Leonard Ricchetti

The appellants appealed their convictions and sentences for trading in securities without registration and while subject to a prior cease-trade order.

They argued the trial judge erred in finding they had knowledge of the order, that the Ontario Securities Commission lacked jurisdiction because the trades involved foreign companies and investors, and that the custodial sentences were unfit.

The Superior Court of Justice dismissed the appeal, holding that the offences were strict liability, that a real and substantial connection to Ontario gave the province jurisdiction under the Libman test, and that the sentences were appropriate given the appellants' moral blameworthiness and prior breaches.

The defendants moved to strike the plaintiff's Statement of Claim for failing to disclose a reasonable cause of action or for being frivolous and vexatious.

The plaintiff, a self-represented online reporter, claimed damages based on observing an alleged assault, experiencing verbal abuse, and facing police charges that were resolved by a Peace Bond.

The court found that the Statement of Claim did not plead a recognized cause of action, specifically rejecting claims for intentional infliction of mental distress, a cause of action for observing an assault on a third party, or malicious prosecution.

The court concluded that the claim was plain and obvious to fail and struck the Statement of Claim in its entirety without leave to amend. interesting_citations_summary: > This decision reiterates the high threshold for striking a Statement of Claim, requiring it to be "plain and obvious" that the claim cannot succeed.

It applies the three-part test for striking pleadings under Rule 21.01(1)(b) and clarifies the elements required for intentional infliction of mental distress (extreme, flagrant, or outrageous conduct calculated to produce harm, causing harm) and malicious prosecution (initiated by defendant, terminated in plaintiff's favour, without reasonable and probable cause, motivated by malice).

The court emphasizes that observing an assault on a third party does not create a cause of action for the observer and that resolving charges with a Peace Bond does not constitute termination in the plaintiff's favour for malicious prosecution. final_judgement: "The defendants' motion is granted.

The Statement of Claim is struck in its entirety without leave to amend." winning_degree_applicant: 1 winning_degree_respondent: 5 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2017 decision_number: 4310 file_number: "CV-16-5587" source: "https://www.canlii.org/en/on/onsc/doc/2017/2017onsc4310/2017onsc4310.html" keywords: - Motion to strike - Statement of Claim - Reasonable cause of action - Frivolous and vexatious - Intentional infliction of mental distress - Malicious prosecution - Rules of Civil Procedure - Self-represented litigant - Beach ownership dispute areas_of_law: - Civil Procedure - Torts - Civil Litigation cited_cases: legislation: - title: "Rules of Civil Procedure, R.R.O. 1990, Reg. 194" url: "https://www.ontario.ca/laws/regulation/900194" case_law: - title: "Aristocrat Restaurants Ltd. v. Ontario, [2003] O.J. No. 5331 (S.C.J.)" url: "https://www.canlii.org/en/on/onsc/doc/2003/2003canlii52079/2003canlii52079.html" - title: "Hunter v. Bravener, [2003] O.J. No. 1613 (C.A.)" url: "https://www.canlii.org/en/on/onca/doc/2003/2003canlii1613/2003canlii1613.html" - title: "Holland v. Ontario, [2000] O.J. No. 566 (S.C.J.)" url: "https://www.canlii.org/en/on/onsc/doc/2000/2000canlii22460/2000canlii22460.html" - title: "Nash v. Ontario" url: "https://www.canlii.org/en/on/onca/doc/1995/1995canlii2934/1995canlii2934.html" - title: "A-G Canada v. Inuit Tapirisat of Canada" url: "https://www.canlii.org/en/ca/scc/doc/1980/1980canlii21/1980canlii21.html" - title: "Dawson v. Rexcraft Storage & Warehouse Inc." url: "https://www.canlii.org/en/on/onca/doc/1998/1998canlii4831/1998canlii4831.html" - title: "Temelini v. Ontario Provincial Police (Commissioner)" url: "https://www.canlii.org/en/on/onca/doc/1990/1990canlii7000/1990canlii7000.html" - title: "Prinzo v. Baycrest Centre for Geriatric Care" url: "https://www.canlii.org/en/on/onca/doc/2002/2002canlii45005/2002canlii45005.html" - title: "Nelles v. Ontario" url: "https://www.canlii.org/en/ca/scc/doc/1989/1989canlii77/1989canlii77.html" - title: "Balanyk v. University of Toronto, [1999] O.J. No. 2162 (S.C.J.)" url: "https://www.canlii.org/en/on/onsc/doc/1999/1999canlii14900/1999canlii14900.html" --- # Court File and Parties **COURT FILE NO.:** CV-16-5587 **DATE:** 20170713 **SUPERIOR COURT OF JUSTICE – ONTARIO** **RE:** KEVIN J. JOHNSTON, Plaintiff -and- 2019796 ONTARIO INC., KANAMI HOLDINGS INC., CONNIE ANNETTA, JOHN BODEN, CECELIA BODEN, FRANK BORG, AMY BOWLES, CARMEN BUCCI, TERESA BUCCI, JOHN BUCKBOROUGH, CAROL CARUSO, FRANK CARUSO, CHARLES CONNOLLY, MONICA CONNOLLY, DEBERAH DORSEY, FRANCESCO GAGLIARDI, MARNIA GAGLIARDI, JOSEPH GAGLIARDI, RICHARD GALAS, LINDA GALAS, JASON GARGARO, ADRIAN GARGARO, TONY GARGARO, LINA GARGARO, JAMES HELLYER, JANE HELLYER, KANAMI HOLDINGS, DAVE LAMB, DONNA LAMB, GRANT MCCLEMENT, GERRIE MCCLEMENT, HELEN MCEVOY, BERNARD MCEVOY, CATHERINE MCEVOY, DAN MILLER, ALISON MOFFATT, HENRIE POULIE, CAROLE PULIE, ADAM PROCHILO, DOMINIC PROCHILO, CATHY PROCHILO, KATHLEEN RAFFERTY, DAVID STAINES, ROXANNE STILLS, LARRY TRIFON, NORMA TRIFON, WILIAM WALSH, MICHELLE WATT and RONNIE WYNNE, Defendants **BEFORE:** Ricchetti, J. **COUNSEL:** Mr. Johnston, self-represented H. MacKenzie, for the Defendants **HEARD:** July 12, 2017 --- # Endorsement [1] At the conclusion of submissions, this court granted the motion with reasons to follow.

