fathers of the children agreed with the Society's protection findings and sought custody.

The court found the children in need of protection due to the mother's inappropriate physical discipline, inadequate supervision, lack of provision for necessities, and threats.

Custody of S.B. was granted to her father, and joint legal custody of A.O.H. was granted to her paternal grandmother and father, with primary residence with the grandmother.

Access to the mother was made discretionary for the custodial parents, considering the children's views and best interests.

Orders were also made to facilitate obtaining passports for the children without the mother's consent.

The applicant children's aid society brought a motion for summary judgment seeking a finding that the two children were in need of protection and an order for extended society care.

The mother consented to statutory findings but opposed the protection and disposition orders.

The court granted summary judgment on the protection issue, finding the children in need of protection due to the mother's paranoid personality disorder, frequent moves, and use of physical discipline.

However, the court found a genuine issue for trial regarding the final disposition, as the mother had recently made significant efforts to improve her parenting and engage in counselling.

The applicant, who was convicted of sexual assault, applied for state-funded counsel under s. 684 of the Criminal Code to assist with his appeal.

The court found that while the applicant lacked the financial means to retain counsel, he failed to demonstrate an arguable case on appeal regarding alleged misapprehension of evidence and trial judge bias.

The application was dismissed as the applicant was also deemed capable of representing himself.

The Crown appealed the respondent's acquittal on impaired driving charges, arguing the trial judge erred in finding a breach of s. 10(b) of the Charter and in excluding breathalyzer evidence under s. 24(2).

The trial judge had found breaches of ss. 8, 9, and 10(b) due to a four-minute delay in making an ASD demand and a six-minute delay in reading rights to counsel.

The Superior Court upheld the s. 10(b) breach finding but concluded the trial judge erred in her s. 24(2) analysis by failing to assess the specific impact of the ss. 8 and 9 breaches on the respondent's Charter-protected interests, instead relying solely on the cumulative effect of multiple breaches.

The appeal was allowed and the matter remitted for a limited trial on the s. 24(2) analysis.

Miles Kempffer-Hossack pleaded guilty to multiple counts of firearms transfer, possession of firearms without a licence, and possession of Schedule I drugs for the purpose of trafficking, arising from an Ottawa Police investigation (Project Sabotage) into gun violence.

The court considered aggravating factors including the quantity and prohibited nature of the weapons, the presence of a booby-trapped window and explosive devices, and the dangerous combination of drugs and guns.

Mitigating factors included the offender's youth, lack of prior criminal record, guilty plea, and demonstrated efforts towards rehabilitation.

The Crown sought a 10-year custodial sentence, while the defence sought 6 years.

The court imposed a total custodial sentence of 9 years, less pre-sentence custody, along with ancillary orders for DNA, a lifetime weapons prohibition, and forfeiture.

The Crown brought an ex parte motion for certiorari and mandamus to compel a reviewing justice to consider a search warrant application on its merits.

The reviewing justice had rejected the warrant on its face because it listed a police locker as the place to be searched and electronic devices as the things to be seized, stating a warrant was not required to search a police locker.

The Superior Court held that characterizing an electronic device as an item to be seized and searched, rather than as a place to be searched, does not invalidate the warrant.

The court found the reviewing justice made an error in law and issued the order for certiorari and mandamus.

The accused was charged with sexually assaulting his wife during their marriage.

The Crown's case relied on a single incident from 2002.

The court applied the W.D. framework to assess credibility, finding the accused's evidence raised a reasonable doubt.

The court also noted significant inconsistencies in the complainant's testimony and a strong motive to fabricate arising from a bitter family court dispute over child custody and access.

The charge was dismissed.

The accused, J.S., pleaded guilty to one count of sexual touching against his daughter (P.S.) and one count of sexual assault against a family friend (C.C.), both minors.

The court considered the circumstances of the offences, the offender's background including mental health issues and military service, and victim impact statements.

