Ian McLean

The plaintiff brought a motion to lift a stay of execution on a prior summary judgment order, which had been imposed to allow cross-claims between the defendants.

The stay was lifted because one defendant, Andrew Maracle, entered bankruptcy proceedings, making a cross-claim by the other defendant, Andrew Clifford Miracle, impossible.

The court awarded prejudgment interest at 28.82% on the principal amount of $69,417.37, totaling $31,625.37.

Post-judgment interest was also ordered.

Costs were awarded to the plaintiff on a partial indemnity basis for $8,669.93, considering the defendants' failure to accept settlement offers and lack of their own offers.

The court clarified that Andrew Clifford Miracle remained liable as a partner despite Andrew Maracle's bankruptcy.

The Crown appealed the acquittal of the respondent on two counts of sexual assault.

The trial judge acquitted the respondent based on credibility findings regarding the complainant, relying on eleven factors that the trial judge described as significant but not determinative.

The Court of Appeal found that the trial judge's credibility assessment was tainted by reliance on discredited myths and stereotypes about sexual assault victims, including assumptions about the complainant's dress, the absence of immediate reporting, and expected victim conduct.

The Court held that the trial judge's reasoning, anchored in "common sense and life experiences" impermissibly adopted stereotypical reasoning that had no place in assessing credibility.

The Court found a sufficient nexus between the legal errors and the acquittal, and allowed the appeal, setting aside the acquittal and ordering a new trial.

The plaintiff, assignee of a debt for commercial fuel deliveries, brought a motion for summary judgment against a father and son who previously operated a business as a general partnership.

The partnership had been dissolved by an arbitrator's order, but neither partner notified the fuel supplier.

The son continued to order fuel while occupying the business premises.

The court granted summary judgment, finding that under s. 36(1) of the Partnerships Act, the failure to notify the creditor meant both former partners remained jointly and severally liable for the debt incurred.

The assignment of the debt was also found to be valid.

The plaintiff brought an action against the Attorney General of Canada and the Ottawa Police Services Board, alleging negligent investigation, harassment, intentional infliction of mental suffering, and Charter breaches arising from alleged ongoing surveillance and the placement of electronic devices in his vehicle and home.

The defendants moved for summary judgment to dismiss the action.

The court found that the plaintiff provided only speculation and bald allegations without evidentiary foundation, while the defendants provided evidence that no such surveillance or investigation occurred.

The court granted the motions for summary judgment and dismissed the action.

The plaintiff, a grieving father, sued his son's mother, a funeral home, and its director for breach of contract, deceit, and intentional infliction of mental distress after being excluded from his son's funeral.

The defendants brought a summary judgment motion seeking dismissal of the lawsuit.

The court dismissed all claims, finding no enforceable contract between the parties, no false misrepresentation to support deceit, and insufficient evidence of subjective intent to cause psychological harm for intentional infliction of mental distress, despite acknowledging the defendants' callous and insensitive conduct.

The appellant nurse appealed a Discipline Committee decision finding her guilty of professional misconduct for failing to comply with an order to complete a remediation program.

She argued she was denied natural justice because she could not challenge the underlying allegations.

The College cross-appealed, arguing the conduct should have been found 'dishonourable' and a longer suspension imposed.

The Divisional Court dismissed both the appeal and cross-appeal, holding that the appellant could not collaterally attack the underlying order, and that the Discipline Committee's findings on misconduct and the two-month suspension were reasonable.

The applicant, a self-represented litigant, sought costs against the respondent for motions concerning post-trial security for spousal support and a recusal motion.

The court awarded partial indemnity costs to the applicant for both sets of motions, totaling $3,037.80, to be enforced as spousal support.

The respondent had failed to provide costs submissions.

The appellant appealed his conviction entered on November 22, 2016, and sentence imposed on September 15, 2017, by the trial judge.

The Court of Appeal found no palpable and overriding errors in the trial judge's evidentiary findings, no errors of law in her self-instructions, and no palpable and overriding errors in her application of the law to the facts.

The trial judge did not engage in uneven scrutiny of the evidence.

The appeal was dismissed, and the sentence appeal was dismissed as abandoned.

The respondent, Mr. McMurter, brought a motion for the recusal of the trial judge, alleging a reasonable apprehension of bias based on adverse credibility findings made in the original trial judgment.

The applicant, Mrs. McMurter, brought a cross-motion to dismiss the recusal motion.

Concurrently, both parties brought motions concerning the security ordered over four properties for future spousal support payments.

The court dismissed Mr. McMurter's recusal motion, finding no reasonable apprehension of bias, and allowed Mrs. McMurter's cross-motion.

The court also dismissed Mrs. McMurter's motion to prevent the sale of a property and for the transfer of all secured properties, as well as Mr. McMurter's motion for the removal of security, thereby maintaining the existing security arrangements.

Costs were reserved.

The College of Nurses of Ontario alleged that the respondent nurse committed professional misconduct by failing to complete a Specified Continuing Education or Remediation Program (SCERP) ordered by the Inquiries, Complaints and Reports Committee.