These are those reasons. # The Motion [2] This is a motion brought by the Defendants for an order striking out the Statement of Claim entirely for failing to disclose a reasonable cause of action ([R. 21.01(1)(b) of the Rules of Civil Procedure](https://www.ontario.ca/laws/regulation/900194)) or dismissing the claim because it is frivolous and vexatious ([R. 21.01(3)(d) of the Rules of Civil Procedure](https://www.ontario.ca/laws/regulation/900194)).

The Defendants seek an order that Mr. Johnston not be permitted to amend without leave of the court. [3] Mr. Johnston did not file any responding affidavit materials. [4] I find it plain and obvious that the Statement of Claim does NOT disclose a reasonable cause of action and cannot succeed.

Leave is NOT granted to amend the Statement of Claim. # The Allegations in the Statement of Claim [5] Mr. Johnston is an online or internet reporter. 2019796 Ontario Inc. (201 Inc.) is the registered owner of a strip of land on the beach in Tiny Township (201 Land).

The personal Defendants are residents in the same area. [6] No cause of action is pleaded in the Statement of Claim in the traditional sense. [7] Mr. Johnston claims damages in the amount of $500,000.

In support of his claim for damages, Mr. Johnston sets out certain facts, which can be summarized as follows: [8] On August 22, 2015, Mr. Johnston witnessed a crime: he observed two residents (two of the 49 named defendants) call a pair of security guards.

The security guards, after arriving, assaulted an unnamed third party. [9] Two residents shouted at beach visitors making, what Mr. Johnston asserts are false claims to ownership of that portion of the beach being the 201 Land or near the 201 Land.

It is not clear from the Statement of Claim exactly where the beach visitors were at the time. [10] Mr. Johnston was told by others that this type of “verbal abuse” is “common place”.

Who told Mr. Johnston is not identified. [11] Mr. Johnston returned to the same area of the beach later that day and was the subject of verbal abuse.

Mr. Johnston claimed he was on public land.

The persons shouting the verbal abuse, claimed he was on 201 Land, private property.

Mr. Johnston alleges that a “man” threatened him. [12] A week later, the police laid charges against Mr. Johnston, not described in the Statement of Claim, but were Mr. Johnston described in his submissions as assault and trespass.