Applying sentencing principles of denunciation and deterrence, and considering statutory aggravating factors (abuse of a person under 18, abuse of trust) and mitigating factors (no criminal record, guilty plea, remorse, mental health treatment), the court imposed a total custodial sentence of three and a half years' jail.

Ancillary orders included a weapons prohibition, DNA order, s. 161 order, s. 743.21 order, and a S.O.I.R.A. order.

The Brockville Mental Health Centre appealed a $75,000 fine plus victim surcharge imposed after its conviction under s. 32.0.3(4) of the Occupational Health and Safety Act for failing to reassess workplace violence risks.

The appeal argued errors in principle regarding the connection between conviction and harm, the use of multiple incidents as an aggravating factor, and the treatment of publicly-funded institutions in sentencing.

The court dismissed the appeal, finding no error in the trial judge's assessment of aggravating factors or in treating the hospital's public status as a neutral factor. interesting_citations_summary: > This decision clarifies the application of sentencing principles under the Occupational Health and Safety Act, particularly for publicly-funded institutions.

It affirms that a connection between the offence (failure to reassess risks) and the harm caused can be considered, and that a series of incidents can be an aggravating factor.

It also holds that a trial judge's decision to treat a public institution's status as a neutral sentencing factor, absent legislative direction or binding caselaw, is not an error in principle, distinguishing from other cases that might consider it mitigating. final_judgement: "The appeal from sentence is denied." winning_degree_applicant: 5 winning_degree_respondent: 1 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2019 decision_number: 3805 file_number: "CR-14-643" source: "https://www.canlii.org/en/on/onsc/doc/2019/2019onsc3805/2019onsc3805.html" cited_cases: legislation: - title: "Occupational Health and Safety Act, R.S.O. 1990, c.

O.1" url: "https://www.ontario.ca/laws/statute/90o01" - title: "Provincial Offences Act, R.S.O. 1990, c.

P.33" url: "https://www.ontario.ca/laws/statute/90p33" case_law: - title: "R. v. Boissoneau, [2016] O.J. No. 916 (SCJ)" url: "https://www.canlii.org/en/on/onsc/doc/2016/2016onsc916/2016onsc916.html" - title: "R. v. Rezaie, (1996), 112 C.C.C.(3d) 97 (OCA)" url: "https://www.canlii.org/en/on/onca/doc/1996/1996canlii1241/1996canlii1241.html" - title: "R. v. Lacasse, [2015] SCC 64" url: "https://www.canlii.org/en/ca/scc/doc/2015/2015scc64/2015scc64.html" - title: "R. v. McKnight (1999), 135 C.C.C.(3d) 41 (OCA)" url: "https://www.canlii.org/en/on/onca/doc/1999/1999canlii3717/1999canlii3717.html" - title: "R. v. Nasogaluak, 2010 SCC 6" url: "https://www.canlii.org/en/ca/scc/doc/2010/2010scc6/2010scc6.html" - title: "R. v. Cotton Felts, [1982] O.J. No. 178 (CA)" url: "https://www.canlii.org/en/on/onca/doc/1982/1982canlii3695/1982canlii3695.html" - title: "R. v. Wayfair, unreported decision of Justice of the Peace R. Rerup, issued December 21, 2017" url: "" keywords: - Occupational Health and Safety Act - Workplace violence - Sentencing appeal - Publicly-funded institution - Aggravating factors - Mitigating factors - Error in principle - Provincial Offences Act areas_of_law: - Occupational Health and Safety Law - Administrative Law - Criminal Law (Sentencing) --- # Court File and Parties **Court File No.:** CR-14-643 **Date:** 2019-06-19 **Ontario Superior Court of Justice** **Between:** The Royal Ottawa Health Care Group operating as The Brockville Mental Health Centre, Appellant – and – Her Majesty the Queen in right of Ontario (The Ontario Ministry of Labour), Respondent **Counsel:** Stephen Bird, for the Appellant Grainne McGrath & Graeme Adams, for the Respondent **Heard:** November 22, 2018 (at Brockville) --- # Reasons for Decision **PARFETT, J** [1] The Brockville Mental Health Centre (Hospital) was convicted pursuant to s. 32.0.3(4) of the [Occupational Health and Safety Act](https://www.ontario.ca/laws/statute/90o01) (OHSA) and sentenced to a fine of $75,000, plus a victim fine surcharge.

