Michael N. Varpio

The accused brought a Charter motion seeking a stay for unreasonable delay under s. 11(b).

Applying Jordan, the court held that delay arising from a defence adjournment to contest additional committal submissions under s. 548 of the Criminal Code was defence delay because the position lacked arguable merit, and that delay caused by the accuseds' non-attendance at the preliminary inquiry was also defence delay.

After deducting that time, the net delay fell below the 30-month ceiling.

In the alternative, the court held that the matter also complied with Morin as a transitional case.

Both applications were dismissed.

The applicant sought judicial review of decisions by the Independent Police Review Director and the Chief of Police classifying an unjustified strip search by a police officer as misconduct 'not of a serious nature' under the Police Services Act.

The applicant argued that an unjustified strip search must always be classified as serious misconduct and that the failure to hold a disciplinary hearing breached procedural fairness.

The Divisional Court dismissed the application, holding that the Director and Chief have statutory discretion to assess the seriousness of misconduct based on the specific circumstances.

The court found the decisions were reasonable given the facts, including that the search was conducted privately, without touching, and in accordance with policy, and that no hearing was required once the misconduct was reasonably deemed not serious.

The offender, an indigenous man with no prior criminal record, was convicted of sexual assault and unlawful confinement after attempting to force sexual contact with the victim in a change room.

The Crown sought a two-year less a day jail sentence, while the offender sought a six-month conditional sentence.

The court weighed the aggravating factors of the violent nature of the assault and its emotional impact on the victim against the mitigating factors, including the offender's Gladue factors, lack of criminal record, and community support.

The court concluded that a conditional sentence would not adequately address the need for denunciation and general deterrence, sentencing the offender to six months in jail followed by three years of probation.

The appellant appealed a Small Claims Court decision regarding a claim for unpaid wages for carpentry work and a counterclaim for deficient work.

The trial judge rejected the appellant's evidence on the deficiencies and repair costs because the appellant was not qualified as an expert.

The Divisional Court dismissed the appeal, affirming that evidence regarding the nature of faulty work and repair valuation requires expert opinion, which the appellant failed to provide.

The applicant, a municipal councillor, sought judicial review of a decision by the City of Vaughan Council to suspend his pay for 90 days based on a report by the Integrity Commissioner.

The Commissioner found the applicant had improperly interfered with municipal tendering processes and attempted to obstruct her investigation.

The applicant argued he was denied procedural fairness because the Commissioner refused to disclose the names and statements of 32 witnesses.

The Divisional Court dismissed the application, applying the Baker factors to find that the Commissioner properly balanced the applicant's right to know the case against him with the need to protect cooperating staff from reprisals.

The court also rejected arguments regarding reasonable apprehension of bias and the Commissioner's jurisdiction.

Following a successful appeal that set aside an order reducing spousal support, the appellant sought costs of the underlying motion.

The issue of costs for the motion had not been addressed during the appeal hearing or in the initial reasons for judgment.

The Divisional Court exercised its discretion to correct the oversight before the final order was entered, relieving the appellant from the requirement to file a formal notice of motion.

The court awarded the appellant partial indemnity costs of the underlying motion fixed at $14,604.53.

The Mother sought to relocate with the children from Sault Ste.

Marie to Windsor for a full-time teaching position, which the Father opposed.

The court applied the Gordon v. Goertz test, finding a material change in circumstances due to the expiration of the Mother's leave of absence.

The court assessed the best interests of the children, weighing the benefits of remaining in Sault Ste.

Marie (strong family bonds, community) against the benefits of moving to Windsor (financial stability, Mother's strong parenting, existing support network, Father's flexible access plan).

The court found the Mother's testimony more credible and concluded that the financial benefits and the Mother's strong parenting skills, coupled with a viable parenting plan, outweighed the disruption of the move.

Leave to relocate was granted.

The appellant, a disabled former spouse, appealed a motion judge's order reducing her spousal support from $1,500 to approximately $800 per month.

The motion judge had found a material change in circumstances based on the respondent's adoption of his new wife's children, his deteriorating health, and his new wife's inability to work.

The Divisional Court allowed the appeal, finding that the motion judge made palpable and overriding errors of fact regarding the respondent's health and income, and erred in law by failing to apply the 'first-family-first' principle to the respondent's voluntary assumption of new financial obligations.

The original spousal support order was restored.

The applicant employer sought judicial review of a labour arbitrator's decision that mitigated the termination of an employee who engaged in a sophisticated scheme of job-related thefts.

The arbitrator had reinstated the employee for the purpose of applying for long-term disability benefits, finding that the employee's undiagnosed PTSD and depression 'clouded' the thefts.

The Divisional Court allowed the application and quashed the award, holding that the arbitrator's decision was unreasonable because it relied on contradictory findings regarding the medical evidence and failed to establish a clear nexus between the PTSD and the premeditated thefts.

Constable Glenn McLean, an OPP officer, was charged with theft of a decommissioned Intoxilyzer 5000c.

The Crown conceded that McLean had a color of right to temporarily remove the device due to a lax departmental culture regarding personal use of equipment.

The court found that the charge, particularized to "on or about December 16, 2011" could not be proven as the color of right existed at that time.

Furthermore, the court had a reasonable doubt regarding McLean's mens rea for theft, considering the open use of the device at a party and the general departmental culture.

McLean was acquitted.

The appellant appealed a jury trial decision dismissing her personal injury claim against the Toronto Transit Commission for an alleged fall on a bus.

She argued the trial judge erred by refusing to instruct the jury on spoliation regarding overwritten video evidence, allowing cross-examination on her doctor's complete clinical notes, and permitting references to pre-existing injuries.

