Kathleen E. Cullin

The accused was charged with first degree murder in the death of his half-brother, which occurred on October 24, 2009.

The Crown alleged that the accused shot his brother with a shotgun following an argument about household cleanliness.

The central issues were whether the accused was not criminally responsible due to a mental disorder, whether he possessed the requisite intent for murder, and whether the killing was planned and deliberate.

The court found the accused suffered from a mental disorder (schizophrenia) but was not rendered incapable of appreciating the wrongfulness of his acts.

The court found the accused had the requisite intent for murder but was not satisfied the killing was planned and deliberate.

The accused was convicted of second degree murder rather than first degree murder.

The plaintiff brought two motions: (1) to add LEA Consulting Ltd. as a defendant, which proceeded with consent; and (2) to compel the defendant, His Majesty the King in Right of Ontario, represented by the Minister of Transportation, to answer undertakings and re-attend for continuation of oral examination for discovery at their own expense.

The defendant failed to disclose the involvement of LEA Consulting Ltd., an onsite contract administrator, and relevant documents prior to discovery.

The court found that this failure undermined the purpose and utility of the discovery and granted the motion to compel re-attendance at the defendant's expense.

The court awarded costs to the plaintiff in the amount of $4,243.15.

The respondent brought a motion seeking to set aside a Registrar's Order to Continue, dismiss the application for delay, dismiss the application against the Estate of Nova Joseph Maille and Concentra Trust as Estate Trustee, and appoint an alternative Estate Trustee during litigation.

The motion was dismissed due to the absence of supporting evidence.

The respondent failed to file any affidavit in support of the motion and relied instead on privileged settlement materials and arguments protesting the contents of affidavits filed by other parties without evidentiary foundation.

The court found the motion ill-fated on its merits and ordered the respondent to pay costs to the applicants and the Estate.

The court considered written submissions on costs following the granting of summary judgment in favour of the defendant, The Corporation of the City of Timmins.

The defendant sought substantial indemnity costs, while the self-represented plaintiff argued for no costs or, alternatively, costs in his favour for a disclosure motion.

The court reviewed the relevant legal framework, including the Courts of Justice Act and Rules of Civil Procedure, and found that the defendant was entitled to substantial indemnity costs throughout, given the plaintiff’s prior similar litigation and the defendant’s early offer to settle.

The court adjusted the quantum of costs to reflect partial success on a disclosure motion and awarded a total of $80,631.57 to the defendant.

The decision addresses motions for a representative order and for an interlocutory injunction in the context of the de-rostering of patients from a community health centre in Sault Ste.

Marie.

The plaintiff, Michael Da Prat, sought to represent both subscribers and non-subscribers of the Group Health Centre, challenging the de-rostering as a breach of contract, a violation of the Human Rights Code, and as oppressive conduct under corporate statutes.

The court granted a representative order only for the breach of contract claim on behalf of subscribers, denied it for other claims and for non-subscribers, and refused the interlocutory injunction, finding no strong prima facie case or irreparable harm.

The plaintiffs sought partial summary judgment in a civil action for damages following a motor vehicle accident, arguing that the defendant should be bound by findings made in a prior provincial offences trial acquitting the driver of careless driving.

The court denied the motion, holding that the findings in the earlier trial were not determinative of the issues in the civil action, given the different burdens of proof and the fact that the defendant was not a party to the earlier proceeding.

The court found that relitigation of the driver’s role in the accident was not an abuse of process and that the defendant should be permitted to fully marshal evidence at trial.

This endorsement addresses a case conference during an ongoing trial, where both parties sought to admit further evidence.

The court set out a process for the parties to attempt consent on the admission of new documents, established a timetable for the exchange of motion materials, and clarified that all communications should be between counsel of record or self-represented parties.

The court also outlined procedures for cross-examination on affidavits and provided for further case management as needed.

The appellants appealed a trial judgment and costs decision resulting from four consolidated actions related to a construction project.

The appellants argued the trial judge erred by admitting hearsay evidence (trucking invoices and dump tickets) without requiring the truck drivers to testify, and by misapprehending evidence regarding soil quality and excavation.

The Divisional Court dismissed the appeal, finding the trial judge properly admitted the documents under the principled approach to hearsay through viva voce testimony, especially since the appellants had not objected at trial and had taken an 'all or nothing' approach by alleging fraud.

The court also found no palpable and overriding error in the trial judge's factual findings regarding the poor soil conditions and the necessity of trucking soil offsite.

The appeal regarding the apportionment of storage costs for a Ferrari given as compensation was also dismissed.

The applicant appealed an order granting the interim partition and sale of a jointly owned home prior to trial.

The parties, former spouses, separated in 2016, with the applicant remaining in the home.

The Divisional Court found no error in the motions judge's application of the principles governing partition and sale, noting the applicant failed to establish prejudice and the respondent had been deprived of her equity for over seven years.

The appeal was dismissed with costs.