It appeals from that sentence. ## Background [2] The Hospital was charged as an employer with multiple offences related to workplace violence following a series of assaults and attempted assaults on workers at the Hospital between August 2014 and October 2014.

The same patient was the perpetrator of all the incidents.

On April 25, 2017, the Hospital was convicted of a single count of ‘failing, as an employer, to reassess the risks of workplace violence and ensure the related policy and programs continued to protect workers from workplace violence as required by s. 32.0.3(4) of OHSA.’ [2] [3] The Hospital is a specialized mental health facility that includes a forensic treatment unit.

The forensic treatment unit includes a unit for patients who were there for court ordered assessments, for stabilization or in order to keep them psychiatrically fit while awaiting trial.

It was the most volatile and unstable unit in the Hospital. [4] In August 2014, the Hospital accepted as a patient a woman with a complex history of mental illness, which included a long history of unpredictable violence to others, including caregivers.

The assaults began within days of this patient’s arrival at the Hospital. [5] There were 14 assaults committed by this patient on workers prior to the final incident that occurred on October 10, 2014.

On that day, as the nurse was escorting the patient to the washroom, the patient stabbed the nurse repeatedly in the head and neck area with a pen.

Staff intervened and stopped the patient.

However, the nurse was seriously injured and had to be taken to hospital given one of the stab wounds was very close to the carotid artery.

The nurse has not worked since this incident and she continues to suffer from PTSD. [6] On August 16, 2017, the trial judge imposed a sentence of $75,000 plus victim fine surcharge of 20%. [7] The Appellant contends that the trial judge made an error in principle by failing to consider a relevant factor, overemphasizing a factor and thereby imposed a sentence that was demonstrably unfit.

Specifically, the Appellant states that the trial judge erred by finding: * There was a connection between the conviction and the harm caused; * The multiple incidents of violence were an aggravating factor; and * The fines imposed for convictions under the OHSA should not differ between public not-for-profit companies and private companies. ## Legal Principles [8] Counsel are in agreement on the legal principles to be applied on an appeal from sentence. [9] Section 122 of the [Provincial Offences Act](https://www.ontario.ca/laws/statute/90p33) governs sentencing appeals and provides that the reviewing court ‘shall consider the fitness of sentence appealed from and may …(a) dismiss the appeal; or (b) vary the sentence within the limits prescribed by law for the offence of which the defendant was convicted.’ [3] [10] As noted in [R. v. Boissoneau, [2016] O.J. No. 916 (SCJ)](https://www.canlii.org/en/on/onsc/doc/2016/2016onsc916/2016onsc916.html), ‘sentencing decisions are entitled to significant deference unless the sentencing judge has made an error in principle.’ [4] An error in principle occurs when a sentencing judge has failed to take into account a relevant factor, taken into account an irrelevant factor, failed to give sufficient weight to relevant factors, overemphasized a relevant factor or committed an error of law: [R. v. Rezaie, (1996), 112 C.C.C.(3d) 97 (OCA) at para. 20](https://www.canlii.org/en/on/onca/doc/1996/1996canlii1241/1996canlii1241.html#par20). [11] In [R. v. Lacasse, [2015] SCC 64](https://www.canlii.org/en/ca/scc/doc/2015/2015scc64/2015scc64.html), the Supreme Court of Canada noted"This Court has on many occasions noted the importance of giving wide latitude to sentencing judges.

Since they have, inter alia, the advantage of having heard and seen the witnesses, sentencing judges are in the best position to determine, having regard to the circumstances, a just and appropriate sentence…" (at para. 11).

More specifically, the Court stated that the reviewing court should not intervene simply because it would have weighed the relevant factors differently (at para. 49).