The Discipline Committee found that the respondent's failure to comply with the order constituted unprofessional conduct, though it did not rise to the level of dishonourable conduct.

The respondent was ordered to appear for a reprimand, her certificate of registration was suspended for two months, and terms, conditions, and limitations were imposed on her certificate.

An appeal and cross-appeal to the Divisional Court were both dismissed.

The appellant sought leave to appeal a sentence of nine months in custody, three years probation, and $50,000 restitution imposed for an eleven-year fraud on a small union.

The appellant argued that the sentencing judge failed to adequately consider mitigating factors including early guilty plea, cooperation, and intent to make restitution.

The sentencing judge rejected a request for a conditional sentence as part of a blended sentence.

The Court of Appeal found no error in the sentencing judge's rejection of the conditional sentence given the circumstances of the offence and the need for general deterrence, and determined that the custodial sentence was at the low end of the range reflecting mitigating factors.

Following a previous endorsement, the successful defendant sought costs on a partial indemnity scale.

The plaintiff opposed the costs award.

Applying the principles from Boucher and Rule 57, the court determined that the fixing of costs is not a mechanical exercise but must result in a fair and reasonable amount.

The court fixed the defendant's costs at $7,500 inclusive of fees, disbursements, and HST.

The appellant, a dental hygienist, was injured when a dental light fell from the ceiling while she was attending to a patient.

She sued the occupier for negligence under the Occupiers' Liability Act.

A jury dismissed the claim, finding the defendant had not failed in its duty to keep the premises reasonably safe.

The appellant appealed, arguing the verdict was perverse and ignored evidence that the defendant had no system for maintaining the structural integrity of the lights.

The Divisional Court dismissed the appeal, holding that the jury's verdict was supported by some evidence, including testimony from the dentist and the serviceman who installed and serviced the equipment, and that the plaintiff failed to prove causation.

The defendant brought a motion for summary judgment to dismiss the plaintiff's negligence claim regarding a defective fireplace installation, arguing the claim was statute-barred.

The plaintiff argued the limitation period did not begin until the defendant refused to remediate the issue.

The court found that the plaintiff had actual knowledge of the material facts to base an allegation of negligence upon receiving an inspection report in December 2010.

As the action was not commenced until November 2014, well beyond the two-year limitation period, the court granted the defendant's motion and dismissed the action.

The appellant appealed an order appointing his mother and sister as guardians of property and personal care for his incapable sister.

The appellant argued the application judge made unreasonable findings of fact, unfairly disregarded his evidence, and failed to consider the incapable sister's best interests.

The Court of Appeal dismissed the appeal, finding that the application judge's findings were supported by the evidence, including the finding that the appellant's actions were financially motivated.

The application judge properly scrutinized the management plans and concluded it was in the incapable sister's best interests to remain with her mother.

The appellant was convicted of having care or control of a vehicle while impaired.

After her first appeal was dismissed by a summary conviction appeal judge, she sought leave to appeal to the Court of Appeal.

The court found no error of law and noted the trial judge's factual finding that the appellant's conduct created a realistic risk of danger was amply supported by the evidence.

Leave to appeal was denied.

The appellants appealed their convictions for robbery, attempted robbery, and assault arising from three separate incidents that occurred over a 30-minute period.

They argued the verdicts were unreasonable, challenging the trial judge's findings on self-defence, identity, and common intention.

The Court of Appeal dismissed the appeals, finding that the trial judge's conclusions were amply supported by the evidence, which established that the appellants acted together as common participants in all three incidents.

Leave to appeal sentence was also denied.

The court addressed whether an application should proceed where counsel for one respondent had only recently been retained after issuance of a Legal Aid certificate and other respondent counsel were also new to the file.

The court held that proceeding without allowing time for counsel to investigate and define the respondent's position would be unfair and would expose the matter to a likely appeal.

An adjournment was therefore granted and the matter was rescheduled.

The appellants appealed a Small Claims Court decision awarding the respondent $25,000 in damages and $7,500 in costs, payable jointly and severally by the appellants and their lawyer.

The appellants argued the deputy judge should have recused himself due to bias, the costs were excessive, and costs should not have been awarded against counsel.

The Divisional Court dismissed the appeal regarding the damages and the quantum of costs, finding no reasonable apprehension of bias and no error in the costs assessment.

However, the court allowed the appeal regarding costs against the appellants' lawyer, finding he was not given sufficient notice under Rule 57.07.

The appellant sought to set aside a Small Claims Court order dismissing his dental negligence action for failing to comply with settlement conference orders requiring expert reports.

The court held that the order was mandatory, that the appellant had ample time to obtain the required report, and that the record did not establish reasonable efforts to do so.

The court further held that expert evidence was necessary to establish the applicable standard of care and breach in the professional negligence claim, and that fairness required disclosure of the substance of any expert opinion.

The appeal was dismissed.