The applicant sought a bail review under s.520 of the Criminal Code, challenging a prior detention order.

The court found new evidence demonstrating a material change in circumstances, allowing the review.

However, the applicant's updated bail plan, particularly concerning unstable housing and proximity to a prohibited person, failed to satisfy the secondary grounds for release, leading to the continued detention of the applicant for public safety.

The applicant sought judicial review of a decision by the Ontario Provincial Police concluding that the misconduct of two officers, one of whom struck and killed the applicant's spouse with a police vehicle, was 'not of a serious nature'.

The Divisional Court held that the OPP was required to provide written reasons justifying its conclusion, given the severity of the incident and the statutory framework.

The court found the OPP's decision unreasonable because it merely listed generic factors without explaining how they applied to the specific officers.

The decision was quashed and remitted for a fresh determination.

This endorsement arises from a case management conference concerning the defendants' summary judgment motion.

The court addressed disagreements between the parties regarding the timetable and the filing of evidence, particularly concerning examinations of non-party witnesses under Rule 39.03.

The judge clarified the purpose of the pre-motion conference and ruled on the admissibility of additional evidence post-conference and after Rule 39.03 examinations, adopting the reasoning from Martin v. Kiewit Alarie A Partnership.

A detailed timetable for the motion was ordered.

The appellant appealed a decision of the Social Benefits Tribunal which upheld the denial of his application for Ontario Disability Support Program benefits.

The Tribunal found that while the appellant had continuous impairments, they were not substantial and did not substantially restrict his activities of daily living.

The Divisional Court applied the correctness standard of review and found no error of law in the Tribunal's assessment of the evidence.

The appeal was dismissed.

The appellant appealed a License Appeal Tribunal (LAT) decision denying his claims for a catastrophic impairment designation, attendant care benefits, and various treatment plans following a motor vehicle accident.

The Divisional Court found no errors of law in the LAT Vice-Chair's application of the 'but for' causation test or her factual findings that the appellant's ongoing impairments were not accident-related.

The court also held that the LAT correctly dismissed the claims for treatment plans and attendant care benefits, as the appellant had no accident-related impairments during the relevant periods.

The appeal was dismissed.

The defendants brought a motion to strike the plaintiff's 2,250-page affidavit, filed in response to a summary judgment motion, arguing it contained inadmissible hearsay and irrelevant evidence.

The court granted the defendants' request, striking the affidavit in its entirety with leave for the plaintiff to file a fresh affidavit.

The decision emphasized that the affidavit was prejudicial to a fair hearing and an abuse of process due to its voluminous and inadmissible content, providing specific directions on evidentiary requirements for summary judgment motions.

The appellant appealed a summary judgment order requiring him to pay $193,596.50 to the respondent for her share of a joint bank account following their separation.

The appellant argued there was a genuine issue for trial regarding the quantum owed and that he was entitled to a trial under Rule 16(7) of the Family Law Rules.

The Divisional Court dismissed the appeal, finding the motion judge made no error in relying on the appellant's failure to respond to a Request to Admit, which deemed the quantum admitted.

The court held the motion judge properly applied the summary judgment framework and made no palpable and overriding error.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision dismissing her discrimination application against a grocery store for requiring her to wear a mask.

The Tribunal had dismissed the application because the applicant failed to provide sufficient medical evidence substantiating a disability under the Human Rights Code.

The Divisional Court dismissed the application for judicial review, finding the Tribunal's request for further medical evidence was reasonable and that the Tribunal did not breach procedural fairness, as the applicant was given multiple opportunities to provide the required information.

The tenants appealed and sought judicial review of a Landlord and Tenant Board decision that terminated their tenancy for non-payment of rent and awarded partial rent abatements for maintenance issues.

The tenants argued the Board erred in its interpretation of the Residential Tenancies Act, failed to find serious breaches by the landlords that would preclude eviction, and exhibited bias.

The Divisional Court dismissed the appeal and application, finding the Board's conclusions were reasonable, the tenants were not entitled to self-abate rent, and the minor errors alleged did not warrant interference.

The appellant father appealed a finding of contempt and the resulting sanctions for breaching parenting terms in a final consent order.

The motion judge had suspended the respondent mother's child support obligations and barred the father from bringing further proceedings until he complied.

The Divisional Court upheld the contempt finding, noting the father's deliberate and financially motivated breaches.

However, the court allowed the appeal regarding the sanctions, finding that suspending ongoing child support and imposing an unbounded penalty were errors in principle.

The court substituted a fixed penalty of $36,000 against the father, stayed pending his commencement of a motion to change support.

The appellant appealed a decision of the Social Benefits Tribunal which upheld the denial of his application for Ontario Disability Support Program benefits.

The Divisional Court found that while the Tribunal correctly assessed the appellant's physical impairments, it erred in law by disregarding and failing to appreciate relevant evidence regarding his long-standing mental health impairments.

The appeal was allowed and the matter was returned to the Tribunal for a re-hearing before a different member.