Leonard Ricchetti

The defendant City brought a motion to stay a construction lien proceeding pending its appeal of the trial judge's liability determination in a bifurcated trial.

The court dismissed the motion, finding that the liability decision was an interlocutory order under the Construction Lien Act, which cannot be appealed until the damages phase is completed.

Furthermore, the court held that even if it had jurisdiction, it would not exercise its discretion to grant a stay because the City failed to demonstrate irreparable harm and the balance of convenience favored proceeding with the scheduled damages trial.

In a motor vehicle accident action, the plaintiffs brought a pre‑trial motion seeking to admit various medical documents under ss. 35 and 52 of the Evidence Act, including clinical notes and consultation reports from several physicians.

The court considered the distinction between factual medical observations and opinion evidence following the Divisional Court’s decision in Westerhof v. Gee (Estate) and related authorities.

The court held that factual portions of a deceased treating physician’s clinical notes were admissible under the principled exception to the hearsay rule and potentially as business records, but the physician’s diagnoses could not be admitted for their truth absent compliance with Rule 53.03.

Compliance with Rule 53.03 was waived in limited circumstances to allow the diagnosis to explain treatment, subject to a limiting jury instruction.

Reports from other specialists that did not comply with Rule 53.03 were excluded due to prejudice and lack of cross‑examination.

The father brought a motion to vary an interim custody and access order to increase parenting time based on recommendations contained in an Office of the Children’s Lawyer report suggesting no more than four days between parenting periods.

The mother opposed the change and sought a stay of the motion due to the father’s failure to pay prior costs orders and requested restrictions on future motions.

The court held that while non-payment of costs could justify a stay in financial matters, it would still consider the motion because children’s best interests were engaged.

The court declined to vary the interim access arrangement, finding the assessment recommendations vague, untested by cross-examination, and insufficient to justify altering a recently established status quo pending trial.

The father’s motion was dismissed, the mother’s stay motion was dismissed, and the request to require leave for future motions was adjourned.

The appellant appealed a conviction for possession of cocaine under s. 4(1) of the Controlled Drugs and Substances Act.

The drugs were found in plain view in the appellant’s bedroom after police attended the residence for a welfare check.

The appellant argued the trial judge erred in concluding possession was proven because others could have accessed the room, and further erred by failing to identify a Charter issue concerning the search of a plastic bag containing the drugs.

The court held the evidence supported the inference that the appellant had knowledge and control over the drugs given their visibility and location in his bedroom.

The court also declined to entertain a Charter argument raised for the first time on appeal, finding it may have been a tactical decision at trial and that the evidentiary record was insufficient.

The appellant appealed convictions for impaired driving and operating a motor vehicle with a blood alcohol concentration exceeding 80 mg per 100 ml.

At trial, the accused’s statements to police were ruled inadmissible due to Charter breaches, yet the trial judge relied on those statements and other improper inferences to conclude the accused was the driver.

On appeal, the Crown conceded error on the impaired driving conviction.

The court held the trial judge materially erred by relying on inadmissible evidence and by drawing unreasonable inferences from equivocal circumstantial evidence regarding the identity of the driver.

The convictions were therefore unreasonable and unsupported by sufficient admissible evidence.

The appellant appealed a summary conviction for impaired driving following a trial where he had been acquitted of failing to provide a breath sample but convicted of impaired operation.

The appellant argued the trial judge made unreasonable and inconsistent findings, including misapprehending evidence regarding his dexterity, drawing inferences from unsuccessful breath attempts, and misstating that he had testified he was “high.” The appeal court held that the trial judge’s factual findings were entitled to deference absent palpable and overriding error.

The court found that any misstatement in the reasons was not material and did not affect the reasoning process leading to the conviction.

The conviction for impaired driving was supported by strong evidence and the appeal was dismissed.

The applicants sought certiorari with mandamus in aid to review rulings made by a preliminary inquiry judge in a first‑degree murder prosecution.

They argued the preliminary inquiry judge erred by permitting a key witness to testify by closed circuit television under s. 486.2(2) of the Criminal Code based on hearsay evidence and by refusing to hold a voir dire regarding the witness’s appearance, including alleged use of a wig and tinted glasses.