The charges were resolved without a trial by Mr. Johnston agreeing to a Peace Bond. [13] Mr. Johnston alleges he has suffered depression as a result of these actions. # The Law [14] [Rule 21.01(1)(b) of the Rules of Civil Procedure](https://www.ontario.ca/laws/regulation/900194) provides that the court may strike out a pleading that discloses no reasonable cause of action.

The defendants must show that it is "plain and obvious" the claim cannot succeed.

The test is met where: (1) a plaintiff pleads allegations that do not give rise to a cause of action; (2) a plaintiff fails to plead a necessary element of a cause of action; (3) the allegations in the pleading are simply conjecture, assumptions or speculation unsupported by material facts, or where, in other instances, mere conclusions of law are asserted.

See ([Aristocrat Restaurants Ltd. v. Ontario, [2003] O.J. No. 5331 (S.C.J.)](https://www.canlii.org/en/on/onsc/doc/2003/2003canlii52079/2003canlii52079.html) para. 18; [Hunter v. Bravener, [2003] O.J. No. 1613 (C.A.)](https://www.canlii.org/en/on/onca/doc/2003/2003canlii1613/2003canlii1613.html) paras. 3-5, application for leave to appeal dismissed [2003] S.C.C.A. No. 306) [15] On a Rule 21 motion, the allegations as set out in the Statement of Claim, unless blatantly ridiculous or incapable of proof, must be taken as true.

Vague allegations or allegations that are assumptions or speculation and which by their very nature incapable of proof by adducing evidence, are not to be taken as true.

See [Holland v. Ontario, [2000] O.J. No. 566 (S.C.J.)](https://www.canlii.org/en/on/onsc/doc/2000/2000canlii22460/2000canlii22460.html); [Nash v. Ontario](https://www.canlii.org/en/on/onca/doc/1995/1995canlii2934/1995canlii2934.html), 27 O.R. (3d) 1 (C.A.); and [A-G Canada v. Inuit Tapirisat of Canada](https://www.canlii.org/en/ca/scc/doc/1980/1980canlii21/1980canlii21.html), [1980] 2 S.C.R. 735). [16] The focus on a motion to strike the pleadings is on the substantive legal adequacy of the claim.

See [Dawson v. Rexcraft Storage & Warehouse Inc. (1998)](https://www.canlii.org/en/on/onca/doc/1998/1998canlii4831/1998canlii4831.html), 164 D.L.R. (4th) 257 (Ont.

C.A.). [17] The court's power to strike a claim is exercised only in the clearest cases.

See [Temelini v. Ontario Provincial Police (Commissioner) (1990)](https://www.canlii.org/en/on/onca/doc/1990/1990canlii7000/1990canlii7000.html), 73 O.R. (2d) 664 (C.A.). [18] Where the facts in a claim do not give rise to a cause of action, leave to amend should not be granted because the defect(s) in the claim cannot be cured by amendment.

See [Aristocrat Restaurants Ltd. v. Ontario](https://www.canlii.org/en/on/onsc/doc/2003/2003canlii52079/2003canlii52079.html) *supra* at para. 19. # The Analysis [19] The Defendants submit that the Statement of Claim does not disclose a recognized or reasonable cause of action in tort or contract.

I agree for the following reasons. ## The personal Defendants/ Threats/Insults [20] The first serious omission is that the Statement of Claim does not set out who the defendants are, their role in what happened and how each (or any) caused or contributed to the damages allegedly suffered by Mr. Johnston.

In short, there is no cause of action pleaded against the personal Defendants.

In fact, all the personal Defendants, except Lina and Tony Gargaro, are not referred to in facts set out the Statement of Claim other than in the style of cause.

No cause of action is pleaded against them.

Two other personal Defendants are named but Mr. Johnston doesn’t know which person shouted the statements.

In one respect Mr. Johnston does not even know who the person in the “red t-shirt” is. [21] Mr. Johnston states that he was insulted by Lina Gargaro and Tony Gargaro.

As for the other personal Defendants, Mr. Johnston does not identify them as having insulted or threatened Mr. Johnston. [22] Reading the Statement of Claim generously, perhaps the claim advanced by Mr. Johnston against those personal defendants he identifies is a claim for intentional infliction of mental distress. [23] The tort of intentional infliction of mental distress or shock has three elements: (1) an act or statement by the defendant that is extreme, flagrant, or outrageous; (2) the act or statement is calculated to produce harm; and (3) the act or statement causes harm.

