Martin S. James

The appellant condominium corporation appealed a Small Claims Court decision awarding damages to its former property management company for breach of a restrictive covenant.

The trial judge had awarded damages that included lost profits from both the appellant and a neighbouring condominium corporation that had also terminated its contract.

The Divisional Court allowed the appeal, finding that the trial judge erred in holding the appellant liable for losses attributable to the neighbouring corporation, which was not bound by the restrictive covenant.

The damages award was reduced accordingly.

The applicant, a residual beneficiary of an estate, brought an application against the estate trustees (respondents) alleging mismanagement.

The claims included undue delay in selling the estate house, improper handling of a joint bank account, misdirection of life insurance proceeds, and premature taking of executor compensation.

The court dismissed the applicant's claims regarding occupation rent, the joint bank account, and the life insurance proceeds, finding insufficient evidence for the rent claim, no specific impropriety with the bank account, and that the presumption of resulting trust for the life insurance was rebutted.

While noting the irregular prepayment of executor compensation, the court directed the respondents to formally pass accounts to determine the proper amount.

The defendant, Kevin Rix, brought a motion to compel the plaintiff, Louise Charron-Rix, to attend a defence orthopaedic assessment and to extend the time for serving the resulting report.

The court dismissed the motion, finding that the defendant's request was made too late, three years after the plaintiff's initial expert report and just two months before trial.

The court emphasized the prejudice to the plaintiff and the risk of delaying the trial, noting that the updated medical records did not disclose new diagnoses justifying a late assessment and that the defendant had not previously asserted the necessity of such an examination.

The respondent, Rene Faucher, brought a motion to change seeking shared decision-making, equal shared parenting time, and child support based on s. 9 of the Federal Child Support Guidelines, including a retroactive adjustment.

The applicant, Dianne Douglas, opposed the increase in parenting time and sought sole decision-making.

The court found that the respondent's parenting time had exceeded 40% since 2017 and granted a retroactive child support adjustment in his favour, effective January 1, 2018.

However, the court dismissed the respondent's request to transition to equal parenting time, citing the children's settled routine, their age, and the protracted duration of the status quo.

The applicant's request for sole decision-making was also dismissed due to insufficient evidence.

Mark Cameron was found guilty of break and enter with intent, robbery with a firearm, possession of a weapon for a dangerous purpose, and possession of cocaine.

This decision outlines the reasons for his sentence.

The court considered the circumstances of the home invasion-style robbery, the significant impact on the victims, Mr. Cameron's dated but extensive criminal record including prior robberies, and his personal circumstances.

The court applied sentencing principles, emphasizing denunciation and deterrence, while also considering rehabilitation and the parity principle with co-accused.

The court granted a two-year credit for pre-sentence custody and onerous bail conditions.

A global sentence of 8 years imprisonment was imposed, reduced to 6 years after credits.

The appellant was convicted of accessing child pornography under section 163.1(4.1) of the Criminal Code.

The appeal challenged the trial judge's finding that the Information to Obtain (ITO) for the initial Production Order provided sufficient information to support a reasonable belief that a child pornography offence had been committed.

Specifically, the appellant argued that the described image, depicting a nude pre-pubescent female, did not meet the statutory definition of child pornography, contending that a pre-pubescent breast did not constitute a sexual organ under section 163.1(1)(a)(ii).

The court dismissed the appeal, finding no extricable error of law or palpable and overriding error of mixed fact and law in the trial judge's thorough review and determination that the ITOs were not facially deficient and that the image qualified as child pornography within the statutory definition.

The defendants brought a motion for summary judgment seeking to dismiss the plaintiff's action, arguing that no contract was formed as alleged by the plaintiff, or alternatively, that the claim was barred by the Limitations Act, 2002.

The plaintiff sought summary judgment in his favour, asserting a binding agreement for shares or a portion of sale proceeds.

The court granted the defendants' motion, finding that the parties were never bound to a legally enforceable agreement beyond the initial employment contract, which contained an "entire agreement" clause.

The court concluded there was no "meeting of the minds" on subsequent compensation arrangements and that the limitations period issue was moot given the lack of a discoverable claim.

This is a costs endorsement following a successful motion by the Respondent to increase parenting time.

The Respondent sought substantial indemnity costs of $9,000, alleging unreasonable behaviour by the Applicant in refusing to negotiate and ignoring communications.

The Applicant argued the docketed time was excessive and that a punitive costs order was unwarranted, proposing $3,312 plus HST.

The court found that punitive costs were not appropriate as the conduct was not egregious and Rule 18 did not apply.

The court awarded the Respondent $4,000 plus HST in partial indemnity costs, finding the total time spent by the Respondent was higher than reasonably anticipated by the Applicant.

This costs endorsement follows the respondent's successful jurisdictional motion to dismiss the applicant's originating application and addresses the costs of the applicant's unsuccessful contempt motion.

The jurisdictional motion centered on the Ontario Superior Court's power to set aside a final New Brunswick family court order, which the court found it lacked.

Applying Rule 24 of the Family Court Rules, the court awarded partial indemnity costs to the successful respondent, noting the moderate complexity of the issues and the inappropriateness of the applicant's contempt motion, which lacked proper service and was an ill-suited remedy.

This is a costs endorsement following a trial management conference and a motion by the applicant to adjourn the trial.

The adjournment was necessitated by the respondent's failure to comply with financial disclosure obligations, which the court emphasized as essential for fair and efficient family law proceedings.

The applicant sought full indemnity costs, and the respondent failed to provide any responding submissions.

