M. Gregory Ellies

During a jury trial for sexual offences, the 16-year-old complainant was unable to continue her testimony after a recess on the second day of cross-examination.

The Crown applied to continue the trial, while the defendant applied for a directed verdict of acquittal or a mistrial.

Applying the framework from R. v. Hart, the court found that the incomplete cross-examination had little impact on the jury's ability to assess the evidence, as the cross-examination was near completion and the defendant had already explored most areas of impeachment.

The court held that any prejudice could be remedied by allowing defence counsel to present the planned confrontation using prior statements and by providing a specific jury instruction.

The Crown's application was granted and the defendant's application was dismissed.

The plaintiffs purchased an HVAC business from the defendants and subsequently sued for breach of contract, alleging the defendants failed to operate the business in the ordinary course prior to closing.

The plaintiffs claimed the defendants failed to disclose slumping sales, employee layoffs, and deteriorating customer relationships.

The court dismissed the plaintiffs' claim, finding they failed to prove the changes were outside the ordinary course of business or not the result of a general deterioration in the HVAC market.

The court further held that even if a breach occurred, the plaintiffs were entirely responsible for their damages because they failed to exercise their contractual right to investigate the company's financial affairs before closing.

The defendants' counterclaim for the balance owing on a promissory note was allowed.

Following a trial where the respondent was awarded damages for unjust enrichment, he sought full indemnity costs of $10,642.67, citing the applicant's unreasonable behaviour and failure to accept an offer to settle.

The applicant, who was self-represented, resisted the costs order and sought spousal support and damages, alleging collusion between counsel.

The court rejected the applicant's allegations and found her behaviour, including reporting opposing counsel to the Law Society, to be unreasonable.

However, the court declined to award full indemnity costs, instead awarding enriched partial indemnity costs of $7,500 to the respondent.

The plaintiff brought a summary judgment motion at trial based on deemed admissions arising from the defendants' failure to respond to a request to admit.

The court found that the defendants owed $20,353.35 for asbestos abatement services, including $5,330.00 on the original invoice and $15,023.35 for additional work instructed and agreed to by both defendants.

The claim for interest at two percent per month was disallowed as no agreement on that rate had been proven, with prejudgment interest instead allowed at the statutory rate under the Construction Act.

The construction lien was found valid against both defendants, who were both found to be 'owners' within the broad statutory definition, as the deemed admissions established that the property owner had overseen renovations, instructed the work, and directly benefited from the improvement.

The defendant, charged with historical sexual offences against his daughter, applied under s. 276(2) of the Criminal Code to introduce evidence of the complainant's previous inconsistent statements regarding the paternity of a miscarried pregnancy.

The Crown concurrently applied under the Kinamore framework to introduce evidence of the complainant's sexual inactivity and bleeding during the alleged first assault.

The court granted the defendant's application, finding the previous statements significantly probative to the charge of sexual assault causing bodily harm.

The court partially granted the Crown's application, admitting evidence of the bleeding and sexual inactivity, but excluding the complainant's lay opinion that the bleeding was caused by a ruptured hymen and evidence of her virginity due to lack of competence and potential prejudice.

The offender, a 32-year-old first-time offender, was found guilty of assaulting his intimate partner with a knife.

The Crown sought a 90-day conditional sentence and probation, while the defence sought a suspended sentence and probation.

The court considered the offender's lack of criminal record, steady employment, mental health struggles, and compliance with bail conditions as mitigating factors.

The court declined to order restitution for the victim's treatment costs, finding insufficient evidence that the offence caused the claimed PTSD.

The court imposed a suspended sentence with 18 months of probation, a DNA order, and a 10-year weapons prohibition.

The applicant sought equalization of net family property following the dissolution of her marriage.

The respondent's pleadings were struck for failing to fulfill financial disclosure obligations under the Family Law Rules, and the matter proceeded as an uncontested trial.

The court undertook a detailed valuation of the parties' real property holdings, farm equipment, and the respondent's LIRA pension, relying on MPAC assessments, appraisals, and available bank statements in the absence of disclosure from the respondent.

The court ordered the respondent to pay the applicant $229,896.35 as an equalization payment, less two advances totalling $69,657.21, for a net payment of $160,239.14, together with prejudgment interest and costs.

On an application for a stay under s. 11(b) of the Charter, the court held that although total delay reached 1,316 days, 455.5 days were properly attributed to defence delay (including multiple adjournments, failures to appear, delayed election steps, and partial apportionment after late notice of delay concerns).

After deduction, net delay was 860.5 days (28.3 months), below the 30-month Jordan ceiling for Superior Court matters.

The application was dismissed.

In a bifurcated family property trial involving an unmarried couple, the court addressed claims concerning a home on First Nation reserve land and allegations of unjust enrichment.

The responding party sought a proprietary interest and partition and sale under First Nation matrimonial property law and, alternatively, provincial partition legislation.

The court held that a non-band member could not be granted a beneficial interest in reserve land and rejected partition and sale as an available remedy on the facts and legal framework.

The court nevertheless found unjust enrichment and awarded a monetary remedy calibrated to contributions and the benefit received through rent-free occupation.

The applicant was ordered to pay damages with pre-judgment interest, and costs were left for further submissions if not agreed.

The defendant, charged with historical sexual offences against his daughter, applied under s. 276(2) of the Criminal Code to introduce evidence of a statement the complainant made to a roommate about being sexually abused by a peer.

The defendant argued the statement was relevant to show animus and as a prior inconsistent statement.

The court found the statement had no probative value as a prior inconsistent statement but had significant probative value as evidence of animus towards the defendant, providing a potential motive to fabricate.