See [Prinzo v. Baycrest Centre for Geriatric Care (2002)](https://www.canlii.org/en/on/onca/doc/2002/2002canlii45005/2002canlii45005.html), 60 O.R. (3d) 474 (C.A.). [24] The requirement that the conduct be calculated to produce harm is met where the maker desires to produce the consequences that follow from the act or statement, or if the consequences are known to be substantially certain to follow.

See *Prinzo*. [25] The allegations in the Statement of Claim must be, for the purpose of his motion, measured against these elements of this recognized tort. [26] In my view, no reasonable cause of action for intentional infliction of mental distress or shock can be established.

Persons were simply taking firm positions regarding the ownership of the particular portion of the beach.

I hasten to add, the evidence on the motion clearly shows that Mr. Johnston has said and published extremely distasteful, unflattering and insulting statements about some of the personal Defendants. [27] The facts set out in the Statement of Claim do not and cannot amount to a reasonable cause of action for this tort. ## The Observed Assault [28] The first portion of the Statement of Claim refers to Mr. Johnston observing someone else, “a man”, allegedly assaulted by security guards. [29] There is no basis in law for a cause of action arising to Mr. Johnston simply because he observed the assault of an unnamed person. [30] The facts in the Statement of Claim do not establish a reasonable cause of action in favour of Mr. Johnston. ## The Charges against Mr. Johnston [31] Mr. Johnston refers to charges being laid by the police against him.

Again, reading the Statement of Claim generously, this might be an attempt to allege malicious prosecution. [32] The tort of malicious prosecution has four elements, namely, that the proceedings must have been: (1) initiated by the defendant; (2) terminated in favour of the plaintiff; (3) undertaken without reasonable and probable cause to commence or continue the prosecution; and (4) motivated by malice or a primary purpose other than that of carrying the law into effect.

See [Nelles v. Ontario](https://www.canlii.org/en/ca/scc/doc/1989/1989canlii77/1989canlii77.html), [1989] 2 S.C.R. 170, at pp. 192-194. [33] The first difficulty is that Mr. Johnston was charged by the police not any of the Defendants.

The personal defendants simply called the police because of the alleged trespassing on the 201 Land.

The police decided to lay the charges.

At the heart of the allegations is the ownership of the portion of the beach – an issue which is not to be decided in this claim. [34] The second difficulty is that Mr. Johnston does not describe what charges were laid against him.

However, I acknowledge that, if this was the only issue, this is a defect which could be cured by an amendment. [35] The third difficulty is that Mr. Johnston resolved the charges by waiving a trial and agreeing to a Peace Bond.

As a result, the prosecution was not resolved in Mr. Johnston’s favour.

This issue is insurmountable for Mr. Johnston. [36] The fourth difficulty is that there is no allegation of malice.

The issue was a dispute over the ownership of that portion of the beach.

Malice, in such circumstances, cannot be shown. [37] I am not persuaded that a cause of action for malicious prosecution has been set out in the Statement of Claim or can reasonably be set out in an amended Statement of Claim. ## The Real Issue [38] From Mr. Johnston’s submissions, it is clear that the real issue is the ownership of a portion of beach.

That cause of action has not been pleaded in this Statement of Claim directly, indirectly or cannot be read into the allegations in the Statement of Claim, even if amended, since the amendment would be to plead an entirely new cause of action. ## Conclusion on Striking the Statement of Claim [39] I am satisfied that the Statement of Claim should be struck as disclosing no reasonable cause of action.

As a result, it is not necessary for me to go on to deal with whether the Statement of Claim is frivolous and vexatious. # Should leave be granted to amend the Claim? [40] The issue is whether the allegations in the Statement of Claim are capable of amendment so as to comply with pleading requirements in the [Rules of Civil Procedure](https://www.ontario.ca/laws/regulation/900194) and [Balanyk v. University of Toronto, [1999] O.J. No. 2162 (S.C.J.)](https://www.canlii.org/en/on/onsc/doc/1999/1999canlii14900/1999canlii14900.html) at para 46. [41] I am not persuaded that the facts set out in the Statement of Claim set out a reasonable cause of action or even a potential cause of action.

I deny leave to amend the Statement of Claim. # Conclusion [42] The motion is granted.

