Michael A. McKee

The defendant appealed a Master's order granting the plaintiffs leave to amend their statement of claim.

The proposed amendment alleged that a trust agreement concerning a residential property was void because it violated the common law Rule Against Perpetuities by failing to specify a time frame for legal title to vest.

The Superior Court of Justice allowed the appeal, finding that the Master erred in law by failing to determine if the pleading was legally tenable.

The court held that under sections 3 and 4 of the Perpetuities Act, the contingent interest was presumptively valid and subject to a 'wait and see' approach, making the plaintiffs' proposed amendment impossible of success and legally untenable.

The plaintiff brought an action for payment on a promissory note, damages for fraud, and to set aside a transfer of a matrimonial home as a fraudulent conveyance, following the defendant's criminal conviction for fraud related to the same loan.

Both parties moved for summary judgment.

The court dismissed both motions, finding that genuine issues requiring a trial existed regarding the assessment of damages, the credibility of the defendant's explanation for the property transfer, and whether the limitation periods had expired or were extended by restitution payments and the ongoing criminal proceedings.

The respondent, Fei Hung, brought a motion for partial summary judgment concerning the alleged theft of monies by the applicant, Robert Willis, and the ownership of her home, business, and contents of a safety deposit box.

She also sought to dismiss Willis's entire claim.

The court found the parties' cohabitation agreement to be valid and binding, dismissing Willis's claim to an ownership interest in the property and the Eglinton business.

However, issues regarding the ownership of the Jutland business and the exact amount of money in the jointly owned safety deposit box were deemed to require oral evidence and were reserved for a mini-trial.

Willis's claim for unjust enrichment related to the property was dismissed due to the binding agreement.

The appellant appealed his conviction for laundering proceeds of crime contrary to section 462.31 of the Criminal Code and sought leave to appeal his sentence.

The trial judge convicted the appellant of laundering a bank draft obtained through a counterfeit cheque fraud scheme.

The appellant raised four grounds of appeal: (1) that the trial judge erred in dismissing his section 11(b) Charter application regarding trial delay; (2) that the actus reus of the offence was not made out because the bank draft was revoked before it could be cashed; (3) that the mens rea was not satisfied because the appellant was not willfully blind to the fraudulent origin of the bank draft; and (4) that the trial judge erred in refusing to permit the appellant to reopen his defence to call further medical evidence.

The Court of Appeal dismissed all grounds of appeal and upheld the conviction and sentence.

The appellants were charged with selling tobacco to a person under 19 years of age contrary to the Smoke-Free Ontario Act.

Both entered guilty pleas at their first appearance without legal representation.

On appeal, the appellants challenged the validity of their guilty pleas, arguing that the plea inquiry was inadequate, that language barriers compromised their understanding, and that the court failed to inform them of their right to trial or to assist them in obtaining representation.

The court found that the guilty pleas should be quashed because the defendant did not accept the facts underpinning the conviction, and because the plea inquiry was insufficiently detailed given the unsophisticated nature of provincial offences court participants.

The appellant, found guilty of assault and mischief, appealed both his conviction and sentence.

The appeal was based on two grounds: ineffective assistance of trial counsel and the trial judge's refusal to reopen the hearing to allow the appellant to testify.

The court applied the test for ineffective assistance of counsel from R. v. Archer and R. v. G.D.B., finding that counsel competently advised the appellant regarding the risks and benefits of testifying, including potential perjury and bail breaches.

The court also upheld the trial judge's discretionary decision not to reopen the case, noting that the appellant's change of mind was a reversal of an earlier tactical decision, which did not warrant disrupting the orderly conduct of the trial.

Both grounds of appeal were dismissed.

Ms. Hung brought a motion seeking to have Mr. Willis found in contempt, to produce documents pursuant to an earlier order, and to pay funds into court.

The contempt motion was withdrawn due to procedural issues, and the request for payment into court was dismissed as res judicata.

However, Mr. Willis was ordered to produce documents he had previously been ordered to provide.