The reviewing court held that evidentiary and procedural rulings at a preliminary inquiry are not reviewable on certiorari unless they amount to jurisdictional error or a denial of natural justice.

The challenged rulings were within the preliminary inquiry judge’s jurisdiction and did not impair the accused’s right to make full answer and defence.

The application for certiorari was therefore dismissed.

An insurer sought a declaration that its commercial general liability policy issued to a lamp shade manufacturing and importing business did not respond to a personal injury action arising from a forklift accident during the unloading of heavy industrial lathes.

The injured party alleged vicarious liability and occupier’s liability against the insured company.

The court applied the duty to defend test, accepting the allegations in the statement of claim but examining the true nature of the claim and the insured business operations described in the policy declaration.

The evidence showed the accident arose from the operations of a separate company engaged in buying and selling heavy machinery, an activity unrelated to the insured’s lamp shade business.

The court held there was no possibility that the claim fell within the policy’s coverage and therefore no duty to defend.

The offender was convicted by a jury of uttering a threat and assaulting his wife during an argument.

The assault consisted of a single slap to the face with no lasting physical harm.

The offender had no prior criminal record, had completed anger management and parenting programs prior to trial, and had already served 4 days in pre-sentence custody.

The court found that a conditional discharge was in the best interests of the offender and not contrary to the public interest.

The offender was granted a conditional discharge with 2 years of probation and a 5-year weapons prohibition.

A DNA order was declined.

Sentencing of three offenders following a jury trial for a planned home invasion robbery.

The offenders entered a residence during the day, masked and armed with a loaded firearm.

They unlawfully confined one victim and shot another victim in the leg during a struggle.

They fled in a getaway vehicle and engaged in a high-speed police chase.

The court sentenced the getaway driver to 7 years, the offender who encouraged the shooting to 10 years, and the third offender to 8.5 years, with enhanced credit for pre-sentence custody.

Following a two‑day trial concerning custody, parenting time, and child support, the mother sought sole custody and continuation of an existing parenting schedule while the father sought joint custody and equal parenting time.

The court applied the best interests of the child test under the Divorce Act and considered factors under s. 24 of the Children’s Law Reform Act.

Evidence showed both parents had a positive relationship with the child and were able to communicate effectively about parenting decisions.

While the father sought equal parenting time, the court found the status quo arrangement provided stability and should continue.

Joint custody was ordered, the child’s primary residence remained with the mother, and the father was ordered to pay guideline child support based on imputed income.

The plaintiff, a meat processing company, brought a motion for a Mareva injunction against its former purchasing agent and related corporate and individual defendants.

The plaintiff alleged the purchasing agent engaged in a fraudulent scheme to receive secret commissions on meat purchases by funnelling money through a third-party corporation.

The court found an overwhelming prima facie case of fraud and breach of fiduciary duty.

Given the defendants' failure to produce relevant financial documents and evidence of asset dissipation, the court concluded there was a real risk of assets being removed or disposed of, and granted the Mareva injunction.

In complex environmental remediation and construction lien litigation, the moving party sought production of numerous documents withheld on claims of solicitor‑client privilege, litigation privilege, and relevance.

The court reviewed over 1,600 documents including materials from a consulting engineer, internal environmental steering committee meetings, and documents produced in related environmental contamination litigation.

The court held that the party asserting privilege bears the burden of proving it on a balance of probabilities and rejected broad claims that entire meetings or communications involving counsel were privileged merely because legal issues might arise.

Applying the functional approach to third‑party communications and the dominant purpose test for litigation privilege, the court determined that many communications primarily concerned business or factual remediation matters and were not privileged.

Documents relating to the related environmental action were found relevant to the counterclaim and ordered produced, subject to further submissions regarding specific documents identified in a schedule.

The appellant appealed a conviction for impaired driving following a guilty plea, arguing the plea was involuntary and that trial counsel provided ineffective assistance.

The court found the guilty plea was voluntary because the appellant understood jail was not a possible sentence regardless of the plea.

