Michael R. Gibson

This case concerns a civil action brought by the plaintiffs against the Niagara Regional Police Service and individual officers for alleged negligence, assault, and breaches of their Charter rights during the execution of a search warrant.

The police conducted a dynamic entry into the plaintiffs' home, where their son, suspected of drug dealing and firearm possession, resided.

The plaintiffs claimed psychological injuries, property damage, and mistreatment during their detention.

The court found the plaintiffs' testimony lacked credibility and preferred the defendants' expert psychiatric evidence.

It concluded that the police acted reasonably and within their duties, dismissing the plaintiffs' claims for lack of compensable damage, absence of a causal connection to a breach of the standard of care, and no proven serious psychiatric injury.

The applicant sought the release of a settlement conference transcript to impeach the respondent's credibility in a motion to change a final order regarding spousal support.

The court dismissed the applicant's motion, affirming the strong presumption of confidentiality for settlement conferences under Rule 17(23) of the Family Law Rules.

The court held that only extraordinary circumstances, typically involving safety concerns, would warrant the release of such transcripts, and no such circumstances were demonstrated.

The Applicant, Marcy Lightfoot, sought costs on a full recovery basis following a successful motion for partition and sale of the matrimonial home and interim spousal support.

The Respondents, David Lightfoot and Evelyn Lightfoot, opposed the costs.

The court awarded costs of $29,000 to the Applicant, citing the Respondent David Lightfoot's unreasonable, obstructionist, and contemptuous conduct throughout the litigation, including his refusal to settle and disrespectful behaviour in court.

The decision emphasized that self-represented litigants are not immune from costs consequences for inappropriate conduct.

The applicant, Michael Theberge, charged with drug and weapons offences, brought a pre-trial motion to exclude evidence obtained during the execution of a search warrant at his residence.

He argued that the police's use of a "dynamic entry" (battering ram, limited penetration) violated his section 8 Charter rights, contending it was an unwarranted and unreasonable use of force.

The Crown argued the entry method was justified by reasonable grounds concerning officer safety and the potential destruction of evidence.

The court, applying principles from R. v. Cornell and R. v. Pileggi, found that the police had reasonable grounds to depart from the "knock and announce" rule, made an individualized assessment, and did not act based on a blanket policy.

The application to exclude the evidence was dismissed.

The Applicant sought a permanent restraining order against the Respondent under section 46(1) of the Family Law Act, alleging reasonable grounds to fear for her safety due to the Respondent's harassing and irresponsible behaviour following the breakdown of their common-law relationship.

The Respondent argued he was a tenant, not a cohabitant, and resisted the order.

The court found the Applicant credible and the Respondent not credible, determining they were in a common-law relationship and that the Applicant had legitimate and reasonable grounds to fear for her safety.

A permanent restraining order was issued.

The Crown sought to admit a video-recorded statement of the complainant, N.W., into evidence at trial under s. 715.1(1) of the Criminal Code.

The complainant was six years old at the time of the alleged sexual offences and made the statement seven years later when she was 13.

The respondent resisted the admission, arguing the statement was not taken within a "reasonable time." The court dismissed the Crown's application, finding that a seven-year delay was too long to ensure an accurate and early account, and that the complainant, now 18, was capable of giving viva voce evidence, thus not fulfilling the primary purposes of the statutory provision.

The plaintiff, a mortgage broker, brought a motion for summary judgment against the defendants, lawyers for the borrower, seeking $37,500 in unpaid broker fees.

The plaintiff alleged the defendants breached a trust by advancing the full mortgage funds to their client despite being notified of an error that included the broker fees.

The defendants argued there was no trust agreement with the plaintiff and they acted on their client's instructions.

The court dismissed the motion, finding no certainty of intention to create a trust and that the defendants did not act dishonourably by prioritizing their client's instructions.

The court also commented on the impropriety of a lawyer acting as both witness and counsel.

The London & Middlesex Housing Corporation (LMHC) brought a summary judgment motion to dismiss a claim against it by a tenant, Keith Horn.

Horn alleged LMHC was liable for an assault and battery committed by another tenant, Brian Latondress, who was also employed by LMHC as a Resident Contact.

Horn claimed direct negligence in hiring Latondress and/or vicarious liability.

LMHC argued that Latondress's actions were either self-defence or an independent intentional act outside the scope of his employment.

The court dismissed LMHC's motion, finding that there was a genuine issue for trial regarding the nexus between Latondress's conduct and his employment, particularly concerning vicarious liability under the Salmond test and the "enterprise risk" principle.

