COVID-19

The decision addresses three main issues: (1) the application to re-open the trial to reconsider the s. 24(2) Charter analysis in light of the Ontario Court of Appeal’s decision in R. v. McGowan-Morris, (2) the application for a stay of proceedings due to delay in conducting the accused’s bail hearing, and (3) the appropriate sentence for the accused, Ivor Shawn Young, following his conviction for unauthorized possession of a loaded restricted firearm, possession of a restricted firearm in a motor vehicle, and possession of cocaine.

The court found a breach of the accused’s s. 10(b) Charter rights but concluded that exclusion of the evidence was not warranted.

The application for a stay of proceedings was dismissed, and a sentence of three years’ imprisonment (less credit for pre-sentence custody and Downes credit) was imposed.

The Court of Appeal for Ontario dismissed the appeal in this commercial landlord-tenant dispute.

The trial judge found that the tenant, 2682543 Ontario Inc., repudiated the lease for restaurant premises and that the landlord, 720443 Ontario Inc., properly accepted the repudiation and terminated the lease.

The tenant and its guarantor, Shahab Rashid Savojbolaghi, were held liable for damages.

The Court rejected the tenant’s arguments regarding joint occupancy and the timing of possession, upholding the trial judge’s interpretation of the lease and the finding of repudiation.

The court dismissed the plaintiff's action for delay under Rule 48.14 of the Rules of Civil Procedure.

The plaintiff, 1 Royal Gate Village Properties Ltd., failed to provide a reasonable explanation for an almost eight-year delay in prosecuting its claim against CCI Group Inc. regarding an allegedly deficient property condition assessment.

The court found that explanations based on alleged bankruptcy representations, the COVID-19 pandemic, and financial constraints were not sufficient.

The court also found that the defendant would suffer non-compensable prejudice if the action proceeded, including the death of key witnesses, faded memories, and the inability to inspect the property due to remedial work.

Costs were awarded to the defendant.

The Court of Appeal for Ontario allowed Randy Hillier’s appeal, finding that Ontario’s absolute ban on outdoor peaceful assembly during the COVID-19 pandemic was not demonstrably justified under section 1 of the Charter.

The court held that the government failed to consider the impact of the gathering limits on the right to peaceful assembly under section 2(c) and did not tailor the restrictions to accommodate this fundamental freedom, unlike the approach taken for religious gatherings.

The decision clarifies the independent constitutional status of peaceful assembly and the necessity for governments to justify limits on this right, especially in the context of political protest.

The court considered a wrongful dismissal claim by Jesse Lachapelle against St. Laurent Automotive Group Inc. following his layoff during the COVID-19 pandemic.

The court found that the plaintiff was constructively dismissed on March 24, 2020, and was entitled to seven months’ reasonable notice, with credit for inducement and the impact of the pandemic on employment prospects.

The court rejected the employer’s arguments regarding force majeure and found that the plaintiff was not required to accept substantially altered terms of employment.

The plaintiff was not entitled to aggravated, bad faith, or punitive damages, as the employer’s conduct was not malicious or high-handed.

The court calculated damages based on the plaintiff’s actual earnings and benefits, and dismissed the claim for a construction retention bonus.

The court sentenced Lance Burkhard for second-degree murder following a guilty plea after a successful appeal of his first-degree murder conviction.

The decision details the facts of the offence, the aggravating and mitigating factors, the character and rehabilitation of the offender, and the impact on the victim’s family.

The court imposed a life sentence with 12 years of parole ineligibility, considering the seriousness of the offence, Burkhard’s criminal record, his rehabilitation efforts, and the harsh conditions of pre-sentence custody, including during the COVID-19 pandemic.

The decision addresses whether coverage for Extra Expense and Professional Fees under insurance policies issued to two Ontario summer camps is subject to the $1,000,000 sublimit in the Infectious Disease Extension, following business interruption due to COVID-19.

The court finds that both Extra Expense and Professional Fees are subject to the $1,000,000 sublimit, rejecting the plaintiffs’ arguments for additional coverage.

The court also addresses principles of insurance contract interpretation and the onus of proof in such disputes.

The defendant, Holly Broeckel, brought an application for a stay of charges for failing to yield to through traffic, alleging unreasonable delay contrary to s. 11(b) of the Charter.