Both parties sought costs for the motion.

The court found Ms. Hung was successful on the core issue of document production, which Mr. Willis had unreasonably resisted.

Mr. Willis's arguments were deemed without merit and unreasonable, and his conduct was considered contemptuous in a practical sense.

Ms. Hung was awarded costs of $5,650.00.

The respondent, Ms. Hung, brought a motion seeking an order to find the applicant, Mr. Willis, in contempt of a prior court order, for the delivery of his tax returns and Notices of Assessment, for his attendance at questioning, and for payment of funds into court.

The contempt aspect of the motion was withdrawn due to improper service.

The parties agreed on the questioning schedule.

The court ordered Mr. Willis to file his 2015, 2016, and 2017 tax returns with the CRA and provide them, along with Notices of Assessment, to Ms. Hung, rejecting his arguments that a subsequent order or non-filing with the CRA relieved him of this duty.

The request for payment into court was dismissed as res judicata, having been previously addressed by another order.

Costs were reserved for written submissions.

The appellant was convicted of unauthorized possession and careless storage of a sawed-off shotgun and possession of prohibited devices, including a silencer and high capacity magazines.

On appeal, the appellant challenged his convictions relating to the shotgun and silencer on two grounds: first, that the trial judge reversed the burden of proof by repeatedly referencing his decision not to testify; and second, that the verdict was unreasonable.

The Court of Appeal dismissed both grounds of appeal, finding that the trial judge did not reverse the burden of proof and that the conviction was well-supported by circumstantial evidence.

The appellant also sought leave to appeal his sentence of 14 months custody, arguing for a conditional sentence, which was also dismissed.

The plaintiffs and defendants jointly owned a property operating as a medical clinic and pharmacy.

Following a breakdown in their relationship, the plaintiffs brought a motion to sell the property.

The defendants repeatedly delayed proceedings and failed to pay their share of utilities and taxes, while invoking a mandatory arbitration clause.

The court granted the plaintiffs' motion, finding the defendants acted in bad faith and caused deliberate delay.

The court exercised its inherent jurisdiction to grant an injunction and applied the oppression remedy under the OBCA to permit the sale of the property.

The moving party (defendant) brought a motion to set aside a default judgment that ordered the sale of a property under the Partition Act.

The moving party argued that the property was held in trust for several family members who had contributed to its purchase and carrying costs, and that he missed the hearing due to confusion over an adjournment date.

The court applied the factors for setting aside a default judgment, finding that the moving party moved expeditiously after learning of the judgment, had a plausible explanation for the default, and presented an arguable defence based on a constructive trust and an oral agreement.

The court concluded that the interests of justice favoured setting aside the judgment, as the prejudice to the moving party and his family outweighed any prejudice to the responding party.

The motion was granted.

The accused was convicted of simple possession of fentanyl following a trial.

The Crown sought a 90-day jail sentence, emphasizing the toxicity of fentanyl and the need for deterrence and denunciation.

The court rejected a custodial sentence, finding that the fentanyl crisis is primarily a public health issue rather than one requiring criminal deterrence.

The court imposed a suspended sentence with three years' probation, including conditions requiring monthly reporting, residence approval, non-association with criminals, abstinence from controlled substances, and participation in substance abuse and mental health counselling.

The accused Moore and Abbott were charged with trafficking fentanyl on March 15, 2016.

Abbott was additionally charged with possession of fentanyl for the purpose of trafficking.

The Crown conceded it had not proven the trafficking count against Abbott, which was dismissed.

At trial, the court found Abbott guilty of simple possession of fentanyl but not guilty of possession for the purpose of trafficking, finding reasonable doubt as to trafficking intent.

The court found Moore guilty of trafficking fentanyl, determining on the basis of circumstantial evidence that Moore was the dealer "Sweets" who sold the fentanyl to Abbott from apartment 1415 at 263 Pharmacy Avenue.

The accused Moore and Abbott were charged with trafficking in fentanyl.