The court awarded the applicant fixed costs of $1500 plus HST, payable forthwith, finding the amount reasonable given the time spent and counsel's hourly rate.

The respondent husband brought a motion seeking a declaration that the Ontario Superior Court of Justice, Family Division, lacked jurisdiction to set aside a Consent Final Order issued by the New Brunswick Court of Queen’s Bench.

The applicant wife had commenced an application in Ontario to set aside the New Brunswick order, alleging fraud and misrepresentation by the respondent regarding his retirement status, which impacted spousal support waiver and pension division.

The court determined that an Ontario court does not possess the inherent or statutory jurisdiction to set aside a final order from another province, particularly when the original order was based solely on provincial legislation and not the Divorce Act.

The court noted that while interjurisdictional support orders have specific statutory mechanisms (e.g., ISOA), these do not extend to setting aside the original order itself.

The respondent's motion was granted, and the applicant's underlying application was dismissed.

This was an application by Virginia Dolinska to be discharged as counsel of record for the accused, S.S., who is facing multiple serious criminal charges and is in custody.

Ms. Dolinska sought to withdraw due to anonymous threats received related to her representation of S.S., which caused her to fear for her safety, and a perceived loss of trust in the solicitor-client relationship.

The accused stated he had not lost confidence in his counsel.

The court considered the potential prejudice to the accused, including possible delays to scheduled trial and severance application dates, but ultimately granted the application, noting that the perception of counsel not being fully committed due to safety fears was contrary to the interests of justice.

The accused, charged with second-degree murder in the death of his common-law partner, applied to vacate his pre-trial detention order.

The victim had a history of severe injuries and reported prior domestic abuse by the accused, who had been diagnosed with schizophrenia.

The court found the proposed release plan inadequate to address the secondary ground of protecting the public, noting the lack of a detailed treatment plan for the accused's mental illness.

The court also found detention necessary under the tertiary ground to maintain public confidence in the administration of justice, given the strong Crown case, the gravity of the offence, and the vulnerability of the victim.

The application was dismissed.

The offender was sentenced after convictions for sexual assault, sexual interference, and sexual exploitation arising from repeated sexual abuse of his teenage step-daughter over a lengthy period.

The court applied the Supreme Court of Canada's direction that sentences for sexual offences against children should generally move upward and prioritized denunciation and deterrence, while also considering rehabilitation, the offender's mental health issues, and the low assessed risk of reoffending.

The court treated the victim's youth, the familial relationship, the offender's position of trust, and the repeated nature of the abuse as significant aggravating factors.

A four-year global sentence was imposed, reduced by credits for pretrial custody and onerous bail conditions to a sentence of three years and ten months, together with multiple ancillary orders.

The applicant brought a motion to enforce a 2019 order regarding the respondent's contributions to their son's university expenses.

The parties presented conflicting affidavit evidence regarding the actual costs, payments made, and the level of disclosure provided.

The court found that credibility findings could not be made on the untested affidavit evidence and that primary source documentation was lacking.

The court directed a focused hearing to determine the appropriate allocation of the university expenses.

The applicant father brought a motion to change a 2018 Alberta order regarding parenting and child support after relocating to Ontario with the children.

He sought sole decision-making, retroactive child support, and payment for section 7 expenses.

The respondent mother sought to enforce access and reduce her debt payments.

The court dismissed the request for sole decision-making and past section 7 expenses due to lack of documentation.

The court fixed child support arrears based on the mother's actual income but credited her $9,750 because the father failed to pay his court-ordered share of the children's travel costs for access visits.

Success was divided, and no costs were awarded.

The applicant, a 50% shareholder and director of a restaurant corporation, brought an application for an oppression remedy against his brother (the other 50% shareholder) and his sister-in-law.

The respondents had negotiated a lease buyout without the applicant's knowledge, deposited the proceeds into a separate account, and diverted funds to the sister-in-law under a fabricated security agreement.

The court found that the respondents' actions breached the applicant's reasonable expectations under the unanimous shareholder agreement and constituted oppression.

The court ordered an accounting, the discharge of the security agreement, and the return of diverted funds to a trust account.

The plaintiff brought a motion for a further and better affidavit of documents in an action alleging bad faith by her insurer, Pilot/Aviva.

The plaintiff sought production of communications between Aviva and counsel for the tortfeasors' insurer, Traders/Aviva.

The defendants claimed litigation and solicitor-client privilege over the contested documents.

The court ordered that the contested documents be delivered to Associate Justice Kaufman for judicial review to determine whether they are protected by privilege or ought to be produced.

The offenders, who worked as cleaners in a medical office, were convicted of forging prescriptions for opioids and possessing fentanyl and oxycodone.

Both offenders suffered from severe opioid addictions.

The Crown sought custodial sentences of 9 to 12 months, while the defence sought conditional discharges.

The court declined to grant conditional discharges, finding them contrary to the public interest given the seriousness of the offences and lack of rehabilitation plans.

However, considering the significant delay of over five years and the offenders' circumstances, the court imposed 12-month conditional sentences to be served in the community, followed by two years of probation.

This is a costs endorsement following a successful application under the Municipal Conflict of Interest Act.

The applicant, the Integrity Commissioner, was found substantially successful in the underlying application, despite not succeeding on all allegations.

The court considered the applicant's claim for partial or substantial indemnity costs and the respondent's arguments regarding excessive time and junior counsel fees.

The court awarded the applicant $25,000.00 for fees plus $2,125.42 for disbursements, including HST, finding the respondent's conduct intentional and persistent, which warranted more than a nominal costs order.