The total delay was 24.9 months, exceeding the 18-month presumptive ceiling established by R. v. Jordan.

The prosecution argued the delay was due to the COVID-19 public health crisis as an exceptional circumstance.

The defence contended the delay was primarily due to a lack of judicial resources.

The court found no defence delay and identified a discrete event of 4.9 months due to counsel's family tragedy.

Taking a holistic view, the court attributed 12.5 months of the delay to the ongoing impact of the COVID-19 public health crisis and an additional 6.4 months to a lack of judicial resources.

After accounting for these factors, the remaining delay was 13.9 months, which is below the presumptive ceiling.

The application for a stay was dismissed, as the delay was deemed not unreasonable given the exceptional circumstances and systemic challenges.

The respondent, Meththa Fernando, appealed her conviction for failing to comply with an order under Section 58 of the Quarantine Act, specifically for refusing a random COVID-19 nasal swab test upon arrival at Pearson Airport.

The court found that Section 14(1) of the Quarantine Act prohibits screening technology that involves the entry of an instrument or foreign body into a traveller's body.

The nasal swab was deemed an "instrument" or "foreign body," and its insertion into the nasal cavity was considered an entry into the body.

Therefore, the screening officer's demand for the test was unlawful, rendering Ms. Fernando's refusal lawful.

The appeal was allowed, the conviction was reversed, and a finding of not guilty was entered.

The applicant, Troy Simpson, sought a stay of proceedings under s. 24(1) of the Canadian Charter of Rights and Freedoms, alleging a violation of his right to be tried within a reasonable time under s. 11(b).

The total delay from the swearing of the Information to the anticipated end of trial was 576 days.

The court deducted 91 days attributable to defence delay due to lack of diligence in pursuing disclosure and setting pre-trials, and an additional 90 days for exceptional circumstances related to the ongoing impact of the COVID-19 pandemic on court operations.

After these deductions, the net delay was calculated at 395 days (12.9 months), which falls below the 18-month presumptive ceiling for the Ontario Court of Justice.

Consequently, the application for a stay of proceedings was dismissed.

The accused, Malachi Alleyne-Smart, brought an application for a stay of proceedings under section 11(b) of the Charter, alleging unreasonable delay in his trial for assault charges.

The total delay from the swearing of the Information to the anticipated trial end date was 19 months and 1 day.

The court calculated 29 days of defence delay and deducted 15 days for COVID-19 related "Blitz Court" delay, resulting in a remaining net delay of 17 months and 18 days, which is below the 18-month presumptive ceiling for provincial court.

The court found the defence failed to demonstrate sustained efforts to expedite proceedings by seeking early trial dates, and that the time taken was not "markedly longer" than reasonable for similar matters in the jurisdiction.

The application for a stay of proceedings was dismissed.

The appellant, Davoud Tohidy, sought to lay an information against Premier Doug Ford alleging Criminal Code offences related to the provincial government's COVID-19 pandemic response.

After a justice of the peace refused to receive the information and the Superior Court summarily dismissed his application for mandamus and other relief, Mr. Tohidy appealed to the Court of Appeal.

The Registrar referred the appeal for summary dismissal under s. 685(1) of the Criminal Code and r. 17 of the Criminal Appeal Rules.

The Court of Appeal agreed with the reviewing judge's reasons, finding the appeal meritless, frivolous, and vexatious, and dismissed it without a full hearing.

The plaintiffs sought specific performance of three Agreements of Purchase and Sale for neighboring homes, alleging the defendant wrongly repudiated the contracts.

The defendant brought a cross-motion for summary judgment, seeking dismissal of the action, discharge of a Certificate of Pending Litigation, and damages.

The court found that the plaintiffs were ready, willing, and able to close the transactions, and that the defendant acted in bad faith by prematurely terminating the agreements, refusing a reasonable extension, and attempting to rely on a "time is of the essence" clause despite its own conduct and a conflicting document registration agreement.

The court granted the plaintiffs' motion for summary judgment, ordering specific performance, and dismissed the defendant's cross-motion.

The applicant, Zosia Ruchlewicz, charged with impaired driving and "80 plus," sought a stay of proceedings under s.11(b) of the Charter, alleging a violation of her right to a trial within a reasonable time.