The applicant father brought an interim motion to change a final order concerning child support, decision-making responsibility, and parenting time.

He sought a reduction in child support, alleging parental alienation, and proposed a police apprehension order for parenting time enforcement.

The court dismissed the motion, finding no material change in circumstances to justify varying the final order on an interim basis.

The court emphasized that the applicant's dissatisfaction with child support was not a material change, and his proposals for "retribution" via child support reduction and police enforcement were contrary to the children's best interests and an abuse of process.

The Respondent Mother brought a motion to change a 2016 final order concerning decision-making responsibility, parenting time, child support, and s.7 expenses for the parties' three children.

The Applicant Father resisted the motion.

The court found a material change in circumstances due to the parties' inability to cooperate, the father's unwillingness to support extracurricular activities, and the children's changed perspectives.

The court granted the mother sole decision-making authority, adjusted parenting time (reducing father's weekday time but extending weekend and adding summer time), imputed income to the father due to non-disclosure, and adjusted child support and s.7 expenses.

The accused, T.A., was charged with sexual assault and sexual interference against a 10-year-old complainant.

The trial proceeded judge-alone, with the Crown presenting evidence from the complainant and the defence calling the accused.

The court assessed the complainant's credibility and reliability, noting inconsistencies in her testimony.

Applying the principles of reasonable doubt and the W.(D.) analysis, the court found that the Crown failed to prove beyond a reasonable doubt that the touching was for a sexual purpose, which is an essential element for both charges.

Consequently, T.A. was acquitted on both counts.

The applicant mother sought to change the surnames of her two young children from the father's surname to her own, or a hyphenated surname, and to add a forename, relying on a temporary decision-making order.

The respondent father opposed, seeking to continue a stay on the name change applications until a final determination at trial.

The court dismissed the applicant's motion, finding that "lawful custody" under the Change of Name Act should not be interpreted as temporary decision-making responsibility for the purpose of unilaterally changing a child's name.

The court emphasized that name changes are significant incidents of custody requiring careful consideration of the child's best interests at a final hearing, not based on a temporary order or a parent's personal feelings.

The respondent's motion to stay the name change applications was granted in part, and the applicant was ordered to pay costs.

This high-conflict family law case involved two motions concerning the parenting arrangements for a child.

The respondent father sought a temporary order for primary residence due to alleged parental alienation by the applicant mother.

The applicant mother sought dismissal of the father's motion and an updated Office of the Children's Lawyer (OCL) report.

A critical material change in circumstances arose: the mother was in a relationship with a man recently convicted of child pornography possession and subject to a s.161 Criminal Code prohibition order.

The court found this constituted a compelling and exceptional material change, creating actual or potential harm to the child.

Consequently, the court granted the father's motion for temporary primary residence and sole decision-making responsibility, while allowing the mother unsupervised parenting time under strict conditions, including the prohibition of the convicted individual's presence during her parenting time.

The OCL was also requested to engage further services.

The plaintiffs, Donna and Ronald Zoleta, sought summary judgment against the purchaser, Lovesikander Singh, and the real estate agent, RE/MAX Twin City Realty Inc., for breach of an Agreement of Purchase and Sale (APS) of a property.

Singh failed to close the transaction after the real estate market declined and an appraisal showed a significantly lower property value, demanding a large abatement.

The plaintiffs relisted the property "pre-emptively" but maintained their intent to close the original deal.

Singh argued the relisting repudiated the contract and prevented him from securing financing, and also alleged conspiracy between the plaintiffs and RE/MAX.

The court found that Singh repudiated the APS by demanding an abatement, and the plaintiffs did not accept this repudiation.

The court further found that the plaintiffs' relisting of the property did not constitute repudiation, as they provided notice and continued to affirm the agreement.

Singh also failed to accept any alleged repudiation by the plaintiffs in a timely manner, instead affirming the contract through requests for extension.

The court dismissed Singh's conspiracy claims due to lack of evidence and damages.

Summary judgment was granted in favor of the plaintiffs for damages, and Singh's crossclaim and counterclaim were dismissed.

The plaintiff, Leanne Briscoe, brought a motion for summary judgment against the defendants, 9327959 Canada Inc. and Stephan Yaworski, seeking repayment of a $150,000 loan.

The loan was evidenced by a promissory note that stipulated repayment by December 4, 2021, or upon the sale of a property, whichever occurred earlier, plus interest.

The property was not sold by the deadline, triggering the repayment clause.

