Michael Miller

The accused, a former police officer, was charged with sexual assault against a complainant he met while investigating a domestic violence incident involving her.

The Crown alleged the accused pushed the complainant onto her bed and rubbed against her without consent, or alternatively, that any consent was vitiated by his abuse of authority.

The accused testified that the touching was consensual and occurred on a couch.

The court applied the W.(D.) framework and found the accused's evidence did not raise a reasonable doubt.

However, due to inconsistencies and frailties in the complainant's evidence, the court was left with a reasonable doubt as to whether she subjectively did not consent.

The court also found no convincing evidence that consent was vitiated by an abuse of trust or authority.

The accused was acquitted.

The moving parties sought an urgent interlocutory injunction to prevent the respondent from selling securities in a real estate development project pursuant to a put option agreement, or alternatively, an order freezing the sale proceeds under Rule 45.02.

The court found that while the moving parties might suffer irreparable harm if the proceeds were repatriated out of Canada, the balance of convenience favoured the respondent, who had a valid third-party offer and faced an impending mortgage expiry.

The court also held that the sale proceeds did not constitute a specific fund under Rule 45.02 as the moving parties' claim was essentially for damages.

The motion was dismissed, with leave to renew if the current sale transaction failed to close.

Following the dismissal of Multiplex's motions for a sealing order and pleading amendments, and the granting of its motion to examine a non-party under Rule 31.10, the court determined the costs of the motions.

The court awarded PGH $11,000 in partial indemnity costs for the dismissed motions, finding Multiplex's conduct was not reprehensible or wholly devoid of merit to justify substantial indemnity costs.

The court deferred the costs of the successful Rule 31.10 motion, ruling that the non-party's costs would be determined if he seeks reimbursement, and PGH's liability for Multiplex's costs would be determined in the cause of the underlying fraud allegations.

The applicant municipality sought an order under s. 38 of the Building Code Act for the removal or demolition of buildings placed on the respondent's property without a permit.

The property was subject to a holding provision in the zoning by-law, which restricted use to existing uses until a site plan agreement was entered into, requiring the construction of a road to municipal standards.

The court found the respondent violated the zoning by-law and the Building Code Act, and granted the order for removal or demolition, along with an injunction against occupying the buildings.

Multiplex Construction Canada Limited brought motions for a sealing order concerning fraud allegations made against it and its officers, and alternatively, to strike references to its officers from the respondent's amended pleading.

Multiplex also sought a Rule 31.10 examination for discovery of a non-party, George Colk.

The court denied the sealing order, finding that the commercial and reputational interests cited did not meet the public interest requirement of the necessity test.

The motion to strike parts of the pleading was also denied, as it improperly attacked the evidentiary basis rather than the pleading's sufficiency.

The Rule 31.10 examination of Mr. Colk was granted, with specific terms for its conduct, but his request for upfront costs was denied, to be determined post-examination.

The accused pleaded guilty to a gunpoint robbery of a man in his truck, along with related offences.

The accused had a significant youth record including two prior robberies.

The court accepted a joint submission, sentencing the accused to 5 years in custody, less 2 years of enhanced credit for pre-trial custody, leaving 3 years to serve.

Concurrent sentences were imposed for the other counts, along with DNA and weapons prohibition orders.

The Applicant, Colleen Conkie, sought costs on a partial indemnity basis in the amount of $24,312.01 after successfully obtaining an easement.

The Respondent, Susan Bugow, opposed the award, citing financial hardship, disputing the Applicant's conduct regarding a culvert, and claiming interference with her property.

The court, exercising its discretion under section 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, found the Applicant's requested costs reasonable given the complexity but reduced the award to $12,000, all inclusive, due to the Respondent's financial situation and the nature of some expenses incurred for obtaining the easement.

The appellant appealed a trial judge's order affirming the validity of a domestic contract between the parties.

The Court of Appeal found no error in the trial judge's thorough analysis and rejection of the appellant's arguments to set aside the agreement.

The appellant raised a new argument on appeal regarding waiver of spousal support rights under the Family Law Act, but this argument was not advanced at trial and was declined for consideration on appeal.

This addendum to reasons for decision addresses two procedural matters inadvertently omitted from the original decision released on August 20, 2018.

The court directed the parties to submit written costs submissions within four weeks and ordered that the applicant be permitted to take out the formal judgment without requiring the respondent's approval as to form and content.

The applicant sought a declaration of an easement over the respondent's property and a permanent injunction to prevent interference with access.

The easement was originally granted by a written agreement between the applicant's predecessor in title and the respondent's predecessor in title in 1977, but was never registered.

The applicant and her predecessors had used and maintained the access road for over 40 years.

The respondent later refused to formalize the easement and interfered with access.

The court found the original agreement binding and enforceable against the respondent, citing similar factual circumstances in Gawalko v. Sullivan and Guy v. Sant, emphasizing that the road's visible existence constituted actual notice.

The court granted the declaration of easement, directed rectification of the Land Titles register, and issued a permanent injunction.

The appellant appealed a series of arbitration awards concerning parenting issues for the parties' four-year-old child, E. The awards included E's registration on the Korean Family Registry, the requirement to hire a transfer facilitator for child exchanges, and the arbitrator's costs decision.

The court also addressed preliminary motions for fresh evidence.

The appeal was dismissed in its entirety, with the court upholding the arbitrator's decisions, finding no palpable and overriding errors of fact or errors in principle.