The Divisional Court dismissed the appeal, finding no palpable and overriding errors in the trial judge's evidentiary rulings or jury instructions, as the appellant failed to prove intentional destruction of evidence and the medical records were relevant to her claims.

The accused was tried on multiple historical sexual offence counts involving two complainants.

On the counts involving one complainant, the court applied the W.(D.) framework and held that the accused's evidence, though problematic, raised a reasonable doubt on both non-consent and whether he occupied a position of trust or authority under s. 153 of the Criminal Code.

On the counts involving the second complainant, the court accepted the complainant's evidence, rejected the accused's account as implausible, and found the Crown had proved sexual assault and forcible confinement beyond a reasonable doubt.

The accused was acquitted on counts #1, #2 and #3 and convicted on counts #4 and #5.

Glenn McLean, an OPP Constable, faced charges including theft of gasoline (Count #6).

At the close of the Crown's case, the defence brought an application for a directed verdict on Count #6, arguing insufficient evidence to prove personal use, lack of colour of right, or dishonest purpose.

The Crown conceded Count #2 but opposed the directed verdict for Count #6, relying on circumstantial evidence.

The court applied the Sheppard test, which requires drawing reasonable inferences in favour of the Crown at this stage.

The court found that the Crown's evidence, though circumstantial, was capable of supporting an inference of dishonest use of the gasoline for non-OPP purposes.

Consequently, the application for a directed verdict on Count #6 was dismissed.

This motion for directions addressed several outstanding issues in a 15-year-long litigation, much of which was attributed to one of the plaintiffs, Ms. Valve Aloe-Gunnell, who had previously been found in contempt.

The court considered requests from both the plaintiffs (Ms. Aloe-Gunnell seeking contact with a third-party purchaser, document production, leave to commence new actions, and to strike a prior order) and the defendants (seeking approval of a revised property severance plan, an order preventing Ms. Aloe-Gunnell from contacting municipal authorities, and a direction for Ms. Aloe-Gunnell to sign a necessary document).

The court denied Ms. Aloe-Gunnell's request for contact with the third-party purchaser and deferred decisions on her requests for leave to sue and to strike an order, pending further submissions.

The court approved the defendants' revised plan for property severance and directed Ms. Aloe-Gunnell to sign a document essential for the process, rejecting her arguments against it as disingenuous.

The court declined, for now, to bar Ms. Aloe-Gunnell from contacting American municipal officials due to jurisdictional uncertainty, but issued a strong warning about potential contempt if her actions were found to thwart the sale.

The court also refused to tailor orders to promote "oblique motives" regarding the sale to an environmental group.

The Thessalon First Nation (TFN) sought an interim injunction to prevent The Municipality of Huron Shores from proceeding with a tax sale of lands TFN claims are part of its reservation.

TFN asserts an historical error in the 1850 Huron Treaty survey.

The Municipality had not collected taxes on the land since 2000, agreeing with TFN's position, but initiated a tax sale due to significant arrears and provincial levies.

The court applied the RJR-MacDonald test, finding a serious question to be tried regarding Aboriginal land title and the Honour of the Crown, irreparable harm if the land were sold, and that the balance of inconvenience favored TFN, especially considering the potential for the Province to mitigate its costs.

The interim injunction was granted, halting the tax sale, with a further hearing scheduled to allow provincial and federal governments to make submissions.

The parties sought directions regarding the severance and transfer of property pursuant to a 2011 consent order.

The order required the transfer of approximately 3.43 acres of commercial property, but the parties later discovered only 3.042 acres were zoned commercial.

The defendants agreed to transfer an additional 0.388 acres of residential property to make up the difference, and their counsel undertook to re-zone it to commercial.

The court held that while transferring the mixed-zoned property would substantially comply with the consent order, the defendants were still bound by their counsel's undertaking and must re-zone the 0.388 acres prior to the transfer.

Following the release of its decision on the main appeal, the Divisional Court realized it had inadvertently omitted addressing the appellant's supplementary notice of appeal regarding a $10,000 costs order made by the motion judge.

The respondent argued the issue should be left to the Court of Appeal or dismissed due to late service.

The Court rejected these arguments, deciding to hear the costs appeal and setting a timetable for written submissions.

The applicants, cancer researchers at the University Health Network, sought judicial review of the hospital CEO's decision affirming an investigation committee's finding that they committed research misconduct.

The committee found the applicants guilty of falsification, fabrication, and material non-compliance, resulting in a suspension of their research activities.

The Divisional Court held that the CEO's decision was subject to judicial review and reviewable on a reasonableness standard.

The court quashed the findings of falsification and fabrication as unreasonable because the committee could not identify who altered the images.

However, the court upheld the finding of material non-compliance based on systemic flaws in the applicants' laboratory management.

The matter of sanction was remitted for reconsideration.

Following a successful appeal, the respondent sought substantial indemnity costs of $11,382.27 or partial indemnity costs of $8,119.39.

The appellants argued for no costs, claiming the appeal raised a novel issue regarding the enforcement of minutes of settlement under Rule 49.09.

The Divisional Court rejected both arguments, finding the issue was neither novel nor of public interest, and awarded the respondent partial indemnity costs fixed at $5,000.

The appellant mother appealed an order declaring she wrongfully retained her two children in Ontario and requiring their return to Germany under the Hague Convention.

The children had moved to Ontario with the respondent father's consent for a temporary period.

The Divisional Court found that the application judge erred in concluding the children's habitual residence remained in Germany.

The Court held that during the 16-month consensual period, the children's habitual residence changed to Ontario.

The appeal was allowed, the return order was set aside, and the Hague application was dismissed.