Kevin John Mitchell-Gill

Costs ruling following a jury trial in which the plaintiff succeeded on a malicious prosecution claim but failed on wrongful arrest and excessive force claims.

The jury awarded $63,900 in damages, which exceeded the plaintiff's Rule 49 offer to settle.

The court applied a 20% reduction to counsel fees to reflect divided success, deducted $20,000 for the use of two senior counsel, and disallowed expert disbursements of $19,700 related to the unsuccessful claims.

The court rejected a distributive costs approach and held that the plaintiff was entitled to substantial indemnity costs from the date of the Rule 49 offer, awarding total costs of $180,220.70.

The moving party sought an extension of time under r. 53.03(4) of the Rules of Civil Procedure to serve a responding orthopaedic expert report after the pre-trial conference deadline.

The court applied r. 53.08(1), including post-amendment authorities emphasizing that late expert reports are not to be routinely permitted and that the moving party must show both a reasonable explanation and no non-compensable prejudice or undue trial delay.

The court found the missed deadline was caused by inadvertence in trial scheduling communications rather than inattentiveness to the file, and accepted that explanation as reasonable on the record.

The court also found any prejudice could be addressed by costs and that trial delay was not established.

The motion was granted, with the moving party required to pay reasonable costs of an expedited reply report, and no costs were ordered on the motion.

The decision addresses a dispute over a jury verdict in a civil action brought by Andrew Sanayhie against the Durham Regional Police Services Board and two officers.

The plaintiff alleged wrongful arrest, excessive force, and malicious prosecution.

The jury's initial verdict was inconsistent, awarding damages for malicious prosecution despite finding no malice.

The court sent the jury back for clarification, and the second verdict found malice and again awarded damages.

The court held that it was appropriate to seek clarification from the jury before discharge, dismissed the defendants’ motion for judgment in their favour, and entered judgment for the plaintiff on malicious prosecution and legal expenses.

The court considered whether a key police witness, Officer Jonathan Hood, should be permitted to testify virtually due to psychological health concerns.

The plaintiff objected, arguing in-person testimony was necessary for the jury to assess credibility and demeanor.

The court reviewed the relevant Rules of Civil Procedure and expert evidence from Dr. Christine Hansen, ultimately concluding that the balance of convenience favoured allowing virtual testimony in light of Officer Hood’s diagnosed PTSD and related conditions.

The accused was charged with sexually assaulting his former girlfriend.

The complainant testified that the accused came to her apartment intoxicated, repeatedly asked for sex, and after she refused and went to sleep, she awoke to find him on top of her with her pajama bottoms pulled down.

A witness staying at the apartment corroborated the complainant's immediate distress and the accused's stated intention to have sex with her.

The court found the complainant's evidence credible and corroborated, and found the accused guilty of sexual assault.

Clyde Sollows pleaded guilty to second-degree murder of his 76-year-old father, Walter Sollows.

The court considered aggravating factors including the victim's age, the breach of trust, and elements of planning and deliberation, alongside mitigating factors such as the guilty plea, cooperation with police, and the history of abuse by the father.

The joint submission for a parole ineligibility period of seventeen years was accepted, along with a DNA order and weapons prohibition orders.

The defendant pleaded guilty to five counts of Fraud Over $5,000 contrary to section 380(1)(a) of the Criminal Code.

The frauds involved the misappropriation of approximately $575,583.64 from the Kendalwood Montessori School between December 2012 and May 2014, and fraudulent investment schemes involving multiple complainants.

The defendant, a chartered accountant, exploited positions of trust and personal relationships to commit the offences.

The court imposed a sentence of 25 months incarceration on the Kendalwood fraud count (consecutive to other counts), ordered restitution of $450,602.64, imposed a fine in lieu of forfeiture of $450,602.64 payable over six years, and issued a ten-year prohibition order restricting the defendant's ability to provide financial and investment advice.

The accused was convicted following trial of intentionally causing damage by fire to a property owned in part by another person, contrary to section 434 of the Criminal Code.

The accused set three fires in her home in Millbrook on June 10, 2014, designed to appear accidental.

The fires resulted in heat exhaustion injuries to three volunteer firefighters and costs of $10,125 to the Township of Cavan Monaghan.

The court imposed a sentence of five months imprisonment followed by two years probation with conditions including community service, counselling, and a restitution order.

The Crown charged the defendant with criminal harassment under Section 264 of the Criminal Code, alleging that the defendant's conduct caused the complainant to reasonably fear for the safety of his wife and daughter.

The dispute arose from a neighbour conflict in a rural area near Port Perry, Ontario.

The defendant engaged in various acts including driving his truck onto the complainant's lawn, making obscene gestures, using foul language, shining high-beam lights into the complainant's bedroom window, and photographing/videotaping the complainant's family.

The court found that while the defendant's conduct was uncivil and constituted harassment, it did not meet the threshold for criminal harassment as it did not cause the complainant to be "tormented" or "chronically plagued" as required by law.

The defendant was acquitted of the criminal harassment charge but the court indicated it would impose a peace bond.

