Marshall A. Swadron

The court considered a motion for summary judgment in a civil action arising from a criminal prosecution for fraud against Anthony Falasca.

The plaintiffs alleged malicious prosecution, negligent investigation, misfeasance, failure to withdraw the charge, and abuse of process.

The court found that the claims relating to the criminal prosecution, including abuse of process, were statute-barred under the Limitations Act, 2002, as the action was commenced after the expiry of the limitation period.

The court declined to consider the separate abuse of process claim relating to a bankruptcy proceeding, as it was not properly before the court on this motion.

The decision provides a detailed analysis of discoverability and the application of limitation periods in prosecutorial torts.

The Public Guardian and Trustee (PGT) applied for guardianship of the property of Rodney Beals, a 55-year-old man with schizophrenia and developmental delay, after $2 million in lottery winnings were dissipated by family members acting as his attorneys for property.

The court found that Rodney was incapable of managing his property at the time of the lottery win, that his family members owed and breached fiduciary duties, and that the PGT should be appointed as guardian of property.

The court ordered the termination of existing powers of attorney, the appointment of the PGT, and costs against the family members.

The defendants brought a motion to dismiss or stay the plaintiff's action, alleging it was frivolous, vexatious, and an abuse of process, and that the plaintiff's counsel was in an incurable conflict of interest.

The court found the action to be an abuse of process due to significant overlap with other proceedings and the plaintiff's counsel's prior representation of one of the defendants as estate trustee, which provided access to privileged information.

The court concluded that this conflict created incurable prejudice.

The action was permanently stayed, and the plaintiff's counsel was removed from the record and prohibited from acting in any proceeding related to the estate where the defendant is a party.

Costs were awarded to the moving parties.

The appellants brought a motion for an extension of time to appeal a judgment and for leave to add Jasmine Javid as a party to the appeal.

The responding party opposed the extension and sought security for costs.

The court dismissed the motion for an extension of time, finding that the appellants failed to demonstrate a continuing intention to appeal, provide a satisfactory explanation for the significant delay, or show compelling merits for the proposed appeal.

The court also found that granting the extension would prejudice the responding party due to a pattern of delay and obfuscation.

As a result, the other requested relief fell away.

The moving parties, a former lawyer and his professional corporation, sought an urgent order to pay the net proceeds of a condominium sale into court, pending their motion to extend time for an appeal from an underlying judgment.

The judgment had declared a trust invalid and ordered the discharge of a mortgage and return of assets to an estate, which the moving parties had failed to comply with, leading to a contempt finding.

The moving parties argued the payment was necessary to protect a beneficiary's interests and alleged estate mismanagement.

The Court of Appeal dismissed the motion, finding the allegations of mismanagement incredible and the payment into court unnecessary.

The court noted the moving parties' history of obstruction, non-compliance with court orders, and unlikelihood of the appeal proceeding due to unpaid costs.

The applicant, Estate Trustee of Aghdas Javid's Estate, brought a motion for civil contempt against the respondents, Richard Keith Watson and his professional corporation, for non-compliance with a prior judgment.

The prior judgment had invalidated a trust created by Mr. Watson, ordered the discharge of a mortgage, conveyance of a condominium, remittance of trust funds, and compliance with disclosure undertakings.

The court found the respondents in contempt for failing to provide required documents and answer undertakings, but not for the mortgage discharge or conveyance, or remitting trust funds (pending updated statements).

A penalty hearing is to follow.

The applicant, as Estate Trustee, sought a declaration that a Henson trust (the Jasmine Trust) created by the respondent lawyer for the benefit of one of the estate beneficiaries was void.

The lawyer had prepared the trust documents naming the Estate as settlor and his own professional corporation as trustee, and transferred estate property to it without the applicant's knowledge or intention.

The court found the trust void and of no force and effect due to a lack of certainty of intention, certainty of objects, and the professional corporation's lack of capacity to act as a trustee.