The total delay was approximately 26 months.

The court analyzed the delay using the R. v. Jordan framework, deducting defence delay and delay attributable to the COVID-19 public health crisis as a discrete event.

The net delay, after deductions, was found to be below the 18-month presumptive ceiling.

The court also found that the case did not take "markedly longer" than it reasonably should have, despite some defence inaction regarding disclosure.

The application for a stay of proceedings was denied.

Alexandra Forrestall pleaded guilty to failing to stop after an accident resulting in death.

The primary issue at sentencing was whether the custodial portion of the sentence should be served in jail or conditionally in the community.

The court considered aggravating factors, including the profound loss of life and the accused's subsequent fabrication of events, and mitigating factors such as an early guilty plea, genuine remorse, youthful first offender status, positive character references, and significant mental health challenges exacerbated by the incident.

The court determined that a conditional sentence was legally available following the Ontario Court of Appeal's decision in *R. v. Sharma* and was appropriate given the specific circumstances, including the accused's health vulnerabilities during the COVID-19 pandemic.

The plaintiffs moved to strike the jury notices delivered by the defendants, seeking a judge-alone trial.

Their primary argument was the uncertainty of trial timing due to the COVID-19 pandemic's suspension of civil jury trials, and alternatively, the cumulative effect of this delay and the complexity of the issues.

The court granted leave to bring the motion, finding that the COVID-19 pandemic constituted a substantial and unexpected change in circumstances, making it "manifestly unjust" to refuse leave.

Applying the principles from *Louis v. Poitras*, the court found that the indefinite suspension of civil jury trials in Ottawa caused sufficient prejudice to the plaintiffs, justifying striking the jury notices.

The court concluded that justice would be better served by proceeding with a judge-alone trial in multi-week blocks, allowing for a more timely resolution.

The defendants, Tamara Bernard and Paulette Villamil, pleaded guilty to neglecting a dead human body under section 182(a) of the Criminal Code.

The deceased, Jason Bernard, had been dead for four years and his mummified body was found in the bathroom of the home shared by the defendants and Ms. Villamil's children.

The defendants claimed they believed in a resurrection.

The court considered sentencing principles, including denunciation and deterrence, and the significant harm caused to the deceased's family and a child living in the home.

Despite mitigating factors such as a genuine, albeit bizarre, belief and no prior criminal record, the court determined that a conditional sentence order was not appropriate due to the prolonged nature of the neglect and the severe impact on others.

Each defendant was sentenced to 12 months in jail, followed by three years of probation.

This trial decision addresses custody, access, and child support for the parties' 11-year-old child.

The Applicant sought sole custody, while the Respondent requested joint custody.

The court granted sole custody to the Applicant, noting a prior informal agreement and the Applicant's consistent primary caregiving.

The court ordered the Applicant to notify the Respondent of specialist appointments.

Access was ordered to be flexible with advance notice, considering the child's views.

For child support, the court imputed the Respondent's income for 2019 and 2020, finding certain business expenses unreasonable for support purposes and declining to impute income from a band.

Retroactive child support was ordered from July 2019.

The Respondent was ordered to contribute 60% to extraordinary expenses.

The applicant, Alexander Sangster, sought bail pending his conviction and sentence appeal for aggravated assault, assault causing bodily harm, firearm offences, and breach of recognizance.

He was sentenced to seven years and seven months.

The Crown opposed bail, arguing detention was necessary in the public interest.

The court granted bail, finding that the applicant had made substantial progress in managing his addiction, reducing public safety risk, and that the public interest in reviewability outweighed the enforceability interest, especially given the length of sentence already served and the arguable grounds of appeal.

The appellant objected to their civil appeal proceeding in writing, arguing the Court of Appeal lacked jurisdiction to order a written hearing over a party's objection, contrary to the *Courts of Justice Act* and *Rules of Civil Procedure*.

The court, through a Case Management Judge, dismissed the objection, affirming its broad implicit jurisdiction to manage its own process and ensure the just and efficient administration of justice, especially during the COVID-19 pandemic.

The court held that neither the Act nor the Rules mandate an absolute right to an oral hearing and found the appeal suitable for a written disposition.