The Statement of Claim is struck in its entirety without leave to amend. [43] The Plaintiff’s approval as to form and content of the Order is dispensed with. # Costs [44] The Defendants shall serve and file written submission on entitlement and quantum within two weeks of the release of these reasons.

Written submissions shall be limited to three pages, with attached Costs Outline and any authorities. [45] The Plaintiff shall have one week thereafter to serve and file responding submissions.

Written submissions shall be limited to three pages with any authorities relied on attached. [46] There shall be no reply submissions without leave. --- Ricchetti, J. **Date:** July 13, 2017 COURT FILE NO.: CV-16-5587 DATE: 20170713 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: KEVIN J. JOHNSTON (Plaintiff) -and- 2019796 ONTARIO INC., KANAMI HOLDINGS INC., CONNIE ANNETTA, JOHN BODEN, CECELIA BODEN, FRANK BORG, AMY BOWLES, CARMEN BUCCI, TERESA BUCCI, JOHN BUCKBOROUGH, CAROL CARUSO, FRANK CARUSO, CHARLES CONNOLLY, MONICA CONNOLLY, DEBERAH DORSEY, FRANCESCO GAGLIARDI, MARNIA GAGLIARDI, JOSEPH GAGLIARDI, RICHARD GALAS, LINDA GALAS, JASON GARGARO, ADRIAN GARGARO, TONY GARGARO, LINA GARGARO, JAMES HELLYER, JANE HELLYER, KANAMI HOLDINGS, DAVE LAMB, DONNA LAMB, GRANT MCCLEMENT, GERRIE MCCLEMENT, HELEN MCEVOY, BERNARD MCEVOY, CATHERINE MCEVOY, DAN MILLER, ALISON MOFFATT, HENRIE POULIE, CAROLE PULIE, ADAM PROCHILO, DOMINIC PROCHILO, CATHY PROCHILO, KATHLEEN RAFFERTY, DAVID STAINES, ROXANNE STILLS, LARRY TRIFON, NORMA TRIFON, WILIAM WALSH, MICHELLE WATT and RONNIE WYNNE (Defendants) ENDORSEMENT Ricchetti J. Released: July 13, 2017

The defendants brought a motion to strike the plaintiff's Statement of Claim for failing to disclose a reasonable cause of action or being frivolous and vexatious under Rule 21.01(1)(b) or 21.01(3)(d) of the Rules of Civil Procedure.

The court found it plain and obvious that the Statement of Claim did not disclose a reasonable cause of action against either the corporate or personal defendants, as the allegations of discrimination, defamation, fraud, improper discipline, and conversion lacked specific material facts and failed to meet the legal requirements for each tort.

Leave to amend the Statement of Claim was denied, and the claim was struck in its entirety.

The applicants sought a temporary injunction to prevent a power of sale, an order to assign a first mortgage, and a vesting order for three lots, aiming to extinguish a second mortgage held by one of the respondents.

The court dismissed all requests, finding the applicants' attempt to "cut out" the second mortgage was not bona fide.

The court held that the assignment, even if granted, would not extinguish the second mortgage due to contractual subordination and the subsequent mortgagee's right to redeem.

The court also found no serious issue to be tried for the injunction, no irreparable harm, and that the balance of convenience favored the respondents, noting the applicants did not come with clean hands.

This case involved two applications heard together concerning an Agreement of Purchase and Sale for a condominium unit.

The purchasers (Deangelis) sought specific performance, while the vendor (Weldan) sought a declaration that the agreement was validly terminated, forfeiture of the deposit, discharge of a Certificate of Pending Litigation, and damages.

The purchasers failed to close the transaction on the agreed-upon date due to a lack of funds, despite the agreement containing a "time of the essence" clause.

The court found no evidence of bad faith on the vendor's part and upheld the vendor's right to terminate the agreement due to the purchasers' anticipatory breach and failure to close.

The court declared the agreement validly terminated, the deposit forfeited, and ordered the purchasers to vacate the property.

The Crown sought a ruling on the admissibility of in-court statements made by the accused, Nelson Tayongtong, on two separate dates (March 11 and March 17, 2015).

The Defence opposed, arguing the statements were made to persons in authority, that the accused lacked an operating mind, or that their admission would lead to an unfair trial by revealing mental health issues.

The court found that the statements were not made to persons in authority, thus the confessions rule did not apply.