However, defence counsel failed to review all Crown disclosure, including videotape evidence showing the appellant in a police station washroom, which could have raised potential Charter s. 8 privacy issues.

The court held that failing to review the disclosure before advising the appellant constituted conduct falling below the standard expected of defence counsel.

Because proper review and advice could reasonably have affected the outcome, the court found a miscarriage of justice and set aside the guilty plea.

In a family law motion concerning interim parenting arrangements, the father sought the return of the parties’ children to the matrimonial home after the mother unilaterally removed them without notice or court authorization.

The court reviewed allegations of abuse raised by the mother, noting they were denied, unproven, and had not resulted in findings by child protection authorities.

Emphasizing the importance of discouraging unilateral self-help measures that disrupt the existing parenting status quo, the court concluded that the father’s proposed schedule best approximated the prior parenting arrangement.

An interim order for joint parenting was granted with the father receiving regular weekend parenting time.

The order was made without prejudice pending further proceedings.

The offender pleaded guilty to attempted murder after attacking her adult daughter with an Exacto knife and a kitchen knife, slashing the victim’s throat and stabbing her before being interrupted by the victim’s boyfriend.

The victim survived but suffered severe and lasting physical and psychological consequences.

The court considered the broad sentencing range for attempted murder and emphasized denunciation and deterrence, particularly given the planned nature of the attack and the domestic relationship between offender and victim.

Although the offender had no criminal record, pleaded guilty, and expressed remorse, the offence involved deliberate planning, abuse of familial trust, and serious injury.

The court imposed an 11‑year penitentiary sentence, with enhanced credit for pre‑sentence custody and ancillary orders.

The offender was convicted of conspiracy to produce and possess marijuana for the purpose of trafficking, having operated a business that supplied equipment to large-scale marijuana grow operations.

The Crown sought forfeiture of real properties, vehicles, and bank accounts as offence-related property and proceeds of crime, as well as a fine in lieu of forfeiture for unrecovered funds.

The court ordered the forfeiture of the commercial property used for the business, the offender's residence, and several vehicles.

The court also imposed a fine in lieu of forfeiture of $2,809,211.40 for unrecovered proceeds of crime.

The offender was sentenced to 20 months' incarceration.

The plaintiff corporation brought a motion for partial summary judgment arising from an alleged fraudulent investment scheme involving a purported $900 million bond‑trading program.

The plaintiff had transferred $2 million to a company account controlled by the principal defendant, believing the funds would be used in a short‑term bond transaction, but the funds were diverted through various accounts and ultimately used to purchase personal assets including a luxury residence.

The defendants asserted the transaction was legitimate and that the funds had been used for the bond program, but produced no reliable documentation supporting the existence of the bonds or the investment structure.

The court found overwhelming evidence that the scheme was fraudulent and that the principal defendant had knowingly misappropriated the funds.

Partial summary judgment was granted for $2 million against the principal defendant and related companies, while claims against other parties were left for trial.

The plaintiff recruitment agency brought a motion for an interlocutory injunction to enforce a restrictive covenant against a former employee and his new employer.

The plaintiff sought to prevent the defendants from contacting any candidates or clients listed in its databases.

The court dismissed the motion, finding that the former employee was not a fiduciary and that the restrictive covenant was overly broad, ambiguous, and unenforceable because it was impossible to determine which names were in the databases.

The court also found that the plaintiff failed to establish irreparable harm or that the balance of convenience favoured an injunction.

The plaintiffs brought a motion to strike portions of the defendants’ Statement of Defence that referenced allegations of sexual assault involving a non‑party.

The plaintiffs argued the allegations were irrelevant and scandalous.

The defendants maintained that the timing of the criminal complaint and the civil claim was relevant to the existence of an alleged trust agreement over shares in a corporation operating a retail business.

The court held that the circumstances surrounding the reporting of the alleged assault and the timing of the civil action could be relevant to the credibility of the plaintiffs and the existence of the alleged trust.

Applying Rule 25.11 of the Rules of Civil Procedure and guidance from appellate authority, the court found the impugned allegations were not of marginal probative value and did not unfairly prejudice the plaintiffs.