The court ordered the trust assets, including a condominium, to be conveyed back to the Estate and awarded full indemnity costs against the respondents due to the lawyer's egregious conduct.

The plaintiff, a nightclub operator, brought an action against the City of Toronto and a city councillor for misfeasance in public office, abuse of public office, unlawful interference with economic relations, and conspiracy to defame and injure.

The plaintiff alleged the defendants conspired with the Toronto Police Service to target the nightclub with searches and inspections to force its closure.

The court dismissed the action, finding no evidence of a conspiracy, bad faith, or unlawful conduct by the defendants.

The court held that the city councillor's statements were protected by qualified privilege and statutory immunity, and that the City was not liable for the actions of the police.

The moving parties sought leave to appeal the order of Gilmore J. dated November 18, 2021.

The Divisional Court dismissed the motion for leave to appeal in writing, awarding costs to the responding parties in the all-inclusive amount of $7,500.

The respondents brought a motion to remove the applicant's counsel, alleging a conflict of interest because counsel acted for the applicant personally, as Estate Trustee, and for the Estate, and arguing counsel might become witnesses.

The court dismissed the motion, finding that counsel acts for the Estate Trustee, not the Estate, and there was no evidence of a conflict or that counsel would need to testify.

The court also ordered the respondents to provide outstanding disclosure, pay $15,000 in costs thrown away for a previously adjourned hearing, and directed that any proceeds from the sale of a disputed condominium be paid into court.

An individual found not criminally responsible on account of mental disorder in respect of sexual offences, and subsequently granted an absolute discharge by the provincial review board, challenged the provincial sex offender registry regime on equality grounds.

The majority held that the regime drew discriminatory distinctions on the basis of mental disability by denying those found not criminally responsible any opportunity for exemption or removal from the registry, in contrast to mechanisms available to those found guilty, and that the infringement was not justified under section 1.

The Court affirmed a tailored declaration of invalidity limited to those found not criminally responsible who had received an absolute discharge, suspended for twelve months, with the respondent granted an individual exemption from the suspension.

The concurring reasons of Rowe J. would have reaffirmed the Schachter framework for suspended declarations as grounded in rule-of-law considerations rather than adopting the majority's principled-discretion approach.

The partial dissent of Côté and Brown JJ. agreed on the section 15(1) breach and the suspension but would have grounded the suspension solely in the rule of law and declined to grant an individual exemption, which in their view exceeded the institutional competence of the Court and raised horizontal unfairness concerns.

The plaintiff brought a medical malpractice action against two physicians following the death of her father.

The plaintiff, acting as her father's substitute decision-maker, had requested that he be treated as 'full code'.

However, the physicians determined that the patient was actively dying and that CPR would almost certainly not benefit him and would only cause harm.

They wrote a 'do not resuscitate' order without the plaintiff's prior consent.

The plaintiff claimed damages under the Family Law Act and for nervous shock.

The Superior Court of Justice dismissed the action, finding that the physicians met the standard of care, that writing a DNR order is not a 'treatment' requiring consent under the Health Care Consent Act, and that the physicians did not owe a duty of care to the plaintiff that would conflict with their paramount duty to their patient.

The applicant brought a motion to stay an individual exemption granted by the Ontario Court of Appeal, which had exempted the respondent from a 12-month suspension of a declaration of invalidity striking down sex offender registry provisions as unconstitutional in their application to persons found not criminally responsible by reason of mental disorder and granted an absolute discharge.

The applicant sought the stay pending disposition of a leave to appeal application.

The single judge found no special circumstances warranting re-examination of the Court of Appeal's prior refusal to grant the same stay.

The applicant also failed to establish a tenable case for irreparable harm, as the respondent's exemplary 17-year track record provided cogent evidence of minimal risk of reoffending, and there was no apparent reason to deprive the respondent of his s. 15(1) Charter right in the interim.

Motion dismissed without costs.

