M. Gregory Ellies

The parties, former common-law spouses, brought competing motions for summary judgment regarding the ownership of their former home.

The applicant had previously transferred his 50 percent joint interest in the property to the respondent gratuitously to protect it from creditors.

The court found that the gratuitous transfer created a presumption of resulting trust, which the respondent failed to rebut, as an intention to defeat creditors is not conclusive evidence of a gift.

The applicant's motion for a declaration of a resulting trust was granted, and the respondent's motion to dismiss or compel undertakings was dismissed.

However, the applicant was ordered to pay the respondent's substantial indemnity costs of $5,000 due to his conduct in the litigation.

The lawyer of record for the corporate defendant, Golden Environmental Services Inc., moved to be removed from the record.

Concurrently, the corporation's sole shareholder sought leave under Rule 15.01(2) of the Rules of Civil Procedure to represent the corporation.

The court dismissed the shareholder's motion, finding insufficient evidence that the corporation could not afford legal counsel and noting that the remaining issue regarding alleged negligent remediation was complex.

The lawyer's motion to be removed was adjourned for 30 days to allow the corporation to retain new counsel or satisfy the current retainer.

The appellant insurer appealed a Licence Appeal Tribunal decision which held that Employment Insurance (EI) sickness benefits were not deductible from the respondent's Income Replacement Benefits (IRBs) under the Statutory Accident Benefits Schedule.

The Divisional Court allowed the appeal, finding the adjudicator erred in law by creating an ambiguity where none existed and by distinguishing sickness benefits from other EI benefits.

The Court held that all EI benefits, including sickness benefits, fall within the definition of gross employment income and must be deducted from IRBs at the rate of 70 per cent.

The applicant sought an order quashing a 2003 decision of a Superior Court judge that declined to hear his applications regarding earlier criminal convictions.

The applicant sought to purge his criminal record and claim damages.

The court dismissed the application, holding that one Superior Court judge has no jurisdiction to grant an extraordinary remedy, such as certiorari or prohibition, in connection with the decision of another Superior Court judge.

The court also invited the Crown to consider seeking a vexatious litigant order if the applicant brings further related proceedings.

The accused, a 79-year-old man, sought release on a detention review under s. 525 of the Criminal Code.

He was charged with attempted murder and other offences against his former common-law spouse, and subsequently breached a non-communication order while in custody.

Despite a proposed release plan involving GPS monitoring, CCTV, and sureties, and evidence that the accused may be suffering from dementia requiring assessment, the court found the plan insufficient to mitigate the risks.

The court concluded that continued detention was necessary on both the secondary and tertiary grounds.

In a judge-alone sexual assault trial arising from a sexual encounter that began consensually, the central issue was whether the accused struck the complainant mid-encounter, thereby vitiating consent to subsequent sexual activity under s. 265(3) of the Criminal Code.

The court treated the matter as a credibility case, applied the W. (D.) framework, and found significant implausibilities and inconsistencies in the complainant's evidence, while also identifying limitations in the accused's evidence.

The medical evidence and post-incident text message were held not to materially corroborate the complainant's account.

Considering the evidence as a whole, the accused's evidence raised a reasonable doubt, and the Crown failed to prove absence of consent beyond a reasonable doubt.

The offender, an Indigenous man, was convicted of sexual assault, forcible confinement, assault, and threatening his former intimate partner, an Indigenous woman.

The Crown sought a global sentence of five years, while the defence sought two years.

The court weighed the aggravating factors, including the victim's vulnerability and the impact of the offences, against significant mitigating factors, particularly the offender's Indigenous background (Gladue factors), onerous bail conditions, and strong potential for rehabilitation.

The court sentenced the offender to a global term of two years' imprisonment, along with ancillary orders.

The applicant, a medical resident, was suspended and required to attend a health program.

He unsuccessfully appealed the suspension through the university's internal processes before filing an application with the Human Rights Tribunal of Ontario alleging discrimination.

The Tribunal dismissed the application as an abuse of process, finding the applicant had unfairly split his case.

On judicial review, the Divisional Court applied the reasonableness standard of review post-Vavilov and upheld the Tribunal's decision, concluding it was not unreasonable to find that duplicative proceedings regarding the same underlying facts were unfair to the university.

The appellant appealed a motion judge's order requiring her to pay table amount child support, arguing the judge erred by failing to apply the undue hardship test under section 10(1) of the Child Support Guidelines.

The Divisional Court dismissed the appeal, finding the motion judge correctly identified the legal test but was unable to apply it due to the appellant's failure to provide sufficient evidence of her income and means.

The court found no error of law or palpable and overriding error of fact in the motion judge's conclusion that the evidence was insufficient to establish undue hardship.

The appellant appealed a motion judge's decision granting the respondent sole decision-making authority over their child.

The appellant argued the motion judge erred in admitting hearsay evidence and finding a material change in circumstances.

The Divisional Court dismissed the appeal, holding that hearsay evidence is admissible on a motion to change under the Family Law Rules, and that compelling evidence, including the child's escalating behavioural crisis and the parents' inability to communicate, supported the finding of a material change.

The appellant sought leave to appeal a temporary order placing his partner's daughter into the care of the children's aid society.

