Kelly A. Gorman

The applicant, a repeat sex offender with multiple convictions involving female children, applied to vary a s. 161 Prohibition Order to allow contact with his fiancée's 9-year-old son, or alternatively, to have his fiancée approved as a supervisor.

The court found that while there was a change in circumstances, the proposed variation was not desirable.

The court noted the applicant's history of offending against children in his trust and found the fiancée lacked insight into his behaviour, making her an unsuitable supervisor.

The application was dismissed.

This sentencing decision concerns M.S., who was found guilty of sexual interference and two counts of assault against his daughters, A1 and A2.

The court reviews the facts of the offences, the impact on the victims, the offender’s background including Indigenous heritage and intergenerational trauma, and the results of a Gladue report and Sentencing Circle.

The court considers the principles of sentencing, including denunciation, deterrence, and the appropriateness of a conditional sentence.

Ultimately, the court imposes a conditional sentence of two years less a day for sexual interference, concurrent 90-day sentences for assault, followed by two years’ probation and various ancillary orders.

The defendants brought a motion under Rule 21.01(1)(a) to strike the plaintiff's defamation claim, arguing that the allegedly defamatory statements were protected by absolute privilege as they were made in preparation for contemplated litigation.

The plaintiff opposed and also had a separate motion for particulars.

The court first addressed the defendants' motion, admitting an affidavit from one of the defendants.

Applying the five factors for absolute privilege in pre-litigation communications, the court found that the communication was protected by absolute privilege, as it was directly concerned with actual or contemplated judicial proceedings and made for the purpose of obtaining evidence from a limited audience.

Consequently, the court granted the defendants' motion, striking the Statement of Claim without leave to amend.

The plaintiff, Sharon Gannon, brought a wrongful dismissal action against Kinsdale Carriers Limited following the closure of its trucking business due to the economic impact of the COVID-19 pandemic.

The court considered whether the plaintiff had advanced notice of the closure and, critically, whether she failed to mitigate her damages by refusing an offer of comparable employment.

The court found that the plaintiff had constructive notice of the impending closure and that she unreasonably rejected a comparable job offer from Zehr Transport.

Consequently, the plaintiff was not entitled to reasonable notice damages.

The plaintiff sued after an OPP vehicle struck his arm while he was riding a bicycle at dusk, alleging negligence, unlawful detention, Charter breaches, chronic injury, income loss, future care costs, special damages, and punitive damages.

The court found the defendant liable for the collision but held the plaintiff 40% contributorily negligent for riding a black bicycle in dark clothing without the fixed lights and reflectors required by the Highway Traffic Act.

Applying the Grant and MacDonald frameworks, the court held there was no detention and therefore no breach of ss. 9, 10(a), or 10(b) of the Charter, and no Charter damages under Ward.

Applying the Insurance Act threshold and O. Reg. 461/96 criteria, the court found the plaintiff failed to prove a permanent serious impairment, largely because of credibility concerns, inconsistent self-reporting, and surveillance evidence.

In the alternative, the court assessed general damages at $50,000, awarded $4,800 in future care costs and $12,806.90 in special damages, denied income-related and punitive claims, and awarded costs to the defendant.

The plaintiff, Mary Ann Pepper, brought a Rule 76 Simplified Procedure trial claiming damages for wrongful dismissal, breach of implied covenants, and damages under the Occupational Health and Safety Act and Human Rights Code, alleging constructive dismissal or discrimination based on mental health.

The defendant, Jeff Lamb, argued the plaintiff resigned after refusing a reasonable accommodation.

The court found the plaintiff was not a reliable historian and that the accommodation offered by the defendant was reasonable.

The court concluded that the plaintiff had resigned and dismissed the action.

The plaintiff brought an action for injuries sustained in a slip and fall on a wet surface near a private cottage driveway.

The defendant municipality brought a motion for summary judgment, arguing it had no jurisdiction over the area.

The plaintiff opposed the motion as premature because examinations for discovery had not yet occurred.

The court dismissed the motion, finding that granting summary judgment before the plaintiff had the opportunity to explore historic ownership and maintenance through discovery would run an extreme risk of prejudice.

The offender, a teacher, was found guilty of sexual exploitation of a student.

At sentencing, the offender brought a Charter challenge arguing that the mandatory minimum sentence of one year under s. 153 of the Criminal Code constituted cruel and unusual punishment under s. 12.

The court dismissed the constitutional challenge, finding the mandatory minimum was not grossly disproportionate given the breach of trust, grooming, and post-offence conduct.

The offender was sentenced to 18 months in jail followed by 12 months of probation, along with ancillary orders.

The 80-year-old accused was convicted of sexual interference involving a 9-year-old victim whom he tutored.

The Crown sought 12 months in jail, while the defence sought a conditional sentence.

The court noted the accused's severe medical issues and the risks posed by the COVID-19 pandemic in a custodial setting.

Applying the recent decision in R. v. Sharma, which struck down the prohibition on conditional sentences for offences with a 14-year maximum penalty, the court imposed a 12-month conditional sentence, finding that incarceration would likely be a death sentence for the accused.

The applicant, charged with possession of oxycodone and hydromorphone for the purpose of trafficking, brought a Rowbotham application for state-funded legal counsel after being denied Legal Aid.

The court found that the applicant failed to provide full and complete disclosure of her financial circumstances, noting substantial unexplained deposits and gambling expenses in her bank records.

Furthermore, the court held that the applicant failed to demonstrate that her right to a fair trial would be compromised without counsel, as the trial judge has a duty to assist a self-represented accused.

The application was dismissed.

The Applicant sought to increase spousal support from a 2010 divorce order, requesting $1327.00 per month for nine years, citing the termination of child support as a material change.