The appellant architect appealed a decision of the Discipline Committee finding him guilty of professional misconduct for failing to notify a prior architect on three projects and for providing architectural services through an unlicensed entity.

The Divisional Court upheld the findings regarding the failure to notify, concluding the Committee reasonably interpreted the regulation.

However, the Court set aside the finding regarding unlicensed practice, holding the Committee failed to determine whether the drawings at issue constituted a 'design' under the Architects Act.

The matter was remitted to the Committee on that issue.

The appellant was found not criminally responsible on account of mental disorder (NCRMD) for sexual assault charges in 2002 and received an absolute discharge from the Ontario Review Board in 2003.

He challenged the constitutionality of Christopher's Law (Sex Offender Registry) and the Sex Offender Information Registration Act (SOIRA), which imposed mandatory lifetime sex offender registration and reporting requirements on him with no possibility of exemption.

The Court of Appeal found that while the legislation did not violate section 7 of the Charter (fundamental justice), it violated section 15(1) (equality rights) by discriminating against persons found NCRMD who received absolute discharges.

The court declared the provisions of no force or effect as applied to such persons, suspended the declaration for 12 months, but exempted the appellant from the suspension, ordering his removal from the registries.

The defendants brought a motion to stay the proceeding, arguing that Ontario courts lacked jurisdiction simpliciter or, alternatively, that Ontario was forum non conveniens.

The action was commenced by the plaintiffs for misrepresentation and breach of fiduciary duty related to a life insurance policy.

The court found that a presumptive connecting factor existed in Ontario because the deceased, Anna Neger, resided in Toronto until her death and likely received and acted upon the alleged misrepresentations in Ontario.

The defendants failed to rebut this presumption.

Furthermore, the court determined that Ontario was a convenient forum, considering factors such as the location of parties and witnesses, the applicable law, and the avoidance of a multiplicity of proceedings, despite the defendants' arguments regarding a defendant's immigration status and New York governing law for the trust agreement.

The motion to stay the proceeding was dismissed, and costs were awarded to the plaintiffs.

In a bifurcated human rights proceeding where liability for discrimination was previously established, the applicant sought to amend the personal and public interest remedies claimed.

The respondent opposed the amendments, arguing they constituted new allegations and were out of time.

The Tribunal granted the request to amend, finding the amendments related to the impact of the established discrimination and did not unduly prejudice the respondent.

A request by a community organization to intervene on the issue of public interest remedies was refused, as the Tribunal found the organization's submissions could be adequately addressed through the applicant.

The appellant doctor appealed a Superior Court decision that reversed a Consent and Capacity Board finding that the respondent was incapable of consenting to proposed psychiatric treatment.

Following the commencement of the appeal, the respondent's NCR verdict was overturned, he was discharged from the facility, and the proposed treatment was never commenced.

The Court of Appeal dismissed the appeal as moot, declining to exercise its discretion to hear the case as a decision would have no practical effect on the parties and the appellant's concerns regarding a prior capable wish could be addressed under section 36 of the Health Care Consent Act.

The appellants challenged the constitutional validity of Brian's Law, which amended the Mental Health Act to expand criteria for involuntary committal and introduce community treatment orders (CTOs).

They argued the law violated section 7 of the Charter by authorizing forced treatment with neuroleptic medication.

The Court of Appeal upheld the application judge's dismissal of the challenge, finding that the legislation's highly individualized assessment criteria ensured it was not arbitrary, overly broad, or grossly disproportionate.

The court also dismissed claims under sections 9, 10, 12, and 15 of the Charter.

The plaintiffs sued the police for negligence after the plaintiff was severely injured in a drive-by shooting, alleging the police knew he was a likely target but failed to warn him or arrest the known shooter.

The defendants appealed a motion judge's decision dismissing their motion to strike the claim.

The Divisional Court dismissed the appeal, finding that the amended statement of claim pleaded sufficient material facts to establish a relationship of proximity analogous to the recognized duty of care in Jane Doe, and it was not plain and obvious that the claim would fail.