The question is whether by placing more weight on one factor than another, the sentencing judge has acted unreasonably: [R. v. McKnight (1999), 135 C.C.C.(3d) 41 (OCA) at para. 35](https://www.canlii.org/en/on/onca/doc/1999/1999canlii3717/1999canlii3717.html#par35), as cited in [R. v. Nasogaluak, 2010 SCC 6 at para. 46](https://www.canlii.org/en/ca/scc/doc/2010/2010scc6/2010scc6.html#par46).

Finally the Court notes that the choice of sentencing range cannot be of itself a reviewable error: Lacasse at para. 51. [12] In [R. v. Cotton Felts, [1982] O.J. No. 178 (CA)](https://www.canlii.org/en/on/onca/doc/1982/1982canlii3695/1982canlii3695.html), the Ontario Court of Appeal set out the criteria relevant to sentencing in the context of the OHSA.

The court held: "To a very large extent the enforcement of [public welfare] statutes is achieved by fines imposed on offending corporations.

The amount of the fine will be determined by a complex of considerations, including the size of the company involved the scope of the economic activity in issue, the extent of actual and potential harm to the public, and the maximum penalty prescribed by statute.

Above all, the amount of the fine will be determined by the need to enforce regulatory standards by deterrence…" (at para. 19). [13] In determining the amount of the fine, the court is expected to find an amount that ‘without being harsh [is] substantial enough to warn others that the offence will not be tolerated.

It must not appear to be a mere licence fee for illegal activity’ (at para. 22). [14] All these principles must be taken into consideration in sentencing an offender.

However, imposing a significant fine on a publicly-funded institution may have a disproportionately deleterious effect.

In R. v. Wayfair, unreported decision of Justice of the Peace R. Rerup, issued December 21, 2017, the court noted"The effect of a financial penalty on this public institution may be greatly realized in the community though potential employment cuts, cuts to service, and business lost to local suppliers of the hospital should I impose a significant fine.

I balance that with the hospital’s obligation to take significant steps to protect its employees to the highest level possible" (at p. 4). [15] The sentencing judge in the present case also wrestled with this issue.

He stated"Workers at the BMHC deserve the same protections as workers for a private employer and the fines imposed should not differ between public not-for-profit companies and private companies." [16] [16] As the Crown pointed out, there is no provision in the legislation itself distinguishing private corporations from non-profit public institutions. ## Analysis [17] The Appellant argues that the trial judge erred when he indicated on sentencing that there was a connection between the conviction and the harm caused.

The Appellant took the position that had there been any connection between the harm done to workers and the offence for which it was convicted, the hospital would have been convicted of a different offence.

I disagree. [18] Section 32.0.3(4) contemplates the possibility of harm.

That offence states"Failing, as an employer, to reassess the risks of workplace violence and ensure the related policy and programs continue to protect workers from workplace violence." [17] [19] As noted by the trial judge in his reasons for judgment, he convicted the hospital of this offence because"[A]t some point, when the assaults and the attempted assaults kept occurring, a full risk reassessment of the unit with [the patient] on it was required to re-address the risk of workplace violence and not just the treatment plan for [the patient]." [18] [20] The harm being done to the workers by the continued assaults and attempted assaults was an integral part of the determination that the hospital failed to reassess its policies in the face of an obvious need to do so. [21] In my view, this determination by the trial judge also supports his use of the continued assaults and attempted assaults as an aggravating factor.

It was not the mere fact of the previous assaults that the trial judge found was an aggravating factor; it was the fact there had been a series of assaults. [22] It should be noted that the trial judge also found a number of mitigating factors that he took into consideration in his sentencing, including: * No prior convictions; [19] * Employees were properly trained and proper procedures were in place; [20] and * Additional security measures were put in place to deal with this patient. [21] [23] As a result, I cannot find that the trial judge erred in his assessment of the aggravating factors. [24] The final issue is whether the fact the hospital is a publicly-funded institution should be considered a mitigating factor.

The trial judge found that it was a neutral factor.