The Respondent sought to terminate spousal support entirely.

The court found the Applicant was still in need of support but noted a pattern of "under-performing" in her career efforts.

The court declined to increase support based on the Respondent's post-separation income increase, finding no direct link to the Applicant's contributions.

Spousal support was ordered to continue at the original amount of $375.00 per month for a further two years, after which it would terminate.

Gary Green pleaded guilty to multiple criminal offences including mischief, break and enter, theft, weapons possession, robbery, dangerous driving, flight from police, driving while disqualified, and breach of recognizance.

The court considered sentencing principles, including denunciation, deterrence, and rehabilitation, alongside significant mitigating Gladue factors due to the offender's Aboriginal status and difficult upbringing.

Despite the Crown seeking 8-10 years, the court imposed a sentence of time served plus one day, effectively crediting 3.5 years for pre-sentence custody, along with a two-year probation period and ancillary orders, emphasizing rehabilitation and the unique circumstances of Aboriginal offenders.

The accused was involved in a lengthy police pursuit while driving stolen vehicles, resulting in collisions with several police cruisers.

He pled guilty to numerous offences including dangerous driving, theft, and break and enter.

For the remaining charges of attempted murder, aggravated assault, and assault with a weapon against the officers, the central issue was intent.

Applying the W.D. framework, the court believed the accused's testimony that he was merely trying to escape and did not intentionally target the officers or their vehicles, resulting in acquittals on the contested charges.

The applicant, charged with sexual assault, assault, and choking, sought disclosure of the complainant's counselling records beyond what was initially consented to.

The applicant argued that inadvertent prior disclosure by the Crown negated the complainant's expectation of privacy and rendered the Criminal Code's s. 278 regime inapplicable.

The court rejected this argument, affirming that an accused cannot bypass the s. 278 procedure due to Crown negligence.

The court found the applicant's request for production was based on speculation and did not meet the threshold for likely relevance or necessity for full answer and defence, as required by s. 278.3(4) and established jurisprudence.

The application was dismissed.

Sentencing for prolonged sexual abuse of a child by her biological father, including repeated sexual touching, digital penetration, cunnilingus, and vaginal penetration.

The court treated denunciation and general deterrence as the overriding principles, and accepted appellate authority establishing a penitentiary range beginning at five years for prolonged child sexual abuse involving penetration by an adult in a position of trust.

While the offender's guilty plea, remorse, lack of record, depression, and medical condition were mitigating, the repetitive conduct, breach of trust, home setting, and penetration were substantial aggravating factors.

A sentence of five years' imprisonment and multiple ancillary orders were imposed.

Sentencing following guilty pleas to sexual assault, assault causing bodily harm, and forcible confinement arising from a prolonged and exceptionally violent intimate-partner attack in the victim’s home.

The court emphasized denunciation and deterrence, treated the guilty plea as mitigating, and found multiple aggravating factors including extreme violence, prolonged confinement, breach of trust, and the offender’s lengthy criminal record.

Rejecting the defence submission that a three-year starting point for a major sexual assault applied, the court held that the offender’s record and poor character materially increased moral blameworthiness.

A sentence of 8 years on forcible confinement, less enhanced credit for pre-trial custody, together with concurrent terms on the other counts and ancillary orders, was imposed.

The court accepted a joint sentencing submission for the accused, Jason Daniel.

The sentence included credit for 189 days of pre-sentence custody (calculated at 1.5x, totaling 284 days), an additional 60 days of intermittent custody, and two years of probation.

Probation conditions included non-association with specified individuals, reporting requirements, residence approval, counselling, and prohibitions against possessing controlled drugs/substances or weapons.

A DNA order was issued, and a $200 victim fine surcharge was imposed.

Michael Larson was sentenced for an offence that significantly impacted the Ontario Provincial Police and Elgin County citizens, involving the destruction of the only OPP vessel.

Aggravating factors included the undermining of police authority and potential public safety risks.

Mitigating factors were numerous: Larson was a youthful first offender, had no prior criminal record, entered a guilty plea, provided fulsome statements, was on bail without incident for 2.5 years, had an excellent pre-sentence report, demonstrated remorse, and remarkably, had saved $15,000 towards anticipated restitution.

The court distinguished his case from a co-accused due to his lack of criminal record and proactive restitution efforts.

The sentence included 10 days credit for time in custody (concurrent on two counts), three years probation, a DNA order, a restitution order totaling $52,640.81 (less the $15,000 already saved), non-association with the co-accused, and a prohibition on weapons and incendiary devices.

A victim fine surcharge of $400 was also imposed.

The appellant employer appealed a Small Claims Court decision finding it had wrongfully dismissed the respondent employee and breached the Human Rights Code.

The employee was terminated after a 28-month disability leave, despite providing a return-to-work plan.

The Divisional Court upheld the trial judge's findings that the employment contract was not frustrated, the employer failed to accommodate the employee, and disability benefits paid by a third-party insurer were not deductible from the wrongful dismissal damages.

The appeal was dismissed.

The defendants moved for summary judgment in multiple consolidated medical malpractice actions, arguing that the plaintiffs' claims were statute-barred by the Limitations Act, 2002.

The plaintiffs contended that their claims were only discovered after a 2011 press release and media coverage regarding allegations against Dr. Frank.

The court applied the objective discoverability test, finding that the plaintiffs were aware, or ought to have been aware, of the material facts giving rise to their claims well before the press release.

The information from the press release did not provide new material facts related to their individual care but rather served as evidence to support existing allegations.

Consequently, the court determined that the plaintiffs failed to demonstrate due diligence in discovering their claims, and thus, their actions were statute-barred.