Even if it did, the Crown proved beyond a reasonable doubt that the accused had an operating mind.

The court also determined that the statements could be redacted to avoid disclosing mental illness to the jury.

Consequently, the in-court statements were ruled admissible.

The court determined costs for consolidated matrimonial and civil proceedings.

Barbara Ann Blatherwick sought full indemnity costs from Brian Earl Blatherwick and joint and several costs from Seasons (H.K.) Limited.

The court found Brian Earl Blatherwick acted in bad faith throughout the litigation, engaged in deliberate non-disclosure, and complicated the proceedings, warranting full indemnity costs.

Barbara Ann Blatherwick was awarded $1,401,031.31 against him.

Seasons (H.K.) Limited was also found to have acted in bad faith and engaged in reprehensible conduct by presenting false documents and evasive evidence, leading to an award of full indemnity costs of $147,877.41 against it.

This amount was included in the award against Brian Earl Blatherwick and made joint and several to that extent only.

The court rejected a broader joint and several liability for Seasons (H.K.) due to lack of notice and policy concerns regarding consolidation.

The father appealed a lower court's order that Ontario lacked jurisdiction over their child, Julia, and ordered her return to the United Arab Emirates (UAE) following the father's unilateral removal of Julia from the UAE.

The father sought a stay of this order pending appeal, arguing serious harm to Julia if returned.

The mother opposed the stay and sought security for costs of the appeal.

The court dismissed the father's motion for a stay, finding no serious issue to be tried, no irreparable harm, and that the balance of convenience favored Julia's return to her habitual residence in the UAE.

The court also dismissed the mother's motion for security for costs, despite finding the appeal lacked merit, due to the serious nature of the issues involving the child's best interests.

The Applicant mother and Respondent father brought motions for interim access to their 15-month-old child.

The mother sought temporary custody and limited access for the father, citing breastfeeding and separation anxiety.

The father sought increased parenting time, including an additional overnight.

The court rejected the mother's arguments regarding breastfeeding and anxiety, finding her not credible.

The court determined that increased parenting time with the father and his extended family was in the child's best interests, granting the father's requested schedule.

A s. 30 assessment was ordered, with costs to be shared equally.

The applicants brought a contempt motion against the respondents for failing to produce financial records as ordered by a prior court order.

Although the records were eventually produced, leading to no formal finding of contempt, the court found that the respondents' lengthy delay and non-compliance necessitated the motion.

The court awarded substantial indemnity costs to the applicants, finding the respondents' conduct in delaying disclosure and forcing the contempt motion to be reprehensible and to constitute special circumstances justifying a higher scale of costs.

Following a reference to determine the amount owing under a second mortgage and the sale of the property, the court determined the costs of the proceeding.

The second mortgagee was awarded $20,000 in partial indemnity costs against the mortgagors and the third mortgagee, exhausting the remaining surplus funds.

The court also awarded substantial indemnity costs against the third mortgagee for unnecessarily causing the second mortgagee and a former counsel to prepare for a costs hearing on claims that were abandoned at the last minute.

The court declined to determine the validity of the third mortgage as no surplus funds remained.

This endorsement addresses an issue regarding the payment of costs from trust funds in a construction lien proceeding.

Quality Rugs of Canada Limited sought to have its previously awarded costs for a motion and action paid from the Trust Funds, which were established to secure claims of various lien claimants.

The court declined this request, affirming its prior costs endorsement.

The court reasoned that the issue had been previously decided, that "Other Lien Claimants" were not parties to Quality Rugs' specific proceeding and should not bear its costs, and that allowing such payment would create an impermissible priority for Quality Rugs' costs contrary to the rateable distribution provisions of the Construction Lien Act.

This case involved a motion and cross-motion for interim relief in a family law dispute.

The Mother sought sole interim custody of the child and exclusive possession of the matrimonial home, while the Father sought access and the sale of the matrimonial home.

The court granted the Mother sole interim custody and exclusive possession, emphasizing the child's best interests and the Mother's financial position.

The Father was granted unsupervised access, as the court found no evidence of danger to the child to warrant denial or supervision.

The Father's request for the sale of the matrimonial home was denied, as his beneficial interest had not yet been established on an interim basis.

The appellant appealed a Small Claims Court decision dismissing his action for nuisance, negligence, and trespass against his neighbour.