The court concluded that the probative value was not substantially outweighed by the danger of prejudice and allowed the application to cross-examine the complainant on the statement for the limited purpose of demonstrating animus.

The Crown applied under s. 486.2(1) of the Criminal Code for an order permitting the complainant to testify via CCTV from outside the courtroom.

The complainant, who alleged sexual offences by the accused, suffered from Complex Post-Traumatic Stress Disorder and experienced severe anxiety when testifying in the visual presence of the accused.

The court found that the Crown established on a balance of probabilities that the complainant may have difficulty communicating her evidence due to a mental disability.

The application was granted.

The respondent in a family law application moved under r. 25(19) of the Family Law Rules to set aside an order noting her in default for failing to serve and file an answer.

The court held it had no jurisdiction to set aside the noting of default under r. 25(19) because the respondent had proper notice and was physically present at the motion.

The court also declined to adopt a procedure analogous to r. 19.03 of the Rules of Civil Procedure, finding no gap in the FLRs warranted filling.

Even if jurisdiction existed, the court would not have exercised its discretion in the respondent's favour given her unexplained and unreasonable failure to comply with the rules over nearly a year.

On a temporary parenting motion, the moving party sought a graduated parenting-time order and related communication and counselling relief after a breakdown in parent-child contact following separation.

The responding party and the child’s counsel opposed compelled parenting time and asked that the child’s preferences govern contact.

Applying the best-interests framework under the Divorce Act and the Children’s Law Reform Act, the court declined to force parenting time immediately but imposed interim conduct, communication, and information-sharing terms designed to support eventual reconnection.

The order was made without prejudice and the motion was adjourned for review, with leave to vary without proving a material change if progress is insufficient.

No costs were ordered due to mixed success.

The Crown applied for permission to introduce similar fact evidence in a case involving six charges of sexual touching and extortion of a nude photograph.

The Crown sought to introduce evidence that the defendant attempted to obtain a nude photograph from the complainant's friend (extrinsic similar fact evidence) and to have evidence relating to the photograph charges admitted in support of the sexual touching charges (cross-count similar fact evidence).

The court granted the extrinsic similar fact evidence application but denied the cross-count similar fact evidence application, finding insufficient probative value in the latter.

The offender was convicted following a jury trial of sexual assault and voyeurism (surreptitiously making a visual recording) involving his intimate partner.

The offender recorded videos and photographs of the victim without her consent while she was unconscious, depicting him inserting objects into her body.

The Crown sought five years imprisonment; the defence sought less than two years in the community.

The court imposed a four-year sentence, finding the starting point of three years for forced penetration offences was appropriate with one additional year for the voyeurism conviction imposed consecutively.

The court considered the breach of trust inherent in intimate partner violence, the devastating impact on the victim, and the degree of physical interference with bodily integrity as aggravating factors, balanced against the offender's lack of criminal record, solid work history, and steps toward addressing substance abuse issues.

The accused was charged with sexually touching a child on three or four occasions when she was approximately 11 years old.

The Crown alleged that the accused touched the complainant's breasts, buttocks, and vagina under her clothing while she was intoxicated at a firepit and subsequently in the basement and bedroom of the family home.

The accused denied all allegations.

The trial judge found both witnesses credible but identified significant implausibilities in the complainant's evidence, including that she would not be wearing underwear at age 11 and that each alleged incident would follow an identical pattern.

Finding these implausibilities created a reasonable doubt, the court acquitted the accused on both charges.

The applicant mother sought a temporary order requiring the parties' four-year-old child to attend school in Sturgeon Falls, where she resides, and requested changes to the parenting time regime to accommodate the child's school attendance.

The respondent father opposed the motion and requested that the child attend school in Markstay, located roughly halfway between the parties' residences.

The court granted the mother's motion, finding that attendance at École Publique Jeunesse Active in Sturgeon Falls was in the child's best interests based on the composition of the student body and the excessive travel time that would be required if the child attended school in Markstay.

The court also modified the parenting time schedule and imposed a costs award of $2,000 all-inclusive against the father.

The appellant, an ODSP recipient with Avoidant/Restrictive Food Intake Disorder (ARFID), appealed a decision of the Social Benefits Tribunal denying her a special diet allowance.

The Tribunal had found that while ARFID required dietary modifications, the appellant failed to prove it resulted in additional food costs compared to a regular healthy diet.

On appeal to the Divisional Court, the appellant raised numerous procedural, substantive, and constitutional issues, including challenges to the Tribunal's rules and the introduction of new evidence.

The Divisional Court dismissed the appeal, finding no errors of law or procedural fairness in the Tribunal's decisions, and declined to hear constitutional arguments raised for the first time on appeal without proper notice.

The court considered competing motions regarding the matrimonial home: the respondent sought exclusive possession and a transfer of the home into his name, while the applicant sought partition and sale under the Partition Act.

The court found that both motions were, in substance, for final relief and analyzed them accordingly.

The court held that the respondent had not established grounds for exclusive possession or for a transfer of the home, and that the applicant was entitled to an order for sale, but not exclusive control of the sale process.

Directions were given for the sale and for the holding of proceeds in trust.

Costs were awarded to the applicant on a partial indemnity basis.

The tenants appealed an eviction order from the Landlord and Tenant Board, arguing they did not receive the Notice of Hearing and that the landlord's application was void for omitting a prior N12 Notice.

The Divisional Court dismissed the appeal, finding that the LTB's determination regarding receipt of the Notice of Hearing was an unappealable finding of fact.

The court also held it was bound by prior precedent regarding the validity of the application.

The appeal was dismissed without costs.