The accused was tried on two arson-related offences arising from multiple fires discovered in her home on June 10, 2014.

She was charged with intentionally or recklessly causing damage by fire to property owned in part by another person (section 434 of the Criminal Code) and with causing damage by fire with intent to defraud an insurance company (section 435(1)).

The Crown's case was circumstantial.

The accused and her mother were the only two people in the home immediately before the fires started.

Fire investigators identified three separate areas of origin for the fires: the upstairs bathroom, the kitchen stove, and the basement electrical panel.

The court found that the fires were deliberately set and that the accused was responsible for setting them.

However, the court found that the Crown had not proven beyond a reasonable doubt that the accused set the fires with the specific intent to defraud her insurer.

The accused was charged with care or control of a motor vehicle while impaired by alcohol contrary to section 253(1)(a) and operating a motor vehicle while over 80 contrary to section 253(1)(b) of the Criminal Code.

The trial focused on whether the Crown proved beyond a reasonable doubt that the accused was in care or control of the motor vehicle.

The accused argued she made a conscious decision to stop her vehicle on an on-ramp due to weather and alcohol consumption, with no intention to continue driving.

The court found the accused guilty of care or control while over 80 based on the rebuttable presumption in section 258(1)(a), and alternatively on de facto control.

The court rejected the accused's credibility regarding the timing and circumstances of her decision to stop, finding her conduct demonstrated bad judgment and created a realistic risk of danger.

The accused was acquitted of the operate while over 80 count due to insufficient evidence regarding the timing of operation.

This is a Dawson Motion brought by multiple defendants in a drug and firearm investigation known as Project Wheeler.

The defendants sought leave to cross-examine the affiant who deposed to the affidavit in support of a wiretap authorization granted by a Superior Court judge.

The defendants challenged two areas: claims about possession of firearms and statements that observations about meetings were indicative of drug trafficking.

The court dismissed the application, finding that the defendants failed to demonstrate how cross-examination would undermine the preconditions for the wiretap authorization and that the allegations of sweeping generalizations and circular reasoning were not relevant to an attack on facial validity in the circumstances presented.

The accused was charged with impaired operation and "over 80" following an investigation on February 2, 2014.

The accused brought a Charter application alleging breaches of sections 7, 8, 9, and 10(b).

The Crown conceded a breach of section 8 (unreasonable search and seizure).

The court found that the investigating officer lacked reasonable and probable grounds for arrest, possessing only reasonable suspicion.

The officer should have conducted an approved screening device demand or physical sobriety tests before arresting.

Under section 24(2) of the Charter, the court admitted breath sample evidence and inculpatory statements but excluded observations of indicia of impairment made at the police station.

The defendant was charged with care and control of a motor vehicle with a blood alcohol level exceeding the legal limit contrary to the Criminal Code, and with a provincial offence of having a blood alcohol level above zero as a novice driver.

The defence raised three objections to the admissibility of breath test evidence.

The court dismissed one objection orally during trial.

The remaining issues concerned whether the roadside demand was made "forthwith" and whether the breath samples were taken "as soon as practicable" as required by section 254 of the Criminal Code.

The court found that the police complied with section 254(2) regarding the "forthwith" requirement and that the breath samples were taken as soon as practicable.

The defendant was found guilty of the Criminal Code offence but the provincial offence was dismissed due to insufficient evidence that the defendant was a novice driver.

The defendant was charged with operating a motor vehicle with a blood alcohol level over the legal limit.

At trial, the defendant brought a Charter motion arguing his s. 10(b) right to counsel of choice was violated.

The arresting officer's field notes indicated the defendant asked for a specific lawyer, but her typed report stated he had no preference and was fine with duty counsel.

Due to the material inconsistency and the officer's lack of independent recollection, the court found a s. 10(b) violation.

Applying the Grant framework, the court excluded the breathalyzer evidence under s. 24(2) of the Charter.

The accused applied for a stay of proceedings under s. 11(b) of the Canadian Charter of Rights and Freedoms, alleging that the delay between the laying of charges for criminal negligence causing death and bodily harm and the scheduled trial date was unreasonable.

The court applied the framework from R. v. Morin and analyzed the length of delay, waiver, reasons for delay, and prejudice to the accused.

Much of the delay was attributed to inherent complexity, defence availability, and institutional factors, with a smaller portion attributable to the Crown.

The court found no clear prejudice to the accused and concluded the delay was not unreasonable in the circumstances of a complex case involving numerous witnesses and technical evidence.

The defendant was charged with care or control of a motor vehicle while impaired by alcohol after police observed him exit a vehicle that had just pulled over.

The Crown's case rested on the officer's testimony that the defendant was the driver.

The defence argued that the defendant's ex-girlfriend, Sandra Driscoll, was the actual driver and had pulled over due to an argument about the defendant's intoxication.

The defendant's evidence was rejected as unreliable due to his extreme intoxication and internal inconsistencies.

However, the ex-girlfriend's testimony, while raising questions about her conduct, was not rejected and created a reasonable doubt as to the defendant's identity as the driver.

The charge was dismissed.