The Wayfair case is the only case that counsel provided that dealt directly with this issue.

This case was decided after the present case and the trial judge could not have taken it into consideration.

It is not a case that is binding on this court.

In my view, the position taken in the present case is equally valid as that taken in the Wayfair case.

Absent any legislative pronouncement or binding caselaw on this issue, I find that it was not an error in principle for the trial judge to decide the hospital’s status was a neutral factor. [25] For all the reasons outlined above, the appeal from sentence is denied. --- Madam Justice Parfett Released: June 19, 2019

The Applicant sought three orders: to declare a Small Claims Court decision a nullity, to have a motion to strike defences heard by the Superior Court, and to transfer two Small Claims Court actions to the Superior Court.

The Applicant alleged judicial bias in the Small Claims Court.

The Superior Court dismissed the application, finding it was not properly before the court under Rule 14.05(3) of the Rules of Civil Procedure, as it was essentially an interlocutory appeal not yet ripe for the Divisional Court.

The court also found no new facts to warrant transferring the Small Claims Court actions to the Superior Court, despite the Applicant's concerns about fairness, noting other Deputy Judges were available.

The applicant sought an order postponing an upcoming trial or requiring security for costs due to the respondent's failure to pay outstanding costs awards and child support arrears.

The respondent sought leave to bring a motion to vary child support.

The court found that the respondent's efforts to pay child support arrears were inadequate to justify granting leave for his motion to vary.

However, given the respondent's apparent impecuniosity, the court declined to order security for costs or stay the proceedings, directing that the trial proceed as expeditiously as possible.

The accused, Forhad Choudhury, brought a motion for a stay of proceedings based on an alleged infringement of his right to be tried within a reasonable time under s. 11(b) of the Charter.

The total delay was approximately 47 months.

Applying the R. v. Jordan framework, the court found that a significant portion of the delay (approximately one year related to setting the first trial date) was attributable to the defence due to unavailability and implicit waiver.

Another period of delay (approximately five months after a guilty plea was struck) was attributed to the Crown due to an incorrect legal position on the definition of possession of a firearm.

However, even with this attribution to the Crown, the net delay remained below the 30-month presumptive ceiling for Superior Court cases.

Consequently, the court found no breach of the accused's s. 11(b) rights, and the application for a stay of proceedings was dismissed.

The accused, C.L., was found guilty of sexual assault after a jury trial.

The court considered aggravating factors, including the victim's age (17), the nature of the assault (intercourse), and the accused's disregard for the victim's feelings, balanced against mitigating factors such as the accused's youth (20 at the time of offence, 25 at sentencing), lack of prior criminal record, and a positive pre-sentence report indicating low risk of reoffending.

Applying sentencing principles of denunciation and deterrence, and considering the usual range for similar offences, the court imposed a sentence of two years imprisonment.

Donald Schultz, a director at Canada Lands Company CLC, was terminated with cause for alleged misconduct during procurement processes.

The court found that while some of Schultz's actions were inappropriate (e.g., providing a draft recommendation memo with confidential competitor information, attending social events with proponents during procurement), they did not constitute misconduct severe enough to warrant termination with cause, especially considering mitigating factors such as tight timelines, the employer's inconsistent policy enforcement, and lack of proper investigation.

The court awarded Schultz 12 months' reasonable notice, benefits, and a portion of his bonus, but denied moral and punitive damages.

The applicant sought an order to excise information obtained through a Canadian Security Intelligence Service (CSIS) Act authorization, which was subsequently used by the Royal Canadian Mounted Police (RCMP) to secure a Criminal Code authorization for intercepting private communications.

The applicant alleged infringements of Charter s. 8 rights and the right to full answer and defence.

The court determined that the CSIS Act warrant met the minimum criteria for a lawful search, and the information derived from it did not violate s. 8.

Furthermore, the applicant's right to full answer and defence was not denied, as substantial disclosure of source documents related to the CSIS Act warrant had been obtained through prior third-party records applications.

Consequently, the application to excise the information was denied.