A subsequent temporary order replaced the appealed order, placing the child with her mother under supervision.

The Divisional Court found the appeal legally moot because the controversy over the child's placement had been removed by the subsequent order.

The court declined to exercise its discretion to hear the moot appeal and dismissed it.

The parties brought competing motions regarding parenting time and decision-making for their two young children.

The mother sought to restrict the father's parenting time based on allegations of physical abuse, which the Children's Aid Society could not verify.

The court found the father's evidence more credible, dismissed the mother's motions, and granted the father unsupervised parenting time according to a previously agreed-upon schedule, along with shared decision-making responsibility.

Both parties' requests for a police enforcement clause were dismissed.

The applicant, Mr. G., brought motions to vary child and spousal support orders, change a parenting schedule, and prevent the Family Responsibility Office (FRO) from suspending his driver's license.

The respondent, Ms. R., brought a cross-motion to strike Mr. G.'s pleadings for his failure to comply with previous support orders and to obtain costs.

The court dismissed Mr. G.'s motions regarding child support, parenting time, and the refraining order, finding his disability claim unsubstantiated and his actions aimed at avoiding support obligations.

The motion to vary spousal support was adjourned for three months, conditional on Mr. G. significantly reducing child support arrears, failing which his pleadings would be struck and the matter would proceed without his full participation.

The defendant, Chad Valiquette, applied under sections 11(b) and 24(1) of the Charter of Rights and Freedoms to stay charges of assault and sexual assault due to unreasonable delay.

The court analyzed the total delay of 1331 days against the 30-month Jordan ceiling, deducting periods attributed to defence actions (awaiting an appeal decision, Legal Aid issues) and exceptional circumstances (threat to counsel, COVID-19 court suspensions).

The court found that after deductions, the remaining delay was 27.99 months, which is below the Jordan ceiling.

Consequently, the application for a stay of proceedings was dismissed.

Postmedia Network Inc. sought a declaration that a publication ban, imposed during a 2017 bail hearing for a sexual assault charge, applied only to the victim and not to a testifying mental health worker (B.M.) who was later identified in a newspaper article and subsequently sued Postmedia.

Alternatively, Postmedia sought to quash the ban via certiorari, arguing the court lacked jurisdiction to impose a mandatory ban on adult witnesses.

The Crown opposed, arguing improper collateral attack and lack of standing due to oblique motives and delay.

The court found Postmedia had standing, the application was not an improper collateral attack, and interpreted s. 486.4 of the Criminal Code to mean that mandatory publication bans apply only to victims of all ages and witnesses under 18 years.

The application was allowed, and a declaration issued that the ban applied only to the victim.

The defendant, Preston Proulx, was accused of sexual assault, forcible confinement, threatening death, and assault against his former girlfriend.

The central issue was credibility, as the complainant and defendant presented vastly different accounts of the events.

The court found the complainant's evidence credible, supported by photographic evidence and the defendant's emails containing admissions and demonstrating a tendency to anger and dishonesty.

The defendant was found guilty of all four charges.

The father (M.H.) appealed orders from the Ontario Court of Justice in a child protection application, including the striking of his answer and the award of custody to the mother (M.D.) with supervised access for him.

The father had refused to participate in virtual proceedings due to religious beliefs.

The Superior Court of Justice allowed the appeal, finding that while the motion judge did not err in denying an adjournment, she erred in interpreting or applying Rule 1(8.2) of the Family Law Rules by striking the father's answer without considering if the delay would be unfair, and by failing to fully consider the child's best interests when making the final custody order, relying on an incomplete Statement of Agreed Facts.

The matter was remitted to the Ontario Court for an expedited hearing.

The accused was charged with trafficking fentanyl, criminal negligence causing death, and manslaughter following the overdose death of an acquaintance.

In pretrial motions, the Crown sought to admit two police statements, while the defence sought to exclude the statements and text messages found on the deceased's cell phone.

The court found the statements were voluntary and not obtained in breach of s. 10 of the Charter.

However, the court ruled that the warrantless search of the deceased's cell phone at the scene violated the accused's s. 8 Charter rights.

The court excised the text messages from the search warrant information, found the remaining grounds insufficient, and excluded the text message evidence under s. 24(2) of the Charter.

The Corporation of the Township of Coleman moved for summary judgment to dismiss an action in which the plaintiffs sought a declaration that "Road A" is a public highway.

The plaintiffs argued the road became public through common law dedication and acceptance or by by-law.

The court granted the motion in part, dismissing the claim for a public highway declaration against both the Township and Paul Chitaroni.

The court found no evidence of proper dedication by the owner (who was unaware of ownership of the disputed portion) or sufficient public or municipal acceptance.

Other claims for damages remain to be addressed.

The defendants were previously granted leave to examine a non-party under Rule 31.10.

The court had initially expressed reluctance to award costs due to the poor quality of the defendants' motion materials, which made it difficult to determine the relevance of the proposed evidence.

The defendants sought partial indemnity costs of $13,916.32.

The court awarded a reduced lump sum of $3,500, noting that while the defendants satisfied the rule's requirements on their second attempt, the costs award must reflect the inadequacy of their materials, which did not even include a factum.