The fresh evidence motions were largely dismissed, applying the Palmer test, due to issues of hearsay, reliability, and statutory prohibition.

The plaintiff was successful in defending a Rule 21 motion brought by the defendant to strike the statement of claim.

The plaintiff sought costs of approximately $15,000 on a partial indemnity basis, while the defendant submitted that costs should be in the range of $3,500, consistent with two previous similar motions.

The court found the plaintiff's costs outline to be surprisingly high and noted that the defendant should not have to pay for the plaintiff's previous failures to properly plead the claim.

The court exercised its discretion under section 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure to award the plaintiff costs fixed at $3,500, allowing the defendant to set off $3,000 in unpaid costs owed from a previous motion.

The defendant university brought a motion under Rule 21 to strike the plaintiff's fresh as amended statement of claim without leave to amend.

The plaintiff, a former medical resident, sued the university for breach of contract and breach of fiduciary duty, alleging the residency program was substandard and failed to prepare him for his specialist licensing exams.

The court found that the plaintiff had adequately pleaded the nature and source of the contract, as well as the vulnerability and reliance necessary for a fiduciary duty claim.

The court held that the claim was novel but arguable, and dismissed the motion to strike.

The applicant municipality and chief building official sought an interlocutory injunction to restrain the respondents from operating an addiction recovery centre on their property.

The applicants argued the property was not zoned for institutional use, while the respondents claimed the facility qualified as a permitted 'Lodge' or 'Resort'.

Applying the modified RJR MacDonald test for public authorities, the court found a strong prima facie case that the use breached the zoning by-law, as the facility's primary purpose was health and welfare, not catering to the vacationing public.

The interlocutory injunction was granted.

The defendant, The University of Western Ontario, brought a second motion to strike the plaintiff's Further Amended Statement of Claim.

The plaintiff alleged the university failed to provide satisfactory post-graduate training, leading to his failure of a qualifying examination.

The motion sought to strike claims for breach of contract and breach of fiduciary duty, and argued that the actions fell within academic discretion.

The court ordered the pleadings for breach of contract (paragraphs 8, 11, 44) and breach of fiduciary duty to be struck, both with leave to amend.

The court found it was not plain and obvious that the breach of contract claim failed due to academic discretion immunity, but advised the plaintiff to plead material facts more clearly.

The court clarified that the relationship between a university and its students is not inherently fiduciary and required specific pleading of fiduciary elements.

Following a successful application by the respondents for a declaration that a private driveway was not an access road under the Road Access Act, the respondents sought substantial indemnity costs.

The applicants argued that costs should be on a partial indemnity scale and reduced by the amount the respondents received from their title insurer.

The court awarded partial indemnity costs and held that the private insurance exception did not apply because the applicants were not tortfeasors.

The costs award was reduced by the title insurance payout to prevent double recovery, as costs are for indemnity only.

Following a municipal building enforcement dispute, the applicant sought rescission of stop work and compliance orders issued by a municipal chief building official regarding patios constructed without a permit.

Parallel provincial offences proceedings resulted in the applicant’s acquittal on all charges and the municipality subsequently rescinded the orders, rendering the application moot.

The court considered whether the applicant was entitled to costs and whether substantial indemnity costs were justified.

While the applicant was effectively successful because the orders were withdrawn, the court found no evidence of bad faith or reprehensible conduct by the municipality.

Partial indemnity costs were therefore awarded in a reduced amount reflecting excessive time and disbursements claimed.

Neighbouring landowners disputed whether a private roadway crossing the respondents’ property constituted an access road under the Road Access Act and whether the moving parties could lawfully close it.

The responding parties asserted that the road had served as their only vehicular access route for decades and sought a declaration that it was an access road and an injunction preventing interference.

The court found the roadway met the statutory definition of an access road but held that the responding parties had an alternative motor vehicle access route through another private lane connecting to a municipal road.

Because alternate access existed and the respondents had no legal right of way over the applicants’ property, the statutory conditions for closing the driveway were satisfied.

The court exercised its discretion to grant a closing order and dismissed the counter‑application.

A university brought a motion under Rule 21 of the Rules of Civil Procedure to strike a statement of claim alleging negligence, breach of contract, negligent misrepresentation, breach of fiduciary duty, and breach of the duty of good faith arising from alleged deficiencies in a medical residency training program.

The court held it was not plain and obvious that the claim was statute‑barred under the Limitations Act, 2002 because discoverability and factual context had not yet been fully developed.

The court further held that although courts generally defer to universities on academic matters, contractual claims may proceed where the plaintiff alleges failure to meet express or implied contractual obligations.

However, several causes of action were insufficiently pleaded or legally unavailable in the context of academic discretion.

Portions of the claim were therefore struck, some with leave to amend and others without leave.

The applicant brought a motion seeking relief from an earlier court order permitting the municipality to demolish a building if the applicant failed to complete construction by a specified deadline.

The prior order required the building to be ready for final occupancy by August 30, 2012, failing which a stay of demolition would be lifted.

The court found that the applicant had failed to comply with the deadline and had a long history of delays and missed construction timelines despite multiple court-managed extensions.

Applying the doctrines of issue estoppel, collateral attack, and abuse of process, the court held that the prior order should not be revisited.

The motion was dismissed and the earlier demolition-related order was upheld.