Moore was additionally charged with possession of fentanyl for the purpose of trafficking.

Both brought pre-trial Charter motions alleging violations of their rights under ss. 8, 9, and 10 of the Charter.

The Crown sought to establish the voluntariness of utterances made by both accused.

The court found that the arrests of both accused were lawful based on reasonable and probable grounds.

However, the court found a violation of Moore's rights under s. 10(b) when police failed to follow up after his request for counsel could not be connected.

The court applied the s. 24(2) test and admitted the evidence, finding that exclusion was not necessary to maintain public confidence in the administration of justice.

The mother sought sole custody and permission to relocate with the parties' two-year-old child from Ontario to California.

The mother, a US citizen, had been isolated during the marriage and had no financial prospects or family support in Ontario.

The father sought sole custody but provided no clear plan and his evidence was found to be unreliable.

The court granted the mother sole custody, finding she was the primary caregiver and a better decision-maker.

Applying the Gordon v. Goertz framework, the court permitted the relocation to California, noting the mother's sound plan for financial self-sufficiency and the emotional benefits to both her and the child.

The court also dispensed with the father's consent for travel and government documents.

Milan Mitrovic was convicted of sexual assault.

The court delivered reasons for sentence, imposing a 4-year penitentiary term.

The complainant was unconscious due to self-administered substances, and Mitrovic, a platonic friend, took advantage of her vulnerable state.

The court found significant aggravating factors, including Mitrovic's extensive criminal record with a history of violence against women, lack of remorse, and callous attitude.

Mitigating factors were minimal.

The court emphasized denunciation and specific and general deterrence, finding the Crown's requested sentence of 4 years appropriate and within the established range for similar serious sexual assaults.

Ancillary orders for DNA, a 10-year prohibition, communication ban, and 20-year SOIRA registration were also issued.

The defendants moved for summary judgment to dismiss the plaintiff's claim alleging undue influence over the deceased's will and beneficiary designations, and a claim for compensation for services.

The court found no genuine issue requiring a trial, determining that the plaintiff failed to provide corroborating evidence for undue influence or an agreement for compensation, and that the compensation claim was statute-barred.

The motion for summary judgment was granted, and the claim was dismissed.

The accused was charged with eight counts including possession of loaded restricted firearms without authorization, possession of firearms without a licence, careless storage of firearms, break and enter at a pharmacy, alteration of vehicle identification numbers, and possession of stolen motor vehicles.

The Crown withdrew charges related to VIN alterations and the co-accused.

The trial proceeded on counts relating to firearm possession, careless storage, break and enter, and possession of stolen vehicles.

The court found the accused guilty of counts 1, 2, 3, and 7 (firearm possession and stolen vehicle possession) but acquitted him of counts 4 and 6 (break and enter and possession of the Durango) due to insufficient evidence of knowledge and physical capability.

During a criminal jury trial for extortion, robbery, and death threats, the Crown sought to re‑examine the complainant about her understanding of one accused’s reputation to explain her delayed report to police.

Defence objected, arguing the evidence constituted inadmissible character evidence with prejudicial impact.

The court held that the proposed testimony was admissible not to prove the truth of the accused’s alleged reputation, but to establish the complainant’s state of mind and rebut defence suggestions that the allegations were fabricated due to delayed reporting.

Applying the balancing approach to discreditable conduct evidence, the court found the probative value in addressing credibility outweighed the potential prejudice.

The Crown was therefore permitted to ask the proposed questions with a limiting jury instruction.

The offender was convicted by a jury of conspiracy to export 208,000 ecstasy pills to the United States, possession of ecstasy for the purpose of exporting, and possession of a weapon for a dangerous purpose.

The offender acted as a delivery person in an undercover operation directed by a co-conspirator.

The court sentenced the offender to 5 years for the drug offences and 6 months consecutive for the weapon offence, less 6 months credit for strict bail compliance, resulting in a net sentence of 5 years.