The defendants argued the note was unenforceable due to a lack of consensus ad idem, adverse market conditions, and the rights of prior lenders, claiming verbal agreements supplemented the written terms.

The court found the promissory note clear and unambiguous, and that the defendants failed to provide specific, coherent evidence to support their claims, relying instead on bald allegations.

Exercising its enhanced fact-finding powers under Rule 20.04(2.1) of the Rules of Civil Procedure, the court determined there was no genuine issue requiring a trial.

Summary judgment was granted in favour of the plaintiff for $195,000 plus pre-judgment interest.

Daniel Otim Ochan, a 20-year-old with severe disabilities, was the subject of conflicting guardianship applications.

The Public Guardian and Trustee (PGT) sought guardianship of his person and property, proposing a full-time residential placement.

Daniel's parents, Joseph and Christine Ochan, filed a cross-application seeking to be appointed joint guardians, allowing Daniel to remain at home.

Daniel, through his counsel, expressed a strong wish to stay with his parents.

The court, considering the criteria under the Substitute Decisions Act, including Daniel's wishes and the closeness of the relationship, found that Daniel's best interests aligned with his preference for his parents to be guardians.

Despite past care concerns, the parents demonstrated recent improvements.

The court appointed Joseph and Christine Ochan as joint guardians of Daniel's person and property for a limited 12-month period, allowing for future review.

The plaintiff, 2506045 Ontario Inc., brought a motion for summary judgment against the defendants, Jeffrey Thomas Gaskell and Atilla Rahmaty, for breach of a commercial lease and indemnity agreement.

The tenant, Rahmaty, and indemnifier, Gaskell, defaulted on rent payments for a Mediterranean restaurant premises.

The plaintiff terminated the lease and secured a new tenant within three months.

The defendants disputed the quantum of damages, asserting the plaintiff failed to mitigate losses and that the lease was unconscionable or vague.

The court found that the plaintiff took reasonable steps to mitigate damages and that the defendants failed to provide sufficient evidence to the contrary.

The court also rejected the arguments of unconscionability and vagueness, noting the defendants' active negotiation of lease terms.

Summary judgment was granted in favour of the plaintiff for $223,749 plus prejudgment interest.

This decision addresses two cross-motions in complex, joined real estate development actions: the plaintiffs' motion for a further affidavit of documents and the defendants' motion to bifurcate the action and postpone document production.

The court dismissed the defendants' bifurcation motion, holding that bifurcation under Rule 6.1.01 requires party consent, which was absent.

The request for delayed production was also denied, as the defendants failed to demonstrate serious prejudice or that the documents were solely related to damages.

The plaintiffs' production motion was granted, with the court finding the requested documents relevant to both liability and defence, and the request proportionate given the $65 million in dispute.

The court emphasized that the deemed undertaking rule mitigates concerns about commercially sensitive information.

The defendant, G.B., was found guilty after a judge-alone trial of one count of Sexual Interference (s.151 Criminal Code) and one count of Invitation to Sexual Touching (s.152 Criminal Code) involving his daughter, H.B., over a protracted period from ages 7-8 to 13-14.

The court considered sentencing principles, including proportionality, denunciation, and deterrence, giving particular weight to the Supreme Court of Canada's guidance in R. v. Friesen, 2020 SCC 9.

Aggravating factors included abuse of a position of trust (father-daughter relationship), the victim being under 18, and the repeated nature of the abuse.

The sole mitigating factor was the defendant's lack of a prior criminal record.

The court emphasized that denunciation and deterrence must predominate in such cases.

The accused, M. T-S., was found guilty by a jury of one count of sexual assault against his former intimate partner, C.U. The assault involved penetrative sexual intercourse without consent, occurring in the presence of their young daughter.

The court considered aggravating factors, including the abuse of an intimate partner, the significant impact on the victim, the presence of a child during the offence, and the offender's criminal record.

Mitigating factors were limited to the offender's physical disability (amputee) and the time spent on bail.

The Crown sought a four-year imprisonment sentence, while the Defence proposed 30 months.

The court applied sentencing principles, including proportionality, individualization, denunciation, and deterrence, and considered the 3-5 year starting point range for penetrative sexual assaults.

The court also addressed the relevance of potential immigration consequences, concluding they did not warrant a reduced sentence given the egregious nature of the offence.

M. T-S. was sentenced to 4 years imprisonment, along with ancillary orders for DNA, sex offender registration, no-contact, and a weapons prohibition.