Malcolm Bennett

The parties separated after an incident of domestic violence resulting in the applicant father's conviction for assault.

At trial, the parties settled most issues via Minutes of Settlement, leaving the location for child exchanges and decision-making authority for education to be determined.

The court ordered exchanges to occur at the child's daycare and granted the respondent mother final decision-making authority over education.

Furthermore, the court exercised its parens patriae jurisdiction to override a mandatory mediation/arbitration clause in the Minutes of Settlement, finding it contrary to the child's best interests given the history of domestic violence and the mother's fear of the father.

A separated couple disputed two remaining parenting issues concerning their young child: the location for parenting exchanges and which parent should make decisions about the child’s education.

The court found that exchanges should occur at the child’s daycare, where the child was comfortable and settled.

Given the parties’ inability to communicate, the mother was granted final decision‑making authority regarding the child’s schooling within the local area after consultation with the father.

The court also scrutinized settlement terms requiring mandatory mediation and arbitration for future disputes, concluding that strict enforcement could undermine the best interests of the child where domestic violence and power imbalance concerns existed.

The court modified the dispute‑resolution provisions to permit mediation, arbitration, or court proceedings where appropriate.

During a civil jury trial arising from a motor vehicle accident involving a child pedestrian, the court ruled on the permissible scope of testimony from an accident reconstruction expert.

The plaintiffs sought to elicit opinion evidence concerning alleged deficiencies in the defendant vehicle’s braking system and on driver perception and reaction times.

The court held that Rule 53 of the Rules of Civil Procedure requires expert reports to clearly state the opinions being advanced and their factual bases, and an expert cannot introduce a new field of opinion not articulated in the report.

Because the expert’s reports did not opine that the brake condition contributed to the collision, such testimony would improperly expand the report.

The court also barred additional human factors opinion evidence as duplicative of testimony already provided by a qualified human factors expert.

The defendant moved to exclude examination for discovery transcripts on the basis that he did not have an interpreter during the first discovery and that some answers during the second discovery were given in broken English.

The moving party argued the transcripts were unreliable and unfair to use at trial.

The court held that the obligation to arrange for an interpreter rests with the party being examined and noted the defendant had an opportunity during the second discovery to correct earlier answers.

The court found that although the defendant would testify at trial through an interpreter, the discovery transcripts should not be struck.

Instead, the court directed that proposed read‑ins be reviewed to ensure fairness in light of the language issues.

During a jury trial arising from a motor vehicle accident involving a child pedestrian, the defendants moved for a mistrial following the plaintiffs’ opening address.

The court had previously ruled that a police mechanic could not provide expert opinion evidence regarding the condition or effect of the vehicle’s brakes.

In the opening address, plaintiffs’ counsel suggested that the defendant driver’s brakes were in an unsatisfactory condition and invited the jury to infer that this contributed to the accident, despite the absence of expert evidence supporting such a theory.

The court held that the opening address improperly contained argument, inaccurate statements about the police investigation, and suggestions that the jury act as enforcers of societal rules.

Because the comments invited the jury to draw conclusions unsupported by admissible evidence and could not be cured by a corrective instruction, a mistrial was declared.

During a civil jury trial arising from a pedestrian motor vehicle accident involving a child, the defendants moved for a mistrial after the plaintiffs’ counsel delivered an opening address containing alleged misstatements of law and improper argument.

The court found that counsel repeatedly misstated the reverse onus under the Highway Traffic Act by suggesting that all defendants bore the burden of disproving negligence, improperly argued factual conclusions regarding vehicle brake defects without supporting expert evidence, and displayed discovery transcript excerpts suggesting an admission of negligence by one defendant.

The court held that the discovery excerpt was misleading, potentially inadmissible, and taken out of context, particularly given language barriers during the examination for discovery.

Considering the cumulative prejudicial impact of the opening remarks, the court concluded that corrective instructions would not sufficiently remedy the prejudice to the jury.

A mistrial was therefore declared.

The plaintiffs in a motor vehicle personal injury action involving a child with an alleged brain injury sought leave under s. 12 of the Evidence Act to call more than three expert witnesses at trial.

The court considered factors governing leave to call additional experts, including necessity, duplication of evidence, fairness between parties, and proportionality.

While acknowledging the complexity of the medical issues and future care claims, the court emphasized the trial judge’s gatekeeping role and the need to avoid unnecessary or repetitive expert testimony.

Leave was granted for several experts with distinct specialties but denied for others whose proposed evidence lacked a compliant Rule 53 report or would duplicate testimony from other experts.

The court limited the number of occupational therapists who could testify and refused permission for certain proposed witnesses whose opinions were unnecessary or procedurally deficient.

Following the release of reasons in which the Court of Appeal fixed costs, the court received written submissions from counsel regarding costs.

After reviewing the submissions, the court declined to vary its original costs disposition, noting that the respondent's obligation is to pay net child support in accordance with the Child Support Guidelines.

The appellant mother appealed a trial judgment ordering joint custody and parallel parenting of the parties' four-year-old child.

She sought sole custody, arguing the trial judge erred in prioritizing the father's interests, presuming co-parenting was appropriate, and ordering joint custody despite parental conflict.

The Court of Appeal dismissed the custody appeal, finding the trial judge made no reviewable errors and that the child was thriving under the joint custody arrangement.

The Court varied the parenting schedule to align with a post-trial expert assessment and allowed the appeal regarding child support, ordering the respondent to pay support in accordance with the Child Support Guidelines.

Following a judgment released on January 22, 2004, the parties submitted written submissions on costs.

The appellant sought costs of $6,778.50.

The respondent requested a no-costs order due to financial hardship but conceded the quantum was reasonable.

The Divisional Court found no reason to depart from the rule that costs follow the event and ordered the respondent to pay the appellant costs fixed at $6,778.50.

The respondent's registration as a motor vehicle dealer and salesman was revoked due to odometer tampering.

He later re-applied for registration, but the Registrar proposed to refuse the application based on his past misconduct, including criminal fraud convictions.

The Licence Appeal Tribunal restored his registration, accepting his argument that the fraud was due to bad paperwork and a dishonest employee.

The Registrar appealed.

The Divisional Court allowed the appeal, finding that the Tribunal erred fundamentally by allowing the respondent to relitigate the essential element of criminal intent from his fraud convictions.

The Tribunal's decision was set aside and the Registrar's proposal to refuse registration was restored.

The Registrar of the Motor Vehicle Dealers Act appealed a tribunal decision.

The Divisional Court adjourned the hearing, directing the parties to provide the complete record of the respondent's prior criminal appeal and written submissions on whether the tribunal impermissibly allowed a collateral attack on those criminal convictions.

The Court of Appeal for Ontario issued an endorsement on costs following two appeals.

The court agreed with the submissions of the interveners and ordered that the respondent municipality is entitled to total costs of $10,000.

Of this amount, $7,000 is to be paid by the individual appellant and $3,000 by the interveners.

The appellant challenged a trial decision arising from a commercial contract dispute involving nonpayment and an asserted oppression remedy.

The Court of Appeal held that the appellant failed the Cognos test because it was unreasonable to proceed with a contract of over $200,000 without payment protection beyond a lien claim and to continue working without questioning nonpayment.

The court also noted that the appellant did not seek to overcome the trial judge's credibility findings relating to the guarantee issue.

The appeal was dismissed with costs.