The dispute arose when the respondent cut down boundary cedars to build a fence for the safety of a special needs child, after the appellant unreasonably refused consent.

The Divisional Court upheld the trial judge's finding that the overgrown cedars constituted a nuisance, substantially and unreasonably interfering with the respondent's use of his property.

The court confirmed that where a boundary tree is a nuisance, the Forestry Act does not prevent a co-owner from abating the nuisance through self-help if the other owner unreasonably withholds consent.

The appeal was dismissed.

The defendant was charged with importing cocaine into Canada.

The sole issue at trial was whether the Crown had proven beyond a reasonable doubt that the defendant knew the cans in her luggage contained cocaine.

The court considered circumstantial evidence, including the high value of the cocaine and the defendant's exclusive control over the cans.

The court rejected defence theories as speculative, concluding that the only reasonable inference was that the defendant had knowledge of the cocaine.

The defendant was found guilty as charged.

The Crown applied for a pre-trial ruling on the voluntariness of statements made by the defendant, C.C., during a police interview concerning charges of sexual assault and sexual interference.

The defence sought to exclude statements made after C.C.'s arrest, arguing they were involuntary due to emotional, physical, and psychological condition, oppressive questioning, and inducements.

The court found no evidence that C.C.'s will was overborne, noting his consistent reliance on the right to silence regarding the allegations, the non-oppressive nature of the interview, and the absence of a "quid pro quo" inducement.

The court ruled the statements were voluntarily made and admissible.

The defendant, Carol Andrea Gilmore, was found guilty by a jury of importing 217 grams of cocaine into Canada.

This was her third conviction for drug importation, in addition to other drug-related offenses and breaches of court orders.

The court considered the serious impact of drug importation on society, the principles of sentencing, and relevant case law on sentencing ranges for cocaine importation.

Despite the relatively small quantity of cocaine, the defendant's extensive criminal record, lack of genuine remorse, and history as a repeat drug courier were significant aggravating factors.

The court imposed a sentence of 4 years imprisonment, which, after credit for pre-sentence custody, resulted in 31.5 months in custody, along with a DNA order and a 10-year weapons prohibition order.

This costs endorsement addresses three sets of costs arising from prior motions: Quality Rugs' unsuccessful claim for carriage/salvage costs, Quality Rugs' successful summary judgment motion, and Quality Rugs' costs of the action.

The court applied principles from the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, emphasizing proportionality and reasonable conduct.

Quality Rugs' claim for salvage costs was dismissed, with the court finding its tactics unreasonable and the claimed services not benefiting the lien class.

Consequently, Quality Rugs was ordered to pay partial indemnity costs to Carriage Counsel ($20,125 plus HST) and Casaco/Casimiro ($4,000 plus HST) for that motion.

For its successful summary judgment motion, Quality Rugs was awarded $7,500 plus HST from Casaco/Casimiro.

For the action, Quality Rugs was awarded $10,000 plus HST from Sedona Development Group (Lorne Park) Inc., Sedona Development Group Inc., Casaco Developments Inc., and Casimiro Holdings Inc. The court found Quality Rugs' overall costs claims to be disproportionate to the amount at stake and its conduct in pursuing salvage costs to be unreasonable, though not egregious enough for substantial indemnity.

The costs orders were subject to set-off.

The defendant, Jacqueline Simone, was charged with attempting to export cocaine, possession for the purpose of exporting, and conspiracy to export cocaine.

The Crown sought a ruling on the admissibility of statements made by Ms. Simone to the police following her arrest.

The Defence sought to exclude these statements, alleging violations of Ms. Simone's Charter rights.

The court conducted a blended *voir dire* and ultimately ruled that Ms. Simone's statements were voluntary and admissible, finding no Charter breaches.

The defendant, Jacqueline Simone, faced charges including attempting to export cocaine and conspiracy.

During the trial, the defence brought two applications: to exclude telephone records from a co-conspirator's cell phone and to prevent the testimony of an officer regarding retrieved deleted messages from the defendant's phone.

The court dismissed both applications.

The first application was dismissed as the defence failed to establish that the co-conspirator hearsay evidence lacked necessity and reliability, applying the "rare cases" exception from R. v. Mapara.

The second application was dismissed, finding the officer's testimony factual, not expert opinion, and the evidence of deleted messages was probative as post-offence conduct, outweighing any potential prejudice.